Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (Bindunbur)

Mid Dampier Peninsula, Kimberley

Between:

Ernest Damien Manado on behalf of the Bindunbur Native Title Claim Group (and others named in the Schedule) (Applicant) and

The State of Western Australia (and others named in the Schedule) (Respondents)

Judge: North J

Where made: Beagle Bay, 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 2 Part 2, attached below under documents.

Native title holders

The Jabirr Jabirr/Ngumbarl people, the Nyul Nyul people, and the Nimanburr people (described in Schedule 3 of the determination available at the url link above).

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

This is the right to possession, occupation, use, and enjoyment of the area, described in Schedule 5, attached below under documents, to the exclusion of all others.

Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the parts of the determination area described in Schedule 5.

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

These rights exist over the area described in Schedule 6 and include the rights to:

• access, remain in, and use that area;
• access and take resources from the area for any purpose;
• protect places, areas, and things of traditional significance in the area.
  

Other rights and interests in the determination area include:

• the rights and interests of those who care for, control and manage specified reserves and the interests of those entitled to access and use these reserves;
• the rights and interests of the holders of specified pastoral and general leases;
• the rights and interests of the holders of freehold estates in the area;
• the rights and interests of Telstra Corporation as the owner and operator of telecommunication facilities in the area, the rights of those acting on Telstra's behalf to access the telecommunications facilities, and rights under statute;
• the rights and interests of the public, the State, Commonwealth, and local governments relating to specified roads;
• the rights and interests of holders of petroleum explorations permits granted under statute;
• the rights and interests of holders of mining exploration licences granted under statute;
• the interests of the holder's of interests and exemptions granted under legislative schemes for the control, management, and exploitation of living resources in the area;
• the rights and interests of the Commonwealth of Australia relating to the Kimberley Marine Reserve;
• the rights and interests of Horizon Power;
• rights and interests held under valid grants from the Crown;
• rights and interests held due to the force and operation of State or Commonwealth statute;
• the rights and interests of the Australian Maritime Safety Authority;
• the rights and interests of the Australian Fisheries Management Authority;
• the right to access the determination area by persons acting on behalf of the State, Commonwealth, or any local government authority;
• the rights of public access to and enjoyment of specified areas;
• the rights and interests of the public to fish and navigate;
• the right of innocent passage through the territorial sea;
• the rights and interests relating to the Canning-Kimberley Groundwater Area.
  

See Schedule 7 for further information about the non-native title rights and interests.

The native title rights and interests are subject to the:

• traditional laws and customs of the native title holders; and
• laws of the State and the Commonwealth 

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

• gold silver, other precious metals, precious stones and all other minerals pursuant to the Mining Act 1904 (WA); or
• petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA)

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

The Gogolanyngor Aboriginal Corporation, Nimanburr Aboriginal Corporation and Nyul Nyul PBC Aboriginal Corporation are the prescribed body corporates (as described in Schedule 4 of the determination available at the url link above). They perform the functions required under the Native Title Act 1993 (Cth) and hold the native title in trust for the Jabirr Jabirr/Ngumbarl people, the Nyul Nyul people, and the Nimanburr people.

Background

This judgment was delivered in Beagle Bay. It gave final orders in the applications for determinations of native title brought by the Bindunbur people, the Jabirr Jabirr people and the Goolarabooloo people. The original applications were made in 2013. The hearing of those applications commenced in September 2015 and the court travelled throughout the Mid Dampier Peninsula hearing evidence. North J delivered judgment on 23 November 2017, Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367, finding that the Jabirr Jabirr and Bindunbur people were entitled to determinations of native title. The Goolarabooloo people's application failed.

This determination was the 80th native title determination in Western Australia at the time. A statement by the 'Bindunbur' applicants, Damien Manado, Cecilia Churnside, Alec Dann, Betty Dixon, Walter Kostr and Phillip McCarthy, said:

"It was a bit of a struggle but we all came together and have had a good win. We were together in the past, we are together now, and we will be together in the future. We have shown good strength working side-by-side. But we still have more work to do." (Kimberley Land Council, 2018)

Native title exists in parts of the determination area.

Related Entries

References

Documents