Gilmour J
In this matter the Court made orders by consent recognising the native title rights and interests of the Balanggarra community in 4,318 square kilometres of land including areas of the waters of the Cambridge Gulf and islands located in the northern Kimberley region of Western Australia. The application comprised two major land areas, an eastern component which includes Wyndham and a western component which includes parts of Home Valley pastoral station.
The respondents were the State of Western Australia, the Commonwealth of Australia, Dleaware North El Questro Pty Ltd and Telstra Corporation Limited.
The parties agreed that an excluded area, comprised of two parcels of land generally located east of the Wyndham airport, four blocks of land generally located in the town of Wyndham and two blocks of land generally located east of the Wyndham airport would continue in case management.
Authorisation issues
The Court considered some issues in relation to claimant authorisation on the basis that 10 of the 20 named applicants had died and the claim group in the 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 areas of land and waters described in Schedule One and generally shown as 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 area of land and waters described in Schedule Two and generally shown as shaded orange on the map at Attachment One to Schedule One of the determination is:
the right to enter, travel over and remain on the land;
the right to live and camp on the land including erecting shelters and other structures for those purposes;
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;
the right to light fires for domestic purposes;
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.
Prescribed Body Corporate
Balanggarra Aboriginal Corporation ICN 2923 is to hold the determined native title in trust for the native title holders.