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Nangkiriny v State of Western Australia [2002] FCA 660 (12 February 2002)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 12 February 2002
Sub Category:Consent Determination (Native Title Act)
Location:Western Kimberley region, Western Australia, Australia
The area covered by the Native Title Determination Application is all those areas of land and waters in the State of Western Australia described as follows. Starting at the northeast corner of pastoral lease 398/761 and extending generally south westerly along the south eastern boundaries (north western sides of the Great Northern Highway) of that lease to its southeastern corner. Then easterly to the westernmost south west corner of the pastoral lease 3114/604 (Shamrock). Then generally north easterly along the north western boundaries (south eastern sides of the Great Northern Highway) of that lease to a south west corner of pastoral lease 3114/635 (Thangoo). Then easterly and northerly along the boundaries of the lease to Latitude 18.410557 South. Then easterly to the westernmost south western corner of the pastoral lease 3114/844 (Dampier Downs). Then easterly, southerly, again easterly, again southerly, and again easterly along the boundaries of that lease to Longitude 123.380030 East. Then generally southerly, and generally westerly passing through the following co-ordinate positions: Latitude (south) - 18.710093 - 18.732793 - 18.762486 - 18.781612 - 18.793400 - 18.904111 - 19.044947 - 20.090213 - 19.732093 Longitude (east) - 123.367358 - 123.337920 - 123.326057 - 123.326302 - 123.334635 - 123.412903 - 123.421026 - 123.481307 - 121.890109 Then west along the last mentioned line of Latitude to an eastern boundary of pastoral lease 3114/1154 (Anna Plains). Then westerly to Latitude 19.730458 South, Longitude 121.461824 East, then northeasterly to a southern boundary of Reserve 38936 at Longitude 121.614920 East, then easterly, northerly and westerly along boundaries of that Reserve to Longitude 121.614975 East, then northeasterly and westerly passing through the following co-ordinate positions: Latitude (South): - 19.197809 - 19.196344 Longitude (East): - 121.625577 - 121.442371 Then westerly to the Lowest Astronomical Tide at Latitude 19.196054 South. Then generally northwesterly along that lowest astronomical tide to Latitude 18.456532 South. Then south easterly to the westernmost southwest corner of pastoral lease 3114/635 (Thangoo). Then easterly, southerly, and again easterly along the boundaries of that lease to the starting point. Areas excluded from the Determination Area in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23C of the Native Title Act 1993 and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) are those areas where previous exclusive possession acts have occurred, and native title has been extinguished in relation to the whole of these areas, and no claim to these areas can be made.
Legal Status: Registered on the National Native Title Register (
Legal Reference: Federal Court No: WG 6100/98; Native Title Tribuna
Alternative Names:
  • John Dudu Nangkiriny & Others on behalf of the Karajarri People v The State of Western Australia & Others
  • Karajarri People Determination
  • Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Local Government
    URL: http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal_ct/2002/660.html
    Summary Information:
    Nangkiriny v State of Western Australia [2002] FCA 660

    Between: John Dudu Nangkiriny, Alec McKay, Edna Hopiga, Amy King, Donald Grey, Norman Munro, Michael Everett, Cissy Everett, Steven Possum, Wittidong Mulardy, Nita Marshall, Mervin Mulardy Snr, Barney Dean, Elsie White, Flora Dean and Doris Edgar on behalf of the Karajarri People
    (APPLICANTS) AND
    State of Western Australia, Commonwealth of Australia, Shire of Broome, Darcy Hunter, Misha Peters, Wooda Davies, Ada Stewart, Winnie Coppin and Alma Grey on behalf of the Nyangumarta People, Anna Plains Cattle Co. Pty. Ltd., Western Agricultural Industries Pty. Ltd., Western Australian Fishing Industry Council (Inc.), Telstra Corporation Limited, Shell Development Australia Pty. Ltd., Australian Sea Pearls Pty. Ltd., Broome Pearls Pty. Ltd. And the Roman Catholic Bishop of Broome
    (RESPONDENTS)

    Judge: North J
    Where: Bidyadanga, Western Australia

    Determination:
    Native title exists in the entire determination area.

    No determination is made, or reached by consent of the parties, relating to areas of land identified at Order 1 of the determination.

    The area of the native title claim seaward of the Lowest Astronomical Tide is dismissed.

    Native title exists in Determination Area A, which is identified in paragraph 1 of the Determination.

    Native title is held by the Karajarri People, who are described in the Fourth Schedule attached to the Determination.

