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Cox on behalf of the Yungngora People v State of Western Australia  FCA 588
|Binomial Name:||Federal Court of Australia|
|Date:||27 April 2007|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Kimberley Region, Western Australia, Australia|
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|Legal Status:||Regsistered on the National Native Title Tribunal|
|Legal Reference:||Federal Court No: WAD 6229 of 1998; National Native Title Tribunal no: WC98/9|
|Subject Matter:||Access | Customary Law | Mining and Minerals | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Cox on behalf of the Yungngora People v State of Western Australia  FCA 588|
Between: Dickey Cox on behalf of the Yungngora People (APPLICANT)
State of Western Australia (FIRST RESPONDENT)
Shire of Derby (SECOND RESPONDENT)
Kimberley Land Council (THIRD RESPONDENT)
Judge: French J
Where Made: Noonkanbah
Determination: Native Title exists over the entire claim area
|On the 3 March 1998, the Yungugora people lodged their native title claim over approx 1,800 square kilometres of land, including the Noonkanbah Station, unallocated crown land and unvested reserves. |
The area of the application, as outlined in the first schedule of the Determination, comprises all of the land and flowing and subterranean waters commencing at the westernmost south western corner of Pastoral Lease 3114/576 (Noonkanbah Station) and extending northerly, easterly, southerly, again easterly, again southerly, again easterly, again southerly and generally westerly along boundaries of that pastoral lease to the south eastern corner of Fitzroy Location 4. Then northerly, westerly and southerly along boundaries of that location to a south eastern corner of Pastoral Lease 3114/576 (Noonkanbah Station), aforesaid and then generally westerly, generally northerly and again generally westerly along boundaries of that pastoral lease to the starting point.
The parties entered into negotiation and reached agreement on the nature of native title rights in the area without litigation. In his reasons for decision, North J referred to anthropological reports which found that 'there remains a principled system of rights to country which relies upon normative rules for its legitimation and perpetuation. The philosophy and practices of the claimants are predicated upon a deeply held belief in the Dreaming. The claimants believe that the institutions and ways of doing things, understood to have the force and prescription of rules, have originated from thence. The landscape continues to provide testament to the activities whereby these laws were ordained while customary practice reflects their continuing ideal importance'(at 12).
He found also that 'religious beliefs and practices of the claimants continue to shape and influence their lives. Spiritual matters remain at the core of much thinking, social interaction and behaviour. The relationship which is forged between a member of the community and the natural world continues to be an important means of relating people to specific areas of country and to the natural world in general' (at 9).
On the basis of these findings, North J made the determination with the consent of the parties. The determination states that the native title rights with respect to the area covered by Pastoral Lease 3114/576 and the portion of unallocated Crown land, include:
(i) the communal right to possess, occupy, use and enjoy the land and waters to the exclusion of all others; and
(ii) the communal right to take, use and enjoy the flowing and subterranean waters for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).
Further, with respect to the area covered by Reserve 23226 and Reserve 26355, non-exclusive communal rights to use and enjoy the land and waters are as follows:
(i) the right to enter and remain on the land and waters;
(ii) the right to camp and erect shelters and other structures and to travel over and visit any part of the land and waters;
(iii) the right to take fauna and flora from the land and waters for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);
(iv) the right to take other natural resources of the land such as ochre, stones, soil, wood and resin for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);
(v) the right to take, use and enjoy the flowing and subterranean waters for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);
(vi) the right to engage in ritual and ceremony; and
(vii) the right to have access to, care for, maintain and protect from physical harm, particular sites and areas of significance to the common law holders.
Excluded from determination area are:
(a) any valid public works; and
(b) (i) the Calwynyardah-Noonkanbah Road; and
(ii) the Camballin-Noonkanbah Road
These rights and interests are to be held on trust by a delegated Prescribed Body Corporate for the Yungngora People, who consists of those people who:
(a) hold in common the body of traditional law and custom governing the Determination Area;
(b) identify themselves as, and are accepted as such by, the holders in common of that body of traditional law and custom; and
(i) descended from any one or more of the following apical ancestors (listed in broad family groups):
Jinmangkal, Rangku, Palpulanjanka, Tukalaji, Pinjaji, Nyuntuka, Tiliwali, Pulpalipu, Potara (Miller Cox), Yulatpa, Nancy Juganyi, Mick Michael, Walgu, Amy, Sylvia Yamalulu, Daisy Yamalulu, Peter Yamalulu, Maisie Yakai, Albert Magic, Purupuru, Kuramia, Nairi (Big Paddy), Bessie Nargoodah, Thelma Wangella, Tojo Wanterija, Nancy Buck, Billy Buck, Wita Costaine, Ginger Ngumila, Nyiti, Yapiki, Tjaranti, Wintili, Tjilua, Kuntjiwu, Toby Bulagardie, Honey Bulagardie, Freddy Puti, Maisie Lomparta, Topsy Pakatai, Yirinji, Tolwai, Kinjinpi, Pularimir, Minyin, Bob Mululby, May Jarrah, Friday Mulamula, Betty Marmaga, Tommy King, Dora Pintjaparta, Colin Wasi, Tommy Butler, Nipper Tabagee, Tjaba, Lucy Cubby, Snodger Bowmallie, Marie Elsie, Mick Nicki, Penny Bunghi, Dennis Boke, Dandy Buck, Norman Hawkins, Joe Pindan, Toby Pindan, Judy Yato,
Jimmy Skinner, Nita Skinner; or
(ii) in accordance with traditional law and custom, adopted into the group holding in common that body of traditional law and custom.
National Native Title Tribunal member Dan O'Shea, who facilitated the negotiations, stated that 'the struggle of Noonkanbah went to the heart of the aspirations of Aboriginal people to control their own land. Their example has greatly influenced the subsequent development of the law towards recognition of Indigenous ownership of traditional lands. This is a great legacy and all parties are to be congratulated on their perseverance in reaching agreement' (NNTT Media Release).
The Yungngora people have six months from the date the determination was made to nominate a Prescribed Body Corporate.
|National Native Title Tribunal Native Title Determination Summary - Noonkanbah|
|National Native Title Tribunal (27 April 2007) Noonkanbah Traditional Owners Recognised|
|Noonkanbah Determination Area map - ( PDF)|
|Cox on behalf of the Yungngora People v State of Western Australia  FCA 588 - ( PDF)|
|Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Applications/Claims (Australia) | Native Title (Australia) | Prescribed Body Corporate (PBC) (Native Title Act) (Australia)|
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