Native Title

Australian law recognises that, except where Native Title had been wholly extinguished by the historical grant of freehold, leasehold and other interests, Native Title exists where Aboriginal people have maintained a traditional connection to their land and waters substantially uninterrupted since sovereignty.  

These rights and interests vary from case to case, but may include the right to live and camp in the area, conduct ceremonies, hunt and fish, build shelter, and visit places of cultural importance. Some Native Title holders may also have the right to control access.

The Mabo (No 2) decision overturned the idea of 'terra nullius,' that the Australian continent was an 'empty land' which did not belong to anyone at the time of European arrival.

It recognised for the first time that the right of Aboriginal and Torres Strait Islander people under their system of traditional laws and customs survived colonisation.

In response to Mabo (No 2), the Australian Parliament enacted the Native Title Act 1993 (Cth), which gives statutory recognition and protection of Native Title.

It sets out a procedure for making a claim for a determination of Native Title, provides a regime for governments to act in relation to land validity notwithstanding the existence of Native Title, as well as validating some past activities.  

The Native Title Act also provides for compensation to Native Title holders when past and future acts in relation to land are validated.
Native Title can exist with other interests in land, such as pastoral leases. However, if Native Title has been extinguished, it cannot be revived except in limited circumstances.

The recognition of Native Title is fact specific. The nature and extent of a particular group's Native Title will depend on the traditional laws and customs of those people. Most determinations of Native Title in WA are made by consent following negotiations between Native Title claimants, the State Government and other interested parties. Claims would only be referred to the Federal Court for a litigated determination, if agreement has not been possible.

To learn more about native title, see the National Native Title Tribunal website.

Activities undertaken across WA must comply with the requirements of the Native Title Act 1993 (Cth) and/or the Aboriginal Heritage Act 1972 (WA). 

The WA Government adopted a whole-of-government approach to Native Title to:

• ensure compliance with legislation
• increase consistency in policy, work practices and expenditure
• reduce duplication between Government agencies
• increase public sector accountability and effectiveness

Examples of policies developed by APCU to guide Native Title practices and Aboriginal Heritage include the:

• Aboriginal Heritage Due Diligence Guidelines
• Governance Principles for Native Title Agreements
• Guidelines for the Engagement of Aboriginal Heritage Monitors

Legal advice in relation to Native Title and heritage matters is provided by the State Solicitor's Office when required.

The whole-of-government approach also extends to Native Title claim resolution. All relevant WA Government agencies are consulted and their legal interests are identified and recorded through the Native Title determination process.

In some cases, agencies may contribute to innovative settlements, such as the South West Settlement, which will deliver sustainable and meaningful benefits to the Noongar people.

Native Title in Western Australia

WA is exposed to the responsibilities of Native Title more than any other state or territory. Approximately 85 per cent of WA is subject to either a Native Title claim, or has already received a Federal Court of Australia determination that recognises the existence of Native Title rights and interests.

WA grants the highest number of land and mineral titles in Australia, the majority of which must comply with the future act regime of the Native Title Act 1993 (Cth) (NTA).

The WA Government's successful management of Native Title matters is due to a consistent whole-of-government approach.

Resolving Native Title

The WA Government takes a state agreement approach to the resolution of Native Title matters, relying on negotiation and agreement making, where possible.

At September 2019, there have been 83 consent determinations of Native Title in Western Australia.

Each application is a Federal Court proceeding seeking a determination as to whether Native Title rights and interests exist and if so in what form.

The Federal Court refers each application to the National Native Title Tribunal Registrar for a range of administrative processes under the NTA.

These include:

• The 'registration test' to assess whether the claim is bona fide
• Notifying the public that a Native Title application has been made
• Notifying any individual or body (such as pastoralist, mining company or local government authority) that holds an interest that may be affected by a determination of Native Title for the area

If the application meets all the conditions of the registration test it becomes a 'registered claim' and provides the claimants with a set of procedural rights while their claim is an active application in the Court.

However, an unregistered claim can still proceed towards a determination of Native Title without the provision of procedural rights.

To learn more about these procedural rights or how to file a Native Title claim see the National Native Title Tribunal webpage.
Find out more about Native Title claims in Western Australia.

To achieve a determination that Native Title exists, claimants must show that their claim can be established at law. The criteria needed to substantiate a Native Title claim are found in the Native Title Act 1993 (Cth) and subsequent case law, such as the High Court Judgement In Yorta Yorta.

Guidelines for the Provision of Connection Material help Native Title parties to understand the information that the Government needs to make a decision about settling Native Title applications by consent. They also provide guidance on the form and content of the evidence to be provided and how it will be treated and assessed.

The Guidelines should be consulted before submitting connection material to the Government for assessment. It is also strongly recommended that the Native Title Applicants (Applicants) consult with the Government before the commencement of connection research. Early engagement in consultation about connection research provides an opportunity to discuss the potential form and content of the connection materials and the criteria for substantiating a claim.

Evidentiary requirements

Claims to extended country and additional claimed rights.

Applicants have, in some cases, lodged Native Title applications over land adjacent to an existing claim or an existing native title determination on the asserted basis that it reflects the true extent of the country of the applicant group.

Applicants involved in consent determination negotiations have also sought to have rights recognised in addition to those claimed in their Native Title application.

In order to comply with the requirements outlined in the Native Title Act 1993 (Cth) for consent determinations, the Government must be satisfied that there is evidence to support an extended claim to country and/or any additional rights claimed.

In some cases, the amendments or additions may be limited or ‘technical’ in nature, but the Government still needs supporting evidence to be provided.

The applicants may provide material to support their claim of extended country or additional rights in two ways:

• by identifying relevant information contained in connection material already provided to the Government, or
• by providing additional specific connection material

The Government will then assess the evidence as outlined in the Guidelines for the Provision of Connection Material.

Disregarding previous extinguishment of Native Title

The beneficial provisions of sections 47, 47A and 47B of the Native Title Act (NTA) provide that in certain circumstances previous extinguishment of Native Title can be disregarded. Where connection evidence has demonstrated that Native Title exists and the requirements of sections 47, 47A or 47B of the NTA are met, then despite earlier extinguishing events, Native Title can be recognised over:

• claimant-held pastoral leases (s 47);
• claimant-occupied Aboriginal land or reserves (s 47A); or
• claimant-occupied vacant or unallocated Crown land (UCL) (s 47B).

One of the conditions of sections 47A and 47B of the NTA is that one or more members of the Native Title claim group must have been in occupation of the area at the time the Native Title Determination Application (the Application) was made.

The Guide to Evidentiary Requirements of Occupation under sections 47A and 47B of the Native Title Act 1993 provides guidance on the evidence the Government requires to enable the previous extinguishment to be disregarded and native title to be recognised over these areas.

Revival of Native Title in the Gibson Desert Nature Reserve

The Gibson Desert Nature Reserve Compensation and Lurrtjurrlula Palakitjalu Settlement Agreement (GDNR Agreement), executed on 29 October 2020, includes a commitment for the Western Australian Government to work with the Traditional Owners to achieve recognition of their native title rights and interests over the Gibson Desert Nature Reserve (to be renamed the Pila Nature Reserve). To do this, the State Government must enter into a section 47C Agreement under the Native Title Act 1993 (Cth) with the Gibson Desert People. This allows previous extinguishment of native title rights and interests in the Reserve to be disregarded and will enable the revival of the Traditional Owner’s native title rights. The first step in this process is for the Western Australian Government to issue a section 47C Notice so that interested parties may provide their comments. The comment period is for three months.

See the Section 47C Notice for more information. 

A Native Title determination can be achieved by:

• consent
• litigation, or
• can be unopposed

To see all determinations in Western Australia, visit the National Native Title Tribunal website.

Consent determinations

A consent determination is a decision made by a court, usually the Federal Court of Australia, where all parties are in agreement about the existence, the nature and extent of the Native Title rights and interests in relation to lands and waters, consistent with the Native Title Act 1993 (Cth).

Litigated Determinations

When all parties do not agree about the existence, nature and extent of the Native Title rights and interests claimed, the Federal Court or the High Court of Australia decides whether Native Title is recognised, or not, in relation to the land and waters as well as the nature and extent of the rights and interests.

Agreements can be negotiated under the Native Title Act 1993 (NTA) (Cth) right to negotiate or by provisions in Indigenous Land Use Agreements.

