Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia and Ors [2005] FCA 831

FEDERAL COURT OF AUSTRALIA

Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia and Ors [2005] FCA 831

NATIVE TITLE – consent determination – Court's discretion making order under s 87 – relevant factors Court to take into account when determining whether Court is satisfied it is appropriate to make orders sought

Native Title Act 1993 (Cth), s 87

STANLEY MERVYN, ADRIAN YOUNG, LIVINGSTON WEST AND OTHERS ON BEHALF OF THE PEOPLES OF THE NGAANYATJARRA LANDS v THE STATE OF WESTERN AUSTRALIA and OTHERS WAD 6004/2004

BLACK CJ 29 JUNE 2005 PARNTIRRPI OUTSTATION IN THE CENTRAL RANGES

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6004/2004

BETWEEN: STANLEY MERVYN, ADRIAN YOUNG, LIVINGSTON WEST AND OTHERS ON BEHALF OF THE PEOPLES OF THE NGAANYATJARRA LANDS APPLICANTS

AND: THE STATE OF WESTERN AUSTRALIA AIRSERVICES AUSTRALIA SHIRE OF LAVERTON PHYLLIS THOMAS & ORS ON BEHALF OF THE MANTJINTJARRA AND NGALIA PEOPLES DOLLY WALKER NEWMONT GOLD EXPLORATION PTY LTD WMC RESOURCES LTD TELSTRA CORPORATION LIMITED THE COMMONWEALTH OF AUSTRALIA RESPONDENTS JUDGE: BLACK CJ DATE: 29 JUNE 2005 PLACE: PARNTIRRPI OUTSTATION IN THE CENTRAL RANGES

IT BEING SHOWN THAT: A. The Applicant in proceeding WAD 6004 of 2004 has brought a native title determination application (the Ngaanyatjarra Lands Application) that relates to an area that includes the land and waters the subject of the proposed determination of native title (Ngaanyatjarra Lands Determination). B. The Ngaanyatjarra Lands Application includes land and waters also covered by the native title determination applications brought in proceedings WAD 6030 of 1998, WAD 6041 of 1998, WAD 6101 of 1998, WAD 6103 of 1998, WAD 6109 of 1998 and WAD 6111 of 1998 (First Applications). C. The Applicant in the Ngaanyatjarra Lands Application, each of the Applicants in the First Applications, the State of Western Australia (the State), and the other Respondents to the proceedings (the parties) have reached an agreement as to the terms of the Ngaanyatjarra Lands Determination which is to be made in relation to part of the land and waters covered by the Ngaanyatjarra Lands Application and the First Applications (the Determination Area). D. Pursuant to section 87(1)(a)(ii) and section 87(1)(b) of the Native Title Act 1993 (Cth) (the Act) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached. E. The terms of the agreement involve the making of consent orders for a determination pursuant to section 87 and 94A of the Act that native title exists in relation to the Determination Area. F. The State has agreed with respect to Reserve 24980 that, but for the partial extinguishment of native title effected by the creation of Reserve 24980, the Applicants in WAD 6004 of 2004 would have held native title rights and interests conferring the right to possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, save in respect of flowing and subterranean water. G. The State has agreed with respect to the areas set out in Schedule 2 of the Minute of Consent Determination of Native Title that, but for the complete extinguishment of native title effected over those areas, the Applicants in WAD 6004 of 2004 would have held native title rights and interests conferring the right to possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, save in respect of flowing and subterranean water. H. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area. I. The parties have requested that the Court hear and determine that part of the proceedings that relates to the Determination Area. J. The Applicants to the proceedings have nominated Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) pursuant to section 56(2) of the Act to hold the determined native title in trust for the native title holders. K. The parties have agreed that upon and by force of the Ngaanyatjarra Lands Determination taking effect, the First Applications will be discontinued in relation to the land and waters covered by the Determination, other than WAD 6103 of 1998 in relation to the area of land and waters not covered by the Ngaanyatjarra Lands Determination. BEING SATISFIED that a determination of native title in the terms set out in the attached Minute of Consent Determination of Native Title in respect of application WAD 6004 of 2004 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87 of the Act and by the consent of the parties: THE COURT ORDERS THAT: 1. There be a determination of native title in application WAD 6004 of 2004 in the terms of the Minute of Consent Determination of Native Title dated 29 June 2005 and attached to these orders. 2. The First Applications, other than application WAD 6103 of 1998, be discontinued. 3. Yarnangu Ngaanyatjarraku Parna (Aboriginal Corporation) hold the determined native title in trust for the native title holders pursuant to s56(2) of the Act. 4. There be liberty to any party to apply on 7 days written notice. 5. There be no order as to costs.