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Smith on behalf of the Balanggarra People (Balanggarra #4) v State of Western Australia [2015] FCA 1334

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 27 November 2015
Sub Category:Consent Determination (Native Title Act)
Location:Wyndham-East Kimberly , Western Australia , Australia
The native title includes lands and waters covering approximately 43.1 square kilometres near the Shire of Wyndham East Kimberley, Western Australia. Specific locations include: Adolphus Island (above the high water mark) all land comprising Lot 1702 and Lot 1709 as shown on Deposited Plan 183763. All land comprising Marndoc Location 10 as shown on Deposited Plan 93195 (Former Special Lease 3116/10410). All land comprising Lot 12 as shown on Deposited Plan 33452 being General Lease L140073 is excluded.
Legal Status: Registered on the National Native Tribunal Register of native title determinations.
Legal Reference: Federal Court No: WAD163/2013; Native Title Tribunal No: WCD2015/005.
Alternative Names:
  • Balanggarra #4
  • Subject Matter:Access | Cultural Heritage | Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2015/1334.html?context=1;query=Smith%20on%20behalf%20of%20the%20Balanggarra%20People%20(Balanggarra%20#4)%20v%20State%20of%20Western%20Australia;mask_path=
    Summary Information:
    Between:
    Darryl Smith, Shirley Williams, Pamela Alberts and Augustine Unhango on behalf of the Balanggarra people (APPLICANTS)
    and
    the State of Western Australia (RESPONDENTS)

    Native title exists in parts of the determination area. It consists of exclusive and non-exclusive rights.

    Native title is held by: Members of the Balanggarra People. The National Native Title Tribunal Extract notes the following in relation to the Balanggarra People:

    The holders of native title include the following people who have the ability to pass on the native title rights to future generations: 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.
    [The symbol ^ is used to connote the sound 'a'; as in but. For example, 'Dz^ngal' would be pronounced 'Dzangal'.]

    The exclusive native title rights over part of the determination area consist of: rights in relation to land including the right to possession, occupation, use and enjoyment of the determination area. This area was previously subject to prior native title extinguishment as the claim was over Crown Land. However, s 47B of the Native Title Act 1993 (Cth) rendered the extinguishment invalid granting exclusive native title rights to the applicants. These rights are subject to:
    - the laws of the State and Commonwealth (including the common law);
    - traditional laws and customs of the Native Title Holders for their personal, domestic and communal needs (including spiritual or cultural) but not for commercial purposes.

    Non-exclusive rights in the determination area:
    The native title holders do not have exclusive rights over intertidal areas to stop others from:
    - the right to enter, travel over and remain on the area;
    - the right to camp on the area and build structures for that purpose;
    - the right to hunt, fish, gather and use (by way of sharing or exchange) the resources of the area but not for commercial purposes;
    - the right to light fires for domestic purposes;
    - the right to take and use water from the area;
    - the right to engage in cultural activities on the area including:
    - visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
    - conducting and participating in ritual; and
    - passing on knowledge about the physical and spiritual attributes of the determination area and areas of
    importance on or in the determination area.

    These rights and interests do not confer possession, occupation, use and enjoyment over land and waters on the native title holders to the exclusion of all others over the determination area. The native title holders do not have the right to control the access or the use of the land and waters. The Balanggarra People can determine these rights subject to traditional laws and customs as well as State and Commonwealth law.

    Non-native title rights and interests that exist in the determination area include:
    - minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
    - petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - water captured by the holders of the other interests in accordance with those interests;
    - the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water for personal, domestic and communal needs (including spiritual or cultural needs) but not for commercial purposes;
    - rights and interests of members of the public under the Rights in Water and Irrigation Act 1914 (WA) and the Commonwealth including but not limited to: the public right to fish, navigate, access the determination area by an employee, agent or instrumentality of the State, Commonwealth or any local government authority as required in the performance of statutory or common law duty where access would be permitted to private land;
    - rights to public access and enjoyment under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) to waterways, banks, beds and foreshores of waterways, beaches and stock routes and the international right of innocent passage through the territorial sea;
    - rights and interests, including licences and permits, granted by the crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including but not limited to Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Managment Act 1991 (Cth) and any regulations made pursuant to that legislation.

    Where other interests are inconsistent with the continued existence, enjoyment or exercise of native title rights and interests, the rights still exist but have no effect. The native title rights do not prevent the doing of any activity permitted to be done under the other interests. In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

    The Balanggarra Aboriginal Corporation RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held in trust for the native title holders.
    Detailed Information:
    Backgroud

    The claim was initially filed in 2013 and has been divided into three parts. The previous applications have involved Adolphus Island (above the high water mark), two parcels of land located east of Wyndham airport which overlap with the third claim for a further six parcels of land. These parcels at the time of judgement are the subject of mediation between the State of Western Australia and the Balanggarra People. The remaining part of this application is concerned with whether or not s 47B of the Native Title Act 1993 (Cth) applies so the previous declaration of the extinguishment of native title could be disregarded.

    The parties agree on s 47B of the Native Title Act 1993 (Cth) applying to the unallocated Crown Land comprising Adolphus Island and the Marndoc location excluding its intertidal areas.

    Through mediation, agreement has been reached as to the terms of the determination of native title to provide recognition of the native title rights and interests held by the Balanggarra People in relation to part of the land and waters covered by the Balanggarra 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
  • State of Western Australia - Respondent
  • Balanggarra Aboriginal Corporation RNTBC
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Mining Act 1978 (WA)
  • Petroleum Act 1936 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
  • Fish Resources Management Act 1994 (WA)
  • Fisheries Management Act 1991 (Cth)
  • Pearling Act 1990 (WA)
  • Mining Act 1904 (WA)
  • People
  • Balanggarra People - Native Title Applicants

  • References

    General Reference
    AIATSIS (2015) What's new in Native Title - November 2015
    National Native Title Tribunal (2015) extract from the Native Title Register (of native title determinations) for Federal Court matter WAD163/2013 as at 11/12/15.

    Documents

    Map
    Smith on behalf of the Balanggarra People (Balanggarra #4) v State of Western Australia [2015] FCA 1334 - Map of determination area - ( PDF)
    Smith on behalf of the Balanggarra People (Balanggarra #4) v State of Western Australia [2015] FCA 1334 - National Native Title Tribunal Extract - ( PDF)

    Glossary

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

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