Agreements under the Right to Negotiate

Most land use agreements in WA are made under the right to negotiate (the RTN). Where the RTN applies, registered Native Title applicants or determined native title holders have the right to negotiate over proposed future acts, such as the granting of a mining lease or the compulsory acquisition of Native Title rights and interests.

Agreements reached under the RTN usually provide for:

• access to the area covered by the Agreement
• a heritage protection regime

An RTN agreement may also provide for compensation for the loss or impairment of the Native Title rights and interests. It is contractually binding for all parties involved in the negotiation.

Indigenous Land Use Agreements

An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between Native Title groups and others about the use and management of land and waters.

It is much more flexible than an RTN agreement and may include a broader range of interests.

For example, an ILUA:

• can address past and intermediate acts as well as future acts. It may also replace the future act process entirely
• may address issues of access to land, compensation for the loss or impairment of the Native Title rights and interests, extinguishment and the coexistence of Native Title and interest and other interests
• may be entered into outside a determination of Native Title, form a part of that process or pave the way for a Native Title determination
• does not extinguish Native Title but may, by agreement, allow for the surrender of Native Title.

For a list of the registered ILUAs in WA, search the National Native Title Tribunal's Register of Indigenous Land Use Agreements.

Gibson Desert Nature Reserve Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement

The Gibson Desert Nature Reserve Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement covers an area of approximately 18,900 square kilometres, and was finalised on 29 October 2020.

Lurrtjurrlulu Palakitjalu translated into English means 'we will do it together', reflecting the intention of the State Government and traditional owners to jointly manage the country covered by the reserve.

The Agreement compensates the Gibson Desert Traditional Owners for the extinguishment resulting from the creation of the Gibson Desert Nature Reserve in 1977. The Agreement contains the following components:

1. The Gibson Desert Nature Reserve will be renamed to a traditional Aboriginal name - the Pila Nature Reserve.
2. The Pila Nature Reserve will be jointly vested with the Warnpurru Aboriginal Corporation (representing the Traditional Owners) and Conservation and Parks Commission, and will be jointly managed for both conservation and cultural values under a joint management agreement.
3. Funding to improve infrastructure within Patjarr Community to support joint management activities.
4. Funding to support the establishment of Warnpurru Aboriginal Corporation to represent the Traditional Owners in conjunction with the establishment of a social and cultural advancement fund.
5. The agreement includes a commitment to work with the traditional owners to achieve recognition of native title over the area of the reserve.

A copy of the Gibson Desert Nature Reserve Compensation and Lurrtjurrlulu Palakitjalu Settlement Agreement.

Browse Agreements

The Browse Liquefied Natural Gas Agreements (the Browse Agreements) comprise the:

• Browse LNG Precinct Project Agreement
• Browse LNG Precinct Regional Benefits Agreement
• Browse (Land) Agreement

Each has a distinct purpose but as a collective the agreements allow for the development of the LNG precinct within a dedicated area, and provide benefits such as education, housing and employment to the Aboriginal community.

There are also mechanisms for the management and conservation of land and for managing Aboriginal cultural heritage.

Read summaries of the individual agreements on the Agreements, Treaties and Negotiated Settlements website. See Browse Native Title Agreement documents for details.

Burrup and Maitland Industrial Estates Agreement

The WA Government entered into the Burrup and Maitland Industrial Estates Agreement Implementation Deed (the Burrup Agreement) with three Aboriginal groups in January 2003.

The Burrup Agreement enabled the WA Government to compulsorily acquire Native Title rights and interests in the area of the Burrup Peninsula and certain parcels of land near Karratha.

The Burrup Agreement allows for industrial development to progress across southern parts of the Burrup Peninsula, provides for the development of a conservation estate and ensures the protection of Aboriginal heritage.

Read a summary of the Agreement on the Agreements, Treaties and Negotiated Settlements website. See Burrup Native Title Agreement documents for details.

Ord Final Indigenous Land Use Agreement

The Ord Final Indigenous Land Use Agreement (ILUA) between the Government, the Miriuwung Gajerrong Traditional Owners and private sector developer interests, brought to an end one of the largest and most complex Native Title negotiation projects in Australia. It was finalised in September 2005.

The Agreement was registered on 16 August 2006, binding all parties to the terms. The ILUA covers approximately 1450 square kilometres of land in the Kimberley, and provides certainty for the future development of the region.

On 31 August 2007, the WA Government handed back 50,000 hectares (ha) of land near the WA and NT border (known as Yardungarrl) to the Miriuwung Gajerrong people.

The ILUA:

• resolves Native Title and heritage issues affecting approximately 65,000 ha of land around Kununurra and Lake Argyle, paving the way for Ord Stage 2, and other agricultural, industrial and residential developments
• releases the Government from any liability for compensation in relation to the Miriuwung Gajerrong 1 and Miriuwung Gajerrong 4 native title claims
• provides for the creation of six conservation parks covering approximately 154,000 ha
• will accelerate economic development in the East Kimberley Region, creating long overdue employment opportunities in one of the most disadvantaged areas of Western Australia

Read a summary or see the Ord Final Indigenous Land Use Agreement documents for details.

Yawuru Agreements

The Yawuru Prescribed Body Corporate Indigenous Land Use Agreement and the Yawuru Area Agreement Indigenous Land Use Agreement (the Yawuru Agreements) are between the WA Government, the Yawuru people and other parties and covers approximately 973 square kilometres of land in and around Broome.

The agreements, finalised in 2010, address matters affecting land development by resolving heritage issues and by releasing the State from any liability for compensation related to the Rubibi claim. The agreements also provide $56 million in benefits to the Yawuru for:

• capacity building
• preservation of culture and heritage
• economic development
• housing
• joint management of a proposed conservation estate

Read summaries about the two agreements on the Agreements, Treaties and Negotiated Settlements website. See Yawuru Native Title Agreement documents for details.

Murchison Radio-astronomy Observatory Indigenous Land Use Agreement

The Murchison Radio-astronomy Observatory Indigenous Land Use Agreement between the WA Government, Commonwealth Scientific and Industrial Research Organisation, Yamatji Marlpa Aboriginal Corporation and the Wajarri Yamatji people was registered on 13 November 2009.

It allows for the construction of an observatory and related projects on the former Boolardy Station.

Read a summary about the ILUA on the Agreements, Treaties and Negotiated Settlements website. See Murchison Native Title Agreement documents for details.

Esperance Nyungars: Indigenous Land Use Agreement

The Esperance Nyungars ILUA, which was finalised in March 2014, was the first such agreement to be reached in WA, with several other similar agreements currently being negotiated around the State. It applies to the entire Esperance Nyungar determination area and includes a standard heritage agreement for use by government agencies and resource explorers.

The ILUA provides alternative future act processes aimed at enabling government and exploration activity to proceed in a cost-efficient, streamlined manner. This includes the timely grant of exploration tenements and access authorities, temporary activities licensed under section 91 of the Land Administration Act and low impact activities.

See Esperance Native Title Agreement documents for details.

31 October 1975

Racial Discrimination Act 1975 (Commonwealth) came into force. The Racial Discrimination Act 1975 (Cth) ('the RDA') makes racial discrimination unlawful in Australia.

It aims to ensure that everyone can enjoy their human rights and freedoms in full equality regardless of race, colour, descent, national or ethnic origin, being an immigrant (in some circumstances) or being a relative or associate of someone of a particular ethnicity or other status.

2 December 1993

Land (Titles and Traditional Usage) Act 1993 (WA) assented to. The Act replaced native title rights and interests with rights of traditional usage in Western Australia and set out a regime for dealing with land and mining titles.

3 June 1992

Mabo (No 2) decision: The High Court dismissed the notion of terra nullius and recognised the concept of Native Title in Australia. The Court described Native Title as a collection of rights of indigenous people arising from their traditional laws and customs.

The Court held that Native Title can be extinguished by the Crown; once extinguished it cannot revive and is unalienable except by surrender to the Crown. It is also extinguished in situations where its holders have abandoned the traditional laws and customs or have died.

The Court suggested that Native Title is extinguished by the grants of freehold or leases but not of lesser interests such as an authority to prospect for minerals. It may also exist where it is not inconsistent with other rights and interests over the same land, such as in national parks.

