FEDERAL COURT OF AUSTRALIA
Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108
ORDERS
VALERIE HOLBOROW AND OTHERS (YABURARA MARDUDHUNERA) Applicant | ||
AND: | First Respondent HAMERSLEY IRON PTY LTD Second Respondent ROBE RIVER MINING CO PTY LTD (and others named in the Schedule) Third Respondent |
DATE OF ORDER: |
THE COURT NOTES THAT:
A. The Applicant in proceedings WAD 127 of 1997 has made a native title determination application (YM Application).
B. The Applicant in the YM Application, the State of Western Australia and the Respondents to the proceedings (the parties) have reached an agreement as to the terms of a determination which is to be made in relation to the land and waters covered by the YM Application (Determination Area).
C. Pursuant to subsections 87(1), (1A) and (2) of the Native Title Act 1993 (Cth) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the YM Application.
D. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area.
E. The parties acknowledge that the effect of the making of the 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 Determination Area as set out in the determination.
F. The parties have been unable to reach agreement as to the inclusion of two of the ancestors referred to in the YM Application, Tutparinya and Toby, as Mardudhunera ancestors in Schedule Five to the determination. The Mardudhunera People nevertheless recognise that descendants of those ancestors, and any Aboriginal persons who are descendants (including by adoption in accordance with traditional law and custom) of Pantun, Eva, Mabel and Jessie but who are not native title holders in accordance with Schedule Five to the determination, may conduct activities in the Determination Area pursuant to the native title rights recognised in paragraph 4(e) of the determination and pursuant to the KM/YM ILUA (as described in clause 13 of Schedule Four).
G. Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.
H. The Applicant in the YM Application has nominated the Wirrawandi Aboriginal Corporation ICN:8870 pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.
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 section 87 and section 94A of the Native Title Act and by the consent of the parties:
THE COURT ORDERS THAT:
1. In relation to the Determination Area, there be a determination of native title in WAD 127 of 1997 in the terms provided for in Attachment A.
2. The Wirrawandi Aboriginal Corporation ICN: 8870 shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
3. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ATTACHMENT A
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title: section 225 Native Title Act
1. Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.
2. Native title does not exist in those parts of the Determination Area that are:
(a) identified in Schedule Three; or
(b) seaward of the mean low water mark of the mainland coast.
Native title holders: section 225(a) Native Title Act
3. The native title in the Determination Area is held by the Mardudhunera People.
The nature and extent of native title rights and interests: section 225(b) and (e) Native Title Act
4. Subject to paragraphs 5, 6, 7 and 10 the nature and extent of the native title rights and interests in relation to the Determination Area is that they confer the following non-exclusive rights on the Mardudhunera People:
(a) the right to enter and remain on the Determination Area, camp, erect temporary shelters and to travel over and visit any part of the Determination Area;
(b) the right to hunt, fish, gather and use the traditional resources of the Determination Area;
(c) the right to take and use water;
(d) the right to engage in cultural activities on the Determination Area, including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and
(ii) conducting ceremony and ritual; and
(e) the right to invite those descendants (including by adoption in accordance with traditional laws and customs) of Tutparinya, Pantun, Eva, Mabel, Jessie and Toby who are not native title holders and who, for the avoidance of doubt, are not exercising native title rights or interests, to carry out activities of the kind referred to in paragraphs (a) – (d) above within the Determination Area.
Qualifications on the native title rights and interests
5. The native title rights and interests are subject to and exercisable in accordance with:
the laws of the State and the Commonwealth, including the common law; and
the traditional laws and customs of the Mardudhunera People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes.
6. Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to:
minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);
petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
water lawfully captured by the holders of the Other Interests.
7. The native title rights and interests set out in paragraph 4 do not confer:
possession, occupation, use and enjoyment on the Mardudhunera People to the exclusion of all others; or
a right to control the access to, or use of, the land and waters of the Determination Area or its resources.
No application of sections 47, 47A or 47B of the Native Title Act
8. For the avoidance of doubt, sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the land and waters of the Determination Area.
The nature and extent of any Other Interests
9. The nature and extent of the Other Interests are described in Schedule Four.
Relationship between native title rights and Other Interests
10. 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:
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,
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.
Definitions and Interpretation
11. In this determination, unless the contrary intention appears:
Determination Area means the land and waters described in Schedule One and depicted on the maps at Schedule Two;
Native Title Act means the Native Title Act 1993 (Cth);
Mardudhunera People means the people described in Schedule Five and referred to in paragraph 3;
mean low water mark means the line of the low water mark as depicted in Landgate’s Spatial Cadastral Database dated 2 January 2018 and shown on the maps at Schedule Two;
Other Interests means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 9;
resources means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, 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 to the Mining Act 1904 (WA) (repealed));
Titles Validation Act means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); and
use does not include use by way of trade.
