Barker J
In this matter Barker J made orders by consent recognising the native title rights and interests of the Ngurra Kayanta people in relation to Part A of the claim area. Proceedings relating to Part B, the balance of the land and waters, remain on foot and are yet to be determined.
Background
On 21 December 2012, and as amended on 5 May 2015, the Ngurra Kayanta filed a native title application claiming 19511.72 square kilometres of land and waters in the vicinty of the Shire of East Pilbara and the Shire of Halls Creek in the Great Sandy Desert area of Western Australia.
In June 2015, the Ngurra Kayanta filed a second application claiming the same area of land, but seeking the benefit of s 47B of the Native Title Act 1993 (Cth) (NTA) whereby any previous extinguishment of native title rights and interests may be disregarded, allowing for a determination of exclusive native title rights and interests. The determination area was split into Part A and Part B in June 2016 after an issue arose regarding the application of s 47B to areas subject to particular exploration permits. Part A covers land not including the area under the exploration permits, and is the subject of this consent determination, while Part B covers the rest of the claimed area. The parties to the application were Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People, the State of Western Australia and Central Desert Native Title Services Ltd, with the Commonwealth of Australia intervening.
The Court was satisfied that it was appropriate to make the orders sought under sections 87A and 94A of the NTA.
Rights and interests
Barker J recognised the Ngurra Kayanta People's exclusive native title rights to possession, occupation, use and enjoyment of the determination area, and the non-exclusive right to take, use and enjoy the Water in any watercourse, wetland or underground watercourse in the determination area.
Barker J noted that the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests. For the avoidance of doubt, the Court noted that the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.
Prescribed Body Corporate
The Determination includes an agreement that within 12 months of the date the Determination is made, a representative of the common law holders of the native title rights and interests will indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom.