FEDERAL COURT OF AUSTRALIA

 

Attorney-General of the Northern Territory v Ward [2003] FCAFC 283

NATIVE TITLE – Terms of determination basically agreed but disputes on some items – Whether it is necessary exhaustively to identify the holders of native title rights and interests – Whether it is necessary to identify all those rights and interests – Discussion of other contested words and phrases.

Western Australia v Ward [2002] HCA 28; 191 ALR 1 applied.

Native Title Act 1993 (Cth) s 225

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE, CECIL NINGARMARA & ORS, DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES

 

WAG 6296 of 1998

 

 

CECIL NINGARMARA & ORS v NORTHERN TERRITORY OF AUSTRALIA & STATE OF WESTERN AUSTRALIA

W 6020 of 1999

WILCOX, NORTH and WEINBERG JJ

9 DECEMBER 2003

KUNUNURRA (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6296 of 1998

 

ON REMITTER FROM THE HIGH COURT IN P62 of 2000 and P63 of 2000

 

BETWEEN:	ATTORNEY-GENERAL OF THE NORTHERN TERRITORY APPELLANT
AND:	BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE FIRST RESPONDENT   CECIL NINGARMARA & ORS SECOND RESPONDENT   DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES THIRD RESPONDENT

 

 

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 6020 of 1999

 

ON REMITTER FROM THE HIGH COURT IN P62 of 2000 and P63 of 2000

 

BETWEEN:	CECIL NINGARMARA & ORS APPELLANT
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT   STATE OF WESTERN AUSTRALIA SECOND RESPONDENT

 

JUDGES:	WILCOX, NORTH and WEINBERG JJ
DATE OF ORDER:	9 DECEMBER 2003
WHERE MADE:	KUNUNURRA (HEARD IN PERTH)

 

THE COURT NOTES THAT:

 

A.                In April 1994, Ben Ward and others (‘the first applicants’) lodged a native title application in relation to a claim area covering approximately 7,900 square kilometres in the north-west of Western Australia and certain lands in the Northern Territory (‘the NT claim area’).

B.                 In the course of proceedings in the Federal Court of Australia, Cecil Ningarmara and other Aboriginal people who claimed to have an interest in the NT claim area became the second applicants in the proceedings.

C.                On 24 November 1998, following a lengthy trial, Lee J handed down judgment and made a determination that native title existed in relation to the whole of the area under claim (other than certain areas where native title had been extinguished), including the NT claim area.

D.                Various parties before the trial judge appealed to the Full Court of the Federal Court, which handed down judgment in relation to the appeals on 3 March 2000. The Full Court set aside the determination made by the trial judge and substituted its own determination of native title which differed from that of the trial judge.

E.                 Pursuant to special leave granted by the High Court of Australia, certain matters were taken on appeal to that Court, which delivered its judgment on 8 August 2002. Order 2 of the orders made by the High Court reads as follows:

‘Paragraphs 4 and 6 of the orders of the Full Court of the Federal Court made on 3 March 2000, the whole of the order of the Full Court of the Federal Court made on 11 May 2000 and the determination of native title made on 11 May 2000 are set aside and the matters remitted to the Full Court for further hearing and determination.’

F. The parties that have an interest in the NT claim area are the first and second applicants, the Northern Territory of Australia and the entities identified in clause 8 of the determination set out below.

G. The parties have reached an agreement as to the terms of a determination of native title to be made in relation to the NT claim area.

H. Those parties referred to in Recital F acknowledge that the rights and interests of the native title holders in the land and waters of the NT claim area, possessed under their traditional laws and customs, but not all of which may be recognised by the common law, are:

(a)                ownership of the land and waters;

(b)               giving or refusing permission to non-native title holders to occupy or use the land and waters;

(c)                speaking for and making decisions about the land and waters;

(d)               hunting, gathering and using the natural resources and giving or refusing permission to non-native title holders to do so;

(e)                managing the spiritual forces associated with the land and waters;

(f)                 protecting places of significance, and caring for the land and waters; and

(g)                safeguarding the cultural knowledge associated with them.

I. The parties acknowledge that in relation to those parts of the NT claim area comprising Northern Territory Portions 3541, 3542 and 3863, being Aboriginal community living areas within the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act (NT), it was the conclusion of the Full Court of the Federal Court that:

(a) s 47A of the Native Title Act 1993 (Cth) (‘the Act’) applied, with the effect that any extinguishment of native title rights and interests by the grants themselves, or by the creation of any other prior interest in relation to the areas, must be disregarded; and

(b) the native title rights and interests in those portions of land comprise possession, occupation, use and enjoyment to the exclusion of all others, subject, however, to s 47A(3) of the Act.

J. The parties have further agreed to apply to the Federal Court for a consent order for a determination that native title exists in relation to the NT claim area.

K. The parties accept that the effect of this determination is that the members of the estate groups identified in clause 3, and the persons identified in clause 4, of the determination, are acknowledged as the native title holders for the NT claim area in accordance with the traditional laws acknowledged and the traditional customs observed by them.

L. No nomination pursuant to section 56(2) of the Act in relation to the holding of native title in trust has been made.

BEING SATISFIED that a determination in the terms sought by those parties would be within the power of the Court, and it appearing to the Court appropriate to do so, and by consent of those parties,

THE COURT ORDERS THAT:

 

1. There be a determination of native title in terms of the determination set out below.

2. The native title is not to be held in trust.

3. An Aboriginal corporation whose name is to be provided within 12 months, or such further time as a judge of the Court may allow, is to:

(a)                    be the prescribed body corporate for the purposes of s 57(2) of the Act; and

(b)                    perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.

4. Appeal WAG 6296 of 1998 is allowed and leave is granted for appeal W 6020 of 1999 to be discontinued.

5. There be no order as to the costs of appeals WAG 6296 of 1998 or W 6020 of 1999.

THE COURT DETERMINES THAT:

 

1. Native title exists in the areas of land and waters claimed in the Northern Territory and described in the Schedule (‘the NT determination area’).

2. The land and waters of the NT determination area are part of three estates (the Damberal estate, the Bindjen estate and the Nyawamnyawam estate), each of which estates is held by the members of the three respective estate groups (the Damberal estate group, the Bindjen estate group, and the Nyawamnyawam estate group). They, together with the Aboriginal people referred to in clause 4 below, are collectively referred to as ‘the native title holders’.

3. Each of the three estate groups referred to in clause 2 includes members by reason of patrilineal descent and matrifiliates, who are members by reason of descent from mother and mother’s father (djawidji), and persons adopted into such descent relationships (‘the estate group members’).

4. In accordance with traditional laws and customs, other Aboriginal people have rights in respect of the land and waters of an estate which is not their own, subject to the rights and interests of the estate group members, such people being:

(a) members of estate groups from neighbouring estates;

(b) spouses of the estate group members; and

(c) members of other estate groups with ritual authority.

5. Subject to clause 9, the nature and extent of the native title rights and interests of the estate group members in relation to the NT determination area, recognised by the common law, are non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs, being:

(a) the right to hunt on the land, to gather and use the natural resources of the land such as food, medicinal plants, wild tobacco, timber, stone and resin, and to have access to and use of natural water on the land;

(b) the right to live on the land, to camp, to erect shelters, and to move about the land;

(c) the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death;

(d) the right to have access to, maintain and protect the sites of significance on the land of the NT determination area; and

(e) the right to make decisions about the use and enjoyment of the NT determination area by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs.

These native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.

6. Subject to clause 9, the nature and extent of the native title rights and interests held, in accordance with their traditional laws and customs, by the native title holders referred to in clause 4 hereof, in relation to the NT determination area, recognised by the common law are:

(a) in relation to members of estate groups from neighbouring estates – rights of access to, and rights to hunt, fish and gather the natural resources on the land and waters of their neighbouring estate group members, subject to the permission, implied or express, of the relevant senior estate group members;

(b) in relation to spouses of estate group members – rights of access to, and to hunt, fish and gather the natural resources on, the land and waters of their spouse’s estate; and

(c) in relation to members of other estate groups who hold ritual authority – rights to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites associated with the travels of an ancestral being associated with a Dreaming which passes through the estates in the NT determination area.

These native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.

7. There are no native title rights and interests in:

(a) minerals (as defined in s 2 of the Minerals (Acquisition) Act (NT));

(b) petroleum (as defined in s 5 of the Petroleum Act (NT)); and

(c) prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth)),

in the NT determination area.

8. The nature and extent of other interests in relation to the NT determination area are the interests, created by the Crown or otherwise, as follows:

(a) in relation to Northern Territory Portion 3541 (Policeman’s Hole), the interests of the Nyawamnyawam Dawang Aboriginal Corporation under its fee simple estate granted on 18 December 1990;

(b) in relation to Northern Territory Portion 3542 (Bucket Springs), the interests of the Binjen Ningguwung Aboriginal Corporation under its fee simple estate granted on 18 December 1990;

(c) in relation to Northern Territory Portion 3863 (Bubble Bubble), the interests of the Dumbral Aboriginal Community Association under its fee simple estate granted on 4 October 1993;

(d) in relation to Northern Territory Portions 1801 and 3121:

(i) the interests of the Conservation Land Corporation under Special Purposes Lease 475 and Crown Lease Perpetual 581; and

(ii) the interests of the Parks and Wildlife Commission of the Northern Territory pursuant to its functions and powers of management and control of these areas under the Territory Parks and Wildlife Conservation Act (NT) (and subsidiary legislation, and including under any Plan of Management in force in relation to these areas from time to time) and the Parks and Wildlife Commission Act (NT), including interests in any buildings, works or other structures constructed or established by the Commission within these areas;

(e) in relation to Northern Territory Portions 1801 and 3121, the interests of members of the public arising from rights of access to and use of these areas as a national park, subject to any statutory limitations upon these rights, including those under the Northern Territory Aboriginal Sacred Sites Act (NT);

(f) in relation to the NT determination area, the interests of Telstra Corporation Limited, including:

(i) rights and interests as the owner or operator of telecommunications facilities installed within the NT determination area, including customer radio terminals and overhead and underground cabling;

(ii) rights and interests 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); and

(iii) rights of access by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in and in the vicinity of the NT determination area in the performance of their duties.

9. In relation to the parts of the NT determination area identified as:

(a) the whole of NT Portion 3541 (Policeman’s Hole);

(b) the whole of NT Portion 3542 (Bucket Springs); and

(c) the whole of NT Portion 3863 (Bubble Bubble);

the rights of the native title holders are an entitlement to possession, occupation, use and enjoyment of those parts of the NT determination area to the exclusion of all others provided, however, that rights and interests in flowing and subterranean waters are non-exclusive.

10. In relation to those parts of the NT determination area other than the portions identified in clause 9 above, the rights of the native title holders (identified in s 122 of the Territory Parks and Wildlife Conservation Act (NT) and in the Northern Territory Aboriginal Sacred Sites Act (NT)):

(a) to use the land or waters for hunting and gathering of food for domestic purposes;

(b) to use the land or waters for ceremonial and religious purposes;

(c) to be present on the land for the purpose of conducting such activities; and

(d) to take appropriate steps to protect sacred sites from damage, disturbance or interference;

continue to be enjoyed, and, subject to the principle of reasonable use, may be exercised notwithstanding the interests referred to in clause 8 above, but are not exclusive of the rights of others.

11. Subject to clause 10, the rights and interests of the persons referred to in clause 8(d) are wholly inconsistent with the native title rights and interests (other than the right referred to in clause 5(e)), but do not extinguish them. During the currency of the interests referred to in clause 8(d), the native title rights and interests (other than the right referred to in clause 5(e)) have no effect in relation to the rights and interests referred to in clause 8(d). If the interests referred to in clause 8(d) are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have full effect, wholly or partly as appropriate.

12. To the extent, if at all, that the exercise of the native title right referred to in clause 5(e) conflicts with the exercise of the rights and interests of the persons referred to in clauses 8(d) and (e), the rights and interests of the persons referred to in clauses 8(d) and (e) prevail over, but do not extinguish, the native title rights referred to in clause 5(e).

13. To the extent that the rights and interests of the persons referred to in clause 8(a), (b), (c) and (e) are inconsistent with native title rights and interests, the native title rights and interests have no effect during the currency of, but are not extinguished by, the interests referred to in clause 8(a), (b), (c) and (e). If the interests referred to in clause 8(a), (b), (c) and (e) are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have full effect, wholly or partly as appropriate.

14. To the extent, if at all, that native title rights and interests are inconsistent with the rights and interests of Telstra Corporation Limited referred to in clause 8(f), the rights and interests of Telstra Corporation Limited will prevail over, but will not extinguish, the native title rights and interests.

15. The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia.

DATED: 9 December 2003

_______________________

JUDGE

 

 

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6296 of 1998

 

ON REMITTER FROM THE HIGH COURT IN P62 of 2000 and P63 of 2000

 

BETWEEN:	ATTORNEY-GENERAL OF THE NORTHERN TERRITORY APPELLANT
AND:	BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE FIRST RESPONDENT   DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES SECOND RESPONDENT   CECIL NINGARMARA & ORS THIRD RESPONDENT

 

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 6020 of 1999

 

ON REMITTER FROM THE HIGH COURT IN P62 of 2000 and P63 of 2000

 

BETWEEN:	CECIL NINGARMARA & ORS APPELLANT
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT   STATE OF WESTERN AUSTRALIA SECOND RESPONDENT

 

JUDGES:	WILCOX, NORTH and WEINBERG JJ
DATE:	9 DECEMBER 2003
PLACE:	KUNUNURRA (HEARD IN PERTH)

 

 

 

 

REASONS FOR JUDGMENT

THE COURT:

 

History of the litigation

1                     These reasons concern two of six appeals that were remitted to this Court by the High Court of Australia.

2                     The six appeals were originally filed in this Court in 1998 and 1999 in order to challenge aspects of the decision of Lee J in Ward v State of Western Australia [1998] FCA 1478; 159 ALR 483. That decision concerned claims for determination of native title, under the Native Title Act 1993 (Cth) (‘the Act’), in respect of a substantial area of land in the Kimberley Region, predominantly in the State of Western Australia but extending into the Northern Territory of Australia.

