Gilmour J
In this matter, the Court recognised the native title rights and interests of the Bunuba people over 6,528 square kilometres of lands and waters, including wetlands and riverine systems, in the Kimberley region of Western Australia. The determination was made with the agreement of the State government and other parties under s 87 of the Native Title Act 1993 (Cth) (NTA). The parties agreed that certain areas that were included in the Bunuba claim (pastoral leases and vacant Crown land) would not be included in this determination but rather would be set aside to be finalised at a later date to take advantage of the non-extinguishment provisions in ss 47 and 47B of the NTA.
Background
Between 1996 and 1998, 12 native title applications were lodged on behalf of the Bunuba people. These were combined into a single application in 1999. Since then, six of the eight persons named as applicant passed away. On 17 and 18 November 2011, a claim group meeting authorised the remaining 2 members of the named applicant to progress the application. Gilmour J noted that, for the same reasons expressed in Barunga v State of Western Australia [2011] FCA 518, he would have exercised his discretion under s 84D of the NTA to make the determination even if the 2011 authorisation had not occurred.
Decision
Material provided in support of the Bunuba application showed that Bunuba people are bound by a normative system of laws and customs which has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. The State said that its decision to consent to the determination was supported by the connection material provided by the applicant, as well as the State’s assessment process. The Court was satisfied that it was appropriate and within the powers of the Court to make a determination in the terms sought by the parties, pursuant to ss 87A and 94A.
Rights and interests
The Court determined that exclusive native title existed in relation to some parts of the determination area (excluding waters in those areas). Non-exclusive rights existed in relation to the flowing and underground waters in these areas, including the rights to hunt, fish, take, use and share the water or the natural resources of the water. In the remaining parts of the determination area, non-exclusive native title rights were held to exist, including the rights: to access and move freely through and within the area; to live, enter and remain on the land, camp and erect shelters and other structures; the right to hunt, gather and fish; to take, use, share and exchange natural resources; to light fires for domestic purposes; to engage in cultural activities; to conduct ceremonies; to conduct burials and burial rites; to hold meetings; to visit, maintain and protect sites of importance. Areas where native title was found not to exist included freehold land, vested reserves and public works, and areas that comprised land on which the pastoral improvements have been constructed and any adjacent land or waters necessary for the enjoyment of such improvements.
Prescribed Body Corporate
The Bunuba Dawangarri Aboriginal Corporation RNTBC was nominated as the prescribed body corporate to hold the native title on trust for the native title holders.