FEDERAL COURT OF AUSTRALIA

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

REASONS FOR JUDGMENT

1    On 28 August 2013, I made the following order in this proceeding:

1.    The claimants are entitled to a determination of native title under the Native Title Act 1993 (Cth). The Court will now invite the claimants to bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course.

2    On 11 March 2014 at Karijini National Park in the Pilbara Region of Western Australia, the claimants moved for a determination of native title in terms that were, as all parties to the proceeding agreed, in accordance with my findings as to existence of native title and extinguishment set out in my reasons in Banjima People v State of Western Australia (No 2) [2013] FCA 868.

3    Accordingly, I then made a determination of native title, pursuant to the Native Title Act 1993 (Cth), in the terms proposed.

4    The determination of native title so made is attached to these reasons.

Associate:

Dated:    12 March 2014

BEING SATISFIED that a determination of native title in the terms set out in Attachment A in respect of WAD 6096 of 1998 would be within the power of the Court, pursuant to section 94A of the Native Title Act 1993 (Cth):

THE COURT ORDERS THAT:

1.    In relation to the Determination Area, there be a determination of native title in WAD 6096 of 1998 in terms of the Determination in Attachment A.

2.     The Banjima Native Title Aboriginal Corporation (ICN 7971) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There be no order as to costs.

Dated: 11 March 2014

__________________________

The Honourable Justice Barker

ATTACHMENT A

DETERMINATION OF NATIVE TITLE

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

1.    Native title exists in the Determination Area in the manner set out in paragraphs 3 and 4 of this determination.

Native title holders (s 225(a) Native Title Act)

2.    The native title in the Determination Area is held by the Banjima People. The Banjima People are the people referred to in Schedule 6.

The nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) Native Title Act)

3.    Subject to paragraphs 4, 5, 6 and 9 the nature and extent of the native title rights and interests in relation to the Determination Area (other than the Exclusive Area) are that they confer the following non-exclusive rights on the Banjima People, including the right to conduct activities necessary to give effect to them:

(a)    the right to access and move about the land and waters of the Determination Area, be present on the land and waters, live on the land in camps and shelters, and engage in cultural activities on the land and waters including conducting and participating in ceremonies and meetings;

(b)    the right to hunt and take fauna, gather and take flora, take fish and take stones, timber, ochre and water;

(c)    the right to have access to, maintain and protect places and areas of importance on or in the land and waters of the Determination Area, including rock art, engraving sites, stone arrangements and the like.

4.    Subject to paragraphs 5 and 9 the nature and extent of the native title rights and interests in relation to the Exclusive Area are that they confer the following exclusive rights on the Banjima People, including the right to conduct activities necessary to give effect to them:

(a)    the right as against the whole world to possess, occupy, use and enjoy the land and waters of the Exclusive Area;

(b)    a 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

(c)    a right to control the access of others to the land and waters of the Exclusive Area.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraphs 3 and 4:

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Banjima People;

(b)    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination; and

(c)    do not confer any rights in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

1.    The native title rights and interests set out in paragraph 3 do not confer:

(a)    possession, occupation, use and enjoyment on the Banjima People to the exclusion of all others; or

(b)    a right to control the access to, or use of, the land and waters of the Determination Area (other than the Exclusive Area) or its resources.

Areas to which s 47A or s 47B of the Native Title Act apply

2.    Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the land and waters described in Schedule 4.

The nature and extent of any other interests

8.    The nature and extent of the Other Interests are described in Schedule 5.

Relationship between native title rights and other interests

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and the Other Interests is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Definitions and Interpretation

10.    In this determination, unless the contrary intention appears:

“Determination Area” means the land and waters within the external boundary described in item S1.1 of Schedule 1 and depicted on the maps at Schedule 3, but not including the Unclaimed Area;

“Exclusive Area” means that part of the Determination Area described in item S1.2 of Schedule 1 and depicted on the maps at Schedule 3;

“land” has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;

“Native Title Act” means the Native Title Act 1993 (Cth);

“ochre” does not include ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed);

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule 5 and referred to in paragraph 8, as at the date of this determination;

“Unclaimed Area” means the land and waters described in Schedule 2 and shaded pink on the maps in Schedule 3;

“underground water” includes water that percolates from the ground;

“use” does not include use by way of trade;

“waters” has the same meaning as in the Native Title Act.

