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Wurrunmurra v State of Western Australia [2012] FCA 1399

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 12 December 2012
Sub Category:Consent Determination (Native Title Act)
Location:North of Fitzroy Crossing, Western Australia, Australia
North of Fizroy Crossing
Legal Status: Registered on the National Native Title Tribunal Register of Consent Determinations
Legal Reference: Tribunal file no.: WC1999/019 Federal Court no.: WAD6133/1998
Alternative Names:
  • Bunuba
  • URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/1399.html
    Summary Information:
    Between:
    Banjo Wurunmurra, Adam Andrews, Johnny Marr, Bradley Williams, Rita Dann, Billy Oscar, Isaac Hale and Danny Marr on behalf of the Bunuba People
    (APPLICANTS) and

    State of Western Australia, Kimberley Diamond Company NL, Edward Perry Bass, PR & JM Camm, Jubilee Downs Pastoral Co Pty Ltd, Callum Hugh Machlachlan, Jock Hugh Machlachlan, W N M McDonald Pty Ltd and Telstra Corporation Limited
    (RESPONDENTS)

    Judge: Gilmour J

    Where made: Danggu (Geikie Gorge)

    Determination:

    Native title is held by the Bunuba People:

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

    The exclusive native title rights and interests that exist over land in the exclusive native title area include:
    - the right to possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others.

    The exclusive native title rights and interests that exist over water in the exclusive native title area:

    -the right to use and enjoy the flowing and underground waters, including the right to hunt on, fish from, take, use, share and exchange the natural resources of the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes and the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.

    Non-exclusive native title rights and interests that exist over land in the non-exclusive native title area include:
    - the right to access and move freely about the the area;
    - the right to live, camp on and erect shelters for that purpose;
    - the right to hunt, to gather, to fish and to take and use the flora and fauna and the natural resources of the determination area for non-commercial 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; and
    - the right to access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.


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

    - the following pastoral leases: Fairfield Fairfield - Pastoral Lease 3114/748 held by the Bunuba Aboriginal Corporation, Leopold Downs - Pastoral Lease K571500 held by the Bunuba Aboriginal Corporation, a portion of Pastoral Lease 3114/692, Kimberley Downs, a portion of Pastoral Lease 3114/930, Jubilee Downs, a portion of Pastoral Lease 3114/1269, Quanbun Downs, and a portion of Pastoral Lease 3114/1271, Blina.
    - The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves: Reserve 1576 - Watering Place,Reserve 12474 - Portion of Lennard River Stock Route, Reserve 12475 - Stock Route, Reserve 43099 - Conservation Park, Reserve 43100 - Conservation Park and Reserve 43101 - Conservation Park;
    - The interests of persons holding leases over areas of the reserves identified in para 2 above;
    - Existing petroleum interest of Budside Pty Ltd and Pobelo Pty Ltd with Exploration Permit 453 under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
    - Existing interests under the Mining Act 1978 (WA) including General Purpose Lease G0400038 "Stockpile for sand and aggregate" to Holcim (Australia) Pty Ltd, Mining Lease M0400372 formerly Mining Lease 275SA granted under and in accordance with the Diamond (Argyle Diamond Joint Venture) Agreement Act 1981 (WA) to Kimberley Diamond Co NL, Exploration Licence 0400726 to Blina Minerals NL, Exploration Licence 0401599 to Michael Haabjoern, Exploration Licence 0401936 to Sarah Elizabeth Dowling, Exploration Licence 0401951 to Kevin Peter Sibraa, Exploration Licence 0402013 to Tetra Resources Pty Ltd, Exploration Licence 0402169 to HD Mining & Investment Pty Ltd and Prospecting Licence 0400187 to Marten Hendrick Ynema.
    - Rights and interests granted by Western Australia or the Commonwealth pursuant to statute or otherwise in the exercise of its executive power;
    - Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
    - Rights and interests of members of the public arising under the common law including but not limited to the public right to fish, the public right to navigate and the right of any person to use any road in the Determination Area;
    - The right to access land by an an employee or agent or instrumentality of a local government authority, State or Commonwealth, in the performance of his or her statutory or common law duties where such access would be permitted to private land;
    - the rights of any person to access and enjoy Stock Routes;
    - the rights of holders from time to time of existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA), petroleum pipelines under the Petroleum Pipelines Act 1969 (WA) and existing mining tenements under the Mining Act 1978 (WA) including those mentioned above to use roads and tracks as are existing at the time of this Determination in the Determination Area to the extent reasonably necessary to have access to the area subject of the petroleum, pipeline and mineral interests for the purposes of exercising the rights granted by those interests;
    - any existing public access to and enjoyment of waterways, the beds and banks or foreshores of waterways, stock routes or areas that were public places at the end of 31 December 1993;
    - any other legal or equitable estate or interest in the land or waters or 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 or waters or restriction on the use of the land or waters, whether or not annexed to other land or waters;
    - The rights and interests of Telstra Corporation as the owner or operator of telecommunications facilities within the Determination Area, created pursuant to 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) including rights to inspect land, install and operate telecommunications facilities and to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities.

