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Cheinmora v State of Western Australia (No 2) [2013] FCA 768

Category: Agreement
Date: 7 August 2013
Sub Category:Consent Determination (Native Title Act)
Location:Wyndham, Western Australia, Australia
The area of the Balanggarra Combined Application covers approximately 26,025 square kilometres of land and sea in the northern Kimberley region of Western Australia. It is bounded in the east by the Cambridge Gulf and the Miriuwung Gajerrong #1 and #4 determination areas, to the southeast by another application made on behalf of the Balanggarra People, WAD 6004 of 2000, (Balanggarra #3 Application), to the south and southwest by the Wanjina-Wunggurr Wilinggin determination area and to the west by the Wanjina-Wunggurr Uunguu determination area. The area of the Balanggarra Combined Application includes the Kalumburu, Oombulgurri and Forrest River Aboriginal reserves, Carson River pastoral lease, parts of the Drysdale River National Park and unallocated crown land at Cape Londonderry, Carson River and the Cambridge Gulf coast. The northern boundary runs through sea country and encompasses many islands near the coast including the Sir Graham Moore Islands, Adolphus Island and Reveley Island.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: WAD6027/1998; National Native Title Tribunal No: WCD2013/005.
Alternative Names:
  • Balanggarra (Combined)
  • Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2013/768.html
    Summary Information:
    Between:
    Delores Cheinmora, Vernon Gerrard, Mary Teresa Taylor, May Smith, Mona Williams, James Taylor, Roy Martin, Laurie Waina, Clement Maraltadj and Victor Martin (APPLICANTS) and

    State of Western Australia, The Commonwealth of Australia, Paspaley Pearling Company Pty Ltd, Roebuck Pearl Producers Pty Ltd and Telstra Corporation Limited (RESPONDENTS)

    Judge: Gilmour J
    Where made: Wyndham

    Determination: Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights. This confers on the estate group members possession, occupation, use and enjoyment to the exclusion of all others over the portion of the determination area that has exclusive rights.

    Native title is held by the Balanggarra People.

    Membership of the estate group is defined in Schedule Six of the determination. The Balanggarra people are:
    - the descendants of Wundangana Waina, Wuju, Amburu, Djirlarmuru, Mitilber/Njorda, Jiani, Akingungka/Nakmara, Rugben, Moolpan/Kandarworl, Boongottor, Matilda Moorajayi, Joonpan/Moorajayi, Maraltadj, Miuron, Moongkama, Purwan, Waapa, Makumuku, Torto/Yilimbiri, Nandjimara, Jalalarimiri/Kolorumari, Puraru, Nandjimara, Yarluwutj, Koolberi, Angela, Moongkama, Yoolyool, Mutumutu, Murungga, Bundamiri, Vernon Dah, Mayaltor, Malangnari, Dz^ngal, Naringa, Wolarmbar, Murlu, Zamin^elli, Mandomiri, G^nambul, Nganawongka, Ng^lnari, Mal^ngu, W^Nu, W^garmiri, Waibela, ^Nuwija, Jidei-ida/Wugad^r, N^lamiri, Malnuben, Gootimurri, Junbabara, Linound^ri, Wungur^ru, Judu, Linound^ri, Jumbabera, Bo, Do^lu, Lau-uri, Wiju/Baluga, Wanguben, Mundjangal, D^lnga, Mud^ta, Rebern, D^lnga, Med^rda, Aruwund^rdzera, Mal^ngunawal, Galamiri, Angular, Benmiri, Ziranim/Ganggu, M^labu, ^m]ra, Wulangan, Jura/Juradide, Njama, Dagi, Zunggalima, Weni, Njama, Charlie Plateman, Dickie Kooyoo, Baija, Jeduri, Zunggalima, Mandurga, W^ngadju, Nitil, Lura/Gurul, Birim, ^Ngari, Dumalbon/Tumelben, Merliman, Wangooloo, Wamblma, W^rga, Bangudenanga, Birra-rar-raa, Wanjuwila, Wungaruru, Wurarwungedzi, Zuandi, Z^lubern, G^mura, W^mbu/Njurnji, Waneigera, J^wan, Z^Inga, Guri, Banmon, Warin.

