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Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148

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, Kimberley Region. For specific exclusive native title areas see the details for 25 lots of land attached in Schedule 3. For non-exclusive native title see attached Schedule 4. This includes 11 Pastoral Leases, 12 non-vested reserves, 2 vested reserves, 9 areas of unallocated crown land, 13 areas subject to public works, and 8 water areas.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: WAD94/2012; Native Title Tribunal No: WCD2015/009.
Alternative Names:
  • Bunuba People #2 Part A
  • Subject Matter:Access | Cultural Heritage | Pastoral Activities
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2015/1481.html?context=1;query=Brooking%20on%20behalf%20of%20the%20Bunuba%20People%20(Bunuba%20#2)%20v%20State%20of%20Western%20Australia;mask_path=
    Summary Information:
    Between:

    George Brooking, Mary Aiken, Jimmy Andrews, Patsy Bedford, Kevin Dann, Patrick Green, Isaac Hale, Danny Marr, June Oscar and Kevin Oscar (APPLICANTS) and

    State of Western Australia, Oil Basins Limited, Bullurea Pastoral Company Pty Ltd, Jubilee Downs Pastoral Company Pty Ltd, Callum Hugh Maclachlan, Jock Hugh Maclachlan, Napier Corporation Pty Ltd, Kenneth Andrew Vivian (as executor for estate of Jillian Mary Jenyns) and the Shire of Derby/West Kimberley (RESPONDENTS)

    Judge: Baker J
    Where made: Perth

    Determination:

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

    Native title is held by the Bunuba People.

    The exclusive native title rights over part of the determination area consist of:
    -except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others; and
    - in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters for personal, domestic, cultural, or non-commercial communal purposes;
    - the right to take, use share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.
    Note: these rights relate to the determination area in Schedule 3 (areas where native title has not been extinguished).

    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 communal purposes;
    - the right to take and use flora and 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;
    - 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
    - the right to access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.
    Note: the above rights relate to the determination area referred to in Schedule 4 Parts 1-5 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded).

    The non-exclusive native title rights that exist in Schedule 4 Part 6 (areas where non-exclusive native title rights can be recognised and where any extinguishment is not required to be disregarded) include:
    - the right to access and move freely through and within each part of the determination area;
    - the right to hunt, gather and fish for personal, domestic, cultural and non-commercial communal purposes;
    - the right to take and use flora and 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 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 visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the determination area; and
    - the right to access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.

    All of the above native title rights do not confer exclusive possession to the exclusion of all others nor do they confer a right to control the access of others to the lands and waters in parts of the determination areas. This does not apply to exclusive native title rights in Schedule 3 except in relation to flowing underground waters.

    All native title rights and interests are subject to and exercisable in accordance with the laws of the State, Commonwealth and Local Government, including the common law and traditional laws and customs of Native Title Holders for personal, domestic, cultural and non-commercial communal purposes (including social, religious, spiritual, and ceremonial purposes).

    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 MiningAct 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 rights and 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);
    - existing interests under the Mining Act 1978 (WA) 1978;
    - existing interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - roads to which non-extinguishment applies (see attached Schedule 8);
    - unallocated Crown land heritage areas under the Heritage of Western Australia Act 1990 (WA);
    - reserves under the Conservation and Land Management Act 1986 WA;
    - the 12 pastoral leases and 1 lease listed in Schedule 8 attached;
    - the rights and interests of Telstra Corporations Limited 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);
    - Rights in Water and Irrigation Act 1914 (WA) and of the Country Areas Water Supply Act 1947 (WA) including the rights and interests of the general public to fish, publicly navigate, the right to roads, and the rights of an employee or agent of the State, Commonwealth or Local Government to access the area;
    - rights under the s 14 of the Titles (Validation) and Native Title
    (Effect of Past Acts) Act 1995
    (WA) including to the public access and enjoyment of, waterways, the beds and banks or foreshores of waterways, stock routes, areas that were public at the end of 31 December 1993, other legal or equitable estate or interest in the land or water, any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with, the land or waters, or an estate or interest in the land of water.

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

    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.
    Detailed Information:
    Background:

    This claim is part of twelve claims brought on behalf of the Bunuba People to lands in the Kimberley region. This claim was filed in 2012 over roughly 9759 square kilometres of land surrounding the original Bunuba Part A claim (AIATSIS 2015). The whole area was to be determined this case (Bunuba #2 Part A), however, there was an overlap of a Native Title Application made on behalf of the Warlangurru People in the south of the claim area (AIATSIS 2015). Therefore, the judgement only determined the areas which were not affected by this Warlangurru People's claim.

    The "Bunuba People are a language-owning group who speak the language laid down on Bunuba country in the Ngarranggani. The Bunuba language is said to belong to a large region that is bounded by the Fitzroy River to the south-east, the Leopold Range to the north-east, the Oscar Range to the south-west and the Napier Range to the north-west" (Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 at Para 18). Laws of the Bunuba People originate from the Ngarranggani and this governs the lives of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 at Para 20). These laws separate the Bunuba People from the surrounding groups.

    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 #2 Part A 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
  • Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480
  • Wurrunmurra v State of Western Australia [2012] FCA 1399
  • Organisation
  • National Native Title Tribunal
  • State of Western Australia - Respondent
  • Bunuba Dawangarri Aboriginal Corporation RNTBC - Native Title Applicants
  • Oil Basins Pty Ltd - Respondent
  • Jubilee Downs Pastoral Company Pty Ltd - Respondent
  • Napier Corporation Pty Ltd - Respondent
  • Bullurea Pastoral Company Pty Ltd - Respondent
  • Legislation
  • Mining Act 1978 (WA)
  • Mining Act 1904 (WA)
  • Post and Telegraph Act 1901(Cth)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Native Title Act 1993 (Cth)
  • Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
  • Native Title Amendment Act 1998 (Cth)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • Rights in Water and Irrigation Act 1914 (WA)
  • Conservation and Land Management Act 1984 (WA)
  • Country Areas Water Supply Act 1947 (WA)
  • Heritage of Western Australia Act 1990 (WA)
  • People
  • Bunuba People - Native Title Applicants
  • Kenneth Andrew Vivian (as executor for estate of Jillian Mary Jenyns) - Respondent
  • Jock Hugh Maclachlan - Respondent
  • Callum Hugh Machlachlan - Respondent

  • References

    General Reference
    AIATSIS (2015) What's New in Native Title - December 2015
    National Native Title Tribunal extract from the National Native Title Register (of native title determinations) for Federal Court matter number WAD94/2012 as at 23/02/2016.

    Documents

    Map
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - Schedule 4 - map of non-exclusive native title rights - ( PDF)
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - schedule 2 maps of determination area - ( PDF)
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - National Native Title Extract - ( PDF)
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - Schedule 3 - map of exclusive native title rights - ( PDF)
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - Schedule 5 - areas where native title does not exist - ( PDF)
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - other rights and interests - ( PDF)
    Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 148 - areas which s 47 of the Native Title Act applies - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Applicants | Native Title (Australia) | Respondent

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