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Puenmora v State of Western Australia [2012] FCA 1334

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 27 November 2012
Sub Category:Consent Determination (Native Title Act)
Location:Located approx 259kms north west of Wyndham, Western Australia , Australia
The application was in respect of a small area of land and waters located in the Kimberley region of Western Australia comprising unallocated Crown land and an easement, both of which were previously the subject of special lease 3116/11277 granted pursuant to s 116 of the Land Act 1933 (WA). The area is located approximately 259kms north west of Wyndham.
Legal Status: Registered on the National Native Tribunal Register of Consent Determinations.
Legal Reference: Tribunal file no.: WC2011/004 Federal Court no.: WAD119/2011
Alternative Names:
  • Uunguu - Area B
  • Wanjina-Wunggurr Uunguu B
  • Subject Matter:Access | Native Title
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/1334.html
    Summary Information:
    Between:
    Albert Puenmora, Keith Nenowatt and Susan Bangmora on behalf of the Wanjina Wunggurr People (APPLICANTS) and

    The State of Western Australia (RESPONDENT)

    Judge: Gilmour J

    Where made: Perth

    Determination:

    Native title is held by the members of the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the determination area:

    In the related case of Neowarra v Western Australia [2003] FCA 1402, the court found that the members of the Wanjina-Wunggurr Community constituted a society and were bound together by a normative system of laws and customs which had continued to be acknowledged and observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.


    Native title exists in the determination area. It consists of exclusive rights and interests over certain areas of land in the determination area and non-exclusive native title rights and interests over other areas.


    The native title rights and interests that exist over land in the determination area which has not been extinguished includes:
    - the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.

    In relation to the Intertidal Area in the determination area, the following non-exclusive rights apply:
    - the right to enter, travel over and remain on the Intertidal Area;
    - the right to live and camp on the Intertidal Area;
    - the right to hunt, fish, gather and use the resources of the Intertidal Area including sharing and exchanging those resources and manufacturing traditional items from those resources for personal, domestic and communal needs but not for commercial purposes;
    - the right to light fires for domestic purposes;
    - the right to take and use water from the Intertidal Area; and
    - the right to engage in cultural activities on the Intertidal Area including visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity, conducting ceremony and ritual, holding meetings, participating in cultural practices relating to birth and death, including burial rights, passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance and
    maintaining, and protecting from physical harm, places and areas of importance.

    In relation to water, the native title holders have the following non-exclusive native title rights:
    - the right to enter, travel over and remain on the waters;
    - the right to hunt, fish and gather from the water for personal, domestic and non-commercial communal purposes; and
    - the right to take and use the water.

    Non-native title rights and interests that exist within the determination area can be summarised as

    - Rights and interests, including licences and permits, granted by the State or the Commonwealth including the rights and interests of the holders of licences granted under the Jetties Act 1926 (WA) and the rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth);
    - Rights or interests held under laws including the Rights in Water and Irrigation Act 1914 (WA);
    - Rights and interests of members of the public arising under common law including the public right to fish, the public right to navigate and the right of any person to use any road in the determination area over which members of the public have a right of access under common law.
    - The right to access the Determination Area by
    an employee, agent or instrumentality of the State, Commonwealth or any local government authority as required in the performance of his or her statutory or common law duty;
    - Any existing public access to, and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and areas that were public places at the end of 31 December 1993 in the Determination Area; and
    - Any other valid legal or equitable estate or interest in the land or waters or other right.

    Provisions Relevant to the Native Title Rights

    The native title rights and interests do not include the right to minerals, petroleum and geothermal energy resources as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA).

    The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders.


    Detailed Information:
    Background

    This application (Wanjina-Wunggurr Uunguu B) was filed on the 19 April 2011 however the external boundaries of the Wanjina-Wunggurr Uunguu B Application entirely overlapped those of another proceeding, Wanjina-Wunggurr Uunguu Application. The applicant in the Wanjina-Wunggurr Uunguu Application however obtained an order of discontinuance in relation to that proceeding.

    On 23 May 2011, the court made a determination of native title in favour of the members of the Wanjina-Wunggurr Community in respect of part of the land and waters the subject of the Wanjina-Wunggurr Uunguu Application (Goonack v State of Western Australia [2011] FCA 516.
    The Goonack consent determination covered approximately 25,909 square kilometres of land and sea, recognising both exclusive and non-exclusive native title rights over the claim area.

    That part of the Wanjina-Wunggurr Uunguu Application covering land and waters not the subject of the determination of native title in Goonack (Excluded Area) remained in mediation.
    The parties agreed to omission of the Excluded Area from the determination for the purpose of enlivening the provisions in s 47B of the Native Title Act allowing for any prior extinguishing act to be disregarded in determining the existence of native title over the Excluded Area.



    Details of Judgement

    The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

    The court was satisfied that a determination of native title was within the power of the court.


    Related Entries

    Agreement
  • Goonack v State of Western Australia [2011] FCA 516
  • Organisation
  • Wanjina-Wanggurr (Native Title) Aboriginal Corporation
  • State of Western Australia - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Fish Resources Management Act 1994 (WA)
  • Fisheries Management Act 1991 (Cth)
  • Pearling Act 1990 (WA)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Mining Act 1978 (WA)
  • Mining Act 1904 (WA)
  • Petroleum Act 1936 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • People
  • Wanjina-Wunggurr Community - Native Title Claimant

  • References

    General Reference
    National Native Title Tribunal (2012) Native title determination summary - Uunguu Area B
    Media Release
    Robert McLelland (27 May 2011) Wanjina-Wunggurr Dambimangari Native Title Recognition
    Robert McClelland (23 May 2011) Wanjina-Wunggurr Uunguu Native Title Recognition
    Resource
    National Native Title Tribunal (2004) Native Title Determination Summary: Wanjina-Wunggurr Wilinggin Native Title Determination No 1
    National Native Title Tribunal (September 2004) 'Single cultural group recognised in Wanjina-Wunggurr Wilinggin determination', in Talking Native Title, Issue 12
    National Native Title Tribunal (2011) WA - Native title determination summary - Uunguu Part A

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Determination (Australia) | Native Title Registers | Native Title Applicants | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Applications/Claims (Australia) | Respondent

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