    Provisions Relevant to the Native Title Rights

    There are no native title rights or interests in or in relation to Minerals and Petroleum.

    The native title rights are not to be held in trust and the Bunuba Dawangarri Aboriginal Corporation RNTB is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
    Detailed Information:
    Background
    Between 1996 and 1998 the Bunuba people lodged twelve applications for determination of native title. In 1999 the applications were subsequently amendedand combined with WAG6133/98 as the lead application (Bunuba Application).

    The Bunuba Application covers 6,528 square kilometres of land and waters including wetlands and riverine systems located in the Kimberley region of Western Australia, including Leopold Downs Pastoral Lease and Fairfield Pastoral Lease, portions of other Pastoral Leases, small areas of land designated as reserves, and an area of unallocated Crown land. Three conservation parks are to be jointly managed with the state government.

    Bunuba country extends from the township of Fitzroy Crossing in the Kimberley region of Western Australia north along the Fitzroy River to Jijidu (Dimond Gorge), and follows Miluwindi (King Leopold Ranges) to Napier Range in the west. It includes Bandilngan (Windjana Gorge) and Tunnel Creek national parks. The southern extreme extends from Malarabah (Erskine Range) to Dawadiya (Trig Hill) near Fitzroy Crossing, and includes Danggu (Geike Gorge). It takes in the cattle stations Yarranggi (Leopold Downs), Yuwa (Fairfield)and Miluwindi (Milliwindie), which are now owned by Bunuba Inc, and Gurang.ngadja (Brooking Springs).

    The Bunuba native title group consists of those people who are identified as Bunuba, and who have ancestral connection either biological or adoptive, to named muway, being a particular place or area of land and waters, to which a person is connected.

    This is generally based upon their genealogical relations to Bunuba individuals in the grandparental generation. The Bunuba People believe that muway originate in the Ngarranggani, the Dreaming, being the underlying system of Bunuba principles and core beliefs. The Bunuba people describe the term, 'Bunuba', as denoting the language 'belonging' to the group, and to their ancestors.

    There remains Part 2 of the Bunuba Claim to be determined with the Windjana Gorge National Park, where native title has been extinguished, being excised from the Part A of the claim area. The separate separate Part 2 claim was filed in April 2012 and is yet to be resolved.

    The second claim also includes most of the Fitzroy Crossing township and Tunnel Creek: the home of Aboriginal warrior Jandamarra, who fought a three-year campaign against European settlers in the 1890s in an ultimately vain attempt to protect his land.

    Bunuba leader June Oscar felt both happiness and sorrow, saying the 'extremely symbolic' determination simply confirmed in Australian law what her people had always known: 'Bunuba country has been and always will be our country,' she said (The West Australian 2012).


    Details of 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 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

  • References

    General Reference
    Bunuba Films Jandamarra - Bunuba People and Country
    The Australian (13/12/2012) Bunuba win bittersweet battle to reclaim home
    The West Australian (12/12/2012) Bunuba people celebrate native title win
    National Native Title Tribunal (12/12/2012) Native title determination summary - Bunuba

    Glossary

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

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