FEDERAL COURT OF AUSTRALIA
Wurrunmurra v State of Western Australia [2012] FCA 1399
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IN THE FEDERAL COURT OF AUSTRALIA |
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DATE OF ORDER: |
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WHERE MADE: |
DANGGU (GEIKIE GORGE) |
A. Pursuant to s 87A(2) of the Native Title Act 1993 (Cth) the parties have filed with this Court a Minute of Consent Determination (Part A) which reflects the terms of an agreement reached by the parties in relation to a part of these proceedings.
B. The terms of the agreement involve the making of a determination of native title in relation to an area included in the area of land and waters the subject of these proceedings pursuant to s 87A(4) and s 94A of the Native Title Act 1993 (Cth).
C. The parties have agreed that the registered native title body corporate, the Bunuba Dawangarri Aboriginal Corporation RNTBC, which will hold the native title rights and interests in trust, may seek a variation of the determination of native title in this matter, as it relates to pastoral improvements, in accordance with s 13(1) and s 13(5) of the Native Title Act 1993 (Cth) in the event that the ruling of the Federal Court of Australia in De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court of Australia in the context of an appeal to the High Court of Australia from the decision of the Federal Court of Australia in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154.
D. Subject to E below, if the Bunuba Dawangarri Aboriginal Corporation RNTBC makes such an application within 3 months of the delivery of the High Court of Australia decision, the parties to this consent determination will consent to that application being argued on its merits.
E. Upon such application being made, nothing in D above or otherwise prevents any party from opposing a variation to the determination on the basis of the merits of such application.
F. Each of:
(a) Jock Hugh MacLachlan and Callum Hugh MacLachlan of Kimberley Downs Station;
(b) Callum Hugh MacLachlan of Blina Station; and
(c) Jubilee Downs Pastoral Co Pty Ltd (ACN 009 209 607) of Quanbun Downs Station and Jubilee Downs Station,
has agreed to the terms of the Determination on the basis of having reached agreement with the applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the Determination, that agreement will be executed and an application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as an area agreement pursuant to s 24CG of the Native Title Act 1993 (Cth).
BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to ss 87A and 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:
THE COURT ORDERS THAT:
1. There be a determination of native title in WAD 6133 of 1998 in terms of the Determination as provided for in Attachment ‘A’ hereof.
2. The Bunuba Dawangarri Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).
3. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ATTACHMENT ‘A’
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s 225 Native Title Act)
1. The Determination Area is the land and waters described in Schedule One and depicted on the maps comprising Schedule Two.
2. Native title exists in those parts of the Determination Area identified in Schedules Three and Four (Native Title Area).
3. Native title does not exist in those parts of the Determination Area identified in Schedule Five.
Native title holders (s 225(a) Native Title Act)
4. The native title in the Determination Area is held by the Bunuba People. The Bunuba People are the people referred to in Schedule Six.
The nature and extent of native title rights and interests (s 225(b) Native Title Act) and exclusiveness of native title (s 225(e) Native Title Act)
Exclusive native title rights and interests
5. Subject to paras 7, 8 and 9 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule Three, being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded, are:
(a) 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
(b) in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:
(i) 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;
(ii) the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes.
Non-exclusive rights and interests
6. Subject to paras 7, 8 and 9, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule Four, being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded, are that they confer the following non-exclusive rights on the Native Title Holders, including the right to conduct activities necessary to give effect to them:
(a) the right to access and move freely through and within each part of the Determination Area referred to in Schedule Four;
(b) the right to live, being to enter and remain on, camp and erect shelters and other structures for those purposes on the Determination Area referred to in Schedule Four;
(c) the right to:
(i) hunt, gather and fish for personal, domestic, cultural and non-commercial communal purposes;
(ii) take and use flora and fauna for personal, domestic, cultural and non-commercial communal purposes;
(iii) take, use, share and exchange the natural resources of each part of the Determination Area referred to in Schedule Four including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic, cultural and non-commercial communal purposes;
(iv) light fires for domestic purposes but not for the clearance of vegetation;
(v) engage in cultural activities in the area, including the transmission of cultural heritage knowledge;
(vi) conduct and participate in ceremonies;
(vii) conduct burials and burial rites and other ceremonies in relation to death;
(viii) hold meetings;
(ix) visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the Determination Area referred to in Schedule Four; and
(x) access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.
7. The native title rights and interests referred to in paras 5(b) and 6 do not confer:
(a) possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others, nor
(b) a right to control the access of others to the land or waters of those parts of the Determination Area.
8. Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to
(a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
(b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);
(c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(d) 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).
9. Native title rights and interests are subject to and exercisable in accordance with:
(a) the laws of the State and the Commonwealth, including the common law; and
(b) the traditional laws and customs of the Native Title Holders for personal, domestic, cultural and non-commercial communal purposes, including social, religious, spiritual and ceremonial purposes.
Areas to which s 47 and s 47B of the Native Title Act apply
10. Sections 47 and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Seven.
The nature and extent of any other interests
11. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule Eight.
Relationship between native title rights and other interests
12. The relationship between the native title rights and interests described in paras 5 and 6 and the other interests referred to in para 11 (“the other rights and interests”) is that:
(a) to the extent that any of the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency during the currency of the other interests; and otherwise,
(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.
Liberty to Apply
13. The parties have liberty to apply for the following purposes:
(a) to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Part One of Schedule Five of this Determination;
(b) to establish the precise location of the boundaries of land on which the pastoral improvements referred to in Part Two of Schedule Five of this Determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements; and
(c) to establish whether any of the pastoral improvements referred to in Part Two of Schedule Five of this Determination have been constructed unlawfully.
Definitions and interpretation
14. In this Determination, unless the contrary intention appears:
“Determination Area” means the land and waters described in Schedule One and depicted on the maps at Schedule Two;
“flowing water” means the following water within the Determination Area:
(a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and
(b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows;
“land” includes the airspace over, or subsoil under, land, but does not include "waters" and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters";
“Native Title Act” means the Native Title Act 1993 (Cth);
“non-commercial communal” includes social, cultural, religious, spiritual and ceremonial purposes;
“underground water” means water from and including an underground water source, including water that percolates from the ground;
“waters” has the same meaning as in the Native Title Act; and includes flowing and underground water.
In the event of any inconsistency between the written description of an area in Schedule One or Schedules Three to Five and the area as depicted on the maps at Schedule Two, the written description prevails.
SCHEDULE ONE
DETERMINATION AREA
The Determination Area, noting however that the area comprising those parts of Reserve 31107 Windjana Gorge National Park within the boundaries of the Determination Area is not covered by the Bunuba Application because it has been subject to a previous exclusive possession act (sections 61A and 23C of the Native Title Act 1993 (Cth) and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) and is therefore excluded from the Determination Area on that basis) generally shown as bordered in blue on the maps at Schedule Two, comprises all that land and waters bounded by the following description:
AREA ‘A’
All those lands and waters commencing at the northernmost northwestern corner of Pastoral Lease 3114/748 (Fairfield) and extending southerly, westerly, again southerly, generally southeasterly, generally northwesterly and again generally southeasterly along boundaries of that pastoral lease to a western boundary of Pastoral Lease PL K571500 (Leopold Downs); Then southerly, easterly, again southerly, again easterly and again southerly along boundaries of that pastoral lease to Latitude 17.948589 South; Then westerly, generally southeasterly and easterly passing through the following coordinate positions:
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LATITUDE (SOUTH) |
LONGITUDE (EAST) |
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17.948590 |
125.334617 |
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17.965257 |
125.334617 |
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17.965257 |
125.351284 |
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17.981923 |
125.351284 |
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17.981923 |
125.367950 |
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17.981923 |
125.384616 |
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17.998590 |
125.384616 |
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18.015257 |
125.384616 |
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18.015257 |
125.401283 |
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18.015256 |
125.417950 |
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17.998589 |
125.417950 |
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17.998589 |
125.434616 |
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17.998589 |
125.451283 |
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18.015256 |
125.451283 |
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18.015256 |
125.467950 |
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18.015256 |
125.484616 |
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18.031922 |
125.484616 |
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18.031922 |
125.501283 |
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18.041701 |
125.501283 |
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18.048589 |
125.501283 |
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18.048589 |
125.530510 |
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18.048589 |
125.534616 |
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18.065256 |
125.534616 |
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18.065256 |
125.551283 |
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18.081922 |
125.551283 |
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18.098589 |
125.551283 |
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18.115256 |
125.551283 |
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18.131922 |
125.551283 |
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18.148589 |
125.551283 |
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18.148589 |
125.567950 |
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18.148588 |
125.584616 |
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18.148588 |
125.601283 |
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18.148588 |
125.617950 |
Then east to intersect with the centreline of the Fitzroy River; Then generally northeasterly upwards along the centreline of that river to Latitude 18.115254 South; then west, generally northerly, generally northeasterly and generally westerly passing through the following coordinate positions:
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LATITUDE (SOUTH) |
LONGITUDE (EAST) |
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18.115254 |
125.684616 |
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18.098587 |
125.684616 |
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18.081920 |
125.684616 |
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18.065254 |
125.684616 |
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18.048587 |
125.684616 |
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18.048587 |
125.701284 |
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18.031920 |
125.701284 |
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18.031920 |
125.717951 |
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18.015254 |
125.717950 |
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18.015254 |
125.734616 |
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18.015254 |
125.751283 |
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17.998587 |
125.751283 |
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17.998587 |
125.767950 |
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17.998587 |
125.784616 |
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17.981920 |
125.784616 |
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17.965254 |
125.784616 |
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17.965254 |
125.767950 |
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17.965254 |
125.751283 |
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17.965254 |
125.734616 |
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17.965254 |
125.717950 |
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17.965254 |
125.701283 |
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17.981920 |
125.701283 |
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17.981920 |
125.684616 |
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17.981920 |
125.667951 |
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17.998587 |
125.667951 |
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17.998588 |
125.651284 |
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18.015255 |
125.651283 |
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18.031921 |
125.651283 |
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18.048588 |
125.651283 |
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18.048588 |
125.634616 |
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18.048588 |
125.617950 |
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18.048588 |
125.601283 |
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18.048588 |
125.584616 |
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18.048588 |
125.567950 |
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18.031921 |
125.567950 |
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18.015255 |
125.567950 |
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17.998588 |
125.567950 |
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17.998588 |
125.584616 |
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17.981921 |
125.584617 |
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17.965255 |
125.584617 |
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17.965255 |
125.567951 |
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17.948588 |
125.567951 |
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17.948588 |
125.551284 |
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17.948588 |
125.534617 |
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17.948588 |
125.517950 |
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17.948589 |
125.501283 |
Then west to an eastern boundary of Pastoral Lease PL K571500 (Leopold Downs); Then northerly, generally easterly, generally northerly and generally northwesterly along boundaries of that pastoral lease to an eastern boundary of Pastoral Lease 3114/748 (Fairfield); Then northerly and westerly along boundaries of that pastoral lease back to the commencement point.
AREA ‘B’
All those lands and waters commencing at Latitude 17.465263 South, Longitude 124.967949 East and extending easterly, northerly, westerly, again northerly, again westerly, southerly and again easterly passing through the following coordinate positions:
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LATITUDE (SOUTH) |
LONGITUDE (EAST) |
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17.465263 |
124.984615 |
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17.465264 |
125.001281 |
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17.448597 |
125.001281 |
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17.431930 |
125.001281 |
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17.431929 |
124.984615 |
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17.431928 |
124.967949 |
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17.415262 |
124.967949 |
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17.415261 |
124.951283 |
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17.415261 |
124.934616 |
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17.431927 |
124.934616 |
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17.448594 |
124.934616 |
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17.465261 |
124.934616 |
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17.465262 |
124.951283 |
Then easterly back to the commencement point.
The Determination Area also includes all that land comprising:
(i) Exploration Leases E04/726, E04/801, E04/1089 and E04/1098 (as defined by Department of Mines and Petroleum as at 17 July 1999).
(ii) General Purpose Lease G04/38 (as defined by Department of Mines and Petroleum as at 17 July 1999).
(iii) Prospecting Licence Application P04/187 (as defined by Department of Mines and Petroleum as at 17 July 1999).
(iv) Lot 281 as shown on Deposited Plan 92277.
(v) Areas within the Fitzroy Crossing townsite being:
(a) All that land commencing at the easternmost northeastern corner of Reserve 36958 and extending southerly along boundaries of that reserve to Latitude 18.192092 South; Then southwesterly to Latitude 18.192138 South, Longitude 125.563822 East; Then northwesterly to a northern boundary of Reserve 36958 at Longitude 125.563774 East and then northeasterly along boundaries of that reserve back to the commencement point.
(b) All that land comprising Lots 325, 326 and 327 as shown on Deposited Plan 28864.
EXCLUSIONS
All that land comprising Lot 341 as shown on Deposited Plan 52596.
All that land comprising Reserve 31107.
All that land comprising Pastoral Lease 3114/573 (Brooking Springs).
All that land comprising Pastoral Lease 314/1248 (Fossil Downs).
Data Reference and Sources:
All referenced Deposited Plans and Diagrams are held by the Western Australian
Land Information Authority, trading as Landgate.
Geographic Coordinates provided in Decimal Degrees.
Cadastral Boundaries sourced from Landgate Spatial Cadastral Data dated 29 October 2012.
Mining Tenements sourced from Department of Mines and Petroleum as at 17 July 1999.
Centrelines of rivers as defined by the National Native Title Tribunal from digitized AUSLIG 1:250 000 georeferenced raster image.
Datum: Geocentric Datum of Australia (1994)
Prepared by: Native Title Spatial Services (Landgate) 28 November 2012.
Use of Coordinates:
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
SCHEDULE TWO
MAPS OF THE DETERMINATION AREA
SCHEDULE THREE
EXCLUSIVE NATIVE TITLE AREAS
Areas where native title comprises the rights set out in paragraph 5
The following land and waters generally shown as orange on the maps at Schedule Two:
Pastoral Leases to which s 47 Native Title Act applies:
Fairfield - Pastoral Lease 3114/748 held by the Bunuba Aboriginal Corporation.
Leopold Downs - Pastoral Lease K571500 held by the Bunuba Aboriginal Corporation.
UCL Areas to which s 47B Native Title Act applies:
UCL 1 being an area comprised of areas formerly subject to Pastoral Lease 3114/930, Reserve 2068 and Reserve 23226.
SCHEDULE FOUR
NON - EXCLUSIVE NATIVE TITLE AREAS
Areas where native title comprises the rights set out in paragraph 6
The following land and waters generally shown as pink on the maps at Schedule Two:
1. Pastoral Leases:
Portion of Pastoral Lease 3114/692, Crown Lease 655/1993, Kimberley Downs falling within the Determination Area.
Portion of Pastoral Lease 3114/930, Crown Lease 218/1968, Jubilee Downs falling within the Determination Area.
Portion of Pastoral Lease 3114/1269, Crown Lease 381/1992 Quanbun Downs falling within the Determination Area.
Portion of Pastoral Lease 3114/1271, Crown Lease 402/1992 Blina falling within the Determination Area.
2. Non-vested Reserves:
Reserve 1576 - Watering Place.
Reserve 12474 - Portion of Lennard River Stock Route falling within the Determination Area.
Reserve 12475 - Stock Route.
3. Reserves vested under the Conservation and Land Management Act 1984 (WA)
Reserve 43099 - Conservation Park.
Reserve 43100 - Conservation Park.
Reserve 43101 - Conservation Park.
4. Areas of Unallocated Crown Land
UCL 2 being Lot 338 on Deposited Plan 195328
UCL 3 being Lot 337 on Deposited Plan 195326
UCL 4 being Lot 336 on Deposited Plan 221293
UCL 5 being Lot 335 on Deposited Plan 221293
UCL 6, 7 and 8 being the bed of the Fitzroy River.
SCHEDULE FIVE
AREAS WHERE NATIVE TITLE DOES NOT EXIST
Part 1 –
Native title does not exist in the following land and waters, shown as green on the maps at Schedule Two, by reason of extinguishment, except those public works which are captured by the definition at para 3.2 of Part One of this Schedule
1. Freehold:
Certificate of Title 2734 folio 355 being Lot 325 on Deposited Plan 28864.
Certificate of Title 2741 folio 261 being Lot 326 on Deposited Plan 28864.
Certificate of Title 2746 folio 558 being Lot 327 on Deposited Plan 28864.
Vested Reserves and Public Works
2. Vested Reserves:
Reserve 13120 for the purpose of water vested in the Shire of West Kimberley.
Reserve 36958 for the purpose of Health (Hospital and Allied Purposes) vested in Minister for Public Health.
Reserve 39456 for the purpose of Repeater Station Site vested in Australian Telecommunication Commission.
3. The areas the subject of the following works:
|
Road Number |
Location |
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1 |
"A Road starting from Wingrate Pool and Extending South by East about 14 miles to Mowrrowia Pool, at Elimbirrie Cliff Station" reference: WA Government Gazette 11 February 1886. |
|
2. |
"..strip of land …, one chain wide, starting from the Telegraph Station at Fitzroy Crossing, and extending Northward via Brooking Creek and Westward to Leopold Downs Station; also starting from Leopold Downs Station and extending Eastward via Pigeon Creek to Duck Hole; thence North-Eastward to the Old Leopold Station" reference: WA Government Gazette 10 July 1908. |
|
3. |
"A strip of land, five chains wide…, its centre line commencing on the East boundary of Kimberley location 3 and extending… Eastward through Pastoral Leases 396/506, 396/686, 396/726, 396/413, 396/493, 396/494, 396/452, 396/753, 396/466, 396/566 and 396/429 and reserves Nos. 18291, 23226 and 12475 to the right bank of the Fitzroy River" reference: WA Government Gazette 7 April 1955. |
3.2 Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native Title Act applies, within the external boundary of the Determination Area including the land and waters defined in s 251D of the Native Title Act.
Part 2 – Pastoral Improvements
1. In relation to the areas described in para 1 of Schedule Four native title does not exist in the parts of those areas covered by:
a. homestead, house, shed, building or electrical generation facility;
b. constructed airstrips;
c. a constructed dam or other constructed stock watering point, bore, turkey nest or squatter’s tank;
d. permanent stockyards; and
e. permanent trapyards.
The areas described by (a) to (e) above comprise land on which the improvements have been constructed prior to the date of this determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements.
2. For the avoidance of doubt, Schedule Five Part 2.1 above does not preclude the possibility of further extinguishment, according to law, of native title over other limited parts of the Determination Area by reason of the construction of new pastoral improvements of the kind referred to in Schedule Five Part 2.1 after the date of this determination.
SCHEDULE SIX
DESCRIPTION OF THE NATIVE TITLE HOLDERS
The Bunuba People (referred to in para 4) are:
(a) The descendants of the following ancestors:
Mubu;
Jaranggu;
Jurrguna;
Frank Edgar (Pilot);
Limirruwa;
Nindiligali;
Dawanjina;
Ganggula;
Mangalanyi;
Yambanana;
Minyjinyji;
Balylburru;
Gijalamili;
Jingirriban;
Guburrmiya;
Bundu; and
Limadji.
Notes: Mubu being Banjo Wurrunmurra's MM and David Fairfield's MM
Jaranggu being Johnny Marr's FJurrguna being Rita Laylay's MF
Frank Edgar (Pilot) being Felix Edgar's F
Nindiligali being Nancy Williams' MF and George Brooking's FF
Dawanjina being Billy Oscar's FM, Lionel Jambara's FFMM
Ganggula being George Leopold's MM
Mangalanyi being Adam Andrews' F
Yambanana being Fred Green's F
Minyjinyji being Moses Beharrel's M
Balylburru being Joe Ross' MFF and Wibiy Roger's FF
Gijalamili being Betty Smith's MMF
Jingirriban being Rose Benning's MF
Guburrmiya being Barbara Cole's FM
Bundu being Harry and Lena Skinner's F and Nita Skinner's FF
(b) The individuals, and their descendants, who have been adopted or Marurra (people who are raised, grown up, embraced and acknowledged as a Bunuba person) by members of the Bunuba People, or by their predecessors, in accordance with the traditional laws and customs of the Bunuba People; and
(c) Aboriginal persons who:
(i) self-identify as Bunuba; and
(ii) are recognised by other members of the Bunuba People as Bunuba under traditional law and custom.
SCHEDULE SEVEN
AREAS TO WHICH SECTIONS 47 and 47B OF THE NATIVE TITLE ACT APPLY
Fairfield - Pastoral Lease 3114/748 held by the Bunuba Aboriginal Corporation.
Leopold Downs - Pastoral Lease K571500 held by the Bunuba Aboriginal Corporation.
UCL 1 being an area comprised of areas formerly subject to Pastoral Lease 3114/930, Reserve 2068 and Reserve 23226.
SCHEDULE EIGHT
OTHER INTERESTS
1. Pastoral Leases
Fairfield - Pastoral Lease 3114/748 held by the Bunuba Aboriginal Corporation.
Leopold Downs - Pastoral Lease K571500 held by the Bunuba Aboriginal Corporation.
Portion of Pastoral Lease 3114/692, Kimberley Downs falling within the Determination Area.
Portion of Pastoral Lease 3114/930, Jubilee Downs falling within the Determination Area.
Portion of Pastoral Lease 3114/1269, Quanbun Downs falling within the Determination Area.
Portion of Pastoral Lease 3114/1271, Blina falling within the Determination Area.
2. Reserves
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 for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:
Reserve 1576 - Watering Place.
Reserve 12474 - Portion of Lennard River Stock Route falling within the Determination Area.
Reserve 12475 - Stock Route.
Reserve 43099 - Conservation Park.
Reserve 43100 - Conservation Park.
Reserve 43101 - Conservation Park.
