Last week the Federal Court approved an agreement between the Ngadju People and the State of Western Australia, thus bringing an end to one of Australia’s longest running native title claims. This consent determination was made over the final area (approximately 4%) of the original native title application: Graham on behalf of the Ngadju People (Ngadju Part B) v State of Western Australia [2017] FCA 795 (“Ngadju Part B Determination”).

The land, approximately half way between Kalgoorlie and Norseman, was excluded from the Ngadju Part A Determination (approved by the Full Federal Court in April 2016) on the basis that it overlapped with two different native title applications (since dismissed).

The Ngadju Part B Determination brings the Ngadju native title litigation to a close, over 20 years after the Ngadju People first commenced proceedings in 1995. The Ngadju Part A Determination was approved by the Federal Court in April 2016 but only after protracted litigation at the level of the Federal Court, the Full Court of the Federal Court and the High Court of Australia.

In making the Ngadju Part B Determination the judge observed that the protracted litigation is evidence of the value of the procedure under the Native Title Act (NTA) for the making of consent determinations.

The decision

The Full Court approved the Ngadju Part B Determination which gives native title holders non-exclusive rights to, among other things:

  • hunt, fish, gather and use the natural resources of the area;
  • live, camp, erect shelters and other structures and travel over the area;
  • have access to, maintain and protect places and areas of importance on or in the land and waters, including dreaming sites, waterholes and ceremony grounds; and engage in cultural activities, over the Ngadju Part B Determination Area.

The determination also gives exclusive rights over certain areas.

Impact on energy and resources proponents

The Ngadju Part B Determination recognises certain existing mining, pastoral and other interests in the area and specifies the relationship between the Ngadju’s native title rights and interests, and those other interests. In other words, existing validly granted titles continue unaffected.

Ngadju Aboriginal Corporation Conservation Coordinator, Les Schultz, was quoted, saying “this made them the largest private land owners in southern Australia and key stakeholders in the region”. Whilst the first statement is not legally accurate, it is substantially correct from a practical perspective. The Ngadju People will have a very significant say in the future of resource exploration and exploitation in the area (but it is not private land as defined by the Mining Act).

Any new grants of tenure within the Ngadju Part B Determination Area will be subject to the future act provisions under the NTA.