23 December 1993

Native Title Act 1993 (Commonwealth) (NTA) assented to. The Act came into operation on 1 January 1994. The Act had four objectives:

• to provide for the recognition and protection of Native Title
• to establish ways in which future dealings affecting Native Title may proceed and to set standards for those dealings
• to establish a mechanism for determining claims to Native Title
• to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of Native Title.

16 March 1995

The High Court found the Land (Titles and Traditional Usage) Act 1993 to be inoperative. WA started complying with the future act processes under the Native Title Act procedures.

4 July 1995

Titles Validation Act 1995 (WA) assented to in WA. The Act was intended to validate, under s19 of the Native Title Act, past acts attributable to the State to provide for the effects of the validation and to confirm certain rights.

This Act validated all past acts which were attributable to the State and validated all intermediate period acts (acts undertaken between 1 January 1994 and 23 December 1996) attributable to the State.

23 December 1996

Wik decision: The High Court found that native title could co-exist with pastoral leases and where there is conflict, the rights of the pastoralist prevail. The Wik Native Title claim was remitted to the Federal Court.

8 May 1997

The then Prime Minister released the 10 Point Plan: The 10 Points for an amendment to the Native Title Act 1993 were:

• validation of grants between 1/1/94 and 23/12/96
• confirmation of extinguishment of native title on exclusive tenures
• removal of impediments to the provision of Government services
• confirm the extinguishment of native title to the extent that it is inconsistent with pastoral leases
• confirm statutory access rights for claimants with current physical access to pastoral leases
• higher registration test for claimants to access the right to negotiate, no negotiations on exploration and once only right to negotiate for projects
• removal of the right to negotiate from towns and cities
• management of water and airspace put beyond doubt
• amendments to speed up processing of claims and a sunset clause
• measures to encourage agreements.

13 February 1998

Fourmile decision: Full Federal Court (Burchett, Drummond and Cooper JJ) decision arose from a non-claimant application in Queensland and found that public roads are wholly inconsistent with the continuation of Native Title (Native Ttitle is extinguished). The decision also found that the declaration of a public road will extinguish Native Title in the vast majority of cases.

27 February 1998

Yanner decision: Ex Parte Eaton: Full Court of the Queensland Supreme Court found that the Fauna Conservation Act 1974 (Qld) extinguished Native Title rights to kill and take crocodile.
Case appealed to the High Court.

6 July 1998

Federal Court Croker Island decision: Olney J found that:

• communal Native Title exists in relation to the sea and sea-bed
• the Native Title rights and interests must yield to rights and interests which exist pursuant to valid laws of the Commonwealth of Australia and Northern Territory where any inconsistency exists
• the Native Title rights and interests are, in accordance with and subject to traditional laws and customs, the right to free access to the sea and sea-bed to travel through or within the area, to fish and hunt (for personal, domestic, non-commercial communal needs including observance of traditional, cultural, ritual and spiritual laws and customs), to visit and protect places of cultural and spiritual importance and to safeguard cultural and spiritual knowledge.

Read about Mary Yarmirr and Ors v The Northern Territory of Australia and Ors [1998] 771 FCA.

8 July 1998

Federal Parliament passed amendments to the Native Title Act (Native Title Amendment Act 1998). It covered:

• acts affecting Native Title
• determining whether Native Title exists
• determining compensation for acts affecting Native Title.

27 July 1998

Native Title Amendment Act 1998 receives Royal Assent.

10 September 1998

Fejo decision: The High Court found that freehold extinguishes Native Title and Native Title, once extinguished, could not be revived. It can be inferred from the terms of the decision that any exclusive tenure will also extinguish Native Title.

30 September 1998

Native Title Amendment Act 1998 came into operation.

24 November 1998

Miriuwung Gajerrong decision Federal Court: Lee J found that:

• Native Title exists and is held by the Miriuwung Gajerrong people
• a list of certain interests in land were found to exist concurrently with Native Title rights and interests whilst other interests were found to have extinguished Native Title
• the Native Title rights are a right to possess, occupy, use and enjoy the area, the right to make decisions about the use and enjoyment of the area, the right of access to the area, the right to control access of others to the area, the right to use and enjoy resources of the area, the right to control the use and enjoyment of others of resources of the area, the right to trade in resources, the right to receive a portion of any resources taken by others from the area, the right to maintain and protect places of importance under traditional laws, customs and practices in the area and the right to maintain, protect and prevent misuse of cultural knowledge of the common law holders associated with the area.

18 December 1998

Yorta Yorta decision in Federal Court: Olney J found that Native Title had been extinguished as a result of the claimants ceasing to acknowledge their traditional laws and customs.

5 May 1999

Validation of Intermediate Period Acts following amendments to the Native Title Act on 8 July 1998. The Western Australian Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 came into operation. Under Section 12H, notification is to be given of:

• grants of freehold title;
• grants of leases, licences and easements;
• the creation, vesting or amendments to reserves, which occurred under the Land Act 1933 (WA) between 1 January 1994 and 23 December 1996.

23 June 1999

Wilkes decision: The Supreme Court found that s.211 of the Native Title Act can be applied to an offence in relation to fishing laws.

9 September 1999

Hayes decision: Olney J in the Federal Court found that Native Title existed on parts of the claimed land in and around Alice Springs.

7 October 1999

Yanner decision: The High Court found (5-2) that common law native title holders could carry out hunting activities in accordance with tradition and such activities are not prevented by Queensland flora and fauna legislation.

3 December 1999

Croker Island decision in Full Federal Court: Beaumont, Von Doussa and Merkel JJ dismissed the appeals of both the claimants and the Commonwealth Government upholding Olney J's decision that the claimants held co-existing rights over the sea.

21 December 1999

Western Australian Parliament passed the Native Title (State Provisions) Act 1999. This Act:

• provides a procedure for future acts proposed over land where Native Title rights may co-exist with other interests in land
• provides a procedure for future acts proposed over unallocated Crown land, Aboriginal reserves and leases and the historical pastoral leasehold land
• determines compensation
• provides a statutory procedure for future acts that come within section 24MD(6B) of the Native Title Act. These are primarily compulsory acquisitions within towns and cities, the intertidal zone and for infrastructure facilities, granting certain mining titles for infrastructure, and renewing non-exclusive agricultural and pastoral leases for longer terms
• provides for the establishment of the Native Title Commission. The role of the Native Title Commission is to mediate, hear objections and determination of compensation, and register Indigenous Land Use Agreements.

10 January 2000

Native Title (State Provisions) Act 1999 receives Royal Assent.

3 March 2000

Miriuwung Gajerrong appeal decision in Full Federal Court: Beaumont, Von Doussa and North JJ upheld Lee's decision (3-0) in relation to the connection of the Miriuwung and Gajerrong people to the claim area and upheld the appeal of the State Government (2-1) that Native Title can be partially extinguished, there are no Native Title rights to own minerals or petroleum, mining leases, enclosed or improved pastoral leases and some other leases extinguish Native Title and the Ord Irrigation Project and Argyle Diamond Project extinguished Native Title.

11 May 2000

Decision of Full Court of Federal Court on appeal from the decision of Lee J of the Federal Court at first instance: Clarified that resumptions and mining titles granted post 1975 were not racially discriminatory and consequently not invalid. This had the effect that the non-extinguishment principle does not apply to such acts. Mining leases and general purpose leases extinguish Native Title. The determination was also amended to include a statement that any Native Title rights to take fauna in nature reserves or wildlife sanctuaries created prior to 1975 have been wholly extinguished. Enclosed and improved areas of pastoral leases extinguish Native Title in line with pastoral reserves.

11 May 2000

Harris decision: The Full Federal Court (Heerey, Drummond and Emmett JJ) upheld that the 'opportunity to comment' under section 24HA of the Native Title Act was a lesser right than the right to negotiate. Also held that the opportunity to comment may be given after a decision has been made to do the act, but must be given prior to the act being done.

16 June 2000

The then Premier announced the WA Government's intent to grant mining tenement applications, land dealings and other acts over enclosed and improved areas of pastoral leases and former mining and general purposes leases in accordance with the Full Court's decision in Miriuwung Gajerrong (3 March 2000). This was known as the 'Ward Policy'.

29 June 2000

WA Government signed a Co-operative Planning Agreement with the Yamatji Land and Sea Council.

4 August 2000

High Court granted special leave to appeal the Croker Island and Miriuwung Gajerrong cases.

