Banks-Smith J
In this matter the Court made orders by consent recognising the exclusive native title rights of the Karajarri, Yawuru and Nyikina People (collectively referred to as the Birriman-gan native title claimants) over 2194 sq km in the western Kimberley region of Western Australia.
The applicant consisted of 12 named individuals. The respondent was the State of Western Australia.
Background
The present Birriman-gan claim (filed June 2019) combined:
the Karajarri Yanja native title application, filed on behalf of the Karajarri People in October 2012, for a determination of native title in areas in the north-eastern corner of the unallocated Crown land that lay between Karajarri areas to the south, the Nuikina Mangala determined area to the east and the Rubibi determined area to the north-west; and
the Birriman-gan application, filed in November 2018 on behalf of the Karajarri people, the Nyikina people and the Yawuru people, covering the area of unallocated Crown land to the south and west of the Karajarri Yanja application.
The parties to the present Birriman-gan claim are the applicant, the State of Western Australia, Roe Oil (Canning) Pty Ltd and Buru Energy Limited.
Based upon the material filed and taking into account the State's active role in the negotiations the Court was satisfied that an order under s 87 of the Native Title Act 1993 (Cth) (NTA) is appropriate.
Native Title Rights and Interests- Exclusive Possession
The native title rights and interests recognised in relation to each part of the Determination Area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of area as against the whole world.
The nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water.
Prescribed Body Corporate (PBC)
At the date of determination, no PBC had been established to hold the native title recognised in the Birriman-gan determination area.
The applicant was granted a period of nine months from the date of the Court’s orders to put forward a proposal to the Court concerning the operation of s 56 and 57 of the NTA (provisions relating to whether native title is to be held in trust and if so by whom, e.g. by a PBC).