Mouda on behalf of the Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233

Dampier Peninsular, Western Kimberley Region

Registered on the National Native Title Register

Mouda on behalf of the Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233

Between: Mouda on behalf of the Joombarn-Buru Native Title Claimants (Applicant) and State of Western Australia, Yeeda Station Pty Ltd, Sheffield Resources Limited and Kimberley Quarry Pty Ltd (Respondents)

Judge: McKerracher J

Determination

The Federal Court of Australia made this native title determination by consent of the parties under s 87 of the Native Title Act 1993 (Cth) (the NTA).

Native title exists in part of the determination area

It consists of exclusive and non-exclusive native title rights and interests (described in Schedule 3 and 4 respectively).

There is also an area of existing public works where native title rights and interests do not exist (described in Schedule 5).

These rights and interests are exercisable in accordance with traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Native title holders

Native title is held by the members of the Joombarn-buru Native Title Holding Group.

For a detailed description of the group see Schedule 6 of the court determination via the above URL link.

Exclusive native title exists over part of the determination area

Other than in relation to minerals, petroleum and water, the native title holders have the right to possession, occupation, use, and enjoyment of the southern part of the determination area to the exclusion of all others. The area is described in Schedule 3 as the UCL west of the Yeeda of Pastoral Lease Area.

Non-exclusive native title exists part of the determination area

These rights and interests exist over the areas described in Schedule 4 as part of the Mt Jowlaenga Pastoral Lease Area, the Kimberley De Grey Stock Route, and a portion of the Great Northern Highway. The Joombarn-buru Native Title Holding Group has the right to:

• have access to, remain in and use that part of the determination area.

Examples in which this right can be exercised include but are not limited to:

• accessing and taking resources in that part;
• entering and remaining on, camping and erecting shelters on that part;
• lighting controlled contained fires but not for the clearance of vegetation; and
• protecting places, areas and objects of traditional significance in that part

Other (non-native title) rights and interests in the determination area include

• the rights and interests in relation to the southern part of the Mt Jowlaenga Pastoral Lease Area;
• the rights and interests in relation to Reserve 9697 for the purpose of the Kimberley De Grey Stock Route;
• the existing interests under the Mining Act 1978 (WA); the Petroleum and Geothermal Energy Resources Act 1967 (WA); the Rights in Water and Irrigation Act 1914 (WA); and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
• the rights and interests regarding roads applying to the Great Northern Highway (portion formerly subject to Reserve 9697)

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

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

Prescribed body corporate

The Joombarn-buru Aboriginal Corporation is the prescribed body corporate. It performs the functions required under the NTA and holds the determined native title in trust for the Joombarn-buru Native Title Holding Group.

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

Background

The Joombarn-buru Application was filed on 7 November 2019. Previously, on 8 August 2013 and 10 November 2014 respectively, the Mount Jowlaenga Polygon #1 and the Mount Jowlaenga Polygon #2 were filed. On 20 February 2020, Bromberg J made orders so that these three claims were to be known collectively as the Joombarn-buru Application.

Through providing connection and occupation material, the members of the Joombarn-buru Native Title Holding Group negotiated with the State of Western Australia to come to an agreement regarding their native title rights and interests in the determination area. The State found such material sufficient in demonstrating that the applicant's connection to the land has not been severed. The parties were able to file the signed agreement with the Court on 14 September 2021, pursuant to s 87 of the Native Title Act 1993 (Cth).  

Details of Judgment

The Court was satisfied that an order under s 87 of the Native Title Act was appropriate. This is because the State had played an active role in the negotiation, conducted rigorous and detailed assessment processes to conclude that the determination is justified in all circumstances, and also conducted searches of land tenure, mining and petroleum registries to determine the extent of 'other interests' within the proposed determination area. As both parties were competently legally represented throughout the negotiation, and as the State was satisfied that there is a credible basis for the claim to meet the requirements of s 223 of the Native Title Act, the Court found that the members of the Joombarn-buru Native Title Holding Group have native title interests in parts of the determination area.

Native title exists in parts of the determination area

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