Billy Patch and others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (20 June 2008) |
| Binomial Name: | Federal Court of Australia | |
| Date: | 20 June 2008 | |
| Sub Category: | Consent Determination (Native Title Act) |
| Place: | |
| State/Country: | Western Australia, Australia |
| The Determination Area is contained in Schedule 1 of the Federal Court consent determination. |
| Legal Status: | Registered on the National Native Title Register (of native title determinations). | |
| Legal Reference: | Federal Court No: WAD6284/1998; National Native Tribunal file No: WC98/68 | |
| Alternative Names: | Birriliburu People - Part A
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| Subject Matter: | Land Use | Native Title |
| URL: | http://www.austlii.edu.au/au/cases/cth/FCA/2008/944.html | |
| Summary Information: | |
| Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (20 June 2008)
Between: Billy Patch and Others on behalf of the Birriliburu People (APPLICANTS)
AND
State of Western Australia (RESPONDENTS)
Judge: French J
Where Made: Good Camp Rockhole – Western Desert
Determination: Native title exists in relation to the area specified in Schedule 1, and has been completely extinguished in relation to the area specified in Schedule 2. The consent determination confers exclusive rights to the native title holders for the use and occupation of the land, consistent with other rights and interests, and non-exclusive right to take flowing and subterranean water.
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| Detailed Information: | |
Background Information
The Birriliburu People consists of 17 family groups who describe themselves as ‘Martu’, and form a part of the Western Desert cultural block which includes the dialects Putijara, Kartutjara and Mantjiltjara. The claimants reside at Wiluna, Jigalong, Patjarr, Warnarn, Warakurna and Parngurr, which are nearby but not within the determination area.
The connection between the Birriliburu People and their land was supported by an anthropological report, confirming that native title rights and interests in relation to the claim area continue to be exercised according to traditional laws and customs. The Koori Mail (2 July 2008: 12) reported that Birriliburu people included ‘some of the last Indigenous Western Australians to make contact with non-Indigenous people.’
Native Title Rights and Interests
The determination grants the native title holders rights and interests over the determination area (First Schedule), which includes:
right of possession, occupation, use and enjoyment (except with regards to flowing and subterranean water) to the exclusion of all others;
non-exclusive right to take flowing and subterranean water for personal, domestic or non-commercial communal purposes; and
the right to take and use ochre (but no rights to other minerals and petroleum).
These rights are exercisable in accordance with traditional laws and customs and the laws of the state.
Native title rights and interests contained in Schedule 2 have been completely extinguished over three reserves due to acts of previous exclusive possession. The reserves are:
Reserve 42068 for the purpose of a ‘Communications Site’
Reserve 36469 for the purpose of ‘Protection of Historic Site’
Reserve 34604 for the purpose of ‘Conservation of Flora and Fauna’
Existing rights and interests over the determination area are preserved, including the rights and interests of:
persons who manage two reserves and one general purpose lease for the purposes of ‘Use and Benefit of Aboriginal Inhabitants’;
holders of mining exploration licences and petroleum exploration permits;
state or commonwealth agents as required for the performance of their statutory duties;
the public, over existing public access to waterways, foreshores of waterways and stock routes (including the Canning Stock Route); and
Telstra Corporation Ltd (see Schedule 5).
There has been no determination over two areas, amounting to 105.10 square kilometres, which were previously covered by three exploration licences. This land is the subject of ongoing mediation.
The Koori Mail (2 July 2008: 12) reports that Tom Stephens, a Member for Parliament for the area congratulated the claimants on the outcome of the consent determination, stating that ‘[f]rom today, there is nothing that will be done on this land without their consent.’
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| Outcomes: | |
| According to the Western Australian Office of Native Title, 'Central Desert Native Title Services are in the process of bringing a 'Part B' application over an area of approximately 100 square kilometres not resolved by the determination.' | |
Birriliburu People (Part A) Determination Area - (