Mervyn & Ors on behalf of the Peoples of the Ngaanyatjarra Lands v State of Western Australia [2005] FCA 831

Mervyn & Ors on behalf of the Peoples of the Ngaanyatjarra Lands v State of Western Australia [2005] FCA 831

Between: Stanley Mervyn, Adrian Young, Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands (APPLICANTS) AND The State of Western Australia, AirServices Australia, Shire of Laverton, Phyllis Thomas and Ors on behalf of the Mantjintjarra and Ngalia Peoples, Dolly Walker, Newmont Gold Exploration Pty Ltd, WMC Resources Ltd, Telstra Corporation Ltd, The Commonwealth of Australia (RESPONDENTS)

Judge: Black CJ

Where: Parntirrpi outstation in the Central Ranges, Western Australia

Determination: Native title exists in parts of the determination area.

The determination recognises that the persons holding the communal and group rights are the People of the Ngaanyatjarra Lands.

The area covered by the determination is described in Schedule 1.

Areas excluded from the determination area are set out in Schedule 2.

Native title is held by the Peoples of the Ngaanyatjarra Lands and their descendants as described in Schedule 3.

The native title rights and interests identified in Order 1, held by the Peoples of the Ngaanyatjarra Lands in relation to Reserve 24980 (Warburton Range Stock Route) (being an area where there has been partial extinguishment of native title), are:

• the right to enter and remain;
• the right to take fauna and flora;
• the right to take water for personal, domestic, or non-commercial communal purposes;
• the right to take other natural resources such as ochre, stones, soils, wood and resin; and
• the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the native title holders (see Order 3).

These rights and interests are subject to paragraphs 5, 6 and 7.

The nature and extent of the other native title rights and interests in the other parts of the determination area (where there has been no extinguishment or extinguishment is to be disregarded pursuant to ss 47A and 47B of the Native Title Act 1993 (Cth)) are:

• the right to possession, occupation use and enjoyment to the exclusion of all others (except in relation to flowing and subterranean water); and
• the right to take flowing and subterranean water for personal, domestic, or non-commercial communal purposes (see Order 4).
• The native title rights and interests in Order 3 and in Order 4 relating to water set out above do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others.

The native title rights identified are subject to and exercisable in accordance with Commonwealth and State laws and the common law, and with the traditional laws and customs observed by the Peoples of the Ngaanyatjarra Lands.

Order 7 establishes that native title rights and interests in the determination area include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA). These rights do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA) (in force at the date of the determination), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) (in force at the date of the determination).

Other (non-native title) interests recognised in the area are set out in Order 9 (see Schedule 4).

These include:

• the interests of persons who have the care, control and management of reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved;
• interests under leases, sub-leases, mining and exploration leases;
• interests under agreements with WMC Resources Ltd;
• access to Mining Interest Areas; the interests of Telstra Ltd as the owner and operator of telecommunications facilities installed within the Determination Area;
• the rights and interests of AirServices Australia under various agreements and statutory powers;
• the rights and interests of the Bureau of Meteorology as the owner and operator of meteorological facilities situated in the Determination Area; and
• the interests of the Shire of Laverton pursuant to statute including those relevant to the maintenance of roads (see Schedule 4).

Where any of the other rights or interests are inconsistent with the continued enjoyment or exercise of native title rights and interests, the native title rights and interests continue in their entirety but have no effect in relation to the other rights and interests for the period of their currency. As such, the existence of the native title rights and interests does not prevent the doing of any activity under the other rights and interests. To the extent of inconsistency, the non-native title rights and interests prevail over native title rights but do not extinguish them (see Order 10).

This determination arose out of an application for determination of native title filed on 23 April 2004. The parties to that application reached an agreement about the terms of an order.

The area for which the determination was sought covers approximately 187,000 square kilometres of land and waters in the State of Western Australia. The determination area extends west from the border between Western Australia, South Australia and the Northern Territory.

The area includes reserves and special leases granted for the use and benefit of Aboriginal people. It also includes the Gibson Desert Nature Reserve and the Warburton Range Stock Route.

Some 2,700 men and women are named in a schedule to the order as those who, with their descendants, are the Peoples of the Ngaanyatjarra Lands.

This determination covers area that was once the subject of six separate applications for the recognition of native title (WAD 6030 of 1998, WAD 6041 of 1998, WAD 6101 of 1998, WAD 6103 of 1998, WAD 6109 of 1998 and WAD 6111 of 1998).

The present application, the Ngaanyatjarra Lands Application, was brought so that instead of there being six applications, there should be just one application for the whole area. This determination makes provision for the discontinuance of five of the six applications. There remains one outstanding application (Tjirrkarli Kanpa) which remains active because part of its claim area is not covered by the Ngaanyatjarra Lands Application. It is to be determined at a late date.

This determination is the largest native title determination to be made in Australia.

It falls within the local government areas of Ngaanyatjarraku and Laverton Shires and covers the area of the six original applications:

• Baker Lake;
• Gibson Desert;
• Irrunytju-Papulankutja;
• Tingarri Tjina;
• Tjirrkarli Kanpa; and
• Warburton-Mantamaru.

It also includes a small area north of the Spinifex determination area, known as Watalya.

The area is surrounded by three previously determined claims - that of the Spinifex People determined in 2000 and the Kiwirrkurra and Martu determined in 2001 and 2002 respectively.

The parties to the determination agreed to certainty of tenure, access and maintenance of all telecommunications, meteorological and aircraft navigational facilities within the determination area.

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