12. In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the map at Schedule Two the written description prevails.
SCHEDULE ONE
DETERMINATION AREA
The 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 those land and waters commencing at Latitude 20.563408 South, Longitude 116.275471 East being a point on the present boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) and extending generally southeasterly, generally southerly, easterly and again generally southerly along the boundaries of that native title determination to Latitude 21.309988 South; Then southwesterly to the intersection of the right bank of the Fortescue River with a line joining coordinate positions Latitude 21.616520 South, Longitude 116.171996 East and Latitude 21.338692 South, Longitude 116.741673 East being a point on the present boundary of Native Title Determination WAD6090/1998 Kuruma Marthudunera Part B (WCD2018/003); Then southwesterly and generally northwesterly along the boundaries of that native title determination to Latitude 21.603409 South, Longitude 116.136046 East; Then generally northwesterly, generally northeasterly and generally southeasterly through the following coordinate positions:
Latitude (South) | Longitude (East) |
21.600333 | 116.132881 |
21.595840 | 116.128132 |
21.591978 | 116.124700 |
21.586779 | 116.120537 |
21.585127 | 116.119148 |
21.583287 | 116.117478 |
21.579109 | 116.113387 |
21.575550 | 116.110043 |
21.571826 | 116.104896 |
21.568950 | 116.100109 |
21.565360 | 116.095529 |
21.561162 | 116.090583 |
21.558831 | 116.088448 |
21.554974 | 116.085206 |
21.552660 | 116.083737 |
21.551982 | 116.082991 |
21.550161 | 116.082081 |
21.549179 | 116.081153 |
21.547480 | 116.080335 |
21.542665 | 116.077211 |
21.538158 | 116.074364 |
21.535136 | 116.070913 |
21.534451 | 116.069882 |
21.531922 | 116.066991 |
21.530939 | 116.066062 |
21.528004 | 116.061276 |
21.526690 | 116.059023 |
21.524100 | 116.053659 |
21.523408 | 116.052343 |
21.523244 | 116.045591 |
21.522761 | 116.040560 |
21.522616 | 116.039516 |
21.522055 | 116.038673 |
21.521915 | 116.037820 |
21.520845 | 116.035751 |
21.520524 | 116.034902 |
21.518416 | 116.029622 |
21.517918 | 116.028873 |
21.516752 | 116.027758 |
21.516251 | 116.026913 |
21.515219 | 116.026366 |
21.510562 | 116.022286 |
21.509886 | 116.021635 |
21.508851 | 116.020993 |
21.507562 | 116.019786 |
21.502585 | 116.017331 |
21.500388 | 116.015764 |
21.498542 | 116.013808 |
21.496821 | 116.009661 |
21.493777 | 116.005354 |
21.492592 | 116.003478 |
21.488223 | 115.998916 |
21.486193 | 115.996870 |
21.485147 | 115.995752 |
21.484323 | 115.993963 |
21.480628 | 115.989956 |
21.479768 | 115.989120 |
21.476719 | 115.984623 |
21.472839 | 115.980431 |
21.471975 | 115.979404 |
21.471465 | 115.978179 |
21.469789 | 115.975839 |
21.466998 | 115.969623 |
21.466668 | 115.968394 |
21.465073 | 115.964434 |
21.462459 | 115.958119 |
21.459088 | 115.952679 |
21.455374 | 115.947911 |
21.454694 | 115.947071 |
21.454493 | 115.946219 |
21.453114 | 115.943777 |
21.451005 | 115.938497 |
21.448291 | 115.932946 |
21.445525 | 115.927681 |
21.444148 | 115.925334 |
21.442758 | 115.922416 |
21.439857 | 115.916583 |
21.435764 | 115.911064 |
21.432050 | 115.906296 |
21.430874 | 115.904801 |
21.425841 | 115.900064 |
21.423812 | 115.898017 |
21.422147 | 115.896152 |
21.418484 | 115.893477 |
21.414162 | 115.890817 |
21.411663 | 115.889162 |
21.407806 | 115.885920 |
21.402312 | 115.881955 |
21.397321 | 115.878929 |
21.394049 | 115.877578 |
21.387964 | 115.876387 |
21.386106 | 115.876429 |
21.383695 | 115.875914 |
21.378229 | 115.875564 |
21.372295 | 115.873226 |
21.367772 | 115.869714 |
21.365135 | 115.867301 |
21.361554 | 115.863102 |
21.360749 | 115.862074 |
21.358720 | 115.860027 |
21.358225 | 115.859372 |
21.353857 | 115.854810 |
21.352688 | 115.853600 |
21.350472 | 115.851271 |
21.345646 | 115.847671 |
21.344007 | 115.846852 |
21.342864 | 115.846688 |
21.338020 | 115.844801 |
21.332375 | 115.841980 |
21.330717 | 115.840401 |
21.326842 | 115.836398 |
21.323619 | 115.832094 |
21.323123 | 115.831440 |
21.317986 | 115.827371 |
21.316951 | 115.826728 |
21.316274 | 115.825982 |
21.314634 | 115.825163 |
21.313774 | 115.824327 |
21.309825 | 115.822229 |
21.307513 | 115.820854 |
21.306365 | 115.820499 |
21.304180 | 115.819408 |
21.303336 | 115.819237 |
21.302064 | 115.818695 |
21.296444 | 115.816921 |
21.292152 | 115.815496 |
21.290128 | 115.813640 |
21.289251 | 115.812137 |
21.288553 | 115.810536 |
21.283741 | 115.807506 |
21.281621 | 115.806603 |
21.280947 | 115.806047 |
21.279258 | 115.805610 |
21.274343 | 115.803248 |
21.273135 | 115.802895 |
21.271494 | 115.801981 |
21.266240 | 115.800484 |
21.263398 | 115.799503 |
21.261450 | 115.798311 |
21.258554 | 115.795142 |
21.257561 | 115.793738 |
21.255310 | 115.789983 |
21.254810 | 115.789138 |
21.252802 | 115.787948 |
21.250676 | 115.786855 |
21.245685 | 115.783829 |
21.244351 | 115.783194 |
21.238542 | 115.781042 |
21.237574 | 115.780684 |
21.236414 | 115.779854 |
21.233446 | 115.778685 |
21.231932 | 115.778054 |
21.228131 | 115.777095 |
21.223054 | 115.775499 |
21.220217 | 115.774707 |
21.214288 | 115.772560 |
21.208848 | 115.770782 |
21.206849 | 115.769971 |
21.201725 | 115.768852 |
21.197138 | 115.767624 |
21.190365 | 115.765305 |
21.186536 | 115.763205 |
21.181713 | 115.759700 |
21.176881 | 115.755814 |
21.172139 | 115.750690 |
