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Cheinmora v State of Western Australia (No 3) [2013] FCA 769

Date: 7 August 2013
Sub Category:Consent Determination (Native Title Act)
Place:Wyndham and Home Valley Pastoral Station
State/Country:Western Australia, Australia
The Balanggarra #3 Application covers approximately 4,318 square kilometres of land and includes areas of the waters of the Cambridge Gulf and islands located in the northern Kimberley region of Western Australia. It comprises two major land areas, an eastern component which includes Wyndham and a western component which includes parts of Home Valley pastoral station. These two components are separated by the Balanggarra Combined Application (WAD 6027 of 1998).
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: WAD6004/2000; National Native Title Tribunal No: WCD2013/006.
Alternative Names:
  • Balanggarra #3
  • Subject Matter:Access | Mining and Minerals | Native Title | Native Title - Extinguishment | Recognition of Native Title or Traditional Ownership
    Summary Information:
    Delores Cheinmora, Dudley Bambra, Elaine Johnstone, Eric Johnstone, Frank Chulung, James Taylor, Jean Leyland, Jeff Clarke, Jennifer Eura, Kenny Morgan, Laurie Waina, Luvey Weaver, Mary Teresa Taylor, May Smith, Mona Williams, Raymond Williams, Roy Martin, Tom Birch, Vernon Gerrard and Victor Martin (APPLICANTS) and

    State of Western Australia, The Commonwealth of Australia, Delaware North El Questro Pty Ltd and Telstra Corporation Limited (RESPONDENTS)

    Judge: Gilmour J
    Where made: Wyndham

    Determination: Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights. This confers on the estate group members possession, occupation, use and enjoyment to the exclusion of all others over the portion of the determination area that has exclusive rights.

    Native title is held by the Balanggarra People.

    Membership of the estate group is defined in Schedule Six of the determination. The Balanggarra people are:
    - the descendants of Wundangana Waina, Wuju, Amburu, Djirlarmuru, Mitilber/Njorda, Jiani, Akingungka/Nakmara, Rugben, Moolpan/Kandarworl, Boongottor, Matilda Moorajayi, Joonpan/Moorajayi, Maraltadj, Miuron, Moongkama, Purwan, Waapa, Makumuku, Torto/Yilimbiri, Nandjimara, Jalalarimiri/Kolorumari, Puraru, Nandjimara, Yarluwutj, Koolberi, Angela, Moongkama, Yoolyool, Mutumutu, Murungga, Bundamiri, Vernon Dah, Mayaltor, Malangnari, Dz^ngal, Naringa, Wolarmbar, Murlu, Zamin^elli, Mandomiri, G^nambul, Nganawongka, Ng^lnari, Mal^ngu, W^Nu, W^garmiri, Waibela, ^Nuwija, Jidei-ida/Wugad^r, N^lamiri, Malnuben, Gootimurri, Junbabara, Linound^ri, Wungur^ru, Judu, Linound^ri, Jumbabera, Bo, Do^lu, Lau-uri, Wiju/Baluga, Wanguben, Mundjangal, D^lnga, Mud^ta, Rebern, D^lnga, Med^rda, Aruwund^rdzera, Mal^ngunawal, Galamiri, Angular, Benmiri, Ziranim/Ganggu, M^labu, ^m]ra, Wulangan, Jura/Juradide, Njama, Dagi, Zunggalima, Weni, Njama, Charlie Plateman, Dickie Kooyoo, Baija, Jeduri, Zunggalima, Mandurga, W^ngadju, Nitil, Lura/Gurul, Birim, ^Ngari, Dumalbon/Tumelben, Merliman, Wangooloo, Wamblma, W^rga, Bangudenanga, Birra-rar-raa, Wanjuwila, Wungaruru, Wurarwungedzi, Zuandi, Z^lubern, G^mura, W^mbu/Njurnji, Waneigera, J^wan, Z^Inga, Guri, Banmon, Warin.

    It is noted that recognition of the native title rights and interests includes recognition of the native title holders' ability to transmit those rights and interests to successive generations of Balanggarra people in accordance with traditional laws and custom.

    Area over which exclusive native title rights exist are detailed in the consent determination.

    Non-exclusive native title rights and interests that exist over the native title area in the Determination Area include:

    - the right of access and to travel over the non-exclusive native title determination area;
    - the right to live, and to camp on the land, and to erect shelters and other structures;
    - the right to hunt, gather, fish and use including by way of sharing or exchange the resources of the land and waters;
    - the right to light fires for domestic, cultural and spiritual purposes;
    - the right to conduct and participate in cultural activities such as visiting places of cultural or spiritual importance and protecting those places, conducting and participating in ceremony and ritual including in relation to death, holding meetings, and passing on knowledge about the physical and spiritual attributes of sites and places in the determination area.

    Non-native title rights and interests that exist within the determination area can be summarised as:

    - The interests of persons who have the care, control and management of, or who have a right of access or use of, reserves numbered 01126, 20623, 28762, 01275, 25238, 34958, 08263, 26370, 37677, 08264, 26482, 38740, 16729, 27020, 40520, 17421, 27441, 42155, 20359, 28410 and 46252;
    - Wyndham Port declared pursuant to the Shipping and Pilotage Act 1967 (WA);
    - The rights of the holders of pastoral leases 3114/0962 and 3114/1180;
    - The Part King River Road to the extent that Road does not fall within the area where native title has been extinguished;
    - The rights of KMG Logistics Pty Ltd as the holder of the mining tenements G8000016, L8000056 and L8000059, including their right to use existing roads and tracks in the determination area for access to the mining tenements;
    - The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and created pursuant to the Post and Telegraph 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) including the rights to inspect land, install and operate telecommunications facilities and alter, remove, maintain, replace and ensure the proper functioning of its telecommunications facilities, for employees, agents or contractors to access telecommunications facilities in the native title area and under any license, access agreement or easement relating to its telecommunications facilities in the Determination Area.

