Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250

Kimberley

Registered on the National Native Title Register

Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250

Between:

Mervyn Street, Laurie Shaw, Jimmy Shandley, Rosemary Nuggett, Helen Malo, Malachi Hobbs, Patricia Dick, June Davis, Sam Cox and Richard Cox (Applicants) and State of Western Australia, Shire of Derby/West Kimberly, Shire of Halls Creek, Sterling Jack Buntine, W.N.M. McDonald Pty Ltd and Yougawalla Pty Ltd as trustee for the Yougawalla Unit Trust (Respondents)

Judge: Barker J.

Determination:

Native title exists in the entire determination area: It consists of non-exclusive native title rights and interests.

Native title is held by the Gooniyandi People

Non-exclusive native title rights and interests:

The Gooniyandi People have the following non-exclusive native title rights and interests, including the right to conduct activities necessary to give effect to these native title rights. The right to:

• access and move freely though and within each part of the Determination area;
• live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;
• hunt, gather and fish;
• take flora and fauna;
• take other natural resources of each part of the determination area including soil, sand, clay, gravel, ochre, timber, resin and stone;
• share and exchange natural resources of each part of the determination area including soil, sand, clay, gravel, ochre, timber, resin and stone;
• light contained fires but not for the clearance of vegetation;
• engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
• conduct ceremonies;
• conduct burials and burial rites;
• hold meetings;
• visit, maintain and protect from physical harm, places and sites of importance in each part of the determination area; and
• access and take water and its resources. For the sake of clarity and avoidance of doubt, this right does not include the right to take or use water lawfully captured or controlled by the holders of the pastoral lease.
  

The native title rights to take and share resources do not include rights in relation to:

• minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA)
• petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or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)

The native title rights and interests do not confer possession, occupation, use and enjoyment on the Gooniyandi People to the exclusion of all others; nor a right to control the access of others to the land or waters of the determination area.

The non-exclusive native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth and the traditional laws and customs of the Gooniyandi People.

Non-native title rights and interests that exist in the determination area:

The following interests were determined to exist on the date of determination (as set out in Schedule 6 of the determination):

• rights and interests, including licences and permits, granted by the Commonwealth or the State;
• rights or interests under the laws of the State or the Commonwealth including the under the Rights in Water and Irrigation Act 1914 (WA);
• rights and interests of members of the public arising under law;
• the right to access land by an employee or agent of the State, Commonwealth, or local Government authority, as required in the performance of their duties where access would be permitted to private land;
  
• rights of any person to access and enjoy any roads within the determination area existing at the date of the determination;
• rights of the holders of existing mining tenements under the Mining Act 1978 (WA) to use the roads and tracks as they exist at the time of this determination;
• nothing above allows any upgrade, extension, widening or other improvement to the road or track other than work done for maintenance purposes;
• pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), any existing public access to waterways, the beds and banks or foreshores of waterways, stock routes, or areas that were public places at the end of December 1993; and
• any other legal interest or estate in the land or waters; or any other right.
  

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

The Gooniyandi Aboriginal Corporation RNTBC ICN 7870, as the prescribed body corporate, holds the determined native title in trust for the native title holders pursuant to 56(2)(b) of the Native Title Act 1993 (Cth).

Access to the full determination is available via the URL link.

Background:

In 2013, it was determined that the Gooniyandi people were native title holders in Sharpe v State of Western Australia [2013] FCA 599n (Sharpe). This claim was in relation to a 11,200 square kilometre area east and south of Fitzroy Crossing. Both exclusive and non-exclusive native title rights were determined, and in some areas native title had been extinguished. It was found in Sharpe that the Gooniyandi people are bound together by laws and customs which have continued largely uninterrupted since before Western Australia was settled, and therefore they had sufficient connection to the land.

In 2016, the Federal Court presided over the claim for a smaller area of land directly north of the determination made in 2013. The determination was smaller than the original application, so only the State of Western Australia, the Shire of Derby/West Kimberly, and W.N.M McDonald were required to respond and participate in negotiations.

The finding in Sharpe that the Gooniyandi People had sufficient connection to the land aided in the 2016 decision due to the close proximity of the areas in question.

The consent determination over this area was heralded as a significant outcome by the Kimberley Land Council and the Minister for Indigenous Affairs, Nigel Scullion - particularly in relation to native title allowing for economic, social and cultural benefits (Barrass, 2016).

Details of Judgement:

The Yarrangi Riwi Yoowarni Gooniyandi applicants, the State and other parties successfully negotiated and agreed to consent orders being made by the Federal Court. The parties filed this agreement with the Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The Court congratulated the parties on their negotiations, and was satisfied that it was appropriate and within its power to recognise the Gooniyandi People as the native title holders for the determined area.

Native title exists in the entire determination area.

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