21.171519 | 115.749848 |
21.170666 | 115.749296 |
21.168160 | 115.747356 |
21.163160 | 115.743950 |
21.159522 | 115.742321 |
21.151908 | 115.739926 |
21.146650 | 115.738239 |
21.145679 | 115.737786 |
21.144840 | 115.737805 |
21.139412 | 115.736502 |
21.135440 | 115.735927 |
21.132688 | 115.736181 |
21.127599 | 115.736488 |
21.121712 | 115.736052 |
21.116765 | 115.734833 |
21.113588 | 115.732432 |
21.110400 | 115.729556 |
21.107894 | 115.727615 |
21.106916 | 115.726876 |
21.105277 | 115.726058 |
21.104606 | 115.725598 |
21.099277 | 115.723436 |
21.097942 | 115.722801 |
21.095831 | 115.722278 |
21.094865 | 115.722015 |
21.093528 | 115.721284 |
21.090674 | 115.719828 |
21.085430 | 115.718711 |
21.083136 | 115.718098 |
21.077161 | 115.716522 |
21.071742 | 115.715599 |
21.068301 | 115.714632 |
21.066668 | 115.714098 |
21.065827 | 115.714023 |
21.060698 | 115.712713 |
21.058884 | 115.712088 |
21.057745 | 115.712114 |
21.055634 | 115.711592 |
21.049663 | 115.710207 |
21.047729 | 115.709585 |
21.042137 | 115.708952 |
21.036861 | 115.708978 |
21.031467 | 115.709100 |
21.025199 | 115.707817 |
21.020603 | 115.706210 |
21.018125 | 115.705410 |
21.016977 | 115.705056 |
21.011867 | 115.704507 |
21.005994 | 115.704642 |
21.000899 | 115.704759 |
20.995685 | 115.704878 |
20.994726 | 115.704900 |
20.990955 | 115.705177 |
20.984431 | 115.705612 |
20.983232 | 115.705640 |
20.982278 | 115.705852 |
20.981319 | 115.705874 |
20.980485 | 115.706083 |
20.975762 | 115.706667 |
20.973323 | 115.707484 |
20.970703 | 115.708210 |
20.965694 | 115.709372 |
20.960937 | 115.711003 |
20.958022 | 115.711927 |
20.952850 | 115.713758 |
20.952020 | 115.714157 |
20.947145 | 115.715886 |
20.945363 | 115.716592 |
20.944715 | 115.717083 |
20.943577 | 115.717109 |
20.938881 | 115.718834 |
20.937390 | 115.719154 |
20.932697 | 115.720974 |
20.928006 | 115.722889 |
20.922495 | 115.725585 |
20.918646 | 115.727575 |
20.917164 | 115.728275 |
20.916329 | 115.728485 |
20.910717 | 115.731943 |
20.909710 | 115.732442 |
20.905245 | 115.736160 |
20.904606 | 115.737031 |
20.902168 | 115.737848 |
20.898803 | 115.740018 |
20.894427 | 115.742497 |
20.892954 | 115.743577 |
20.888461 | 115.746154 |
20.886036 | 115.747541 |
20.882713 | 115.751424 |
20.882075 | 115.752294 |
20.879489 | 115.754447 |
20.875497 | 115.757964 |
20.873930 | 115.760093 |
20.870573 | 115.765022 |
20.866883 | 115.768627 |
20.861625 | 115.774267 |
20.860336 | 115.775533 |
20.857822 | 115.778160 |
20.855907 | 115.780773 |
20.855269 | 115.781645 |
20.854649 | 115.783276 |
20.852285 | 115.787136 |
20.849247 | 115.790346 |
20.845740 | 115.794042 |
20.842617 | 115.798776 |
20.839424 | 115.803035 |
20.838159 | 115.805253 |
20.834833 | 115.809040 |
20.831458 | 115.813208 |
20.828319 | 115.817276 |
20.824999 | 115.823728 |
20.824550 | 115.824975 |
20.821253 | 115.829903 |
20.820329 | 115.831352 |
20.819356 | 115.833278 |
20.816059 | 115.838206 |
20.811269 | 115.843453 |
20.810149 | 115.844240 |
20.809039 | 115.845407 |
20.808214 | 115.845997 |
20.804061 | 115.850279 |
20.799747 | 115.855325 |
20.794650 | 115.860199 |
20.790130 | 115.864204 |
20.788264 | 115.866340 |
20.785446 | 115.871257 |
20.781631 | 115.877053 |
20.779241 | 115.879867 |
20.774145 | 115.884836 |
20.771420 | 115.888609 |
20.768124 | 115.893632 |
20.764815 | 115.898085 |
20.762540 | 115.900706 |
20.761907 | 115.901767 |
20.761264 | 115.902448 |
20.758943 | 115.905641 |
20.757137 | 115.907776 |
20.756194 | 115.908463 |
20.750629 | 115.913824 |
20.744545 | 115.920053 |
20.741342 | 115.923932 |
20.737551 | 115.928301 |
20.732410 | 115.933842 |
20.728440 | 115.938215 |
20.724587 | 115.942490 |
20.720175 | 115.948489 |
20.716519 | 115.953425 |
20.712573 | 115.958844 |
20.709096 | 115.963776 |
20.708103 | 115.964845 |
20.704750 | 115.967491 |
20.699784 | 115.972838 |
20.696286 | 115.976915 |
20.691502 | 115.982353 |
20.689631 | 115.984299 |
20.684819 | 115.988595 |
20.681441 | 115.992669 |
20.678284 | 115.995976 |
20.677648 | 115.996942 |
20.674774 | 115.999577 |
20.671087 | 116.003277 |
20.669794 | 116.004354 |
20.664056 | 116.010004 |
20.660177 | 116.013232 |
20.656639 | 116.015692 |
20.655703 | 116.016665 |
20.650064 | 116.021456 |
20.645423 | 116.025368 |
20.642069 | 116.028014 |
20.640433 | 116.029764 |
20.638392 | 116.032094 |
20.634714 | 116.036175 |
20.630722 | 116.039692 |
20.629439 | 116.041148 |
20.625083 | 116.044483 |
20.620900 | 116.047529 |
20.616731 | 116.051144 |
20.615326 | 116.052509 |
20.612761 | 116.055517 |
20.608617 | 116.060179 |
20.603365 | 116.066104 |
20.600365 | 116.070930 |
20.599568 | 116.072661 |
20.598630 | 116.073539 |
20.595966 | 116.077406 |
20.593710 | 116.080788 |
20.592793 | 116.082521 |
20.589475 | 116.086593 |
20.584221 | 116.092423 |
20.580354 | 116.096127 |
20.575591 | 116.102421 |
20.570973 | 116.107284 |
20.565226 | 116.112554 |
20.560084 | 116.118095 |
20.557221 | 116.121205 |
20.553899 | 116.125087 |
20.549426 | 116.130994 |
20.546103 | 116.134877 |
20.544812 | 116.136048 |
20.541508 | 116.140692 |
20.538476 | 116.144189 |
20.533864 | 116.149339 |
20.529074 | 116.154495 |
20.525218 | 116.158677 |
20.521893 | 116.162466 |
20.518536 | 116.167397 |
20.516980 | 116.170003 |
20.513515 | 116.175411 |
20.510206 | 116.179865 |
20.505597 | 116.185111 |
20.502053 | 116.189759 |
20.498742 | 116.194117 |
20.495608 | 116.198375 |
20.492246 | 116.203112 |
20.489244 | 116.207841 |