    It is noted that recognition of the native title rights and interests includes recognition of the native title holders' ability to transmit those rights and interests to successive generations of Balanggarra people in accordance with traditional laws and custom.

    The exclusive native title rights over part of the determination area consist of the areas described in Attachment One to Schedule One of the consent determination.

    Non-exclusive native title rights and interests that exist over the native title area in the Determination Area include:

    - the right of access and to travel over the non-exclusive native title determination area;
    - the right to live, and to camp on the land, and to erect shelters and other structures;
    - the right to hunt, gather, fish and use including by way of sharing or exchange the resources of the land and waters;
    - the right to light fires for domestic, cultural and spiritual purposes;
    - the right to conduct and participate in cultural activities such as visiting places of cultural or spiritual importance and protecting those places, conducting and participating in ceremony and ritual including in relation to death, holding meetings, and passing on knowledge about the physical and spiritual attributes of sites and places in the determination area.

    Non-native title rights and interests that exist within the determination area can be summarised as:

    - The rights of the registered proprietor of freehold land certificate of title volume 1019 folio 700 (Marndoc Location 3) and certificate of title volume 1019 folio 701 (Marndoc Location 2);
    - The interests of persons who have the care, control and management of, or who have a right of access or use of, reserves numbered 8222, 8223, 32853, 3960, 13873 and 21675;
    - Wyndham Port declared pursuant to the Shipping and Pilotage Act 1967 (WA);
    - The rights of the holders of the leases Reserve 8222, Pastoral Lease 3114/1056 (Carson River Station), General Lease J284270 (to Kalumburu Aboriginal Corporation), General Lease I724663 (to Jiamiddie Aboriginal Corporation), Lease of part of Lot 1 on Deposited Plan 92237 (LR3069/108), Lease of Lot 3 on Deposited Plan 144097 (certificate of title volume 1019 folio 700) and Lease of Lot 2 on Deposited Plan 202400 (certificate of title volume 1019 folio 701);
    - The rights of Striker Diamonds Pty Ltd as the holder of the mining tenements M 80/492 and L 80/28;
    - The rights of North Australian Diamonds Ltd as the holder of the mining leases M 80/526 and M 80/532;
    - The rights of Clara Resources Pty Ltd as the holder of the mining exploration licences E 80/04374 and E 80/04375;
    - The rights of Janet Meyers as the holder of the exploration licence E 80/04620;
    - The rights of Caigen Wang as the holder of the exploration licence EOS70/00016;
    - The rights of Eni Australia BV as the holder of the petroleum exploration permit TP/22;
    - The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including the rights to inspect land, install and operate telecommunications facilities and alter, remove, maintain, replace and ensure the proper functioning of its telecommunications facilities, for employees, agents or contractors to access telecommunications facilities in the native title area and under any license, access agreement or easement relating to its telecommunications facilities in the Determination Area;
    - Other Rights and Interests:
    - those granted by the Crown, including licences and permits, pursuant to statute or otherwise in the exercise of executive power including rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to that legislation,
    - authorised under State or Commonwealth law including the Rights in Water and Irrigation Act 1914 (WA),
    - rights of access by an employee, servant or agent of the Western Australian or Commonwealth government as required in the performance of their legal duties,
    - arising under the common law, rights of members of the public to fish, navigate and use Gibb River to Kalumburu Road or any other public road in the determination area,
    - existing public access to waterways and surrounding areas, beaches and stock routes pursuant to section 14 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA),
    - international right of innocent passage through the territorial sea.

    Provisions Relevant to the Native Title Rights

    Native title does not exist over
    - minerals as defined in the Mining Act 1978 (WA); or
    - petroleum as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
    - geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
    - water captured by the holders of the other interests in accordance with those interests.

    The Balanggarra Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held on trust for the native title holders..
    Detailed Information:
    Background

    On 24 July 1995, an application for determination of native title 'Balanggarra' (WC95/30) was lodged with the National Native Title Tribunal (NNTT) pursuant to the Native Title Act 1993 (Cth). Later that year a further application for determination of native title 'Balanggarra #2' was lodged with the NNTT (WC95/78).

    On 30 September 1998, pursuant to the Native Title Amendment Act 1998 (Cth), these two applications became proceedings in the Federal Court.