3. The interests of persons holding leases over areas of the reserves identified in para 2 above.
4. Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA)
|
Nature and number of interest |
Grantee |
Date of grant and term |
|
Exploration Permit 453 |
Budside Pty Ltd and Pobelo Pty Ltd |
18 January 2007 – 6 years to 17 January 2013 |
5. Existing Interests under the Mining Act 1978 (WA)
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Tenement type and number |
Grantee |
Date of grant |
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General Purpose Lease G0400038 "Stockpile for sand and aggregate" |
Holcim (Australia) Pty Ltd |
9 September 1998 |
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Mining Lease M0400372 formerly Mining Lease 275SA granted under and in accordance with the Diamond (Argyle Diamond Joint Venture) Agreement Act 1981 (WA), the agreement ratified by that Act and the Mining Act 1978 (WA) and at the time of this Determination continuing as Mining Lease M0400372 under the Mining Act 1978 (WA). |
Kimberley Diamond Co NL |
23 November 1999 |
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Exploration Licence 0400726 |
Blina Minerals NL |
21 January 1993 |
|
Exploration Licence 0401599 |
Michael Haabjoern |
13 August 2008 |
|
Exploration Licence 0401936 |
Sarah Elizabeth Dowling |
3 December 2012 |
|
Exploration Licence 0401951 |
Kevin Peter Sibraa |
18 November 2010 |
|
Exploration Licence 0402013 |
Tetra Resources Pty Ltd |
9 October 2012 |
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Exploration Licence 0402169 |
HD Mining & Investment Pty Ltd |
6 September 2012 |
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Prospecting Licence 0400187 |
Marten Hendrick Ynema |
7 February 2012 |
6. Other Rights and Interests
(a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation;
(b) 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);
(c) Rights and interests of members of the public arising under the common law including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate;
(iii) the right of any person to use any road in the Determination Area, subject to the laws of the State, over which, as at the date of this Determination, members of the public have a right of access under common law;
(d) The right to access land by:
(i) an employee or agent or instrumentality of the State;
(ii) an employee or agent or instrumentality of the Commonwealth;
(iii) an employee or agent or instrumentality of any local Government authority;
as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.
(e) Rights of any person to access and enjoy (subject to the laws of the State) Stock Routes.
(f) (i) Without limiting the operation of any other para in the Eighth Schedule, but subject to para (f)(ii), 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 at paras 4 and 5 above to use (including by servants, agents and contractors) 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;
(ii) Nothing in para (f)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair.
(g) So far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:
(i) waterways;
(ii) the beds and banks or foreshores of waterways;
(iii) stock routes; or
(iv) areas that were public places at the end of 31 December 1993.
(h) Any other:
(i) legal or equitable estate or interest in the land or waters; or
(ii) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters; or
(B) an estate or interest in the land or waters; or
(iii) restriction on the use of the land or waters, whether or not annexed to other land or waters.
(i) The rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) 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:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to, access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(d) under any lease, licence or easement relating to its telecommunications facilities in the Determination Area.
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WESTERN AUSTRALIA DISTRICT REGISTRY |
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|
GENERAL DIVISION |
WAD 6133 of 1998 |
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BETWEEN: |
BANJO WURRUNMURRA, ADAM ANDREWS, JOHNNY MARR, BRADLEY WILLIAMS, RITA DANN, BILLY OSCAR, ISAAC HALE AND DANNY MARR ON BEHALF OF THE BUNUBA PEOPLE Applicant |
|
AND: |
STATE OF WESTERN AUSTRALIA First Respondent KIMBERLEY DIAMOND COMPANY Third Respondent EDWARD PERRY BASS, PR & JM CAMM, JUBILEE DOWNS PASTORAL CO PTY LTD, CALLUM HUGH MACLACHLAN, JOCK HUGH MACLACHLAN, W N M MCDONALD PTY LTD Fourth Respondents TELSTRA CORPORATION LIMITED Sixth Respondent |
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JUDGE: |
GILMOUR J |
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DATE: |
12 DECEMBER 2012 |
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PLACE: |
DANGGU (GEIKIE GORGE) |
REASONS FOR JUDGMENT
1 Between 1996 and 1998, twelve applications for determination of native title were lodged with the National Native Title Tribunal (NNTT) on behalf of persons who describe themselves as Bunuba, pursuant to the Native Title Act 1993 (Cth) (Native Title Act) as it then stood. The applications were given NNTT file numbers: WC96/108, WC97/47, WC97/68, WC97/93, WC97/94, WC98/12, WC98/13, WC98/37, WC98/48, WC98/50, WC98/56 and WC98/59 respectively.