20.485326 | 116.214398 |
20.484054 | 116.216329 |
20.482031 | 116.219419 |
20.481043 | 116.220679 |
20.477920 | 116.225410 |
20.474457 | 116.230912 |
20.471558 | 116.234975 |
20.467139 | 116.240594 |
20.466212 | 116.241947 |
20.465871 | 116.242716 |
20.465224 | 116.243207 |
20.461915 | 116.247659 |
20.459722 | 116.251135 |
20.456326 | 116.254541 |
20.455683 | 116.255222 |
20.451583 | 116.261690 |
20.447465 | 116.267398 |
20.444000 | 116.272805 |
20.442908 | 116.274733 |
20.439409 | 116.278810 |
20.436278 | 116.283163 |
20.431488 | 116.288317 |
20.428304 | 116.292957 |
20.424837 | 116.298363 |
20.420558 | 116.304836 |
20.417279 | 116.310525 |
20.413175 | 116.316803 |
20.412716 | 116.317670 |
20.411085 | 116.319610 |
20.409878 | 116.321731 |
20.406880 | 116.326652 |
20.403527 | 116.331772 |
20.400695 | 116.336118 |
20.398541 | 116.341211 |
20.395235 | 116.345758 |
20.392216 | 116.349824 |
20.388400 | 116.355620 |
20.385391 | 116.360066 |
20.381742 | 116.365382 |
20.379259 | 116.369245 |
20.375639 | 116.375703 |
20.373116 | 116.380423 |
20.370287 | 116.384865 |
20.367270 | 116.389026 |
20.363777 | 116.393293 |
20.361118 | 116.397350 |
20.356986 | 116.402487 |
20.356523 | 116.403164 |
20.354622 | 116.406347 |
20.353984 | 116.407217 |
20.353535 | 116.408465 |
20.352892 | 116.409146 |
20.352733 | 116.410006 |
20.352085 | 116.410496 |
20.349440 | 116.415125 |
20.346608 | 116.419470 |
20.344991 | 116.421981 |
20.341220 | 116.427206 |
20.338241 | 116.432889 |
20.336811 | 116.435681 |
20.333673 | 116.439749 |
20.332044 | 116.441784 |
20.329398 | 116.446412 |
20.327963 | 116.449014 |
20.325140 | 116.453741 |
20.322318 | 116.458468 |
20.319180 | 116.465010 |
20.315894 | 116.470412 |
20.312707 | 116.474958 |
20.309433 | 116.480837 |
20.306315 | 116.485761 |
20.305149 | 116.487120 |
20.303320 | 116.490777 |
20.302062 | 116.493280 |
20.299097 | 116.499533 |
20.297053 | 116.504242 |
20.296777 | 116.505199 |
20.295963 | 116.506264 |
20.294595 | 116.509149 |
20.292549 | 116.513764 |
20.290215 | 116.518860 |
20.286780 | 116.525503 |
20.283995 | 116.531751 |
20.283092 | 116.534055 |
20.282136 | 116.536646 |
20.279358 | 116.543180 |
20.276521 | 116.547336 |
20.275069 | 116.549273 |
20.272898 | 116.553699 |
20.269805 | 116.559669 |
20.268839 | 116.561880 |
20.268205 | 116.562941 |
20.266360 | 116.568406 |
20.264645 | 116.571871 |
20.263284 | 116.575041 |
20.261256 | 116.580417 |
20.259939 | 116.585301 |
20.259181 | 116.588648 |
20.258581 | 116.591040 |
20.257400 | 116.596681 |
20.255463 | 116.603291 |
20.254090 | 116.608460 |
20.253509 | 116.611613 |
20.252771 | 116.613343 |
20.252447 | 116.614777 |
20.250463 | 116.619485 |
20.249084 | 116.624369 |
20.248538 | 116.629044 |
20.247368 | 116.635159 |
20.246929 | 116.636882 |
20.246531 | 116.640221 |
20.245523 | 116.645573 |
20.244473 | 116.649212 |
20.242776 | 116.653438 |
20.241113 | 116.658994 |
20.239560 | 116.664073 |
20.238420 | 116.668951 |
20.237823 | 116.671534 |
20.237690 | 116.673440 |
20.236684 | 116.678886 |
20.235816 | 116.685090 |
20.234820 | 116.690917 |
20.233182 | 116.697519 |
20.231989 | 116.702684 |
20.231292 | 116.706031 |
20.230113 | 116.711766 |
20.229127 | 116.717975 |
20.228633 | 116.724649 |
20.227852 | 116.731899 |
20.227167 | 116.738195 |
20.225836 | 116.744983 |
20.225420 | 116.747561 |
20.224725 | 116.753477 |
20.224397 | 116.759669 |
20.223877 | 116.765390 |
20.223731 | 116.771673 |
20.223866 | 116.777189 |
20.224179 | 116.782604 |
20.224200 | 116.783460 |
20.222820 | 116.788344 |
20.222371 | 116.789591 |
20.222032 | 116.795403 |
20.221563 | 116.798268 |
20.221151 | 116.801036 |
20.221297 | 116.807027 |
20.221503 | 116.808069 |
20.223919 | 116.813723 |
20.225076 | 116.819310 |
20.226154 | 116.824232 |
20.228371 | 116.829033 |
20.228751 | 116.829881 |
20.229429 | 116.830626 |
20.230972 | 116.834873 |
20.232907 | 116.840442 |
20.234343 | 116.845261 |
20.236652 | 116.851392 |
20.237332 | 116.852233 |
20.240031 | 116.857213 |
20.241631 | 116.861362 |
20.242723 | 116.866853 |
20.244345 | 116.871953 |
20.245740 | 116.875060 |
20.246240 | 116.875905 |
20.248325 | 116.880234 |
20.249136 | 116.881548 |
20.249999 | 116.882479 |
20.251006 | 116.884454 |
20.254239 | 116.889138 |
20.255099 | 116.889974 |
20.255604 | 116.891009 |
20.257144 | 116.892687 |
20.259830 | 116.897097 |
20.262390 | 116.901225 |
20.264986 | 116.906874 |
20.267747 | 116.911854 |
20.271153 | 116.916247 |
20.274218 | 116.921410 |
20.277452 | 116.926188 |
Then southeasterly to the intersection with a northwestern boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) at Longitude 116.929062 East; Then southwesterly along the boundary of that native title determination back to the commencement point.
Note: Geographic Coordinates provided in Decimal Degrees.
Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 2 January 2018.
Fortescue River sourced from Landgate’s Medium-Scale Topographic Database.
Petroleum Pipeline sourced from Department of Mines, Industry Regulation and Safety as at 13 March 2018.
For the avoidance of doubt the application excludes any land and waters already claimed by:
Native Title Determination WAD 6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) as Determined in the Federal Court on 2 May 2005.
Native Title Determination WAD 6090/1998 Kuruma Marthudunera (Part B) (WCD2018/003) as Determined in the Federal Court on 26 April 2018.
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared By: Graphic Services (Landgate) 18 May 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 DETERMINATION AREA
SCHEDULE THREE
AREAS WHERE NATIVE TITLE DOES NOT EXIST
(Paragraph 2(a))
Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clauses 7 and 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:
1. Freehold
The following grants of estates in fee simple:
Certificate of Title |
CT0126000243 |
CT0162700311 |
2. Reserves
The following reserves:
Reserve No. | Current / Last Purpose |
33831 | Conservation of Flora and Fauna |
40748 | Natural Gas Pipeline Purposes |
41435 | Natural Gas Pipeline Purposes |
41436 | Natural Gas Pipeline Purposes |
41437 | Natural Gas Pipeline Purposes |
41651 | Natural Gas Pipeline Purposes |
41652 | Natural Gas Pipeline Purposes |
43163 | Repeater Station Site |
44742 | Air Strip |
46952 | Government Requirements |
46694 | Construction And Launching Facility |
3. Leases
The following lease:
Lease No. | Current / Last Purpose |
GE N330882 (formerly GE I127605 (SL 3116/11282)) | Transient Workforce Accommodation |
4. Roads
The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):
MapInfo No. | Description |
Road 01 | Lots 365, 431, 432, 433, 434 and 534 on DP 219913 (being 40 Mile Beach Road) |
Road 06 | Portion of Road No. 15215 (being a portion of the North West Coastal Highway) |
Road 07 | Road No. 17778 (being the Fortescue River Road) |
Road 08 | Portion of Road No. 00388 |
Road 09 | Portion of Road No. 04260 |
Historical Road 01 | Portion of Road No. 00283 |
Historical Road 02 | Portion of Road No. 00388 |
Historical Road 03 | Portion of Road No. 04260 |
Historical Road 04 | Portion of Road No. 07692 |
Historical Road 05 | Portion of Road No. 07693 |
Historical Road 06 | Portion of Road No. 04261 |
Historical Road 07 | Portion of Road No. 07692 |
Historical Road 08 | Portion of Road No. 15215 (being a portion of the North West Coastal Highway) |
5. Dampier to Bunbury Natural Gas Pipeline
The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 and the following easements (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas:
MapInfo No. | Easement No. |
Easement 02 | E144713 (3134B/386) |
Easement 05 | E229563 (3134B/211) |
Easement 06 | E367403 (3134B/104) |
Easement 07 | E421914 (3134B/487) |
Easement 11 | H347160 |
Easement 28 | E054781 (3134B/313) |
Easement 29 | E388802 (E 3134B/565) |
Easement 30 | E388803 (E 3134B/566) |
Easement 34 | H347159 |
Easement 35 | H347161 |
Easement 36 | H347162 |
6. Taking Orders
The land and waters subject to the following taking order:
Taking Order | Purpose |
H833123 | Road and Construction and Launching Facility |
That part of Lot 524 on Deposited Plan 75975 which is subject to the Peter's Creek Cellular Mobile Telephone Service Facility (CMTS).
Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (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 Act or section 23C(2) of the Native Title Act applies.
SCHEDULE FOUR
OTHER INTERESTS
(Paragraph 9)
The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:
1. Reserves
Reserve No. | Current / Last Purpose |
00355 | Watering Place For Travellers & Stock |
00357 | Watering Place For Travellers & Stock |
00378 | Watering Place For Travellers & Stock |
00379 | Watering Place For Travellers & Stock |
00380 | Public Purposes |
00381 | Water |
09701 | De Grey Mullewa Stock Route |
46588 | Recreation & Preservation Of Coastal Environment |
52734 | Port Purposes |
52735 | Port Purposes |
52929 | Port Purposes |
(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;
(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; and
(d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.
2. Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
Lease No. | Station Name |
PL N049492 | Yalleen Station |
PL N049500 | Yarraloola Station |
PL N050076 | Mardie Station |
PL N050300 | Karratha Station |
3. Leases
The following leases and the rights and interests of the holders from time to time of those leases:
Lease No. | Purpose |
GE L022354 | Construction and operation of a gas processing plant and associated infrastructure. |
GE L380579 | Construction and operation of an accommodation area and accommodation area access road for housing workers connected with the construction and operation of a natural gas processing plant and associated on shore infrastructure. |
RO M378187 | Installation, maintenance and operation of telecommunications network facility or radio communications facility. |
4. Roads
The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:
MapInfo ID. | Description |
Road 02 | Lots 257, 660 and 661 on DP 30489 (being a portion of the North West Coastal Highway) |
Road 03 | Lot 662 on DP 30490 (being a portion of the North West Coastal Highway) |
Road 04 | Lots 666 and 667 on DP 30491 (being a portion of the North West Coastal Highway) |
Road 05 | Lot 524 on DP 75975 (being a portion of the North West Coastal Highway) |
The following easements and the rights and interests of the holders from time to time of those easements:
No. | Purpose |
Easement 01 | Access |
Easement 25 (L528640) | Access, Excavation, Laydown and Ancillary Pipeline Purposes and Pipeline Construction, Operation and Maintenance |
6. Taking Orders
The land and waters subject to the following taking order and the rights and interests arising from time to time in respect of that taking order:
Taking Order | Purpose |
YA DK623191 | Gas processing plant and associated infrastructure |
7. Port
The land and waters subject to the following port declared pursuant to the Shipping and Pilotage Act 1967 (WA) and the rights and interests arising from time to time in respect of that port:
Port | Location |
Port of Cape Preston | As described in Schedule 1A of the Shipping and Pilotage (Ports and Harbours) Regulations 1966 (WA) |
8. Dampier to Bunbury Natural Gas Pipeline
(a) The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land and waters the subject of the following taking orders:
Taking Order |
H950513 |
H950669 |
H950807 |
I209489 |
I209494 |
I209598 |
I209605 |
I209606 |
I209613 |
I209621 |
I209632 |
I209637 |
I209638 |
I209640 |
I209644 |
I209646 |
I209652 |
I529856 |
(b) For the avoidance of doubt, those interests include:
Interest | Description / Purpose |
Easement 03 (E198379 [3134B/257]) | Access |
Easement 04 (E198381 [3134B/258]) | Access |
(a) The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:
(i) Exploration Licences
Tenement ID |
E 0800117 |
E 0800118 |
E 0800636 |
E 0800660 |
E 0800698 |
E 0801331 |
E 0801414 |
E 0801451 |
E 0801684 |
E 0801685 |
E 0801686 |
E 0801825 |
E 0801849 |
E 0802361 |
E 0802401 |
E 0802740 |
E 0802741 |
E 0802943 |
E 4701537 |
E 4702372 |
E 4702505 |
E 4702677 |
E 4702734 |
E 4703072 |
E 4703160 |
E 4703301 |
E 4703348 |
E 4703391 |
E 4703607 |
E 4703707 |
E 4703708 |
E 4703709 |
(ii) General Purpose Leases
Tenement ID |
G 0800051 |
G 0800052 |
G 0800053 |
G 0800054 |
G 0800063 |
G 0800074 |
G 0800075 |
(iii) Mining Leases
Tenement ID |
M 0800118 |
M 0800119 |
M 0800120 |
M 0800121 |
M 0800122 |
M 0800123 |
M 0800124 |
M 0800125 |
M 0800126 |
M 0800127 |
M 0800128 |
M 0800129 |
M 0800130 |
M 0800264 |
M 0800265 |
M 0800266 |
M 4701415 |
M 4701420 |
(iv) Miscellaneous Licences
Tenement ID |
L 0800020 |
L 0800045 |
L 0800093 |
L 0800104 |
L 0800105 |
L 0800126 |
L 0800131 |
L 0800149 |
L 4700344 |
L 4700345 |
(v) Prospecting Licences
Tenement ID |
P 0800594 |
P 0800596 |
P 0800597 |
P 0800599 |
P 0800600 |
P 0800601 |
P 0800602 |
P 0800604 |
P 0800608 |
(vi) Temporary Reserves
Tenement ID |
TR 7005461 |
(b) The agreement as amended and ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement.
10. Petroleum Interests
(a) The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum (Submerged Lands) Act 1982 (WA) or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those interests:
(i) Exploration Permits
No. |
EP 491 |
(ii) Pipeline Licences
No. | Name |
PL 17 | Varanus Island to DBNGP Onshore |
PL 40 | Dampier to Bunbury Natural Gas Pipeline |
PL 42 | Varanus Island to DBNGP Onshore |
PL 77 | Sino Iron Gas Pipeline |
PL 81 | Devil Creek (DCDP Onshore Gas Supply Pipeline) |
PL 86 | DCDP Sales Gas Pipeline |
PL 91 | Fortescue River Crossing Pipeline |
PL 92 | Gorgon DomGas Onshore Pipeline |
PL 105 | Fortescue River Gas Pipeline |
TPL 08 | Varanus Gas Sales Pipeline (Terr Sea) |
TPL 13 | Varanus Island Gas Sales and Gas Plant (Terr Sea) |
TPL 20 | Devil Creek Development Project (Territorial) |
TPL 24 | Gorgon DomGas Offshore Pipeline |
(iii) Easements:
No. | Purpose |
Easement 10 (G875450 / EA 282) | Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 |
Easement 26 (L717418) | Construction, operation, inspection, maintenance and repair of a pipeline, being PL 81 and PL 86 |
Easement 27 (L790223) | Construction, operation, inspection, maintenance and repair of a pipeline, being PL 92 |
Easement 31 G875454 (EA 283) | Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 |
Easement 32 G875457 (EA 284) | Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 |
Easement 33 G875459 (EA 285) | Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 |
(b) The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:
Tenure ID | Description / Tenure Type |
PL 24 | Pipeline Licence (Goldfields Gas Transmission Pipeline) |
Easement 8 (F924685) | Easement |
Easement 9 (G279072) | Easement |
11. Access to Mining Tenements and Petroleum Interests
(a) Without limiting the operation of any other clause in Schedule Four, but subject to clause 11(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clauses 9 and 10 of this Schedule Four, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as are 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 11(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 11(a).
(c) Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clauses 9 and 10 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.
12. Telstra Corporation Limited
The rights and interests of Telstra Corporation Limited (ACN 051 775 556):
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) 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:
(i) to inspect land;
(ii) to install, occupy and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and
(d) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.
13. KM / YM Indigenous Land Use Agreement
The rights and interests of the Robe River Kuruma People under the Indigenous Land Use Agreement (as amended or replaced from time to time) made pursuant to Part 2, Division 3, Subdivision C of the Native Title Act between the Applicants in the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) and the Applicants in the Yaburara Mardudhunera native title determination application (WAD 127 of 1997), which agreement was registered as an Indigenous Land Use Agreement on 4 July 2014, to the extent that those rights and interests are consistent with Recital F, clause 4(e) and Schedule Five of this determination.
14. Cape Preston Indigenous Land Use Agreement
The Cape Preston Project Deed (YM Mardie ILUA), an Indigenous Land Use Agreement made pursuant to Part 2, Division 3, Subdivision C of the Native Title Act dated 4 June 2015 and registered on the Register of Indigenous Land Use Agreements on 6 November 2015 (Tribunal No. WI2015/003), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that Indigenous Land Use Agreement.
15. Other
The following rights and interests in the Determination Area:
(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes;
(b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including, but not limited to, the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under 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 Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;
(d) The right to access the Determination Area by:
(i) an employee, agent or instrumentality of the State;
(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 where such access would be permitted to private land;
(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:
(i) waterways;
(ii) beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993;
(f) Any other:
(i) legal or equitable estate or interest in the land or waters of the Determination Area; or
(ii) 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 of the Determination Area; or
(B) an estate or interest in the land or waters of the Determination Area; or
(iii) restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.
SCHEDULE FIVE
MARDUDHUNERA PEOPLE
(Paragraph 3)
The Mardudhunera People are those Aboriginal persons who:
(1) are descended from Willy Cooper, Alf Boona, Mirbin Lowe, Woggi, Eva, Mabel, Pantun or Jessie (including through adoption in accordance with traditional Mardudhunera laws and customs);
(2) identify themselves as Mardudhunera under Mardudhunera traditional law and custom and are so identified by other Mardudhunera People as Mardudhunera; and
(3) have a connection with the land and waters in the Determination Area in accordance with traditional Mardudhunera laws and customs.
BARKER J:
INTRODUCTION
1 Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (NTA) is the Yaburara & Mardudhunera native title claimant application (YM application) which covers an area of approximately 9530 square kilometres of land and waters in the Pilbara region of Western Australia. It is proposed by the parties that the Court should determine that the holders of native title in this area are the Mardudhunera People.
PROCEDURAL HISTORY
2 Application WAD 127 of 1997 was initially lodged with the National Native Title Tribunal pursuant to s 61 of the NTA on 1 August 1996. It was made under the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act), and was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the NTA ended on 7 March 1997.
3 As a result of the Native Title Amendment Act 1998 (Cth), the application was taken to have been made to the Federal Court. Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the Native Title Amendment Act 1998).
4 The application was first entered on to the Register of Native Title Claims on 1 August 1996.
5 The application was referred to the Court by the Native Title Registrar of the National Native Title Tribunal on 7 November 1997.
6 On 8 January 1999, the applicant moved for amendment of the YM Application to satisfy the requirements of the Native Title Amendment Act 1998 that all applications lodged on or after 27 June 1996 be considered for registration by the Native Title Registrar under a new registration test. On 27 January 1999, a Deputy District Registrar of the Court made orders amending the YM Application in accordance with an amended application dated 8 January 1999. This amendment altered the description of the native title holders.
7 A Deputy District Registrar of the Court made orders further amending the YM Application on 11 March 1999.
8 The YM Application was subsequently considered by the Native Title Registrar pursuant to s 190A of the NTA (commonly known as the registration test). The Native Title Registrar was satisfied that the YM Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 9 April 1999.
9 The YM Application, as originally lodged, included land that was already under claim in WAD 6017 of 1996 (Ngarluma Yindjibarndi Application) and later claimed in WAD 6256 of 1998. Relevantly, the overlap included the Burrup and nearby islands and waters. To the extent that the YM Application overlapped the Ngarluma Yindjibarndi Application it was consolidated with that application and was the subject of a litigated determination of native title: Daniel v State of Western Australia [2003] FCA 666; Daniel v State of Western Australia [2005] FCA 536; and on appeal Moses and Others v Western Australia and Others (2007) 160 FCR 148; [2007] FCAFC 78, and orders made by the Full Court on 27 August 2007 in WAD 114 of 2005. The Court dismissed that portion of the YM Application which overlapped the Ngarluma Yindjibarndi Application on the basis that the claim group on whose behalf the YM Application was brought did not hold native title rights and interests in that area: Daniel at [1163(5)]. That dismissal was not challenged on appeal.
10 On 14 June 2013, the applicant filed an interlocutory application seeking to amend the YM Application. The amendments sought included changes to the description of the claim group, following meetings between the claimants for the YM Application and claimants for the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) (KM Application) in September 2012 and May 2013.
