Augustine on behalf of the Jabirr Jabirr/Ngumbarl People and State of Western Australia [2020] FCA 379 ('Jabirr Jabirr/Ngumbarl Part B')

Kimberley

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Rita Augustine, Elizabeth Dixon, Cecilia Djiagween, Paddy Ignatius and Anthony Watson on behalf of the Jabirr Jabirr/Ngumbarl People (Applicant) and

State of Western Australia (First Respondent);

Commonwealth of Australia (Second Respondent);

Shire of Broome (Third Respondent)

Judge: Robertson J

Determination

Native title exists in the entire determination area

It consists of exclusive native title rights and interests. 

Native title holders

Jabirr Jabirr/Ngumbarl people (see Schedule 2 of the determination above at the url link).

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

This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule 1 (attached below under documents) as the portion of Lot 259 on DP 220696 that is wholly within the external boundary of Exploration Licence E04/1624, to the exclusion of all others.

There are no native title rights and interests in:

• gold, silver, other precious metals, precious stones and all other minerals pursuant to the Mining Act 1904 (WA); or
• petroleum as defined in the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA)

Other rights and interests in the determination area include:

• Rights and interests of Telstra Corporation Limited created under the Post and Telgraphy Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and
• Rights of access by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties.
• Rights and interests from Crown grants
• Rights and interests under State or Commonwealth laws including:
• Rights in Water and Irrigation Act 1914 (WA); and
• Aboriginal Communities Act 1979 (WA)
• Rights of access by State, Commonwealth or local government authorities
• Rights and interests under the Canning-Kimberley Groundwater Area.

See Schedule 3 attached below under documents. for further information about the non-native title rights and interests.

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

The Gogolanyngor Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Jabirr Jabirr/Ngumbarl people.

Area where extinguishment is disregarded: section 47B Native Title Act

Section 47B of the Native Title Act (NTA) applies to disregard any prior extinguishment in respect of the whole of the Determination Area.

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

Background

A determination was made on 2 May 2018 by North J in Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCA 854 which included Jabirr Jabirr/Ngumbarl proceedings. However, those proceedings did not include the area of this present determination. North J adjourned part of the proceedings to consider this area at a later date.

This present determination deals with the area that was not included in North J's earlier determination. The determination area is wholly within the boundary of Exploration Licence E04/1624.

Details of Judgment

The applicants and the State of Western Australia agreed that the Court should make a determination on the basis of the findings made by North J in the Jabirr Jabirr/Ngumbarl proceedings. They also agreed that in light of a recent High Court case (Tjungarrayi v Western Australia [2019] HCA 12) s 47B of the NTA applied in relation to the Jabirr Jabirr/Ngumbarl claim area. This case found exploration tenements were not leases in the meaning of s 47B of the NTA. This meant that any prior extinguishment in relation to the whole of the determination area (which fell within the Exploration Licence E04/1624) would be disregarded. 

Robertson J found that it was appropriate that this determination reflect the findings made by North J in his final determination on 2 May 2018. He found that all the issues in the Jabirr Jabirr/Ngumbarl proceeding had been resolved [24]. This determination was reached not because of agreement between the applicant and the State but from the prior rulings made by North J [24]. Consequently, native title was found to exist in all of the determination area.

Native title exists in all of the determination area.

Related Entries

Documents

Glossary