Banjima People v State of Western Australia - [2014] FCA 201 - FCA 2014 case summary — Zoe

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Banjima People v State of Western Australia

[2014] FCA 201

Federal Court of Australia|2014-03-12|Before: Barker J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2014-03-12

Before

Barker J

Catchwords

NATIVE TITLE - determination

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - determination

Judgment (39 paragraphs)

[1]

BEING SATISFIED that a determination of native title in the terms set out in Attachment A in respect of WAD 6096 of 1998 would be within the power of the Court, pursuant to section 94A of the Native Title Act 1993 (Cth): THE COURT ORDERS THAT:

In relation to the Determination Area, there be a determination of native title in WAD 6096 of 1998 in terms of the Determination in Attachment A.
The Banjima Native Title Aboriginal Corporation (ICN 7971) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
There be no order as to costs. Dated: 11 March 2014

The Honourable Justice Barker ATTACHMENT A DETERMINATION OF NATIVE TITLE THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225 Native Title Act)

Native title exists in the Determination Area in the manner set out in paragraphs 3 and 4 of this determination. Native title holders (s 225(a) Native Title Act)
The native title in the Determination Area is held by the Banjima People. The Banjima People are the people referred to in Schedule 6. The nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) Native Title Act)
Subject to paragraphs 4, 5, 6 and 9 the nature and extent of the native title rights and interests in relation to the Determination Area (other than the Exclusive Area) are that they confer the following non-exclusive rights on the Banjima People, including the right to conduct activities necessary to give effect to them: (a) the right to access and move about the land and waters of the Determination Area, be present on the land and waters, live on the land in camps and shelters, and engage in cultural activities on the land and waters including conducting and participating in ceremonies and meetings; (b) the right to hunt and take fauna, gather and take flora, take fish and take stones, timber, ochre and water; (c) the right to have access to, maintain and protect places and areas of importance on or in the land and waters of the Determination Area, including rock art, engraving sites, stone arrangements and the like.

[3]

Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the land and waters described in Schedule 4. The nature and extent of any other interests
The nature and extent of the Other Interests are described in Schedule 5. Relationship between native title rights and other interests
Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and the Other Interests is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them. Definitions and Interpretation
In this determination, unless the contrary intention appears: "Determination Area" means the land and waters within the external boundary described in item S1.1 of Schedule 1 and depicted on the maps at Schedule 3, but not including the Unclaimed Area; "Exclusive Area" means that part of the Determination Area described in item S1.2 of Schedule 1 and depicted on the maps at Schedule 3; "land" has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters"; "Native Title Act" means the Native Title Act 1993 (Cth); "ochre" does not include ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed); "Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule 5 and referred to in paragraph 8, as at the date of this determination; "Unclaimed Area" means the land and waters described in Schedule 2 and shaded pink on the maps in Schedule 3; "underground water" includes water that percolates from the ground; "use" does not include use by way of trade; "waters" has the same meaning as in the Native Title Act.
In the event of any inconsistency between the written description of an area in Schedule 1, Schedule 2, Schedule 4 or Schedule 5, and the area as depicted on the maps at Schedule 3, the written description prevails. Schedule 1 Determination Area and Exclusive Area

[11]

