Watson on behalf of the Nyikina Mangala People (Nyikina Mangala #2) v State of Western Australia [2015] FCA 1132
Between:
JOHN WATSON, ANTHONY WATSON, CYRIL ARCHER, ROSITA SHAW, RONA CHARLES, ANNIE MILGIN, DAVID BANJO, HARRY WATSON & ROBERT WATSON (applicants);
and
STATE OF WESTERN AUSTRALIA (respondents).
Judge: Barker J
Where made: Perth
Determination:
Native title exists in parts of the determination area. It consists of areas of exclusive native title rights and areas of non-exclusive native title rights.
Native title is held by the Nyikina Mangala People.
Native title rights and interests that exist over the determination area consist of the rights to:
- except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; and
- in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
(i) the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes; and
(ii) the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.
Native title rights in relation to flowing and underground waters do not confer:
- possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others; nor
- a right to control the access of others to the land or waters of those parts of the Determination Area.
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 Native Title Holders for personal, domestic, cultural and non-commercial communal purposes (including social, religious, spiritual and ceremonial purposes).
There are no native title rights in or in relation to:
- minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
- water lawfully captured by the holders of Other Interests,
except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).
Non-native title rights and interests that exist within the determination area:
1. Freehold Interests
| Tenure ID | Location | Interest Holder | | CT 1388/272 | Lots 1 & 19 on DP 180688 | Nyikina Mangala Aboriginal Corporation | | CT 1670/643 | Lot 2 on DP 230170 | Nyikina Mangala Aboriginal Corporation | | CT 1659/693 | Lot 18 on DP 230170 | Nyikina Mangala Aboriginal Corporation |
2. Lease
| Tenure ID | Description | | H057490 | A lease in respect of Lots 4, 5, 6, 7, 8 and 9 on DP 230170 for the purpose of grazing held by the Nyikina Mangala Aboriginal Corporation |
3. Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA)
| Tenement ID | Tenement Type | Date of grant | | EP 428 R1 | Exploration Permit | 31/07/2014 |
4. Other Rights and Interests
(a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation;
(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under the common law including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate; and
(iii) the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under common law;
(d) The right to access land by:
(i) an employee or agent or instrumentality of the State;
(ii) an employee or agent or instrumentality of the Commonwealth; and
(iii) an employee or agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
(e) (i) Without limiting the operation of any other paragraph in the Eighth Schedule, but subject to paragraph (f)(ii), the rights of holders from time to time of existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969 (WA) and existing mining tenements under the Mining Act 1978 (WA) including those mentioned at paragraphs 8 and 9 above to use (including by servants, agents and contractors) roads and tracks as are existing at the time of this Determination in the Determination Area to the extent reasonably necessary to have access to the area subject of the petroleum, pipeline and mineral interests for the purposes of exercising the rights granted by those interests;
(ii) Nothing in paragraph (f)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair;
(f) So far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:
(i) waterways;
(ii) the beds and banks or foreshores of waterways;
(iii) stock routes; or
(iv) areas that were public places at the end of 31 December 1993
(g) Any other:
(i) legal or equitable estate or interest in the land or waters; or
(ii) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters; or
(B) an estate or interest in the land or waters; or
(iii) restriction on the use of the land or waters, whether or not annexed to other land or waters.
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 rights and 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 rights and 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 rights and interests. The other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.
Provisions relevant to the Native Title rights:
- the Walalakoo Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
- native title is held in trust for the Nyikina Mangala People.
|
Watson on behalf of the Nyikina Mangala People (Nyikina Mangala #2) v State of Western Australia [2015] FCA 1132 - Schedule 2 Map of Determination Area - ( 
Watson on behalf of the Nyikina Mangala People (Nyikina Mangala #2) v State of Western Australia [2015] FCA 1132 - Consent Determination Extract - (