Bromberg J
Bromberg J made orders by consent recognising the native title rights and interests of the Mayala peoples over two small islands and a small portion of a third island located in the Buccaneer Archipelago between Whirlpool Pass and Coppermine Creek in Western Australia.
Background
On 4 October 2018, native title application WAD 6255 of 1998 (Mayala Application) was the subject of a determination under s 87 NTA (Wiggan on behalf of the Mayala People v State of Western Australia [2018] FCA 1485). The Mayala Determination Area was approximately 3,800 square kilometres of land and water in the west Kimberly region of Western Australila. The Mayala Determination excluded the Mayala #2 Determination Area due to an exploration license covering that part of the land and the legal position at the time being that s 47(B(2) NTA could not apply to the land.
The applicant in the Malaya #2 Application, the State of Western Australia and the Shire of Derby/West Kimberley later reached an agreement as to the terms of a determination to be made over the relevant land and waters. On 12 October 2018, the application for a consent determination was filed.
Rights and interests
The Court recognised the exclusive rights and interests of possession, occupation, use and enjoyment in relation to the Determination Area. These native title rights and interests do not confer exclusive rights in relation to water in any watercourse, wetland or underground water sources as defined in the Rights in Water and Irrigation Act 1914 (WA).
The Court also held that any prior extinguishment in relation to the areas in Schedule 4 would be disregarded (s 47B NTA).
The Court also recognised other rights and interests over the Determination area, including: rights and interests, including licenses and permits, granted by the Crown or State; rights and interests held by reason of the operation of the Rights in Water and Irrigation Act 1914 (WA); rights and interests of the Australian Maritime Safety Authrority as the owner, manager or operator of aids to navigation (including the Cafarelli Island Light and the Tanner Island Light); rights and interests of the Australian Fisheries Management Authority in relation to plan of management including for the Western Tuna and Billfish Fishery and for the Western Skipjack Fishery; rights and interests of members of the public to fish and navigate; international right of innocent passage through the territorial sea; the right of employees or agents of the State, Commonwealth or local Government authority to access land required in the performance of their statutory or common law duties.
Prescribed Body Corporate
Bromberg J ordered that the determined native title was to be held on trust by the Mayala Inninalang Aboriginal Corporation ICN 9067 in accordance with s 56(2)(b) NTA.