Agreements, Treaties and Negotiated Settlements Project

Davey on behalf of the Mayala #2 Native Title Group v State of Western Australia [2019] FCA 1137
Date:	25 July 2019
Sub Category:	Consent Determination (Native Title Act)
Place:	West Kimberly
State/Country:	Western Australia, Australia
	The area comprises two small islands and part of a third in the Buccaneer Archipelago in Western Australia. For a detailed description of the area and maps see Schedule One of the determination, attached below under documents. The area is within the jurisdiction of the Shire of Derby Council.
Legal Status:	Registered with the National Native Title Tribunal on the Native Title Register 25/07/2019.
Legal Reference:	Federal Court file no.: WAD466/2018; National Native Title Tribunal file no.: WCD2019/007
Subject Matter:	Native Title
URL:	http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2019/1137.html
Summary Information:
Between: Frank Darvey and Others on behalf of the Mayala #2 Native Title Claim Group (Applicant) and State of Western Australia (Respondents) Judge: Bromberg J Determination Native title exists in the parts of the determination area It consists of exclusive native title rights and interests. Native title holders Mayala #2 Native Title Claim Group Exclusive native title rights and interests over part of the determination area This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule One, to the exclusion of all others. These rights are subject to the laws of the State and the Commonwealth as well as the traditional laws and customs of the Mayala #2 Native Title Claim Group. Other rights and interests in the determination area include: the rights and interests of valid licence and permit holders; the rights and interests held due to the laws of the State or the Commonwealth; the rights and interests of the Australian Maritime Safety Authority pursuant s 190 of the Navigation Act 2012 (Cth); the rights of the Australian Fisheries Management Authority relating to plans of management under the Fisheries Management Act 1991 (Cth); rights and interests of the public including the right to fish and the right to navigate; the international right of innocent passage; the right for those acting on behalf of the State, Commonwealth, or local government authority to access the area to perform their statutory or common law duty. See Schedule Five for further information about the non-native title rights and interests. In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title The Mayala Inninalang Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Mayala #2 Native Title Claim Group. Full text of the determination is available via the URL link above.
Detailed Information:
Background The applicants filed this native title determination on 12 October 2018 over an area that had been excluded from the first Mayala determination which itself covered an area of about 3,800 sq km of land and water in the West Kimberley. The exclusion was due to the area having been covered by an exploration licence at the time, and the legal position then being that s 47B(2) of the Native Title Act 1993 (Cth)�did not apply to the land. That position was later overturned by the High Court in Tjungarrayi v Western Australia KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 and in response the applicants filed this claim. Details of Judgment The Court was satisfied that the requirements for a determination were met, and made orders to give effect to the agreement between the parties.
Outcomes:
Native title exists in parts of the determination area.