29 August 2000

Nharnuwangga, Wadjari and Ngarla: Madgwick J in the Federal Court made a determination of Native Title for Nharnuwangga, Wadjari and Ngarla people. The determination was agreed by the State Government, Nharnuwangga, Wadjari and Ngarla people and 20 pastoralists. It involved an agreed determination that a specified set of Native Title rights are held by the Nharnuwangga, Wadjari and Ngarla people, an Indigenous Land use Agreement, which waived the right to negotiate and substituted an agreed heritage regime for exploration titles and the right to be consulted for petroleum titles, productive mining and compulsory acquisitions and an agreed pastoral access regime. A final determination was made on July 5 2001.

27 October 2000

Commonwealth Attorney-General made a determination that the Native Title (State Provisions) Act 1999 complied with s43A of the Native Title Act. The decision was subject to disallowance by either House of Commonwealth Parliament.

9 November 2000

The Commonwealth Senate voted 32:28 in favour of disallowing the Native Title (State Provisions) Act 1999. Parts of the Act had been proclaimed when Royal Assent was received. The unproclaimed provisions include the most significant portions of the Act, particularly the establishment of a Native Title Commission. The Act was thus not active.

13 November 2000

Bodney decision: Federal Court determination that there was no Native Title over the Perth Airport. This was the first litigated determination in WA, and established that a Crown to Crown grant of freehold extinguishes Native Title.

28 November 2000

Spinifex: The second negotiated settlement of Native Title in WA was enacted on 28 November 2000. This was the first claim in the Central Desert area to reach a consent determination.

20 August 2001

Tjurabalan: On 20 August 2001, the Tjurabalan People achieved legal recognition of their Native Title rights to an area covering 26,000 square kilometres in the Tanami Desert in WA.

11 October 2001

Croker Island decision High Court: The High Court recognised Native Title at sea but said that these rights are not exclusive.

19 October 2001

Kiwirrkurra: On 19 October 2001 the fourth determination of native title in WA was made. The Native Title rights and interests of the Kiwirrkurra People in the Gibson Desert were recognised.

7 November 2001

Rubibi decision: Limited Native Title rights and interests of the Yawaru People in Broome were recognised on 7 November 2001. This determination was the result of litigation and was the fifth determination of Native Title in WA.

14 November 2001

Release of Paul Wand and Chris Athanasiou's Review of the Native Title Claim Process in Western Australia: The review highlighted the need for changes to the Native Title system.

19 December 2001

Release of the final report of the Technical Taskforce on Mineral Tenements and Land Title Applications: The report highlighted the need to address the growing number of unprocessed applications for mineral tenements and land titles in WA.

12 February 2002

Karajarri Area A: The Karajarri People gained legal recognition of their Native Title rights over 25,000 square kilometres in the Kimberley region of WA on 12 February 2002.

8 August 2002

Miriuwung Gajerrong in the High Court: The High Court decided that vesting of reserves, under section 33 of the Land Act 1933, totally extinguishes native title. The High Court also confirmed that native title consists of a 'bundle of rights,' such as the right to hunt, fish, camp on land, and decide who else can have access. Each of these constituent rights is susceptible to extinguishment one by one. Consequently, it is possible that native title can be partially extinguished, while leaving some rights intact. The High Court referred the determination of the claim back to the Federal Court.

27 September 2002

Martu: On 27 September 2002, the largest Native Title determination in Western Australia was made, recognising the Native Title rights of the Martu People over 136,000 square kilometres of land near Rudall River National Park.

1 November 2002

De Rose decision: O'Loughlin J in the Federal Court made the De Rose decision. It was found that the loss of physical and spiritual connection to the pastoral lease over the previous 20 years had extinguished Native Title.

12 December 2002

Yorta Yorta in the High Court: The majority of the High Court dismissed the Yorta Yorta appeal, thereby upholding Olney J's finding that Native Title does not exist because there was an 'interruption' in observance of traditional law and custom.

16 January 2003

Burrup Agreement: signed with three Native Title claimant groups, Ngarluma Yindjibarndi, Yaburara Mardudhuner and Wong-goo-tt-oo, over the Burrup Peninsula:

The agreement includes:

• joint management by Native Title claimants and Department of Conservation and land Management of a conservation reserve on the northern Burrup Peninsula
• preservation of rock art
• provision of public recreational facilities on the Burrup peninsula
• education and employment benefits to the Aboriginal community.

17 April 2003

Frazer decision: French J in the Federal Court made a decision calling for the establishment of regional mediation protocols.

3 July 2003

Ngarluma Yinjibarndi decision: Nicholson J in the Federal Court made a finding that the Ngarluma Yindjibarndi group had limited Native Title in some parts of the claim area. Neither the Ngarluma Yindjibarndi, Wong-Goo-TT-OO or Yaburara Mardudhunera people have Native Title rights or interests in the Burrup Peninsula.

14 October 2003

Erubam Le decision: The Full Court of the Federal Court found that public works built before 1996 extinguish Native Title but those built after 1996 do not.

9 December 2003

Miriuwung Gajerrrong (Ward): The Federal Court made a final determination over the Miriuwung Gajerrong Native Title application. Exclusive possession Native Title was recognised over Lacrosse Island, Kanggurru Island, Aboriginal reserves within the Kununurra townsite, Glen Hill pastoral lease and Hagan Island. Non-exclusive rights were recogised over areas including islands in Lake Argyle.

15 March 2004

Eastern Guruma Indigenous Land Use Agreement (ILUA): In March 2004, the WA Government signed an ILUA between the Eastern Guruma people, Hamersley Iron Pty Ltd and Rio Tinto Pty Ltd. The 50-year agreement, which covers 6,744 kilometres of land south east of Karratha, allows for exploration, mining and infrastructure development to take place without triggering the Native Title Act's future act regime.

3 August 2004

Jango decision: Sackville J ruled that expert reports must adhere to the Evidence Act (Cth) 1995. The Act requires that for expert opinion to be admissible, it must be based on facts and must be proved, either by the expert or from another place or person. Expert reports need to 'clearly expose the reasoning leading to the opinions arrived at', and 'distinguish between the facts upon which opinions are presumably based and the opinions themselves'. The ruling highlighted the need for anthropologists and other experts to properly understand Native Title law.

27 August 2004

Wanjina-Wunggurr Willinggin decison: The decision recognises that Native Title is held by the Wanjina Wunggurr Community. This is a 'cultural bloc' that includes three language groups. Exclusive possession Native Title was recognised over leases or reserves held by, or for the benefit of, Aboriginal people and some unallocated crown land. Non-exclusive possession Native Title was recognised over much of the claim area, including (but not limited to) pastoral leases, non-vested reserves and mining lease areas. Sundberg J ruled that only areas that remain unenclosed or unimproved may be accessed to seek sustenance, or to hunt and fish for personal, domestic or non-commercial use.

8 September 2004

Karajarri Area B: North J found that non-exclusive possession Native Title rights exist in parts of the determination area. (But for extinguishment, there would have been a determination of exclusive possession Native Title). The ruling included the right to ‘enter and remain’ on land where non-exclusive possession Native Title exists.

12 November 2004

Ord Stage 2 Memorandum of Understanding: The WA Government and the Miriuwung Gajerrong people signed a Memorandum of Understanding that will lead to the resolution of Native Title and heritage issues over 65,000 hectares of land around Kununurrra and Lake Argyle. When final agreement is reached, the land will be released for development.

23 December 2004

Noonkanbah and the Ngaanyatjarra Lands Native Title Claim agreements: In-principle agreements were endorsed by State Cabinet on December 23. Final determinations of Native Title over the claim areas were expected in mid-2005.

8 April 2005

Argyle Diamonds Indigenous Land Use Agreement (ILUA): The National Native Title Tribunal registered the Argyle Diamonds ILUA. The ILUA was the third to be registered in WA. It provides traditional owner support for Argyle's proposed underground mining operations and ongoing financial assistance to local Indigenous communities.

2 May 2005

Ngarluma Yindjibarndi decision: Nicholson J ruled that the Ngarluma and Yindjibarndi peoples hold separate, but overlapping, Native Title. The determination provides for two separate but overlapping Prescribed Bodies Corporate. Non-exclusive possession Native Title was recognised in parts of the claim area.

8 June 2005

De Rose Full Federal Court decision: The Full Court confirmed that improvements on pastoral leases (that are non-exclusive possession acts) and adjacent areas, extinguish Native Title. The Court also noted that the Native Title Act does not necessarily require claimants to demonstrate a continuing physical connection to the application area. It is possible for Aboriginal people to acknowledge and observe traditional laws and customs during periods when physical connection is not maintained.

