Wurrunmurra on behalf of the Bunuba People v State of Western Australia

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

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. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

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(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Native Title Act 1993(Cth)s 13(1)(a), s

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 B (Bunuba Part B Determination) which reflects the terms of an agreement reached by the parties in relation to a part of these proceedings (Bunuba Part B Application). 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 ss 87A(4) and 94A of the Native Title Act 1993 (Cth). C. That part of the Bunuba Part B Application covering land comprising Lot 341 as shown on Deposited Plan 52596 that was not the subject of the determination of native title in Wurrunmurra v State of Western Australia [2012] FCA 1399 (Bunuba Part A determination) was excluded from the Bunuba Part A determination to allow for a new native title determination application WAD 95 of 2013 (Bunuba #3 Application) to be filed over Lot 341 as shown on Deposited Plan 52596 to take advantage of the application of s 47B of the Native Title Act 1993 (Cth). D. The Applicant and Respondents in the Bunuba Part B Application have reached an agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the Bunuba Part B Application. The external boundaries of the Bunuba Part B Determination area are described in Schedule One to the Determination, and exclude that part of the Bunuba Part B Application covering land comprising Lot 341 as shown on Deposited Plan 52596 and portions of Pastoral Lease N050221 (previously 3114/1248 - Fossil Downs). E. The Applicant in the Bunuba Part B Application has agreed to apply for an order of discontinuance of that part of the Bunuba Part B Application covering land comprising: (a) Lot 341 as shown on Deposited Plan 52596 in order to facilitate the determination sought in the Bunuba #3 Application; and (b) Portions of Pastoral Lease N050221. F. Kenneth Andrew Vivian (as Executor for Estate of Jillian Mary Jenyns) of Brooking Springs 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 the Brooking Springs pastoral lease 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). G. 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. H. 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:

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