Neowarra v State of Western Australia [2004] FCA 1092 (27 August 2004)

Category: Case Law
Date: 27 August 2004
Sub Category:Litigated Determination
Location:Northern Kimberley region, Western Australia, Australia
Northern Kimberley region.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Federal Court file no.: WAD6015/99; Tribunal file
Alternative Names:
  • Wanjina-Wunggurr Wilinggin Native Title Determination No 1
  • Subject Matter:Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    Summary Information:
    Neowarra v State of Western Australia [2004] FCA 1092 (27 August 2004)

    Between: Paddy Neowarra, Paddy Wama and Others (APPLICANTS) AND
    The State of Western Australia and Others (RESPONDENTS)

    Judge: Sundberg J

    Determination: Native title exists in parts of the determination area.

    The Court found that native title exists in relation to the determination area, however it does not exist in relation to the areas set out in Schedule 3 to the determination.

    The native title holders are the members of the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the determination area. The members of the Wanjina-Wunggurr Community are the people referred to in Schedule 9.

    Orders 4-8 of the determination set out the nature and extent of native title rights and interests. The nature and extent of the native title rights in relation to each part of the determination area set out in Schedule 4 (being areas where there has been no extinguishment of native title or where extinguishment must be disregarded), confer an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters of that part.

    In relation to each part of the determination area set out in Schedule 5 (being current and historical pastoral lease areas other than areas where any extinguishment is required to be disregarded), the native title rights and interests are:
    (a) the right to engage in the following activities:
    (i) having access to the determination area but so that Native Title Holders may seek sustenance in their accustomed manner only from:

    (A) unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or
    (B) unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;
    (ii) camping;
    (iii) hunting for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs from:
    (A) unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or
    (B) unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;

    (iv) having access to painting sites in order to freshen or repaint images there;
    (v) having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;
    (vi) gathering and fishing for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs from:
    (A) unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or
    (B) unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;

    (vii) using traditional resources for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (viii) conducting and taking part in ceremonies;
    (ix) visiting places of importance and protecting them from physical harm;
    (x) manufacturing traditional items (such as spears and boomerangs) from resources of the land and waters for the purpose of satisfying personal, domestic or non-commercial communal needs.
    (b) the right to pass on and inherit the native title rights in (a).

    The nature and extent of the native title rights and interests in relation to each part of the determination area referred to in Schedule 6 [non-vested reserve areas] are:
    (a) the right to engage in the following activities:
    (i) having access to the determination area with liberty to seek sustenance therefrom in their accustomed manner;
    (ii) camping;
    (iii) hunting on the land for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (iv) having access to painting sites in order to freshen or repaint images there;
    (v) having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;
    (vi) gathering and fishing on the land for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (vii) using traditional resources for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (viii) conducting and taking part in ceremonies;
    (ix) visiting places of importance and protecting them from physical harm;
    (x) manufacturing traditional items (such as spears and boomerangs) from resources of the land and waters for the purpose of satisfying the Native Title Holders' personal, domestic or non-commercial communal needs.
    (b) the right to pass on and inherit the native title rights in (a).

    The nature and extent of the native title rights and interests in relation to the part of the determination area referred to in Schedule 7 [reserve subject to by-laws 13 and 15 made in 1963 pursuant to s 8 of the Parks and Reserves Act 1895] are:
    (a) the right to engage in the following activities:
    (i) having access to the determination area;
    (ii) camping;
    (iii) having access to painting sites in order to freshen or repaint images there;
    (iv) having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;
    (v) using traditional resources for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (vi) conducting and taking part in ceremonies;
    (vii) visiting places of importance and protecting them from physical harm;
    (viii) manufacturing traditional items (such as spears and boomerangs) from resources of the land and waters for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs; and
    (b) the right to pass on and inherit the native title rights in (a);
    provided that the exercise of the native title rights in (a) and (b) do not involve hunting, fishing, or the taking of flora.
    8. Subject to Order 9, the nature and extent of the native title rights and interests in relation to such part (if any) of the determination area as consists of land and waters seaward of the high water mark and referred to in Schedule 8 are:
    (a) the right to engage in the following activities:
    (i) having access to the area;
    (ii) moving freely through and within the area;
    (iii) hunting for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (iv) gathering and fishing for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (v) using traditional resources of the area for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (vi) manufacturing traditional items from the resources of the area for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (vii) conducting and taking part in ceremonies within the area;
    (b) the right to pass on and inherit the native title rights in (a).

