| Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (21 November 2014)
Between:
JOHN WALTER GRAHAM, BETTY BULLEN, AD (DECEASED), OD (DECEASED), SONNY GRAHAM , KATIE RAY, GEORGINA SCHULTZ, JACK SCHULTZ, MABEL WILSON and MAUREEN YOUNG ON BEHALF OF THE NGADJU PEOPLE (applicant);
and
STATE OF WESTERN AUSTRALIA, CITY OF KALGOORLIE � BOULDER, SHIRE OF COOLGARDIE, COMMONWEALTH OF AUSTRALIA, GOLDFIELDS LAND & SEA COUNCIL ABORIGINAL CORPORATION, ANGLOGOLD ASHANTI AUSTRALIA LIMITED, BHP BILLITON NICKEL WEST PTY LTD, ST IVES GOLD MINING COMPANY PTY LIMITED, LAKE JOHNSTON PTY LTD, ARUBIDDY PASTORAL CO PTY LTD (ARUBIDDY STATION), CHILDARA PTY LTD (PONDANA STATION), COMMONWEALTH HILL PTY LTD (RAWLINNA STATION), JARAC PTY LTD, JEMARKIM NOMINEES PTY LTD, MILEURA CATTLE CO PTY LTD, NORGATE NOMINEES PTY LTD, SYDNEY ERNEST POND, RED SUN NOMINEES PTY LTD, GAYNOR MAREE SHIELDS (MADOONIA DOWNS), VICTOR EDWARD SHIELDS (MADOONIA DOWNS), CHRISTOPHER RYAN SOUTH, MONICA MARGARET SOUTH, VANESK PTY LTD (VANESK STATION), LESLIE HAMILTON PINNIGER and CEDRIC ANDERSON (respondents).
Judge: Marshall J
Where made: Norseman
Determination:
Native title exists in the entire determination area. It consists of areas which have exclusive native title rights and areas which have non-exclusive native title rights.
Native title is held by the Ngadju People.
Non-exclusive native title title rights and interests that exist over the Determination Area consist of the following rights:
- the right to hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;
- the right to live, to camp, to erect shelters and other structures and to travel over and visit;
- the right to do the following activities:
(i) engage in cultural activities;
(ii) conduct rituals or ceremonies;
(iii) hold meetings; and
(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;
- the right to have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds;
- the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.
Exclusive native title title rights and interests that exist over the Determination Area consist of the following rights:
- the right to possession, occupation, use and enjoyment on the Ngadju people to the exclusion of all others.
The native title rights and interests are subject to and exercisable in accordance with:
- the laws of the State and the Commonwealth, including the common law; and
- the traditional laws and customs of the Ngadju People.
The native title rights and interests in the determination area do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of the Determination.
There are no native title rights in or in relation to:
- minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).
Areas to which s 47A or s 47B of the Native Title Act apply:
- sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment of native title in relation to the land and waters referred to in Schedule 4 of the Determination.
Non-native title rights and interests that exist within the Determination Area:
- the non-native title rights and interests that exist within the Determination Area are set out in Schedule 5 of the Determination
- these include:
(i) reserves;
(ii) pastoral leases;
(iii) general leases;
(iv) mining tenements (including leases and licenses);
(v) roads;
(vi) easements;
(vii) petroleum pipeline license; and
(viii) other rights and interests.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,
- the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.
Provisions relevant to the Native Title rights:
- within twelve months of 2 December 2014, a representative of the holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom;
- in the event that there is no nomination within the time specified the matter is to be listed in the Court for further directions.
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Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Schedule 3 Maps of the Determination Area - Set 1 of 2 - ( 
Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 - Consent Determination Extract - (