FEDERAL COURT OF AUSTRALIA

 

Clarrie Smith v State of Western Australia [2000] FCA 1249

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CLARRIE SMITH AND OTHERS ON BEHALF OF THE NHARNUWANGGA, WAJARRI AND NGARLA PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS

 

WAG 72, 73, 74 & 75 of 1998

 

 

MADGWICK J

3 OCTOBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 72, 73, 74 and 75 of 1998

 

BETWEEN:	CLARRIE SMITH AND OTHERS ON BEHALF OF THE NHARNUWANGGA, WAJARRI AND NGARLA PEOPLE APPLICANT
AND:	THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT   SHIRE OF MEEKATHARRA SECOND RESPONDENT   BG, LW & MDE BAIN, AG & EA BAIN, LW BAIN & DE MILES, DA O'DWYER & MDE, LE & BJ BAIN & CJ MACLEOD, DAWVILLE PTY LTD, JE & RE DAY, KH ELLIOT, ER & SV FORRESTER, J & D GARRITY & F DANIEL, CJ & SM GRAHAM, PG HALL, DR HAMMARQUIST, D, MA & RJ HEWETT, BM MAGUIRE & TUREE PASTORAL COMPANY PTY LTD, MT AUGUSTRUS STATION (1980) PTY LTD, BA & PM PANIZZA, PASTORALISTS & GRAZIERS ASSOCIATION OF WA INC, TM & GM PENS, DP STEVENS & ME ROACH, SUNBLADE HOLDINGS PTY LTD, JP TENNANT, GJ & HE WILLIAMS, CT WOODS, CF & CT WRIGHT THIRD RESPONDENTS   ARCHAEAN GOLD NL, ARIMCO MINING PTY LTD, COLIN ROSS ATKINS, AUGUST VENTURES PTY LTD, BARRACK MINES LTD, CAMBRIAN RESOURCES NL, GRANGE RESOURCES NL, GRANTS PATCH MINING LTD, HORSHOE GOLD MINE PTY LTD, LACHLAN RESOURCES NL, LEGENDRE & CAMBRIAN RESOURCES, MIM EXPLORATION PTY LTD, MINES AND RESOURCES AUSTRALIA PTY LTD, NORMANDY INDUSTRIAL MINERALS LTD, RGC EXPLORATION PTY LTD, PEKO EXPLORATION LTD, PERILYA MINES NL, PLUTONIC (BAXTER) PTY LTD, PLUTONIC OPERATIONS LTD, RENISON LTD, ST BARBARA MINES LTD, SWAN GOLD NL, TROY RESOURCES NL, WHIM CREEK CONSOLIDATED NL, ZYGOT LTD FOURTH RESPONDENTS   TELSTRA CORPORATION LIMITED FIFTH RESPONDENT VAGETA PTY LTD SEVENTH RESPONDENT   CMS GAS TRANSMISSION OF AUSTRALIA EIGHTH RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	29 AUGUST 2000
WHERE MADE:	SYDNEY

 

 

CORRIGENDUM

 

His Honours Reasons for Decision dated 29 August 2000, are to be amended as follows:

 

On page 10, paragraph 28, line 2, after the words "...I am bound by the rulings of the Full Court of this Court in" the following needs to be inserted "Western Australia v Ward".

 

Associate:

Date: 3 October 2000

FEDERAL COURT OF AUSTRALIA

 

Clarrie Smith v State of Western Australia [2000] FCA 1249

 

NATIVE TITLE - innovative settlement - nature of court's discretion to make orders in settlement of native title cases.

 

 

 

 

Native Title Act 1993 (Cth) ss 87(1), 87(2)

 

Oshlack v Richmond River Council (1998) 152 CLR 83 referred to

Western Australia v Ward & Ors (2000) 170 ALR 159 cited

The State of Western Australia v Ward [2000] FCA 611 cited

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CLARRIE SMITH AND OTHERS ON BEHALF OF THE NHARNUWANGGA, WAJARRI AND NGARLA PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS

 

WAG 72, 73, 74 & 75 of 1998

 

 

MADGWICK J

29 AUGUST 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 72, 73, 74 and 75 of 1998

 