11 In Holborow v State of Western Australia (No 2) [2013] FCA 1040, I made orders permitting the amendment of that application. The amended application was subsequently filed on 30 October 2013. In particular, the membership of the claim group was widened from a list of named individuals to include the descendants of 10 apical ancestors who recognised themselves, and were recognised by others, as a member of the Mardudhunera community or group.
12 A copy of the amended YM Application was subsequently given to the Native Title Registrar pursuant to s 64(4) of the NTA. This triggered the Native Title Registrar’s duty to consider the claim made under s 190A of the NTA. The Native Title Registrar was satisfied that the amended YM Application addressed the criteria of the registration test and the application remained on the Register of Native Title Claims.
13 On 13 June 2013, an interlocutory application was filed in the Court seeking leave to amend the KM Application. On 28 June 2013, orders were made by the Court which, amongst other things, reduced the area of the KM Application by moving the northern boundary of the KM Application to the south-west. The practical effect of the amendment was to remove an overlap between the YM Application and the KM Application, such that the KM Application no longer extended into traditional Mardudhunera country: Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260 at [32].
14 On 11 December 2013, following an interlocutory application by the applicant in the YM Application (YM Applicant) filed 6 December 2013, the Court made orders allowing an amendment to Sch R to the YM Application and requiring the filing of the application, as amended. The amended application was subsequently filed on 16 January 2014.
15 The Court has actively monitored the progress of the proceedings and negotiations in relation to the proceedings, including through case management hearings and confidential case management conferences before Registrars of the Court.
AGREEMENT TO RESOLVE THE APPLICATION
16 The parties to the YM Application have now reached an agreement as to the terms of a determination and the form of orders (YM Determination) that are appropriate to provide recognition of the native title rights and interests held by members of the Mardudhunera People in relation to part of the land and waters covered by the YM Application.
17 As I have said, the Determination Area amounts to approximately 9530 square kilometres of land and waters. It largely relates to four pastoral leases, being Yalleen, Yarraloola, Mardie and Karratha Stations. There are also several leases, roads, numerous small reserves and unallocated Crown land within the Determination Area.
18 Pursuant to s 87 of the NTA, and having regard to the agreement they have reached, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. In support of the agreement reached, the first respondent (State of Western Australia) has filed a Minute of Proposed Consent Determination of Native Title which has been signed by each of the parties with an interest in the Determination Area.
19 In support of the agreement reached and the nomination of a prescribed body corporate (PBC), the applicant has filed an affidavit of Ms Chau Kim Huynh sworn on 11 July 2018 deposing to the process undertaken by the applicant to authorise the agreement reached and regarding the description of the native title holders. The affidavit attaches, among other things:
(a) the notice of nomination of the Wirrawandi Aboriginal Corporation ICN: 8870 (WAC) to be the PBC for the proposed YM Determination pursuant to s 56(2)(a) of the NTA; and
(b) the written consent of WAC to be the PBC for the YM Determination pursuant to s 56(2)(a) of the NTA.
20 In addition, the applicant and the State have filed joint submissions in support of the Minute.
21 The parties agree that the Mardudhunera People are those Aboriginal persons who:
(a) are descended from Willy Cooper, Alf Boona, Mirbin Lowe, Woggi, Eva, Mabel, Pantun or Jessie (including through adoption in accordance with traditional Mardudhunera laws and customs);
(b) identify themselves as Mardudhunera under Mardudhunera traditional law and custom and are so identified by other Mardudhunera People as Mardudhunera; and
(c) have a connection with the land and waters in the Determination Area in accordance with traditional Mardudhunera laws and customs.
22 The external boundary of the Determination Area is described in Sch One to the YM Determination and depicted on the maps contained in Sch Two. The parties agree that native title should be recognised in relation to the Determination Area, except in those parts identified in Sch Three of the YM Determination – which are shown as generally shaded pink on the maps in Sch Two – and those parts seaward of the mean low water mark of the mainland coast.
23 The YM Application claimed native title rights and interests over the sea and a cluster of islands, comprising the Great Sandy Island Nature Reserve. However, the parties have agreed that native title does not exist in respect of any land and waters seaward of the mean low water mark of the mainland coast.
24 The YM Determination provides that the applicant in the YM Determination has nominated WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders.
ASSESSMENT OF CONNECTION MATERIAL
25 It is apparent from the joint submissions, that the applicant provided the State with an anthropological report by Dr Michael O’Kane entitled Yaburara and Mardudhunera People Final Connection Report (dated 17 September 2015) (connection material) in support of the Mardudhunera People’s connection with the claim area.
26 The State assessed the connection material in accordance with its Guidelines for the Provision of Connection Material (dated February 2012), with the State’s response being informed by legal advice from the State Solicitor’s Office.
27 In November 2016, representatives of the State met directly with representatives of the YM Applicant and members of the claim group, in Karratha. The joint submissions explain that this meeting provided an opportunity for direct and detailed discussions between the Mardudhunera People and the State about the nature and extent of the Mardudhunera People’s ongoing connection to country and their acknowledgment and observance of traditional law and custom.
The Mardudhunera People’s connection to country
28 The joint submissions provide the following information regarding the connection to country of the Mardudhunera People:
(a) The Mardudhunera People are a unique socio-territorial language group located in the Pilbara region of Western Australia. They comprise a single society who identify as Mardudhunera, who speak (or spoke) Mardudhunera language and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters.
(b) Under Mardudhunera traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Mardudhunera People. Mardudhunera traditional laws and customs connect the Mardudhunera People to their country and the traditional spiritual beliefs of the Mardudhunera People are firmly embedded within the physical landscape.
(c) Contemporary members of the Mardudhunera People are those persons who can trace their lineage to a Mardudhunera ancestor who had a traditional connection to Mardudhunera country. As well as descent, contemporary membership of the Mardudhunera People requires self-identification as a Mardudhunera person, acceptance of that identity by other members of the Mardudhunera People and a connection with Mardudhunera country in accordance with Mardudhunera traditional law and custom.
DESCRIPTION OF THE PROPOSED NATIVE TITLE HOLDERS
29 An issue identified in the joint submissions is that the description of the proposed native title holding group in Sch Five of the proposed YM Determination differs from the description of the native title claim group in Sch A of the YM Application.
30 On 1 December 2017, the Court ordered further case management before a Registrar of the Court, to be conducted on a confidential basis, if so required, in relation to an issue arising between the YM Applicant, the State, and the applicant in the KM Application (KM Applicant) in its capacity as a respondent to the YM Application, in relation to the description of native title holders to be included in the Minute.
31 The Minute records that the parties have been unable to reach agreement as to the inclusion of two ancestors referred to in the YM Application, being Tutparinya and Toby, as Mardudhunera ancestors in Sch Five to the YM Determination. In particular, as detailed in the joint submissions, the State did not agree that the evidence supported a finding that Tutparinya and Toby were of Mardudhunera ancestry.
