Darcy Hunter, Winnie Coppin, WD (deceased), Alma Gray and Ada Stewart on behalf of the Nyangumarta People (APPLICANTS) AND
State of Western Australia, Telstra Corporation Ltd, The Commonwealth of Australia, Mandora Pty Ltd, Western Australian Fishing Industry Council (Inc), and Anna Plains Cattle Co P/L (RESPONDENTS)
SP (deceased), Celia Bennet, Harry Watson, Joseph Munro, Joseph Edgar, John Watson, Gordon Marshall, Donald Grey, Regina Grey, Wittidong Mulardy, John Hopiga, Lenny Hopiga, Mervyn Mulardy Jnr, Anthony Watson Others on behalf of the Karajarri People (APPLICANT)
State of Western Australia, Telstra Corporation Ltd, The Commonwealth of Australia, Mandora Pty Ltd, Western Australian Fishing Industry Council Anna Plains Cattle Co P/L, Darcy Hunter, Winnie Coppin, WD (deceased) Alma Gray and Ada Stewart (RESPONDENTS)
Judge: North J
Where made: Anna Plains
Determination: Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights.
Native title is held jointly by the Nyangumarta People and by the Karajarri People.
Nyangumarta People are persons descended from apical ancestors and are Aboriginal persons and who self-identify as Nyangumarta and are generally accepted by other members of the Nyangumarta community as Nyangumarta under traditional law and custom.
Karajarri People are persons descended from apical ancestors and are Aboriginal persons and who self-identify as Karajarri and are generally accepted by other members of the Karajarri community as Karajarri under traditional law and custom.
Exclusive native title rights consist of the possession, occupation, use and enjoyment of the area to the exclusion of all others.
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right of access;
- the right to hunt and to fish;
- the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;
- the right to take, share and exchange natural resources;
- the right to access and take water for personal, domestic or non-commercial communal purposes;
- the right to conduct ceremonial activities on the area and to hold meetings;
- the right to be buried on, and bury other Native Title holders, on the area;
- the right to look after significant cultural sites and places;
- the right to be accompanied onto the Determination Area by people who, though not native title holders are spouses, parents, children of native title holders, or people required by traditional law and customs for the performance of ceremonies or cultural activities on any part of the Determination Area or people who have rights in relation to any part of the Determination Area;
Non-exclusive rights in intertidal areas: In relation intertidal areas within the determination area, the native title rights and interests are the non-exclusive rights to access, remain within, and move freely through the Determination Area, the right to fish and hunt fish for personal, domestic and non-commercial communal needs, take flora and fauna, take the traditional resources of the Determination Area including shells for personal, domestic or non-commercial communal needs, take, share and exchange the natural resources including, soil, sand, clay, gravel, ochre, timber and stone for personal, domestic or non-commercial communal needs, engage in cultural activities in the area, including the transmission of cultural heritage knowledge, conduct ceremonies, hold meetings, visit, maintain, and protect from physical harm, places, sites and areas of significance and the right to take live adult Pinctada maxima pearl oyster for the purpose of sustenance and use of its shell for ceremonial activities including exchange of goods to the extent that such exchange is effected in accordance with a traditional ceremony and the the right to take shell of dead Pinctada maxima for the purpose of using its shell for ceremonial activities including the ceremonial exchange of goods.
Non-native title rights and interests that exist within the determination area can be summarised as
- Pastoral Lease 3114/485, Mandora
- Pastoral Lease 3114/1154, Anna Plains
- The interests of persons who have the care, control and management, leases over or have an entitlement to access and use the following reserves: Reserve 1528 and 1529 - Watering Place and Reserve 9697 - Kimberley De Grey Stock Route;
- Existing petroleum interests of Exploration Permit 448 and Exploration Permit 465 under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
- Rights and interests granted by the Crown including interests of the holders of statutory fishing and pearling licences and permits granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth).
- Rights or interests held under State or Commonwealth law including rights and interests under the Rights in Water and Irrigation Act 1914 (WA);
- Rights and interests of members of the public arising under the common law, including but not limited to the public right to fish and the public right to navigate;
- The right to access land by an employee or agent of the local Government authority, State or Commonwealth in the performance of his or her statutory or common law duties;
- Rights of any person to access and enjoy any roads within the Determination Area existing as at the date of this determination where members of the public have access to such roads and the Kimberley De Grey Stock Route.
- Rights of the holders of petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969
(WA) and mining tenements under the Mining Act 1978 (WA) to use the roads and tracks in the Determination Area existing at the date of this determination in order to have access to such petroleum, pipeline and mineral interests;
- Any existing public access to and enjoyment of waterways, the beds and banks or foreshores of waterways, coastal waters, beaches, stock routes, areas that were public places at the end of 31 December 1993;
- Any other legal or equitable estate or interest in the land or waters or any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with the land or waters or
an estate or interest in the land or waters or restriction on the use of the land or waters, whether or not annexed to other land or waters;
- The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and holder of a carrier licence under the Telecommunications Act 1997
(Cth) or created pursuant to the
Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including the right to establish a telecommunications facility on, and remain in occupation of UCL 18 and the right to install cabling, customer terminal facilities and ancillary facilities and for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area.
- The rights and interests of the Executive Director of the Department of Environment and Conservation pursuant to the Deed of Agreement made between the Executive Director of the Department of Conservation and Land Management (as it then was) and Anna Plains Cattle Co. Pty Ltd under s 16A of the Conservation and Land Management Act 1984 (WA).
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals, petroleum or prescribed substances as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or the Atomic Energy Act 1953 (Cth).
Nyangumarta Karajarri Aboriginal Corporation (the Corporation) is to hold the rights and interests comprising the native title in trust for the common law holders. Although the Nyangumarta people and the Karajarri people have existing prescribed bodies corporate which hold native title rights and interests in respect of their own country, they have registered a new prescribed body corporate to hold the rights and interests in the shared country. |