The following areas, being land and waters where native title has been completely extinguished, were excluded from the application for native title in WAD 6096 of 1998 and are excluded from the Determination Area. All of the following areas are shown generally as shaded pink on the maps in Schedule 3. S2.1 Freehold Freehold No. CT0007700069A CT0016000027A CT0016000028A CT0016000029A CT0018400139A CT0018500059A CT0018800124A CT0018900013A CT0018900175A CT0019600120A CT0019600121A CT0021700077A CT0022300135A CT0029300114A CT0029900019A CT0032700028A CT0032700083A CT0037800011A CT0041700053A CT0043000081A CT0053000198A CT0054500182A CT0054500184A CT0054700197A CT0055100159A CT0055500014A CT0059700099A CT0060000199A CT0060900059A CT0062600137A CT0119800803 CT0119800804 CT0119800805 CT0119800806 CT0119800807 CT0119800808 CT0119800809 CT0119800810 CT0119800811 CT0119800811 CT0119800812 CT0119800813 CT0119900467 CT0121500837 CT0121500919 CT0122200617 CT0122900734 CT0122900991 CT0123800446 CT0123800463 CT0123800669 CT0123800670 CT0123800721 CT0125200040 CT0125200184 CT0125900658 CT0129300132 CT0129300413 CT0129300619 CT0131800209 CT0131800301 CT0131900010 CT0132000315 CT0132200610 CT0132200660 CT0132200674 CT0132400525 CT0132400526 CT0132700480 CT0132700481 CT0132700915 CT0132800628 CT0133100374 CT0133100974 CT0133400171 CT0133800741 CT0134200423 CT0134200424 CT0134300929 CT0134500545 CT0134600122 CT0134900164 CT0135200349 CT0135300253 CT0135500480 CT0136200162 CT0136500506 CT0136700096 CT0137300656 CT0137500656 CT0137600410 CT0137600567 CT0140200111 CT0140200112 CT0140200113 CT0140200114 CT0140200115 CT0140300705 CT0140300706 CT0140300707 CT0140300708 CT0140300709 CT0140300710 CT0140300711 CT0140300712 CT0140300713 CT0140300714 CT0140300715 CT0140300716 CT0140300717 CT0140300718 CT0140300719 CT0140300720 CT0140300721 CT0140300722 CT0140300723 CT0140300724 CT0140300725 CT0140300726 CT0140300727 CT0140300728 CT0140300729 CT0140300730 CT0140300731 CT0140300732 CT0140300733 CT0140300734 CT0140300735 CT0140300736 CT0140300737 CT0140300738 CT0140300739 CT0140300740 CT0140300741 CT0140300742 CT0140300743 CT0140300744 CT0140300745 CT0140300746 CT0140300747 CT0140300748 CT0140300749 CT0140300750 CT0140300751 CT0140300752 CT0140300753 CT0140300754 CT0140300755 CT0140300756 CT0140300757 CT0140300758 CT0140300759 CT0140300760 CT0140300761 CT0140300762 CT0140300763 CT0140300764 CT0140300765 CT0140300766 CT0140300767 CT0140300768 CT0140300769 CT0140300770 CT0140300771 CT0140300772 CT0140300773 CT0140300774 CT0140400530 CT0140400531 CT0141700694 CT0141800108 CT0141800871 CT0142200402 CT0142200525 CT0142200616 CT0145300112 CT0145500632 CT0146600505 CT0146600506 CT0146600511 CT0147200651 CT0147200652 CT0147200654 CT0147600152 CT0149900117 CT0152800090 CT0155200888 CT0156400262 CT0159000555 CT0162100290 CT0162100291 CT0163200081 CT0167200443 CT0172900666 CT0173000453 CT0173700572 CT0173800326 CT0173800768 CT0174000801 CT0174500969 CT0175900800 CT0176100592 CT0176400726 CT0176600714 CT0177000596 CT0177200837 CT0177300714 CT0177600029 CT0177600030 CT0177600031 CT0179600559 CT0185600117 CT0187800904 CT0187800905 CT0188900685 CT0195000834 CT0200400375 CT0200800478 CT0200800479 CT0200800480 CT0201100615 CT0201100616 CT0204600979 CT0207300476 CT0207700889 CT0219400344 CT0219400345 CT0219400346 CT0222200358 CT0222200359

[12]

S2.2 Reserves Reserve No. Current / Last Purpose 23710 Boy Scouts 23278 Aerial Landing Ground 23776 Explosive Magazine 23864 Sports Ground, Racecourse and Caravan park 23865 Park and Recreation 23866 Shire Purposes 24236 Disused Cemetery 24438 Protection of Flora & Fauna 24824 Police 24849 Depot Site - St John Ambulance 24858 Shire Purposes 24898 Aerial Landing Ground 25156 Church Site - Church of England 25793 Park 26028 Water Supply 26031 Water Supply Depot & Quarters 26369 Use & Requirements of Shire of West Pilbara 26764 Hospital Site 26780 School Site 27373 Gun Club and Club Premises 27588 Recreation 27998 Fire Station Site 28375 Fire Station Site 30082 (part) being that portion of Reserve 30082 vested pursuant to section 33 of the Land Act 1933 (WA) on 31 October 1969 National Park 34773 Power Station Site 34774 Tank Site 34775 Pipeline 37591 Tourist Information Bay 38972 Vehicle Parking 39305 Tourist Purposes 39515 Depot Site (Water Authority of Western Australia) 42078 Gravel Purposes

[14]

