FEDERAL COURT OF AUSTRALIA

Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545

ORDERS

WAD 382 of 2017:

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 6033 of 1998 ("Wajarri Yamatji Application") and WAD 382 of 2017 ("Wajarri Yamatji #2 Application") has made native title determination applications that relate to an area of land and waters including the area the subject of the attached minute of proposed consent determination ("the Part B Determination").

B.    On 19 October 2017, the Hon Justice Griffiths partially determined the Wajarri Yamatji Application, known as "Wajarri Yamatji (Part A)". The balance of that proceeding remains on foot. His Honour made no determination in the Wajarri Yamatji #2 Application.

C.    The Applicant in both proceedings, the State of Western Australia and other Respondents to the proceedings ("the parties") have reached an agreement as to the terms of a determination of native title which the parties submit should be made in relation to an area that comprises part of the land and waters covered by the Wajarri Yamatji Application and part of the land and waters covered by the Wajarri Yamatji #2 Application ("the Part B Determination Area").

D.    The agreement the subject of the Determination involves a partial determination of the applications. The Part B Determination Area excludes the following areas covered by the Wajarri Yamatji #2 Application (together "the excluded area"):

(a)    any area covered by proceedings WAD 44 of 2018 ("the Wajarri Yamatji #4 Application");

(b)    save in respect of the areas described in sub-paragraph (a) above and sub-paragraph (a) of Recital G below, any area of unallocated Crown land that was covered by the grant of an exploration licence or a prospecting licence under the Mining Act 1978 (WA) when the Wajarri Yamatji #2 Application was made (1 August 2017). The Applicant asserts that section 47B of the Native Title Act 1993 (Cth) (Native Title Act) applies to certain areas of unallocated Crown land covered by the Wajarri Yamatji #2 Application. Whether or not an exploration licence is a "lease" within the meaning in sub-section 47B(1)(b)(i) of the Native Title Act is an issue that is currently before the High Court. On 28 February 2018 the Native Title Party applied for a grant of special leave to appeal from the Full Court's decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8 (Tjiwarl). That application has not yet been heard. Until those proceedings are finally determined, it remains controversial in these proceedings whether section 47B of the Native Title Act applies to the land and waters the subject of the exploration licences and prospecting licences. The Applicant proposes that no determination be made in relation to this area and that further consideration of all Wajarri Yamatji applications in relation to this area be deferred until after the Tjiwarl proceedings are finally determined; and

(c)    a very small area of unallocated Crown land (less than 1 square kilometre) that forms part of a much larger contiguous area of unallocated Crown land located within the area overlapped by proceedings WAD 6119 of 1998 (Mullewa Wadjari). Issues relating to that overlap are currently being mediated before the Court. The Applicant, State of Western Australia and Commonwealth have agreed to defer progressing this area until the outcome of that mediation is known.

E.    The parties have designated the Part B Determination Area as ʻWajarri Yamatji (Part B)ʼ. The external boundaries of the Part B Determination Area are described in Schedule One to the Part B Determination.

F.    Pursuant to sub-section 87A(2) of the Native Title Act the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached. The agreement has been signed by or on behalf of each of those parties who are required to be parties to the agreement pursuant to section 87A(1)(c) of the Native Title Act.

G.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A and 94A of the Native Title Act:

(a)    in the Wajarri Yamatji Application to the extent that it covers UCL 26, UCL 33 and that part of UCL 335 that was not covered by Exploration Licence 9/891 when the application in proceeding WAD 6042 of 1999 was made (21 December 1999); and

(b)    in the Wajarri Yamatji #2 Application to the extent that it covers the balance of the Part B Determination Area.

H.    Having regard to the requirements in sections 67 and 68 of the Native Title Act the Applicant will, when indicating whether or not the native title rights and interests are to be held in trust in accordance with the proposed orders, also seek orders that, immediately prior to the Part B Determination taking effect:

(a)    the Wajarri Yamatji #2 Application be dismissed to the extent that it covers UCL 26, UCL 33 and that part of UCL 335 that was not covered by Exploration Licence 9/891 when the application in proceeding WAD 6042 of 1998 was made (21 December 1999); and

(b)    the Wajarri Yamatji Application be dismissed to the extent that it covers the balance of the Part B Determination Area.

The State of Western Australia and the other Respondents to the proceedings who hold an interest in relation to land or waters in the Part B Determination Area agree to that course.

I.    The parties acknowledge that the effect of the making of the Part B Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Part B Determination Area as set out in the Part B Determination.

J.    Pursuant to sub-section 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Part B Determination Area without holding a hearing.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87A and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    No determination is made in respect of the excluded area. Proceedings WAD 6033 of 1998 and WAD 382 of 2017, to the extent that they cover that area, continue in case management before a Registrar of the Court.

2.    Pursuant to sub-section 67(1) of the Native Title Act, proceedings WAD 6033 of 1998 and WAD 382 of 2017, to the extent that they cover the Part B Determination Area, be determined together.

3.    In relation to the Part B Determination Area, there be a determination of native title in terms of the Part B Determination as provided for in Attachment A. The Part B Determination is to take effect immediately upon the making of a determination under section 56(1) or section 57(2) of the Native Title Act as the case may be.

4.    By 18 July 2018, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:

(a)    nominating in writing to the Court a prescribed body corporate to be trustee of the native title rights and interests; and

(b)    including within the nomination the written consent of the body corporate.

5.    If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests referred to in order 3 in trust for the common law holders of the native title rights and interests.

6.    If there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.

7.    There be no determination in relation to:

(a)    the balance of the area covered by the Wajarri Yamatji #2 Application (which includes the area covered by the Wajarri Yamatji #4 Application); or

(b)    the Wajarri Yamatji Application to the extent that it covers that area.

Both proceedings be adjourned to a directions hearing on a date to be fixed.

8.    There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s.225 Native Title Act)

1.    Subject to paragraph 2, native title exists in the Part B Determination Area in the manner set out in paragraph 4 of this determination.

2.    Native title does not exist in those parts of the Part B Determination Area the subject of the interests identified in Schedule Three which are shown as generally shaded pink on the maps at Schedule Two.

Native title holders (s.225(a) Native Title Act)

3.    The native title in the Part B Determination Area is held by the Wajarri Yamatji. The Wajarri Yamatji are the people referred to in Schedule Six.

The nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) Native Title Act)

4.    Subject to paragraphs 2, 5, 6 and 9, the nature and extent of the native title rights and interests in relation to:

(a)    the Exclusive Area are that they confer the right to possession, occupation, use and enjoyment on the Wajarri Yamatji to the exclusion of all others; and

(b)    the Non-Exclusive Area are that they confer the following non-exclusive rights on the Wajarri Yamatji, including the right to conduct activities necessary to give effect to them:

(i)    the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Part B Determination Area;

(ii)    the right to hunt, fish, gather, take and use the resources of the land;

(iii)    the right to take and use water;

(iv)    the right to engage in cultural activities on the Part B Determination Area, including:

(A)    visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and

(B)    conducting and participating in ceremony and ritual, and the transmission of cultural knowledge;

(v)    the right to light contained and controlled fires for domestic, cultural and spiritual purposes but not for the clearance of vegetation;

(vi)    the right to conduct burials and burial rites and other ceremonies in relation to death; and

(vii)    the right to be accompanied on to the Part B Determination Area by those persons who, though not native title holders, are:

(A)    spouses, partners, parents or children of the native title holders;

(B)    people who are members of the immediate family of a spouse, partner, parent or child of a native title holder; or

(C)    people entering the Part B Determination Area in connection with the performance of ceremonies or cultural activities in accordance with traditional laws and customs.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraph 4:

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State of Western Australia and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Wajarri Yamatji; and

(b)    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination; and

(c)    do not confer any rights in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

6.    The native title rights and interests set out in paragraph 4(b) do not confer:

(a)    possession, occupation, use and enjoyment on the Wajarri Yamatji to the exclusion of all others; or

(b)    a right to control the access to, or use of, the land and waters of the Part B Determination Area or its resources.

Areas to which ss.47, 47A and 47B of the Native Title Act apply

7.    Sections 47, 47A and 47B of the Native Title Act, as the case may be, apply to disregard any prior extinguishment in relation to the areas described in Schedule Four.

The nature and extent of any other interests

8.    The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and other interests

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Liberty to apply

10.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Part B Determination Area referred to in paragraph 5 of Schedule Three of this determination.

Definitions and interpretation

11.    In this determination, unless the contrary intention appears:

"Part B Determination Area" means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

"Exclusive Area" means those parts of the Part B Determination Area referred to in paragraph 1 of Schedule Four (being the area shaded green on the maps in Schedule Two);

"land" has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters";

"Native Title Act" means the Native Title Act 1993 (Cth);

"Non-Exclusive Area" means those parts of the Part B Determination Area where native title exists that are not in the Exclusive Area (being the area shaded orange on the maps in Schedule Two);

"Other Interests" means the legal or equitable estates or interests and other rights in relation to the Part B Determination Area described in Schedule Five and referred to in paragraph 8;

"resources" means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed));

"waters" has the same meaning as in the Native Title Act.

12.    In the event of any inconsistency between the written description of an area in Schedule One, Three, Four or Five and the area as depicted on the maps at Schedule Two the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

The Part B Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description:

    All that land comprising Lot 60 as shown on Deposited Plan 194660.

    All that land comprising Lot 214 as shown on Deposited Plan 220375.

    All that land comprising those portions of Lot 25 as shown on Deposited Plan 238030 which are westerly of a line defined by the following coordinate positions.

    All that land comprising that portion of Lot 37 as shown on Deposited Plan 36256 which is southeasterly of a line commencing at the intersection of the centre-line of Koorabooka Creek with a southwestern boundary of Lot 37 as shown on Deposited Plan 36256; Then northeasterly along that centre-line to Ericoothara Spring at approximate Latitude 23.943560 South; Then generally northwesterly along the high points of the Godfrey Range, generally identified as passing through the following approximate coordinate positions.

Then northwesterly to Latitude 23.874477 South, Longitude 116.780354 East, being a point on the boundary of Native Title Determination Application WAD62/2016 Jurruru People #3 (WC2016/001); Then southeasterly to the boundary of Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002) at Latitude 23.903982 South, Longitude 116.957147 East.

    All that land comprising those portions of Lot 38 as shown on Deposited Plan 221065 which is easterly of a line commencing at Latitude 24.589108 South, Longitude 116.245187 East and extending northeasterly to the intersection of the centre-line of Wanna Road (approximately at Latitude 24.190484 South, Longitude 116.446724 East), being a southeastern corner of Native Title Determination Application WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WC2016/003); Then northeasterly to Latitude 24.121114 South, Longitude 116.481796 East.

    All that land comprising those portions of Lot 40 as shown on Deposited Plan 238030 which is northwesterly of a line defined by the following coordinate positions.

    UCL 5 – that Unallocated Crown Land parcel in vicinity of Mt Gould Well surrounding Reserve 1412 and surrounded by Pastoral Lease N050153 (Mt Gould) with an approximate centroid of Longitude 117.308147° East, Latitude 25.810297° South.

EXCLUSIONS

Those parts of the land and waters described above that are overlapped by Exploration Licences E09/1618, E09/2044, E09/2079, E09/2096, E09/2121, E09/2143, E09/2145, E09/2149, E09/2178, E09/2179, E09/2184, E09/2191, E09/2197, E09/2200, E09/2201, E09/2202, E09/2203, E09/2206, E52/1552-I, E52/1553-I, E52/3035, E52/3051, E52/3339, E52/3387, E52/3391, E52/3392, E52/3393, E52/3468, E52/3469, E52/3490 and Prospecting Licence P09/468 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

The Determination Area also includes all the land comprising:

    All that land comprising Pastoral Lease N049563 (Belele).

