Gilmour J
In this matter the Court made orders by consent recognising the native title rights and interests of the Nyikina Mangala claim group over an area of approximately 26, 215 square kilometres of land and waters located to the south of Derby, east of Broome and west of Fitzroy Crossing (Nyikina Mangala Part A Determination).
The application has a lengthy history, commencing in June 1996, and was combined with 6 other applications to become one in September 1999.
The State of Western Australia, the Commonwealth of Australia and 10 other parties are the respondents.
The proposed consent orders included an apical ancestor, Tommy Numarid, who had not been included in the Nyikina Mangala Application and the Court had to determine whether the ancestor should be included within the native title holding group.
Gilmour J considered the additional evidence filed in support and was satisfied that there was some information which supported the identity of Tommy Numarid as an apical ancestor. Gilmour J was satisfied that the determination should be made as requested because the native title group had considered and confirmed the applicant's authority to enter into the consent determination.
Gilmour J also found, under s 84D(4) of the Native Title Act 1993 (Cth) (NTA), that it was in the interests of justice and would be appropriate for the Court to make the Determination as the long running application should not fail simply on authorisation grounds.
The Court was satisfied that the parties had freely and on an informed basis come to an agreement and the ethnographic and historical material, combined with Aboriginal evidence is sufficient evidence that the Nyikina Mangala People have maintained a physical presence in the area since sovereignty.
Rights and interests
The exclusive native title rights and interests in relation to the Determination Area referred to in Schedule Three of the Orders are:
except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; and
in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes;
the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.
The non-exclusive native title rights and interests in the Determination Area referred to in Schedule Four of the Orders, including the right to conduct activities necessary to give effect to them, are:
the right to access and move freely through and within each part of the Determination Area;
the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes on the Determination Area;
the right to:
hunt, gather and fish for personal, domestic, cultural and non-commercial communal purposes;
take and use flora and fauna for personal, domestic, cultural and non-commercial communal purposes;
take, use, share and exchange the natural resources of each part of the Determination Area including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic, cultural and non-commercial communal purposes;
engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
conduct and participate in ceremonies;
hold meetings; and
visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the Determination Area.
Prescribed Body Corporate
The native title is to be held on trust by Walalakoo Aboriginal Corporation ICN 8041.
Of note
Certain parts of the Determination Area were excluded and the applicants intend to file a further native title determination application over those excluded areas of land on the basis that s 47A of the Native Title Act may have application to those areas.