S2.4 Dedicated roads and roads set aside, taken or resumed and associated features (a) Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following: Road Name Location / Description Bolitho Road (Historical Roads 4 and 8) Bolitho Road shown generally on CPP 503154, Map 2553 Wittenoom 1:100 000 and Wittenoom Townsite Public Plan BL61(2) 06.20 Great Northern Highway (Current Roads 19 - 32) The Great Northern Highway (including a 200m road corridor) shown generally as Lot 186 on DP 219303, Lot 187 on DP 219304, Lot 188 on DP 219305, Lot 189 on DP 219306, Lot 190 on DP 219307, Lot 191 on DP 219308, Lots 192 and 193 on DP 219309, Lot 194 on DP 219310, Lots 195 and 196 on DP 219311, Lots 197 to 199 on DP 219312, Lots 200 and 312 on DP 219313, Lot 313 on DP 219314, Lot 314 on DP 219315, Lots 315 and 316 on DP 219316 and Lot 3000 on DP 50859 Karijini Drive Karijini Drive (including a 200m road corridor outside of Reserve 30082 and a 30m road corridor within Reserve 30082) shown generally as Lot 301 on DP 63350 (sheets 1 - 10), Lot 302 on DP 62473 and Lot 303 on DP 62474 (sheets 1 - 3) Munjina / Roy Hill Road (Current Road 5, Historical Road 7) Munjina / Roy Hill Road shown generally on CPP 502697, CPP 503154, CPP 503164 and Map SF 50-12 Roy Hill 1:250 000 Nanutarra / Munjina Road (Current Roads 4 and 33, Historical Roads 9 - 10) Nanutarra / Munjina Road (including a 200m road corridor outside of town boundaries and a 100m road corridor within town boundaries) shown generally on DP 243189, CPP 502692, CPP 503154, Map SF 50-11 Mt Bruce 1:125 000 (dated Jan 1969) and Map 2553 Wittenoom 1:100 000. Road also known as the Nanutarra / Wittenoom Road and the Munjina / Wittenoom Road Road No. 15057 (Current Road 17) Commencing at eastern boundary of Pastoral Lease 3114/974 and extending southeast and northeast through Reserve 30082 to terminate at Joffre Falls. Gazetted as a public street on 24 February 1978 and shown generally on Map SF 50-11 Mt Bruce 1:125 000 (dated Jan 1969) Road No. 17957 (Current Road 18) Road adjacent to CT0207700889 (Auski Roadhouse) at the junction of the Great Northern Highway and Nanutarra / Munjina Road. Gazetted as a public street on 29 June 1990 and shown generally on DP 188611 Roebourne / Wittenoom Road (Current Roads 6 and 14, Historical Road 5) Roebourne / Wittenoom Road shown generally on DP 170097, CPP 503154 and Map 2553 Wittenoom 1:100 000 Wittenoom Roads (Current Roads 1 - 3, 9, 12, 13, 15 and 16, Historical Roads 1 - 3 and 6) Those roads, road widenings and rights of way in the townsite of Wittenoom shown generally on DPs 33612, 162974, 162975, 168772, 173044, 173515, 174937, 175021, 206101, 206102, 212103 and 213988

[15]

(b) The following public works (as that expression is defined in the Native Title Act and the Titles (Validation) Public Work Location / Description Tourist Information Bay Located at the junction of the Great Northern Water Bores Located on or near the Great Northern Highway being: (each of an area of 0.1 ha, the centre point of which is:) Bore 3 1321 .60 5 1347.50 5B 1347.50 5C 1347.50 11 1373.40 10 1383.10 8A 1388.75 Located on or near the Nanutarra / Munjina Road being: Bore 362.10 2.8 360.10 75-10-90 3.80L 386.40 H025 31.000 4.0 406.50 Located on or near Karijini Drive being: Bore 4B1 29.40 5 21.70 and Native Title (Effect of Past Acts) Act 1995 (WA)) associated with the roads identified in sub-item 0 above: Highway and Karijini Drive (approximately 1 hectare in size) Straight Linear Kilometre - distance in linear kilometres from the start of the road Easting Northing 50K0674210 UTM7490675 50K0674228 UTM7514938 50K0674924 UTM7514946 50K0675046 UTM7514883 50K0681426 UTM7538054 50K0683405 UTM7547350 50K0684579 UTM7552644 Straight Linear Kilometre Easting Northing 50K626602 UTM7550066 50K0647216 UTM7539198 50K0666029 UTM7531624 Straight Linear Kilometre Easting Northing 50K0649564 UTM7505390 50K0656244 UTM7501319

[38]

(i) The agreement as amended and ratified by the Iron Ore (FMG Chichester Pty Ltd) Agreement Act 2006 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement. S5.6 Other The following rights and interests: (a) Valid or validated rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation. (b) Valid or validated rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Land Administration Act 1997 (WA). (c) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; (iii) an employee, agent or instrumentality of any local government or other statutory authority; as required and permitted by law in the performance of his or her statutory or common law duty. (d) So far as confirmed pursuant to s. 212(2) of the Native Title Act and s. 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), any then existing public access to, and enjoyment of, the following places in the Determination Area: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) stock routes; and (iv) areas that were public places at the end of 31 December 1993. (e) Powers of entry and other rights, obligations and powers by reason and force of the declarations as to Wittenoom and surrounding areas being contaminated sites pursuant to the relevant provisions of the Contaminated Sites Act 2003 (WA). (f) Any other valid or validated: (i) legal or equitable estate or interest in the land or waters; or (ii) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (A) the land or waters; or (B) an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. Schedule 6 Title Holders (Paragraph 2)

Banjima People v State of Western Australia

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Judgment (39 paragraphs)

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