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Nangkiriny v State of Western Australia [2004] FCA 1156 (8 September 2004)
Binomial Name:	Federal Court of Australia
Date:	8 September 2004
Sub Category:	Consent Determination (Native Title Act)
Place:	West Kimberley region
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State/Country:	Western Australia, Australia
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	The area covered by the Native Title Determination Application is all those areas of land and waters in the State of Western Australia described as follows: Starting at the northeast corner of pastoral lease 398/761 and extending generally south westerly along the south eastern boundaries (north western sides of the Great Northern Highway) of that lease to its southeastern corner. Then easterly to the westernmost south west corner of the pastoral lease 3114/604 (Shamrock). Then generally north easterly along the north western boundaries (south eastern sides of the Great Northern Highway) of that lease to a south west corner of pastoral lease 3114/635 (Thangoo). Then easterly and northerly along the boundaries of the lease to Latitude 18.410557 South. Then easterly to the westernmost south western corner of the pastoral lease 3114/844 (Dampier Downs). Then easterly, southerly, again easterly, again southerly, and again easterly along the boundaries of that lease to Longitude 123.380030 East. Then generally southerly, and generally westerly passing through the following co-ordinate positions: Latitude (south) - 18.710093 - 18.732793 - 18.762486 - 18.781612 - 18.793400 - 18.904111 - 19.044947 - 20.090213 - 19.732093 Longitude (east) - 123.367358 - 123.337920 - 123.326057 - 123.326302 - 123.334635 - 123.412903 - 123.421026 - 123.481307 - 121.890109 Then west along the last mentioned line of Latitude to an eastern boundary of pastoral lease 3114/1154 (Anna Plains). Then westerly to Latitude 19.730458 South, Longitude 121.461824 East, then northeasterly to a southern boundary of Reserve 38936 at Longitude 121.614920 East, then easterly, northerly and westerly along boundaries of that Reserve to Longitude 121.614975 East, then northeasterly and westerly passing through the following co-ordinate positions: Latitude (South): - 19.197809 - 19.196344 Longitude (East): - 121.625577 - 121.442371 Then westerly to the Lowest Astronomical Tide at Latitude 19.196054 South. Then generally northwesterly along that lowest astronomical tide to Latitude 18.456532 South. Then south easterly to the westernmost southwest corner of pastoral lease 3114/635 (Thangoo). Then easterly, southerly, and again easterly along the boundaries of that lease to the starting point. Areas excluded from the Determination Area in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23C of the Native Title Act 1993 and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) are those areas where previous exclusive possession acts have occurred, and native title has been extinguished in relation to the whole of these areas, and no claim to these areas can be made. The area covered by this determination is identified as Determination Area B of the above claim. It is described in paragraph 1 of the determination (see the Summary Information above).
Legal Status:	Registered on the National Native Title Register (
Legal Reference:	Federal Court No: WG 6100/98; Native Title Tribun
Alternative Names:	Karajarri People #2 Determination
Subject Matter:	Native Title \| Native Title - Extinguishment \| Fishing \| Pastoral Activities \| Water \| Mining and Minerals \| Recognition of Native Title or Traditional Ownership \| Native Title \|
URL:	http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/1156.html
Summary Information:
Nangkiriny v State of Western Australia [2002] FCA 1156 Between: John Dudu Nangkiriny, Alec McKay, Edna Hopiga, Amy King, Donald Grey, Norman Munro, Michael Everett, Cissy Everett, Steven Possum, Wittidong Mulardy, Nita Marshall, Mervin Mulardy Snr, Barney Dean, Elsie White, Flora Dean and Doris Edgar on behalf of the Karajarri People (APPLICANTS) AND State of Western Australia, Commonwealth of Australia, Shire of Broome, Darcy Hunter, Misha Peters, Wooda Davies, Ada Stewart, Winnie Coppin and Alma Grey on behalf of the Nyangumarta People, Anna Plains Cattle Co. Pty. Ltd., Western Agricultural Industries Pty. Ltd., Western Australian Fishing Industry Council (Inc.), Telstra Corporation Limited, Shell Development Australia Pty. Ltd., Australian Sea Pearls Pty. Ltd., Broome Pearls Pty. Ltd. And the Roman Catholic Bishop of Broome (RESPONDENTS) Judge: North J Where: Bidyadanga, Western Australia Determination: Native title exists in parts of the determination area. The area covered by the determination is identified as 'Determination Area B' and is described at paragraph 1 of the Determination, being Nita Downs Station and Shamrock Station and part of Anna Plains Station pastoral leases and land reserves in the area for: a foreshore; the Kimberley De Grey Stock Route; geodatic stations; a school site; and for conservation of flora and fauna, a strip of unallocated crown land and two optical fibre regenerator sites. Native title does not exist in those parts of Determination Area B identified in paragraph 6, being a strip of unallocated crown land and the Nita and Injudinah Optical Fibre Regenerator Sites. Native title exists in the remaining parts of Determination Area B, as identified in paragraph 5 of the Determination. Native title is held by the Karajarri People, who are described in the Third Schedule attached to the Determination, and is held in trust by the Karajarri Traditional Lands Association (Aboriginal Corporation) as the prescribed body corporate. The native title rights and interests held by the Karajarri, over the various sections of the area, are identified in paragraphs 5 - 10 of the Determination, as follows: '5. Subject to paragraphs 6, 7, 8, 9 and 10: (1) the nature and extent of the native title rights and interests in Determination Area B held by the Karajarri people are: (a) with respect to pastoral leases 398/770, 3114/789 and 398/682 together comprising nita downs station, pastoral lease 3114/604 being shamrock station, and portion of pastoral lease 3114/1154 being anna plains station, non-exclusive rights to use and enjoy the land and waters as follows: (i) the right to enter and remain on the land and waters; (ii) the right to camp and erect temporary shelters; (iii) the right to take fauna and flora from the land and waters; (iv) the right to take other natural resources of the land such as ochre, stones, soils, wood and resin; (v) the