Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338

Mid-west Region

Registered on the National Native Title Register

Between: Gilla on behalf of the Yugunga-Nya People (Applicant) and State of Western Australia, Shire of Cue, Shire of Meekatharra, Shire of Mount Magnet, Shire of Sandstone, and Shire of Wiluna (Respondents)

Judge: Banks-Smith J

Determination

The Federal Court of Australia made this native title determination by consent of the parties under s 87A and s 94A of the Native Title Act 1993 (Cth) (the NTA).

Native title exists in parts of the determination area

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

Native title does not exist in the areas described in Schedule 4, including some townsite freehold areas (both current and historic), reserves, leases, and public works 

Native title holders

The Yugunga-Nya People claimants hold the native title.

For a detailed description of the native title holders see Schedule 7 via the above URL link.

Exclusive native title exists over part of the determination area

Other than in relation to water, the applicant has the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others.

The area covered by exclusive native title includes the Cogla Downs Pastoral Lease Area, as well as Unallocated Crown Land where prior extinguishment has been disregarded under s 47B of the NTA.

For a more detailed description of this area, see Schedule 3 attached below.

Non-exclusive native title exists in part of the determination area 

Non-exclusive native title exists in the entire determination area, excluding the exclusive native title areas and the areas where no native title exists.

Subject to any qualifications, these native title rights and interests include the right to:

• access, remain in and use that area;
• access and take the resources in that area; and
• protect places, areas and things of traditional significance in that area

Other (non-native title) rights and interests in the determination area include the rights and interests:

• of persons who care, control and manage, or are entitled to access and use, or hold leases over areas of the reserves identified in Schedule 6;
• of pastoralists pursuant to the pastoral leases referred to in Schedule 6;
• according to the Yugunga-Nya People & Sandfire ILUA (non-overlapping area);
• of the holders of leases referred to in Schedule 6;
• of persons having the care, control and management of roads listed in Schedule 6;
• of the holders of mining tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) in Schedule 6;
• of the holders of petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) or the Petroleum Pipelines Act 1969 (WA); 
• of Telstra Corporation Limited; and
• held by the State of Western Australia or Commonwealth of Australia or existing under the law of the State of Western Australia or Commonwealth.

See Schedule 6 for further information about the non-native title rights and interests.

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

Prescribed body corporate

The Yugunga-Nya Native Title Aboriginal Corporation is the prescribed body corporate. It performs the functions required under the NTA and shall hold the determined native title rights and interests in trust on behalf of the Yugunga-Nya native title holders.

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

Background

The Yugunga-Nya application was originally made in 1996 and has since been subject to several changes and consolidations [2].

This determination covers part A of the original claim area. The parties agreed that the remaining area (Part B) is excluded as it is expected that a further determination (Yugunga-Nya Part B) will take place in the future [2].

The parties came to an agreement regarding the claimant group's native title rights and interests in the determination area.

Details of Judgment

The Court was satisfied that the parties had met freely and had come to an agreement on an informed basis. Through undertaking close consideration of the connection material, the State found the connection materials provided by the Applicant to be sufficient in demonstrating the claimants' and their ancestors' maintained presence to the claim area and their rights and interests in the claim area pursuant to Western Desert traditional laws and customs. Moreover, both the State and the Applicant had competent legal representation. As a result, the Court was satisfied that it was appropriate to make the determination of native title that was jointly sought by the relevant parties and found that the native title rights have always existed in parts of the determination area [42].

Native title exists in parts of the determination area

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