2 Upon the commencement of the Native Title Amendment Act 1998 (Cth), on 30 September 1998, such applications became proceedings in this Court and were allocated Federal Court file numbers: WAG6133/98, WAG6175/98, WAG6191/98, WAG6210/98, WAG6211/98, WAG6232/98, WAG6233/98, WAG6253/98, WAG6264/98, WAG6266/98, WAG6272/98 and WAG6275/98, respectively. On 17 August 1999, District Registrar Jan ordered, pursuant to s 64(2) of the Native Title Act, that these applications be amended and combined with WAG6133/98 as the lead application (Bunuba Application).
3 The area of 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 reserve, and an area of unallocated Crown land.
4 Those who describe themselves as Bunuba (Bunuba People) are the persons descended from named apical ancestors as well as individuals and their descendants who are Bunuba People because they have been adopted or raised, grown up, embraced and acknowledged as such (Marurra) by Bunuba People or their predecessors in accordance with Bunuba law and custom and Aboriginal persons who self-identify as Bunuba and are recognised by other members of the Bunuba People as Bunuba under traditional law and custom.
5 It is not in dispute that the Bunuba People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.
6 The Bunuba native title holding group consists of those people who are identified as Bunuba, and who have ancestral connection through either or both grandparental generations, 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.
Agreement of parties to resolve the proceeding in part
7 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 (Part A Determination Area).
8 The external boundaries of the Part A Determination Area are described in Schedule One of the Minute of Consent Determination of Native Title filed with the Court on 5 December 2012 (Minute). In summary, the Part A Determination Area includes all of the land and waters of the Bunuba Application except:
(a) those portions of unallocated Crown land formerly part of Reserve 17206 for the purpose of Stock Route and Pastoral Lease 702/98 abutting Reserve 31107 in the north western portion of the Bunuba Application area;
(b) the portion of Brooking Springs Pastoral Lease 3114/573, falling within the Bunuba Application area; and
(c) the area comprising those parts of Reserve 31107 (Windjana Gorge National Park).
9 The parties who have signed the Minute agree that the balance of the land and waters to which the Bunuba Application relates should be finalised at a later date to allow the Bunuba People to file a further native title application over this remaining area to take advantage of the operation of ss 47 and 47B of the Native Title Act 1993 (Cth).
10 The parties, or their representatives, who have signed the Minute are:
(a) the applicant;
(b) State of Western Australia;
(c) Kimberley Diamond Company NL;
(d) Jubilee Downs Pastoral Co Pty Ltd;
(e) Callum Hugh MacLachlan;
(f) Jock Hugh MacLachlan; and
(g) Telstra Corporation Ltd.
11 The Minute has not been signed by or on behalf of the three remaining respondents, namely: Edward Perry Bass, PR & JM Camm and WNM McDonald Pty Ltd. By operation of s 87A(1)(v) of the Native Title Act, their consent to the terms of the proposed determination of native title set out in the Minute is not required as, at the time the terms were agreed, the respective interests they hold related to land and waters excluded, as set out at [8] above, from the Part A Determination Area.
The State’s assessment of connection
12 In his affidavit affirmed on 8 November 2012, Mr Catlin, on behalf of the State, deposes to the reasons why the State considers that the material provided by the applicants demonstrates the applicants' traditional connection with the Part A Determination Area and satisfies the requirements of the Native Title Act. According to Mr Catlin, the State considers that the Bunuba People hold native title rights and interests in the Part A Determination Area under traditional law and custom; are descended from the inhabitants of the claim area at the time of settlement; have an overarching system of law shared by all the Bunuba People that is a system unique to the Part A Determination Area and recognised as such by neighbouring groups; Bunuba People are a society united in and by their observance of a body of law and customs that is still recognised and practiced, and, by this law, the Bunuba People demonstrate their ongoing connection to the Part A Determination Area.
13 Mr Catlin deposes, in conclusion, that the material provided in support of the Bunuba Application and the State's assessment process were relied upon by the State to found a basis for entering into the agreement for the proposed consent determination of native title over the Part A Determination Area. The State's assessment of that material included the commissioning of an independent anthropologist to conduct an assessment of the material provided by the applicant. The material comprised:
(a) Minute of Proposed Amended Native Title Determination Claimant Application (Form 1) on behalf of the Bunuba people, undated but filed on 17 August 1999;
(b) Bunuba Native Title Determination Application WAD6133/98 Anthropological Report, by Dr Sandra Pannell, including maps;
(c) Bunuba Native Title Determination Application WAD6133/98 Anthropological Report Appendices, by Dr Sandra Pannell including:
(d) Appendix A: Bunuba People Interviewed;
(e) Appendix B: Bunuba Site Register;
(f) Appendix D: Claimant Genealogies;
(g) Appendix E: Named Bunuba Individuals featured in Kaberry's 1935-36 Genealogies;
(h) Appendix F: Site Names Recorded by Phyllis Kaberry in her 1935-39 "Punuba" Genealogies;
(i) Appendix G: Country Affiliation of "Kunian" Individuals in Kaberry's 1935-36 Genealogies; and
(j) various other documents, as identified by Mr Catlin.