    All that land comprising Pastoral Lease N049656 (Buttah).

    All that land comprising Pastoral Lease N049470 (Mt Wittenoom).

    All that land comprising those portions of Pastoral Lease N050049 (Karbar) that are westerly of a line joining the southernmost south eastern corner of the south western severance of Pastoral Lease N050577 (Annean) to the northernmost corner of Cue Townsite.

    All that land comprising Reserve 297, Reserve 16670, Reserve 21805, Reserve 39182 and Reserve 42783.

    All that land comprising Lot 1 as shown on Deposited Plan 49991 and being the land described in certificate of title volume 2602 folio 964.

    All that land comprising Lot 58 as shown on Deposited Plan 194566.

    All that land comprising Lot 334 as shown on Deposited Plan 30446.

    All that land comprising Lot 382 as shown on Deposited Plan 243003.

    All that land comprising Lot 30 as shown on Deposited Plan 77647.

    All that land comprising Lots 22, 25, 26, 27, 29, 30, 31, 34, 35, 74 and 75 as shown on Deposited Plan 222348.

    All that land comprising Lots 100, 264, 265 and 266 as shown on Deposited Plan 100155.

    All that land comprising Lots 112, 267, 268, 269, 270, 271, 272, 273, 274 and 275 as shown on Deposited Plan 222880.

    All that land comprising Lot 276 as shown on Deposited Plan 130065.

    All that land comprising Lots 166, 167, 277, 278, 279, 280, 281 and 282 as shown on Deposited Plan 222882.

    All that land comprising Lots 13, 34, 56, 62, 64, 74, 83, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 257, 258, 259, 260, 261, 262, 263, 283, 284, 285, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319 and 320 as shown on Deposited Plan 222878.

    UCL 1 – that Unallocated Crown Land parcel in vicinity of Bangemall Well surrounded by Lot 38 on Deposited Plan 221065 with an approximate centroid of Longitude 116.475303° East, Latitude 24.199295° South.

    UCL 2 – that portion of Unallocated Crown Land parcel bound on the east and north by Pastoral Lease N050510 (Pingandy) and bound to the west and south by Pastoral Lease N050364 (Mt Vernon) and in the south by UCL 3 which is southerly of a line defined by the following coordinate positions.

    UCL 3 - that portion of Unallocated Crown Land parcel bound on the north by Pastoral Lease N050510 (Pingandy) and UCL 2, bound to the south by Pastoral Lease N050129 (Mt Augustus) and bound to the west by Pastoral Lease N050044 (Dooley Downs) which is southerly and westerly of a line defined by the following coordinate positions.

    UCL 4 – that Unallocated Crown Land parcel in vicinity of Clever Mary Hills bound in the north, west and southeast by Lot 58 on Deposited Plan 194566 and on the east and south east by Lot 40 on Deposited Plan 238040 with an approximate centroid of Longitude 116.762443° East, Latitude 24.845220° South.

    UCL 6 – that Unallocated Crown Land parcel north of Nannine Townsite, south of the Great Northern Highway surrounded by Pastoral Lease N050577 (Annean) with an approximate centroid of Longitude 118.342132° East, Latitude 26.884458° South.

    UCL 7 – that Unallocated Crown Land parcel within the Nannine Townsite, immediately east of Lot 252 on DP222878 with an approximate centroid of Longitude

    118.339984° East, Latitude 26.887429° South.

    UCL 8 – that Unallocated Crown Land parcel within the Nannine Townsite, immediately west of Lot 253 on Deposited Plan 222878 with an approximate centroid of Longitude 118.340085° East, Latitude 26.887438° South.

    UCL 9 – that Unallocated Crown Land parcel (closed road) surrounded by N049522 (Youthapina) extending generally northwesterly from the Meekatharra – Mount Clere Road to a southern boundary of Lot 300 on Deposited Plan 48595 (Youthapina P/L).

    UCL 10 – that Unallocated Crown Land parcel (closed road) surrounded by Pastoral Lease N049522 (Youthapina) and Pastoral Lease N049924 (Sherwood) and extending generally northwesterly from the northern boundary of Reserve 9469 to the southern boundary of Reserve 10633.

