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  FCAFC 238).
These determinations recognised native title rights across the middle Dampier Peninsula for the Jabbir Jabbir/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.
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 by the Full Federal Court of Australia.
The court determined that exclusive possession native title can be applied to beaches, waterways, marshes and riverbanks, unless the public has a right of access such as through a public recreation reserve or nature reserve.
The State of Western Australia and Commonwealth of Australia have recently sought special leave to appeal this decision in the High Court of Australia.
If special leave is granted, then the State and the Commonwealth may appeal and any appeals made would likely be heard by the High Court later this year.
The Kimberley Land Council is acting for the Jabbir Jabbir/Ngumbarl and Bindunbur native title groups in this matter.
A decision regarding the special leave applications is expected to occur by mid-2019.
What did the Bindunbur and Jabirr Jabirr/Ngumbarl appeal decide?
The Full Federal Court of Australia in the case of (Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia  FCAFC 238) ruled that exclusive possession native title can be recognised over beaches, waterways, marshes and riverbanks, unless the public has an existing right of access such as through a public recreation reserve or nature reserve.
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”.
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 decision of the Full Federal Court of Australia applies to areas landward of the mean high water mark within the native title determinations. This means that it does not apply to the ocean or the intertidal zone, but does apply to beaches and the banks of rivers where there was no existing right of public access.
In the Bindunbur native title area, this applies to areas of coast adjacent to the Aboriginal reserves in the vicinity of Beagle Bay in the mid-Dampier Peninsula.
In the Jabirr Jabirr/Ngumbarl native title area, this applies to the coastline adjacent to the Manari Road, between Willie Creek and Coulomb Point Nature Reserve.
Please note that there are some small places where native title has been extinguished, such as the Manari Road and the Willie Creek lease footprint.
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 Jabbir Jabbir/Ngumbarl and Bindunbur native title holders are currently considering the Full Federal Court decision and what it means in relation to access and management of their native title determination areas.
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.
How does exclusive possession native title apply to beaches, waterways, marshes and riverbanks in other native title determinations in the Kimberley or elsewhere?
Most native title determinations in the Kimberley, Western Australia and Australia have an “Other Interests” clause, which says that existing public access to and enjoyment of waterways, beds, banks and foreshores of waterways and beaches continues to exist, including in areas of exclusive possession native title.
In December 2018, the Full Federal Court of Australia decided 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 “Other Interests” clause was removed from these determinations and this means that the full effect of exclusive possession native title can be recognised over beaches and waterways, marshes and riverbanks within the Bindunbur and Jabbir Jabbir/Ngumbarl determinations.
Visiting exclusive possession native title land
Exclusive possession native title land is equivalent to freehold land and as such is owned by the native title holders. Often Traditional Owners will put in place visitor access permits to manage access to exclusive possession native title land and have established ranger groups that provide land and sea management services.
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.