32 However, the Minute includes an agreement by the parties that the descendants of Tutparinya and Toby, and any Aboriginal persons who are descendants of Pantun, Eva, Mabel and Jessie but who are not native title holders in accordance with Sch Five to the proposed YM Determination, may conduct activities in the Determination Area. Such activities are, the parties have agreed, conducted pursuant to the native title rights recognised in para 4(e) of the YM Determination, and pursuant to an Indigenous Land Use Agreement (ILUA) entered into by the KM Applicant and the YM Applicant (as described in cl 13 of Sch Four).
33 This agreement was arrived at by negotiation between the YM Applicant, the State, and the KM Applicant, including in confidential case management before a Registrar. The joint submissions say that the parties have satisfied themselves that the description set out in Sch Five of the Minute accurately reflects the position as described in the connection and other ethnographic materials, and captures all the native title holders, being members of the Mardudhunera People.
34 The YM Applicant has provided evidence in the affidavit of Ms Huynh sworn 11 July 2018 as to the process of authorisation undertaken by the YM Applicant in relation to the Minute. Ms Huynh deposes to the holding of a meeting of the Mardudhunera People in Roebourne on 22 June 2018 at which a decision was made, in accordance with a process agreed and adopted by the Mardudhunera People present, adopting the description of native title holders contained in the Minute. Ms Huynh’s evidence is that it was agreed by the Mardudhunera People present at the meeting that the description contained in the proposed consent determination fully and accurately described the proposed native title holders. Ms Huynh deposes that she regards the Mardudhunera People present at the 22 June 2018 meeting as being broadly representative of the Mardudhunera People in a manner consistent with those who regularly participate in community meetings concerning the YM Application and matters concerning the (no longer extant) overlap with the KM Application.
35 The Court is not limited to making a determination in the form sought in the YM Application. Provided that the application is valid, and in accordance with the law, the Court can proceed to make a determination in such form as it sees fit based on the evidence before it: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]; Sharpe v State of Western Australia [2013] FCA 599 at [19].
36 Having considered the material filed by the parties, it appears appropriate for the Court to make the determination sought in the Minute for the following reasons:
(a) the description accurately reflects the position as described in the connection materials;
(b) the description captures all proposed native title holders;
(c) the claimant group authorised the terms of the Minute, including the proposed native title holders in Sch Five of the YM Determination at an authorisation meeting which was sufficiently notified and broadly representative of the Mardudhunera People; and
(d) the State is satisfied that the proposed native title holders are the persons described in Sch Five of the YM Determination.
NOMINATION OF PRESCRIBED BODY CORPORATE
37 As noted above, the YM Determination provides that the applicant in the YM Application has nominated WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders. That nomination is in writing and WAC has given its consent to the nomination. I am satisfied that the requirements of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.
REQUIREMENTS OF Section 87 OF THE NTA
38 The joint submissions seek that a determination of native title should be made pursuant to s 87 of the NTA. Section 87 of the NTA provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where:
(a) the period specified in the notice given under s 66 of the NTA has ended and an agreement has been reached regarding the proceeding or part of the proceeding (s 87(1)(a));
(b) the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b));
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and
(d) it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)).
39 Pursuant to s 87(1) of the NTA, the notification period referred to in s 66(8) and s 66(10)(c) of the NTA has ended.
40 The requirements of s 87(1)(a) and (b) of the NTA are established. There is an agreement in writing for a proposed determination of native title which has been filed with the Court. The agreement is reflected in the Minute which has been signed by (or on behalf of) all parties to the proceeding.
41 In accordance with s 87(1)(c) of the NTA, the orders sought in the Minute are consistent with the terms of the agreement and are within the power of the Court to make for the following reasons:
(a) the YM Application is validly made, having been authorised by the native title claim group according to a decision making process agreed to and adopted by the claim group members that authorised the applicant for the YM Application to bring the application;
(b) the YM Application is for a determination of native title in relation to areas of land and waters for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed determination (s 61A(1) and s 68 of the NTA);
(c) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the NTA;
(d) the form of the determination proposed, as outlined in the Minute, complies with s 94A and s 225 of the NTA; and
(e) the requirements of s 87 of the NTA are otherwise satisfied.
42 Section 87(1A) of the NTA requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J).
43 Section 87(2) of the NTA does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application, or even to form a final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the NTA where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11].
44 In particular, s 87 of the NTA is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J). In the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding was contested: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J).
45 The requirements of s 87(2) of the NTA will often be met where the Court is satisfied that a relevant government respondent – such as the State – has, through competent legal representation, satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, although the Court might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: Lovett at [37]; Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]; [2001] FCA 129 (Emmett J).
46 The joint submissions outline that the State has played an active role in the negotiation of the proposed consent determination contained in the Minute and it is apparent that the State has taken a real interest in the proceeding in the interests of the community generally. In so doing, the State has, acting on behalf of the community generally, had regard to the requirements of the NTA.
47 Through a rigorous and detailed assessment process, and after a considerable period of negotiations, the State has satisfied itself that the YM Determination is justified in all the circumstances. The information and connection material provided regarding the connection of the Mardudhunera People is, in the view of the State, sufficient to demonstrate that the YM Application has a credible basis. The State is satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area.
48 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the Determination Area, and the determination includes those other interests at Sch Four such that the determination complies with s 225 of the NTA.
49 In relation to this proceeding, the YM Applicant and the State have been legally represented throughout the negotiation process. All other respondent parties with an interest in the YM Determination have also had the benefit of legal representation.
50 In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under s 87 and s 94A of the NTA to make the determination.
CONCLUSION
51 By signing the Minute, the parties have indicated their agreement to the determination I am about to make. The Court congratulates the applicant, the State, non-State respondent parties, and their legal and other representatives for negotiating and agreeing to consent orders being made in these terms.
52 I am satisfied that it is appropriate and within power to make the determination of native title in the terms proposed pursuant to s 87 and s 94A of the NTA. The determination constitutes recognition by Australian law of the enduring traditional laws and customs of the Mardudhunera People over the Determination Area. It includes an order that WAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the NTA.
53 The effect is that the Mardudhunera People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area.
54 I now make the determination as proposed by the parties.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
Associate:
WAD 127 of 1997 | |
YALLEEN PASTORAL COMPANY PTY LTD | |
Fifth Respondent: | QUADRANT NORTHWEST PTY LTD |
Sixth Respondent: | MG KAILIS GULF FISHERIES PTY LTD |
Seventh Respondent: | EXMOUTH PEARLS PTY LTD |
Eighth Respondent: | NEIL FINLAY & ORS FOR THE KURUMA MARTHUDUNERA |
Ninth Respondent: | TELSTRA CORPORATION LIMITED |