3                     The six appeals were considered by a Full Court of this Court (Beaumont, von Doussa and North JJ) in July and August 1999. On 3 March 2000, the Full Court delivered judgment and made orders allowing, in part, five of the appeals and dismissing the other appeal: see Western Australia v Ward [2000] FCA 191; 99 FCR 316. Amongst the appeals allowed in part was one of the appeals with which we are presently concerned, WAG 6296 of 1998. This was an appeal by the Attorney-General of the Northern Territory (‘the Attorney-General’) raising issues relevant to the portion of the claim area that lies within the Northern Territory (‘the NT claim area’). By para 4 of its orders, the Full Court set aside the orders, declarations and determination made by Lee J and, in lieu thereof, ordered that there be orders, declarations and a determination that reflected the reasons for judgment of the majority (Beaumont and von Doussa JJ) of the Full Court.

4                     The other appeal with which we are presently concerned, W 6020 of 1999, was brought by Cecil Ningarmara and others, claimants to the NT claim area. That appeal was dismissed by the Full Court.

5                     Pursuant to grants of special leave, four appeals against the Full Court’s orders were taken to the High Court. They included appeals in relation to the NT claim area by both the Attorney-General (P62 of 2000) and Cecil Ningarmara and others (P63 of 2000). In P62 of 2000, the Attorney-General contended that native title was extinguished over the portion of the NT claim area that is now within the Keep River National Park, by leases granted to the Conservation Land Corporation in order to establish the National Park. In P63 of 2000, Cecil Ningarmara and others challenged rulings by the Full Court concerning partial extinguishment of native title by reason of earlier pastoral leases over the NT claim area.

6                     After a hearing in March 2001, the High Court delivered judgment on 8 August 2002: see Western Australia v Ward [2002] HCA 28; 191 ALR 1. By majority, the Court held that the earlier pastoral leases did not totally extinguish native title in the NT claim area. The majority expressed views about the extent of extinguishment but felt unable, by reason of inadequate relevant factual findings, accurately to determine the native title rights and interests that were unaffected by the grant of the pastoral leases. In relation to the first issue, their Honours held that the leases to the Conservation Land Corporation did not extinguish whatever native title remained after the grant of the pastoral leases.

7                     Having regard to their views in regard to these issues, and the more numerous issues that arose in relation to that part of the claim area that was located in Western Australia (‘the WA claim area’), the High Court ordered (by majority) inter alia that para 4 of the Full Court’s orders, and the determination made by the Full Court, be set aside and the matters remitted to the Full Court for further hearing and determination.

8                     After this remittal, Beaumont, von Doussa and North JJ made directions in respect of the further hearing. However, before that hearing could take place, Beaumont J had to stand aside from the appeals on account of illness and von Doussa J retired from the Court in order to take up another appointment. Accordingly, the Chief Justice reconstituted the Court so as to comprise the present Bench.

9                     On 31 July 2003, we conducted a lengthy directions hearing. We were informed, amongst other things, that the parties had been attending settlement conferences conducted by Deputy Registrar Efthim. These had, apparently, progressed well (more so in relation to the NT claim area than the WA claim area), but it was too early to say whether full agreement would be reached. Accordingly, we made directions fixing a timetable for the amendment of any notice of appeal and the filing of contentions as to the extent of the issues falling for determination by the Full Court. We also fixed Tuesday, 30 September 2003 for the commencement of a hearing concerning those issues ‘and also any issues arising out of the Northern Territory claim’.

10                  In fact, the hearing commenced on Wednesday, 1 October 2003; the settlement conference was still proceeding on the Tuesday. We were asked to defer dealing with the issues concerning the WA claim area, pending further negotiations, but the parties wished us to deal with the outstanding issues in relation to the NT claim area; that is, appeals WAG 6296 of 1998 and W 6020 of 1999.

Form of the proposed determination

11                  The parties told us they had agreed on the form of a determination subject to some issues which they wished the Court to resolve. They handed to us a document containing proposed consent orders and a proposed determination. The proposed determination recites the history of the litigation and then proceeds as follows:

‘1. Native title exists in the areas of land and waters claimed in the Northern Territory (“the NT determination area”) and described in the Schedule.

2.                  The land and waters of the NT determination area are part of three estates, namely, the Damberal estate, the Bindjen estate and the Nyawamnyawam estate each of which estates is held by the members of the three respective estate groups, namely the Damberal estate group, the Bindjen estate group, and the Nyawamnyawam estate group, who, together with the Aboriginal people referred to in clause 4 below, are collectively referred to as “the native title holders”.

3.                  Each of the three estate groups referred to in clause 2 includes members by reason of patrilineal descent and matrifiliates, who are members by reason of descent from mother and mother’s father (djawidji), and persons adopted into such descent relationships (“the estate group members”).

4.                  In accordance with traditional laws and customs, other Aboriginal people have rights in respect of the land and waters of an estate which is not their own, subject to the rights and interests of the estate group members, including:

(a)               members of estate groups from neighbouring estates;

(b)               spouses of the estate group members; and

(c)               members of other estate groups with ritual authority.

5.                  Subject to clause 9, as at the date of this determination, the nature and extent of the native title rights and interests of the native title holders referred to in clause 3 hereof in relation to the NT determination area recognised by the common law are non-exclusive rights to occupy, use and enjoy the land and waters in accordance with their traditional laws and customs, including, as incidents of that entitlement:

(a)               the right to hunt on the land, to gather and use the natural resources of the land such as food, medicinal plants, wild tobacco, timber, stone and resin, and to have access to and use of natural water on the land;

(b)               the right to live on the land, to camp, to erect shelters, and to move about the land;

(c)               the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death;

(d)               the right to have access to, maintain and protect the sites of significance on the land of the NT determination area; and

(e)               the right to make decisions about the use and enjoyment of the NT determination area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders.

These native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.

6.                  Subject to clause 9, the nature and extent of the native title rights and interests held, in accordance with their traditional laws and customs, by the native title holders referred to in clause 4 hereof in relation to the NT determination area recognised by the common law include:

(a)               in relation to members of estate groups from neighbouring estates – rights of access to, and rights to hunt, fish and gather the natural resources on the land and waters of their neighbouring estate group members, subject to the permission, implied or express, of the relevant senior estate group members;

(b)               in relation to spouses of estate group members – rights of access to, and to hunt, fish and gather the natural resources on, the land and waters of their spouse’s estate; and

(c)               in relation to members of other estate groups who hold ritual authority – rights to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites associated with the travels of an ancestral being associated with a Dreaming which passes through the estates in the NT determination area.

These native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.

7A. There are no native title rights and interests in:

(a)               minerals (as defined in the Minerals Acquisition Act (NT));

(b)               petroleum (as defined in the Petroleum Act 1984 (NT));and

(c)                prescribed substances (as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or Atomic Energy Act 1953 (Cth));

in the NT determination area.

7B. Notwithstanding anything in this determination, there are no exclusive native title rights and interests in flowing and subterranean waters.

 

8.                 The nature and extent of other interests in relation to the NT determination area are the interests created by the Crown or otherwise, as follows:

(a)              in relation to Northern Territory Portion 3541 (Policeman’s Hole), the interests of the Nyawamnyawam Dawang Aboriginal Corporation under its fee simple estate granted on 18 December 1990;

(b)              in relation to Northern Territory Portion 3542 (Bucket Springs), the interests of the Binjen Ningguwung Aboriginal Corporation under its fee simple estate granted on 18 December 1990;

(c)              in relation to Northern Territory Portion 3863 (Bubble Bubble), the interests of the Dumbral Aboriginal Community Association under its fee simple estate granted on 4 October 1993;

(d)              in relation to Northern Territory Portions 1801 and 3121:

(i)                  the interest of the Conservation Land Corporation under Special Purposes Lease 475 and Crown Lease Perpetual 581; and

(ii)                the interests of the Parks and Wildlife Commission of the Northern Territory pursuant to its functions and powers of management and control of these areas under the Parks and Wildlife Conservation Act (and subsidiary legislation, and including under any Plan of Management in force in relation to these areas from time to time) and the Parks and Wildlife Commission Act, including interests in any buildings, works or other structures constructed or established by the Commission within these areas;

(e) in relation to Northern Territory Portions 1801 and 3121, the interests of members of the public arising from rights of access to and use of these areas as a national park, subject to any statutory limitations upon these rights including those under the Northern Territory Aboriginal Sacred Sites Act;

(f)               in relation to the NT determination area, the interests of Telstra Corporation Limited, including:

(i) rights and interests as the owner or operator of telecommunications facilities installed within the NT determination area, including customer radio terminals and overhead and underground cabling;

(ii) rights and interests 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); and

(iii) rights of access by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in and in the vicinity of the NT determination area in the performance of their duties.

9. In relation to the parts of the NT determination area identified as:

(a)               the whole of NT Portion 3541 (Policeman’s Hole);

(b)               the whole of NT Portion 3542 (Bucket Springs); and

(c)                the whole of NT Portion 3863 (Bubble Bubble);

the rights of the native title holders are an entitlement to possession, occupation, use and enjoyment of those parts of the NT determination area to the exclusion of all others.

10.         In relation to those parts of the NT determination area other than the portions identified in clause 9 above, the rights of the native title holders (identified in s. 122 of the Territory Parks and Wildlife Conservation Act and the Northern Territory Aboriginal Sacred Sites Act):

(a) to use the land or waters for hunting and gathering of food for domestic purposes;

(b) to use the land or waters for ceremonial and religious purposes;

(c) to be present on the land for the purpose of conducting such activities; and

(d) to take appropriate steps to protect sacred sites from damage, disturbance or interference;

continue to be enjoyed, and, subject to the principle of reasonable use, may be exercised notwithstanding the interests referred to in clause 8 above, but are not exclusive of the rights of others.

11. Subject to clause 10, the rights and interests of the persons referred to in clause 8(d) are wholly inconsistent with the native title rights and interests (other than the right referred to in clause 5(e)), but do not extinguish them. During the currency of the interests referred to in clause 8(d), the native title rights and interests (other than the right referred to in clause 5(e)) have no effect in relation to the rights and interests referred to in clause 8(d). If the interests referred to in clause 8(d) are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have full effect, wholly or partly as appropriate.

12. To the extent, if at all, that the exercise of the native title right referred to in clause 5(e) conflicts with the exercise of the rights and interests of the persons referred to in clauses 8(d) and (e), the rights and interests of the persons referred to in clauses 8(d) and (e) prevail over, but do not extinguish, the native title rights referred to in clause 5(e).

13. To the extent that the rights and interests of the persons referred to in clause 8(a), (b), (c) and (e) are inconsistent with the native title rights and interests, the native title rights and interests have no effect during the currency of, but are not extinguished by, the interests referred to in clause 8(a), (b), (c) and (e). If the interests referred to in clause 8(a), (b), (c) and (e) are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have full effect, wholly or partly as appropriate.

14. To the extent, if at all, that the native title rights and interests are inconsistent with the rights and interests of Telstra Corporation Limited referred to in clause 8(f), the rights and interests of Telstra Corporation Limited will prevail over, but will not extinguish, the native title rights and interests.

15. The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory and the Commonwealth.’

12                  The Schedule to the document identifies the ‘NT determination area’ by reference to the numbers of its five constituent Portions and states the area is that which is outlined on an attached map. That map shows almost all of the area is located in Keep River National Park. The remainder comprises three comparatively small areas which are, apparently, Aboriginal community living areas granted in freehold.

13                  Counsel identified seven issues in relation to the form of the determination. As we understand the position, the parties are agreed that there should be a determination in the proposed form but subject to such amendments as we may think appropriate in relation to the seven identified issues. We will deal with each of those issues separately.

Identification of native title holders

14                  Clauses 2 and 3 of the proposed determination identify as primary native title holders the members of three estates, the Damberal estate, the Bindjen estate and the Nyawamnyawam estate. Clause 4 states that ‘other Aboriginal people’ have rights subject to the interests of the estate group members. Those people (‘the secondary native title holders’) are identified in sub-clauses (a), (b) and (c). However, because of the word ‘including’ immediately before those three sub-clauses, this is not presented as an exhaustive identification of secondary native title holders. A determination in this form leaves open the possibility of there being other, unidentified, secondary native title holders. Counsel for the Commonwealth of Australia and the State of Western Australia argue the result is a failure to comply with the description of ‘determination of native title’ in s 225 of the Act. That section relevantly provides:

‘A determination of native titleis a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease —whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’ (Original highlighting)

15                  It will be noted that para (a) of s 225 requires determination of ‘the persons, or each group of persons, holding the common or group rights comprising the native title’. It is not necessary to identify the native title holders by name; it is sufficient that the persons be members of an identified group or groups. Clauses 2 and 3 of the proposed determination proceed on that basis. No issue is raised about them. However, clause 4 leaves open the possibility that there are native title holders who are neither members of an estate group identified in clause 2 or of a secondary group identified in sub-clause (a), (b) or (c) of clause 4. We agree with counsel that this is impermissible. Clause 4 should be turned into an exhaustive identification of secondary native title holders. This can be effected by omitting the word ‘including’ and substituting ‘such people being’. We propose to make that amendment. We point out that a determination may be varied: see s 13(5) of the Act. This would allow the addition of other native title holders if this subsequently appeared to be appropriate.

Statement of holders’ rights

16                  The opening words of clause 5 of the proposed determination identify the native title holders’ rights as being ‘non-exclusive rights to occupy, use and enjoy the land and waters in accordance with their traditional laws and customs, including, as incidents of that entitlement’ certain identified rights. Counsel for the Commonwealth and the State of Western Australia argue for two changes to these words: the omission of the word ‘occupy’ and the substitution of ‘being’ for the words ‘including, as incidents of that entitlement’. These changes are resisted by counsel for the claimants, Mr J Basten QC.

17                  As was pointed out by Gleeson CJ, Gaudron, Gummow and Hayne JJ in the High Court (at [89]), the expression ‘possession, occupation, use and enjoyment’, used in s 225(e) of the Act, ‘is a composite expression directed to describing a particular measure of control over access to land’. The words of the proposed determination, ‘occupy, use and enjoy’ are not identical to, but are reminiscent of, this composite expression. They might be understood as conveying the notion discussed by their Honours, including control of access. This would be inappropriate in this case. The right of absolute control of access must have been extinguished by the grant of the pastoral leases. There might be a surviving right to make decisions, pursuant to Aboriginal laws and custom, about the use and enjoyment of the land by Aboriginal people. That right would not be affected by the grant of a pastoral lease. However, that matter is specifically addressed by sub-para (e) of para 5. We think the word ‘occupy’ should be omitted from the opening words of para 5.

