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Banjima People v State of Western Australia (No 3) [2014] FCA 201

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 12 March 2014
Sub Category:Consent Determination (Native Title Act)
Location:The Pilbara Region, Western Australia, Australia
In the vicinity of Mulga Downs and Juna Downs. The Determination Area includes areas of the Karinji and Millstream Chichester National Parks.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Tribunal file no. WCD2014/001 Federal Court file no(s) WAD6096/1998
Subject Matter:Access | Land Use | Mining and Minerals | Native Title
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2014/201.html
Summary Information:
Banjima People v State of Western Australia (No 3) [2014] FCA 201

Between:
Banjima People (APPLICANTS)
and
State of Western Australia & Ors (RESPONDENTS)

Judge: Barker J
Where made: Karijini, Western Australia

Determination:

**Litigated decision**

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

Native title is held by the Banjima People

The exclusive native title rights over part of the determination area consist of:
- the right to possess, occupy, use and enjoy the land and waters of the Exclusive Area;
- the right to make decisions about the use of the land and waters of the Exclusive Area by persons who are not members of the Banjima People; and
- the right to control the access of others to the land and waters of the Exclusive Area.

The non-exclusive native title rights over part of the determination area consists of:
- the right to access and move about the land and waters of the Determination Area;
- the right to live on the land in camps and shelters on the Determination Area;
- the right to engage in cultural activities and practices on the land and waters of the Determination Area;
- the right to hunt and take fauna, gather and take flora, take natural resources; and
- the right to maintain and protect places and areas of importance such as rock art, engraving sites, stone arrangements and so on.

These rights are subject to the laws of the State and Commonwealth, including common law and the traditional laws and customs of the Banjima People.

Non-native title rights and interests that exit in the determination area include:
- the rights and interests of persons holding leases over land;
- the rights and interests of people maintaining the reserves;
- the rights and interests of existing pastoral leases in the area;
- the rights and interests of persons holding licences to take water in the area;
- the rights and interests of persons holding mining tenements or licences;
- valid or validated rights and interests, including licences and permits, granted by the Crown pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation; and
- the right to access the Determination Area by an employee, agent or instrumentality of the State, Commonwealth or any local government or statutory authority as required and permitted by law in the performance of their statutory or common law duty;

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

Provisions Relevant to the Native Title Rights

Banjima Native Title Aboriginal Corporation, 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 on trust for the native title holders.
Detailed Information:
Background

The Banjima People of the Central Pilbara region in WA were formally recognised as having native title rights to approximately 10,200 square kilometres of traditional lands on the 11th of March 2014. The case began in 1998, but due to the Western Australian government and the Banjima people being unable to reach a settlement after 13 years of negotiations, the case was then passed on the the Australian Federal Court in 2011. According to the ABC, "Yamatiji Marlpa Aboriginal Corporation chief executive Simon Hawkins says he is disappointed that the government chose to fight Banjima in court rather than collaborating with the group, especially since the various mining companies in the area have been willing to negotiate with locals for years" (2013).

The official recognition of the Banjima culture and heritage includes natural landscapes such as the Dampier Archipelago, Mackerel Islands, Millstream Chichester National Park, and the Karijini National Park. The Determination Area houses some 700 Indigenous archeological sites and 10,000 rock engravings that are estimated to be over 30,000 years old. (First Peoples Worldwide, 2013) The Determination Area that the Banjima People just won claim to includes project areas of BHP, Rio Tinto, Hancock Prospecting, and Fortescue Metals Group. This is due to the reserves of crude oil, salt, natural gas and iron ore present in the land.

Banjima elder Alec Tucker says "[W]e've been waiting for so long, we know it's Banjima country, it's my grandfather's country, my father's country, I think the old people would be happy about today," he said. (First Peoples Worldwide, 2013)

'We have been working for this for a long time, we have been looking forward to this for a long time,' says Banjima elder Alec Tucker. 'We have always known our Country, we know it is Banjima Country, and now others know it too. It is my grandfather's country, it is my father's country. The old people are very happy today. Our people will celebrate - we will celebrate strong.' (First Peoples Worldwide, 2013)

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 Banjima People in relation to part of the land and waters covered by the Banjima 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
  • National Native Title Tribunal
  • State of Western Australia
  • Shire of East Pilbara
  • Town of Port Hedland
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)

  • References

    General Reference
    Lizzie Gunggoll (September 10, 2013) Aboriginals Win Rights to Resource-Rich Region of Western Australia
    Article
    Australian Broadcasting Corporation (30 Aug 2013) Banjima people win native title claim in the Pilbara

    Documents

    Document
    Banjima People - Pilbara region - ( PDF | PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Federal Government | Legislation | Litigated Determination (Native Title Act 1993 (Cth)) (Australia) | National Park | Local Government | Native Title (Australia) | Native Title Determination (Australia) | Respondent | Native Title Registers | National Native Title Tribunal (NNTT) (Australia)

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