Shaw on behalf of the Boorroola Moorrool Moorrool Native Title Claim Group v State of Western Australia [2020] FCA 1700

Kimberley Region

Registered on the National Native Title Register

Between: Rosita Shaw, Jonathan Rickerby, Katherin Ningella, Linda Nardea, Anne Poelaina, Gary Ozies, Charles (Rocky) Prouse (Applicant) and State of Western Australia, Commonwealth of Australia, Telstra Corporation Ltd, Yeeda Pastoral Company Pty Ltd, Kimberley Prawn Company (Aust) Pty Ltd, Jock Hugh McGregor, Del James Roe (Respondents)

Judge: Banks-Smith J

Determination

The Federal Court made this determination of native title with the consent of the parties, in relation to Part A of the Boorroola Moorrool Moorrool (BMM) Application under s 87A  of the Native Title Act 1993 (Cth) (the NTA). No determination is made at present to the balance of the area covered by the BMM Application.

The determination came into effect on 2 August 2021, that being the date that the BMM Native Title Claim Group nominated the Walalakoo Aboriginal Corporation to be the prescribed body corporate, in accordance with Order 2 of the determination.

Native title exists in parts of the determination area

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

These rights and interests are exercisable in accordance with traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Native title holders

Native title is held by the BMM Claim Group, that is, those Aboriginal people who are the biological or adopted descendants of the apical ancestors listed in Schedule 8 of the determination (see via the URL link above).

Exclusive native title exists 

This is the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others over the unclaimed Crown lands (UCL) described in Schedule 3 and mapped in Schedule 2 (see attached below).

Non-exclusive native title exists

These native title rights and interests include the right to:

• access, remain on, and erect temporary shelters;
• engage in cultural activities and transmit cultural;; heritage knowledge;
• hold meetings;
• access and take resources including water;
• protect and maintain areas, places, and sites of importance;
• be accompanied by any person who the native title holders may invite pursuant to traditional law and custom.

The non-exclusive native title exists over the Mowanjum Pastoral Lase area, the Fitzroy Crossing to Nobby's Well Stock Route, the whole of UCLs 005, 014, and 032, the portion of the Fitzroy River that is not subject to mining lease MO400220, and the area seaward of the high water mark that is not part of the Port of Derby Area. For further details see Schedule 4, attached below.

Other (non-native title) rights and interests in the determination area include those held under:

• the Mowanjum Pastoral Lease;
• the Reserve (Stock Route - Fitzroy Crossing to Nobby's Well);
• three mining tenements granted under the Mining Act 1904 (WA);
• two petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and/or the Petroleum Pipelines Act 1969 (WA);
• the Fisheries Management Act 1991 (Cth) by the Australian Fisheries Management Authority, including for the Western Tuna and Billfish Fishery, the Western Skipjack Tuna Fishery, and the Southern Bluefin Tuna Fishery; and
• any State or Commonwealth grant or legislation.

See Schedule 7 (attached below) for further information.

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

Prescribed body corporate

The native title is held in trust.

The Walalakoo Aboriginal Corporation performs the functions required under the Native Title Act 1993 (Cth) on behalf of the native title holders.

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

Background

The application for this determination was filed in December 2016. Part of the determination area overlaps with the Warrwa Combined Application and the parties agreed that that part will not be determined at this time.

Details of Judgment

Based on the materials filed and the State's active role in negotiations, Justice Banks-Smith was satisfied that it was appropriate to make this determination of native title [66].

Native title exists in parts of the determination area

Related Entries

Documents

Glossary