18                  The argument for an exhaustive, rather than inclusive, list of the incidents of the entitlement is based on para (b) of s 225 of the Act. That paragraph requires ‘a determination of … the nature and extent of the native title rights and interests in relation to the determination area’.

19                  In their High Court joint judgment, Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at [51]):

‘A determination of native title must comply with the requirements of s 225. In particular, it must state the natureand extentof the native title rights and interests in relation to the determination area. Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.’ (Original emphasis)

20                  Mr Basten argues that s 225(b) is satisfied by the reference in clause 5 of the proposed determination to ‘non-exclusive rights to occupy, use and enjoy the land and waters in accordance with their traditional laws and customs’. He says this is the required specification of the nature and extent of the rights and interests; sub-clause (a) to (e) merely identify some incidents of those rights and interests.

21                  We cannot agree with this approach. A statement about the right to ‘occupy, use and enjoy’ (or merely ‘use and enjoy’) in accordance with traditional laws and customs conveys no information as to the nature and extent of the relevant rights and interests. It is equivalent to a statement that the holders of the traditional rights and interests are entitled to exercise their traditional rights and interests. Something more is obviously required. There must be a specification of the content of the relevant rights and interests. That is why the parties included sub-clauses (a) to (e). It is to those sub-clauses that a reader may look in considering the effect of the determination. They must exhaustively indicate the determined incidents of the right to use and enjoy.

22                  Mr Basten protested that his clients had not had an opportunity to consider whether any other incidents should be indicated, if the list was to be made exhaustive. We accepted it was reasonable for them to have this opportunity. After we reached the conclusion that the list should be exhaustive we advised Mr Basten, and the representatives of the other parties, of our view. We invited Mr Basten to indicate whether his clients wished to add to the list. He indicated they did not, but suggested the formula ‘and, as incidents of that entitlement’. However, that formula is essentially the same as that rejected by us. We think it is preferable to use the word ‘being’. We pointed out, once again, that s 13(5) would be available if needed.

23                  The opening words of clause 5 of the prepared determination should be amended in the manner argued by counsel for the Commonwealth and the State of Western Australia.

The right to ‘protect’ sites

24                  Sub-clause (d) of clause 5 refers to the holders’ ‘right to have access to, maintain and protect the sites of significance on the land’. Counsel for the Commonwealth argues for the omission of the word ‘protect’. He says this word would give the holders an entitlement to exclude others from the land.

25                  We do not agree. The notion of protection of significant Aboriginal sites is well understood. It may involve physical activities on the site to prevent its destruction, but it also extends to control of ceremonial activities. Particularly having regard to the existence of sub-clause (e), we do not think the words would be read as implying a general control of access.

Decisions about Aboriginal use and enjoyment of the determination area

26                  Mr J D Allanson, counsel for the Commonwealth of Australia, argues that sub-clause (e) of clause 5 should be omitted from the determination. The Commonwealth is an intervener in both the appeals that are before us. Counsel for the State of Western Australia supports that argument.

27                  The argument is that the right to make decisions about the use and enjoyment of the area cannot be recognised because the right to control access was extinguished by the grant of the pastoral leases. However, there is a clear distinction between a right to control access, generally and as a matter of law, and a right to make decisions about the use and enjoyment of land by Aboriginal people who will recognise those decisions and observe them pursuant to their traditional laws and customs. The continued existence of the former right is incompatible with a pastoral lease entitling the pastoral lessee to determine who has access to the land; the latter right is not. We think sub-clause (e) should remain.

Rights and interests subject to traditional laws and customs

28                  Mr Allanson points out that native title rights and interests are possessed under traditional Aboriginal laws and customs. He recognises that clause 5 refers to ‘non-exclusive rights to occupy, use and enjoy the land and waters in accordance with their traditional laws and customs’. However, he argues that any sufficient and accurate description of the rights and interests requires that the determination state those rights and interests are ‘subject to and exercisable in accordance with traditional law and custom’.

29                  We see no merit in this point. The present draft makes plain that the nature and extent of the activities that may be undertaken as incidents of the relevant native title rights and interests is governed by the native title holders’ traditional laws and customs.

Use of ‘include’ in clause 6

30                  Counsel argue that the opening words of clause 6 should be amended by substituting the word ‘are’ for ‘include’. The argument is that, otherwise, the nature and extent of the native title rights and interests is not stated in the determination. The argument is the same as that put in relation to ‘including’ in the opening words of clause 5. For the reasons we indicated in relation to that clause, we agree it is necessary to have an exhaustive identification of the relevant rights. The word ‘include’ should be deleted and ‘are’ substituted.

The right to water

31                  Clause 7B of the proposed determination states that, notwithstanding anything in the determination, ‘there are no exclusive native title rights and interests in flowing and subterranean waters’. The substance of this clause is uncontroversial; all parties accept that the native title holders cannot obtain exclusive water rights. However, it is argued that the provision fits awkwardly into this position. It is suggested that the substance of the clause should be added as a proviso to clause 9, which gives exclusive rights over the three Aboriginal freehold areas, or deleted altogether, relying on the general override in clause 15.

32                  It would be possible to delete the material set out in clause 7B and rely entirely on clause 15. However, in order to avoid any possible dispute, it seems preferable to make explicit reference to water. We propose to delete clause 7B but add to clause 9 the words ‘provided, however, that rights and interests in flowing and subterranean waters are non-exclusive’.

Disposition

33                  We will make orders (including a determination of native title) in the form agreed by the parties, but subject to some re-arrangement in structure and amended in accordance with the rulings set out above.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 9 December 2003

WAG 6296 of 1998
Counsel for the appellant:	Mr T Pauling QC, Ms S Brownhill
Solicitor for the appellant:	Solicitor-General for the Northern Territory
Counsel for the first and third respondents:	Mr R Blowes, Ms E Lacey
Solicitor for the first and third respondents:	Mr I Irving
Counsel for the second respondent:	Mr J Basten QC
Solicitor for the second respondent:	Mr R Levy
Counsel for the Commonwealth of Australia:	Mr J Allanson
Solicitor for the Commonwealth of Australia:	Australian Government Solicitor
Counsel for the State of Western Australia:	Mr K Pettit SC, Mr S Wright
Solicitor for the State of Western Australia:	Crown Solicitor for the State of Western Australia
Counsel for Argyle Diamond Mines Pty Ltd:	Mr K Jagger
Solicitor for Argyle Diamond Mines Pty Ltd:	Freehills
Counsel for Crosswalk Pty Ltd and Carlton
Carlton Hill Pty Ltd:	Mr M McKenna
Solicitor for Crosswalk Pty Ltd and Carlton Hill Pty Ltd:	Hunt & Humphry
W 6020 of 1999
Counsel for the appellant:	Mr J Basten QC
Solicitor for the appellant:	Mr I Irving
Counsel for the first respondent:	Mr T Pauling QC, Ms S Brownhill
Solicitor for the first respondent:	Solicitor-General for the Northern Territory
Counsel for the second respondent:	Mr K Pettit SC, Mr S Wright
Solicitor for the second respondent:	Crown Solicitor for the State of Western Australia
Date of hearing:	1 October 2003
Date of judgment:	9 December 2003

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

On Remitter from the High Court in P59; P62; P63 and P67 of 2000

B E T W E E N:

THE STATE OF WESTERN AUSTRALIA v BEN WARD & ORS

WAG 6293 of 1998

CROSSWALK PTY LTD & ANOR v BEN WARD & ORS

WAG 6292 of 1998

ALLIGATOR AIRWAYS PTY LTD v BEN WARD & ORS

WAG 6294 of 1998

ARGYLE DIAMOND MINES PTY LTD & ORS v BEN WARD & ORS

WAG 6295 of 1998

ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY v BEN WARD & ORS

WAG 6296 of 1998

CECIL NINGAMARA & ORS v NORTHERN TERRITORY

W 6020 of 1999

 

ORDER

 

JUDGES: WILCOX, NORTH AND WEINBERG JJ

 

DATE OF ORDER: 9 DECEMBER 2003

 

WHERE MADE: KUNUNURRA

THE COURT ORDERS BY CONSENT THAT:

(1) Appeals WAG 6292 of 1998, 6293 of 1998, 6294 of 1998 and 6295 of 1998 be allowed.

(2) The determination of native title made by Lee J on 24 November 1998 be set aside to the extent that it relates to land and waters in Western Australia.

(3) The order as to costs of the trial made by Lee J on 6 May 1999 be set aside and in lieu thereof there be no order as to costs.

(4) There be a determination of native title in the terms set out below (the determination), the determination to take effect:

(a) as to paragraph 3 of the determination – immediately upon the making of these Orders; and

(b) as to the balance of the determination – immediately upon the making of a determination under section 57(2) of the Native Title Act 1993 (Cth)in accordance with orders (6) or (7).

(5) Upon the determination taking effect, native title is not held in trust but is held by the common law holders of native title being the persons referred to in paragraph 8 of the determination.

(6) Within twelve months of the date of this order, the Applicants in WAG 6001 of 1995 and WAG 6027 of 1998 are to file and serve a notice nominating a prescribed body corporate to:

(a)      be the prescribed body corporate for the purposes of section 57(2) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in section 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

(7) In the event that there is no nomination within the time specified in accordance with order (6) or such later time as this Court may order, the matter is to be listed for further directions.

(8) There be no order as to costs in appeals WAG 6292 of 1998, 6293 of 1998, 6294 of 1998 and 6295 of 1998, both before and after the proceedings in the High Court in P59; P62; P63 and P67 of 2000.

(9) Leave is given for the applicants in WAG 6001 of 1995 to discontinue the application insofar as it relates to land and waters west of the J7 Line (as defined in the determination).

 

AND THE COURT DECLARES THAT:

(10) The applications WAG 6001 of 1995 and WAG 6027 of 1998 are not finalised, within the meaning of section 190(4)(e) Native Title Act 1993 (Cth), in respect of the land and waters the subject of paragraph 2 of the determination, until a prescribed body corporate has been determined, in accordance with section 57(2) Native Title Act 1993 (Cth), to perform the functions mentioned in subsection 57(3) of that Act.

DATED: _____________________________

DEPUTY DISTRICT REGISTRAR

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONSENT DETERMINATION OF NATIVE TITLE

IN RESPECT OF LAND AND WATERS

IN WESTERN AUSTRALIA

 

DETERMINATION

The Court Notes:

 

A. On 6 April 1994 Ben Ward and other Aboriginal people (the First Applicants) lodged an application for determination of native title on behalf of the Miriuwung and Gajerrong peoples (the application). The area covered by the application is approximately 7,900 square kilometres of land and waters in the north east of the State of Western Australia including Boorroongoong (Lacrosse Island); and in the north west of the Northern Territory of Australia (Claim Area). The Claim Area is identified in Schedule 1.

B. In the course of the proceedings in the Federal Court at first instance (the proceeding), Cecil Ningarmara and other Aboriginal people who claimed an interest in the Claim Area in the Northern Territory became the Second Applicants in the proceeding (Second Applicants).

C. On 24 July 1995 an application for determination of native title was made by Delores Cheinmora and other Aboriginal people on behalf of the Balanggarra people. The area covered by that application overlapped with that of the First Applicants' application in respect only of Boorroongoong (Lacrosse Island). To the extent of the area of overlap, it was ordered that the applications be heard together and that the applicants in respect of that overlapping application become the Third Applicants in the proceeding (Third Applicants).

D. On 24 November 1998, following a lengthy trial, his Honour Lee J handed down judgment and made a determination that native title existed in relation to the whole of the Claim Area other than an area west of a line known as the J7 line (J7 Line) and certain parcels of land and waters in respect of which he found native title had been wholly extinguished. The J7 Line is identified in Schedule 1.

E. Some of the parties before the trial judge appealed to the Full Court of the Federal Court, which handed down judgment in relation to the various appeals on 3 March 2000. The Full Court set aside the determination of Lee J and substituted its own determination of native title dated 11 May 2000.

F. Pursuant to special leave granted by the High Court of Australia on 3 March 2000 certain matters were taken on appeal to that Court. The High Court delivered its judgment on 8 August 2002. The High Court set aside the determination of the Full Court of the Federal Court and remitted the matters for further hearing and determination by the Full Court.

G. The parties have reached an agreement as to the terms of a determination of native title to be made in relation to the land and waters within the Claim Area in Western Australia.

H. The parties have agreed to make an application to the Court for a determination of native title in relation to the land and waters of the Claim Area in Western Australia, but not including land and waters west of the J7 Line (Determination Area). The Determination Area is identified in Schedule 1.

I. The parties accept that the effect of the determination is that the people referred to in paragraph 8, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the native title holders for that part of the Determination Area where native title is determined to exist.

J. No nomination pursuant to section 56(2) of the Native Title Act 1993 (Cth) in regard to the holding of native title in trust has been made.

K. The parties consent to the making of the determination without prejudice to any assertion or denial of native title rights and interests, and to any determination as to who holds native title, in relation to any land and waters other than those described in Schedule 1. In particular, the determination in favour of the Balangarra reflects the finding made by his Honour Lee J at trial, and the judgment of the Full Court of the Federal Court handed down on 3 March 2000, in relation to Boorroongoong (Lacrosse Island). The parties’ consent to the determination is not an admission in relation to whether native title exists in the balance of application WAG 6027 of 1998, and if so, who holds it.

 

Being satisfied that the determination of native title in the terms sought by the parties is within the power of the Court, and it appearing to the Court to be appropriate to do so, and by consent:

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title

1. The Determination Area is the land and waters described in Schedule 1.

2. Native title exists in those parts of the Determination Area identified in Schedule 2 (Native Title Area).

3. Native title does not exist in those parts of the Determination Area identified in Schedule 3.

 

Native title holders

 

4. The Native Title Area comprises countries or parts of countries variously identified as Miriuwung, Yirralalem, Ngamoowalem, Wiram, Yardanggarlm, Nganalam Mandangala, Gajerrong, Doolboong, Wardenybeng, Gija, and in respect of Boorroongoong (Lacrosse Island), also as Balangarra.

