| Between:
Albert Puenmora, Keith Nenowatt and Susan Bangmora on behalf of the Wanjina Wunggurr People (APPLICANTS) and
The State of Western Australia (RESPONDENT)
Judge: Gilmour J
Where made: Perth
Determination:
Native title is held by the members of the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the determination area:
In the related case of Neowarra v Western Australia [2003] FCA 1402, the court found that the members of the Wanjina-Wunggurr Community constituted a society and were bound together by a normative system of laws and customs which had continued to be acknowledged and observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.
Native title exists in the determination area. It consists of exclusive rights and interests over certain areas of land in the determination area and non-exclusive native title rights and interests over other areas.
The native title rights and interests that exist over land in the determination area which has not been extinguished includes:
- the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
In relation to the Intertidal Area in the determination area, the following non-exclusive rights apply:
- the right to enter, travel over and remain on the Intertidal Area;
- the right to live and camp on the Intertidal Area;
- the right to hunt, fish, gather and use the resources of the Intertidal Area including sharing and exchanging those resources and manufacturing traditional items from those resources for personal, domestic and communal needs but not for commercial purposes;
- the right to light fires for domestic purposes;
- the right to take and use water from the Intertidal Area; and
- the right to engage in cultural activities on the Intertidal Area including visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity, conducting ceremony and ritual, holding meetings, participating in cultural practices relating to birth and death, including burial rights, passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance and
maintaining, and protecting from physical harm, places and areas of importance.
In relation to water, the native title holders have the following non-exclusive native title rights:
- the right to enter, travel over and remain on the waters;
- the right to hunt, fish and gather from the water for personal, domestic and non-commercial communal purposes; and
- the right to take and use the water.
Non-native title rights and interests that exist within the determination area can be summarised as
- Rights and interests, including licences and permits, granted by the State or the Commonwealth including the rights and interests of the holders of licences granted under the Jetties Act 1926 (WA) and the rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth);
- Rights or interests held under laws including the Rights in Water and Irrigation Act 1914 (WA);
- Rights and interests of members of the public arising under common law including the public right to fish, the public right to navigate and the right of any person to use any road in the determination area over which members of the public have a right of access under common law.
- The right to access the Determination Area by
an employee, agent or instrumentality of the State, Commonwealth or any local government authority as required in the performance of his or her statutory or common law duty;
- Any existing public access to, and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and areas that were public places at the end of 31 December 1993 in the Determination Area; and
- Any other valid legal or equitable estate or interest in the land or waters or other right.
Provisions Relevant to the Native Title Rights
The native title rights and interests do not include the right to minerals, petroleum and geothermal energy resources as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA).
The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders.
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