    Other Rights and Interests:
    - those granted by the Crown, including licences and permits, pursuant to statute or otherwise in the exercise of executive power including rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to that legislation,
    - authorised under State or Commonwealth law including the Rights in Water and Irrigation Act 1914 (WA),
    - rights of access by an employee, servant or agent of the Western Australian or Commonwealth government as required in the performance of their legal duties,
    - arising under the common law, rights of members of the public to fish, navigate and use Meat Works Road, Hugo Austla Drive or any other public road in the determination area,
    - existing public access to waterways and surrounding areas, beaches and stock routes pursuant to section 14 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA),
    - international right of innocent passage through the territorial sea.

    Provisions Relevant to the Native Title Rights

    Native title does not exist over
    - minerals as defined in the Mining Act 1978 (WA); or
    - petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
    - geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
    - water captured by the holders of the other interests in accordance with those interests.

    The Balanggarra Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held on trust for the native title holders..
    Detailed Information:

    The Balanggarra #3 Application (WAD 6004 of 2000) was filed by the applicant on 3 July 2000 pursuant to the Native Title Act 1993 (Cth). It is the third application made on behalf of members of the Balanggarra community; the two previous applications were combined into proceeding WAD 6027 of 1998.

    The application is brought on behalf of the members of the Balanggarra people.

    At a sitting of the Federal Court at Wyndham, Justice Gilmour awarded both exclusive and non-exclusive native title rights over approximately 4,318 square kilometres of land.

    'Balanggarra' means 'one mob together for country'. The northern part of Balanggarra is 'blue water' country and includes several rivers, saltwater, reefs, and offshore islands. The southern part is 'brown water' country and includes land drained by the Forrest River system, the waters of the Cambridge Gulf and Adolphus Island.

    Balanggarra traditional owner Tom Birch said the determination was a momentous occasion for his people and that his people now needed to use their determination to provide the Balanggarra people with opportunities (The Kimberley Echo, 2013).

    Tom Birch, who is also the Chairman of the Kimberley Land Council said that his people "have waited a long time for this and I am so proud of the Balanggarra people for having the patience, determination and courage to continue to fight for native title and the recognition that comes with that... Our old people started this 15 years ago, and sadly many of them are not with us today to celebrate this great win for our people, but we will always remember the hard work they did to get us here today... That means having good governance and building up our Balanggarra Aboriginal Corporation to be strong, so we can leave behind a successful organisation for the next generations... I remember our old people were at a meeting, out in the bush, and they said if we were going to get our native title we needed to be united, that we needed to look after each other and share with each other.'

    In handing down the determination, Justice John Gilmour acknowledged the hearing was one of mixed emotions for the Balanggarra people. He noted that "there is a sense of happiness because after about 18 years since the first Balanggarra native title claim was lodged there is finally recognition... There is, however, a sense of loss and sadness because a significant number of the original people named as the applicant have passed away... I have allowed their names to remain on the court's judgment as a special act of honour and respect.'

    Kimberley Land Council Chief Executive Nolan Hunter thanked the State Government and respondent parties for their co-operation and said that when the parties involved "can agree on an outcome and native title can be negotiated by consent, not only does it speedup the process but the decision is beneficial to all parties."

    Following the consent determination, Attorney-General Michael Mischin said that "joint management arrangements will create significant opportunities for local Aboriginal people to be employed working on country and ensure traditional owners have a key decision making role in how the unique and ancient Kimberley landscape is managed."

    Immediately following the determination, a Balanggarra Indigenous Protected Area (IPA) was declared. It forms part of Australia's National Reserve System. It is managed under the International Union for Conservation of Nature (IUCN) Category VI, as a protected area with sustainable use of natural resources and covers about 10,000 square kilometres of land and sea country.

    Balanggarra Aboriginal Corporation chairwoman Cissy Birch Gore said that her people "want to speak for our country, decide for our country and manage access to our country" and that the IPA declaration would achieve this.

    Details of Judgement

    Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Balanggarra People in relation to the land and waters covered by the Balanggarra #3 Application. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

    The court was satisfied that a determination of native title was within the power of the court.

    Related Entries

  • Leyland v State of Western Australia [2020] FCA 512
  • Organisation
  • Kimberley Land Council Aboriginal Corporation
  • National Native Title Tribunal - Previous
  • Balanggarra Aboriginal Corporation RNTBC
  • State of Western Australia - Respondent
  • Commonwealth of Australia - Respondent
  • Telstra Corporation Limited - Respondent
  • Delaware North El Questro Pty Ltd - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Mining Act 1978 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ('WA Titles Act')
  • Post and Telegraph Act 1901 (Cth)
  • Telecommunications Act 1975 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Fish Resources Management Act 1994 (WA)
  • Pearling Act 1990 (WA)
  • Fisheries Management Act 1991 (Cth)
  • Rights in Water and Irrigation Act 1914 (WA)
  • People
  • Balangarra People - Owner

  • Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Applicants | Native Title (Australia) | Legislation | Native Title Registers | Native Title Determination (Australia) | Public Company | Native Title Applications/Claims (Australia) | National Native Title Tribunal (NNTT) (Australia) | Joint Management Agreement | Indigenous Protected Area (Australia)

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