5. Each of Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija is a group and country identified with a language or dialect. Membership of the groups is by descent from a person who is also identified with such language or dialect and country or by adoption by such a person, in accordance with traditional laws and customs. Persons identified with such language or dialect and country include those described in Schedule 5.

6. Each of Yirralalem, Ngamoowalem, Wiram, Yardanggarlm, Nganalam and Mandangala is a Miriuwung group and country. Membership of the groups is by patrilineal descent, or descent from mother or mother’s father orby adoption into such relationships, in accordance with traditional law and custom.

7. Balangarra is a group identified with Boorroongoong (Lacrosse Island). The Balangarra are described in Schedule 5.

 

8. The native title holders in respect of the Native Title Areas are:

(a) in respect of the land and waters referred to in paragraphs (4), (6) and (8) of Schedule 2:

(i) Aboriginal persons referred to in paragraph 5 above who identify themselves as Gajerrong, or as Doolboong or Wardenybeng, under traditional law and custom, and who are so identified by other members of the respective Gajerrong, Doolboong and Wardenybeng groups; and

(ii) other Aboriginal persons who are acknowledged by the respective Gajerrong, Doolboong and Wardenybeng groups as having rights in that country through descent, marriage, spiritual conception, birth or responsibility for sites of significance;

(b) in respect of the land and waters referred to in paragraphs (2), (3) and (9) of Schedule 2:

(i) Aboriginal persons referred to in paragraphs 5 and 6 above who identify themselves as Miriuwung under traditional law and custom, and who are so identified by other members of the respective Miriuwung groups; and

(ii) other Aboriginal persons who are acknowledged by the respective Miriuwung groups as having rights in that country through descent, membership of other Miriuwung groups, marriage, spiritual conception, birth or responsibility for sites of significance;

(c) in respect of the land and waters referred to in paragraph (1) of Schedule 2 (Glen Hill):

(i) Aboriginal persons referred to in paragraphs 5 and 6 above who identify themselves as members of the Mandangala Miriuwung group, or Gija, under traditional law and custom, and who are so identified by other members of the Mandangala Miriuwung group and members of the Gija group; and

(ii) other Aboriginal persons who are acknowledged by the Mandangala Miriuwung group and the Gija group as having rights in that country through descent, membership of other Miriuwung groups, marriage, spiritual conception, birth or responsibility for sites of significance; and

(d) in respect of the land and waters referred to in paragraphs (5) and (7) of Schedule 2:

(i) the persons identified in paragraph 8(a) above; and

(ii) Aboriginal persons referred to in paragraph 7 above who identify themselves as Balangarra and who are so identified by other members of the Balangarra group.

The nature and extent of native title rights and interests

9. Subject to paragraphs 10 to 13 inclusive, the native title rights and interests which exist in the Native Title Area are as follows:

 

9.1 In relation to the land and waters referred to in paragraphs (1), (2), (3), (5) and (6) of Schedule 2, the native title is a right in accordance with traditional laws and customs to possession, occupation, use and enjoyment to the exclusion of all others.

9.2 In relation to the land and waters referred to in paragraphs (4), (7), (8) and (9) of Schedule 2, non-exclusive rights to occupy, use and enjoy the land and waters in accordance with traditional laws and customs as follows:

(a) the right of access to the land and waters;

(b) the right to take fauna from the land and waters;

(c) the right to take fish from the waters;

(d) the right to take flora from the land and waters;

(e) the right to take other natural resources of the land such as ochre, stones, soils, wood and resin;

(f) the right to enter and remain on the land and waters;

(g) the right to take water;

(h) the right to engage in cultural activities on the land and waters, including to conduct ceremonies; and

(i) the right to care for and maintain sites and areas that are of significance to the native title holders under their traditional laws and customs.

These native title rights and interests do not confer possession, occupation, use and enjoyment of those land and waters on the native title holders to the exclusion of others.

 

10. Notwithstanding anything in the determination, there are no native title rights and interests in or in relation to:

(a) minerals as defined in the Mining Act 1904 (WA) (including such ochres and stonesas are minerals), or in the Mining Act 1978 (WA) as in force at the date of the determination; or

 

(b) petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA) as in force at the date of the determination.

 

11. There are no exclusive native title rights in or to flowing or subterranean water in the Determination Area.

12. There is no native title right to hunt fauna or to gather plants within 800 metres of Lake Kununurra or of Lake Argyle.

 

13. The native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth, and the common law.

 

The nature and extent of any other interests

 

14. The nature and extent of other interests in relation to the Native Title Area are the following, as they exist as at the date of the determination:

 

(a) the interests of the holder of the pastoral lease listed in paragraph (1) of Schedule 4;

 

(b) the interests of persons in whom the reserves listed in paragraph (2) and (3) of Schedule 4 are vested and of persons who have the care, control and management of the reserves, and interests of persons entitled to access and use those reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights, and interests of persons in the leases of reserves listed in paragraph (4) of Schedule 4;

(c) the interests of the holders of the mining and petroleum tenements listed in paragraphs (5) and (6) of Schedule 4 including the interests of those holders in statutory rights of access to such tenements;

(d) the interests of the holder of the licences described in paragraph (7) of Schedule 4;

 

(e) the interests of holders of the permits described in paragraph (8) of Schedule 4;

 

(f) the interests of the Crown, Water Corporation and the local government in the enforcement of, and the exercise of rights and responsibilities under, the by-laws listed in paragraph (9) of Schedule 4;

 

(g) the public right to fish in tidal waters;

 

(h) the public right to navigate in tidal waters;

 

(i) the interests of persons to whom valid and validated rights and interests have been granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;

 

(j) the right to access land by an employee or agent or instrumentality of the State, Commonwealth or any local government or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;

 

(k) the interest of the Crown, or any other person having responsibility from time to time for the operation or maintenance of the Ord Irrigation Project or any part of it, in the operation and maintenance of the "Works" (as defined in the Rights in Water and Irrigation Act 1914 (WA)) which form part of the Ord Irrigation Project as at the date of the determination;

(l) so far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at 5 May 1999, public access to and enjoyment of:

(i) waterways;

(ii) beds and banks or foreshores of waterways;

(iii) coastal waters;

(iv) beaches;

(v) areas that were public places at the end of 31 December 1993;

 

(m) public access to all tracks and roads shown on the maps attached to Schedule 1 (except those referred to in paragraph (4) of Schedule 3);

 

(n) the interests of Telstra Corporation Limited, being:

(i) rights and interests as the owner or operator of telecommunications facilities within the Native Title Area, including customer radio terminals and overhead and underground cabling;

(ii) rights and interests 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); and

(iii) rights of access by employees, agents or contractors of Telstra Corporation Limited to its facilities in or surrounded by the Native Title Area in the performance of their duties;

(o)   any interests of the Crown in any capacity, or of any statutory authority, in any works referred to in paragraph (3) of Schedule 3 which were constructed or commenced to be constructed or used on any area referred to in paragraph (2) or (3) of Schedule 2, including the works listed in Schedule 4; and

(p)   the rights of access to King location 813 (formerly known as King location 230) under the lease dated 1 December 2000 from the State of Western Australia to the Australian Maritime Safety Authority.

Relationship between native title rights and other interests

 

15. The relationship between the native title rights and interests in the Native Title Area and the other rights and interests referred to in paragraph 14 (other interests) is that:

(a) in relation to the other interests referred to in paragraph 14(a)-(f), (i)-(k), (m), (n) and (p) – 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, and the existence and exercise of the native title rights and interests does not prevent the doing of the activity;

(b) in relation to the other interests referred to in paragraph 14(a)-(f), (i), (o)and (p) – to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its 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 those other interests. If those other interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have full effect, wholly or partly as the case may be;

(c) in relation to the other interests referred to in paragraphs 14(g), (h) and (l) – those rights co-exist with the native title rights and interests; and

(d) in relation to the other interests referred to in paragraph 14(o) – the determination does not affect those interests.

SCHEDULE 1

CLAIM AREA, DETERMINATION AREA AND THE J7 LINE

 

 

The Claim Area comprises the Determination Area, together with the land and waters which lie to the west of the J7 Line and which are hatched in blue on the maps.

 

The Determination Area comprises all of the land and waters within the external boundaries described in Annexure 2 to this schedule and generally shown as bordered in dark green on the maps which are Annexure 1 to this schedule (the maps).

 

The J7 Line is the line marked “J7” on the maps in the north west of the Claim Area.

 

 

Note: the map references given in the tables in the Schedules are for ease of reference only and do not form part of the Determination.

 

Note: a reference in this Determination to an Area No. is a reference to a part of the Determination Area as defined under the heading "Area No Description" in Annexure 2 to this schedule and as generally shown on the maps.

SCHEDULE 1 - ANNEXURE 2

 

EXTERNAL BOUNDARY DESCRIPTION

 

Portion A

All that land and water comprised in Pastoral Lease 3114/425 (Glen Hill), being King Location 701.

Portion B

 

All that land and water commencing from the intersection of the northernmost northern boundary of King Location 618 with the northernmost western boundary of Location 380 (Reserve 31165) and extending southerly, easterly, generally southerly and again easterly along boundaries of that location to the southernmost southwestern corner of Luman Location 12 (Reserve 31165); Thence easterly and northerly along boundaries of that location to a southern boundary of King Location 374 (Reserve 31165); Thence easterly, generally northerly and again easterly along boundaries of that location to the eastern boundary of Western Australian; Thence northerly along that boundary to the prolongation easterly of the southernmost southern boundary of the eastern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 711; Thence westerly to and along the southern boundary of that location to the eastern boundary of Location 588; Thence southerly, generally southwesterly, westerly and northeasterly along boundaries of that location to a southeastern corner of the eastern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 711; Thence westerly and northerly along boundaries of that location to the eastern boundary of Location 469; Thence generally southwesterly along boundaries of that location to an eastern side of Crossing Falls Road reserve; Thence southerly, southwesterly, northwesterly and northerly along sides of that road reserve to a southern side of Perch Crescent; Thence southwesterly and northwesterly along sides of that crescent to the easternmost corner of Location 451; Thence southwesterly, westerly, northwesterly and northeasterly along sides of that location and to the westernmost western corner of Location 452; Thence generally northeasterly along the western boundary of that location and continuing along the western boundary of Location 453 and the western and northern boundaries of Location 454 to a southwestern corner of Cherubin Road reserve; Thence northerly, easterly, southeasterly and northeasterly along sides of that road reserve to a western side of Crossing Falls Road reserve; Thence generally northeasterly along sides of that road reserve to a western boundary of the eastern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 711; Thence northerly along the western boundary of that location to the northernmost southwestern corner of Location 720 (Reserve 42304); Thence northerly along the western boundary of that location to a southwestern corner of the eastern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 711; Thence northerly along the western boundary of that location to the southwestern corner of Location 448 (Reserve 31780); Thence easterly and northerly along boundaries of that location to a southern side of Old Darwin Road reserve; Thence westerly, northerly, northwesterly, southwesterly and again northwesterly along sides of that road reserve to the easternmost eastern corner of Location 707 (Reserve 30290); Thence westerly and generally southerly along boundaries of that location to Latitude 15.812501 South; Thence southwesterly, generally northerly, generally northeasterly and generally southeasterly through the following co- ordinate positions:

LATITUDE (SOUTH)	LONGITUDE (EAST)
15.814674	128.744284
15.812743	128.743801
15.811846	128.743660
15.810760	128.743566
15.809721	128.743471
15.808352	128.743330
15.807219	128.743235
15.806606	128.743377
15.805851	128.743613
15.805378	128.743943
15.804954	128.744321
15.804670	128.744745
15.804434	128.745217
15.804293	128.745878
15.804293	128.746491
15.804387	128.746963
15.804623	128.747482
15.804954	128.748095