    The native title rights and interests held by the Karajarri over the area are identified in paragraphs 4 - 9 of the Determination, as follows:
    '4. Subject to paragraphs 5, 6, 7, 8 and 9:

    (1) the nature and extent of the native title rights and interests in Determination Area A held by the Karajarri people are:

    (a) the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others, including:

    (i) the right to live on the land;

    (ii) the right to make decisions about the use and enjoyment of the land and waters;

    (iii) the right to hunt, gather and fish on the land and waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;

    (iv) the right to take and use the waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;

    (v) the right to maintain and protect important places and areas of significance to the Karajarri people under their traditional laws and customs on the land and waters; and

    (vi) the right to control access to, and activities conducted by others on, the land and waters, including the right to give permission to others to enter and conduct activities on the land and waters on such conditions as the Karajarri people see fit; and

    (b) the right to use and enjoy the flowing and subterranean waters, including:

    (i) the right to hunt on and gather and fish from the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and

    (ii) the right to take and use the flowing and subterranean waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.

    (2) The native title rights and interests are exercisable in accordance with the traditional laws and customs of the Karajarri people.'

    Other (non-native title) rights and interests recognised in the area are identified in the Third Schedule of the Determination. This includes: pastoral lease interests; reserves for the health clinic, school and Aboriginal reserve; a mining lease and exploration permit; water interests including access to bores; public access rights to 'access and enjoy' areas such as beaches, waterways and stock routes; Telstra's telecommunications interests; access to the Historical Lighthouse Site in Broome; and an Access Agreement between the Karajarri People, Western Agricultural Industries and the State of Western Australia (which is Annexure A of the Determination).
    Detailed Information:
    Background information prepared by the National Native Title Tribunal describes the native title process leading to this determination.

    'The Karajarri People's pursuit of legal recognition of their native title rights began in 1996 when they lodged an application with the National Native Title Tribunal over a portion, 3,950 sq km, of the total area they eventually claimed in the Kimberley region (31,219 sq km). The following year they lodged another application over a further 23, 490 sq km and in 1999 they lodged a third application over the remainder of the area. The three applications were combined in early 2000. The claimed area stretches from the south Kimberley coastline into the Great Sandy Desert.'

    'The Native Title Tribunal began providing the parties with mediation assistance in 1996. In May 1999 mediation ceased and the matter went to trial. The hearing commenced in the Broome Courthouse on 20 June 2000, and proceeded until 22 July 2000, with many of the sittings taking place in out-back locations. In September 2000 the Federal Court asked the Tribunal to further explore the scope for mediation with the parties to resolve all or part of the proceedings.'

    The Karajarri People, represented by the Kimberley Land Council, negotiated with representatives from groups with a range of interests including Commonwealth, Western Australian and local governments and pastoral, telecommunications, fishing and pearling interests. Consequently, an agreement was reached that recognised the Karajarri People's native title rights over an area of 24,725 square kilometres in the remote Kimberley region. The area includes unallocated Crown land, an Aboriginal owned pastoral lease and reserves for Aboriginal people's use and benefit.

    The Federal Court gave legal recognition to the agreement made in the negotiations on the 12 February 2002.
    The Court recognised the Karajarri people's rights to possess, occupy, use and enjoy the land and waters to the exclusion of all others, including the right to:
    -live on the land;
    -make decisions about the use and enjoyment of the land and waters;
    -hunt, gather and fish on the land and waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;
    -take and use the waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;
    -maintain and protect important places and areas of significance to the Karajarri people under their traditional laws and customs on the land and waters and
    -control access to and activities conducted by others on the land and waters, including the right to give permission to others to enter and conduct activities on the land and waters under conditions the Karajarri people consider appropriate.

    The limitations of the agreement recognised that persons holding rights such as mining leases were entitled to exercise those rights.
    The Court was satisfied that it had the power to make such a determination, and that the agreement was appropriate.

    (National Native Title Tribunal, 'Karrajarri native title rights legally recognised in Kimberley' (Media Release, 11 February 2002)).
    Outcomes:
    AND THE COURT ORDERS, DECLARES AND DETERMINES, WITH THE CONSENT OF THE PARTIES:

    1. In this determination, unless the contrary intention appears:

    "Determination Area A" means those parts of the claim area which are landward of the mean high water mark (not including any tidal waters landward of the mean high water mark) and which comprise:

    (a) pastoral leases 3114/483, 398/744, 398/761 and 398/681 together comprising Frazier Downs Station, but not including the site of the telecommunications regenerator site at Dampier Location 319);

    (b) Reserves 41648, 20704, 38399 and 11175 for the Use and Benefit of Aboriginal People;

    (c) the two parcels of unallocated Crown land surrounding Reserve 32603 (one being Pardu location 8) within pastoral lease 398/770 (southern part of Nita Downs);

    (d) the unallocated Crown land comprising Dampier Location 222 adjacent to reserve 36472 and surrounded by Reserve 38399;

    (e) two areas of unallocated Crown land adjacent to special lease 3116/11698 (not including Dampier Location 255);

    (f) those areas of unallocated Crown land between mean high water mark and the pastoral lease boundaries (not including any tidal waters landward of the mean high water mark); and

    (g) the unallocated Crown land to the east of Anna Plains, Nita Downs and Shamrock.

