Australian Local Government Association

Determination of native title in and around Broome, Western Australia

On 28 April 2006 the Federal Court of Australia made a determination in the long running native title application by the Rubibi Community over the town of Broome and its surrounds in the Kimberley region of WA. The determination brings to an end a case that has been running for more than ten years. The Court found that native title continues to exist wholly or partly in some areas and has been extinguished either wholly or partly in other areas.

The determination also clarifies a number of complex legal questions regarding the interaction between native title rights and interests, where they continue to exist wholly or partly, and other rights and interests.

The claim was largely successful because the Yawuru people successfully established a communal native title entitlement to exclusive possession of their traditional country over approximately 4,900 km2 in and around Broome. However, the Court pointed out that as a result of the Native Title Act 1993 and other Australian laws, the native title rights and interests of most of the area were found to be 'non-exclusive'. The rights of access to, and enjoyment of, waterways, beds, banks or foreshores of waterways, coastal waters, beaches or stock routes that existed as at the date of the determination are recognised as 'other interests' in the determination area. Common law public rights to fish and navigate in tidal waters are also recognised as 'other interests' in the determination area. The determination recognising the existence of native title, has no effect on these 'other interests' to the extent of any inconsistency and the doing of any activity by or under those 'other interests' prevails over the native title but does not extinguish it.

Part of the determination recognising the existence of native title will not take effect until the native title holders have a prescribed body corporate registered on the National Native Title Register.

In responding to the Federal Court's decision, the President of the Shire of Broome, Mr Graeme Campbell, says the Federal Court's determination clarifies land tenure issues for the Shire and the community. "It's now certain that native title exists, It's now certain that the State has to engage in compensation. It's now certain the Shire can go forward with it's future planning, particularly with our new town planning scheme which we're trying to adopt, so that gives certainty to all of those," Mr Campbell said.

Source: ABC News Online

The determination means that the Shire of Broome will need to take account of the native title rights and interests in areas where it continues to exist. The options available to the Shire include the development of an Indigenous Land Use Agreement or following the relevant future act process in the Native Title Act 1993 (Cth) if its decisions or actions will affect the native title rights and interests.

• National Native Title Tribunal summary of the decision
• Map of the determination area (PDF 310 kb)
• Tribunal's statement on the decision
• Federal Court decision

Ed Wensing
Consultant to ALGA on Native Title matters.