Thence southeasterly to a western side of Old Darwin Road reserve at Latitude 15.805096 East; Thence northwesterly along the western side of that road reserve to a southern boundary of Kununurra Town Lot 1519; Thence southwesterly, northwesterly, again southwesterly and again northwesterly along boundaries of that town lot to a southern side of Victoria Highway road reserve; Thence generally westerly along sides of that highway road reserve to a southeastern side of Lakeview Drive; Thence southwesterly along the southeastern side of that drive to the northernmost northern corner of Location 274; Thence southeasterly along the northern boundary of that location to the westernmost corner of Location 441, being a southwestern corner of a severance of Location 667 (Reserve 41812); Thence northeasterly, southeasterly, southerly, westerly, again northeasterly, northwesterly and generally southwesterly along boundaries of that severance to its westernmost northwestern corner; Thence southwesterly to the easternmost northeastern corner of a severance of King Location 667 (Reserve 41812); Thence westerly and northwesterly along northern boundaries of that severance to the easternmost corner of Location 734 (Reserve 29167); Thence westerly and generally northeasterly along boundaries of that location to a southern side of Lakeview Drive; Thence generally northwesterly, generally southwesterly, westerly and northerly along southern and western sides of that drive to a northern side of Victoria Highway road reserve; Thence generally northeasterly along sides of that highway road reserve to a western side of Cyril Kleinig Drive; Thence northerly along the western side of that drive to the southeastern corner of Lot 313 as shown on Office of Titles Plan 21744; Thence westerly along the southern boundary of that lot to the southernmost southeastern corner of Location 327; Thence generally westerly along southern boundaries of that location to the southeastern corner of Location 735 (Reserve 41793); Thence westerly, northerly and easterly along boundaries of that location to a western boundary of Location 327; Thence northerly and northwesterly along boundaries of that location to the southeastern corner of Location 684; Thence northwesterly, northeasterly and southeasterly along boundaries of that location and continuing southeasterly along the northern boundary of Location 327 to the westernmost western corner of Location 317; Thence northeasterly along the western boundary of that location to a southwestern boundary of Location 697 (Reserve 37078); Thence northwesterly and northeasterly along boundaries of that location to the westernmost western corner of Location 572; Thence generally northeasterly along western boundaries of that location and generally northerly along western boundaries of Location 574 to a southwestern side of Ivanhoe Road reserve; Thence northwesterly along the southwestern side of that road reserve to the southeastern corner of Location 566; Thence southwesterly and northwesterly along boundaries of that location to the southeastern corner of Location 516; Thence southwesterly along the southern boundary of that lot to the easternmost eastern corner of Location 511; Thence generally southwesterly, northwesterly and northeasterly along boundaries of that location to the southeastern corner of Location 510; Thence westerly along the southern boundary of that location to a eastern corner of Location 483; Thence southerly and northwesterly along boundaries of that location to a southeastern corner of Location 221; Thence northwesterly along the southern boundary of that location and generally northwesterly along the southern boundaries of Locations 220 to 217 inclusive to the southeastern corner of Lot 1 as shown on Office of Titles Diagram 73470; Thence northwesterly along the southern boundary of that lot and the southern boundary of Lot 2 to the southeastern corner of Lot 22 as shown on Office of Titles Diagram 97610; Thence northwesterly along the southern boundary of that lot and the southern boundary of Lot 21 to the southeastern corner of Location 822; Thence northwesterly along the southern boundary of that location to the southeastern corner of Lot 11 as shown on Office of Titles Plan 37576; Thence northwesterly and northeasterly along boundaries of that lot to the southeastern boundary of Location 210; Thence northwesterly along the southern boundary of that location to the eastern boundary of Location 209; Thence southwesterly and northwesterly along boundaries of that location and generally northwesterly along the southern boundaries of Locations 208 to 206 inclusive and northwesterly and northeasterly along the southern and western boundaries of Location 205 to the southeastern corner of Location 389 (Reserve 31676); Thence generally northwesterly along southwestern boundaries of that location to the southwestern corner of Location 421 (Reserve 32852); Thence northwesterly along the southwestern boundary of that location to the southwestern corner of Location 420 (Reserve 32851); Thence generally northwesterly, northeasterly and southeasterly along boundaries of that location to a western corner of River Farm Road reserve; Thence northerly along the western side of that road reserve to the southern boundary of Location 591; Thence westerly, northwesterly and northeasterly along boundaries of that location to a northwestern corner of Location 245; Thence northeasterly along the northwestern boundary of that location to a northwestern corner of a Drain Reserve as shown on Department of Land Information Deposited Plan 209536; Thence northeasterly along the northwestern boundary of that drain reserve to a northwestern corner of Ivanhoe Road reserve; Thence northeasterly and southeasterly along sides of that road reserve to the westernmost corner of Location 649; Thence northeasterly along the northwestern boundary of that location to the southwestern boundary of Location 246; Thence northwesterly and northeasterly along boundaries of that location to a southern boundary of Location 227 (Reserve 38358); Thence southeasterly, northeasterly, northwesterly, northerly, again northeasterly, again northerly generally northwesterly, generally northeasterly, generally southeasterly, again generally northeasterly, generally northerly and northwesterly along boundaries of that location to a eastern corner of Location 203 (Reserve 22609); Thence southwesterly, northwesterly, again southwesterly, northerly and generally northwesterly along boundaries of that location to the southernmost southern corner of Location 228 (Reserve 22609); Thence generally northwesterly, northeasterly and southeasterly along boundaries of that location to a western side of Location 203 (Reserve 22609); Thence northeasterly and southeasterly along boundaries of that location to a northwestern corner of Location 831; Thence northeasterly along the northwestern boundary of that location to a southwestern corner of the southern severance of Location 254; Thence northwesterly along the southwestern boundary of that severance to its westernmost western corner; Thence northwesterly to the southernmost southern corner of the northwestern severance of Location 254 and continuing northwesterly, northeasterly and southeasterly along boundaries of that severance to the prolongation southwesterly of the northern boundary of the northeastern severance of Location 254; Thence northeasterly to and along the northern boundary of that severance to the southwestern boundary of Lot 4 as shown on Office of Titles Plan 18105; Thence northwesterly, northeasterly, again northwesterly and again northeasterly to the southwestern side of Research Station Road reserve; Thence northwesterly, northeasterly, generally northerly and generally easterly along western and northern sides of that road reserve to a western side of Carlton Hill Road reserve; Thence northwesterly and generally westerly along western and southern sides of that road reserve to the easternmost corner of Location 687; Thence southerly, southwesterly, westerly, generally northwesterly, northeasterly and again generally northwesterly to a eastern boundary of Pastoral Lease 3114/1175 (Carlton Hill), being Location 709; Thence southwesterly along the eastern boundary of that location to a northern boundary of the western severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 710; Thence southwesterly and generally southerly along boundaries of that location to the northernmost northern corner of Location 599; Thence generally southeasterly along boundaries of that location to a northwestern corner of Location 514 (Reserve 36951); Thence generally southeasterly and generally southwesterly along boundaries of that location to the northern boundary of the southern severance of Lot 102 as shown on Office of Titles Plan 31532; Thence southeasterly, southwesterly and northwesterly along boundaries of that severance to a southeastern corner of Location 719; Thence westerly and southwesterly along boundaries of that location to a northern side of Victoria Highway road reserve; Thence generally southeasterly, generally southerly, again generally southeasterly, southwesterly, southeasterly, easterly, southerly and westerly along sides of that highway road reserve to a eastern side of Packsaddle Road reserve; Thence generally southerly, generally easterly and southeasterly to a southwestern boundary of a Drain Reserve as shown on Department of Land Information Deposited Plan 213513; Thence northwesterly and northeasterly along boundaries of that reserve to the westernmost western corner of Location 383; Thence generally northeasterly, generally southeasterly and southwesterly along boundaries of that location to the eastern boundary of a Drain Reserve as shown on Department of Land Information Deposited Plan 213513; Thence southeasterly along the northeastern boundary of that reserve to the prolongation southwesterly of the northwestern boundary of the western severance of Location 482; Thence northeasterly to and along the northwestern boundary of that severance to the northwestern corner of Location 676 (Reserve 40143); Thence northeasterly along the northern boundary of that location to the northwestern corner of the eastern severance of Location 482; Thence northeasterly and southerly along boundaries of that severance to the northernmost corner of Lot 201 as shown on Office of Titles Diagram 97945; Thence southerly along the eastern boundary of that lot and continuing southerly along the eastern boundary of Lot 202 to the northernmost corner of Brolga Road reserve; Thence southerly along the eastern side of that road reserve to the northernmost corner of Location 479; Thence generally southerly and southwesterly along eastern boundaries of that location to the easternmost corner of Location 564; Thence southwesterly along the southeastern boundary of that location and continuing generally southwesterly along the southeastern boundaries of Locations 478, 477, 444 to 447 inclusive, 407 to 409 inclusive, 816, 412 and 413 to the northwestern corner of Location 619; Thence southwesterly, southerly, southwesterly, northwesterly and generally westerly along the boundaries of that location to its westernmost southwestern corner; Thence southwesterly to the northernmost northwestern corner of Location 752; Thence generally easterly and southeasterly along boundaries of that location to the northeastern corner of Location 753; Thence southwesterly, easterly and westerly along boundaries of that location to a eastern side of Packsaddle Road reserve; Thence southerly along the eastern side of that road reserve to the northwestern corner of Lot 11 as shown of Office of Titles Plan 21350; Thence easterly and southerly along boundaries of that lot and continuing southerly along the eastern boundary of Lot 12 to the northern boundary of Location 693; Thence easterly, southerly and westerly along boundaries of that location to the northeastern corner of Location 537; Thence southerly and southwesterly along boundaries of that location to the northeastern corner of Location 538; Thence southwesterly along the eastern boundary of that location to the northeastern corner of Location 868; Thence southeasterly and westerly along boundaries of that location to the southeastern corner of Location 539; Thence southerly along the prolongation of the eastern boundary of that location to a northern boundary of Location 541; Thence northeasterly and southeasterly along boundaries of that location to the northwestern corner of Location 542; Thence easterly along the northern boundary of that location to a western boundary of Location 543; Thence northerly and easterly along boundaries of that location to the northwestern corner of Location 750; Thence easterly along the northern boundary of that location to a western boundary of Location 545; Thence northerly, easterly and southerly along boundaries of that location to the northeastern corner of the parcel of Unallocated Crown Land as shown on Department of Land Information Deposited Plan 191142; Thence easterly along the northern boundary of that parcel to the western boundary of Location 872; Thence northerly, easterly and southerly along boundaries of that location to the northwestern corner of Location 548; Thence easterly along the northern boundary of that location to the northwestern corner of Location 549; Thence easterly along the northern boundary of that location to a western side of an unnamed Road reserve as shown on Department of Land Information Deposited Plan 214769; Thence generally northeasterly along sides of that road reserve to a western side of a Drain Reserve as shown on Department of Land Information Deposited Plan 213514; Thence northwesterly, generally northeasterly and southeasterly along boundaries of that drain reserve to a northwestern boundary of Location 512 (Reserve 35289); Thence generally southwesterly, generally southeasterly, generally westerly, generally northerly, generally northwesterly, northeasterly, southeasterly and again generally northerly along boundaries of that location to a southern side of Victoria Highway road reserve; Thence westerly, northwesterly, southwesterly, generally northwesterly, northeasterly, northerly, easterly and again generally northwesterly along sides of that highway road reserve to a eastern boundary of the western severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 710; Thence southerly, generally southwesterly, southeasterly, again southerly, westerly, generally southerly, generally southwesterly, southerly and again westerly along boundaries of that location to the easternmost northeastern corner of Pastoral Lease 3114/953 (Doon Doon), being Location 703; Thence southerly, westerly and again southerly along boundaries of that location to the northernmost northern boundary of Location 618 and thence easterly along the northern boundary of that location back to the commencement point.

Exclusions from Portion B:

All that land comprising King Location 633 (Reserve 39391)

All that land comprising King Location 718

All that land comprising King Location 729

All that land comprising King Locations 378, 381, 382, 394, 395, 396, 397, 398, 400, 418, 419 and 617 (Reserve 31887)

Portion C

All that land and water commencing from the easternmost corner of King Location 328 and extending northwesterly along the northeastern boundary of that location to the prolongation northeasterly of the southeastern boundary of Location 651; Thence southwesterly to and southwesterly, westerly and northwesterly along boundaries of that location to the southeastern boundary of Location 334 (Reserve 32446); Thence northeasterly, northwesterly, southwesterly and southeasterly along boundaries of that location to a northwestern boundary of Location 328; Thence southwesterly and southeasterly along boundaries of that location to the easternmost corner of Lot 14 as shown on Office of Titles Plan 16971; Thence generally southwesterly along boundaries of that lot to the northeastern corner of Lot 13 as shown on Office of Titles Plan 16971; Thence southwesterly along the eastern boundary of that lot to the northeastern corner of Lot 12 as shown on Office of Titles Plan 16971; Thence southwesterly and northwesterly along boundaries of that lot to the northeastern corner of Lot 11 as shown on Office of Titles Plan 16971; Thence southwesterly and northwesterly along boundaries of that lot to the eastern side of Weaber Plain Road reserve; Thence southwesterly along the eastern side of that road reserve to the northernmost corner of Lot 36 as shown on Office of Titles Diagram 85422; thence southeasterly along the northern boundary of that lot to the northernmost corner of Lot 40 as shown on Office of Titles Diagram 88016; Thence southeasterly, southwesterly and northwesterly along boundaries of that lot to the northeastern corner of Lot 44 as shown on Office of Titles Plan 20495; Thence southeasterly along the eastern boundary of that lot to the northeastern corner of Lot 45 as shown on Office of Titles Plan 20495; Thence southeasterly along the eastern boundary of that lot to the northeastern corner of Location 620; Thence southeasterly and westerly along boundaries of that location to the northeastern corner of Location 357; Thence southeasterly along the eastern boundary of that location and continuing generally southeasterly along the eastern boundaries of Locations 358 to 362 inclusive to the southeastern corner of the last mentioned location; Thence southwesterly along the southern boundary of that location to a southeastern corner of Cotton Gin Road reserve; Thence southwesterly along the southern side of that road reserve to a eastern side of Weaber Plain Road reserve; Thence southeasterly along the eastern side of that road reserve to the prolongation westerly of the northern boundary of Kununurra Town Lot 1636 (Reserve 37883); Thence easterly to the northernmost northwestern corner of that town lot; Thence southerly, generally southeasterly, generally southwesterly, again southerly, again southeasterly, generally easterly, generally northeasterly, easterly, again southerly and again easterly along boundaries of that town lot to the northeastern corner of Town Lot 1624; Thence southerly along the eastern boundary of that town lot to the northernmost northeastern corner of Dryandra Road reserve; Thence southerly along the eastern side of that road reserve to the northeastern corner of Town Lot 1634; Thence southerly along the eastern boundary of that town lot and continuing southwesterly along the eastern boundary of Town Lot 1488 to the northeastern corner of Wilga Place; Thence southwesterly along the eastern side of that place to the easternmost northeastern corner of Town Lot 2266; Thence southwesterly along the eastern boundary of that town lot and continuing southwesterly along the eastern boundary of Town Lot 1461 to the easternmost northeastern corner of Mallee Court; Thence southwesterly along the eastern side of that court to the easternmost northeastern corner of Town Lot 1441; Thence southwesterly along the eastern boundary of that town lot and continuing southwesterly along the eastern boundary of Town Lot 2398 to the easternmost northeastern corner of Barringtonia Avenue; Thence southwesterly and westerly along eastern and southern sides of that avenue to the easternmost northeastern corner of Town Lot 1425; Thence southerly, southwesterly and westerly along boundaries of that town lot to the northeastern corner of Town Lot 2231; Thence southwesterly and westerly along boundaries of that town lot to a eastern side of Boobialla Way; Thence southerly, southwesterly and westerly along sides of that way to the northeastern corner of Town Lot 1431; Thence southerly and westerly along boundaries of that town lot to the southeastern corner of Town Lot 1521; Thence westerly and southwesterly along boundaries of that town lot and continuing generally southwesterly along the southern boundaries of Town Lots 1428 and 1426 to the easternmost southeastern corner of Acacia Court; Thence southwesterly along a southern side of that court to the northeastern corner of Town Lot 1501; Thence southerly along the eastern boundary of that town lot to the northeastern corner of Town Lot 1502; Thence southerly and southwesterly along boundaries of that town lot to the southeastern corner of Calatropis Court; Thence southwesterly along the southern side of that court to the easternmost corner of Town Lot 1495; Thence southwesterly along the southern boundary of that town lot to the southeastern corner of Town Lot 1375; Thence southwesterly along the southern boundary of that town lot to the eastern boundary of Town Lot 2459 (Reserve 42706); Thence southeasterly along the eastern boundary of that town lot to a northern side of Victoria Highway road reserve; Thence generally southeasterly along sides of that highway road reserve to a northern side of Stockman Road reserve; Thence southeasterly and easterly along sides of that road reserve to a western side of Bull Run Road reserve; Thence northeasterly, northerly and again northeasterly along sides of that road reserve to the northwestern corner of Town Lot 1126; Thence northeasterly and southerly along northern and eastern boundaries of that town lot and continuing southerly along the eastern boundaries of Town Lots 2447 and 2204 to the northeastern corner of Stockman Road reserve; Thence southerly and southwesterly along sides of that road reserve to the easternmost northeastern corner of Town Lot 2257 as shown of Department of Land Information Deposited Plan 187861; Thence southeasterly and southwesterly along boundaries of that town lot to the eastern boundary of Town Lot 2425 (Reserve 40258); Thence northwesterly and southwesterly along boundaries of that town lot to a eastern side of Victoria Highway road reserve; Thence generally southeasterly along sides of that highway road reserve to the prolongation southerly of the southernmost eastern boundary of Town Lot 2238 (Reserve 40260); Thence northerly to and along the eastern boundary of that town lot to the southwestern corner of Location 321 (Reserve 1063); Thence easterly along the southern boundary of that location to a northwestern corner of the eastern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 711 and thence easterly, northerly, westerly, southerly, again westerly, again northerly, again westerly, again northerly and northeasterly along boundaries of that location back to the commencement point.

Portion D

All that land and water commencing from the southernmost corner of King Location 332 and extending northeasterly along the eastern boundary of that location to the southernmost corner of Location 330; Thence northeasterly, northerly, southwesterly and northwesterly along boundaries of that location to the easternmost corner of Location 333; Thence northwesterly, southwesterly and southeasterly along boundaries of that location to the northernmost corner of Location 332 and thence southwesterly, northwesterly, again southwesterly and southeasterly along boundaries of that location back to the commencement point.

Portion E

All that land comprising King Locations 282, 399 and the one chain Drain Reserve as shown on Department of Land Information Deposited Plan 210381.

Portion F

All that land and water commencing from the intersection of the southern boundary of King Location 335 with a western boundary of the eastern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 711 and extending northerly, westerly, northeasterly, generally northerly, westerly, southerly, again westerly, again southerly, again westerly, again southerly and southwesterly along boundaries of that location to a northeastern boundary of Location 354; Thence generally southeasterly, generally southwesterly and northwesterly along boundaries of that location to the northernmost northeastern corner of Location 681; Thence southerly, southwesterly, southeasterly and southwesterly along boundaries of that location to the northeastern corner of Yamandil Road reserve; Thence southwesterly along the eastern side of that road reserve to the northernmost corner of Location 608; Thence southeasterly, southwesterly and northwesterly along boundaries of that location to a eastern side of Yamabdil Road reserve; Thence southwesterly along the eastern side of that road reserve to a northern side of the one chain Road reserve as shown on Department of Land Information Deposited Plan 210041; Thence easterly along the northern side of that road reserve to the southwestern corner of Location 290; Thence northerly, easterly and southerly along boundaries of that location to the northern boundary of the one chain Road reserve as shown on Department of Land Information Deposited Plan 210041; Thence easterly along the northern side of that road reserve to the southwestern corner of Location 291; Thence northerly, northeasterly and southerly along boundaries of that Location to a northern boundary of a two chain Drain Reserve as shown on Department of Land Information Deposited Plans 210041 and 171679; Thence easterly, southeasterly, generally northeasterly and southeasterly along boundaries of that drain reserve to the northernmost corner of Cave Springs Road reserve; Thence southeasterly along the northern side of that road reserve to the northernmost corner of Location 283; Thence southeasterly along the northern boundary of that location to a western side of a three chain Drain Reserve as shown on Department of Land Information Deposited Plan 171679; Thence northeasterly and southwesterly along boundaries of that drain reserve to the northernmost corner of Weaber Plain Road reserve; Thence southeasterly and generally southwesterly along northern and eastern sides of that road reserve to the northern side of Martins Gap Road reserve; Thence generally southeasterly, generally easterly and generally northeasterly along sides of that road reserve to the westernmost southwestern corner of the Drain Reserve as shown on Department of Land Information Deposited Plan 218662; Thence generally northeasterly, easterly, generally southeasterly and southerly along boundaries of that drain reserve to the southernmost southwestern corner of Location 323; Thence southeasterly and northeasterly along boundaries of that location to a western boundary of Location 335 and thence southeasterly, southwesterly and easterly along boundaries of that location back to the commencement point.

Portion G

All that land comprising King Location 825.

 

Portion H

All that land comprising King Location 664 (Reserve 41617).

Portion I

All that land comprising the southern severance of Kununurra Town Lot 976 (Reserve 30356).

Portion J

All that land and water commencing from the intersection of a northeastern side of Old Darwin Road reserve with the southernmost southwestern corner of the northern severance of Kununurra Town Lot 976 (Reserve 30356) and extending generally northeasterly, generally northwesterly, southwesterly, northwesterly, northeasterly, southeasterly and again northeasterly along boundaries of that town lot to a southwestern side of Victoria Highway road reserve; Thence generally northwesterly along sides of that highway road reserve to the prolongation northeasterly of the easternmost southeastern side of Banyan Street; Thence southwesterly to and generally southwesterly and generally westerly along the southeastern and southern sides of that street to a eastern side of Hibiscus Drive; Thence generally southwesterly, southeasterly and again generally southwesterly and generally westerly along sides of that drive to a eastern side of Gardenia Drive; Thence southwesterly, generally southerly, generally southeasterly, southwesterly and generally northwesterly along sides of that drive to a southern side of Casuarina Way; Thence northwesterly and southwesterly along southern sides of that way to a eastern side of Celtis Street; Thence southwesterly and southeasterly along eastern sides of that street to the prolongation northeasterly of the northwestern boundary of Town Lot 1651; Thence southwesterly to and southwesterly along the northwestern boundary of that town lot to its northwestern corner, being a point on a southern side of Eugenia Street; Thence generally southwesterly and generally northwesterly along sides of that street to the northeastern corner of Kununurra Town Lot 1646 (Reserve 38657); Thence southwesterly, northwesterly and northeasterly along boundaries of that town lot to a southern side of Eugenia Street; Thence northwesterly, westerly, again northwesterly, northeasterly and generally southeasterly along sides of that street to a western side of Alba Street; Thence generally northeasterly and northwesterly along sides of that street to a southern side of Casuarina Way; Thence generally northwesterly and generally northerly along sides of that way to the southeastern corner of Town Lot 2312; Thence westerly, northerly and easterly along boundaries of that town lot to a western side of Casuarina Way; Thence northerly along the western side of that way to the southernmost southeastern corner of Town Lot 2263; Thence westerly, southwesterly, northwesterly, northeasterly and southeasterly along boundaries of that town lot to a western side of Casuarina Way; Thence generally northeasterly and generally easterly along sides of that way to a western side of Water Lily Place; Thence northeasterly, northerly, easterly, generally northeasterly, southeasterly and southwesterly along sides of that place to the northeastern corner of Town Lot 1990; Thence southeasterly along the eastern boundary of that town lot and continuing southeasterly along the eastern boundary of Town Lot 1975 to a northwestern side of Casuarina Way; Thence generally northeasterly and northerly along sides of that way to a southwestern side of Victoria Highway road reserve; Thence northwesterly along the southwestern side of that highway road reserve to the easternmost corner of Town Lot 974; Thence generally westerly along southern boundaries of that town lot to a southeastern side of Victoria Highway road reserve; Thence generally southwesterly along southeastern sides of that highway road reserve to the northernmost corner of Town Lot 2370 (Reserve 42371); Thence southerly, southeasterly and southwesterly along boundaries of that town lot to a northeastern side of Old Darwin Road reserve and thence southeasterly along the northeastern side of that road reserve back to the commencement point.

Portion K

All that land and water commencing from the intersection of the northernmost northern boundary of the northeastern severance of Kununurra Town Lot 2422 (Reserve 42441) with a western side of Old Darwin Road reserve and extending northwesterly along the western side of that road reserve to the prolongation easterly of the northern boundary of Town Lot 1180 (Reserve 31504), a point on the northern boundary of Kununurra Townsite; Thence westerly, southeasterly, southerly and southwesterly along boundaries of that townsite to the southwestern corner of Town Lot 1209 (Reserve 41401); Thence easterly along the southern boundary of that town lot to the southernmost southwestern corner of the southern severance of Town Lot 2229 (Reserve 31221); Thence easterly along the southern boundary of that severance to a western side of Ironwood Drive; Thence generally northeasterly along sides of that drive to the southwestern corner of Town Lot 1125 (Reserve 31213); Thence northerly and generally easterly along western and northern boundaries of that town lot to the northwestern corner of Town Lot 967 (Reserve 28413); Thence easterly along the northern boundary of that town lot to a western side of Speargrass Road reserve; Thence northerly, easterly and southwesterly along sides of that road reserve to a northwestern corner of the northeastern severance of Town Lot 2422 (Reserve 42441) and thence southwesterly, southerly, easterly, generally southeasterly, again easterly, again southerly, westerly, again southerly, generally southwesterly, again generally southeasterly, generally northeasterly, southeasterly, northeasterly and generally northerly along boundaries of that town lot back to the commencement point.

Exclusions from Portion K:

All that land comprising Kununurra Town Lot 1204 (Reserve 33363).

All that land comprising Kununurra Town Lot 232.

Portion L

All that land comprising the southwestern severance of Kununurra Town Lot 2422 (Reserve 42441).

Portion M

All that land comprising the western severance of Kununurra Town Lot 77 (Reserve 29799).

Portion N

All that land and water commencing from the intersection of a northern side of Victoria Highway road reserve with the southernmost southwestern corner of King Location 719 and extending northeasterly along the western boundary of that location to a southern corner of Location 781; Thence southwesterly along the southern boundary of that location to a eastern side of the western severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 710; Thence southerly along the eastern boundary of that location to a northern side of Victoria Highway road reserve and thence southeasterly along the northern side of that highway road reserve back to the commencement point.

Portion O

All that land comprising King Locations 792 and 793 (Reserve 38368).

Portion P

All that land comprising Reserve 1166.

Portion Q

All that land and water commencing from the intersection of the eastern boundary of Western Australia with Latitude 14.877606 South and extending generally northwesterly, generally southwesterly, generally southeasterly and generally southerly passing through the following co-ordinate positions:

 

