Clarrie Smith v State of Western Australia [2000] FCA 1249 (29 August 2000)

Clarrie Smith v State of Western Australia [2000] FCA 1249

Judge: Madgwick j

Where: Perth

This consent determination was registered on the Native Title Register of Consent Determinations on 5 July 2001.

This was the first consent determination made in Western Australia and the first determination arising out of a native title claim that had already begun to be heard in the Federal Court. It was in respect of an area of land much greater than had previously been achieved through the consent determination process. This consent determination concerned a claim by and on behalf of the descendants of three Aboriginal groups respectively known as the Nharnuwangga, Wajarri and Ngarlawangga peoples for a determination of native title in their favour over an area of about 50,000 square kilometres of land, much of it alienated for pastoral and mining purposes.

The land is in the Upper Murchison and Upper Gascoyne region of Western Australia, just south of the Pilbara Region and just to the west of the Great Sandy Desert. The determination did not become effective until 5 July 2001, on which date an Indigenous Land Use Agreement concerning the same parties was registered with the National Native Title Tribunal, as a requirement for the execution of the consent determination. The consent determination provided a limited list of the interests and rights that comprise native title.

They included:

• the right to be acknowledged as traditional owners against other Aboriginal groups or individuals;
• the right to hunt, fish and gather in accordance with traditional laws and customs in a non-commercial manner;
• and the right to access and camp on the determination area in order to visit and care for places of cultural and spiritual importance, to travel through the land or to carry out the rights discussed above

The rights and interests of native title do not operate to the exclusion of all others, and are subject to regulation, control, curtailment and restriction by the State of Western Australia, including under the Aboriginal Heritage Act 1972. The rights and interests of the native title holders will be managed by a corporate body (the Jidi Jidi Aboriginal Corporation).

The consent determination found that there was no native title rights or interests in minerals and petroleum as defined in the Mining Act 1904 or the Petroleum Act 1936. In addition, native title to fauna was deemed to have been wholly extinguished in all wildlife sanctuaries and nature reserves in the claim area. Native title was also extinguished in parts of pastoral leases granted under the Land Regulations 1882, the Land Regulations 1887 and the Land Act 1898 that had been 'enclosed and improved' as reservations for Aboriginal people before 1994. Native title was further extinguished on those parts of the determination area under the Land Act 1933 which were, prior to 1994, 'enclosed or improved' within the meaning of the act. Mining or general purpose leases granted under the Mining Act 1978 prior to 1994, and gold mining, mineral and coal mining lease granted under the Mining Act 1904 were also deemed to have extinguished native title. 

Finally, native title on two lots of land, 8 reserves and one location was also determined to have been extinguished.

There were a number of other interests in the claim area that were recognised by the consent determination. They include:

• the rights and interests included in the Indigenous Land Use Agreement (ILUA) between the Nharuwangga, Wajarri and Ngarlawangeea Peoples and the State of Western Australia, and the pastoral access agreements between these parties.
• the interests of persons in whom Crown Reserves are vested under the Land Act 1898 or Land Act 1933 or under lease of the reserve
• the interests of the National Parks and Nature Conservation Authority under the Conservation and Land Management Act 1984 in a reserve area of land vested in the Authority. 
• lessees under the Land Act 1933, the Mining Act 1978, and the Aboriginal Affairs Planning Authority Act 1972;
• licensees under the Land Act 1933, the Mining Act 1978, the Wildlife Conservation Act 1950, the Rights in Water and Irrigation Act 1914, the Transport Co-ordination Act 1966, the Petroleum Pipelines Act 1962; and the holders of permits under the Land Act 1913; the holders of tenements under the Petroleum Act 1936 and the Petroleum Act 1967; those with licences and holder’s rights under the Goldfield Gas Pipeline Agreement Act 1994.
•  rights and interests in the claim area were held by the Telstra Corporation Limited pursuant to the Post and Telegraph Act 1901, the Telecommunications Act 1975, the Australian Telecommunications Corporation Act 1989, the Telecommunications Act 1991 and the Telecommunication Act 1997.
• rights arising by members of the public under common law were also recognised.
• the Crown and the State of Western Australia also hold interests pursuant to any statute or valid executive or legislative acts. 

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