BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715

BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715

The accepted evidence of knowledgeable Birriliburu witnesses, supported by the anthropological evidence of Dr Sackett and Dr Cane, established that under traditional laws and customs the Birriliburu People are entitled as of right to access and take the resources of their country, including things in, on and under the land, for any purpose they determine. Proof of actual commercial activity was not legally necessary to establish the right, but in any event the evidence showed both historical trading in the Western Desert region and recent sales or commercial uses of resources. Traditional internal constraints on access or use concern the exercise of the right and do not limit its scope....

Jurisdiction
Australia
Judgment Date
04 July 2014
Procedural Posture
Applications for a Determination of Native Title / Reasons for Judgment on the Remaining Contested Issue Concerning the Nature and Description of the Right to Access and Take Resources; Parties Ordered to File a Draft Determination
Outcome
The Court held that the determination of native title in favour of the applicants should include a native title right to access and take for any purpose the resources of the determination area.
Legal Topics
['traditional Laws and Customs' 'right to Access and Take Resources' 'commercial Use of Resources' 'native Title Determinations' 'section 47 B of the Native Title Act 1993 (cth)']
['native Title'] ['traditional Laws and Customs' 'right to Access and Take Resources' 'commercial Use of Resources' 'native Title Determinations' 'section 47 B of the Native Title Act 1993 (cth)']

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Procedural Posture

Applications for a Determination of Native Title / Reasons for Judgment on the Remaining Contested Issue Concerning the Nature and Description of the Right to Access and Take Resources; Parties Ordered to File a Draft Determination

Legal Issues

  1. 1 ['Whether the Birriliburu People have a right under traditional laws and customs to access resources and to take resources of the application areas for any purpose.' 'Whether the claimed right includes taking resources for commercial purposes.' 'Whether proof of actual commercial activity is necessary to establish the existence of a native title right to take resources for commercial purposes.' 'Whether traditional constraints on taking or using resources limit the scope of the claimed right.']

Ratio Decidendi

The accepted evidence of knowledgeable Birriliburu witnesses, supported by the anthropological evidence of Dr Sackett and Dr Cane, established that under traditional laws and customs the Birriliburu People are entitled as of right to access and take the resources of their country, including things in, on and under the land, for any purpose they determine. Proof of actual commercial activity was not legally necessary to establish the right, but in any event the evidence showed both historical trading in the Western Desert region and recent sales or commercial uses of resources. Traditional internal constraints on access or use concern the exercise of the right and do not limit its scope....

Court Disposition

The Court held that the determination of native title in favour of the applicants should include a native title right to access and take for any purpose the resources of the determination area.

Orders

  • ['By 4 August 2014 the applicants and the first respondents file a draft determination of native title reflecting these reasons for judgment.']