LATITUDE (SOUTH)	LONGITUDE (EAST)
14.877743	128.999828
14.878152	128.994946
14.878156	128.989212
14.878038	128.984187
14.877518	128.979098
14.877221	128.974661
14.877853	128.969171
14.878645	128.964805
14.877786	128.959357
14.875074	128.955546
14.872999	128.951091
14.871916	128.945109
14.871635	128.939196
14.870507	128.931972
14.868664	128.927401
14.866813	128.923481
14.864847	128.919617
14.862542	128.915279
14.859534	128.912351
14.856192	128.908532
14.855676	128.903148
14.855908	128.897476
14.856308	128.892219
14.856604	128.885957
14.856822	128.881585
14.857081	128.873430
14.857364	128.868350
14.857583	128.863978
14.858090	128.859372
14.858442	128.853288
14.858442	128.847909
14.858373	128.843534
14.858081	128.838684
14.857730	128.833892
14.857676	128.828158
14.858356	128.823554
14.859209	128.818835
14.859158	128.812805
14.857493	128.807645
14.856275	128.803553
14.856466	128.801782
14.858234	128.797249
14.858076	128.795947
14.855653	128.791961
14.854154	128.787335
14.853708	128.786089
14.850886	128.781803
14.849559	128.777238
14.845365	128.772583
14.841268	128.769584
14.837682	128.767064
14.836698	128.762561
14.836341	128.758361
14.835714	128.752621
14.836333	128.748312
14.836613	128.743527
14.836603	128.739094
14.835340	128.733819
14.832812	128.728887
14.830558	128.725139
14.827619	128.721089
14.823567	128.719273
14.815362	128.714399
14.812703	128.711001
14.809991	128.707190
14.806833	128.702132
14.804020	128.697078
14.801717	128.692561
14.799871	128.688168
14.798423	128.684133
14.796634	128.679859
14.795247	128.675411
14.794209	128.670553
14.793173	128.665576
14.792886	128.660194
14.792817	128.655879
14.792124	128.650965
14.791082	128.646402
14.789525	128.641894
14.788021	128.637681
14.786413	128.632581
14.785435	128.627487
14.785094	128.621809
14.785262	128.616786
14.786166	128.612658
14.786578	128.611657
14.787846	128.611021
14.789694	128.615178
14.790966	128.619624
14.792920	128.624610
14.795739	128.629132
14.797532	128.633052
14.798962	128.638801
14.799832	128.643303
14.802827	128.647413
14.808822	128.649899
14.814310	128.651494
14.819001	128.652548
14.820837	128.652449
14.822509	128.651580
14.822975	128.650876
14.822872	128.649752
14.818199	128.647043
14.814081	128.645994
14.809736	128.644826
14.805521	128.642121
14.805294	128.636563
14.806205	128.631725
14.804937	128.626983
14.801779	128.621984
14.799651	128.617115
14.800570	128.611627
14.801250	128.606965
14.801816	128.602301
14.801232	128.597921
14.799899	128.593828
14.799034	128.588854
14.797244	128.584579
14.793402	128.579277
14.791322	128.575295
14.787169	128.572178
14.785859	128.571337
14.783207	128.567348
14.781182	128.563603
14.779398	128.558797
14.777381	128.554342
14.776424	128.552677
14.771975	128.550443
14.767934	128.547622
14.767487	128.546494
14.768349	128.540947
14.772400	128.537384
14.775476	128.533929
14.778325	128.530294
14.781408	128.526129
14.782776	128.521474
14.781111	128.516255
14.779779	128.512103
14.779482	128.507726
14.779829	128.502055
14.782161	128.498415
14.785435	128.492538
14.787731	128.486829
14.787834	128.482574
14.785074	128.477875
14.785179	128.473384
14.785417	128.472559
14.788177	128.471878
14.788873	128.471117
14.789150	128.466628
14.790075	128.465928
14.794560	128.464793
14.798762	128.463301
14.801619	128.453400
14.802983	128.449218
14.805211	128.444631
14.808354	128.440230
14.810286	128.436527
14.809471	128.432203
14.808166	128.430948
14.803762	128.429779
14.794718	128.417448
14.794499	128.416559
14.797629	128.413400
14.800197	128.409171
14.801455	128.404041
14.802662	128.398439
14.803809	128.393013
14.806213	128.387954
14.809635	128.384326
14.812424	128.380867
14.816457	128.379136
14.821198	128.380841
14.826567	128.382907
14.830793	128.384489
14.838847	128.387470
14.843353	128.389704
14.847406	128.391461
14.852711	128.394058
14.857679	128.396002
14.858723	128.394949
14.859419	128.394247
14.861940	128.389013
14.865670	128.383378
14.869045	128.378744
14.871547	128.375341
14.874867	128.370411
14.877959	128.365478
14.880177	128.361837
14.882567	128.358138
14.885646	128.354387
14.889587	128.350469
14.892604	128.347131
14.896026	128.343561
14.899217	128.339989
14.902411	128.336299
14.905893	128.332375
14.908969	128.328920
14.913201	128.324590
14.916851	128.321082
14.920907	128.317164
14.923979	128.314005
14.925893	128.312015
14.929660	128.308272
14.932626	128.304342
14.935036	128.298812
14.938507	128.295952
14.943438	128.296004
14.947804	128.295222
14.953947	128.294518
14.959061	128.293567
14.964002	128.292733
14.968664	128.291126
14.974156	128.286928
14.977155	128.279926
14.977496	128.275398
14.978326	128.270975
14.979156	128.270423
14.980262	128.268488
14.981921	128.267935
14.984687	128.264618
14.985240	128.263789
14.986623	128.259090
14.988835	128.254668
14.990495	128.250522
14.990969	128.247138
14.994231	128.243280
14.997019	128.239940
14.997813	128.236736
15.001230	128.234074
15.006066	128.230853
15.010504	128.227817
15.015787	128.225470
15.021974	128.223222
15.028396	128.219968
15.032661	128.217466
15.038061	128.214469
15.044432	128.210333
15.048244	128.207840
15.052851	128.204859
15.058706	128.201734
15.062457	128.199772
15.066823	128.198858
15.071987	128.197279
15.076756	128.195532
15.081067	128.194501
15.087018	128.193730
15.091947	128.193334
15.098744	128.192958
15.103385	128.193274
15.104910	128.193832
15.107248	128.199437
15.108747	128.203646
15.112518	128.206807
15.116862	128.209073
15.120918	128.211875
15.126437	128.216119
15.130889	128.219089
15.137101	128.221375
15.142646	128.221968
15.147064	128.221758
15.152441	128.222001
15.158831	128.223164
15.164650	128.225106
15.169010	128.225074
15.174398	128.223844
15.180977	128.222295
15.185398	128.221674
15.189703	128.221467
15.195879	128.220869
15.200295	128.220954
15.204760	128.222040
15.209559	128.224002
15.215260	128.226593
15.219269	128.228101
15.223448	128.229722
15.227965	128.231513
15.233326	128.233994
15.238293	128.236247
15.242358	128.237929
15.246310	128.239497
15.250936	128.241874
15.255496	128.245608
15.258531	128.248902
15.261270	128.253793
15.262998	128.257644
15.265176	128.261956
15.268247	128.267958
15.271565	128.271188
15.275729	128.274812
15.280297	128.277426
15.285541	128.280380
15.290502	128.283458
15.294954	128.286487
15.299349	128.289517
15.303411	128.291613
15.308326	128.293160
15.313469	128.294467
15.314939	128.294849
15.315734	128.294538
15.315514	128.293542
15.320886	128.294668
15.326095	128.294678
15.330339	128.294944
15.334699	128.294971
15.339909	128.294864
15.345855	128.294741
15.351125	128.294220
15.355659	128.293714
15.361216	128.292481
15.366151	128.291319
15.370517	128.290404
15.374992	128.290253
15.379179	128.290638
15.384047	128.290832
15.388520	128.290916
15.392934	128.291237
15.398082	128.292014
15.403056	128.293207
15.407803	128.294464
15.412663	128.295777
15.418097	128.296018
15.422616	128.297514
15.426873	128.300239
15.427966	128.300551
15.429840	128.300395
15.431557	128.299927
15.435773	128.299147
15.436778	128.298566
15.437419	128.298274
15.438033	128.298131
15.438540	128.297815
15.439334	128.297771
15.440475	128.297526
15.440865	128.297021
15.440669	128.296660
15.441532	128.296365
15.445023	128.294682
15.445335	128.294609
15.446255	128.294529
15.446985	128.294409
15.447325	128.294269
15.447715	128.294219
15.448435	128.294189
15.449025	128.294069
15.450315	128.293879
15.451595	128.293849
15.452035	128.293849
15.452335	128.293919
15.452775	128.293939
15.452835	128.293959
15.453365	128.293989
15.453595	128.294059
15.453875	128.294219
15.454035	128.294239
15.455325	128.294329
15.455555	128.294309
15.456425	128.294449
15.456865	128.294609
15.457155	128.294799
15.457505	128.295109
15.457895	128.295529
15.458125	128.295699
15.458585	128.295839
15.459645	128.296159
15.460405	128.296439
15.460795	128.296679
15.461625	128.297079
15.462265	128.297599
15.462795	128.297899
15.464105	128.298509
15.465145	128.299189
15.465215	128.299239
15.465535	128.299449
15.466405	128.299809
15.467075	128.300089
15.467495	128.300369
15.468435	128.301339
15.469384	128.302419
15.469794	128.302819
15.470184	128.303549
15.470354	128.303839
15.470904	128.304379
15.471134	128.304549
15.471734	128.304849
15.472234	128.304989
15.472334	128.305009
15.472924	128.305199
15.473524	128.305269
15.473774	128.305269
15.474354	128.305149
15.474814	128.304959
15.475014	128.304769
15.475134	128.304479
15.475544	128.303869
15.475724	128.303649
15.476204	128.302889
15.476204	128.302819
15.476224	128.302749
15.476574	128.302609
15.476704	128.302609
15.476864	128.302699
15.476874	128.302839
15.476644	128.303199
15.476344	128.303959
15.475914	128.304459
15.475654	128.304759
15.475294	128.304929
15.475154	128.305049
15.475064	128.305429
15.475114	128.305859
15.475274	128.306279
15.475414	128.306489
15.475874	128.306919
15.476424	128.307579
15.477144	128.308309
15.477394	128.308469
15.477464	128.308549
15.478504	128.309249
15.479534	128.310169
15.480204	128.310669
15.480504	128.311069
15.480294	128.311019
15.479424	128.310529
15.478734	128.310059
15.478244	128.309609
15.477234	128.308809
15.476594	128.308409
15.476174	128.307859
15.475784	128.307369
15.475294	128.306919
15.475234	128.306869
15.474584	128.306259
15.474144	128.305999
15.473504	128.305669
15.472924	128.305529
15.472584	128.305509
15.472444	128.305559
15.472374	128.305649
15.472404	128.305869
15.472744	128.306269
15.473734	128.307089
15.474954	128.308149
15.475004	128.308219
15.475674	128.308689
15.476084	128.309169
15.477174	128.309939
15.478164	128.310479
15.478364	128.310649
15.478944	128.311549
15.479124	128.311849
15.479264	128.312229
15.479494	128.312559
15.479774	128.313129
15.480264	128.313959
15.480494	128.314359
15.481044	128.315089
15.481904	128.316249
15.482704	128.317309
15.483374	128.318369
15.483444	128.318439
15.483704	128.318769
15.484134	128.319219
15.484464	128.319459
15.485224	128.320539
15.485704	128.321199
15.486094	128.321559
15.486354	128.321789
15.487114	128.322329
15.487644	128.322709
15.488284	128.322969
15.488954	128.323229
15.489414	128.323299
15.490584	128.323499
15.491094	128.323639
15.491684	128.323669
15.492054	128.323789
15.492744	128.323879
15.493014	128.323859
15.493844	128.324009
15.494424	128.324149
15.494974	128.324359
15.495614	128.324679
15.496074	128.324849
15.496674	128.325169
15.496924	128.325229
15.497204	128.325349
15.498074	128.325849
15.498304	128.325929
15.498514	128.326059
15.498564	128.326109
15.498914	128.326449
15.499274	128.326659
15.499594	128.326709
15.499924	128.326689
15.500354	128.326779
15.500624	128.326739
15.501204	128.326429
15.501564	128.326319
15.502134	128.326109
15.502914	128.325989
15.503724	128.325959
15.504084	128.325839
15.504964	128.325729
15.505264	128.325589
15.505404	128.325469
15.505694	128.325039
15.505904	128.324569
15.506064	128.324329
15.506134	128.324279
15.506314	128.324329
15.506564	128.324589
15.506524	128.324899
15.506154	128.325139
15.506084	128.325209
15.506064	128.325349
15.506274	128.325629
15.506484	128.325749
15.506644	128.325749
15.507034	128.325579
15.507264	128.325439
15.507317	128.325439

 

Thence west to the southernmost southeastern corner of the southwestern severance of King Location 755 (Reserve 31967); Thence westerly along the southern boundary of that severance to Longitude 128.317929 East; Thence generally southerly and westerly along the J7 line passing through the following co-ordinate positions:

LATITUDE (SOUTH)	LONGITUDE (EAST)
15.508078	128.317101
15.508763	128.316478
15.509219	128.316070
15.510133	128.315422
15.511048	128.314988
15.511964	128.314577
15.512880	128.314191
15.513796	128.313852
15.514710	128.313251
15.515167	128.313010
15.516311	128.312288
15.517225	128.311688
15.518138	128.310991
15.519304	128.310222
15.520218	128.309621
15.521133	128.309116
15.522048	128.308634
15.522276	128.308418
15.523189	128.307674
15.524106	128.307383
15.525046	128.307258
15.525298	128.307137
15.526214	128.306846
15.526673	128.306843
15.527591	128.306766
15.528510	128.306761
15.529428	128.306779
15.530347	128.306845
15.531266	128.306934
15.532209	128.307095
15.533152	128.307328
15.534072	128.307632
15.535108	128.308031
15.536052	128.308382
15.536973	128.308781
15.537895	128.309228
15.538816	128.309651
15.539738	128.310194
15.540684	128.310807
15.541607	128.311516
15.542486	128.312345
15.543110	128.313032
15.543920	128.313932
15.544524	128.314881
15.545081	128.315831
15.545570	128.316780
15.546128	128.317730
15.546336	128.317967
15.546984	128.318606
15.547907	128.319362
15.548853	128.319952
15.549773	128.320280
15.550694	128.320608
15.551659	128.320745
15.552601	128.320787
15.553519	128.320782
15.554437	128.320753
15.555355	128.320604
15.555813	128.320411
15.556729	128.320048
15.557414	128.319567
15.558076	128.318896
15.558989	128.318247
15.559904	128.317766
15.561070	128.316972
15.561298	128.316733
15.561526	128.316565
15.562187	128.315894
15.562870	128.314937
15.563209	128.314220
15.563455	128.313266
15.563517	128.312312
15.563422	128.311837
15.563094	128.310886
15.562815	128.310411
15.562234	128.309462
15.561562	128.308513
15.560891	128.307850
15.559968	128.307117
15.559045	128.306479
15.558122	128.305842
15.557199	128.305204
15.556483	128.304613
15.555790	128.303974
15.554866	128.303241
15.554173	128.302626
15.553480	128.301988
15.552855	128.301300
15.552253	128.300589
15.551604	128.299641
15.550931	128.298692
15.550419	128.297742
15.550092	128.297030
15.549741	128.296079
15.549669	128.295603
15.549731	128.294650
15.549932	128.293696
15.550109	128.292742
15.550561	128.291786
15.550789	128.291618
15.551932	128.290920
15.552872	128.290724
15.553791	128.290718
15.554710	128.290808
15.555629	128.290898
15.556547	128.290916
15.557466	128.290910
15.558384	128.290881
15.559326	128.290994
15.560246	128.291226
15.561190	128.291554
15.562111	128.291953
15.563034	128.292519
15.563979	128.293181
15.564672	128.293748
15.565619	128.294457
15.566542	128.295166
15.567466	128.295970
15.568159	128.296586
15.568807	128.297272
15.569503	128.298221
15.570292	128.299407
15.571033	128.300356
15.571797	128.301304
15.572445	128.301991
15.572676	128.302156
15.573599	128.302794
15.574519	128.303122
15.574979	128.303214
15.575899	128.303327
15.576817	128.303322
15.577735	128.303316
15.578653	128.303263
15.579594	128.303186
15.580512	128.303109
15.581452	128.302912
15.582392	128.302669
15.582849	128.302427
15.583764	128.301850
15.584677	128.301082
15.585428	128.300125
15.585996	128.299382
15.586585	128.298188
15.586762	128.297234
15.586801	128.296281
15.586794	128.295327
15.586719	128.294375
15.586852	128.293659
15.587348	128.292441
15.587846	128.291485
15.588461	128.290767
15.588918	128.290454
15.590062	128.289851
15.590979	128.289607
15.591897	128.289578
15.592815	128.289549
15.593733	128.289543
15.594653	128.289680
15.595572	128.289841
15.596491	128.289955
15.597411	128.290044
15.598330	128.290158
15.599249	128.290295
15.600191	128.290384
15.601110	128.290450
15.602028	128.290469
15.602947	128.290558
15.603866	128.290624
15.604785	128.290690
15.605705	128.290875
15.606625	128.291059
15.607589	128.291125
15.608508	128.291143
15.609426	128.291161
15.610368	128.291179
15.611310	128.291245
15.612252	128.291359
15.613193	128.291353
15.614157	128.291347
15.615121	128.291293
15.616039	128.291240
15.616958	128.291187
15.617898	128.291014
15.618380	128.291011
15.619298	128.290958
15.620216	128.290976
15.621181	128.291089
15.622124	128.291226
15.623066	128.291387
15.624032	128.291524
15.624951	128.291638
15.625869	128.291680
15.626811	128.291674
15.627752	128.291596
15.628692	128.291448
15.629678	128.291275
15.630618	128.291102
15.631535	128.290882
15.632475	128.290709
15.633392	128.290466
15.634331	128.290078
15.635016	128.289693
15.635930	128.288972
15.636135	128.288733
15.636750	128.288062
15.636930	128.287584
15.637153	128.286629
15.637536	128.285650
15.637943	128.284694
15.638395	128.283714
15.638732	128.282711
15.639115	128.281708
15.639476	128.280753
15.639928	128.279796
15.640495	128.278840
15.641156	128.278192
15.642322	128.277446
15.643489	128.276915
15.644429	128.276694
15.645369	128.276498
15.646379	128.276420
15.647343	128.276366
15.648306	128.276289
15.649271	128.276259
15.650188	128.276182
15.651107	128.276176
15.652048	128.276122
15.652988	128.276045
15.653929	128.275991
15.654893	128.275938
15.655857	128.275860
15.656844	128.275783
15.657784	128.275634
15.658702	128.275509
15.659642	128.275384
15.660628	128.275139
15.661589	128.274800
15.662552	128.274508
15.663491	128.274263
15.664431	128.273995
15.665346	128.273608
15.666262	128.273269
15.667201	128.272882
15.668116	128.272471
15.669032	128.272060
15.669971	128.271696
15.670909	128.271381
15.672099	128.270777
15.673015	128.270414
15.673931	128.270051
15.674893	128.269782
15.675856	128.269514
15.676795	128.269246
15.677734	128.268978
15.678652	128.268829
15.679570	128.268823
15.680511	128.268817
15.681429	128.268716
15.682369	128.268544
15.683286	128.268371
15.684202	128.267984
15.685116	128.267382
15.686030	128.266781
15.686235	128.266541
15.687009	128.265582
15.687576	128.264626
15.687913	128.263670
15.688113	128.262715
15.688198	128.261761
15.688237	128.260808
15.688230	128.259854
15.688108	128.258901
15.687944	128.258426