14 June 2005

Bardi Jawi preliminary determination: French J held that Native Title is communal and is held by the Bardi society into which the Jawi people had been integrated. He recognised exclusive possession Native Title over approximately 1037 square kilometres of land at the northern end of the Dampier Peninsula, and non-exclusive possession Native Title over the inter-tidal zone. Justice French also found that Native Title rights and interests were not extinguished by the grant of expired pearl oyster farm leases.

29 June 2005

Ngaanyatjarra Lands: The determination, made by consent, recognises that Native Title is held by the communities that form a broad Western Desert 'cultural bloc'. These communities share similar social organisation, culture and ritual and one or two language dialects. Exclusive possession native title is recognised over most of the claim area, including special leases, reserves held in trust for the use and benefit of Aboriginal people and unallocated crown land. Non-exclusive possession Native Title is recognised over the Warburton range stock route.

29 July 2005

Rubibi decision: The Federal Court ruled that the Yawuru hold Native Title rights and interests in the claim area. The Walman Yawuru were considered to be part of the Yawuru community and did not hold exclusive rights and interests as a distinct group. The issue of the rights to exclude non-members of a claimant group from the claim area also surfaced in this case, with the court indicating that groups need to possess compelling evidence that they can exclude people from a particular area in their country. If this evidence is not forthcoming, only non-exclusive Native Title rights and interests may be recognised.

29 July 2005

Alyawarr decision: The Full Federal Court accepted that a Native Title right to live on the land, camp and erect shelters and other structures could be interpreted to mean a right to live permanently on the land and to erect permanent structures. It also stated that the exercise of such rights did not necessarily create inconsistency with the rights of a pastoralist. The Court upheld the trial judge's finding that prior extinguishment of Native Title over the Hatches Creek townsite (which was vacant Crown land as no town was ever established there) could be disregarded.

6 October 2005

Ord Final Agreement: The agreement resolves Native Title and heritage issues affecting land around Kununurra and Lake Argyle.

14 November 2005

Bardi Jawi decison: The Federal Court determination recognises exclusive possession Native Title rights over Aboriginal reserves and unallocated crown land at the northern end of the Dampier Peninsular and non-exclusive possession Native Title rights over the inter-tidal zone. Parties to the determination included the Kimberley Land Council and fishing and pearling licence holders.

18 January 2006

Airservices Australia-Ngaanyatajarra Indigenous Land Use Agreement: Western Australia's fourth Indigenous Land Use Agreement ensures that Airservices Australia can continue to provide safe and environmentally sound air traffic control, while avoiding damage to areas of cultural concern to the Ngaanyatjarra Lands Native Title holders.

10 February 2006

Mining Amendment Act 2004: The Act includes transitional amendments that allow for the reversion of mining lease applications to exploration licences and long-term amendments that allow exploratory licences to be extended for longer periods. Under the amended Act, applications for mining leases can only be made if there is significant mineralisation or there is an intention to commence productive mining.

13 February 2006

Rubibi decision (Partial): On February 13, Justice Ronald Merkel made a ruling on the establishment of Native Title in the Rubibi litigation. Mekel J accepted that the Yawuru community, including the Djugan, have links to the entire claim area. The Native Title rights possessed by the community include the right to occupy the claim area. The decision is subject to further argument about extinguishment and the extent to which exclusive Native Title rights apply.

31 March 2006

Jango decision: (Compensation application) Justice Sackville found that the compensation claim group did not satisfy the Court that, at the time the 'compensation acts' were done, the group held native title rights and interests over the area.

13 April 2006

Larrakia decision: Justice Mansfield concluded that the current Larrakia society had not carried forward the traditional laws and customs that existed at sovereignty.

28 April 2006

Rubibi decision: Justice Ronald Merkel made his final determination over the Rubibi Native Title application. Justice Merkel ruled that exclusive possession Native Title applied to approximately two thirds of the claim area (largely in the northern portion of the claim), including two pastoral leases and unallocated crown land around Dampier Creek, Willie Creek and Roebuck Bay. Non-exclusive possession Native Title was found to exist in relation to the Thangoo pastoral lease, unallocated crown land in the Broome Townsite and the inter-tidal zones in the claim area.

19 September 2006

Single Noongar decision: Justice Murray Wilcox handed down his interim decision over the Perth Metropolitan portion of the Single Noongar Native Title claim. Justice Wilcox ruled that, except for extinguishment, Native Title exists over the Perth Metropolitan area and that Native Title is held by the Noongar community.

24 November 2006

Miriuwung Gajerrong #4: The determination, made by consent, recognises that Native Title is held by the Mirriuwung, Gajerrong and Gidja people. Exclusive possession Native Title is recognised in relation to three reserves and one lease. Non-exclusive possession Native Title rights and interests are recognised in relation to Carlton Hill (excluding a former special lease), Ivanhoe and Rosewood Pastoral leases, and two reserves.

5 February 2007

Harrington-Smith v Western Australia (Wongatha decision): The question before the Federal Court in this case was whether or not a determination of Native Title should be made in relation to a large part of the Goldfields area in Western Australia. Justice Lindgren decided that no determination under s. 225 of the Native Title Act should be made.

1 March 2007

Eastern Guruma: The determination, made by consent, recognises that Native Title is held by the Eastern Guruma people. Non-exclusive possession native title is recognised over three pastoral leases, Coolawanya, Hamersley and Rocklea, two reserves and numerous mining leases.

15 April 2007

Native Title Amendment Act 2007: The majority of the provisions of this act came into effect on 15 April 2007 followed by the Native Title Amendment (Technical Amendments) Act 2007 on 20 July 2007. The Amendment Act primarily affects processes for the resolution of native title claims and the recognition of Native Title Representative Bodies.

27 April 2007

Noonkanbah: The determination, made by consent, recognises that Native Title is held by the Yungngora people. Exclusive possession Native Title is recognised over the Noonkanbah pastoral lease and a small area of unallocated crown land. Non-exclusive possession Native Title is recognised over two reserves.

30 May 2007

Ngarla: The determination, made by consent, recognises that native title is held by the Ngarla people. Non-exclusive possession native title is recognised over the De Grey, Pippingarra and Pardoo pastoral leases, 29 reserves and five miscellaneous leases.

7 June 2007

Ngarluma Yindjibarndi decision: The Full Federal Court overturned Justice Nicholson's ruling that Native Title had been wholly extinguished in relation to the Mt Welcome, Coolawanyah, Mallina and Hooley pastoral leases. Section 47B of the Native Title Act 1993, which allows prior extinguishment to be disregarded in certain circumstances, was also found to apply in relation to a number of temporary reserves (made under the Mining Act 1904 (WA), within the claim area.

31 August 2007

Yardungarrl Handback: The WA Government handed back 50,000ha of land, freehold, to the Miriuwung Gajerrong people. It was the largest handback to take place in WA. Yardungarrl is located on the WA/NT border and is home to eight Aboriginal communities.

26 September 2007

Indigenous Conservation Title Bill: The purpose of the Bill is to create a form of title that recognises Indigenous interests in the Rudall River National Park and the Gibson Desert Nature Reserve.

19 October 2007

Ngurrupa:The Federal Court ratified the Ngururrupa Native Title Determination on 19 October at an on-country hearing south of Balgo. The determination recognises exclusive possession native title rights over most of the 29,726 square kilometre Central Desert claim.

6 November 2007

Yungngora Pastoral Lease: The WA Supreme Court found the Yungngora Association, which holds the pastoral lease for the Noonkanbah station, was not exempt from paying rates even though the association holds status as a charitable organisation.

The Shire of Derby-West Kimberley argued it was primarily a commercial cattle station and the charitable purposes were incidental to its commercial use.

9 November 2007

Ngurrara: The Federal Court ratified the Ngurrara Native Title Determination at an on-country hearing near Pirnini. The determination recognises exclusive possession Native Title rights over 76,080 square kilometres of land in the Kimberley region of WA.

23 April 2008

Single Noongar Claim Appeal: The Full Federal Court set aside Justice Murray Wilcox's 2006 decision that Native Title exists over the Perth Metropolitan portion of the Single Noongar Claim. Justices Finn, Sundberg and Mansfield found that Wilcox J made serious errors in applying Native Title connection principles established in the High Court's 2002 Yorta Yorta decision.

