Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289

Kimberley region

Registered on the National Native Title Register

Between:

Josephine Forrest, Mr P Clancy, Sammy Costain, Elsie Dickens, Claude Forrest, Benjamin Laurel, Malcolm Moora, Mervyn Numbagardie, Dunba Nunju, Bernadetter Williams, Harry Yungabun (APPLICANTS) State of Western Australia, Shire of Halls Creek, Kevin Stephen Brockhurst, Gogo Station Pty Ltd, Jubilee Downs Pastoral Company Pty Ltd, Klopper Holdings Pty Ltd, Shiying Youngawalla no.2 Pty Ltd and Telstra Corporation Limited (RESPONDENTS), and Attorney-General of the Commonwealth of Australia (INTERVENER).

Judge: Bromberg J

Where made: Western Australia

Determination:

Native title exists in part of the determination area. It consists of exclusive and non-exclusie native title rights.

Native title is held by the Yi-Martuwarra Ngurrara People.

Exclusive native title rights over part of the determination area include:

In the areas set out in the attached schedule 3, the nature and extent of native title rights and interests is can be characterised as the right to possession, occupation, use and enjoyment of that part of the Determination Area, to the exclusion of the whole world. These areas are depicted as orange on the maps of attached schedule 2.

However, native title rights in these areas does not include rights and interests in relation to the following:

• minerals as defined in the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
• water lawfully captured by the holders of non-native title interests.

These exclusive native title rights are subject to the laws of the Commonwealth, State of Western Australia, and the traditional laws and customs of the Yi-Martuwarra Ngurrara People.

Non-exclusive native title rights and interests that exist in the determination area include:

In the areas set out in the attached schedule 4, or depicted as orange on the maps of attached schedule 2, the court has recognised the following non-exclusive native title rights:

• the right to access and move freely through and within the area;
• the right to live, being to remain on, camp and erect temporary shelters and other structures, in the area;
• the right to light controlled fires, not for the clearance of vegetation;
• the right to engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
• the right to hold meetings in the area;
• the right to access and take resources for any purpose in the area, including but not limited to water;
• the right to protect places, areas and sites of traditional significance in the area;
• the right to conduct and participate in ceremonies in the area;
• the right to conduct burials, burial rites and other ceremonies in relation to death in the area;
• the right to visit, maintain and protect from physical harm, places of importance in the area; and
• the right to be accompanied onto the area by persons who, although not native title holders, the native title holders may invite pursuant to traditional laws and customs, including spouses or partners, and persons who may assist with the performance of ceremonies or cultural activities.

These non-exclusive native title rights and interests are subject to the laws of the Commonwealth, the State of Western Australia and the traditional laws and customs of the Yi-Martuwarra Ngurrara People.

These non-native title rights do not create any rights in relation to:

• minerals as defined in the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and
• water captured by non-native title interest holders.

Additionally, the rights and interests in relation to water in any watercourse, wetland, or underground water source in the Determination Area are, in nature, non-exclusive rights to take, use and enjoy that water.

These rights do not include occupation, possession, use and enjoyment rights for the Yi-Martuwarra Ngurrara People to the exclusion of all others.

Yanunijarra Aboriginal Corporation RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth). The native title is held in trust for the native title holders.

Non-native title rights and interests that exist within the determination area include (schedule 8):

• the rights and interests of the holder of pastoral lease PL 3114/930, CL218/68 ('Jubilee Downs');
• the rights and interests of the holder of pastoral lease PL 3114/1210, CL 69/1988 ('Millijiddee');
• the rights and interests of the holder of pastoral lease PL 3114/1257, CL 304/1990 ('Christmas Creek');
• the rights and interests of the holder of pastoral lease PL 3114/1261, CL 694/1990 ('Bulka');
• the rights and interests of the holder of pastoral lease PL 3114/1269, CL 175/1992 ('Quanbun Downs');
• the rights and interests of the holder of pastoral lease PL 398/533, CL 175/1971 ('Yougawalla');
• the rights and interests of the holder of pastoral lease PL 398/800, CL 139/1989 ('Larrawa');
• the rights and interests of the holder of pastoral lease PL 398/810, CL 137/1989 ('Gogo');
• the rights and interests of the holder of pastoral lease PL 398/812, CL 134/1989 ('Beefwood Park');
• the rights and interests of the holder of pastoral lease PL 398/813, CL 135/1989 ('Beefwood Park');
• the rights and interests of the holder of pastoral lease PL 398/817, CL 118/1990 ('Cherrabun');
• the rights and interests of the holder of pastoral lease PL 398/818, CL 119/1990 ('Cherrabun');
• the rights and interests of the holder of pastoral lease PL 398/819, CL 551/1994 ('Beefwood Park');
• the rights and interests of the holder of lease number 292482L, over Lot 11 on DP 195311, CT 3118/299;
• the rights and interests in reserve number 23226, for the purpose of stock route Fitzroy Crossing to Nobby's Well;
• the rights and interests in reserve number 39060, for the use and benefit of Aboriginal Inhabitants;
• the rights and interests in reserve number 40324, for the use and benefit of Aboriginal Inhabitants;
• the rights and interests in reserve number 40349, for the use and benefit of Aboriginal Inhabitants;
• the rights and interests in reserve number 40861, for the use and benefit of Aboriginal Inhabitants;
• the rights and interests arising from exploration licence E 80/4975, created pursuant to the Mining Act 1978 (WA);
• the rights and interests arising from exploration licence E 80/5083, created pursuant to the Mining Act 1978 (WA);
• the rights and interests of the holder of mining lease M 04/167, created pursuant to the Mining Act 1978 (WA);
• the rights and interests arising from exploration permit EP 371 R1, created pursuant to the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• the rights and interests arising from exploration permit EP 493, created pursuant to the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• the rights and interests of Special Prospecting Authority 21 AO, created pursuant to the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• the rights and interests granted by the crown through Commonwealth or State legislation, and under any regulations made pursuant to such legislation;
• the rights and interests of the public to fish, navigate, use any public roads in the determination area, and enjoyment of waterways and public places; and
• the rights and interests of Telstra Corporation Limited 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);

