Marshall J
In this matter the court recognised that exclusive and non- exclusive native title rights exist in the Ngadju Trial area as required by s 225 Native Title Act 1993 (Cth), and that the Ngadju people are the native title holders as defined by s 225(a) NTA.
Rights and interests
Marshall J noted that the non-exclusive native title rights include the right to:
hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;
live, to camp, to erect shelters and other structures and to travel over and visit;
do the following activities:
engage in cultural activities;
conduct rituals or ceremonies;
hold meetings; and
teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;
have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds;
share or exchange subsistence and other traditional resources obtained on or from the land and waters.
The exclusive rights granted are the right to possession, occupation, use and enjoyment of the Ngadju people to the exclusion of all others.
The court ordered that sections 47A and 47B of the NTA apply, this means that any prior extinguishment in relation to those parts of the land and waters in the Determination Area described in Schedule 4 should be disregarded.
Background
This case has a long history beginning with an order of the court on 9 December 2011, pursuant to s 67(2) of the NTA which noted that the part of the Ngadju claim area that did not overlap with the now dismissed WAD6216/1998 Kalamai Kabu(d)n Native Title Application be referred to as the Ngadju Trial Area Proceeding.
On 21 December 2012, Marshall J published reasons for judgement that recognised the Ngadju people as holding native title in the Ngadju Trial Area Proceeding (see Graham v Western Australia [2012] FCA 1455). On 21 May 2014, the court published reasons for judgement relating to the remaining issue in the case, which is the extent to which Ngadju native title rights and interests have been extinguished (see Graham v Western Australia [2014] FCA 516).
In Graham v Western Australia [2014] FCA 700 the court made orders that:
The applicant bring forward a minute of proposed determination in accordance with the accompanying reasons for judgement read together with, and partially correcting the reasons provided on 21 May 2014.
The applicant and first Respondent confer in a case management conference to resolve issues.
Following the case management, orders were made on 20 August 2014 by consent for the listing of the determination of the Ngadju Trial Area Proceeding on 21 November 2014 and for the parties to file the Minute of Determination and any related documents by 7 November 2014.
On 12 November the court made the following orders.
Clause 8A of the Minute of Determination to be amended according to specific terms.
Mining leases M63/279 and M15/710 be removed from Schedule 4.2 of the Minute of Determination.
The Applicant to file a further Minute of Determination to reflect Order 1 and Order 2 (the above orders) by 10 am Thursday 13 November 2014.
Following the orders, an Amended Minute of Determination was filed by the Applicant on 14 November 2014.
In this matter, Marshall J made a determination of native title pursuant to the Native Title Act 1993 (Cth) in the terms proposed by the Amended Minute of Determination filed on 14 November 2014 which has been agreed between the parties.
Prescribed Body Corporate
The court ordered that a representative of the common law holders of the Ngadju people should within 12 months nominate a Prescribed Body Corporate to either hold the native title in trust or perform the functions mentioned in s 57(3) of the NTA.