11.    In the event of any inconsistency between the written description of an area in Schedule 1, Schedule 2, Schedule 4 or Schedule 5, and the area as depicted on the maps at Schedule 3, the written description prevails.

S1.1    Determination Area

The external boundary of the Determination Area, generally shown as bordered in blue on the maps at Schedule 3, is as follows:

Commencing at a point on the northern boundary of Reserve 30082 (Karijini National Park) at Longitude 118.124481° East, also being a point on the southern boundary of Native Title Determination Application WAD6005/03 Yindjibarndi #1 (WC03/3), and extending north westerly, generally north easterly and generally easterly along boundaries of that native title determination application passing through the following coordinate points.

Then south easterly along boundaries of that native title determination application to the intersection with Native Title Determination Application WAD6287/98 Palyku (WC99/16) at Longitude 118.814893° East, Latitude 22.008794° South; then generally south easterly along boundaries of that native title determination application passing through the following coordinate points.

Then south easterly to a northern boundary of Native Title Determination Application WAD6280/98 Nyiyaparli (WC05/6) at Latitude 22.345315° South and extending generally south easterly along boundaries of that native title determination application passing through the following coordinate points.

Then south westerly along boundaries of that native title determination application to the intersection with Native Title Determination Application WAD196/2013 Nyiyaparli #3 (WC13/3) at Longitude 119.127503° East, Latitude 22.995316° South; then generally south westerly along boundaries of that native title determination application passing through the following coordinate points.

Then continuing south westerly along the boundary of that native title determination application to Longitude 118.926692° East; then generally westerly passing through the following coordinate points.

Then north westerly to an easternmost boundary of the southern severance of Reserve 30082 (Karijini National Park) at Latitude 23.024322° South and extending northerly, easterly, again northerly, westerly and again northerly to the southern boundary of the Pastoral Lease 3114/1191 (Juna Downs); then generally westerly, generally northerly, generally easterly and northerly along boundaries of that pastoral lease to Latitude 22.809865° South; then generally north westerly passing through the following coordinate points back to the commencement point.

For the avoidance of any doubt, land and waters within the following native title determinations applications are excluded:

•    Native title determination application WAD6169/98 Kariyarra People (WC99/3)

•    Native title determination application WAD6287/98 Palyku (WC99/16)

•    Native title determination application WAD6005/03 Yindjibarndi 1 (WC03/3)

•    Native title determination application WAD6280/98 Nyiyaparli (WC05/6)

•    Native title determination application WAD196/2013 Nyiyaparli #3 (WC13/3)

•    Native title determination application WAD340/2010 Yinhawangka Part A (WC10/16)

S1.2    Exclusive Area

The Exclusive Area, generally shown as shaded green on the maps at Schedule 3, comprises:

The following areas, being land and waters where native title has been completely extinguished, were excluded from the application for native title in WAD 6096 of 1998 and are excluded from the Determination Area.

All of the following areas are shown generally as shaded pink on the maps in Schedule 3.

S2.1    Freehold

S2.2    Reserves

S2.3    Leases

S2.4    Dedicated roads and roads set aside, taken or resumed and associated features

(a)    Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following:

(b)    The following public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) associated with the roads identified in sub-item 0 above:

Sections 47, 47A or 47B of the Native Title Act apply to the following land and waters within the Determination Area, which are generally shown as hatched in green on the maps at Schedule 3:

S4.1    Section 47A

Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of prior interests, including those referred to below, in relation to those parts of the Determination Area the subject of the following interests has been disregarded:

S4.2    Section 47B

Section 47B of the Native Title Act applies with the effect that any extinguishment by the creation of prior interests in relation to those parts of the Determination Area referred to below has been disregarded:

The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

S5.1    Leases

The following leases and the rights and interests of the holders from time to time of those leases:

S5.2    Reserves

(a)    The following reserves:

(b)    The rights and interests of persons who have the care, control and management of the reserves identified in sub-item 0 above;

(c)    The rights and interests of persons entitled to access and use the reserves identified in sub-item 0 above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

(d)    The rights and interests of persons holding leases over areas of the reserves identified in sub-item 0 above, including but not limited to the lease dated 1 March 1988 granted by the Aboriginal Lands Trust to Mugarinya Community Association Inc. in respect of Reserve 31428.

