Jagot J
In this decision, Jagot J recognised the native title rights and interests of the Barkandji Traditional Owners (Barkandji and Malyangapa People) in relation to an area covering approximately 128,482 square kilometres in New South Wales. The Barkandji and Malyangapa People are comprised of the Malyangapa People and the following Barkandji sub-groups: Thankali, Barkandji, Parintji, Maraura, Wilyakali, Pantjikali/Wanyiwalku, Paruntji and Kurnu/Naulco.
The claim was first filed on 8 October 1997, 18 years ago. The respondent parties included the State of New South Wales, the Broken Hill City Council, Wentworth Shire Council, 6 Aboriginal Land Councils and various companies such as Telstra Corporation Limited.
Rights and Interests recognised
The nature and extent of the native title rights and interests in relation to the Exclusive Areas are the right of possession, occupation, use and enjoyment to the exclusion of all others.
The Barkandji and Malyangapa People’s non-exclusive native title rights and interests in relation to the Non-Exclusive Areas include the right to:
enter, travel over and remain on the areas
take and use the natural resources (other than water of the areas)
take and use the water for personal, domestic and communal purposes (including cultural purposes and for watering native animals, cattle and other stock, and watering gardens not exceeding 2 hectares), but not extending to right to control the use and flow of the water in any rivers or lakes which flow through or past or are situated within the land of two or more occupiers
camp and for that purpose to erect temporary shelters and temporary structures within the areas
light fires for domestic purposes, but not for the clearing of vegetation
engage in cultural activities on the land, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death including burials on the land the subject of the non-exclusive areas
have access to, to maintain and to protect from physical harm sites and places of importance in the non-exclusive areas which are of significance to the Barkandji and Malyangapa People under their traditional laws and customs
to teach the physical, cultural and spiritual attributes of places and areas of importance on or in the non-exclusive areas
hunt and fish
be accompanied on the non-exclusive areas by persons who, though not native title holders, are:
spouses, partners or parents of native title holders, together with their children and grandchildren
people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies
people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.
In her judgment, Jagot J emphasised that the NTA encourages the reaching of native title determinations through the mutual consent of all interested parties, rather than through contested litigation. In reaching the agreement the parties had regard to numerous affidavits of the Barkandji Traditional Owners and numerous anthropological, historical and genealogical reports, as well as a linguistic report.
The Court was satisfied that it should make the orders agreed to by the parties. The Barkandji Native Title Group Aboriginal Corporation will hold the native title in trust for the native title holders.