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title rights and interest.

Areas where native title does not exist within the determination area include (schedule 5):

Native title in land and water does not exist in the following areas within the determination area. For further detail see the attached schedule 5.

• reserve 41370, for the purpose of Repeater Station Site, in Lot 150 on DP 215998;
• roads 296, 19070, and the access road running through Bulka Station;
• UCL 5 in the middle of PL 3114/1257, subject to the Poole Range Main Radio Terminal; and
• any other public works, as that expression is defined in the Native Title Act 1993 (Cth) and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), within the boundary of the Determination Area including land and waters.

For further detail, please see the attached full text of the determination, including schedules, available by the URL link.

Background:

The Determination Area is part of a larger area of Ngurrara country. This determination is concerned with part A of a larger claim which consists of approximately 22,064 square kms in two parts. This determination deals with the larger part, south of Fitzroy Crossing in the Kimberley region (Federal Court of Australia). The area covers part or all of a number of pastoral stations, including Christmas Creek, Yougawalla, Larawa, Bulka, Beefwood Park, Cherrabun, Gogo, Jubilee Downs, Quanbun and Millijidee. The area also covers significant areas of unallocated Crown land which adjoins the already determined Ngurrara native title areas (Kimberley Land Council). For greater detail, see the maps attached as schedule 1 and schedule

The Yi-Martuwarra Ngurrara application was first filed on 1st of February 2012, and accepted and registered by the Native Title Registrar on the 29th of February 2020. The application was amended once on the 9th of September 2014 (Federal Court of Australia).

This is the fifth consent determination over the Ngurrara peoples' country. The first was made in 2002 in relation to the Percival Lakes region, which recognised the traditional rights of the Ngurrara in co-existence with Martu People. Three subsequent consent determinations between 2007 and 2012 recognised the exclusive possession of native title rights and interests of the Ngurrara People over an area in excess of 77,000 square kilometres in the Great Sandy Desert, and covering a section of the Canning Stock Route (Federal Court of Australia). The Kimberley Land Council (KLC), the legal representative of the Ngurrara people for the determination, have congratulated the efforts of the Ngurrara people, highlighting their patience and hard work (KLC).

Notably, the State government's alteration of the agreed terms of the determination at the last minute, with some areas of country that had been agreed to be recognised by all parties as exclusive possession being changed unilaterally by the State to non-exclusive possession, has meant that the determination only deals with a portion of the original claim. The remaining areas will need to go through another court determination process (KLC). KLC has criticised the State's actions as unnecessarily tarnishing the determination, however the State has defended its actions as tied to a recent full court decision that states that in certain conditions the level of native title rights available are limited to non-exclusive rights. Under these circumstances, the previously agreed position between the State and the Ngurrara people was impossible (Jeremy Goff). Justice Bromberg expressed his sympathies that the claim has been split into two parts, hoping there can be a prompt resolution to the Yi-Martuwarra Ngurrara part B determination (Federal Court of Australia).

Judgment Details:

The parties reached an agreement as to the terms of the determination and the form of orders that appropriately provided recognition of the native title rights and interests held by the Yi-Martuwarra Ngarrara People. The signed agreement was filed in the Federal Court pursuant to s.87 of the Native Title Act 1993 (Cth).

The Court was satisfied that it would be appropriate and within its power to recognise the Yi-Martuwarra Ngarrara People as the native title holders of the Determination Area, pursuant to s.87.

Related Entries

Documents

Glossary