Gilmour J
In this matter the Court made orders by consent recognising the Balanggarra people’s native title rights and interest over approximately 26,025 square kilometres of land and sea in the northern Kimberley region of Western Australia.
Two native title applications, originally filed in 1995, were amended and combined in 1999 to form Cheinmora #2. The claim area included the Kalumburu, Oombulgurri and Forrest River Aboriginal reserves, Carson River pastoral lease, parts of the Drysdale River National Park and unallocated crown land at Cape Londonderry, Carson River and the Cambridge Gulf coast. The northern boundary runs through sea country and encompasses a number of islands near the coast, including the Sir Graham Moore Islands, Adolphus Island and Reveley Island.
The respondents to the proceeding were the State of Western Australia, Commonwealth of Australia, Paspaley Pearl Company Pty Ltd, Roebuck Pearl Producers Pty Ltd and Telstra Corporation Limited.
Background
The parties reached agreement in relation to only part of the land and waters that the Balanggarra people sought recognition of and the remaining area, which included part of part of Adolphus Island, continued in case management.
The applicant acknowledged that the Gajerrong, Doolboong and Wardenybeng people together with Balanggarra people hold native title rights and interests in relation to Boorroongoong (Lacrosse Island).
Authorisation issues
The Court considered some issues in relation to claimant authorisation on the basis that three of the 10 named applicants had died and the claim group in the combined application is different from the proposed native title holding group in the proposed determination and the native title holding group was not identical to the description of “Balangarra peoples” recognised and described in the decision of the Full Court in Attorney-General (NT) v Ward [2003] FCAFC 283.
Justice Gilmour determined that these differences did not change the membership of the native title holding group and resolved to make the determination as requested.
Rights and interests
Exclusive
In relation to the land and waters shaded pink and brown on the map at Attachment One to Schedule One of the determination is the right to possession, occupation, use and enjoyment to the exclusion of all others.
Non-exclusive
In relation to the the area of land and waters described in Schedule Two of the determination and generally shown as shaded orange or marked with purple dots to the extent those areas are not otherwise within the Intertidal Area on the map at Attachment One to Schedule One are:
(a) the right to enter, travel over and remain on the land;
(b) the right to live and camp on the land including erecting shelters and other structures for those purposes;
(c) the right to hunt, fish, gather and use including by way of sharing or exchange the resources of the land and waters for personal, domestic and communal needs including, but not limited to, cultural or spiritual needs but not for commercial purposes;
(d) the right to light fires for domestic purposes;
(e) the right to engage in cultural activities on the land including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
(ii) conducting and participating in ceremony and ritual including in relation to death;
(iii) holding meetings; and
(iv) passing on knowledge about the physical and spiritual attributes of the determination area and areas of importance on or in the determination area.
The determination notes that native title rights to hunt, fish and take flora set out above have been extinguished in relation to the land and waters comprising Drysdale River National Park .
Non-exclusive rights in relation to Intertidal Area
In relation to the Intertidal Area the native title rights and interests recognised are:
(a) the right to enter, travel over and remain on the area;
(b) the right to camp on the area including erecting shelters and other structures for that purpose;
(c) the right to hunt, fish, gather and use (including by way of sharing or exchange the resources of the area for personal, domestic and communal needs including, but not limited to, cultural or spiritual needs but not for commercial purposes;
(d) the right to light fires for domestic purposes;
(e) the right to take and use water from the area;
(f) the right to engage in cultural activities on the area including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
(ii) conducting and participating in ritual; and
(iii) passing on knowledge about the physical and spiritual attributes of the determination area and areas of importance on or in the determination area.
Prescribed Body Corporate
The Balanggarra Aboriginal Corporation ICN 2923 shall hold the determined native title in trust for the native title holders.