Gilmour J
In this matter the Court made orders by consent recognising the native title rights and interests of the Gooniyandi People over an area to the east and south of Fitzroy Crossing in the Kimberley region of Western Australia.
The respondents were the State of Western Australia (State), Shire of Derby/West Kimberley, Shire of Halls Creek, various pastoralists and Telstra Corporation Limited.
Background
Multople native title applications were lodged between 1997 to 2000, with these eventually being combined in 2000 under a lead application brought on behalf of the Gooniyandi People (Application). 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 Gooniyandi Application Area includes the Bohemia Downs, Mt Pierre, Christmas Creek, Louisa Downs Pastoral Leases, parts of Gogo, Fossil Downs, Larrawa, Emmanuel and Margaret River Pastoral Leases, areas of land designated as Reserve, and a small area of unallocated Crown land.
Through mediation, the parties reached an agreement, with the Applicant and the State jointly submit that the ethnographic and other materials demonstrate that the Gooniyandi People are bound together by a normative system of laws and customs and have maintained a physical presence in the determination area since the acquisition of British sovereignty.
Authorisation issues
Justice Gilmour considered two issues around authorisation:
9 of the 14 persons named as the applicant had died and whether the surviving 5 remain authorised without the need for further authorisation; and
the claim group described in the Gooniyandi Application is different to the native title group listed in the proposed determination.
His Honour agreed to make the orders because the Court is not limited to a determination in the form filed in an application and, provided the application is valid, can make any determination it considers appropriate, based on the evidence.
Rights and interests
Exclusive
The nature and extent of exclusive native title rights and interests listed in Schedule Three of the determination 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 of the flowing and underground waters for personal, domestic or non-commercial communal needs; and
the right to take and use the flowing and underground waters for personal, domestic or non-commercial communal needs.
Non-exclusive
The nature and extent of non-exclusive rights and interests listed in Schedule Four of the determination are the rights to
access and move freely through the area;
live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose;
hunt, gather and fish for personal, domestic and non-commercial communal needs;
take flora and fauna;
take other natural resources including soil, sand, clay, gravel, ochre, timber, resin and stone for personal, domestic and non-commercial communal needs;
share and exchange natural resources;
light contained fires for domestic, cultural and spiritual purposes but not for the clearance of vegetation;
engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
conduct ceremonies;
conduct burials and burial rites;
hold meetings;
visit, maintain and protect from physical harm, places and sites of importance; and
access and take water and its resources for personal, domestic or non-commercial communal purposes.
Prescribed Body Corporate
The Gooniyandi Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders.
Justice Gilmour noted that the parties had agreed that the RNTBC may seek a variation of the determination (relating to pastoral improvements) in the event that the Federal Court ruling about pastoral improvements in De Rose v South Australia (No 2) [2005] FCAFC 110 is overturned, set aside or otherwise found incorrect by the High Court in the context of a pending High Court appeal in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154