Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (Jabirr Jabirr/Ngumbarl)

Mid Dampier Peninsula, Kimberley

Between: Rita Augustine on behalf of the Jabirr Jabirr Native Title Claim Group (and others named in the Schedule) (Applicant) and State of Western Australia (and others named in the Schedule) (Respondents)

Judge: North J

Where made: Beagle Bay, Western Australia

Determination

Native title exists in parts of the determination area

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

Native title exists in all parts of the Determination Area other than those areas described in Schedule 2 Part 2, attached below under documents.

Native title holders

The Jabirr Jabirr/Ngumbarl people (described in Schedule 3 of the determination available at the url link above).

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

This
is the right to possession, occupation, use, and enjoyment of the area,
described in Schedule 4, attached below under documents, to the exclusion
of all others.

Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the parts of the determination area described in Schedule 4.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedule 5 and include the rights to:

• access, remain in, and use that area;
• access and take resources from the area for any purpose;
• protect places, areas, and things of traditional significance in the area.
  

Other rights and interests in the determination area include:

• the rights and interests of those who care for, control and manage specified reserves and the interests of those entitled to access and use these reserves;
• the rights and interests of persons holding leases over areas of the reserves identified;
• the rights and interests of Telstra Corporation Limited and their employees, agents or contractors as specified;
• the rights and interests of holders of mining exploration licences granted under statute;
• the interests of the holders of interests and exemptions granted under statute or any other legislative scheme for the control, management, and exploitation of living resources in the area;
• the rights and interests relating to the Canning-Kimberley Groundwater Area and the Broome Groundwater Area
• rights and interests relating to the Broome Water Reserve
• rights and interests relating to the Buffer Zone M450705
• rights and interests held under valid grants from the Crown;
• rights and interests held due to the force and operation of State or Commonwealth statute;
• the rights and interests of the Australian Maritime Safety Authority;
• the rights and interests of the Australian Fisheries Management Authority;
• the rights and interests of the public to fish and navigate;
• the right to access the determination area by persons acting on behalf of the State, Commonwealth, or any local government authority;
• the rights of public access to and enjoyment of specified areas.

See
Schedule 6 for further information about
the non-native title rights and interests.

The native title rights and interests are subject to the:

• traditional laws and customs of the native title holders; and
• laws of the State and the Commonwealth 

There are no native title rights and interests in the native title areas in relation to:

• 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) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA)

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 is the prescribed body corporate. They perform the functions required under the Native Title Act 1993 (Cth) and hold the native title in trust for the Jabirr Jabirr/Ngumbarl people.

Background

This judgment was delivered in Beagle Bay. It gave final orders in the applications for determinations of native title brought by the Bindunbur people, the Jabirr Jabirr people and the Goolarabooloo people. The original applications were made in 2013. The hearing of those applications commenced in September 2015 and the court travelled throughout the Mid Dampier Peninsula hearing evidence. North J delivered a judgment on 23 November 2017, Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367, that found that the Jabirr Jabirr and Bindunbur people were entitled to determinations of native title. He found that the Goolarabooloo people's history did not give rise to native title rights in the application area. The Goolarabooloo proceeding was dismissed in this determination. 

Frank Parriman, Jabirr Jabirr Traditional Owner and native title holder, said in response to the determination:

"What a great result, a vindication to all. For some of us it has been a long time coming, the highs and the lows, the expectations have now all come to fruition for the Bindunbur and Jabirr Jabirr/Ngumbarl native title claim groups and people of the Dampier Peninsula...It is incumbent on us not to make this work for all of us, for every group on the peninsula, I say let's not be wasteful of this opportunity but to take the advantage and build a working model which is inclusive, which protects, preserves and grows the true meaning of native title for all in the region." (Kimberley Land Council, 2018)

Native title exists in parts of the determination area.

Related Entries

References

Documents