FEDERAL COURT OF AUSTRALIA

 

Neowarra v State of Western Australia [2004] FCA 1092

 

 

 

 

NATIVE TITLE – Determination

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

 

WAG 6016 OF 1996

WAG 6015 OF 1999

WAG 6006 OF 2002

SUNDBERG J

27 AUGUST 2004

KUPUNGARRI

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6016 OF 1996 WAG 6015 OF 1999 WAG 6006 OF 2002

 

BETWEEN:	PADDY NEOWARRA, PADDY WAMA & OTHERS APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	SUNDBERG J
DATE OF ORDER:	27 AUGUST 2004
WHERE MADE:	KUPUNGARRI

 

WANJINA-WUNGGURR NATIVE TITLE DETERMINATION NO 1

 

 

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

 

Existence of Native Title (s 225)

1.                  Native title exists in relation to the determination area.

2.                  Native title does not exist in the areas set out in Schedule 3.

The Native Title Holders (s 225(a))

3.                  The native title is held by the members of the Wanjina‑Wunggurr Community for their respective communal, group and individual rights and interests in the determination area.  The members of the Wanjina-Wunggurr Community are the people referred to in Schedule 9.

The nature and extent of native title rights and interests (s 225(b)) and exclusiveness of native title (s 225(e))

4.             Subject to Order 9, the nature and extent of native title rights and interests in relation to each part of the determination area referred to in Schedule 4 [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] are an entitlement against the whole world to possession, occupation, use and enjoyment of the land and waters of that part.

5.             Subject to Order 9, the nature and extent of the native title rights and interests in relation to each part of the determination area referred to in Schedule 5 [being current and historical pastoral lease areas other than areas where any extinguishment is required to be disregarded] are:

(a)                the right to engage in the following activities:

(i)            having access to the determination area but so that Native Title Holders may seek sustenance in their accustomed manner only from:

(A)              unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or

(B)              unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;

(ii)                camping;

(iii)              hunting for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs from:

(A)               unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or

(B)               unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;

(iv)              having access to painting sites in order to freshen or repaint images there;

(v)               having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;

(vi)              gathering and fishing for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs from:

(A)               unenclosed and unimproved parts of land that is or has previously been the subject of a pastoral lease granted after 1934; or

(B)               unenclosed or enclosed but otherwise unimproved parts of land that is or has previously been the subject of a pastoral lease granted before 1934;

(vii)            using traditional resources for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(viii)           conducting and taking part in ceremonies;

(ix)              visiting places of importance and protecting them from physical harm;

(x)               manufacturing traditional items (such as spears and boomerangs) from resources of the land and waters for the purpose of satisfying personal, domestic or non‑commercial communal needs.

(b)               the right to pass on and inherit the native title rights in (a).

6.                  Subject to Order 9, the nature and extent of the native title rights and interests in relation to each part of the determination area referred to in Schedule 6 [non‑vested reserve areas] are:

(a)                the right to engage in the following activities:

(i)                 having access to the determination area with liberty to seek sustenance therefrom in their accustomed manner;

(ii)                camping;

(iii)              hunting on the land for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(iv)              having access to painting sites in order to freshen or repaint images there;

(v)               having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;

(vi)              gathering and fishing on the land for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(vii)            using traditional resources for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(viii)           conducting and taking part in ceremonies;

(ix)              visiting places of importance and protecting them from physical harm;

(x)               manufacturing traditional items (such as spears and boomerangs) from resources of the land and waters for the purpose of satisfying the Native Title Holders’personal, domestic or non‑commercial communal needs.

(b)               the right to pass on and inherit the native title rights in (a).

7.                  Subject to Order 9, the nature and extent of the native title rights and interests in relation to the part of the determination area referred to in Schedule 7 [reserve subject to by-laws 13 and 15 made in 1963 pursuant to s 8 of the Parks and Reserves Act 1895] are:

(a)                the right to engage in the following activities:

(i)                 having access to the determination area;

(ii)                camping;

(iii)              having access to painting sites in order to freshen or repaint images there;

(iv)              having the use of land adjacent to those painting sites for the purpose of engaging in the preceding activity;

(v)               using traditional resources for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(vi)              conducting and taking part in ceremonies;

(vii)            visiting places of importance and protecting them from physical harm;

(viii)           manufacturing traditional items (such as spears and boomerangs) from resources of the land and waters for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs; and

(b)               the right to pass on and inherit the native title rights in (a);

provided that the exercise of the native title rights in (a) and (b) do not involve hunting, fishing, or the taking of flora.