S5.3    Pastoral Leases

The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

S5.4    Water Interests

(a)    The following licences and permits granted pursuant to the Rights in Water and Irrigation Act 1914 (WA) and the rights and interests of the holders from time to time of those licences and permits:

(i)     Licences to take groundwater (section 5)

(ii)     Licences to construct or alter wells (section 26D)

(iii)     Permits to obstruct or interfere with the bed, banks or waters of a watercourse (section 17)

(b)    The following proclamations made under the Rights in Water and Irrigation Act 1914 (WA) and the rights and interests comprised in, conferred under or in accordance with those proclamations:

(i)     Pilbara Surface Water Area Proclamation 1965 (proclaimed on 13 August 1965); and

(ii)     Pilbara Ground Water Area Proclamation 1965 (proclaimed on 12 February 1965 and varied by proclamation on 21 December 1990 and 2 May 1997)

S5.5        Mining Tenements

(a)    The rights and interests of the holders from time to time of the following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA):

(i)     Mining Leases

(ii)     Miscellaneous Licences

(iii)     General Purpose Leases

(iv)     Exploration Licences

(v)    Prospecting Licences

(vi)    Temporary Reserves

(b)    The agreement as amended and ratified by the Iron Ore (Mt Goldsworthy) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(c)    The agreement as amended and ratified by the Iron Ore (Mount Newman) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(d)    The agreement as amended and ratified by the Iron Ore (Mount Bruce) Agreement Act 1972 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(e)    The agreement as amended and ratified by the Iron Ore (Marillana Creek) Agreement Act 1991 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(f)    The agreement as amended and ratified by the Iron Ore (Hope Downs) Agreement Act 1992 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(g)    The agreement as amended and ratified by the Iron Ore (Yandicoogina) Agreement Act 1996 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(h)    The agreement as amended and ratified by the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

(i)    The agreement as amended and ratified by the Iron Ore (FMG Chichester Pty Ltd) Agreement Act 2006 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement.

S5.6        Other

The following rights and interests:

(a)    Valid or validated 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 and any regulations made pursuant to such legislation.

(b)    Valid or validated rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Land Administration Act 1997 (WA).

(c)    The right to access the Determination Area by:

(i)     an employee, agent or instrumentality of the State;

(ii)     an employee, agent or instrumentality of the Commonwealth;

(iii)     an employee, agent or instrumentality of any local government or other statutory authority;

as required and permitted by law in the performance of his or her statutory or common law duty.

(d)    So far as confirmed pursuant to s. 212(2) of the Native Title Act and s. 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), any then existing public access to, and enjoyment of, the following places in the Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    stock routes; and

(iv)    areas that were public places at the end of 31 December 1993.

(e)    Powers of entry and other rights, obligations and powers by reason and force of the declarations as to Wittenoom and surrounding areas being contaminated sites pursuant to the relevant provisions of the Contaminated Sites Act 2003 (WA).

(f)    Any other valid or validated:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(A)     the land or waters; or

(B)     an estate or interest in the land or waters; or

(iii)    restriction on the use of the land or waters, whether or not annexed to other land or waters.

The Banjima People are those Aboriginal persons who:

(a)    are descendants of one or more of the following apical ancestors:

(i)     Bob Tucker (Wirilimura);

(ii)     Gawi;

(iii)     Yinini (Arju);

(iv)     Sam Coffin;

(v)     George Marndu;

(vi)     Whitehead;

(vii)     Yidingganin;

(viii)     Maggie (Nyukayi);

(ix)     Yandikuji; and

(b)    recognise themselves as a Banjima person, and are recognised by others as a Banjima person.