McKerracher J
In this matter, McKerracher J made orders by consent recognising the native title rights and interests of the Kulyakartu people in relation to Part B of their native title application over an area of the Great Sandy Desert in the East Pilbara region of Western Australia. The respondent parties included the Western Australian and Commonwealth governments.
In September 2016 Barker J made orders separating native title determination applications WAD 293 of 2005 and WAD 720 of 2015 (collectively, the Kulyakartu applications) into Part A and Part B. Part B comprises the land subject to petroleum exploration permit EP448. In October 2016 a consent determination was made in relation to Part A: Taylor v State of Western Australia [2016] FCA 1191.
The land covered by this consent determination is subject to Petroleum Exploration Permit EP448 issued on 16 June 2006 under the Petroleum and Geothermal Energy Resources Act 1967 (WA) (the PGERA). Part B was put on hold pending the outcome of litigation in Ngurra Kayanta Part B, which concerned an issue that was also in dispute between the parties in the Kulyakartu applications – whether s 47B of the Native Title Act 1993 (Cth) (NTA) was disapplied by the petroleum exploration permits granted pursuant to the PGERA. In May 2017, Barker J delivered judgement in Ngurra Kayanta Part B: Helicopter Tjungarrayi on behalf of the Ngurra Kayanta People v State of Western Australia (No 2) [2017] FCA 587. His Honour held that s 47B NTA applied to disregard prior extinguishment over areas covered by two petroleum exploration permits granted pursuant to the PGERA.
The determination recognises the native title rights and interests to possess, occupy, use and enjoy the determination area to the exclusion of all others on the premise that s 47B of the NTA applies to the land the subject of the determination and thus the creation of any prior interests in the land must be disregarded. McKerracher J observed at [4] that ‘apart from that issue, there was no dispute between the parties in relation to all other issues which needed to be resolved in order for the Court to make a determination of native title in respect of Part B. In particular, there was (and remains) no dispute that one or more members of the native title claim group in respect of native title determination application WAD 720 of 2015 occupied Part A and Part B, within the meaning of s 47B(1)(c) of the Native Title Act, at the date application WAD 720 of 2015 was made.’
The Commonwealth has appealed to the Full Federal Court (WAD 442 of 2017) in respect of the Ngurra Kayanta Part B determination in which it contends that Barker J in Helicopter erred in finding that the petroleum exploration permits were not ‘permissions or authorities’ pursuant to s 47B(1)(b)(ii) of the NTA. As such, there is still legal uncertainty as to the application of s 47B NTA over the Kulyakartu Part B application. The Commonwealth recognised that the resolution of the legal uncertainty may take some time and agreed to consent to a determination of native title in Part B that reflects Barker J’s decision in Helicopter. The agreement is subject to the proviso that, following final judicial consideration of Barker J’s rulings in Helicopter, the Commonwealth may seek a variation of the proposed determination in accordance with s 13(1) and s 13(5) of the NTA so that the determination would not recognise any native title right to control access to Part B.
The State of Western Australia has also filed an appeal to the Full Federal Court (WAD 444 of 2017) in respect of the Ngurra Kayanta Part B determination in which it contends that Barker J erred in holding that the petroleum exploration permits in respect of that determination area were not ‘leases’ pursuant to s 47B (1)(b)(i) of the NTA. Notwithstanding that appeal, the State consented to a determination that reflects the current state of the law as per Barker J’s decision in Helicopter.
A prescribed body corporate had not been established at the date of judgement and consequently the Court did not make a determination in accordance with ss 55, 56 and 57 NTA. The determination will take effect upon the making of a determination under s 56(1) or s 57(2) NTA.