FEDERAL COURT OF AUSTRALIA

Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481

THE COURT NOTES THAT:

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 these proceedings.

B.    The terms of the agreement involve the making of a determination of native title in relation to an area of land and waters included in the area of land and waters the subject of these proceedings pursuant to ss 87A(4) and 94A of the Native Title Act 1993 (Cth).

C.    Each of :

(a)    Jock Hugh MacLachlan and Callum Hugh MacLachlan of Kimberley Downs Station;

(b)    Callum Hugh MacLachlan of Blina Station;

(c)    Jubilee Downs Pastoral Company Pty Ltd of Quanbun Downs and Jubilee Downs Station;

(d)    Kenneth Andrew Vivian (as Executor for Estate of Jillian Mary Jenyns) of Brooking Springs Station;

(e)    Bullurea Pastoral Company Pty Ltd of Glenroy Station and Mt House Station;

(f)    Napier Corporation Pty Ltd of Napier Downs Station; and

(g)    WNM McDonald Pty Ltd of Fossil Downs Station (WNM McDonald Pty Ltd of Fossil Downs Station has withdrawn as a party to the proceeding but remains a party to the Indigenous Land Use Agreement),

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 a prescribed body corporate agreement pursuant to s 24BG of the Native Title Act 1993 (Cth).

D.    The persons who are the Applicant have indicated that they intend to have the native title rights and interests held in trust and have nominated the Bunuba Dawangarri Aboriginal Corporation RNTBC ICN 7813 as the prescribed body corporate to be the trustee of the native title rights and interests.

E.    The Bunuba Dawangarri Aboriginal Corporation RNTBC ICN 7813 has consented in writing to hold the rights and interests comprising the native title in trust for the common law holders and to perform the functions given to it as a registered native title body corporate under 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 s 87A 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 94 of 2012 in terms of the Determination as provided for in Attachment “A” hereof over all of the land and waters the subject of these proceedings other than the area covered by WAD 744 of 2015 Warlangurru 2 Form 1 Native Title Application filed 21 December 2015.

2.    The First Respondent will file an amended Schedule 1 and maps for Schedule 2 of the Determination providing for the exclusion of the area covered by WAD 744 of 2015 Warlangurru 2 Form 1 Native Title Application by 29 January 2016.

3.    Upon the filing of the amended Schedules referred to in Order 2, the Determination will be finalised and copies of the Determination will be provided to all parties and to the National Native Title Tribunal by the Deputy Registrar.

4.    The Bunuba Dawangarri Aboriginal Corporation RNTBC ICN 7813 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).

5.    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 1 and depicted on the maps comprising Schedule 2.

(2)    Native title exists in those parts of the Determination Area identified in Schedules 3 and 4 (Native Title Area).

(3)    Native title does not exist in those parts of the Determination Area identified in Schedule 5.

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 6.

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 paragraphs 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (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 paragraphs 8, 9 and 10, the nature and extent of the native title rights and interests in relation to each part of 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) 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 4 Parts 1 - 5;

(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 4 Parts 1 - 5;

(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 4 Parts 1 - 5 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 4 Parts 1 - 5; and

(x)    access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.

(7)    Subject to paragraphs 8, 9 and 10, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 Part 6 (being areas where non-exclusive native title rights can be recognised 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 4 Part 6;

(b)    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 4 Part 6 including soil, sand, clay, gravel, ochre, timber, charcoal, resin and stone for personal, domestic, cultural and non-commercial communal purposes;

(iv)    engage in cultural activities in the area, including the transmission of cultural heritage knowledge;

(v)    conduct and participate in ceremonies;

(vi)    visit, maintain and protect from physical harm, areas, places and sites of importance in each part of the Determination Area referred to in Schedule 4 Part 6; and

(vii)    access, take, use, share and exchange water for personal, domestic, cultural or non-commercial communal purposes.

(8)    The native title rights and interests referred to in paragraphs 5(b), 6 and 7 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.

(9)    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); or

(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 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).

(10)    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 sections 47, 47A and 47B of the Native Title Act apply

(11)    Sections 47, 47A and 47B of the Native Title Act 1993 (Cth) apply to disregard any prior extinguishment in relation to the areas described in Schedule 7.

The nature and extent of any other interests

(12)    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 8.

Relationship between native title rights and other interests

(13)    The relationship between the native title rights and interests described in paragraphs 5, 6 and 7 and the other interests referred to in paragraph 12 (“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 rights and 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 1993, do not extinguish them.

