Australia – Recognising Native Title: Not All Traditional Links Amount To Native Title.

23 April, 2019

 

Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia

 

In one of the last decisions of 2018, on 20 December, the Full Federal Court handed down its judgment arising from appeals from the May 2018 determinations of native title in favour of the Bindunbur and Jabirr Jabirr/Ngumbarl native title claim groups over land near Broome (Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238).

 

Goolarabooloo group members' assertion of individual native title rights

 

The Goolarabooloo group, also asserting native title, lost at trial.  Their appeal was limited to the issue of whether Goolarabooloo individuals with an acknowledged rayi attachment to places or animals in the Jabirr Jabirr determination area, or law bosses with ritual responsibility, can also be said to hold native title interests to that land.

In a unanimous decision, the Full Court found that neither association amounted to a native title interest.

 

The Court understood the Goolarabooloo individuals' rayi attachments as ultimately deriving from the descent based native title holders.  While it happened rarely, the native title holders could deny access to a person with just a rayi attachment.  On close analysis, the Full Court understood the attachment as a personal one.  It was not itself an interest in relation to land.

 

The Full Court was similarly unpersuaded in relation to the links of law bosses or law men with no descent based relationship to the land for which they had ritual responsibility. 

 

The Goolarabooloo appellants asserted that these people held native title to places for which they have some responsibility.  The Court found against this proposition.  The evidence of Aboriginal witnesses indicated that, though highly respected, ritual elders do not acquire rights to country. 

 

Determination drafting

 

The judgment also resolved a contest between the native title holders, the State and the Commonwealth regarding the description of access to waterways, stock routes and beaches included in the "other interests" section of the determination.  The Court rejected a formula routinely included in consent determinations.  To be convinced of the appropriateness of such a reference in the list of "other interests" in the determination area, the Court required a greater level of proof of the existence of such rights than was available.

 

KEY POINTS TO NOTE

This judgment assists the non-Aboriginal reader to understand some of the complexity of attachments to place of Aboriginal people, at least in the Northern Tradition.  Proponents often face competing assertions of connection.  This judgment makes sense of some of the apparently irreconcilable claims by its explanation of different ways by which Aboriginal people can have a responsibility for place, albeit not all recognised as native title.  There will be differing views as to whether such non-native title attachments will entitle the holders to be part of decision making in a heritage protection context. It is particularly interesting to recall that the Goolarabooloo People, who were wholly unsuccessful in their native title claim, were key opponents of Woodside Petroleum’s $45 billion plan for a gas hub at James Price Point near Broome on the basis of their asserted native title interest.  The Jabirr Jabirr People voted in favour of the development of an industrial precinct in return for a very significant benefits package.  Woodside abandoned its plans in 2013.

For further information, please contact:

 

Tony Denholder, Partner, Ashurst

tony.denholder@ashurst.com