2 May 2008

Rubibi Claim Appeal: The Full Federal Court upheld Justice Ronald Merkel's 2006 decision, recognising the exclusive possession Native Title rights of the Yawuru people over vast tracks of land in and around Broome.

3 June 2008

Ngaanyatjarra Lands Part B: The Federal Court ratified the Ngaanyatjarra Lands Part B consent determination in Perth. The determination, handed down by Justice Robert French, recognises exclusive possession native title over 1,428 square kilometres of land in the Central Desert region.

20 June 2008

Birriliburu: The Federal Court ratified the Birriliburu consent determination, at an on-country hearing at the Good Camp Rockhole in the Central Desert. The determination, handed down by Justice Robert French, recognises exclusive possession native title over 66,593 square kilometres of land.

18 September 2008

Thalanyji: The Federal Court ratified the Thalanyji consent determination at an on-country hearing in Onslow in the Pilbara Region. The determination, handed down by Justice North, recognises non-exclusive possession Native Title over approximately 11,120 square kilometres of land in and around the town.

11 June 2009

Nyangumarta: The Federal Court ratified the Nyangumarta consent determination at an on-country hearing at Nyiyamarri Pukurl, a small block of land about 300 kilometres south of Broome.

The determination, handed down by Justice North, recognises exclusive possession Native Title over most of the claim area. Non-exclusive Native Title was recognised over all or part of three pastoral leases; Anna Plains Wallal Downs and Mandora, unvested reserves and small areas of unallocated crown land where partial extinguishment had occurred.

9 September 2009

Aboriginal Development Package Signing: The WA Government and the Miriuwung Gajerrong people signed an agreement over an Aboriginal Development Package, which allows significant improvement of traditional owners' ability to participate in the economic development of the Kimberley region.

18 November 2009

Thudgari: The Federal Court ratified the Thudgari consent determination at an on-country hearing at Ullawarra Station in the Upper Gascoyne Region. The determination, handed down by Justice Barker, recognises non-exclusive possession native title over approximately 10,588 square kilometres of mainly pastoral lease land.

18 March 2010

Bardi Jawi Claim Appeal: The Full Federal Court upheld the appellant's claim that the Bardi and Jawi people were a single society at sovereignty and remain a single society today. The determination area was extended to include islands south west of Hadley Passage and some parts of Alarm Shoals and Lalariny.

May 2010

Mt Goldsworthy Mining Leases: The Federal Court determined that the leases (which were excised from the Ngarla determination) did not confer exclusive possession on the tenement holders. Justice Bennett ruled that where there was no development, the tenement holders rights were not inconsistent with the continued existence of determined Native Title rights. In developed areas, however, the tenement holders rights were inconsistent with the continued existence of determined Native Title rights, and that where the mine, townsite and associated infrastructure were constructed, Native Title rights were wholly extinguished.

16 December 2010

The Native Title Amendment Act (No. 1) 2010 (Cth) came into effect. The Amendment Act provides a process to assist the timely construction of public housing, staff housing and a limited class of public facilities by or on behalf of the Crown, a local government body or other statutory authority, for Aboriginal and Torres Strait Islander people in communities on Indigenous held land.

23 May 2011

Uunguu: The Federal Court ratified the Uunguu Area A consent determination. The determination, handed down by Justice Gilmour, recognises exclusive and non-exclusive possession of Native Title over approximately 25,905 square kilometres of land and water. (The Uunguu Area B determination, covering an additional four square kilometres, was ratified by consent determination on 27 November 2012). See also Puenmora v State of Western Australia.

26 May 2011

Dambimangari: The Federal Court ratified the Dambimangari consent determination on 26 May 2011. The determination, handed down by Justice Gilmour, recognises exclusive and non-exclusive possession Native Title over approximately 28,019 square kilometres of land and water.

25 May 2012

Nyangumarta-Karajarri: The Federal Court ratified the Nyangumarta-Karajarri consent determination. The determination, handed down by North J, recognises exclusive and non-exclusive possession Native Title over approximately 1,995 square kilometres. The determination involved an agreement as to the sharing of the Native Title rights and interests between the Nyangumarta and Karajarri peoples.

20 November 2012

Eastern Guruma: The Federal Court ratified the Eastern Guruma Area B consent determination on 20 November 2012 (the Area A determination was ratified by consent determination on 1 March 2007). The determination, handed down by Justice Bennett, recognises non-exclusive possession native title, with the total area covered by the Eastern Guruma Area A and B determinations being approximately 8,700 square kilometres.

27 November 2012

Ngurrara: The Federal Court ratified the Ngurrara Area B and C consent determinations on 27 November 2011 (the Area A determination was ratified by consent determination on 9 November 2007). The determinations, handed down by Justice Gilmour, recognise exclusive possession native title over land in the southern Kimberley region of Western Australia. See also May v State of Western Australia.

12 December 2012

Bunuba: The Federal Court ratified the Bunuba consent determination. The determination, handed down by Justice Gilmour, recognises exclusive and non-exclusive possession native title over approximately 5,336 square kilometres of land.

21 December 2012

Ngadju: Justice Marshall handed down his decision that native title exists and is held by the members of the Ngadju community in common, over an area of approximately 102,581 square kilometres of land. The native title rights possessed under the traditional laws and customs extend to the right to possession, occupation, use and enjoyment to the exclusion of all others in relation to land and waters above the high watermark of the foreshore of the coastline.

16 May 2013

Martu, Karnapyrri and Martu #2: The Federal Court ratified the Martu, Karnapyrri and Martu #2 consent determination. The determination, handed down by Justice McKerracher, recognises exclusive possession native title over an area in the Pilbara region of Western Australia near the Gibson and Great Sandy Deserts. The determination is related to an earlier determination of native title on 27 September 2002.

19 June 2013

Gooniyandi Combined #2: The Federal Court ratified the Gooniyandi Combined #2 consent determination. The determination, handed down by Justice Gilmour, recognises exclusive and non-exclusive possession native title over approximately 11,208 square kilometres of land.

29 July 2013

Wiluna: The Federal Court ratified the Wiluna consent determination. The determination, handed down by Justice McKerracher, recognises exclusive and non-exclusive possession native title over approximately 40,740 square kilometres of land. The Wiluna #2 determination was made on 3 September 2013 following a contested hearing in relation to whether certain land covered by two pastoral leases was subject to a permission or a resumption process and, if so, whether native title could be claimed over this land. See also BP (Deceased) v State of Western Australia [2013] FCA 760 (2 August 2013).

7 August 2013

Balanggarra: The Federal Court ratified the Balanggarra #3 and Balanggarra Combined consent determinations. The determinations, handed down by Justice Gilmour, recognise exclusive and non-exclusive possession Native Title over approximately 30,375 square kilometres of land and water. See also Cheinmora v State of Western Australia (No 2) [2013] FCA 768 (7 August 2013).

7 August 2013

Akiba: The High Court made findings in relation to two issues:

• It upheld the original finding of the trial judge that people who had been given permission by primary native title holders of the determination area to exercise native title rights in the area should not be included as ‘reciprocal rights holders'.
• It reversed the decision of the majority of the Full Court to the effect that successive fisheries legislation had extinguished any native title right to take fish and other aquatic life for commercial purposes.

1 October 2013

De Rose Hill Compensation Application: This is a determination of a compensation application by consent, being the first court ordered payment of compensation for the extinguishment of native title rights and interests under the Native Title Act. The exact amount of compensation is unavailable because Justice Mansfield ordered that the amount agreed upon by the parties be redacted from the record.

6 November 2013

Karpany v Dietman: The appellants, who were members of the Narrunga people, were charged with possession of undersized abalone in contravention of fisheries legislation. The appellants defended the charges on the basis that the abalone was taken in accordance with the traditional laws and customs of the Narrunga people, and therefore section 211 of the Native Title Act provided them with a defence. The High Court held that the fisheries legislation had not extinguished the Narrunga people's Native Title rights to fish. Further, that section 211 of the Native Title Act did provide the appellants with a defence to the charges.

