Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717

FEDERAL COURT OF AUSTRALIA

Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717

IN THE FEDERAL COURT OF AUSTRALIA

Western Australia DISTRICT REGISTRY WG 6043 OF 1998

BETWEEN: Mark Anderson on behalf of the Spinifex People

APPLICANT

AND: State of Western Australia

AND: FIRST RESPONDENT

Shire of Laverton

SECOND RESPONDENT JUDGE: Black CJ

DATE OF ORDER: 28 November 2000

WHERE MADE: Tjuntjuntjara

Great Victoria Desert

The Court orders, declares and determines, with the consent of the parties, that: 1. The native title rights and interests set out in paragraphs 3.1 and 3.2 exist in those parts of the Determination Area described in the Second Schedule. The Determination Area is the land and waters described in the First Schedule. 2. The persons holding the communal or group rights comprising the native title ("the common law holders") are the Pila Nguru People (otherwise known as the Spinifex People). 3.1 Subject to paragraphs 4, 5, 6, and 7.1 the nature and extent of the native title rights and interests in the land and waters described in Part A of the Second Schedule are: (a) a right to possess, occupy, use and enjoy the land, including the right to live on the land; (b) a right to make decisions about the use and enjoyment of the land; (c) a right to hunt and gather (including ochre) and to take water, for the purposes of satisfying their personal, domestic, social, cultural, religious, spiritual or non-commercial communal needs, including the observance of traditional laws and customs; (d) a right to maintain and protect sites of significance to the common law holders under their traditional laws and customs; (e) a right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners. These native title rights and interests confer possession, occupation, use and enjoyment of the land on the native title holders to the exclusion of all others. 3.2 Subject to paragraphs 4, 5, 6, and 7.2 the nature and extent of the native title rights and interests in the land and waters described in Part B of the Second Schedule are: (a) a right to possess, occupy, use and enjoy the land, including the right to live on the land; (b) a right to make decisions about the use and enjoyment of the land; (c) a right to hunt and gather (including ochre) and to take water, for the purposes of satisfying their personal, domestic, social, cultural, religious, spiritual or non-commercial communal needs, including the observance of traditional laws and customs; (d) a right to maintain and protect sites of significance to the common law holders under their traditional laws and customs; (e) a right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners. These native title rights and interests do not confer possession, occupation, use or enjoyment on the native title holders to the exclusion of all others. 4. (a) There are no native title rights and interests in minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA); (b) Other than in the case of water taken in the exercise of the native title rights and interests described in paragraphs 3.1(c) and 3.2(c), there are no native title rights and interests in flowing and subterranean waters. 5. The nature and extent of other interests in relation to the Determination Area are those set out in the Third Schedule. 6. The native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth including the common law; and (b) traditional laws acknowledged and traditional customs observed by the native title holders. 7.1 The relationship between the native title rights and interests in the land and waters described in Part A of the Second Schedule and the other rights and interests referred to in paragraph 5 ("the other rights and interests") is that: (a) the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist except in the case where they conflict with, and if there is conflict with, prevail over, the native title rights and interests in any exercise of those native title rights and interests; and (b) the other rights and interests continue to have effect and the rights conferred by them or held under them may be exercised notwithstanding the existence of the native title rights and interests. 7.2 The relationship between the native title rights and interests in the land and waters described in Part B of the Second Schedule and the other rights and interests referred to in paragraph 5 ("the other rights and interests") is: (a) the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests prevail over the native title rights and interests and any exercise of those native title rights and interests; and (b) the other rights and interests continue to have effect and the rights conferred by them or held under them may be exercised notwithstanding the existence of the native title rights and interests. 8 (a) The native title rights and interests in the land and waters comprising the determination area are held by the common law holders. (b) Within three months of the date of this determination, a representative of the common law holders shall nominate in writing to the Federal Court a prescribed body corporate to perform the functions mentioned in s 57 (3) of the Native Title Act. There shall be liberty to apply to a single Judge of the Court in that connection.