8.                  Subject to Order 9, the nature and extent of the native title rights and interests in relation to such part (if any) of the determination area as consists of land and waters seaward of the high water mark and referred to in Schedule 8 are:

(a)                the right to engage in the following activities:

(i)                 having access to the area;

(ii)                moving freely through and within the area;

(iii)              hunting for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(iv)              gathering and fishing for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(v)               using traditional resources of the area for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(vi)              manufacturing traditional items from the resources of the area for the purpose of satisfying the Native Title Holders’ personal, domestic or non‑commercial communal needs;

(vii)            conducting and taking part in ceremonies within the area;

(b)               the right to pass on and inherit the native title rights in (a).

9.                  The native title rights and interests are subject to and exercisable in accordance with:

(a)                the laws of the State and the Commonwealth, and

(b)               traditional laws acknowledged and traditional customs observed by the Native Title Holders.

The nature and extent of any other interests in relation to the determination area (s 225(c))

10.              The nature and extent of other interests in relation to those parts of the determination area where native title exists are:

(a)                the interests comprised in or pursuant to the pastoral leases listed in Schedule 5;

(b)               the interests comprised in or pursuant to the reserves listed in Schedule 6;

(c)                the rights and interests comprised in, conferred under or in accordance with or pursuant to the Alumina Refinery (Mitchell Plateau) Agreement Act 1971 (WA) (“the Act”) and/or the Alumina Refinery (Mitchell Plateau) Agreement as amended and ratified by the Act;

(d)               the interests comprised in or pursuant to the following mining tenements within the following areas as shown on Map 1: TR70/5610 (Areas 82 and 89), M04/90 (Area 24), G04/20 (Area 25), G04/31 (Area 5), M04/84 (Area 25), M04/86 (Area 25), M04/88 (Area 25), M04/91 (Areas 25 and 54), M04/161 (Areas 25 and 68), M04/162 (to the extent not covered by Special Lease 3116/10534) (Area 25);

(e)                the interests comprised in or pursuant to the following mining tenements within the following areas as shown on Map 1: M04/262 (to the extent covered by Special Lease 3116/10534) (Area 68), M80/329 (Area 17), and M80/331 (Area 17);

(f)                 the interests comprised in or pursuant to licences or permits issued by the Commonwealth or State and in effect at the date of this determination;

(g)                the public right to fish in any waters seaward of the high water mark;

(h)                the public right to navigate over any waters seaward of the high water mark;

(i)                  the interests comprised in or pursuant to the following by‑laws made 12 June 1957 under the Country Areas Water Supply Act 1947 (WA) in their application to the King River Pools Water Supply Reserve (affecting Area 16): by‑laws 31, 34, 35, 36, 38, 39 and 40;

(j)                 the interests comprised in or pursuant to by‑laws 13 and 15 made under the Parks and Reserves Act 1895 (WA) in their application to Reserve R32853 (affecting Area 29 as shown on Map 1);

(k)               the interest of the Crown in the Fitzroy River Catchment Area (proclamation dated 28 October 1959 and affecting all of Areas 19, 41, 42, 57, 59, 60, 69, 70, 71, 73, 86 and 87 and parts of Areas 13, 17, 18, 20, 58 and 64 as shown on Map 1), the Ord River Catchment Area (proclamation dated 15 February 1960 and affecting part of Area 16 as shown on Map 1) and the Wyndham Water Supply Surface Water Area (proclamation dated 25 March 1997 and affecting part of Area 16 as shown on Map 1);

(l)                  the interests of Telstra Corporation Limited:

(i)                 in the Mt Deborah DRCS Repeater Site in Area 23 (noted on Map 2), being a square shaped area of 0.25 hectares (50 metres by 50 metres), with a station mark located at Longitude 125º05'52.76 Latitude 16º01'00.89.  From the station mark, the northern corner points of the site are at a distance of approximately 39.7 metres;

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

(m)              rights of access to the determination area provided by a law of the State or the Commonwealth in force on the date of the determination.