27 November 2013

Ngadju appeal: Jagot, Barker & Perry JJ upheld the State's appeal ground that one of the apical ancestors of the Ngadju should be removed, but dismissed the State's other grounds of appeal, ruling that:

• There was sufficient evidence of Ngadju connection to the south-west of the claim area.
• Featherfoots were mythical beings and any rights held by Lawmen outside the group did not constitute rights or interests in relation to Ngadju land or waters.
• It was appropriate to determine two separate lists of rights as exclusive rights on the terrestrial portion of the trial area, but claimants were only entitled to a determination of non-exclusive rights in intertidal zones.

21 February 2014

Congoo on behalf of the Car-Barrum People v Queensland: The Bar-Barrum people were native title claimants who, it was agreed, held at least non-exclusive possession native title over certain land to the west of Cairns, in Queensland. However, part of the land had been set aside by the Commonwealth in the 1940s for use as military camps and then used for this purpose. The question was whether these acts by the Commonwealth extinguished native title. The Full Federal Court held that they did not.

11 March 2014

Banjima: The Federal Court handed down its determination of Native Title following a contested hearing. The determination, handed down by Justice Barker, recognises exclusive and non-exclusive possession Native Title over approximately 10,200 square kilometres of land in the Central Pilbara region of Western Australia.

12 March 2014

Mt Goldsworthy Mining Leases appeal: The High Court dismissed the State's appeal against the decision of the Full Federal Court that native title had not been extinguished by rights granted to certain joint venturers pursuant to a State Agreement and mineral leases. This was because the nature of the joint venturers' rights was not in the nature of an exclusive possession over the land.

14 March 2014

Esperance Nyungar: The Federal Court ratified the Esperance Nyungar consent determination. Handed down by Justice McKerracher, it recognises non-exclusive possession native title over approximately 28,895 square kilometres of land and water surrounding Esperance.

29 May 2014

Nyikina Mangala: The Federal Court ratified the Nyikina Mangala consent. The determination, handed down by Justice Gilmour, recognises exclusive and non-exclusive possession native title over approximately 26,000 square kilometres of land in the Kimberley region of Western Australia.

1 August 2014

Wiluna #2 appeal: North, Barker & Bromberg JJ dismissed the State's appeal against the finding that the extinguishing effect of two pastoral leases on native title in Wiluna #2 had to be disregarded. The Court arrived at this conclusion after coming to the view that, on the evidence at the time the native title claimant application was made, the Crown did not have a bona fide intention of using the land for public purposes or for a particular public purpose.

21 November 2014

Ngadju determination: The Federal Court handed down its determination of native title following its decision on 21 December 2012 and decisions on extinguishment of native title on 21 May 2014 and 3 July 2014. The determination, handed down by Justice Marshall, recognises exclusive and non-exclusive possession native title over approximately 102,581 square kilometres in the Goldfields region of Western Australia.

2 December 2014

Pilki: The Federal Court handed down a determination of native title following a contested hearing on the issue of whether there existed a native title right to take and use resources of the land and waters for commercial purposes. The determination, handed down by Justice McKerracher, recognises exclusive possession native title over approximately 24,400 square kilometres in the Great Victoria Desert, in Western Australia.

12 June 2015

Banjima: The State appealed against a finding that the Banjima people has exclusive possession rights based on a continuing custom of needing permission to enter country where that custom was not enforced against non-indigenous people. The appeal court decided along the same lines as the judge at the first instance and exclusive possession native title was determined to exist.

There was also consideration of the proper construction of s 47B. The court confirmed that an exploration licence over an area at the time a claimant application is made will not have the effect of dis-applying s 47B. Section 47B therefore is likely to have broader application in Western Australia than was understood prior to the Banjima decision.

A further attempt by the State to have the decision reconsidered was dismissed on 4 December 2015.

1 July 2015

Gibson Desert: The Gibson Desert claim group lodged a compensation claim for the extinguishment of exclusive possession native title over an area where a nature reserve had been granted. The State later found evidence of historical oil tenements that had been granted over the same area, and argued that these historic tenements extinguished native title. This argument was accepted by the court and the compensation claim was subsequently dropped.

16 December 2015

Pilki Appeal: An appeal from the decision at first instance that found that claimants had the right to access and take resources for any purpose. The State argued that such a right was not founded on the evidence of traditional law and custom. The Court found that given that there was (1) no evidence that traditional laws forbade the trading of resources, and (2) evidence of Western Desert trading system, that the appeal should be dismissed.

29 March 2016

Ngadju Appeal: This appeal concerned the correct construction of mining tenements granted over the claim area in 1968 and whether they had extinguishing effect. The Court accepted the argument put forward by BHP/St Ives; that mining tenements granted following a State Agreement Act were transitioned by the provisions of the Mining Act 1978 (WA) when it came into effect. The rights of these tenements were up-lifted from restricted mineral to full mineral tenements, and the re-grant of the tenements was a valid future act under s 24IB/24IC. As they were valid acts effecting native title, they extinguished exclusivity over the tenement areas.

29 March 2016

Banjima Appeal: Following the 2015 Banjima decision, the Banjima people sought an order of costs against the State. The Applicant sought to argue that the State should pay costs, because it had, at a late stage, discovered and sought to adduce new evidence about underlying historical tenures which would negate exclusive possession claims (unless s 47A/B applied). Although the Court questioned why a historical tenure search had been ordered at a late stage by the State, it found that once uncovered, there was an obligation to put information before the Court (as it was). The order that both parties pay their own costs was upheld.

19 May 2016

Badimia Appeal: The appeal considered when the Federal Court has the power to make determinations that no native title exists in an area, particularly, whether the power to make a negative determination is limited to non-claimant applications. This Full Federal Court decision confirmed that the Court has the power to make a negative determination of native title for all types of application (claimant or non-claimant). The decision considered the provisions, purpose and mechanisms of the NTA as well as previous case law in reaching this conclusion. The judgment upholds the decision made at first instance and confirms that native title does not exist.

29 June 2016

Yilka/Sullivan: The Yilka litigation examined questions of connection as similarly constituted claim had previously been dismissed in the Wongatha proceeding. It also considered that extinguishing effect of various tenures, of particular interest to the States was the extinguishment of roads.

The Court found that several major roads running through the area were either (1) not dedicated under common law and therefore could not affect native title, or, (2) although the roads were public works, s 47B could still apply. The decision also raised the possibility of exclusive possession native title over waters, although it was not clear if the judge recognised this or not.

The Court found that both groups held native title over their respective claim areas, but it is unclear exactly how (i.e. based on one set of traditional law and custom - or not). The judge left it to the parties to agree on the final terms of a determination which could give effect to the elements of his decision. The determination was made on 27 September 2017.

28 July 2016

Banjima, State's Special Leave to Appeal application: Following the 2015 Banjima decision, the High Court heard oral arguments about whether an appeal could be brought to the High Court regarding the aspects of the decision regarding mining tenements which were found not to have a particular purpose. Ultimately the two justices of the High Court decided the State had limited chances of success and did not grant special leave to appeal.

24 August 2016

Timber Creek Compensation Case: This decision is the first to publicly consider the quantum of compensation awardable for the loss or impairment of native title rights and interests. Justice Mansfield found that the compensation payable for the extinguishment of non-exclusive native title rights and interests was:

• (a) $512,000 for the economic value of the extinguished rights (in this instance assessed to be 80 per cent of the market freehold value at the time extinguishment occurred).
• (b) Simple interest at the Court standard of 4 per cent on the economic value being $1,488,261.
• (c) $1,300,000 awarded in solatium for the 'hurt feelings' caused by the extinguishment/the loss of traditional owners to have responsibility over their land.

In reaching this decision, Justice Mansfield also noted the following:

• 80 per cent of freehold value would not always be the appropriate valuation of economic value, this would depend on the circumstances of the case.
• It is possible that compound interest would be awarded where there was evidence that the native title group would have invested those funds/managed them in a way to produce a business advantage.
• The valuation of solatium, while based on evidence from the native title group of how they had been affected, was described as an inherently 'intuitive' exercise.

Matter appealed to the Full Federal Court decision, 20 July 2017.

14 December 2016

Tjiwarl: The Court accepted in Tjiwarl a proof of native title/connection based on the people acquiring their rights in the land post-sovereignty in accordance with Western Desert traditional laws and customs. This finding was contrary to the previous decision in Wongatha which found a different boundary was occupied by Western Desert people at sovereignty.

The validity of all State pastoral lease renewals by Department of Lands in 2015 was also challenged by the applicant. That argument was rejected with the Judge finding that the renewals were valid future acts and hence did have full force and effect as against native title. Six miscellaneous licenses granted pursuant to the Mining Act 1978 (WA) were invalid to the extent that they affected native title because the appropriate future act procedures were not complied with.

