Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia - [2015] FCA 1482 - FCA 2015 case summary — Zoe

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Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia

[2015] FCA 1482

Federal Court of Australia|2015-12-22|Before: Ms J, Barker J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2015-12-22

Before

Ms J, Barker J

Catchwords

NATIVE TITLE - consent determination of native title - agreement of parties - s 87 and 87A Native Title Act 1993 (Cth)

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination of native title - agreement of parties - s 87 and 87A Native Title Act 1993 (Cth)

Judgment (30 paragraphs)

[1]

A. Pursuant to s 87(1) of the Native Title Act 1993 (Cth) the parties have filed with this Court a Minute of Consent Determination 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 the area of land and waters the subject of these proceedings pursuant to ss 87(2) and 94A of the Native Title Act 1993 (Cth). C. 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. D. 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 87 of the Native Title Act 1993 (Cth) and by the consent of the parties:

[2]

[6]

Exclusive native title rights and interests (4) Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to 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; and (ii) the right to take, use, share and exchange the flowing and underground waters for personal, domestic, cultural or non-commercial communal purposes. (5) The native title rights and interests referred to in paragraph 4(b) 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. (6) 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 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). (7) 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).

[19]

(2) 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 paragraph in the Eighth Schedule, but subject to paragraph (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 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 paragraph (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.

[23]

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.

[24]

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.

[26]

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.

[28]

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.

Aiken on behalf of the Bunuba People (Bunuba #3) v State of Western Australia

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