Relationship between the native title rights and interests and the other interests (s 225(d))

11.              The relationship between the native title rights and interests and the other interests described in paragraph 10 (“the other interests”) is that:

(a)                in relation to the other interests referred to in Order 10(a) and (c) – the rights and interests under the other interest, and the doing of any activity in giving effect to them, prevail over the native title rights and interests, and

(i)            both the rights under the other interest and the native title rights and interests must be exercised reasonably, and

(ii)           the native title right to hunt may only be exercised on pastoral leases:

(A)                    if hunting is conducted with rifles or other firearms, in areas where stock are not present; and

(B)                    if the pastoral lessee or a person otherwise responsible for the management of the pastoral lease is given sufficient advance notice of the intention to hunt in order that safety issues can be addressed;

(b)               in relation to the other interests referred to in Order 10(a), (c),(d) - (f), (i), (j) (l)(ii) and (m) – where the doing of any activity is required or permitted by any lease, licence, permit or authority referred to in Order 10, then:

(i)            the requirement or permission and the doing of the activity prevail over the native title rights and interests and any exercise of those rights and interests;

(ii)           the existence and exercise of the native title rights and interests do not prevent the doing of the activity;

(iii)         both the rights under the other interest and the native title rights and interests must be exercised reasonably, and

(iv)         the native title right to hunt may only be exercised on pastoral leases:

(A)                  if hunting is conducted with rifles or other firearms, in areas where stock are not present; and

(B)                   if the pastoral lessee or a person otherwise responsible for the management of the pastoral lease is given sufficient advance notice of the intention to hunt in order that safety issues can be addressed;

(c)                in relation to the other interests referred to in Order 10(d), (e), (k) and (l)(i) ‑ native title is not extinguished but to the extent that the other interest is inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist but have no effect except to the extent that the other interest or its effects are later removed;

(d)               in relation to the other interests referred to in Order 10(g) and (h) – those rights co‑exist with the native title rights and interests, and both the rights under the other interest and the native title rights and interests must be exercised reasonably.

Definitions and Interpretation

12.              The words and expressions used in this determination have the same meaning as in Part 15 of the Native Title Act except for the following defined expressions:

“determination area” means the area described in Schedule 1 and excluding those things and areas described in Schedule 2;

“laws of the State and the Commonwealth” means the common law and the laws of the State of Western Australia and the Commonwealth of Australia.

“Map” and “Maps 1 and 2” means the maps attached as Annexure 1 to Schedule 1.

13.              A reference in this Determination to an “Area No.” or to the word “Area” followed by a number, is a reference to a part of the determination area or to another area referred to in the following table and as generally shown by the numbers on Map 1. References to “Name” and “Purpose” in the following table and in the tables in the Schedules are for convenience only and do not form part of the Determination:

Area	Description	Name	Purpose
Area 1	Reserve R08248		Watering place for travellers and stock
Area 2	Reserve R08247		Watering place for travellers and stock
Area 3	Reserve R41886	Maranbabidi Community	Use and benefit of Aboriginal inhabitants
Area 4	Unallocated Crown land
Area 5	Pastoral Lease 398/0844	Drysdale River (Extension)	Pastoral
Area 6	Reserve R27164		Conservation of flora and fauna
Area 7	Reserve R21969		Use and benefit of Aborigines
Area 8	Reserve R23079		Use and benefit of Aborigines
Area 9	Pastoral Lease 3114/0833	Theda	Pastoral
Area 10	Pastoral Lease 3114/1174	Doongan	Pastoral
Area 11	Pastoral Lease 398/0446	Drysdale River	Pastoral
Area 12	Pastoral Lease 3114/1190	Ellenbrae	Pastoral
Area 13	Pastoral Lease 3114/1204	Mt Elizabeth	Pastoral
Area 14	Pastoral Lease 3114/0918	Pentecost Downs, Karunjie	Pastoral
Area 15	Pastoral Lease 398/0790	Kachana	Pastoral
Area 16	Pastoral Lease 3114/1180	El Questro	Pastoral
Area 17	Pastoral Lease 3114/0980	Mt Barnett, Kupungarri	Pastoral
Area 18	Pastoral Lease 3114/1042	Marion Downs	Pastoral
Area 19	Pastoral Lease 3114/0785	Glenroy	Pastoral
Area 20	Pastoral Lease 3114/0786	Mt House	Pastoral
Area 21	Pastoral Lease 3114/0865	Beverley Springs	Pastoral
Area 22	Pastoral Lease 398/0691	Charnley River	Pastoral
Area 23	Pastoral Lease 3114/0723	Pantijan	Pastoral
Area 24	Pastoral Lease 3114/1045	Mt Hart	Pastoral
Area 25	Pastoral Lease 3114/0682	Napier Downs	Pastoral
Area 26	Pastoral Lease 3114/0648	Durack River	Pastoral
Area 27	Reserve R41320	Morgan DRCS – Doongan 11	Repeater station site
Area 28	Reserve R08258		Watering place for travellers and stock
Area 29	Reserve R32853	Drysdale River National Park	Class “B” Reserve
Area 30	Reserve R08260		Watering place for travellers and stock
Area 31	Reserve R41369		Domestic satellite ground station
Area 32	Reserve R41740	Dale DRCS – Doongan 14	Repeater station site
Area 33	Reserve R33706		Government requirements
Area 34	Reserve R41402	Ellen DRCS – Omalinde 6	Repeater station site
Area 35	Reserve R08237		Watering place for travellers and stock
Area 36	Reserve R17423		Camping
Area 37	Reserve R17424		Camping
Area 38	Reserve R08238		Watering place for travellers and stock
Area 39	Reserve R22279		Stopping place for travellers and stock
Area 40	Reserve R17422		Camping
Area 41	Reserve R42999	Dodnun Community	Use and benefit of Aboriginal inhabitants
Area 42	Reserve R41687	Lacy DRCS – Marndoc 6	Repeater station site
Area 43	Reserve R41921		Use and benefit of Aboriginal inhabitants
Area 44	Reserve R21328		Use and benefit of Aborigines
Area 45	Reserve R08254		Watering place for travellers and stock
Area 46	Reserve R19751	Munja	Use and benefit of Aborigines
Area 47	Reserve R21968	Munja painting reserve	Use and benefit of Aborigines
Area 48	Reserve R08255		Watering place for travellers and stock
Area 49	Reserve R08256		Watering place for travellers and stock
Area 50	Reserve R21327		Use and benefit of Aborigines
Area 51	Reserve R08257		Watering place for travellers and stock
Area 52	Reserve R09742		Government requirements
Area 53	Reserve R17204		Stock route
Area 54	Reserve R17205		Stock route
Area 55	Reserve R41350	Napier DRCS – Meda 18	Repeater station site
Area 56	Reserve R40911	King DRCS – Numalgun 15	Repeater station site
Area 57	Reserve R40607	Phillips DRCS – Numalgun 14	Repeater station site
Area 58	Pastoral Lease 3114/0997	Gibb River, Ngallanguda	Pastoral
Area 59	Reserve R22278		Stopping place for travellers and stock
Area 60a	Reserve R17421		Stock route – part only
Area 60b	Reserve R17421		Stock route – part only
Area 60c	Reserve R17421		Stock route – part only
Area 61a	Reserve R22256		Stock route – part only
Area 61b	Reserve R22256		Stock route – part only
Area 61c	Reserve R22256		Stock route – part only
Area 62	Reserve R08239		Watering place for travellers and stock
Area 63	Reserve R40770	Synnot Range DCRS – Easton 5	Repeater station site
Area 64	Unallocated Crown land
Area 65	Special Lease 3116/10335
Area 66	Special Lease 3116/10869
Area 67	Pastoral Lease 398/0836	Mt Hart (former part)	Pastoral
Area 68	Special Lease 3116/10534	Winjingayr Community	Use and Benefit of Aboriginal Inhabitants
Area 69	Special Lease 3116/11701
Area 70	Special Lease 3116/10530
Area 71a	Reserve R10773		Road
Area 71b	Reserve R10773		Road
Area 72	Reserve R41150	Foster DCRS – Doongan 12	Repeater station site
Area 73	Reserve R40092	Kupungarri Community	Use and benefit of Aboriginal inhabitants
Area 74	Reserve R40571	Imintji Community	Use and benefit of Aboriginal inhabitants
Area 75	Pastoral Lease 398/0834	Kimberley Downs (part)	Pastoral
Area 76	Pastoral Lease 3114/0962	Home Valley	Pastoral
Area 77	Unallocated Crown land
Area 78	Unallocated Crown land
Area 79	Unallocated Crown land
Area 80	Unallocated Crown land
Area 81	Unallocated Crown land
Area 82	Unallocated Crown land
Area 83	Unallocated Crown land
Area 84	Unallocated Crown land
Area 85	Unallocated Crown land
Area 86	Unallocated Crown land
Area 87	Unallocated Crown land
Area 88	Unallocated Crown land
Area 89	Unallocated Crown land
Area 90	Reserve R40701	Pentecost DRCS – Marndoc 6	Repeater station site
Area 16A	Special Leases 3102/209, 3107/470
Area 16B	Special Lease 3102/207
	Tidal Waters

 

SCHEDULE 1

Determination area

The determination area comprises the land and waters described in Annexure 2 to this schedule and generally shown as bordered in dark blue on the Maps which are Annexure 1 to this schedule.

