Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v Sate of Western Australia [2021] FCA 1489

Great Victoria Desert

The determination area covers approximately 40,700 square kilometres of land and waters in the southern portion of the Great Victoria Desert. For a description and map of the area see Schedules 1 and 6 of the determination attached below under documents. 

The area is within the jurisdiction of the Shire of Laverton and the Shire of Menzies. 

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Dennis Forrest, C.S. (Deceased), Daniel Tucker, Darren Edward Polak, D.L.T (Deceased) on behalf of the Nangaanya-Ku Native Title Claim Group (Applicant) and State of Western Australia (Respondent) 

Judge: Griffiths J

Determination

Native title exists in the entire determination area 

It consists of exclusive and non-exclusive native title rights and interests. 

Native title holders

Native title is held by the Nangaanya-ku Native Title Group. A full description of the native title holders can be found in paragraph 2 of Schedule 2 of the determination found below under documents. 

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

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule 3, to the exclusion of all others.

The areas where exclusive native title exists are also depicted as green on the maps in Schedule 6.

Non-exclusive native title rights and interests exist over part of the determination area 

These rights and interests exist over the area other than those referred to in Schedule 3. The non-exclusive native title does not confer possession, occupation, use and enjoyment of these parts to the exclusion of all others and are the following rights and interests:

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

A map visually identifying each exclusive and non-exclusive native title area can be found in Schedule 6. 

Other rights and interests in the determination area include:

• the interests of persons who have the care, control and management of the Warburton Range Stock Route (Reserve no. 24980);
• the mining tenements under the Mining Act 1978 (WA) as described in Schedule 4;
• petroleum interests granted under the Petroleum Pipelines Act 1969 (WA) as described in Schedule 4;
• the right of a member of the public to use the roads as described in Schedule 4; and
• valid or validated grants from the State or Commonwealth.

See Schedule 4 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 Barra Parrapi 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 on trust for the Nangaanya-ku Native Title Claim Group. 

Full text of the determination is available via the URL link above.

Background

On 9 October 2018, an application for the determination of native title was signed and filed with the Court pursuant to s 61 of the Native Title Act 1993 (Cth) (the NTA). 

Details of Judgment

The parties formed an agreement as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Nangaanya-ku Claim Group in relation to the land and waters covered by the determination area. 

Reasons for the decision 

Section 223 of the NTA requires that the rights and interests to the claim area are based on the claimant group's traditional connection to that area. His Honour was satisfied that the claimant group's connection to country was established on the basis that the Nangaanya-ku Claimants belong to and are members of the Western Desert society who are already native title holders to a number of surrounding determinations such as Yilka No 5 and Untiri Pulka [27]. 

His Honour also held that the Nangaanya-ku Claimants have traditional laws and customs that are firmly rooted in the determination area [28]. These traditional laws and customs relate to religious practices, social rules, systems of land tenure and other aspects of their lives. 

In the determination area, his Honour was also satisfied that the Nangaanya-ku Claimants and their predecessors, occupied and used the determination area from before sovereignty until the present day [33]. The fact that none of the Nangaanya-ku Claimants currently and permanently live in the determination area is irrelevant because many of them live close to the area and regularly visit and utilise large portions of the area [34]. 

For these reasons, Griffiths J was satisfied that the relevant requirements of the NTA were met. 

In accordance with s 87 of the NTA, Griffiths J was satisfied that it was appropriate to make orders by the consent of the parties without a hearing [41].

Native title exists in the entire determination area 

Related Entries

Documents

Glossary