Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia [2019] FCA 2119

South East of Broome, in the Gingerah region in the local government area of Broome.

The area covers roughly 2,191.71 square kilometres, between the Edgar Ranges and Broome.

Not registered as of 15 December 2021

Between: Mervyn Mulardy, Trent Marshall, Shirley Spratt, Rene Hopiga, Del Roe, Brendan Charles, Linda Nardea, Deborah Shadforth, Thomas Edgar, Neil McKenzie, Roslyn Dixon, Dianne Appleby (Applicant) and State of Western Australia, Roe Oil (Canning) Pty Limited (correction: Roc Oil Pty Limited) and Buru Energy Limited (Respondents)

Judge: Banks-Smith J

Determination

Native title exists in all of the determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Native title is held by persons who are:

• members of the Karajarri people by cognate descent, or identify as Karajarri and accepted as such by the Karajarri;
  
• members of the Yawuru people who are descendants of Nyobing Babere and others named in Schedule 4. This also includes those grown up by Yawuru people as members of the Yawuru community according to traditional customs, and other Aboriginal persons who possess high cultural knowledge and responsibilities in regards to the claim area and were born in or have a long-term physical relationship with the area, who self-identify as Yawuru and are generally accepted by the community as Yawuru.
  
• and Nyikina people who are descendants of Karlmurl and others named in Schedule 4.
  

Exclusive native title rights and interests over all of the determination area

This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule 4, as against all others.

For clarity, the rights in relation to water in any watercourse, wetland
or underground water
source as defined in the Rights in Water and Irrigation Act 1914 (WA) is the non-exclusive right to take, use and enjoy that water.

There are no native title rights in the determination area in relation to:

• minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
• except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).
  

Other rights and interests in the determination area include:

The following exploration licences granted under the Mining Act 1978 (WA):

• Exploration Licence E04/2540 granted 3 October 2019;
  
• Exploration Licence E04/2554 granted on 3 October 2019.

The following Tenement's granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA):

• Exploration Permit EP 391 R3 granted on 7 January 2015;
• Petroleum Product Licence L 20 granted on 2 July 2015;
• Petroleum Product Licence L 21 granted on 2 July 2015;
• Petroleum Special Prospecting Authority SPA 29 AO granted 8 November 2018.
  

Also, the Pipeline PL 109 granted 4 June 2015 under the Petroleum Pipelines Act 1969 (WA).

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

The Indigenous Land and Sea Corporation is the prescribed body corporate to perform the functions required under the Native Title Act 1993 (Cth).

Full text of the determination is available via the URL link above.

Background

On 24 October 2012, a native title determination application was filed on
behalf of the Karajarri People over the area of four production
licence
applications made under the Petroleum and Geothermal Energy Resources Act 1967 (WA). The Karajarri Yanja application was in the north-eastern corner
of an area of unallocated Crown land that lay between the
Karajarri determined
areas to the south, the Nyikina Mangala determined area to the east and the
Rubibi determined area to the north
and west [6].

The
Birriman‑gan application was filed on 22 November 2018 on behalf of
the Karajarri people, the Nyikina people and the Yawuru
people. The area
covered by the Birriman‑gan application was the area of unallocated Crown
land to the south and west of the
Karajarri Yanja application [7].

The Birriman-gan application came after consultations with Traditional Owners over a period of several years, and an authorisation meeting in 2018 (Kimberley Land Council, 2019).

On
24 May 2019 the Court made an order combining the Karajarri Yanja
application with the Birriman‑gan application, with both
applications
continuing in and under the Birriman‑gan application. The
Birriman‑gan application was amended by consent
to give effect to the
combination order, and was filed on 6 June 2019 [8].

Karajarri Traditional Owner Mervyn Mulardy said that collaboration
between the three groups who make up the applicants is important: "We
each have very important cultural ties to this country. We don't have
borders, our stories about country overlap each other and are shared"
(Kimberley Land Council, 2019).

Details of Judgment

Banks-Smith J included the applicants summary of their connection to country:

"In the Birriman‑gan Determination area, the Dreaming is called
bugarigara. Yawuru, Karajarri and Nyikina peoples hold a common belief
in bugarigara - the term is the same in each language - and there is
documented evidence of this common belief in specific bugarigara.


At sovereignty, all three language groups adhered to a common belief in
bugarigara. This belief in bugarigara provides the fundamental
basis to other facets of traditional society which express themselves in the
Birriman‑gan Determination
area. The bugarigara identified within
the Determination Area journeys through the named site of birimanngany
(from which the claim name is derived) which infuses the Yawuru, Karajarri and
Nyikina languages into the country of the Determination
area" [21].

The court noted that the State had played an active role in negotiations. The State was satisfied that the material provided "is sufficient to evidence the maintenance
of connection according to traditional laws and customs
in the determination
area" [28].

The court found that the requirements of s 87(1)(c) of the Native Title Act 1993 (Cth) were met for the following reasons:

• the period specified in the notice given
  under s 66 of the Native Title Act has ended: 87(1);
• an agreement was reached between the parties on the terms of an order of the
  Federal Court in relation to the proceedings and the
  terms of the agreement, in
  writing signed by or on behalf of the parties, were filed with the Court: s 87(1)(c) and (b);
• the Court was satisfied that an order in, or consistent with, those terms
  would be within the power of the Court s 87(1)(c);
• it appears appropriate to the Court to make the orders sought: s 87(1A) and s 87(2) [22].
  

Banks-Smith J noted that "[t]he continued work and
determination to pursue
and finalise this claim is to be admired. This is an important cultural and
legal milestone" [34].

Native title exists in the entire determination area.

Related Entries

References

Glossary