Barker J
In this case, Barker J made orders by consent recognising the native title rights and interests of the Nyikina Mangala people in relation to land and waters covering approximately 12.4 square kilometres of land and waters around Udialla, south of Derby in Western Australia.
The Nyikina Mangala #2 application was filed in the Federal Court of Australia on 2 February 2015 over areas of land and waters that were not included in a previous consent determination in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (see related content). The claimed area includes ten lots of land, three of which are freehold and one leasehold, all held by the Nyikana Mangala Aboriginal Corporation. These areas were excluded in the previous determination on the basis that s 47A of the Native Title Act 1993 (Cth) (NTA) may apply and the claimed area wholly overlaps the non-determined portion. The Applicant and the State of Western Australia were the only parties to the application.
The Court noted at [12]-[15] that it was agreed that the ethnographic and historical materials evidence to demonstrate both the Nyikina Mangala people’s connection to, and continued physical presence and spiritual involvement in the area. Both parties agreed and the material demonstrated that the three freeholds and one lease comprising the application area are all held expressly for the benefit of Aboriginal peoples and that when the application was made, members of the Nyikina Mangala people occupied the application area. Therefore, s 47A of the NTA should apply so as to allow the Court to disregard any prior extinguishment of native title rights and interests in the area.
Exclusive native title rights and interests
The native title rights and interests recognised in relation to each part of the Determination Area set out in Schedule 3 of the decision are:
(a) the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others; and
Non-exclusive native title rights and interests
(b) in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
the right to hunt on, fish from, take, use, share and exchange the natural resources waters for personal, domestic, cultural or non-commercial communal purposes; and
the right to take, use, share and for personal, domestic, cultural or non-commercial communal purposes
The Walalakoo Aboriginal Corporation is the prescribed body corporate.