BETWEEN:	CLARRIE SMITH AND OTHERS ON BEHALF OF THE NHARNUWANGGA, WAJARRI AND NGARLA PEOPLE APPLICANT
AND:	THE STATE OF WESTERN AUSTRALIA FIRST RESPONDENT   SHIRE OF MEEKATHARRA SECOND RESPONDENT   BG, LW & MDE BAIN, AG & EA BAIN, LW BAIN & DE MILES, DA O'DWYER & MDE, LE & BJ BAIN & CJ MACLEOD, DAWVILLE PTY LTD, JE & RE DAY, KH ELLIOT, ER & SV FORRESTER, J & D GARRITY & F DANIEL, CJ & SM GRAHAM, PG HALL, DR HAMMARQUIST, D, MA & RJ HEWETT, BM MAGUIRE & TUREE PASTORAL COMPANY PTY LTD, MT AUGUSTRUS STATION (1980) PTY LTD, BA & PM PANIZZA, PASTORALISTS & GRAZIERS ASSOCIATION OF WA INC, TM & GM PENS, DP STEVENS & ME ROACH, SUNBLADE HOLDINGS PTY LTD, JP TENNANT, GJ & HE WILLIAMS, CT WOODS, CF & CT WRIGHT THIRD RESPONDENTS   ARCHAEAN GOLD NL, ARIMCO MINING PTY LTD, COLIN ROSS ATKINS, AUGUST VENTURES PTY LTD, BARRACK MINES LTD, CAMBRIAN RESOURCES NL, GRANGE RESOURCES NL, GRANTS PATCH MINING LTD, HORSHOE GOLD MINE PTY LTD, LACHLAN RESOURCES NL, LEGENDRE & CAMBRIAN RESOURCES, MIM EXPLORATION PTY LTD, MINES AND RESOURCES AUSTRALIA PTY LTD, NORMANDY INDUSTRIAL MINERALS LTD, RGC EXPLORATION PTY LTD, PEKO EXPLORATION LTD, PERILYA MINES NL, PLUTONIC (BAXTER) PTY LTD, PLUTONIC OPERATIONS LTD, RENISON LTD, ST BARBARA MINES LTD, SWAN GOLD NL, TROY RESOURCES NL, WHIM CREEK CONSOLIDATED NL, ZYGOT LTD FOURTH RESPONDENTS   TELSTRA CORPORATION LIMITED FIFTH RESPONDENT VAGETA PTY LTD SEVENTH RESPONDENT   CMS GAS TRANSMISSION OF AUSTRALIA EIGHTH RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	29 AUGUST 2000
WHERE MADE:	PERTH

 

 

THE COURT ORDERS THAT:

 

By consent:

 

1.                  The Applicants have leave to amend the application in the terms of the Minute of Proposed Amended Application (Attachment D) and that the minute stand as the amended application in these proceedings.

2.                  2.1 Native title exists in the "determination area" save, subject to paragraph 2.4, for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by blue outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the applicants in the application lodged with the National Native Title Tribunal referred to the Court by the Tribunal, as that application has been amended from time to time.

2.2              Native title existing in the determination area is held by the community of Nharnuwangga, Wajarri and Ngarlawangga people, hereafter described as the common law holders of native title.

2.3              Subject to paragraphs 2.4, 2.5, 2.6 and 2.7 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows:

(a)                    the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the land;

(b)                   the right to hunt, fish and gather (including to gather ochre) for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional laws and customs; and

(c)                    the right to have access to and camp on the balance of the determination area in order to:

(i)                      exercise the rights set out in (b) above;

(ii)                     travel through; and

(iii)                   visit and care for places which are of cultural or spiritual importance.

2.4              The native title rights and interests described in paragraph 2.3 above subsist in the land comprising Yulga Jinna Aboriginal Community being that land of 25.0007 hectares in extent as illustrated in diagram number LAWA 1210 dated 14 February 1997 in Western Australia Department of Land Administration file number 634/993, and in Reserve Number 22309 known as Peak Hill Reserve, and in Pastoral Lease Number 3114/1018, North West Division, Teano District, Teano Location 22, known as Mulgul Station.

2.5              The nature and extent of other interests in relation to the determination area are the interests created by the C