Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claims Groups v State of Western Australia [2020] FCA 1702

Dampier Peninsula, Kimberley Region

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

Warrwa Mawadjala Gadjidgar (WAD 33/2019) and (WAD 16/2019)

WAD 33/2019:

Between: Timothy Carter, Patricia Juboy, Debra Ann Maher, Stephen Hunter, Thomas Williams, Patrick Lawson, Lawrence Tataya, Nathan Lennard, Gail Williams, Barry Lennard, Herbert Marshall, Elaine Laraia (Applicant) and State of Western Australia, the Commonwealth of Australia, Kimberley Land Council, Callum Hugh Maclachlan, Jock Hugh Maclachlan, Napier Corporation Pty Ltd, Yeeda Station Pty Ltd, Telstra Corporation Ltd (Respondent)

Judge: Banks-Smith J

Where made: May River Crossing, 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 holders

The native title holders are the Aboriginal persons who are the biological or adopted descendants of the apical ancestors (Topsy Mouqudjala, Gudayi and Bobby Ah Choo, and Nani), or are recognised by those descendants as having traditional rights and interests in the area. Also, Tommy May (Ngarralja) who is a named custodian for the area and is recognised by the native title holders to hold specific, non-transferable rights and interests in the area. 

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

This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule Three, to the exclusion of all others.

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

• minerals as defined in the Mining Act 1978 (WA); 
• petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1936 (WA); or
• water captured or controlled by the holders of the Other Interests. 

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

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

• have access to, remain in and use that part; 
• access and take for any purpose the resources of that part; and
• protect places, areas and objects of traditional significance of that part. 

Other rights and interests in the determination area include:

• those who have pastoral leases include responsibilities and obligations to adopt and exercise best practice management of land and resources within the determination area; 
• those who have the care, control and management of listed reserves within the determination area; 
• persons having the care, control and management of Gibb River Road from time to time; 
• the holders of an Exploration licence, General Purpose Lease, Mining Lease, Miscellaneous Licence or Retention Licence granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA);
• the interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and/or the Petroleum Pipelines Act 1969 (WA);
• the holders of those petroleum interests relating to exploration, production and retention; 
• the rights and interests of Telstra Corporation Limited to inspect land, install, occupy and operate telecommunication facilities and to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities; 
• lawful rights and interests by reason of laws of the State or of the Commonwealth; 
• the rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth); 
• common law rights and interests of the members of the public including the right to fish, navigate and use any road in the determination area; 
• the international right of innocent passage through the determination area; 
• the right to access the determination area by an employee, agent or instrument of the State, the Commonwealth or any local government authority as required by their employment; 
• the right of any existing public access to and enjoyment of waterways, bed and banks of foreshores of waterways, coastal waters, beaches and areas that were public places at the end of 31 December 1993. 

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

The Warrwa 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 in trust for the those native title holders listed above. 

WAD 16/2019:

Between: Timothy Carter, Patricia Juboy, Debra Ann Maher, Lawrence Tataya, Herbett Marshall, Barry Lennard, Gail Williams, Nathan Lennard, Elaine Laraia, Patrick Lawson, Thomas Williams, Stephen Hunter (Applicant) and State of Western Australia, Commonwealth of Australia, Jock Hugh Maclachlan (Respondent)

Judge: Banks-Smith J

Where made: May River Crossing, 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 Five, attached below under documents. 

Native title holders

The native title holders are the Aboriginal persons who are the biological or adopted descendants of the apical ancestors (Topsy Mouqudjala, Gudayi and Bobby Ah Choo, and Nani), or are recognised by those descendants as having traditional rights and interests in the area. Also, Tommy May (Ngarralja) who is a named custodian for the area and is recognised by the native title holders to hold specific, non-transferable rights and interests in the area. 

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

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule Three to the exclusion of all others.

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

• minerals as defined in the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1936 (WA); or 
• water captured or controlled by the holders of other interests in the area. 

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

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

• to access to, remain in and use that part;
• to access and take for any purpose the resources on that part; and
• to protect places, areas and objects of traditional significance on that part.

Other rights and interests in the determination area include:

• those who have pastoral leases include responsibilities and obligations to adopt and exercise best practice management of land and resources within the determination area;
• those who have the care, control and management of Reserves 01184, 12474 and 21474;
• the interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and/or the Petroleum Pipelines Act 1969 (WA); 
• the rights and interests of the holders from time to time of those petroleum interests relating to exploration, production and retention; 
• the rights and interests of Telstra Corporation Limited to inspect land, install, occupy and operate telecommunication facilitates and to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities;
• lawful rights and interests granted by the State or Commonwealth;
• any lawful rights and interests held by reason of laws of the State or of the Commonwealth; 
• the rights and interests of the Australian Fisheries Management Authority in relation to plans of management;
• the public's common law rights and interests including the rights to fish, navigate and use any road in the determination area;
• the international right of innocent passage through the determination area
• access to the determination area by an employee, agent or instrument of the State, the Commonwealth or any local government authority as required by their employment. 
• existing public access to and enjoyment of waterways, bed and banks of foreshores of waterways, coastal waters, beaches and areas that were public places at the end of 31 December 1993. 

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

The Warrwa 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 those native title holders listed in Schedule Eight of the determination. 

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

Background

The Warrwa Combined Application is the combination of two native title applications made by the Warrwa People in 2010 and 2012 [16]. The applications were amended and combined in 2014 [19]. The proceeding was heard together with the Warrwa Mawadjala Gadjidgar claim. The Warrwa Mawadjala Gadjidgar claim group filed their application for this determination of native title on 7 April 2011 [9].

Judge Banks-Smith determined the differences between the two claim groups to be 'inconsequential' [2]. Further, the land and waters subject to the two claims are in the same area (Warrwa Core Country), making it appropriate to hear the applications together [3].

Details of Judgment

The Applicant provided an anthropological report in relation to Warrwa Core Country which included genealogical charts and a detailed site map [34]. Her Honour adopted the joint submissions of the parties regarding the Warrwa People's connection to country [46]. Banks-Smith J noted the contribution of both over many years to achieve this result [89], and that the determination is a formal recognition by the Australian community that the Warrwa People's native title rights have 'always existed over these lands and waters' [90].

Warrwa woman, Patricia Juboy, said the determination was a very special thing for Warrwa people and that getting their land and Country back is a 'big thing'. She also expressed hope for the new generation's future (Kimberley Land Council 2020).  

Native title exists in parts of the determination area.

Related Entries

References

Glossary