BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671

Between:

This claim consists of multiple applications that were heard together by the Federal Court on behalf of the Birriliburu People.

WAD6284/1998
BP (deceased), Kenny Farmer, Margie Jackman, Dusty Stevens, Colin Richards, Musso Morrison, Johnnie Ray, Bruce Richards, Geoffrey Stewart, Frankie Wongowol and Andy Campbell (APPLICANTS) and
State of Western Australia (RESPONDENTS)

WAD108/2008
Slim Williams, Jimmy Morgan, Timmy Paterson, Garry Stevens and BP (Deceased) (APPLICANTS) and
State of Western Australia (RESPONDENTS)

Judge: North J

Where made: Perth

Determination:

Native title exists in the entire determination area. Exclusive native title rights include:
- the rights of possession, occupation, use and enjoyment of the determination area as against the whole world. However, these rights and interests are subject to the laws of the State and Commonwealth, including the common law. The rights are also subject to the traditional laws and customs of the native title holders.

Native title is held by the Birriliburu People.

Non-native title rights and interests that exist in the determination area include:
- minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
- petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Resources Energy Act 1967 (WA); or
- geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
- the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) at the date of this determination is the non-exclusive right to take, use and enjoy that water;
- rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA);
- the right of any person to use (subject to the laws of the State, in particular the Aboriginal Affairs Planning Authority Act 1972 (WA) and Regulations where applicable) any road in the determination area over which, as at the date of this Determination, the public has a right of way according to the common law;
- the interests of Lodestar Minerals Limited in exploration licences;
- the right of an employee or instrumentality of the State, Commonwealth or Local Government Authority to carry out the performance of statutory or common law duties where such access would be permitted over private land; and
- rights under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination any existing public access to and enjoyment of, waterways, beds and banks of foreshores of waterways, stock routes or areas that were public places at the end of 31 December 1993 and the right of any person to use and enjoy subject to laws of the State and the Canning Stock Route.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

The Mungarlu Ngurrarankatja Rirraunkaja RNTBC as the prescribed body corporate, is to perform functions required under the Native title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held on trust for the native title holders.

Background:

The claim is over 66,698 square kilometres of the lands and waters located in the Little Sandy Desert region in the Western Desert, north of Wiluna and west of Warburton in central Western Australia. There are four applications to this claim. The original claim of Birriliburu #1 covered an area of 66,698 kilometres. Two exploration licences applied to this area but were later surrendered and a consent determination was made in Birriliburu People v State of Western Australia [2008] FCA 944. The area of Brilliburu #1 overlapped with the area of Brilliburu #2. Brilliburu #3 was filed and covers an area outside Brilliburu #1 that involves a pastoral lease and a small area of the Canning Stock Route. Brilliburu #4 was then filed to cover the areas within Brilliburu #2 that were previously subject to exploration licences.

The court found the Brilliburu People have commercial rights within the native title determination area provided the right was consistent with the group's traditional laws and customs (National Native Title Tribunal 2017).

Details Judgment

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Birriliburu People in relation to the part of the land and waters covered by the Birriliburu Application's #2 and #4. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth). The Court was satisfied that a determination of native title was within the power of the court.

Related Entries

References

Documents

Glossary