SCHEDULE 1 - Annexure 1 – The Maps

 

SCHEDULE 1 - Annexure 2

The determination area comprises all of the land and waters bounded by the following description except the areas set out in Schedule 2:

Area the subject of WAG 6016 of 1996

Commencing at the point 125.317076’ longitude east, 15,40758’ –latitude south the boundary traverses north easterly and then easterly through the following geographic coordinates 125.336747’ E 15.376739’ S, 125.482148’E 15.148773’ S, 125.48363’ E 15.146669’S to 125.67902’ E 15.146669’ S where it meets Pastoral Lease 3114/1174.

From here the boundary traverses the westerly boundary of 3114/1174 to its intersection with pastoral lease 398/446 then follows the boundary of this lease in a counter clockwise direction to the south eastern corner of pastoral lease 398/844. From here the boundary traverses westerly initially coincidental with the southern boundary of 398/446 then through the following geographic coordinates 125.67902’ E 15.984085’S, 125.5’ E 15.984085’ S, 125.225726’ E, 15.984085’ S. From here the boundary traverses southerly until it intersects with the boundary of pastoral lease 3114/723. From here the boundary traverses counter clockwise along the boundary of 3114/723 to a position on this boundary at 125.001169’ E 15.90287’ S. From here the boundary traverses north easterly to 125.015751’ E 15.880007’ S then to 125.433333’ E 15.708333’ S then northerly to 125.43’ E 15.508333’ S and then back to the commencement point.

Geographic coordinates are reference to Australian Geodetic Datum (AGD) 84 and where referenced to cadastral features are based on the spatial position of that reference data acquired from the various custodians at the time.

Area the subject of WAG 6015 of 1999

Commencing at the north eastern corner of Theda Pastoral Lease (3114/833) the application boundary traverses southerly, easterly and then in a southerly direction following the boundary of Carson River Pastoral Lease (3114/1056) until the southernmost part of the said lease. The boundary then continues southerly following the eastern boundary of Theda until the intersection with Drysdale River National Park.

The application boundary then continues in a southerly direction, following a previous stock route boundary, to the intersection with Doongan Pastoral Lease (3114/1174). It continues in a southerly direction along this previous stock route boundary to a point located at 126.651995 longitude east, 15.260120 latitude south, which is also coincident with Doongan Pastoral Lease.

The boundary then traverses easterly to 126.914937 longitude east, 15.260119 latitude south, then continuing in an easterly direction following the southern boundary of Drysdale River National Park to the north west corner of Home Valley Pastoral Lease (3114/962).

The boundary then traverses south, east and south along this said boundary to its south west corner, then traversing easterly across a stock route reserve to an intersection between Home Valley and Durack River Pastoral Lease (3114/648). It then follows a series of coordinate points as follows: 

being the intersection between Home Valley and a crown reserve.

The application boundary then traverses easterly along this reserve to a point at 127.826744 longitude east, 15.725307 latitude south, then south easterly, then easterly through the following coordinates:

then to the northwestern corner of Doon Doon Pastoral Lease (3114/953), where it intersects with El Questro Pastoral Lease (3114/1180).

The application boundary then traverses south following the eastern and southern boundaries of the said lease, to its intersection with the north east corner of Kachana Pastoral Lease (398/790), then continuing to the south western corner of Doon Doon. The application boundary then traverses west following the southern boundary of Kachana to the intersection with Durack River Pastoral Lease (3114/648) and Tableland Pastoral Lease (3114/1009). Then traversing south, west and then south along the boundary of Tableland and then Bedford Downs (3114/1053) until it again meets the boundary of Tableland at approximately 127.562378 longitude east, 16.842289 latitude south.