    The nature and extent of the native title rights and interests in relation to such part (if any) of the determination area as consists of land and waters seaward of the high water mark and referred to in Schedule 8 are:
    (a) the right to engage in the following activities:
    (i) having access to the area;
    (ii) moving freely through and within the area;
    (iii) hunting for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (iv) gathering and fishing for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (v) using traditional resources of the area for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (vi) manufacturing traditional items from the resources of the area for the purpose of satisfying the Native Title Holders’ personal, domestic or non-commercial communal needs;
    (vii) conducting and taking part in ceremonies within the area;
    (b) the right to pass on and inherit the native title rights in (a).

    The native title rights and interests set out above are subject to and exercisable in accordance with State and Commonwealth laws, and the traditional laws and customs acknowledged and observed by the native Title Holders (see Order 9).

    Order 10 sets out the nature and extent of other non native title interests in relation to the determination area. These include pastoral interests set out in Schedule 5, interests in reserves, those rights and interests pursuant to legislation, mining tenements, public rights to fish and navigate waters, various interests of the Crown and rights of access provided by Commonwealth or State laws in force on the date of the determination.

    Order 11 sets out the relationship between the native title and other rights and interests. Generally speaking, the non-native title rights and interests identified prevail over the native title rights and interests. Both sets of rights must be exercised reasonably. The native title right to hunt may only be exercised on pastoral leases with firearms where stock are not present, and where the pastoral lessee or manager is given advance notice such that safety issues may be addressed.
    Detailed Information:
    This determination finalises the Wanjina-Wunggurr Wilinggin and Ngarinyin native title claims brought by members of the Wanambal, Worrorra and Ngarinyin language groups. The trial process itself continued over a period of three years, including 59 days of hearings. The Court recognised, amongst other things, that the different language groups represented in the determination area belonged to one cultural group sharing laws, customs and beliefs.

    The Wanjina-Wunggurr group now has the native title right of exclusive possession in some areas where native title has not previously been extinguished by government activities. The group also has some rights on areas covered by current or historic pastoral leases, mining leases and some public reserves. These rights include the right to hunt, fish and gather on those pastoral leases which have not been enclosed or improved.

    The determination finalises a draft determination made by the Federal Court on 8 December 2003. At the December hearing, the Court asked the applicants for further submissions which were considered for the final determination.

    One application was lodged with the National Native Title Tribunal on behalf of the Ngarinyin people in July 1995. The claim sought legal recognition of a 7,229 square kilometre area of land and waters in the northwest of the Kimberley region. The area included a part of Prince Regent Nature Reserve, Aboriginal Reserve, Drysdale River Station, and vacant Crown land. The applicants were represented by the Kimberley Land Council. The same area was covered by another application lodged later, in July 1999, by the same applicant group on behalf of the Wanjina-Wunggurr Wilingin People, also represented by the Kimberley Land Council. The latter application covered 59,903 square kilometres in the northern central Kimberley region. The applicants later lodged another native title claim (Wanjina-Wunggurr Wilinggin #2) in December 2002. This application fell within the boundaries of their existing application and asserted native title in relation to a pastoral lease of which they had gained ownership since the lodgement of the 1999 application.

    The Federal Court determined that the Ngarinyin and Wanjina-Wanggurr Wilinggin claims should be addressed together, and subsequently, that the Wanjina-Wanggurr Wilinggin #2 application should be heard in the same proceedings.

    Related Entries

    Agreement
  • Goonack v State of Western Australia [2011] FCA 516
  • Organisation
  • Federal Court of Australia
  • National Native Title Tribunal
  • State of Western Australia - Respondent
  • Kimberley Land Council (Aboriginal Corporation) - Aboriginal Representative Party
  • Wanjina-Wanggurr (Native Title) Aboriginal Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • People
  • Wanjina-Wunggurr Community - Native Title Claimant
  • Ngarinyin People - Native Title Claimant
  • Wama, Paddy - Native Title Claimant
  • Neowarra, Paddy - Collaborator
  • Neowarra, Paddy - Native Title Claimant

  • References

    Case Law
    Federal Court of Australia (2004) Neowarra v State of Western Australia [2004] FCA 1092
    Media Release
    National Native Title Tribunal (2004) Kimberley Celebrates its Sixth Native Title Determination
    Resource
    National Native Title Tribunal (2004) Wanjina/Wunggurr-Willinggin and Ngarinyin Backgrounder
    National Native Title Tribunal (2004) Native Title Determination Summary: Wanjina-Wunggurr Wilinggin Native Title Determination No 1
    National Native Title Tribunal (2003) Wanjina/Wungurr-Willinggin and Ngarinyin peoples achieve recognition of native title rights in Kimberley
    National Native Title Tribunal (September 2004) 'Single cultural group recognised in Wanjina-Wunggurr Wilinggin determination', in Talking Native Title, Issue 12

    Glossary

    Native Title (Australia) | Litigated Determination (Native Title Act 1993 (Cth)) (Australia)