    UCL 11 – that Unallocated Crown Land parcel (closed road) surrounded by Pastoral Lease N049522 (Youthapina) extending northeasterly from the Carnarvon Meekatharra Road to a western boundary of Reserve 9469.

    UCL 12 – that Unallocated Crown Land parcel (Closed Road) at the end of an un-named road bound on the north and south by Pastoral Lease N050085 (Meeberrie) and the east by Pastoral Lease N049906 (Wooleen) with an approximate centroid of Longitude 116.072513° East, Latitude 26.998873° South.

Note:    Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 2nd January 2018.

Topographic vector data is © Commonwealth of Australia (Geoscience Australia) 2015.

For the avoidance of doubt the determination excludes any land and waters subject to:

Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19/10/2017.

Native Title Determination Application WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as Determined in the Federal Court on the 29/08/2000.

Native Title Determination Application WAD6132/1998 Yugunga-Nya People (WC1999/046) as accepted for registration 21/01/2015.

Native Title Determination Application WAD6136/1998 Nanda People (WC2000/013) as accepted for registration 1/03/2001.

Native Title Determination Application WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WC2016/003) as accepted for registration 21/10/2016.

Native Title Determination Application WAD6236/1998 The Malgana Shark Bay Peoples (WC1998/017) as accepted for registration 30/06/2017.

Native Title Determination Application WAD62/2016 Jurruru #3 (WC2016/001) as accepted for registration 04/08/2016.

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:     Graphic Services (Landgate) 13th April 2018

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE TWO

MAPS OF THE PART B DETERMINATION AREA

SCHEDULE THREE

AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2)

Native title does not exist in relation to land and waters the subject of the following interests within (or partly within) the Part B Determination Area which, with the exception of the public works described in clause 5 of this Schedule, are generally shown as shaded in pink on the maps at Schedule Two:

1.    Freehold

    Historical Nannine Town Site

Historical Cuddingwarra Town Site

Historical Big Bell Town Site

Karalundi

2.    Reserves

Historical Nannine Town Site

Historical Big Bell Town Site

3.    Leases

Historical Big Bell Town Site

4.    Dedicated roads and roads set aside, taken or resumed

Historical Big Bell Town Site

Other Historical Roads

5.    Other Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or subsection 23C(2) of the Native Title Act applies.

   
1.      

   Limited to that part of lease area covered by Mining Lease 20/418 as at 1 August 2017

      
   
2.      

   Limited to that part of lease area covered by Mining Leases 20/418 and 20/435 as at 1 August 2017.

      
   
3.      

   Limited to that part of lease area covered by Mining Leases 20/418 and 20/435 as at 1 August 2017.

      
   
4.      

   Limited to that part of UCL 335 that was not covered by Exploration Licence 9/891 when the application in proceeding WAD 6042 of 1999 was made on 21 December 1999.

      
 

SCHEDULE FOUR

AREAS TO WHICH SECTIONS 47, 47A AND 47B OF THE NATIVE TITLE ACT APPLY (Paragraph 7)

1.    Areas the subject of exclusive native title (subparagraph 4(a))

(1)    Section 47 of the Native Title Act applies in relation to:

1.    Lots 33, 41 and 145 on Deposited Plan 220781 the subject of PL N049563 (Belele); and

2.    Lot 45 on Deposited Plan 238095 the subject of PL N049656 (Buttah).

(2)    Section 47A of the Native Title Act applies in relation to:

1.    Lot 7 on Plan 92275 the subject of Reserve 297 for the purpose of "Use and Benefit of Aborigines" (Pia Wadjari);

2.    Lot 189 on Plan 191158 the subject of Reserve 42783 for the purpose of "Use and Benefit of Aboriginal Inhabitants" (Buttah Windee);

3.    Lot 8 on Plan 91552 the subject of Reserve 39182 for the purpose of "Use and Benefit of Aboriginal Inhabitants" (Burringurrah);

4.    Lot 194 on Plan 220330 the subject of Reserve 16670 for the purpose of "Use and Benefit of Aborigines" (Wilgie Mia); and

5.    Lot 198 on Plan 193076 the subject of Reserve 21805 for the purpose of "Use and Benefit of Aborigines" (Little Wilgie).