    On 13 May 1999, the applications were amended and combined into a single application, WAG 6027 of 1998 (Balanggarra Combined Application).

    The application is brought on behalf of the members of the Balanggarra people.

    At a sitting of the Federal Court at Wyndham, Justice Gilmour awarded both exclusive and non-exclusive native title rights over approximately 26,025 square kilometres of land and sea.

    'Balanggarra' means 'one mob together for country'. The northern part of Balanggarra is 'blue water' country and includes several rivers, saltwater, reefs, and offshore islands. The southern part is 'brown water' country and includes land drained by the Forrest River system, the waters of the Cambridge Gulf and Adolphus Island.

    Balanggarra traditional owner Tom Birch said the determination was a momentous occasion for his people and that his people now needed to use their determination to provide the Balanggarra people with opportunities (The Kimberley Echo, 2013).

    Tom Birch, who is also the Chairman of the Kimberley Land Council said that his people "have waited a long time for this and I am so proud of the Balanggarra people for having the patience, determination and courage to continue to fight for native title and the recognition that comes with that... Our old people started this 15 years ago, and sadly many of them are not with us today to celebrate this great win for our people, but we will always remember the hard work they did to get us here today... That means having good governance and building up our Balanggarra Aboriginal Corporation to be strong, so we can leave behind a successful organisation for the next generations... I remember our old people were at a meeting, out in the bush, and they said if we were going to get our native title we needed to be united, that we needed to look after each other and share with each other.'

    In handing down the determination, Justice John Gilmour acknowledged the hearing was one of mixed emotions for the Balanggarra people. He noted that "there is a sense of happiness because after about 18 years since the first Balanggarra native title claim was lodged there is finally recognition... There is, however, a sense of loss and sadness because a significant number of the original people named as the applicant have passed away... I have allowed their names to remain on the court's judgment as a special act of honour and respect.'

    Kimberley Land Council Chief Executive Nolan Hunter thanked the State Government and respondent parties for their co-operation and said that when the parties involved "can agree on an outcome and native title can be negotiated by consent, not only does it speedup the process but the decision is beneficial to all parties."

    Following the consent determination, Attorney-General Michael Mischin said that "joint management arrangements will create significant opportunities for local Aboriginal people to be employed working on country and ensure traditional owners have a key decision making role in how the unique and ancient Kimberley landscape is managed."

    Immediately following the determination, a Balanggarra Indigenous Protected Area (IPA) was declared. It forms part of Australia's National Reserve System. It is managed under the International Union for Conservation of Nature (IUCN) Category VI, as a protected area with sustainable use of natural resources and covers about 10,000 square kilometres of land and sea country.

    Balanggarra Aboriginal Corporation chairwoman Cissy Birch Gore said that her people "want to speak for our country, decide for our country and manage access to our country" and that the IPA declaration would achieve this.

    Details of Judgement

    Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Balanggarra People in relation to the land and waters covered by the Balanggarra (Combined) Application. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

    The court was satisfied that a determination of native title was within the power of the court.

    Related Entries

    Organisation
  • Kimberley Land Council (Aboriginal Corporation)
  • National Native Title Tribunal
  • State of Western Australia - Respondent
  • Commonwealth of Australia - Respondent
  • Paspaley Pearling Company Pty Ltd - Respondent
  • Roebuck Pearl Producers Pty Ltd - Respondent
  • Telstra Corporation Limited - Respondent
  • Balanggarra Aboriginal Corporation RNTBC - Aboriginal Representative Party
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Mining Act 1978 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
  • Post and Telegraph Act 1901(Cth)
  • Telecommunications Act 1975 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Fish Resources Management Act 1994 (WA)
  • Pearling Act 1990 (WA)
  • Fisheries Management Act 1991 (Cth)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Mining Act 1904 (WA)
  • People
  • Balangarra People - Native Title Claimant

  • References

    General Reference
    Kimberley Land Council (May 2010) Native Title News
    Newspaper Article
    Rourke Walsh (August 15, 2013) Balanggarra win title fight

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Legislation | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Native Title Determination (Australia) | Prescribed Body Corporate (PBC) (Native Title Act) (Australia) | Public Company | Native Title Applications/Claims (Australia) | Joint Management Agreement | Indigenous Protected Area (Australia)

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