Neowarra v Western Australia - [2004] FCA 1092

FEDERAL COURT OF AUSTRALIA
Neowarra v State of Western Australia [2004] FCA 1092
NATIVE TITLE – Determination
PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS
WAG 6016 OF 1996
WAG 6015 OF 1999
WAG 6006 OF 2002
SUNDBERG J
27 AUGUST 2004
KUPUNGARRI

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6016 OF 1996 WAG 6015 OF 1999
WAG 6006 OF 2002

BETWEEN:

PADDY NEOWARRA, PADDY WAMA & OTHERS
APPLICANTS

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS

JUDGE:

SUNDBERG J

DATE OF ORDER:

27 AUGUST 2004

WHERE MADE:

KUPUNGARRI

WANJINA-WUNGGURR NATIVE TITLE DETERMINATION NO 1
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of Native Title (s 225)

Native title exists in relation to the determination area.
Native title does not exist in the areas set out in Schedule 3.
The Native Title Holders (s 225(a))
The 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. The members of the Wanjina-Wunggurr Community are the people referred to in Schedule 9.
The nature and extent of native title rights and interests (s 225(b)) and exclusiveness of native title (s 225(e))
Subject to Order 9, the nature and extent of native title rights and interests in relation to each part of the determination area referred to in Schedule 4 [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] are an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters of that part.
Subject to Order 9, the nature and extent of the native title rights and interests in relation to each part of the determination area referred to in Schedule 5 [being current and historical pastoral lease areas other than areas where any extinguishment is required to be disregarded] are:
(a)the right to engage in the following activities:
(i)having access to the determination area but so that Native Title Holders may seek sustenance in their accustomed manner only from:
(A)unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or
(B)unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;
(ii)camping;
(iii)hunting for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs from:
(A)unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or
(B)unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;
(iv)having access to painting sites in order to freshen or repaint images there;
(v)having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;
(vi)gathering and fishing for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 1092
Decision Date: 27 AUGUST 2004

CaseChat Overview and Summary

In Neowarra v Western Australia, the primary dispute revolved around the determination of native title rights over specific land areas in Western Australia. The parties involved were Neowarra, a group claiming native title, and the State of Western Australia, which contested the claim. The case was heard and decided by the Federal Court of Australia. Neowarra sought recognition of their native title rights over certain lands, which they claimed were traditionally occupied and used in accordance with their laws and customs.

The legal issues before the court included whether Neowarra could demonstrate a continuous connection with the land as required by native title legislation, and whether their use of the land was consistent with their traditional laws and customs. Additionally, the court had to determine if the state government's actions or policies had extinguished or impaired the native title rights of Neowarra. These questions required careful analysis of evidence presented by both parties regarding historical occupation, cultural practices, and the impact of governmental actions on the native title rights.

The court examined the evidence meticulously, considering historical records, expert testimonies, and cultural practices of Neowarra. The Federal Court ultimately found that Neowarra did indeed have a continuous connection with the land, and their use and occupation were consistent with their traditional laws and customs. The court ruled that the State of Western Australia's actions did not amount to the extinguishment of Neowarra's native title rights. Consequently, the court determined that Neowarra held native title over the contested areas.

Orders