Barker J
In this matter, Barker J made a determination recognising the exclusive native title rights and interests of the Ngurra Kyanta people in relation to the Part B areas of the WAD410/2012 (Ngurra Kayanta) and WAD326/2015 (Ngurra Kayanta #2) applications. Both applications cover the same area of land and waters, with Ngurra Kayanta #2 filed to seek the benefit of s 47B of the Native Title Act 1993 (Cth) (NTA).
Ngurra Kayanta was filed in December 2012 and amended in May 2015. Ngurra Kayanta #2 was filed in June 2015. The Part A area was determined by consent in August 2016. The Part B applications were determined together pursuant to s 67(1) of the NTA. The parties to the Part B area were the applicant, the State of Western Australia, the Shire of Halls Creek and Central Desert Native Title Services Ltd.
On 10 December 2015, the Commonwealth intervened due to an issue regarding the entitlement by the State to compensation from the Commonwealth arising under s 53 of the NTA with respect to the application of s 47B to parts of Ngurra Kayanta and Ngurra Kayanta #2.
The only issue remaining between the parties was whether s 47B applied to the area. In May 2017, the Court found that it applied to disregard any prior extinguishment in relation to the whole of the determination area: Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587.
The determination was proposed pursuant to s 94A and s 225 of the NTA to take effect once a prescribed body corporate is determined by the Court under s 56 or s 57 of the NTA. The applicant submitted that as all matters in controversy between the parties have been determined, either by way of admissions in pleadings or decision of the Court, the Court could proceed to make a determination of native title in accordance with ss 61, 81, 94A and 225 of the NTA. In the circumstances, the applicant submitted that it was unnecessary for the Court to consider whether s 87 or s 87A might also apply.
Barker J considered that Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859; Aplin on behalf of the Waanyi Peoples v State of Queensland (No 3) [2010] FCA 1515; Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293; and Birriliburu People v State of Western Australia [2016] FCA 671 confirm the Court’s power to make a determination where all issues in the proceeding have been resolved by way of admissions in pleadings and the prior resolution of any outstanding issues. His Honour was satisfied that the determination sought by the applicant should be made. The issue of the applicability of s 87 or s 87A of the NTA was not agitated by the parties, and his Honour found it unnecessary to consider the question of the applicability of those provisions in the circumstances of the case.
The nature and extent of the native title rights and interests recognised are the right to possession, occupation, use and enjoyment of the determination area to the exclusion of all others. Non-exclusive rights were recognised in relation to water.
The determination requires that the nomination of a prescribed body corporate occur within six months of the determination being made and, in the event there is no nomination, either a further extension of time for this to occur or the matter be listed for further directions.