Liberty to apply

(14)    The parties have liberty to apply 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 5.4 of Schedule 5 of this Determination.

Definitions and interpretation

(15)    In this Determination, unless the contrary intention appears:

“Determination Area” means the land and waters described in Schedule 1 and depicted on the maps at Schedule 2;

“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 1 or Schedules 3 to 5 and the area as depicted on the maps at Schedule 2, the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps at Schedule 2, comprises all that land and waters bounded by the following description:

PART A

All those lands and waters commencing at the northernmost northwestern corner of Pastoral Lease N049621 (Fairfield) being a point on the present boundary of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) and extending generally southeasterly along the boundaries of that native title determination to Longitude 126.097620 East; Then northwesterly to the intersection of the centreline of the Fitzroy River at Latitude 17.658670 South; Then generally northeasterly along that centreline to the centreline of the Hann River; Then generally northerly along that centreline to a southern boundary of Native Title Determination WAD6015/1999 Wanjina Wunggurr Wilinggin (WC1999/011); Then generally westerly along the boundaries of that native title determination to Longitude 125.236606 East; Then southwesterly to Latitude 17.178329 South, Longitude 125.195333 East; Then southerly to the northernmost northwestern corner of Lot 343 as shown on Deposited Plan 52596; Then generally southwesterly, generally northwesterly and again generally southwesterly along western boundaries of that lot to its southernmost southwestern corner; Then southwesterly to the northernmost corner of the northernmost western severance of Lot 342 as shown on Deposited Plan 52596; Then generally southerly along the western boundaries of that severance to Latitude 17.276383 South; Then generally southwesterly through the following coordinate positions:

Then southwesterly to a northeastern corner of Native Title Determination WAD6099/1998 Nyikina Mangala (WC1999/025) at Latitude 17.665262 South, Longitude 124.334618 East; Then southerly, generally easterly, generally southerly, easterly and again southerly along the boundaries of that native title determination to Latitude 17.990444 South; Then generally easterly and southeasterly through the following coordinate positions:

Then southeasterly to the intersection with a western boundary of the western severance of Reserve 40940 at Latitude 18.229363 South; Then northerly, southeasterly and generally southerly along boundaries of that severance to Latitude 18.244037 South; Then southeasterly to the intersection with a western boundary of the eastern severance of Reserve 40940 at Latitude 18.244527 South; Then generally northerly, southeasterly and generally southerly along boundaries of that severance to Latitude 18.261269 South; Then southeasterly to the intersection of Latitude 18.262207 South with the centreline of the Fitzroy River, being a point on the present boundary of Native Title Determination WAD6008/2000 Goonyandi Combined #2 (WC2000/010); Then generally northeasterly along the centreline of that river to a southeastern corner of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) at Latitude 18.148588 South, Longitude 125.632047 East; Then westerly, northerly and generally northwesterly through the following coordinate positions:

Then easterly to the intersection of a western boundary of Pastoral Lease N050061 (Leopold Downs) at Latitude 17.948589 South, being a point on the present boundary of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019); Then northerly, westerly, again northerly, again westerly, again northerly, generally northwesterly, generally southeasterly, again generally northwesterly, again northerly, easterly and again northerly along the boundaries of that native title determination back to the commencement point.

EXCLUSIONS

AREA 1

Exploration Leases E04/726, E04/801, E04/1089, E04/1098 (as defined by Department of Mines and Petroleum as at 17th July 1999)

AREA 2

General Purpose Lease G04/38 (as defined by Department of Mines and Petroleum as at 17th July 1999)

AREA 3

Prospecting Licence Application P04/187 (as defined by Department of Mines and Petroleum as at 17th July 1999)

AREA 4

Fitzroy Location 281 as shown on Deposited Plan 92277.

AREA 5

PORTION 1

Commencing at Latitude 18.191776 South, Longitude 125.563774 East and extending southerly, easterly, northerly and westerly through the following coordinate positions back to the commencement point.

PORTION 2

All that land comprising Lot 325 as shown on Deposited Plan 28864 being CT2734/355.

All that land comprising Lot 326 as shown on Deposited Plan 28864 being CT2741/261.

All that land comprising Lot 327 as shown on Deposited Plan 28864 being CT2746/558.

AREA 6

Commencing at Latitude 17.415261 South, Longitude 124.934616 East and extending southerly, easterly, northerly, westerly, again northerly and again westerly through the following coordinate positions back to the commencement point.

AREA 7

That area that overlaps WAD 744 of 2015 Warlangurru 2 Form 1 Native Title Application.

PART B

Commencing at the intersection of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) with the centreline of Fitzroy River at Longitude 125.685009 East; Then generally northeasterly upwards along that centreline to Longitude 125.697839 East; Then easterly to the southernmost southwestern corner of the eastern severance of Reserve 28401; Then easterly, generally northeasterly and westerly along the boundaries of that severance and onwards to the intersection with the centreline of Fitzroy River; Then generally northeasterly upwards along that centreline to the intersection with Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019); Then westerly through the following coordinate positions:

Then southerly to a northeastern corner of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) at Latitude 17.999474 South, Longitude 125.751283 East; Then generally southwesterly, southerly and easterly along the boundaries of that native title determination back to the commencement point.

PART C

All those lands and waters commencing at the intersection of a eastern boundary of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) with the centreline of the Fitzroy River at approximately Latitude 17.971172 South; Then generally northeasterly along the centreline to Longitude 125.885782 East; Then northeasterly to the southwestern corner of the eastern severance of Pastoral Lease N050061 (Leopold Downs) being a point on a present boundary of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019); Then generally northeasterly, generally westerly, generally southwesterly, southerly and easterly along the boundaries of that native title determination to Latitude 17.948589 South; Then easterly, generally southerly, again easterly and generally northeasterly through the following coordinate positions:

Then southerly to a northeastern corner of Native Title Determination WAD6133/1998 Bunuba (Area A) (WC1999/019) at Latitude 17.968558 South, Longitude 125.784616 East; Then southerly and easterly along the boundaries of that native title determination back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 3rd August 2015.

Mining Tenements sourced from Department of Mines and Petroleum as at 17 July 1999.

Rivers based on 250K raster data © Commonwealth of Australia (Geoscience Australia) 2008.

For the avoidance of doubt the determination excludes any land and waters already claimed by:

Native Title Determination Application WAD6133/1998 Bunuba (Area A) (WC1999/019) as Determined in the Federal Court on the 12th December 2012.

Native Title Determination Application WAD6008/2000 Gooniyandi Combined #2 (WC2000/010) as Determined in the Federal Court on the 19th June 2013.

Native Title Determination Application WAD6099/1998 Nyikina Mangala (WC1999/025) as Determined in the Federal Court on the 29th May 2014.

Native Title Determination Application WAD6015/1999 Wanjina Wunggurr Willinggin (WC1999/011) as Determined in the Federal Court on the 27th August 2004.

Native Title Determination Application WAD6133/1998 Bunuba (Area B) (WC1999/019) as Registered in the Federal Court on the 20th August 1999.

Native Title Determination Application WAD258/2012 Warrwa Combined (WC2014/004) as Registered in the Federal Court on the 26th November 2014.

Native Title Determination Application WAD268/2010 Yurriyangem Taam (WC2010/013) as Registered in the Federal Court on the 29th October 2010.

Native Title Determination Application WAD95/2013 Bunuba #3 (WC2013/001) as Filed in the Federal Court on the 5th April 2013.

Native Title Determination Application WAD509/2015 Warlangurru (WC2015/004) as Filed in the Federal Court on the 8th September 2015.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Native Title Spatial Services (Landgate) 11th December 2015

Use of Co-ordinates:

Where co-ordinates 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 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 2:

Areas to which s 47 of the Native Title applies

Areas to which s 47A of the Native Title applies [noting those areas marked # are subject to a right of the general public who ordinarily access those areas to continue to access those areas – see Schedule 8 Paragraph 5A]:

UCL Areas to which s 47B of the Native Title Act applies [noting those areas marked # are subject to a right of the general public who ordinarily access those areas to continue to access those areas – see Schedule 8 Paragraph 5A]:

SCHEDULE 4

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 2:

(1)    Pastoral Leases:

Portion of Pastoral Lease N050174 (previously 3114/573, Crown Leases 865/1967 and 166/1991), Brooking Springs, falling within the Determination Area.

Portion of Pastoral Lease N049912 (previously 3114/692, Crown Leases 655/1993 and 242/1995), Kimberley Downs falling within the Determination Area that was not previously subject to Reserve 16563.

Portion of Pastoral Lease N049850 (previously 3114/1269, Crown Lease 381/1992) Quanbun Downs falling within the Determination Area.

Portion of Pastoral Lease N049587 (previously 3114/1271,Crown Lease 402/1992) Blina falling within the Determination Area.

Portion of Pastoral Lease N050221 (previously 3114/1248,Crown Lease 126/1989) Fossil Downs falling within the Determination Area.

Portion of Pastoral Lease N049855 (previously 3114/682,Crown Lease 862/1967) Napier Downs falling within the Determination Area.

Portion of Pastoral Lease N049720 (previously 398/833, Crown Lease 241/1995) Napier Downs falling within the Determination Area.

Portion of Pastoral Lease N050571 (previously 3114/930, Crown Lease 218/1968) Jubilee Downs falling within the Determination Area.

Portion of Pastoral Lease N049997 (previously J961644), Glenroy falling within the Determination Area.

Portion of Pastoral Lease N049810 (previously J961643) Mt House falling within the Determination Area.

Portion of Pastoral Lease N049733 (previously 3114/1226, Crown Lease 31/1988) Mornington falling within the Determination Area.

(2)    Non-vested Reserves:

(3)    Reserves vested under the Conservation and Land Management Act 1984 (WA)

(4)    Areas of Unallocated Crown Land

(5)    Areas subject of the following public works (subject to the non-extinguishment principle)

(6)    Water Areas - Areas where native title comprises the rights set out in paragraph 7

SCHEDULE FIVE

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Native title does not exist in the following land and waters by reason of extinguishment, being those areas (except those public works which are captured by the definition at paragraph 5.4 of this Schedule) shown as green on the maps at Schedule 2.

(1)    Freeholds:

(2)    Leases:

Vested Reserves

(3)    Vested Reserves:

(4)    UCL Areas

(5)    The areas the subject of the following public works:

(5.1)    Roads:

(5.2)    Reserves

(5.3)    UCL areas comprising public works

(5.4)    Any other public works

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.

SCHEDULE SIX

DESCRIPTION OF THE NATIVE TITLE HOLDERS

Bunuba People (referred to in paragraph 4) are:

(a)    The descendants of the following ancestors:

Mubu (Banjo Wurrunmurra’s MM and David Fairfield’s MM);

Jaranggu (Johnny Marr’s F);

Jurrguna (Rita Laylay’s MF);

Frank Edgar (Pilot) (Felix Edgar’s F);

Limirruwa;

Nindiligal (Nancy Williams’ MF and George Brooking’s FF);

Dawanjina (Billy Oscar’s FM, Lionel Jambara’s FFMM);

Ganggula (George Leopold’s MM);

Mangalanyi (Moses Beharrel’s M);

Yambanana (Fred Green’s F);

Minyjinyji (Moses Beharrel’s M);

Balylburru (Joe Ross’ MFF and Wibiy Roger’s FF);

Gijalamili (Betty Smith’s MMF);

Jingirriban (Rose Benning’s MF);

Guburrmiya (Barbara Cole’s FM);

Bundu (Harry and Lena Skinner’s F and Nita Skinner’s FF); and

Limadji.

(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, 47A and 47B OF THE NATIVE TITLE ACT 1993 (CTH) APPLY

Area to which s 47 of the Native Title Act applies

Areas to which s 47A of the Native Title Act applies

Areas to which s 47B of the Native Title Act applies

SCHEDULE EIGHT

OTHER RIGHTS AND INTERESTS

(1)    Pastoral Leases

Portion of Pastoral Lease N050174, Brooking Springs, falling within the Determination Area.

Portion of Pastoral Lease N049912, Kimberley Downs falling within the Determination Area.

Portion of Pastoral Lease N049850 Quanbun Downs falling within the Determination Area.

Portion of Pastoral Lease N049587 Blina falling within the Determination Area.

Portion of Pastoral Lease N050221 Fossil Downs falling within the Determination Area.

Portion of Pastoral Lease N049855 Napier Downs falling within the Determination Area.

Portion of Pastoral Lease N049720 Napier Downs falling within the Determination Area.

Portion of Pastoral Lease N050571 Jubilee Downs falling within the Determination Area.

Portion of Pastoral Lease N049997, Glenroy falling within the Determination Area.

Portion of Pastoral Lease N049810 Mt House falling within the Determination Area.

Pastoral Lease N049708 Millie Windie.

Portion of Pastoral Lease N049733 Mornington falling within the Determination Area.

(2)    Leases

Lease AB H960986 from the Aboriginal Lands Trust to Western Power Corporation for a term of 30 years from 1 September 2001, with options to renew for 2 terms of 30 years, over Lot 314 on DP 220931, being portion of Reserve 35167.

(3)    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:

Reserves vested under the Conservation and Land Management Act 1984 (WA)

(4)    The interests of persons holding leases over areas of the reserves identified in paragraph 3 above.

(5)    UCL Areas included on Register of Heritage Places maintained by the Heritage Council under Heritage of Western Australia Act 1990 (WA)

5A.A right of the general public who ordinarily access the following UCL and Reserve areas to continue to access those areas:

5B. A right of those Aboriginal people who access and use the lawground on Reserve 35167 for cultural and ceremonial purposes, as authorised by the Native Title Holders under their traditional law and custom, to continue to access and use the lawground for those purposes.

(6)    Roads to which non-extinguishment principle applies

(7)    Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Petroleum Pipelines Act 1969 (WA)

(8)    Existing Interests under the Mining Act 1978 (WA)

(9)    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) and of the Country Areas Water Supply Act 1947 (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 paragraph in the Eighth Schedule, but subject to paragraph 9(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 paragraphs 7 and 8 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 paragraph 9(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.

REASONS FOR JUDGMENT

introduction

1    Three native title applications, Part B of WAD 6133 of 1998 (Bunuba Part B), WAD 94 of 2012 (Bunuba #2) and WAD 95 of 2013 (Bunuba #3), are before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (Native Title Act). The applications are filed on behalf of the Bunuba People and claim land and waters spanning the vicinity of Fitzroy Crossing in the Kimberley region of Western Australia.

2    WAD 6133 of 1998 is a combination of twelve native title applications lodged with the National Native Title Tribunal between 1996 and 1998 in response to notifications of future acts pursuant to s 29 of the Native Title Act, and consolidated by orders of the Court on 17 August 1999. Bunuba Part B covers the remaining portions of land that were excluded from the Part A determination of WAD 6133 of 1998: Wurrunmurra v State of Western Australia [2012] FCA 1399. These areas are:

(a)    a portion of Brooking Springs Pastoral Lease N050174 (formerly 3114/573, Crown Lease 865/1967);

(b)    a portion of Reserve 31107, Lot 340 on Deposited Plan 52596 (Windjana Gorge National Park);

(c)    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

(d)    a portion of Pastoral Lease N050221 (previously Fossil Downs Pastoral Lease 3114/1248).

3    There are three parties to Bunuba Part B, being the Applicant, the State of Western Australia and Kenneth Andrew Vivian (as Executor for Estate of Jillian Mary Jenyns) of Brooking Springs Station.

4    Bunuba #2 was filed on 10 April 2012 over an area of approximately 9759.27 square kilometres of land and waters surrounding WAD 6133 of 1998 for the purpose of covering the traditional country of the Bunuba People. The parties to the application are the Applicant, the State, the Shire of Derby/West Kimberley, Oil Basins Limited, Bullurea Pastoral Company Pty Ltd, Jubilee Downs Pastoral Company Pty Ltd, Callum Hugh MacLachlan, Jock Hugh MacLachlan, Napier Corporation Pty Ltd and Kenneth Andrew Vivian (as Executor for Estate of Jillian Mary Jenyns).

5    It was proposed that the whole area claimed in Bunuba #2 would be determined as part of the determinations today. As late as yesterday, however, a Form 1 Native Title Application, WAD 744 of 2015 Warlangurru 2, (Warlangurru 2 Form 1) was filed on behalf of the Warlangurru People, which overlaps a part of Bunuba #2 in the south of the claim area. Due to the filing of the Warlangurru 2 Form 1 on 21 December 2015, it is now proposed that the unoverlapped part of the Bunuba #2 claim area be determined (Bunuba #2 Part A).

6    Bunuba #3 was filed on 5 April 2013 over the portions of Lot 341 on Deposited Plan 52596 already claimed in Bunuba Part B for the purpose of seeking the benefit of s 47B of the Native Title Act to the effect that any prior extinguishment of any native title rights and interests could be disregarded allowing for a determination of exclusive native title rights and interests. The parties to the application are the Applicant, the State and the Shire of Derby/West Kimberley.

7    Orders in Bunuba Part B discontinuing the portions of Lot 341 on Deposited Plan 52596 wholly overlapping Bunuba #3 will be made at the time of the determination. In addition orders will also be made at the time of the determination discontinuing the portion of Pastoral Lease N050221 claimed in Bunuba Part B, reflecting the agreement reached between the parties.

Agreement to determination of native title

8    The parties have reached agreement as to the terms of the determinations of native title pursuant to ss 87, 87A and 94A of the Native Title Act in relation to the land and waters claimed in the applications.

9    In support of the agreement reached, the following documents have been filed:

(1)    minutes of proposed consent determination attaching a determination of native title for Bunuba Part B, Bunuba #2 and Bunuba #3 which are signed by each of the parties, filed by the State on 14 December 2015 and a further minute of proposed consent determination for Bunuba #2 Part A filed 21 December 2015 (determination);

(2)    joint submissions of the Applicant and the First Respondent in support of the minutes of proposed consent determination of native title, filed by the State on 14 December 2015 and further joint submissions of the Applicant and the First Respondent addressing Bunuba #2 Part A filed 21 December 2015 (joint submissions);

(3)    affidavits of Julia Kathryn Taylor affirmed 14 December 2015 confirming the authorisation of the Bunuba People to the proposed determinations in Bunuba Part B, Bunuba #2 and Bunuba #3, filed by the Applicant on 14 December 2015;

(4)    supplementary affidavits of Julia Kathryn Taylor affirmed 19 December 2015 and 21 December 2015 in support of the determination of Bunuba #2 Part A filed on 21 December 2015.

10    In support of the nominations of Bunuba Dawangarri Aboriginal Corporation RNTBC ICN 7813 as prescribed body corporate [the Bunuba orthography ng is used to denote the sound heard in the English words ‘sing’ or ‘song’] to hold the determined native title of the common law holders in trust pursuant to s 56(2)(b) of the Native Title Act the following documents have been filed by the Applicant on 3 November 2015:

(1)    nominations as prescribed body corporate for Bunuba Part B, Bunuba #2 and Bunuba #3;

(2)    consents to nomination as prescribed body corporate for Bunuba Part B, Bunuba #2 and Bunuba #3;

(3)    affidavits of Julia Kathryn Taylor affirmed 3 November 2015 in support of Bunuba Dawangarri Aboriginal Corporation RNTBC as prescribed body corporate for Bunuba Part B, Bunuba #2 and Bunuba #3; and

(4)    submissions of the Applicant in support of Bunuba Dawangarri Aboriginal Corporation RNTBC as the prescribed body corporate for Bunuba Part B, Bunuba #2 and Bunuba #3 .

11    It is agreed that the native title rights and interests to be determined in the applications are held by the Bunuba People who are:

(a)    the descendants of Mubu; Jaranggu; Jurrguna; Frank Edgar (Pilot); Limirruwa; Nindiligal; Dawanjina; Ganggula; Mangalanyi; Yambanana; Minyjinyji; Balylburru; Gijalamili; Jingirriban; Guburrmiya; Bundu; Limadji; and

(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.

12    The parties agree, regarding the native title rights and interests to be determined in the applications, that in relation to Bunuba Part B, the native title rights and interests to be determined over the portion of Brooking Springs Pastoral Lease N050174 (formerly 3114/573, Crown Lease 865/1967) subject to paragraphs 6, 7 and 8 of the determination, are non-exclusive native title rights and interests. These rights and interests are stated in paragraph 5 of the determination and include the right to access and move freely through and within each part of the area and the right to live being to enter and remain on, camp and erect shelters and other structures for those purposes on the determination area. Paragraph 10 of the determination outlines the relationship between the native title rights and interests to be determined and the other rights and interests as set out in Schedule 6 of the determination. The determination also includes a determination that native title does not exist over a portion of Reserve 31107, Lot 340 on Deposited Plan 52596 (Windjana Gorge National Park) which is a vested reserve.

13    Bunuba #2 Part A includes areas where it is agreed, except in relation to flowing and underground waters, that ss 47, 47A and 47B of the Native Title Act apply and the rights and interests to be determined are exclusive native title rights and interests to possession, occupation, use and enjoyment to the exclusion of all others. The determination also includes areas such as pastoral leases and non-vested reserves where non-exclusive native title rights and interests will be determined. Paragraph 13 of the determination outlines the relationship between the native title rights and interests to be determined and the other rights and interests as set out in Schedule 8 of the determination. The determination also includes a determination that native title does not exist over areas including freehold land and vested reserves.

14    Finally, it is agreed in Bunuba #3 that s 47B of the Native Title Act applies to the effect that over Lot 341 on Deposited Plan 52596 the rights and interests to be determined, except in relation to flowing and underground waters, are exclusive native title rights and interests to possession, occupation, use and enjoyment to the exclusion of all others. Paragraph 10 of the determination outlines the relationship between the native title rights and interests to be determined and the other rights and interests as set out in Schedule 6 of the determination.

15    The parties agree that Bunuba Dawangarri Aboriginal Corporation RNTBC shall hold the determined native title rights and interests in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act.

Material provided regarding connection

16    The following material was provided by the Applicant to the State for assessment in support of the Bunuba People’s connection to the areas of the applications:

(1)    Bunuba Native Title Determination Application WAD6133/98 Anthropological Report by Dr Sandra Pannell including Appendices:

Appendix A: Bunuba People Interviewed;

Appendix B: Bunuba Site Register;

Appendix D: Claimant Genealogies, by Dr Sandra Pannell;

Appendix E: Named Bunuba Individuals Featured in Kaberry’s 1935-36 Genealogies;

Appendix F: Site Names Recorded by Phyllis Kaberry on her 1935-39 ‘Punuba’ Genealogies; and

Appendix G: Country Affiliation of ‘Kunian’ Individuals on Kaberry’s 1935-36 Genealogies;

(2)    Outstanding Connection Issues: A Response to the Issues and Concerns Identified by the Office of Native Title, by Dr Sandra Pannell;

(3)    Affidavits of Mona Oscar and June Oscar;

(4)    Meeting notes of teleconference with Dr Sandra Pannell and Ms Laurelea Robb, 16 March 2009; and

(5)    Memorandum: Response to Office of Native Title and the Issue of Bunuba Laws and Customs Concerning “Looking After Country”, by Dr Sandra Pannell, 12 April 2009.

17    The joint submissions indicate that following a rigorous and detailed assessment process of the material, the State was satisfied that the determinations are justified in all the circumstances. In particular the State’s view is that the material is sufficient to demonstrate that the applications have a credible basis and that the Bunuba People have maintained a physical presence in the claimed areas since the acquisition of British sovereignty. Additionally, evidence of the continuing physical or spiritual involvement of the Bunuba People in the claimed areas is sufficient for the State to conclude that this connection has continued. Overall the State was satisfied that the material was evidence of the maintenance of connection of the Bunuba People to the areas claimed according to traditional laws and customs.

Bunuba People’s connection to country

18    It is agreed that 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.

19    An integral aspect of identifying as Bunuba is an affiliation to a muway, or a particular tract of country. The concept of muway has multiple levels. In the broadest term, muway is a generic term for “place” in the Bunuba language. More specifically, muway can refer to named sites, a camp, and a more inclusive area or country, such as the 18 named local countries acknowledged by the Bunuba People as comprising Bunuba country. In the latter sense of the word, muway encapsulates a sense of belonging. All Bunuba People profess to belong to a named muway, and are able to identify each other in terms of muway affiliation. In fact, affiliation to a muway, located within the area recognised as Bunuba country, is a necessary precursor to being acknowledged as a Bunuba person.

20    Knowledge about the muway affiliation of deceased antecedents is widely known and highly valued. Contemporary Bunuba People are able to reckon the muway affiliation of an individual, with reference to their genealogical relations to Bunuba individuals in the grandparental generation, in particular. Bunuba People’s laws and rules originate from Ngarranggani. It therefore plays a central role for the Bunuba People as they regard Ngarranggani as the Law that encompasses all aspects of their lives.

21    Ngarranggani Law refers to the creative actions of a range of beings that left traces of their spiritual essence at places in their travels. It can also refer to the period of these creations and to the narratives associated with it. Ngarranggani-derived laws and customs are transmitted from generation to generation in the form of stories, thus facilitating continuity of the normative system. Records from Phyllis Kaberry in the 1930s, for instance, reflect the same stories that exist and are told today, demonstrating their transmission and continuity.

22    Ngarranggani Law differentiates the Bunuba People from surrounding groups, and continues to influence behaviours and social norms. It is agreed that the material provided to the State regarding Bunuba People’s connection to country supports the claim that Bunuba People continue to observe their system of law and custom as it pertains to Ngarranggani, and this observance has a normative aspect.

Description of the Native Title Holders

23    The description of the Native Title Holders in the determinations is not the same as the native title claim group described in the Form 1 native title applications in Bunuba Part B and Bunuba #2 Part A. The Court is not limited to making a determination in the form sought in the Form 1 and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid. See Billy Patch on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (at [18]).

24    Having considered the material, it appears appropriate for the Court to make a determination as sought in the determinations for the following reasons:

(1)    there will be a satisfactory resolution of Bunuba Part B and Bunuba #2 Part A for all parties;

(2)    the description of the Native Title Holders is identical to the description in the Part A determination of WAD 6133 of 1998;

(3)    the Applicant in each of the applications authorised the terms of the determinations which included the description of the Native Title Holders; and

(4)    the State is satisfied that the holders of native title rights and interests are the persons described in the description of the Native Title Holders in the determinations.

Sections 87 and 87A of the Native Title Act

25    Native title determinations are sought in Bunuba Part B and Bunuba #3 pursuant to s 87 of the Native Title Act, and in Bunuba #2 Part A pursuant to s 87A of the Native Title Act. Sections 87 and 87A of the Native Title Act provides that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where various requirements are met. As required by s 87(1) of the Native Title Act, the notification period in respect of each of the applications has ended. The determinations reflecting the agreement reached have been filed in the Court, are in writing and are signed by the parties to the applications: ss 87(1)(b), 87A(1)(b), 87A(1)(c) and 87A(1)(d) of the Native Title Act. The agreement for the determinations is in relation to the land and waters claimed in the applications: ss 87(1)(a) and 87A(1)(a) of the Native Title Act.

26    As required by ss 87(1)(c) and 87A(4)(a) of the Native Title Act the orders sought are consistent with the terms of the agreement and are within the power of the Court as the determinations comply with ss 94A and 225 of the Native Title Act. The applications have been authorised by the claim group members pursuant to s 251B of the Native Title Act and there are no approved determinations over the areas proposed to be determined: ss 13(1)(a) and 68 of the Native Title Act. Regarding the requirement in s 87A(3) for notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court, all parties in Bunuba #2 Part A are parties to the determination and therefore notice is not required.

27    On the issue of appropriateness of the orders sought, ss 87(2) and 87A(4)(b) of the Native Title Act does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claims made in the application or even to form a final view as to whether the legal requirements for proving native title have been met. It is open to the Court to make orders under ss 87 and 87A of the Native Title Act where it is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 (at [8]). The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]).

28    In the circumstances where the background of the applications includes a related native title determination, the agreement reached by the parties is freely entered into by them on an informed basis, as indicated by the material filed, and the active role of the State in negotiations, I am satisfied that it is appropriate and within the power of the Court under ss 87, 87A and 94A of the Native Title Act to make the orders sought.

Nomination of prescribed body corporate

29    The Applicants have filed various documents in support of the nomination of Bunuba Dawangarri Aboriginal Corporation RNTBC as the prescribed body corporate to hold the determined native title in trust for the Native Title holders pursuant to s 56(2)(b) of the Native Title Act. The documents filed in each of the applications include a nomination of prescribed body corporate in writing by the Bunuba People and consent to nomination by the Bunuba Dawangarri Aboriginal Corporation RNTBC. The documents also include an affidavit of Julia Kathryn Taylor affirmed 3 November 2015 in support of the nomination of Bunuba Dawangarri Aboriginal Corporation RNTBC as the prescribed body corporate and submissions in support of the nomination of Bunuba Dawangarri Aboriginal Corporation RNTBC as the prescribed body corporate [The Bunuba orthography ng is used to denote the sound heard in the English words ‘sing’ or ‘song’].

30    I am satisfied based on the documents filed that the requirements of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met for the nomination of the prescribed body corporate.

CONCLUSION

31    The determinations of native title rights and interests will recognise the traditional country of the Bunuba People which is a significant milestone. The Court congratulates the Bunuba People, their legal representatives, the State and all non-State respondent parties for negotiating and agreeing to consent orders being made in these terms.

32    In the circumstances, the Court considers it appropriate to make the determinations of native title in the terms proposed.

33    For these reasons, I make the orders in the terms submitted to the Court, being satisfied that the proposed determinations are both within power and appropriate.

Associate:

Dated:    22 December 2015