Wise on behalf of the Kurungal Native Title Claim v State of Western Australia  FCA 1329
|Binomial Name: ||Federal Court of Australia|
|Date: ||1 December 2015|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Ngumpan Community, Kimberley , Western Australia , Australia|
|The determination area includes lands and waters covering approximately 887 square kilometres south-east of Fitzroy Crossing in the Kimberley, Western Australia. The area is within the Christmas Creek Pastoral Lease.
The determination area commences at the easternmost southeastern corner of Pastoral Lease N049681 (Christmas Creek) and extends generally westerly along boundaries of that pastoral lease to the centreline of Christmas Creek; Then generally northwesterly downwards along that centreline to the intersection with a eastern boundary of Pastoral Lease N049678 (Gogo) being a point on the present boundary of Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010); Then northerly, generally northwesterly, generally northeasterly and generally southeasterly along boundaries of that Native Title Determination to the intersection with a western boundary of Reserve 39302; Then southerly, southeasterly and generally northeasterly along boundaries of that reserve to the intersection with a southwestern boundary of Native Title Determination WAD6008/2000 Gooniyandi Combined #2 (WC2000/010); Then generally southeasterly along boundaries of that Native Title Determination to the intersection with a western boundary of Pastoral Lease N049681 (Christmas Creek); Then easterly, generally northeasterly, southeasterly and southerly along boundaries of that pastoral lease back to the commencement point.|
|Legal Status: ||Registered on the National Native Title Register of native title determinations. |
|Legal Reference: ||Federal Court No: WAD6217/1998; National Native Title Tribunal No: WCD2015/006.|
|Subject Matter:||Access | Cultural Heritage | Native Title | Pastoral Activities|
|Summary Information: |
|Wise on behalf of the Kurungal Native Title Claim v State of Western Australia|
Butcher Wise, C.A (Deceased), Freddy Thomas, J.T (Deceased), Malaghy Hobbs, Rodney Rawlins, Wilfred Steele, A.L (Deceased), Jane Bieundurry, Marjorie Baldwin-Jones on behalf of the Kurungal People (APPLICANTS)
the State of Western Australia, the Shires of Derby/West Kimberley and Halls Creek, Klopper Holdings Pty Ltd (leaseholder of Christmas Creek Pastoral Lease) and Telstra Corporation Ltd (RESPONDENTS)
Judge: Gilmour J
Where made: Broome
Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
Native title is held by the Kurungal people.
The non-exclusive native title rights and interests that exist within the determination area are:
- the right to access and move freely through and within each part of the determination area;
- the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes on the determination area;
- the right to hunt, gather and fish for personal, domestic, cultural and non-commercial purposes;
- the right to take and use flora and fauna for personal, domestic, cultural and non-commercial communal purposes;
- the right to take share and exchange the natural resources of each part of the determination area, including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic cultural and non-commercial purposes;
- the right to light fires for cultural purposes, engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
- the right to conduct and participate in ceremonies;
- the right to conduct burials and burial rites and other ceremonies in relation to death;
- the right to hold meetings;
- the right to visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the determination area;
- access water for personal, domestic, cultural or non-cultural communal purposes. This does not include the right to take or use water lawfully controlled or captured by the holder of the Christmas Creek pastoral lease (Lease N049681);
- the right to be accompanied on the area by those persons who, though not native title holders but are: spouses or immediate family members of the native title holder, people reasonably required under traditional law by the native title holders to perform ceremonies or cultural practices on the determination area, people who have specialised knowledge based on training, study or experience who are requested by the native title holders to observe or record traditional activities or cultural significance on the determination area, in connection with the exercise of native title rights and interests.
The above rights do not confer possession, occupation, use and enjoyment to those parts of the determination area on the native title holders to the exclusion of all others, nor do they convey a right to control access of others to the land or waters of those parts of the determination area.
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 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 lawfully captured by the holders of Other Interests (including pastoral leases, existing mining leases) except the right to take and use the ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA)
- public rights in water under the Rights in Water and Irrigation Act 1914 (WA)
-public access and enjoyment of public places under s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
- acts associated wtih telecommuncation and post under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecomunications Corporation Act 1989 (Cth), the Telecommuncations Act 1991 and the Telecommuncations Act 1997 (Cth).
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title rights.
Tiyatiya 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 on trust for the native title holders.
|Detailed Information: |
The application was initially lodged with the National Native Title Tribunal in 1997 and has since been amended twice. Due to the long time period of the application, inconsistencies arose and the application required updating. Justice Gilmour accepted the reasons for the inconsistency to be:
- members from the initial application were now deceased;
- there was an applicant listed on the application who was not recognised as an ancestor of the Kurungal people;
- additional names of applicants were included for reasons of accuracy and to ensure cultural recognition;
- there were small typographical errors on the form.
These errors were agreed upon by the parties to the application. Gilmour J gave the Kurungal people twelve months to nominate a body corporate. The Tiyatiya Aboriginal Corporation was nominated on the 25 of November 2016.
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 Kurungal people in relation to part of the land and waters covered by the Kurungal 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.