Gilmour J
In this matter, Gilmour J made orders by consent recognising the native title rights and interests of the Kurungal People in relation to land and waters covering approximately 887 square kilometres south-east of Fitzroy Crossing in the Kimberley, Western Australia. The area is within the Christmas Creek Pastoral Lease. The claim was first filed in October 1997 and amended twice, most recently on 31 January 2012. The respondents to the application were the State of Western Australia, Shire of Derby/West Kimberley, Shire of Halls Creek, Klopper Holdings Pty Ltd (Christmas Creek Station) and Telstra Corporation Limited.
Christmas Creek Station agreed on the basis of having reached agreement with the claimant in relation to the portion of Christmas Creek pastoral lease situated within the Determination Area. Following the determination taking effect, that agreement will be executed and registered as an Indigenous Land Use Agreement.
The parties agree that the Kurungal People are a body of persons who identify as Gooniyandi, Walmajarri or Wangkajungka (or a combination of these) through descent, birth or long-time occupation of the claim area who are united in and by their acknowledgement of a body of laws and customs sourced in three traditions with origins in the Dreaming. Collectively, these people consider themselves to be Kurungal.
Rights and Interests recognised
The non-exclusive native title rights and interests recognised in relation to each part of the Determination Area referred to in Schedule 3 include rights to access and move freely through and within the area; to live; camp; conduct cultural activities; maintain and protect sites of cultural significance; hunt, fish and gather and take natural resources and light fires for domestic and non-commercial communal purposes within and from the area.
Gilmour J noted that there was an issue in the description of the native title holders as there was an inconsistency between the description in the original Application Form and the Schedule 5 description. Four reasons were given to explain this discrepancy. Firstly, Form 1 included two categories of claimants – the senior generation of claimants in 1997 and deceased claim group ancestors. The description required amendment because members of the senior generation were now deceased and so the categories were amalgamated. The name ‘Putu Putu’ needed to be removed as there was no information about that ancestor nor did any Applicant identify as being descended from that ancestor. Schedule 5 also includes additional names to allow for listed ancestors to be taken back a further generation. Lastly, Schedule 5 corrected typographic errors and omissions. Gilmour J accepted the Schedule 5 description.
The Court granted the native title holders twelve months from the date of the determination to nominate a prescribed body corporate, with the determination to take effect on the day of the nomination.