Matter appealed to the Full Federal Court, see decision 1 February 2018.

2 February 2017

McGlade: The Full Federal Court unanimously found that all of the persons who jointly comprise the Registered Native Title Claimant or Applicant (including any deceased person) must sign each relevant Agreement before it can be considered an Indigenous Land Use Agreement (ILUA) capable of registration by the Native Title Registrar. Where a person who jointly comprises the Registered Native Title Claimant or Applicant does not sign, there must be an application under s 66B of the NTA to replace the Applicant.

The decision effected the registration of the South West Settlement. This decision also has significant implications for many other native title agreements across Australia that were entered into on the same basis (i.e. where not all persons comprising the native title Applicant signed the agreements), which were done so consistent with previous case law and the approach of the National Native Title Tribunal.

20 July 2017

Timber Creek - Appeal: The appeal succeeded only to the extent that the Full Federal Court ruled that the amount provided for economic value of extinguished rights that should be 65 per cent of the freehold value as opposed to the 80 per cent provided for at the first instance. The Court also overturned the award of damages for invalid future acts. Further, the Commonwealth succeeded in its appeal that no interest should be awarded in relation to a particular lot where native title had been statutorily revived by s 47B of the NTA. The Court otherwise upheld the decision in Timber Creek.

High Court granted special leave to appeal this decision on 16 February 2018.

29 August 2017

Western Bundjalung People: The Federal Court made a determination that the Western Bundjalung People have non-exclusive native title rights over areas of the far north coast of New South Wales (NSW).

This judgement is significant as Justice Jagot strongly criticised the processes undertaken by the State of NSW. Justice Jagot indicated the claim, which was filed in December 2011, had taken too long to be resolved. Justice Jagot stated it is within the power of the State party to agree to resolve a claim by an applicant without the need for contested litigation and in a manner which is timely, efficient and does not involve disproportionate resources.

7 December 2017

Gebadi v Woosup: The Federal Court confirmed that applicants owe a fiduciary duty to the claim group. The Court held that members of the claim group are entitled to expect that the applicant would act in the best interests of the claim group in exercising any of the functions, powers, responsibilities and discretions conferred upon the applicant.

The Court held that the obligations or duties owed by the applicant to the members of the claim group were [paragraph 102]:

• an obligation to not place themselves in a position where their private or personal interests come into conflict with the interests of the members of the claim group;
• an obligation to not place themselves in a position where their personal interests or duties conflict with duties owed to the claim group;
• an obligation to not pursue and secure a personal benefit; and
• an obligation to not make a profit from their position of trust unless expressly permitted to do so with the informed consent to the claim group.

1 February 2018

Tjiwarl - Full Court Appeal: The Full Court handed down its decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (Tjiwarl), in summary:

• a) The primary judge found that two miscellaneous licences for the purpose of "search for groundwater" granted pursuant to s 91 of the Mining Act 1978 (WA) (Mining Act) and Regulation 42B(ia) of the Mining Regulations 1981 (WA) were invalid future acts. The Full Court allowed the State's appeal because if found that, contra the primary judge, the licences were valid future acts by operation of s 24HA of the NTA.
• b) The primary judge found that exploration licence E57/676 granted under s 59 of the Mining Act was not a "lease" for the purposes of the NTA and as a result, s 47B(1) could apply to the area of land covered by E57/676 so as to disregard any prior extinguishment in the area. This issue is also the subject of appeal in Helicopter Tjungarrayi & Ors v State of Western Australia and Bobby West & Anor v State of Western Australia (Ngurra Kayanta). The Full Court allowed the State's appeal, finding that E57/676 (being an exploration licence) is a lease for the purposes of the NTA and thus the area which it covers cannot be subject to s 47B of the NTA.
• c) The Full Court allowed an appeal by BHP Billiton appeal, affirming the previous Full Court decision in The Lardil Peoples v Queensland [2001] FCA 414 that failure to comply with the future act provisions of the NTA (with the exception of Subdivision P) does not affect the validity of the relevant interest.
• d) The Full Court also confirmed that s 24HA of the NTA is the applicable future act provision applying to the grant of miscellaneous licences to search for groundwater.

16 February 2018

Timber Creek - special leave to appeal to the High Court: Three parties sought special leave to appeal the Timber Creek decision to the High Court. The Court constituted by Justices Nettle and Gordon granted special leave to appeal in these applications on all grounds.

20 December 2018

Bindunbur Appeal: In May 2018, the Federal Court determined that the Bindunbur and Jabirr Jabirr people hold native title over the Dampier Peninsula. The Goolarabooloo people appealed the decision on the grounds that their native title rights and interests in the determination area should have been recognised. The Bindunbur and Jabirr Jabirr/Ngumbarl also appealed, claiming that the determination should have recognised their exclusive possession over beaches and waterways, where there was no existing right of public access.

On 20 December 2018, the Full Federal Court dismissed the Goolarabooloo people’s appeal and upheld the Bindunbur and Jabbir Jabbir/Ngumbarl native title holder’s appeal. The Court held that no evidence had been presented that pre-existing rights of public access existed across areas of unallocated Crown land within the determination area, including beaches, waterways and riverbanks where exclusive possession applied. The State of Western Australia and Commonwealth of Australia sought special leave to appeal in the High Court, and on June 21, 2019, special leave was granted. It is expected that the case will be heard in the High Court later this year or early next year.

13 March 2019

Timber Creek - High Court Decision: The High Court ruled that 50 per cent of equivalent freehold value is an appropriate starting point for compensation for non-exclusive native title rights. The Court rejected the use of the term 'solatium' in native title compensation claims, and held that the term cultural loss was more appropriate. The Court also acknowledged that assessing cultural loss was an intuitive process and it would vary according to the compensable act, the identity of the native title holders, the native title holders connection to land and waters and the effect of the compensable acts on that connection.

20 May 2019

Quall Appeal - The Full Federal Court found that a representative body cannot delegate its certification function under section 203BE(1)(b) of the Native Title Act 1993 (NTA), overturning the decision of the first instance judge, that section 203BK(1) NTA is expressed on sufficiently broad enough terms to encompass delegation of functions to the CEO. Section 203BK(1) NTA states that, "A Representative Body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions."

The function of Native Title Representative Bodies (NTRB) is described in section 203B of the Native Title Act 1993 (Cth) (NTA). In general, NTRBs:

• help claimants to prepare anthropological and historical evidence in support of their claim applications
• provide claimants with legal representation in, as an example, negotiations for an Indigenous Land Use Agreement
• act as mediators between the claimants and the State Government

For the purposes of claim management, WA is divided into six claim regions. Each has a federally funded statutory body to help Aboriginal people in the preparation of their Native Title claim applications.

NTRBs represent most Native Title claims that fall within their designated regions. However, claimants can choose independent representation.

See the Map of representative bodies in Native Title for detail.

Native Title Representative Bodies in Western Australia

NTRBs are appointed by the Department of the Prime Minister and Cabinet to cover a region in Australia. These regions in WA are as follows:

• Kimberley region - Kimberley Land Council
• Pilbara region - Yamatji Marlpa Aboriginal Corporation
• Geraldton region - Yamatji Marlpa Aboriginal Corporation
• Central Desert region - Central Desert Native Title Services
• Goldfields region - Grant Thornton Australia is the interim provider of Native Title services in the Goldfields
• South West region - South West Aboriginal Land and Sea Council Aboriginal Corporation.

Prescribed Bodies Corporate

When a determination of Native Title is made, the Native Title Act 1993 (Cth) (NTA) requires the Native Title holders to establish a prescribed body corporate ꟷ also known as a Registered Native Title body Corporate (RNTBC) ꟷ to hold in trust, or act as agent, to manage their Native Title rights and interests.
It is the first point of contact for those wishing to undertake activities on the determined land.
This body can represent the Native Title holders in any future act matter or assist with the negotiation of an Indigenous Land Use Agreement.
Prescribed body corporates are regulated by the following legislation:

• Native Title Act 1993 (Cth)
• Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
• Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Prescribed Bodies Corporate in Western Australia

For a comprehensive listing of PBCs and profile information, visit the AIATSIS Native Title Bodies Corporate website or the Office of the Registrar of Indigenous Corporations website.