right to take the waters including flowing and subterranean waters; (vi) the right to engage in ritual and ceremony; and (vii) the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the Karajarri people. (b) with respect to reserve 9697 for the purpose of the Kimberley De Grey Stock Route, reserves 32602 to 32608 for the purposes of geodetic stations, reserve 36473 for the purpose of school site, that part of reserve 39139 for the purpose of the foreshore which was not covered by the grant of special lease 3116/5247, that part of reserve 35918 for the purpose of conservation of flora and fauna which was included in reserve 35918 by government gazette notice on 20 December 1994 pursuant to the Reserves Act (No.2) 199 (WA), and the areas of unallocated crown land previously the subject of reserves 1519 to 1527 for the purposes of watering places, all of which areas are hatched in red on the plan attached to the first schedule, non-exclusive rights to use and enjoy the land and waters as follows: (i) the right to enter and remain on the land and waters; (ii) the right to camp and erect temporary shelters; (iii) the right to take fauna and flora from the land and waters; (iv) the right to take other natural resources of the land such as ochre, stones, soils, wood and resin; (v) the right to take the waters including flowing and subterranean waters; (vi) the right to engage in ritual and ceremony; and (vii) the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the karajarri people. (c) with respect to the area of the land and waters between the mean high water mark and the lowest astronomical tide, and any other tidal waters, non-exclusive rights to use and enjoy the land and waters as follows: (i) the right of access to the land and waters; (ii) the right to take fauna, flora, fish and other traditional resources; (iii) the right to take the waters including flowing and subterranean waters; (iv) the right to engage in ritual and ceremony; and (v) the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the karajarri people. (2) The native title rights and interests set out in sub-paragraphs (1)(a), (b) and (c) are exercisable in accordance with the traditional laws and customs of the Karajarri people for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes). (3) The native title rights and interests set out in sub-paragraphs (1)(a), (b) and (c) do not confer possession, occupation, use and enjoyment on the Karajarri people to the exclusion of all others.' Other (non-native title) rights and interests recognised in the area are identified in the Second Schedule of the Determination. These include: pastoral lease interests, including 'the right to use and enjoy the waters and the flowing and subterranean waters which have their source in, or pass through, Determination Area B'; interests for the 'care, control and management' of the reserves within the determination area; mining tenement interests; fishing interests; public rights to 'access and enjoy' areas such as beaches, waterways and stock routes, and to fish and navigate in tidal waters; and Telstra's telecommunications interests.
Detailed Information:
Background information prepared by the National Native Title Tribunal describes the native title process leading to this determination: 'The Karajarri People's pursuit of legal recognition of their native title rights began in 1996 when they lodged an application with the National Native Title Tribunal over a portion, 3,950 sq km, of the total area they eventually claimed in the Kimberley region (31,219 sq km). The following year they lodged another application over a further 23, 490 sq km and in 1999 they lodged a third application over the remainder of the area. The three applications were combined in early 2000. The claimed area stretches from the south Kimberley coastline into the Great Sandy Desert.' 'The Native Title Tribunal began providing the parties with mediation assistance in 1996. In May 1999 mediation ceased and the matter went to trial. The hearing commenced in the Broome Courthouse on 20 June 2000, and proceeded until 22 July 2000, with many of the sittings taking place in out-back locations. In September 2000 the Federal Court asked the Tribunal to further explore the scope for mediation with the parties to resolve all or part of the proceedings.' ('Karajarri native title determination Part B Background'). A consent determination was reached that recognised the Karajarri People's native title rights over 24,725 square kilometres of the claim area (see the consent determination Nangkiriny v State of Western Australia [2002] FCA 660 (12 February 2004)). The consent determination handed down on 8 September 2004 covers the remaining 5,647 square kilometres of the original claim area. In this second determination, the parties agreed that native title exists over parts of the area, as outlined in the Summary information above. The areas of land subject to this determination were dealt with separately to the rest of the claim area as it included pastoral lease land and the effect of these leases on native title were not known at the time of the first Karajarri determination. The High Court decision in Western Australia v Ward clarified that the grant of a pastoral lease in Western Australia extinguishes the native title right to control access to or use of the land and does not give exclusive possession to the pastoral lease holder but their rights to carry on their business prevail over any native title rights. ('Karajarri native title determination Part B Background'). In deciding whether the terms of the consent determination sought by the parties was appropriate, Justice North noted one issue of 'concern' in his Reasons For Judgement: the lack of resources of the Karajarri Traditional Lands Association, which is the nominated prescribed body corporate (PBC) to hold the native title rights of the Karajarri people in trust. However, North J accepted the argument that no party wished the consent determination to be refused on those grounds, although he noted: 'It can only be hoped that the goodwill which has led to the successful mediation of the application will be harnessed in an effort to ensure the proper functioning of the Karajarri Traditional Lands Association. It would be an absurd outcome if, after the expenditure of such large sums to reach a determination of native title, the proper utilisation of the land was hampered because of lack of a relatively small expenditure for the administration of the PBC.' North J was satisfied that the Court had the power to make the determination and that the agreement was appropriate.