Keith Narrier & Ors v State of Western Australia AND Edwin John Beaman & Ors v State of Western Australia [2016] FCA 1519

Central Desert Region

Registered on the Native Title Register

Keith Narrier & Ors v State of Western Australia & Ors [2016] FCA 1519

Between: Keith Narrier & Ors AND Edwin John Beaman & Ors (Applicants) and State of Western Australia & Ors (Respondents)

Judge: Mortimer J.

Where Made: Ceremonial sitting of the Federal Court of Australia at Jones Creek, north of the town of Leinster. 

Determination: 

Native title exists in all of the determination area: it consists of exclusive and non-exclusive native title rights. 

Native Title is held by a group of the Western Desert People (persons referred as the Tjiwarl People, set out  in Schedule 2 of the determination and in the attached document, 'Extract').

Exclusive native title rights and interests exist over part of the determination area, namely:

The Tjiwarl People have the exclusive native title rights and interests to the possession, use, and enjoyment of the land that is shown as shaded green in Schedule 6 (maps) attached below under documents.

These rights and interests are subject to traditional laws and customs, as well as Western Australian law.

The Tjiwarl People's non-exclusive native title rights and interests in the determination area include:

• the right to access, remain in and use the determination area; 
• the right to access, take and use the resources in the determination for any purpose; 
• the right to engage in spiritual and cultural activities in the determination area; 
• the right to maintain and protect places of significance in the determination area.

The non-exclusive rights and interests exist over the determination area, except over the part shaded green in Schedule 6 (maps) attached below under documents.

The non-exclusive rights do not create any rights in relation to minerals, petroleum or geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

Additionally, the non-exclusive rights do not include the possession, occupation, use and enjoyment of the area to the exclusion of others.

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

The following rights and interests were determined to exist on the date of the determination, set out in the attached 'Schedule 4 - Other Interests': 

• the rights and interests, including licences and permissions, of persons and organisations that exist under the laws of the State of Western Australia and the Commonwealth;
• the rights and interests of persons who have the care, control, and management of particular reserves within the determination area; 
• the rights and interests of particular pastoral leaseholders within the determination;
• various roads which are maintained by the Shire of Sandstone and the Shire of Wiluna; 
• the rights of the Commissioner of Main Roads, the Shire of Sandstone, and the Shire of Wiluna to use and maintain particular water bores and gravel pits; 
• the rights and interests of particular easement holders;
• particular holders of mining interests under the Mining Act 1978 (WA); 
• particular holders of petroleum pipeline licences under the Petroleum Pipelines Act 1969 (WA); 
• particular groundwater areas under the Rights in Water and Irrigation Act 1914 (WA); 
• the rights and interests of Telstra Corporation Limited created under 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); 
• any existing public access to and enjoyment of waterways, beds and banks or foreshores of waterways and stock routes, under s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
  

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

The Tjiwarl (Aboriginal Corporation), as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as an agent for the native title holders. The native title is held on trust for the native title holders. 

Note that there is access to the full text of the determination via the URL link. 

Background

The Tjiwarl #1 claim for a determination of native title was filed on 17 June 2011. The Tjiwarl #2 claim was filed on 22 June 2015. The claim group was the same in both applications, with different applicants for each proceeding. On the 27 July 2015, Justice Mortimer ordered that both claims be heard together.

On 27 April 2017 Justice Mortimer decided at an on-country sitting of the Federal Court of Australia that a determination of native title in favour of the Tjiwarl People should be made.

Details of Judgment

A key issue Justice Mortimer considered in this matter rested on the relationship between the native title and non-native title rights and interests. The validity of five miscellaneous licences under the Mining Acts 1978 (WA) was examined, in relation to the native title rights and interests (Perincek and Tonon, 2017). These licences are set out in Part 2 of the attached 'Schedule 4 - Other Interests'.

The purposes of the five miscellaneous licences included powerline, road and pipeline infrastructure.  

Sections 24MD(6A), (6B) in Subdivision M of the NTA sets out various procedural requirements for the category that the five miscellaneous licences fell under. These procedures were required because the licenses allowed for 'future acts' that impact native title rights and interests.

Justice Mortimer decided that these licenses were invalid because the procedural requirements in the future act provisions of the NTA had not been followed [37].

Judgment was appealed on 1 February 2018

On appeal, the Full Court of the Federal Court of Australia (BHP Billiton Nickel West Pty Ltd v KN (Deceased) & Ors (Tjiwarl And Tjiwarl #2) & Ors [2018] FCAFC 8) overturned Justice Mortimer's decision. This meant that failure to comply with the future act provisions of the NTA did not affect the validity of a grant of non-native title rights and interests.

The Full Court ordered that Justice Mortimer's original determination of native title be changed to include the rights and interests of BHP - the licence holder who filed the appeal.

Related Entries

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