(3)    Section 47B of the Native Title Act applies in relation to:

1.    the following areas of unallocated Crown land:

2.    the following areas of unallocated Crown land (to the extent that they are within the Part B Determination Area) except to the extent that they were covered by Mining Leases 9/72, 9/79, 9/131, 9/132, 9/133, 9/141, or General Purpose Lease 9/4 granted under the Mining Act 1978 as at 1 August 2017:

2.    Areas the subject of non-exclusive native title (subparagraph 4(b))

(a)    Section 47A of the Native Title Act applies in relation to that part of Lots 23 and 94 on Deposited Plan 220763 the subject of PL N049470 (Mt Wittenoom) that was previously the subject of Lease 332/1210 granted under s.32 of the Land Act 1933 (WA) (repealed) on 1 April 1959 for the purpose of "Grazing".

(b)    Section 47B of the Native Title Act applies in relation to:

(i)    Lot 382 on Deposited Plan 243003 except to the extent that it was covered by Mining Leases 20/418 and 20/435 granted under the Mining Act 1978 as at 1 August 2017; and

(ii)    Lot 30 on Deposited Plan 77647.

SCHEDULE FIVE

OTHER INTERESTS (Paragraph 8)

The nature and extent of the Other Interests in relation to the Part B Determination Area as at the date of this determination are:

3.    Reserves

(a)    The following reserves:

(b)    The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above; and

(c)    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights.

4.    Pastoral Leases

(a)    The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

(b)    Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in subparagraph (a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for management, conservation and regeneration of pasture for permitted uses.

5.    Mining Tenements and Petroleum Interests

(a)    The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:

(i)    Mining Leases

(ii)    General Purpose Leases

(iii)    Exploration Licences

(iv)    Miscellaneous Licences

(v)    Prospecting Licences

(vi)    Retention Licences

6.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Schedule Five, but subject to clause 6(b) below, the rights of the holders from time to time of a mining tenement or petroleum interest referred to in clause 5 of Schedule Five to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Part B Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in clause 6(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 6(a).

7.    Other

The following rights and interests:

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the State of Western Australia or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation.

(b)    Rights and interests held by reason of the force and operation of the laws of the State of Western Australia or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

(c)    Rights and interests of members of the public arising under the common law including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads in the Part B Determination Area (subject to the laws of the State of Western Australia) over which, as at the date of this determination, members of the public have a right of access under the common law including but not limited to the following roads shown generally on the maps in Schedule Two and described in the Legend as "Public Roads Not Formally Dedicated":

(A)    Beringarra-Mount Gould Road;

(B)    Boolardy-Wooleen Road;

(C)    Butchers Track;

(D)    Cobra-Mount Augustus Road;

(E)    Landor-Meekatharra Road;

(F)    Landor-Mount Augustus Road;

(G)    Meekatharra-Mount Clere Road;

(H)    Mount Wittenoom Road;

(I)    Muggon Road; and

(J)    Waldburg Road;

(d)    The right to access the Part B Determination Area by:

(i)    an employee, agent or instrumentality of the State of Western Australia;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any local government authority;

as required in the performance of his or her statutory or common law duty.

(e)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(i)    as the owner or operator of telecommunications facilities within the Part B Determination Area;

(ii)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(A)    to inspect land;

(B)    to install and operate telecommunications facilities; and

(C)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(iii)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Part B Determination Area in performance of their duties; and

(iv)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Part B Determination Area.

(f)    So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Part B Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways; and

(iii)    areas that were public places at the end of 31 December 1993.

    (g)    Any other:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(A)    the land or waters; or

(B)    an estate or interest in the land or waters; or

(iii)    restriction on the use of the land or waters, whether or not annexed to other land or waters.

