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Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 22 December 2015
Sub Category:Consent Determination (Native Title Act)
Location:Fitzroy Crossing, Kimberley region , Western Australia, Australia
Fitzroy Crossing, specific locations include: a portion of Brooking Springs Pastoral Lease N050174 (formerly 3114/573, Crown Lease 865/1967); a portion of Reserve 31107, Lot 340 on Deposited Plan 52596 (Windjana Gorge National Park); portions of Lot 341 on Deposited Plan 52596 (formerly part of Reserve 17206 for the purpose of Stock Route and Pastoral Lease 702/98 abutting Reserve 31107); and a portion of Pastoral Lease N050221 (previously Fossil Downs Pastoral Lease 3114/1248).
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: WAD6133/1998; National Native Title Tribunal No: WCD2015/008.
Alternative Names:
  • Bunuba Part B
  • Wurrunmurra v State of Western Australia
  • Subject Matter:Access | Cultural Heritage | Native Title | Pastoral Activities
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2015/1480.html?context=1;query=Wurrunmurra%20on%20behalf%20of%20the%20Bunuba%20People%20v%20State%20of%20Western%20Australia;mask_path=
    Summary Information:
    Wurrunmurra on behalf of the Bunuba People v State of Western Australia

    Between:

    Banjo Wurrunmurra, Bradley Williams, Billy Oscar, Johnny Marr, Danny Marr, Isacc Hale, Rita Dann and Adam Andrews (APPLICANTS)
    and
    State of Western Australia and Kenneth Andrew Vivian (As executory for estate of Jillian Mary Jenyns) (RESPONDENTS).

    Judge: Barker J
    Where made: Perth

    Determination:

    Native title exists in part of the determination area. It consists of non-exclusive native title rights.

    Native title is held by the Bunuba People.

    The non-exclusive native title rights over part of the determination area consist of:

    - the right to access and move freely through and within each part of the Determination Area;
    - the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes on the Determination Area;
    - the right to, hunt, gather and fish for personal, domestic, cultural and non-commercial purposes;
    - the right to take and use flora, fauna for personal, domestic, cultural and non-commercial communal purposes;
    - the right to take, use, share and exchange the natural resources of each part of the Determination Area including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic, cultural and non-commercial communal purposes;
    - the right to light fires for domestic purposes but not for the clearance of vegetation;
    - the right to engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
    - the right to conduct and participate in ceremonies;
    - the right to conduct burials and burial rites and other ceremonies in relation to death;
    - the right to hold meetings;
    - the right to visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the Determination Area; and
    - access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.

    Note the Determination Area is the area included in Schedule 3 of the National Native Title Tribunal extract and includes the lands and waters shown in blue on the map. Specifically the portion of Pastoral Lease N050174 (previously 3114/573, Crown Lease 865/1967) and Brooking Springs falling within the determination area.

    The above rights do not confer possession, occupation, use and enjoyment of those parts of the determination area on the Native Title Holders to the exclusion of all others. This does not confer a right to control access of others to the land or waters of those parts of the determination area.

    The above rights are also subject and exercisable in accordance the laws of the State and Commonwealth, including the common law and the traditional laws and customs of the Native Title Holders for personal domestic, cultural and non-commercial purposes (including social, religious, spiritual and ceremonial purposes).

    Other rights and interests in the determination area include:
    - those in the Rights in Water and Irrigation Act 1914 (WA) such as rights of the general public to fish, navigate, access land, and public roads;
    - the right to access land by an agent or employee of the State, Commonwealth, or Local Government authority;
    - the right to public access and enjoyment of, waterways, beds and banks or foreshores of waterways, stock routes, areas that were public places at the end of 31 December 1993, and any other legal or equitable interests under s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);
    - the right to inspect land, install and operate telecommunication facilities, maintain the facilities and for the employees of the telecommunication companies to perform duties inside the determination area under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth).

    Non-native title rights and interests that exist in the determination area include:
    - minerals, as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
    - petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
    - geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
    - water lawfully captured by the holders of Other Interests, except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).


    The Bunuba Dawangarri Aboriginal Corporation RNTBC as the prescribed body corporate, is to perform functions required under the Native title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held on trust for the native title holders.

    In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
    Detailed Information:
    Backgroud:

    Bunuba Part B is a native title application in response to Bunuba Part A. The whole application including both Part A and B, is a combination of twelve native title applications lodged with the National Native Title Tribunal between the years 1996 and 1998. Two more applications, Bunuba #2 and Bunuba #3 were also included in the Bunuba Peoples native title claims and are held on trust by the Bunuba Dawangarri Aboriginal Corporation RNTBC.

    Bunuba Part B covers the remaining portions of land that were excluded from the Part A determination.

    These portions include:
    - a portion of Brooking Springs Pastoral Lease N050174 (formerly 3114/573, Crown Lease 865/1967);
    - a portion of Reserve 31107, Lot 340 on Deposited Plan 52596 (Windjana Gorge National Park);
    - portions of Lot 341 on Deposited Plan 52596 (formerly part of Reserve 17206 for the purpose of Stock Route and Pastoral Lease 702/98 abutting Reserve 31107); and
    - a portion of Pastoral Lease N050221 (previously Fossil Downs Pastoral Lease 3114/1248).

    The "Bunuba People are a language owning group who speak the language laid down on the Bunuba country in the Ngarranggani" (Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at para 18). This language is connected with the Fitzroy River region, the Leopold Range to the north-east, the Oscar Range to the south-west and the Napier Range to the north-west (Kimberley Land Council 2016).

    June Oscar, Chairperson of the Bunuba Dawangarri Aboriginal Corporation welcomed the Federal Court of Australia determination and stated she looked forward to forming a proactive relationship with the State of Western Australia (Jandamarra accessed 3rd of July 2018).

    The second respondent, Mr Vivan entered into an agreement with Bunuba People in relation to the portions of land that were located within the Brooking Springs pastoral lease.

    Details Judgement

    Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Bunuba People in relation to the part of the land and waters covered by the Bunuba Application. 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
  • Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia [2015] FCA 1482
  • Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148
  • Organisation
  • State of Western Australia - Respondent
  • Bunuba Dawangarri Aboriginal Corporation RNTBC - Native Title Applicants
  • National Native Title Tribunal
  • Legislation
  • Mining Act 1978 (WA)
  • Mining Act 1904 (WA)
  • Petroleum Act 1936 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Post and Telegraph Act 1901(Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Telecommunications Act 1975 (Cth)
  • People
  • Kenneth Andrew Vivian (as executor for estate of Jillian Mary Jenyns) - Respondent
  • Bunuba People - Native Title Applicants

  • References

    General Reference
    Kimberley Land Council (19/1/2016) Bunuba People celebrate native title determination
    Jandamarra (3/7/2018) Bunuba People and Country
    AIATSIS (2015) What's New in Native Title - December 2015

    Documents

    Map
    Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 - Map of Determination Area - ( PDF)
    Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 - National Native Title Tribunal Extract - ( PDF)

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Respondent | Native Title Applicants | Native Title Claimants (registered) (Australia) | Native Title Determination (Australia)

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