Manado on behalf of Bindunbur Native Title Claim Group v State of Western Australia [2019] FCA 1873

Dampier Peninsula, north east of Broome 

The determination area covers that portion of Lot 259 on Deposited Plan 22069 that is wholly within the boundary of Petroleum Exploration Permit EP 436. For a detailed description and map of the area, see Schedules 1 and 5 (attached below under documents).

Between: Ernest Damien Manado, Alec Dann, Cecilia Churnside, Betty Dixon, Walter Koster, and Phillip McCarthy (Applicant) and State of Western Australia, Commonwealth of Australia, Victoria Jane Burton, Sheffield Resources Ltd, Jamie Peter Burton, Kurt Elezovich, J D Arrow, S J Arrow, Yeeda Station Pty Ltd, and Shire of Broome (Respondents)

Judge: Robertson J

Determination

Native title exists in all of the determination area 

It consists of exclusive native title rights and interests.

Native title holders

The Jabirr Jabirr/Ngumbarl and Nimanburr Peoples.

Exclusive native title is wholly owned by the Jabirr Jabirr/Ngumbarl People in the western section of the lot and is shared between the Jabirr Jabirr/Ngumbarl and Nimbanburr Peoples in the eastern section of the lot. For a map of the lot, see Attachment B (attached below under documents).

For a full description of the native title holders see Schedule 2 of the determination via the above URL link.

Exclusive native title rights and interests exist over all the determination area 

This is the right to possession, occupation, use, and enjoyment of the area, described in the determination, to the exclusion of all others. The exercise of these rights and interests is subject to the traditional laws and customs of the native title holders as well as the laws of the State and the Commonwealth.

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

• Precious metals, stones or other minerals, pursuant to the Mining Act 1904 (WA); or
• Petroleum, as defined in the Petroleum Act 1936 (WA) or the Petroleum and Geothermal Energy Resources Act 1967 (WA).

Other rights and interests in the determination area include:

• Rights and interests held by Telstra Corporation Ltd, to access its telecommunication facilities by employees, agents or contractors and created pursuant to various telecommunications acts;
• Rights and interests held under Petroleum Exploration Permit EP 438 to exercise such permits;
• Rights and interests held under valid or validated grants from the Crown;
• Right of access by an employee or agent of the State; Commonwealth; or local government authority;
• Rights and Interests held by State or Commonwealth, including reason of force and operation of the Rights in Water and Irrigation Act 1914 (WA) and Aboriginal Communities Act 1979 (WA); and
• Rights or interests conferred under or in accordance with the Canning-Kimberley Groundwater Area.

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

See Schedule 4 for further information about the other (non-native title) rights and interests.

Aboriginal Corporation Registered Native Title Body Corporates (RNTBCs)

The Gogolanyngor Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) holds the Jabirr Jabirr/Ngumbarl People's native title in trust and performs the functions required under the Native Title Act 1993 (Cth).

The Nimanburr Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) holds the Nimanburr People's native title in trust and performs the functions required under the Native Title Act 1993 (Cth).

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

Background

The determination area is one of two areas that were temporarily excluded from the litigated determination, Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854 (Bindunbur). It was separated from Bindunbur because it was subject to a Petroleum Exploration Permit, which, if interpreted as a 'lease' under s 47B(1)(b)(i) of the Native Title Act 1993 (Cth) (NTA), would mean that any prior extinguishment of native title could not have been disregarded.

At the time, petroleum permits had indeed been interpreted by the court to be 'leases' in the sense of s 47B(1)(b)(i) of the NTA (Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjwiwarl No 2) [2018] FCAFC 8; Attorney General v Helicopter-Tjungarrayi (Ngurra Kayanta and Ngurra Kayanta No 2) [2018] FCAFC 8) (Tjungarrayi) [9].

However, in 2019, the High Court decided conclusively that permits to explore are not leases under the NTA when it overturned Tjiwarl and Ngurra Kayanta in Tjungarrayi v Western Australia [2019] HCA 12 [11].

After the High Court's decision, the Applicant and the State agreed that the Jabirr Jabirr/Ngumbarl and Nimanburr Peoples could receive the benefit of s 47B of the NTA without filing a new statement of claim upon the surrender of the petroleum permit.  [11].

Details of Judgment

Any doubt as to whether native title existed in the determination area fell away when the High Court decided in Tjungarrayi that petroleum exploration permits are not leases and do not prevent the application of s 47B [18].

This was not a new native title claim but merely dealt with the remaining area of Bindunbur [16]. Justice Robertson noted that North J’s determination of the existence and nature of native title in Bindunbur applied to the whole of the Bindunbur claim area, from which this area had temporarily been excluded [18]. Consequently, his Honour accepted that orders should be made, as the parties submitted and which reflected North J's findings, to recognise exclusive native title over this remaining area [16].

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