14 The applicant has also provided, on a confidential basis, a copy of the connection report of Dr Sandra Pannell in relation to the Bunuba Application which I have read.
Authorisation of surviving persons comprising the applicant
15 Since the Bunuba Application was amended in 1999, six of the eight persons named as applicant have died. In their joint submissions the applicant and the State acknowledge that there is an issue whether the surviving two persons remain authorised without the need for further authorisation.
16 It is not in dispute that, on 17 and 18 November 2011 the Kimberley Land Council, as representative of the applicant, organised and facilitated a Bunuba claim group meeting and that at that meeting Bunuba People resolved that there was to be no change to those persons comprising the applicant in the Bunuba Application. This implicitly acknowledged that six members of the named applicant were by then deceased, and consistent with their original authorisation, the remaining members of the named applicant continued to be authorised to deal with all matters arising under the Native Title Act in relation to the Bunuba Application. Further, it is also not in dispute that at a meeting of the Bunuba claim group on 22 and 23 November 2012, it was resolved to authorise the applicant of the Bunuba native title claim (WAD 6133/98) to agree to the terms of the proposed Consent Determination. These are the same terms as contained in the Minute.
17 To the extent that it might be thought that there is a defect in the authorisation this application, although I do not consider there to be such a defect, I find, pursuant to s 84D(4) of the Native Title Act that it is in the interests of justice and would be appropriate for the Court to make the Determination sought. This long running application should not fail simply on authorisation grounds. My reasons for so concluding are, in effect, the same as applied in Barunga v State of Western Australia [2011] FCA at [12]-[18].
18 In Barunga, two of the seven members of the applicant group were deceased at the time of the making of an agreement for the determination of native title by consent in that matter. The same rationale has application in the present case, in my opinion, and on that basis and for the same reasoning I adopted in Barunga, I would exercise my discretion under s 84D(4) of the Native Title Act to make the determination sought despite any perceived defect in authorisation.
19 Pursuant to s 56(2)(a) of the Native Title Act, the applicant has nominated the Bunuba Dawangarri RNTBC (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.
Requirements of s 87A of the Native Title Act
20 Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:
(a) the period specified in the notice given under section 66 of the Native Title Act has ended (s 87A(1)(b));
(b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));
(c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to section 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2));
(d) the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3));
(e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(5));
(f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and
(g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).
21 The first three of the above pre-conditions have been met. The period of three months after the day on which notice was given referred to in s 66A(1)(b) of the Native Title Act ended on 11 October 2000. There is an agreement for a proposed determination of native title (Part A Determination Area), the terms of which are in writing and signed by or on behalf of all of the parties and contained in the Minute. The fourth and fifth pre-conditions are not applicable as all relevant parties to the application are parties to the agreement the subject of the Minute. Hence the Registrar need not give notice to any party pursuant to s 87A(3). It follows that there are no objections for the Court to take into account pursuant to s 87A(5). There is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Minute is within the power of the Court and that there is no barrier under ss 13(1)(a), 67(1), 68, 94A and 225 of the Native Title Act to the making of a consent determination of native title, as proposed by the parties. I am satisfied that the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders.
22 It remains for me to consider whether it appears to be appropriate to make the orders consented to by the parties. In Goonack v State of Western Australia [2011] FCA 516, at [25]–[26], I considered the terms and operation of s 87A(4) of the Native Title Act as follows:
[25] The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court’s discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia [207] FCA 1025; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia.
[26] The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37].
23 The State has played an active role in the negotiation of the proposed consent determination which is an important factor. I consider that in so doing, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process has satisfied itself that the determination as sought is justified in all the circumstances.
24 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87A and 94A of the Native Title Act. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Bunuba People pursuant to s 56(2) of the Native Title Act.
25 The effect is that the native title claim group, being the Bunuba People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Part A Determination Area.
26 I propose therefore to make orders, in effect, as sought in the Minute.
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I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. |
Associate:
