Barunga v State of Western Australia [2011] FCA 518

Between: Victor Barunga, Heather Umbagai, Kenny Oobagooma, Janet Oobagooma, Donny Woolagoodja, Nelson Barunga and Fredmund Oobagooma
(APPLICANTS) and

State Of Western Australia (FIRST RESPONDENT)

Commonwealth of Australia (SECOND RESPONDENT)

Warren Melvyn Arms, Lenden Nominees Pty Ltd, Newfishing Australia Pty Ltd, WA Seafood Exporters Pty Ltd And Western Australian Fishing Industry Council (Inc) (EIGHTH RESPONDENTS)

Maxima Pearling Company Pty Ltd, Paspaley Pearling Company Pty Ltd, Pearls Pty Ltd And Roebuck Pearl Producers Pty Ltd (NINTH RESPONDENTS)

Telstra Corporation Limited (ELEVENTH RESPONDENT)

Judge: Gilmour J

Where made: Yaloon

Determination:

Native title exists in parts of the determination area. It consists of exclusive rights and interests over some portions of the determination area and non-exclusive native title rights and interests over others.

Native title is held by members of the Wanjina-Wunggurr Community.

Exclusive Native Title Rights

The parties have exclusive native title rights to possession, occupation, use and enjoyment of land to the exclusion of all others over land described in Schedules 2, 3 and 4 of the judgment.

Non-Exclusive Native Title Rights

Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right to enter, travel over and remain on the land;
- the right to live and camp on the land (including erecting shelters and other structures for those purposes);
- the right to hunt, fish, gather and use the resources of the land;
- the right to light fires for domestic purposes;
- the right to take and use water from the land; and
- the right to engage in cultural activities on the land including (i) visiting places of cultural significance and protecting those places; (ii) conducting ceremonies and rituals; (iii) holding meetings; (iv) participating in cultural practices relating to birth and death; (v) passing on knowledge about the physical and spiritual attributes of the Determination Area; and (vi) maintaining places and areas of importance.

Non-exclusive native title rights and interests that exist over intertidal areas in the determination area include:
- all of the rights described in relation to land; and
- the right to take and use water from the Intertidal Area.

Non-exclusive native title rights and interests that exist over waters in the determination area include:
- the right to enter, travel over and remain on the area;
- the right to hunt, fish, gather and use the resources of the land; and
- the right to take and use water

These rights do not confer exclusive rights of possession, use and enjoyment of the land or waters. They also do not confer a right to control access to the determination area. They also do not allow for commercial use of the determination area.

Non-native title rights and interests that exist within the determination area are listed in detail at Schedule 5 of the Judgment.

These rights can be summarised as:
- various reserves;
- a pastoral lease over Napier Downs Stations;
- various mining tenements including mining leases, mineral leases, general purpose leases, miscellaneous licences, exploration licences and temporary reserves;
- the exploration permit held by Exceed Energy (Australia) Pty Ltd;
- Various interests of the Tesltra Corporation;
- rights granted by the State of Western Australia or the Commonwealth;
- rights held under any law of the State of the Commonwealth;
- Public rights and interests inluding the right to fish on, navigate through or use any road in the determination area;
- public rights of access to waterways, beaches and stock routes.

Where native title rights and non-native title rights are inconsistent, native title rights will not be extinguished but will have no effect on the exercise of non-native title rights.

Provisions Relevant to Both Exclusive and Non-Exclusive Native Title Rights

Native title does not exist over
- minerals, petroleum, geothermal energy or water captured by holders of non-native title rights and interests.

The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC is the prescribed body corporate nominated to hold the native title on trust for the native title claimants/holders.

Background

The determination concerns a native title application, entitled 'the Wanjina-Wunggurr Dambimangari Application', which was lodged on 15 January 1996. The application area covered approximately 27,937 square kilometres in the Kimberley region of Western Australian. The claimant group comprises those people who hold in common the beliefs of the Wanjina/Wunggurr People. This is one of three applications brought on behalf of those People. One of the other applications - the Wanjina-Wunggurr Willinggin application - was determined in Neowarra v State of Western Australia [2003] FCA 1402. The other application - Wanjina-Wunggurr Uungguu application - was determined in Goonack v State of Western Australia [2011] FCA 516. The Dambimangari and Uungguu claims were initially postponed until completion of the Willinggin claim (with the Willinggin claim acting as a test case for the other claims).

Mediation commenced between the parties in 2006, during which time the State of Western Australia agreed that the Dambimangari people had connection to country dating back to 1829.

Details of the judgment

The Court was satisfied that it was appropriate and within its power to make the consent determination.

Two issues of concern arose:

• Firstly, that two of the named applicants had passed away, raising questions as to whether the remaining applicants required further authorisation to proceed with a consent determination;
• Secondly, that the applicants sought native title to be held by the Wanjina-Wunggurr Community instead of merely by the native title claimant group (which only represented a portion of the Wajina-Wunggurr Community).

In respect of the first concern, the Court held that it was in the interests of justice to grant a consent determination without requiring the applicants to seek further authorisation.

The applicants had the support of the Wanjina-Wunggurr Community and therefore the Court made the consent determination despite any defect in authorisation.

In respect of the second concern, the Court considered it appropriate to make a consent determination for the entire Wanjina-Wunggurr Community. Once again, the Court considered it to be in the interests of justice to make such an order.

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