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Muir on behalf of the Manta Rirrtinya People v State of Western Australia [2018] FCA 1388

Western Australia
Federal Court
Legislation considered
s 47A Native Title Act 1993 (Cth)
s 47B Native Title Act 1993 (Cth)
s 87 Native Title Act 1993 (Cth)

In this matter Charlesworth J made orders by consent recognising the native title rights and interests of the Manta Rirrtinya people in relation to an area covering approximately 23,000 square kilometres of land and waters situated at the junction of the Little Sandy Desert and the Great Victoria Desert in the Central Desert region of Western Australia. The respondents are the State of Western Australia, the Shire of Laverton, the Central Desert Native Title Services Ltd, Gold Road (North Yamarna) Pty Ltd and the Attorney-General for the Commonwealth (intervening).

The applicant asserts that s 47B of the Native Title Act 1993 (Cth) (NTA) applies to the unallocated Crown land covered by the Manta Rirrtinya application. The parties have agreed that one or more members of the native title claim group occupied (within the meaning of s 47B(1)(c) NTA) the areas referred to in recital F(a) below as at the date that the Manta Rirrtinya application was made, and that, but for the prior extinguishment of the right to possess, occupy, use and enjoy, to the exclusion of all others, the native title rights in those areas would be those in [3] of the Determination, but that on the basis of the decisions of the Full Court of the Federal Court of Australia in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8 and Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35, s 47B(2) cannot apply to those areas because the area was at the relevant time covered by those exploration licences.

In respect of those parts of the determination area covered by certain exploration licences, the terms of the determination are consistent with the decisions of the Full Court of this Court in Tjiwarl and Ngurra Kayanta. The parties acknowledged the recent grant of special leave to appeal from those judgments to the High Court of Australia. It is also acknowledged that judgment by the High Court on those appeals may give rise to a question as to whether the areas covered by the exploration licences ought properly to fall within [3] of the orders. In that event, the parties agree that an application may be made to vary the determination, with the parties reserving their rights as to the merits of any such application. That aspect of the parties’ agreement is reflected in [E] of the notes to the orders. Sections 47A and 47B of the NTA apply to the parts of the determination area set out in Schedule 5.

The rights and interests in relation to each part of the determination area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others, and in relation to remaining parts of the determination area are non-exclusive native title rights and interests to access the area, take and use the resources for any purpose; engage in spiritual and cultural activities; and maintain and protect places, areas and objects of significance.

Her Honour accepted that the claim group forms a part of the broader society known as the Western Desert Cultural Bloc (WDCB). A binding concept of the WDCB is the Tjukurrpa (‘dreaming’ or ‘law’). It is the central feature of the claimants’ belief system, expressing their understanding of ‘all that is’. Tjukurrpa is the source of the laws and customs to which the claimants adhere. It governs every aspect of their lives, including their religious practices, social rules and systems of land tenure.

Charlesworth J was satisfied that all of the preconditions for the making of an order under s 87 of the NTA were met, and commended the parties at [33] for ‘the conciliatory and efficient manner in which this application for a determination of native title has progressed’. The Court made orders in terms consistent with the parties’ joint minute.

The applicant nominated Wakamurru (Aboriginal Corporation) (ICN: 8860) pursuant to s 56(2)(a) of NTA to hold the determined native title in trust for the native title holders.