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Sharpe v State of Western Australia [2013] FCA 599

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 19 June 2013
Sub Category:Consent Determination (Native Title Act)
Location:In the vicinity of Fitzroy Crossing, Western Australia, Australia
The area of the Gooniyandi Application covers almost 11,209 square kilometres of land and waters, including wetlands and riverine systems, located to the east and south of Fitzroy Crossing in the Kimberley region of Western Australia. The Application Area includes the Bohemia Downs, Mt Pierre, Christmas Creek and Louisa Downs Pastoral Leases, parts of Gogo Station, Fossil Downs, Larrawa, Emmanuel and Margaret River Pastoral Leases, as well as Reserve areas and a small amount of unallocated Crown land.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: WAD6008/2000; National Native Tribunal No: WCD2013/003.
Alternative Names:
  • Gooniyandi Combined #2
  • Subject Matter:Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership
    URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2013/599.html
    Summary Information:
    Between:
    Dora Sharpe, Eric Lawford, Suzy Lamey, Stanley Holloway, Rita Shandley, David Street, John Till, Neville Sharpe, Teddy Cranbell, Butcher Cherel, Lorraine Shandley, Topsy Chestnut, Reenie Chestnut and Maureen Carter on behalf of the Gooniyandi People (APPLICANTS) and

    State of Western Australia, Shire of Derby/West Kimberley, Shire of Halls Creek, Kevin Stephen Brockhurst, Mary Kathleen Dixon, Gogo Station Pty Ltd, Klopper Holdings Pty Ltd and W.M.N MacDonald Pty Ltd, and Telstra Corporation Limited(RESPONDENTS)

    Judge: Gilmour J
    Where made: Joowaaringarri (Joy Springs)

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

    Native title is held by the Gooniyandi People.

    Membership of the estate group is defined in Schedule Six of the determination. The Gooniyandi people are:
    - the descendants of the following apical ancestors: Dalbagbiya, Garlinhingi, Gooraloowa, Gurlgurl, Jagi, Jangooyool, Jinggili, Jinny Ngilmia, Joorgabidija, Kimberley Jarlamarra, Labayng, Lagena, Larry, Loombardji, Lungguda, Maggie Lai:zil, Malangarwin, Malanggiya, Mandowa, Milba, Milindi, Millie, Millie Wanbal, Ningali, Ningmia, Nundjun, Myoomooroo, Rhoda Mandhan, Tommy, Warrgi, Wilinyi, Wilirlman, Wirngarri, Yarraru, Yigi, Badigurayng, Budoornja Giligan, Lilly Campbell, Little Polly Dimananggal, Big Polly Dulangerlus, Brian Kimidi, Mabel Lawel, Maggie Magiji, Amy Mirringala, Mary Miyerri, Mamburu Nogood Billy, Kitty Smith, Wadgimili Sandy Smith, Tommy Thompson and Ned Wiyurru; and
    - Aboriginal persons who self-identify as Gooniyandi and are recognised as Gooniyandi by other members of the Gooniyandi community under traditional law and custom.

    The exclusive native title rights over part of the determination area consist of the areas described in Schedule 3 of the consent determination. These exclusive native title areas are:

    - Mt Pierre Pastoral Lease 398/806, Bohemia Downs Pastoral Lease 398/807 and Louisa Downs Pastoral Lease 398/808, to which section 47 of the Native Title Act applies; and
    - Certificate of Title 1798/462, Special Lease 3116/10113, and Reserves 35197, 39061, 39301, 40569, 40570, 42828, 42951 and 43061 for the use and benefit of Aboriginal people, to which section 47A of the Native Title Act applies; and
    - Unallocated Crown Land 1 and 2 which abut Mt Pierre and Louisa Downs Pastoral Leases to the north of the claim area and to which section 47B of the Native Title Act applies.

    The exclusive native title rights and interests are:

    - except in relation to flowing and underground waters, an entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others; and
    - in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including the right to hunt on, fish from, take, use, share and exchange the natural resources for personal, domestic or non-commercial communal needs and also the right to take and use the waters for personal, domestic or non-commercial communal needs.

    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 and fish;
    - the right to take, share and exchange flora and fauna and other natural resources such as soil, sand, clay, gravel, ochre, timber, resin and stone for personal, domestic and non-commercial communal needs within the non-exclusive native title area;
    - the right to light fires for domestic, cultural and spiritual purposes;
    - the right to conduct and participate in cultural activities, cultural practices relating to birth and death including burial rites, ceremonies, meetings, the maintenance and protection of important sites and places, and teaching the physical and spiritual attributes of sites and places in the non-exclusive native title area;
    - the right to take and use the natural water of the area. This does not include the right to take lawfully captured water from the holders of the pastoral leases within the native title area.

