Middle Dampier Peninsula native title decision and appeal
In May 2018 the Federal Court of Australia made a determination of native title in the Bindunbur and Jabirr Jabirr/Ngumbarl native title claims (Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia  FCA 854).
These determinations recognised native title rights across the middle Dampier Peninsula for the Jabirr Jabirr/Ngumbarl, Nimanburr and Nyul Nyul people. The determinations were celebrated on country at Beagle Bay in May 2018.
Following the determinations, a number of appeals were lodged with the Federal Court of Australia.
The Goolarabooloo people appealed on the grounds that they had native title rights and interests in the Jabirr Jabirr/Ngumbarl determination area that should have been recognised.
The Bindunbur and Jabirr Jabirr/Ngumbarl claim groups appealed to say that the determination should recognise their exclusive possession over beaches and waterways where there was no existing right of public access.
In December 2018, the Full Federal Court of Australia made a decision in relation to these appeals (Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia  FCAFC 238). The Goolarabooloo appeal was dismissed and the Goolarabooloo people have not sought to appeal this decision again.
The remaining appeals, by the Bindunbur and Jabbir Jabbir/Ngumbarl native title holders, were upheld. The Court held that no evidence had been presented that pre-existing rights of public access existed across areas of unallocated Crown land within the determination, including beaches, waterways and riverbanks where exclusive possession applied.
Following this decision, the State of Western Australia and Commonwealth of Australia sought special leave to appeal in the High Court, and on June 21, 2019, special leave was granted. It is expected that the case will be heard in the High Court later this year or early next year.
The Kimberley Land Council is acting for the Jabirr Jabirr/Ngumbarl and Bindunbur native title groups in the matter.
Who are the native title holders?
The native title holders are the Jabirr Jabirr/Ngumbarl, Nyul Nyul and Nimanburr people. All groups speak and make decisions for different areas of country within the Bindunbur and Jabbir Jabbir/Ngumbarl native title areas.
What area of land and water does the decision apply to?
The issues raised by the State and Commonwealth as part of the High Court appeal, and addressed by the decision of the Full Federal Court of Australia, relate primarily to public access in areas landward of the mean high water mark within the native title determinations.
In the Bindunbur native title area, this relates to areas of coast adjacent to the Aboriginal reserves in the vicinity of Beagle Bay in the middle-Dampier Peninsula. In the Jabirr Jabirr/Ngumbarl native title area, this relates to the coastline adjacent to the Manari Road, between Willie Creek and Coulomb Point Nature Reserve.
Exclusive native title is not recognised in the ocean or the intertidal zone, but does apply to beaches and the banks of rivers within the determination areas.
What is exclusive possession native title?
Exclusive possession native title is the strongest form of native title recognition possible in the Australian legal system. It is the native title equivalent of freehold title and involves the right to speak for and make decisions about country.
The High Court has previously said that exclusive possession native title is a legal entitlement for native title holders to permit or refuse access “for any reason or no reason at all”.
How does exclusive possession native title apply to beaches, waterways, marshes and riverbanks in other native title determinations in the Kimberley or elsewhere?
Native title determinations must include a list of all the other interests held by people other than the native title holders in the determination area, for example pastoral leases, roads, reserves, etc. These interests are usually listed in a schedule to the determination called an “Other Interests” schedule. If there are any rights of the public (“public access rights”) in particular types of areas in the determination these are also listed in the “Other Interests” schedule.
In December 2018, the Full Federal Court of Australia held that there was no evidence that rights of public access existed across areas of unallocated Crown land where exclusive possession native title was determined in the Bindunbur and Jabirr Jabirr/Ngumbarl native title determinations. As a result, the right of the public as a “public right” to access these areas was removed from the “Other Interests” schedule.
What does this decision mean for access to these areas?
Native title has existed across the Kimberley for almost 20 years. In that time Traditional Owners and the wider community have worked together to find ways of managing access that respects the interests of native title holders.
The Jabirr Jabirr/Ngumbarl and Bindunbur native title holders have been considering the Full Federal Court decision and what it means in relation to access and management of their native title determination areas. The native title holders will now await the decision of the High Court in relation to the appeal of these matters.
Exclusive possession is the native title equivalent of freehold title, and it means that legally permission is required from the native title holders before anyone can access or use that land. This includes for purposes, such as camping, beach fishing, boat launching or other activities that require access to exclusive possession native title land.
Visiting exclusive possession native title land
There are many ways that Traditional Owners manage access to and enjoyment of exclusive possession native title land. This can be achieved through the implementation of visitor access permits and the establishment of Indigenous ranger groups to help manage access to areas for the community at large.
You can assist Traditional Owners to manage access to exclusive possession native title by:
Recognising the cultural and spiritual connection of Traditional Owners to their land and waters.
Seeking permission before visiting exclusive possession native title land. If you are unsure how to do this please make contact with the relevant Prescribed Body Corporate (the corporation that manages the native title) or contact the Kimberley Land Council.
Utilising visitor access permits where applicable.
Respecting Aboriginal cultural activities and ceremonies, and observing restricted access to temporarily closed areas.
Understanding that these areas may be home to very important cultural sites, burial grounds and other culturally and environmentally significant locations that require careful management and protection, and should not be accessed by the public.
Respecting Indigenous rangers and their advice.
What does this decision mean for other native title determinations in Australia?
This decision is likely to apply to most parts of the Australian coastline where exclusive possession native title has been recognised, particularly in remote areas where there is not any State land tenure in place.
The application of the decision to any given beaches or waterways will depend on a careful consideration of the relevant land tenure, the statutory framework within which that land tenure exists, and the factual situation in relation to public access in the area.
Content last updated 27 June, 2019