Thence westerly to a eastern side of Great Northern Highway road reserve at Latitude 15.687701 South; Thence generally southeasterly along sides of that highway road reserve to a western boundary of Location 497 (Reserve 1601); Thence northerly and easterly along boundaries of that location to the southwestern corner of the westernmost northwestern severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 710; Thence northerly along the western boundary of that severance to the southernmost southwestern corner of Location 739 (Reserve 42155); Thence easterly along the southern boundary of that location to the southernmost southwestern corner of the southeastern severance of Location 749 (Reserve 42155); Thence easterly and northerly along southern and eastern boundaries of that severance to its northernmost northern corner; Thence north to a eastern corner of the northwestern severance of Location 749 (Reserve 42155); Thence northerly, easterly and again northerly along boundaries of that severance to the southwestern corner of Location 736 (Reserve 18810); Thence easterly along the southern boundary of that location to the western boundary of Location 744 (Reserve 1061); Thence southerly, easterly, northerly and westerly along boundaries of that location to a southern boundary of Pastoral Lease 3114/1176 (Carlton Hill), being Location 709; Thence westerly, southerly, again westerly, generally northwesterly, generally northerly, again generally northwesterly, generally northeasterly, generally southeasterly, generally northeasterly, again generally northerly and again generally southeasterly along boundaries of that location to its easternmost northeastern corner; Thence northeasterly onwards to the eastern boundary of Western Australia at Latitude 15.072472 South and thence northerly along that boundary back to the commencement point.

 

Portion R

All that land and water commencing from the intersection of the southern boundary of King Location 497 (Reserve 1601) with a eastern side of Great Northern Highway road reserve and extending generally southeasterly along sides of that highway road reserve to a western boundary of the western severance of Pastoral Lease 3114/640 (Ivanhoe), being Location 710; Thence northerly along the western boundary of that severance to the southern boundary of Location 497 (Reserve 1601) and thence westerly along the southern boundary of that location back to the commencement point.

Portion S

All that land to the Low Water Mark comprising the following offshore islands:

Kanggurryu Island

Pelican Island (Reserve 29541)

Lacrosse Island (Excluding King Location 813, which was formerly known as King Location 230)

 

AREA NO. DESCRIPTION

 

Note: Geographic Co-ordinates provided in Decimal Degrees

 

Cadastral boundaries sourced from Department of Land Administration Spatial Cadastral Data dated May 1996.

 

Datum: Geocentric Datum of Australia 1994 (GDA94)

 

 

SCHEDULE 2

AREAS WHERE NATIVE TITLE EXISTS

The land and waters shaded in red and brown on the maps, being:

(1) Area to which section 47 Native Title Act 1993 (Cth) applies:

(2) Areas to which section 47A Native Title Act 1993 (Cth) applies:

(3) Areas to which section 47B Native Title Act 1993 (Cth) applies:

 

(4) The following Areas:

 

 

(5) The following Area:

 

 

(6) The following Area:

 

 

(7) The following Area:

 

(8) The following Area:

 

 

(9) The following areas (excluding any part of those areas where native title has been extinguished by any of the works listed in paragraphs (2), (3) and (4) of Schedule 3):

SCHEDULE 3

AREAS WHERE NATIVE TITLE DOES NOT EXIST

 

(1) Native title does not exist in the areas the subject of the following interests:

(2) Native title does not exist in the area of the following works:

 

(3) Native title does not exist in any portions of the Determination Area (except the areas specified in paragraphs (2) and (3) of Schedule 2) which were the subject of works of the following kind constructed or commenced to be constructed or used within the Determination Area before 23 December 1996:

(a) power lines, including the land or waters immediately below power lines and the land or waters four (4) metres either side of the power poles;

(b) Packsaddle pumping station to the extent of the fencing surrounding the pumping station;

(c) piezometres, wells and bores, including the land within a one (1) metre radius;

(d) irrigation drains, drainage points, levees, irrigation supply channels, access roads, watercourses, and the retention basins associated with irrigation drains and levees, each identified on the maps;

 

(e) land or waters adjacent to the irrigation drains, drainage points, levees and irrigation supply channels in (d) above the use of which is or was necessary for, or incidental to, the construction, establishment or operation of those works;

(f) drainage collection areas identified on the maps; and

(g) other constructed irrigation pipes, sewers, drains, drainage points, pumping stations and associated infrastructure.

(4) Native title does not exist in respect of the following roads:

 

Road
Celtis Street
Cycas Street
Durack's Folly Road
Eugenia Street
Ibis Road
Lake Argyle Road
Livistonia Street
Long Michael Plains Road
Victoria Highway (portion within the Determination Area)

 

 

 

SCHEDULE 4

OTHER INTERESTS

 

(1) Pastoral lease 3114/425 (Glen Hill) to which section 47 Native Title Act 1993 (Cth) applies.

 

(2) Reserves to which section 47A Native Title Act 1993 (Cth) applies:

Area	Reserve no. and purpose
9	R 26600 (Mirima Village, Use and benefit of Aboriginal inhabitants)
18	R 31221 (Use and benefit of Aborigines)
19	R 31504 (Use and benefit of Aboriginal inhabitants, Arts and Historical)
22	R 32446 (Native Paintings)
37	R 40260
39	R 40536 (Use and benefit of Aboriginal inhabitants (Mudd Springs/Rowena Downs))
41	R 41401 (Use and benefit of Aboriginal inhabitants)

 

(3) Other reserves:

 

Area	Reserve no. and purpose
1	R 1060 (Public utility)
5	R 1062 (Public utility)
7	R 1166 (Public utility)
20	R 31780 (Conservation and Recreation)
21	R 31967 (Conservation of Flora and Fauna)
25	R 35289 (Natural Regeneration)
30	R 38538 (Parkland)
32	R 38955 (Trigonometrical station)
36	R 40258 (Buffer Strip)

 

(4) The following leases of reserves:

 

(a) lease of Reserve 26600 from the Aboriginal Lands Trust to Mirima Council Incorporated dated 6 November 1986;

 

(b) lease of Reserve 40536 to Ribinyung Dawang Aboriginal Corporation dated 11 November 1992, and sublease to Wulbonj Aboriginal Corporation dated 20 September 2000;

 

(c) lease of Reserve 40260 to Gulgagulganeng Aboriginal Corporation dated 3 November 1988.

 

(5) The following mining tenements under the Mining Act 1978 (WA):

 

E80/2503, E80/3126, E80/3127, E80/1187, E80/3224, E80/3167, E80/3168, E80/3196, E80/3253, E80/2778, E80/2573, E80/2477, E80/3243, E80/2389, E80/1329, E80/1842, E80/3134, E80/2511, G80/5, L80/38, L80/36, L80/34, M80/42, M80/403, M80/477, M80/494, M80/474, M80/530, M80/476, M80/360, M80/396, M80/20, P80/1463, P80/1461, P80/1464, P80/1465, P80/1466, P80/1518

 

(6) The following petroleum tenement under the Petroleum Act 1967 (WA):

 

EP386

 

(7) Licenses issued under the:

 

(a) Land Act 1933 (WA) and the Land Administration Act 1997 (WA);

 

(b) Fish Resources Management Act 1994 (WA);

 

(c) Mining Act 1978 (WA);

 

(d) Jetties Act 1926 (WA);

 

(e) Wildlife Conservation Act 1950 (WA);

 

(f) Conservation and Land Management Act 1984(WA);

 

(g) Rights in Water and Irrigation Act 1914 (WA);

 

(h) Transport Co-ordination Act 1966 (WA); and

 

(i) Water Services Coordination Act 1995 (WA).

 

(8) Permits issued under the:

 

(a) Land Act 1933 (WA);

 

(b) Land Administration Act 1997 (WA); and

 

(c) Ord Irrigation District By-laws under the Rights in Water and Irrigation Act 1914 (WA);

 

(9) The following by-laws:

 

(a) Ord Irrigation District By-laws under the Rights in Water and Irrigation Act 1914 (WA);

 

(b) The Municipality of the Shire of Wyndham - East Kimberley By-laws relating to the use of reserves and foreshores under the Local Government Act 1960 (WA).

 

(10) The following works in the following areas:

 

Area No.	Area	Works
18 (part)	R 31221	Sewerage system and drains.
19 (part)	R 31504	Power line.
9, 22, 37, 39, 41	Areas listed in paragraph (2) of Schedule 2	Any works of the kind referred to in paragraph (3) of Schedule 3.
95J (part), 95S, 95X (part)	Areas listed in paragraph (3) of Schedule 2	Any works of the kind referred to in paragraph (3) of Schedule 3.

 

SCHEDULE 5

DESCRIPTION OF THE NATIVE TITLE HOLDERS

 

Persons identified with Miriuwung, Gajerrong, Doolboong, Wardenybeng and Gija language or dialect and country as at the date of this determination include descendants of the following persons, which persons were identified as:

Gajerrong/Doolboong/Wardenybeng

Linmirr, Dambilik, Noongmarria, Bungara Boongara, Ngabitj, Jerad Djerad, Goolingin and Clement Tjulan

Miriuwung

Mialiny, Tjebelying Djibulyerring, Nilkbarria, Kulalbainy, Waniwung, Biwugin Biwoogin, Kutji, Wulgoi, Wungawyi, Gulbuk, Yirrimaliny, Djuburl, Gubering, Gungui, Dandji, Wunmi, Birrwi, Dunmi, Wumbi, Argyler, Wiyuga, Jungurangan and Kneevil

Gija

Jungurangan, Kneevil, Wajali, Djuderriny, Nadurur, Banggarrabainy, Lammuiy Lamoin, Ngarri and Biyuwin

Persons identified with Balangarra as at the date of this determination include descendants of the following persons:

Wundangana, Waina, Wuju, Amburu, Djirlarmuru, Mitilber/Njorda, Jiani, Akingungka/Nakmara, Rugben, Moolpan/Kandarworl, Boongottor, Matilda Moorajayi, Joonpan/Moorajayi, Maraltadj, Miuron, Moongkama, Purwan, Waapa, Makumuku, Torto/Yilimbiri, Yarluwutj, Nandjimara, Jalalarimiri/Kolorumari, Puraru, Koolberi, Angela, Moongkama, Yoolyool, Mutumutu, Murungga, Bundamiri, Vernon Dah, Mayaltor, Malangnari, Dz^ngal, Naringa, Wolarmbar, Murlu, Zamin^elli, Mandomiri, G^nambul, Nganawongka, W^gamiri, Waibela, ^Nuwija, Jidei-ida/Wugad^r, N^lamiri, Ng^lnari, Malnuben, Gootimurri, Junbabara, Linound^ri, Wungur^ru, Judu, Dalza-ungnari, Zigalu, Mangular, Linound^ri, Jumbabera, Bo, Do^lu, Lau-uri, Wiju/Baluga, Wanguben, Mundjangal, D^lnga, Mud^ta, Rebern, D^lnga, Med^rda, Aruwund^rdzera, Mal^ngu, Mal^Ngunawal, Glamiri, Angular, Benmiri, Ziranim/Ganggu, M^labu, ^m]ra, Wulangan, Jura/Juradide, Njama Weni, Madamal, Dagi, Zunggalima, Jeduri, Mandurga, Charlie Plateman, Dickie Kooyoo, Timothy, Baija, W^Ngadju, Nitil, W^nu, Lura/Gurul, Birim, Ngari, Dumalbon/Tumelben, Merliman, Wangooloo, Wamblma, W^rga, Bangudenanga,Lumbia, Birra-rar-raa, Wanjuwila, Gumbol, Wungarur, Wurawungedzi, Zuandi, Z^lubern G^mura, W^mbu/Njurnji, Waneigera, J^wan, Z^lnga, Guri, Banmon, Warin.