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

    - Pastoral leases numbered 398/806 (Mt Pierre), 398/807 (Bohemia Downs), 398/808 (Louisa Downs), portion of 3114/1248 (Fossil Downs), portion of 3114/1257 (Christmas Creek), portion of 3114/1263 (Margaret River), portion of 398/800 (Larrawa) and portion of 398/810 (Gogo Station);
    - Lease GE H888432 to the Commonwealth of Australia for the purpose of Radio, Television and Communications;
    - The interests of persons who have the care, control and management of, or who hold a lease over areas of, reserves numbered 1582 (Watering Place Blue Bush Swamp), 1583 (Watering Place Needle Eve Rocks), 1584 (Watering Place Minnie Pool), 1585 (Watering Place Louisa River), 1586 (Watering Place Morgan's Grove), 1587 (Watering Place Rocky Spring), 1588 (Watering Place Me No Savvy Spring), 2320 (Public Utility), 22256 for the purpose of Stock Route (Margaret River to Wyndham), 23897 (Stock Route - Fitzroy Crossing), as well as reserves for the use and benefit of Aboriginal people numbered 35197, 39061, 39301, 40569, 40570, 42828, 42951, 43061, 45051 and 45630;
    - The road described as the portion of Yurabi Location 68 subject of Pastoral Lease 398/810 (Crown Lease 735/1994);
    - The interests of persons holding leases over areas of the reserves;
    - Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - Existing Interests under the Mining Act 1978 (WA); and
    - Other Rights and Interests:
    - granted by the Crown,
    - authorised under State or Commonwealth law including the Rights in Water and Irrigation Act 1914 (WA),
    - arising under the common law, 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,
    - rights of members of the public to access roads in accordance with the common law or if the access is to a stock route,
    - the rights of the holders of petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969 (WA) and existing mining tenements under the Mining Act 1978 (WA) to use roads and tracks within the native title area in order to access petroleum, pipeline or mineral interests,
    - existing public access to waterways and surrounding areas, stock routes and other areas pursuant to section 14 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA),
    - 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.

    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)

    The Gooniyandi Aboriginal Corporation RNTBC is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
    Detailed Information:
    Background
    Between 1997 and 1998, nine applications for determination of native title were lodged with the National Native Title Tribunal (NNTT). On 30 September 1998, pursuant to the Native Title Amendment Act 1998 (Cth), these applications became proceedings in the Federal Court. On 23 September 1999 these nine applications were amended and combined into a single lead application, WAG 6151/98.

    On 27 July 2000, a further application was filed on behalf of the Gooniyandi People. On 29 August 2000 this new application was combined with WAG 6151/98 and this became the current Gooniyandi Application (WAD 6008 of 2000).

    The application is brought on behalf of the members of the Gooniyandi People.

    At a ceremonial sitting of the Federal Court at Joowaaringarri, Justice Gilmour awarded both exclusive and non-exclusive native title rights over almost 11,209 square kilometres of land.

    Exclusive native title rights and interests were recognised over approximately half of the determination area and non-exclusive native title rights and interests over the remainder of the determination area.

    The Court held that native title rights and interests do not exist with respect to pastoral improvements on pastoral leases, including any buildings, airstrips, roads, watering points and stockyards.

    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 Gooniyandi People in relation to the land and waters covered by the Gooniyandi 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

    Agreement
  • Gooniyandi and Larrawa Indigenous Land Use Agreement (ILUA)
  • Gooniyandi and Gogo Station Pty Ltd Indigenous Land Use Agreement (ILUA)
  • Gooniyandi and Christmas Creek Indigenous Land Use Agreement (ILUA)
  • Gooniyandi and Margaret River Indigenous Land Use Agreement (ILUA)
  • Gooniyandi and Fossil Downs Indigenous Land Use Agreements (ILUA)
  • Organisation
  • Telstra Corporation Limited - Respondent
  • State of Western Australia - Respondent
  • Shire of Derby-West Kimberley - Respondent
  • Shire of Halls Creek - Requirement
  • Gogo Station Pty Ltd - Respondent
  • Gooniyandi Aboriginal Corporation
  • W.N.M. MacDonald Pty Ltd - Respondent
  • National Native Title Tribunal
  • Kimberley Land Council (Aboriginal Corporation)
  • 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)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Petroleum Pipelines Act 1969 (WA)
  • Post and Telegraph Act 1901(Cth)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • People
  • Kevin Stephen Brockhurst - Respondent
  • Mary Kathleen Dixon - Requirement
  • Gooniyandi People

  • Glossary

    National Native Title Tribunal (NNTT) (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Legislation | Local Government | State Government | Prescribed Body Corporate (PBC) (Native Title Act) (Australia) | Native Title Representative Body (NTRB) (Australia) | Respondent

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