McKerracher J
In this matter the Court made orders by consent in relation to three applications for native title: Wiluna, Wiluna #3 and Tarlpa.
The Wiluna application concerned an area of approximately 47,596 square kilometres of land and waters in the northwest goldfields region of Western Australia including the township of Wiluna, a number of pastoral leases, parts of the Canning Stock Route, and areas of unallocated Crown land, including Lake Carnegie. The Wiluna application was made up of two previously separate applications that were combined in 1999.
The respondents were the State of Western Australia (State), BHP Billiton Nickel West Pty Ltd, Newmont Yandal Operations Pty Ltd, The Commonwealth of Australia, Telstra Corporation Limited and various pastoral interests.
The Tarlpa application concerned an area of approximately 2,265 square kilometres to the south of the township of Wiluna. The respondents were the State, Central Desert Native Title Services Ltd, BHP Billiton Nickel West Pty Ltd and MPI Nickel Pty Ltd.
The Wiluna #3 application concerned an area of approximately 3,597 square kilometres of pastoral lease. The pastoral lease, Windidda station, is held by members of the Wiluna #3 native title claim group. The only respondent to this claim was the State.
Background
Although there is a significant degree of overlap between the Wiluna claim group and the Tarlpa claim group, the composition of each claim group was slightly different. The parties reached an agreement through mediation that native title exists over the Tarlpa and Wiluna #3 claim areas under s 87 of the Native Title Act 1993 (Cth) (NTA) and parts of the Wiluna claim area under s 87A NTA. The remaining part of the Wiluna application will be finalised separately.
Rights and interests
Exclusive
The nature and extent of the native title rights and interests in the determination area set out in Schedule 3 is the right of possession, occupation, use and enjoyment of that part as against the whole world.
Non-exclusive
The nature and extent of the native title rights and interests in the determination area set out in Schedule 4 are the non-exclusive rights to access, remain in and use that part, take and use resources in that part and have access to, maintain and protect places, and areas and objects of importance on or in that part.
The parties agreed that the applicant may seek a variation of the native title determination concerning pastoral improvements if the Court's decision in De Rose v South Australia (No 2) (2005) 145 FCR 290 regarding pastoral improvements is overturned or varied in the context of an appeal to the High Court from the decision in Brown (on behalf of the Ngarla People) v State of Western Australia (2012) 203 FCR 505.
Prescribed Body Corporate
The orders direct the native title holders to nominate a Prescribed Body Corporate within 12 months.