    All of the above areas being areas to which sections 47, 47A and 47B of the Native Title Act 1993 (Cth) apply, as set out more specifically in the Second Schedule.

    Determination Area A is depicted generally as the area hatched green on the map and enlargements accompanying the First Schedule;

    "the land" means the land within Determination Area A;

    "the waters" means the waters within Determination Area A excluding flowing and subterranean waters;

    "flowing and subterranean waters" means those waters within Determination Area A which are:

    (a) waters which flow, whether permanently, intermittently or occasionally, within:

    (i) any river, creek, stream or brook; and

    (ii) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; and

    (b) waters from and including an underground water source, including water that percolates from the ground;

    "the land and waters" means "the land" and "the waters" as defined collectively.

    2. Native title exists in Determination Area A.

    3. The communal or group rights and interests comprising the native title in Determination Area A are held in trust by the Karajarri Traditional Lands Association (Aboriginal Corporation), a prescribed body corporate for the purposes of section 56 of the Native Title Act 1993 (Cth), for the Karajarri people as common law holders of native title. The Karajarri people are those people described in the Fourth Schedule.

    4. Subject to paragraphs 5, 6, 7, 8 and 9:

    (1) the nature and extent of the native title rights and interests in Determination Area A held by the Karajarri people are:

    (a) the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others, including:

    (i) the right to live on the land;

    (ii) the right to make decisions about the use and enjoyment of the land and waters;

    (iii) the right to hunt, gather and fish on the land and waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;

    (iv) the right to take and use the waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;

    (v) the right to maintain and protect important places and areas of significance to the Karajarri people under their traditional laws and customs on the land and waters; and

    (vi) the right to control access to, and activities conducted by others on, the land and waters, including the right to give permission to others to enter and conduct activities on the land and waters on such conditions as the Karajarri people see fit; and

    (b) the right to use and enjoy the flowing and subterranean waters, including:

    (i) the right to hunt on and gather and fish from the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and

    (ii) the right to take and use the flowing and subterranean waters and other resources accessed in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs.

    (2) The native title rights and interests are exercisable in accordance with the traditional laws and customs of the Karajarri people.

    5. Notwithstanding anything in this determination the native title rights and interests (in accordance with the decision of the Federal Court in Western Australia v Ward (2000) 99 FCR 316) include ochre but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).

    6. Nothing in paragraph 5 is intended to affect the rights of the common law holders (including any registered native title body corporate) under sub-sections 13(1) and 13(5) and the item "Revised native title determination application" in the table in sub-section 61(1) of the Native Title Act.

    7. The nature and extent of other rights and interests in relation to Determination Area A are those set out in the Third Schedule.

    8. The relationship between the native title rights and interests recognised by this Order and other rights and interests referred to in paragraph 7 ("the other rights and interests") is that:

    (a) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist, but have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and

    (b) to avoid doubt, the existence and exercise of the native title rights and interests do not prevent the doing of the activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them.

    9. The native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

    Related Entries

    Agreement
  • Nangkiriny v State of Western Australia [2004] FCA 1156 (8 September 2004)
  • Bidyadanga Initial Works Indigenous Land Use Agreement (ILUA)
  • Hunter & Ors v State of Western Australia [2012] FCA 690
  • Organisation
  • Telstra Corporation Limited - Respondent
  • Broome Shire - Respondent
  • Federal Court of Australia
  • State of Western Australia - Respondent
  • National Native Title Tribunal
  • Kimberley Land Council (Aboriginal Corporation)
  • Anna Plains Cattle Co. - Respondent
  • Western Agricultural Industries Pty Ltd - Respondent
  • Western Australian Fishing Industry Council (Inc) - Respondent
  • Shell Development Australia Pty Ltd - Respondent
  • Australian Sea Pearls Py Ltd - Respondent
  • Broome Pearls Pty Ltd - Respondent
  • Karajarri Traditional Lands Association (Aboriginal Corporation)
  • Commonwealth of Australia - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Darcy Hunter and others on behalf of the Nyangumarta People - Respondent
  • Karajarri People
  • Nyangumarta People
  • Roman Catholic Bishop of Broome - Respondent
  • John Dudu Nangkiriny and others on behalf of the Karajarri People - Native Title Claimant
  • Darcy Hunter and others on behalf of the Nyangumarta people - Respondent

  • References

    Case Law
    Commonwealth of Australia (2002) Nangjiriny v State of Western Australia [2002] FCA 660
    Media Release
    National Native Titile Tribunal 'Karajarri native title rights legally recognised in Kimberley'
    Resource
    National Native Title Tribunal (2004) Native Title by Consent Determinations

    Documents

    Map
    Nangkiriny v State of Western Australia Map - ( Image | Thumbnail | PDF)

    Glossary

    Native Title (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia)

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