Banks-Smith J
Summary
This matter was a determination of native title by Banks-Smith J under s 87A of the Native Title Act (1993) (Cth) (NTA). Non-exclusive and exclusive native title rights and interests were recognised to be held by the Boorroola Moorrool Moorrool claim group over approximately 1032 square kilometres of land and waters in the North-West Kimberley in Western Australia.
Parties
Seven individuals constituted the applicant on behalf of the claiming group. The responding parties in the matter were the State of Western Australia (WA), the Commonwealth of Australia, Telstra, Yeeda Pastoral Company, Kimberly Prawn Company, Jock Hugh McGregor and Del James Roe.
Background
The Boorroola Moorrool Moorrool claim group filed an application under s 61 of the NTA in December 2016. Their claim area, particularly over Derby, overlapped with another native title claim, the Warrwa Combined Application. Hence, this matter only determined native title for the non-overlapping area, leaving the remaining area of the claim to future resolution. The area relevant to this matter predominantly comprised the waters and islands of the lower King Sound. This is adjacent to the Nyikina Mangala native title area (determined in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545). The Boorroola Moorrool Moorrool claim is an extension of the Nyikina native title claim, with an increased number of apical ancestors.
The claim group, WA and the other respondents reached an agreement regarding native title over the non-overlap area. This included disregarding prior extinguishment of native title rights and interests due to prior interests, such as the original vesting of the Derby Port. Joint submissions were provided to the court and the determination was made on the papers.
Determination
Native title was determined over the area, subject to specific parts that were identified in the agreement. Where positively determined, there were non-exclusive and exclusive areas of native titles rights and interests. The latter rights and interests were to possess, occupy, use and enjoy the land exclusive to all others. However, this was specified not to confer exclusive water rights. Non-exclusive rights included the right to access, live and camp, practice culture, meet, protect significant places, and take flora, fauna, water and natural resources. These rights are subject to existing interests (e.g. mining, petroleum, other native title interests). Where inconsistent, the recognised native title rights continue to exist in their entirety but have no effect to the extent of the inconsistency.
Banks-Smith J, satisfied that the requirements under s 87A and s 94A of the NTA were met, recognised native title to be held by the Boorroola Moorrool Moorrool group.
No prescribed body corporate had yet been nominated and Banks-Smith J gave six months to do so.