SCHEDULE SIX

NATIVE TITLE HOLDERS (Paragraph 3)

The Wajarri Yamatji means those persons who:

(a)    are descended from one or more of the following ancestors:

1.    Kia (also known as Murgoo Fred), Innie (also known as Annie), Rosie English (also known as Yangudgi), Badja and Kadjba (siblings)

2.    Baljarba (also known as Jim Crow) (married Badja)

3.    Mogagee (also known as Daniel Dann) (married Annie)

4.    Jinatharra (also known as Bobby Clark)

5.    Tommy Glass

6.    Wannanu (also known as Waurene Porter)

7.    Billelia (also known as Nellie) (mother of Fred Simpson)

8.    English Edwards and Mary Jane (also known as Mununmarie)

9.    Yanbaree

10.    Kitty Gilbert

11.    Dija

12.    Mary from Twin Peaks

13.    Emily (mother of Lizzie Worth)

14.    Ivy, Robby and Simon Walgar (siblings)

15.    Tommy and Fanny Jones

16.    Frances, Tiger, unnamed and Boomer Ryan (siblings)

17.    Molly (married unnamed Ryan)

18.    Caroline (mother of Lena Sullivan)

19.    Budjeeyona and Jinny

20.    Jinty (also known as Cindy Tyson nee Sullivan)

21.    Amy Porter and Jigaroo

22.    Polly Parker

23.    Frank Franklin (also known as Punch)

24.    Charlie Dongara

25.    Eniwani Jimmy and Jenny (also known as Jinnie)

26.    William Jones and Sarah

27.    Julia (mother of Cecil Lane)

28.    Jimmy and Judy

29.    Bunnabuddy (also known as Daisy) and Molly (siblings)

30.    Jibija (also known as Rosie Jones)

31.    Moweramarra (also known as Caroline) (mother of Ruby Nairn)

32.    Nyuga and Isaac

33.    Jane Towser

34.    Coolya (also known as Judy)

35.    Jubyjub (also known as Janie Narry)

where descent can be either by birth or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji;

(b)    identify themselves as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji; and

(c)    are accepted as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji.

REASONS FOR JUDGMENT

GRIFFITHS J

Introduction

1    The proceedings concern applications made under s 61 of the Native Title Act 1993 (Cth) (Native Title Act) for a determination of native title with the Federal Court file numbers WAD6033/1998 (Wajarri Yamatji #1 Application) and WAD382/2017 (Wajarri Yamatji #2 Application). The applications are together known as the Wajarri Yamatji Applications.

2    The applicant in the Wajarri Yamatji Applications (Wajarri Yamatji Applicant), the State of Western Australia (First Respondent) and other respondents required under s 87A of the Native Title Act to be parties to the proposed determination have reached an agreement as to the terms of a determination and form of orders (Wajarri Yamatji Part B Determination) that is appropriate to provide recognition of the native title rights and interests held by members of the Wajarri Yamatji in relation to part of the land and waters covered by the Wajarri Yamatji Applications (Wajarri Yamatji Part B Determination Area).

3    On 19 October 2017, the Wajarri Yamatji #1 Application was the subject of a determination of native title made under s 87A of the Native Title Act (Wajarri Yamatji Part A Determination) (see I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215). The Wajarri Yamatji Part A Determination covered an area of approximately 68,743 square kilometres of land and waters in the Murchison and Gascoyne regions of Western Australia. The Wajarri Yamatji Part B Determination Area covers approximately 12,252 square kilometres of land and waters.

Documents filed

4    The State Solicitor for Western Australia, on behalf of the First Respondent, has filed in the Court a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties to the proceedings who holds an interest in relation to the Wajarri Yamatji Part B Determination Area.

5    The Yamatji Marlpa Aboriginal Corporation (YMAC), on behalf of the Wajarri Yamatji Applicant, has filed in the Court an affidavit of David Hamilton Taft affirmed on 13 April 2018 in relation to inter alia the authorisation by the Wajarri Yamatji Applicant of the Wajarri Yamatji Part B Determination.