It then traverses the northern boundary of Tableland until the intersection with Mornington Pastoral Lease (3114/1226), then traversing the northern boundary of the said lease until a point located on the boundary at approximately 126.301803 longitude east, 17.253808 latitude south. The boundary then traverses westerly along the following coordinates:

being located on the boundary of Napier Downs (S398/833) and (3114/682).  The boundary then traverses west along this said pastoral lease and then follows the boundary of Kimberley Downs (398/834) until a point at 124.448464 longitude east, 17.348550 latitude south.

The boundary then traverses through the following coordinates:

which is on the boundary of a road reserve and Kimberley Downs.

The boundary traverses northerly following this road reserve until 124.411254 longitude east, 17.275195 latitude south, then north easterly through the following coordinates:

which is coincident with Native Title Application WC99/007.

The boundary then continues in a northerly direction traversing the following coordinates, being coincident with WC99/007:

The boundary then traverses east to 124.639200 longitude east, 17.029900 latitude south, again meeting the boundary of WC99/007 and the northern boundary of Napier Downs Pastoral Lease (3114/682), then following this boundary to the south west corner of Mt Hart (3114/1045), then traversing along the western boundary of Mt Hart to its north western corner. Continuing north to 124.780466 longitude east, 16.493656 latitude south, then to the southwestern corner of Pantijan Pastoral Lease (3114/723). The boundary then traverses the western and northern boundaries of the said lease until 125.225726 longitude east, 15.998544 latitude south.

The boundary then traverses north to the south west corner of Prince Regent Nature Reserve, traversing east along the southern boundary of this reserve and then across to the south west corner of Drysdale River Pastoral Lease (398/844), then traverses the southern and eastern boundaries of the said lease to the north eastern corner.

The boundary then traverses east to the boundary between Doongan (3114/1174) and Drysdale River (398/446), then follows the western boundary of Doongan to the north eastern corner of Prince Regent Nature Reserve. It then traverses west to 125.48363 longitude east, 15.146669 latitude south, south westerly to 125.482148 longitude east, 15.148773 latitude south and then 125.336747 longitude east, 15.376739 latitude south, then west north westerly to 125.230457 longitude east, 15.33024 latitude south then north easterly to 125.523942 longitude east, 14.950974 latitude south, and east to 125.746148 longitude east, 14.950983 latitude south. Traversing south east then north around a crown reserve to 125.757305 longitude east, 14.950983 latitude south, then east to the northern boundary of Doongan (3114/1174), continuing to 126.132422 longitude east, 14.950998 latitude south, then traversing through the following coordinates:

being the intersection between Theda (3114/833) and vacant crown land. The boundary then follows the western boundary of Theda Pastoral Lease to the Commencement Point.

Geographic coordinates are in decimal degrees and are referenced to Australian Geodetic Datum 1984 (AGD84). These have been based on the spatial reference data acquired from the various custodians at the time.

SCHEDULE 2

Exclusions from the determination area

[Areas excluded from claims]

The areas and things within the external perimeter of the determination area that are excluded from it are the following:

(a)                minerals, petroleum and gas wholly owned by the Crown;

(b)               the Gibb River to Wyndham and the Gibb River to Kalumburu Roads as identified in Schedule 10 and shown on the Maps including rest areas established at the date of this Determination;

(c)                the seven water bores identified in Schedule 10 and shown on Map 2;

(d)               such of the borrow pits identified in Schedule 10 and shown on Map 2 as lie within the external perimeter of the determination area and have been established and are not exhausted at the date of this Determination, excluding those involving river sand;

(e)                the fifteen meteorological sites identified in Schedule 10 and shown on Map 2;

(f)                 the seventeen surface water sites identified in Schedule 10 and shown on Map 2;

(g)                the surface water site identified in Schedule 10 and shown on Map 2;

(h)                the seventy four groundwater wells identified in Schedule 10 and shown on Map 2;

(i)                  the groundwater well identified in Schedule 10 and shown on Map 2;

(j)                 the three groundwater wells identified in Schedule 10 and shown on Map 2;

(k)               land or waters comprising the following Areas:

Area No.	Description	Name	Purpose
Area 6	Reserve R27164		Conservation of flora and fauna
Area 27	Reserve R41320	Morgan DRCS – Doongan 11	Repeater station site
Area 31	Reserve R41369		Domestic satellite ground station
Area 32	Reserve R41740	Dale DRCS – Doongan 14	Repeater station site
Area 34	Reserve R41402	Ellen DRCS – Omalinde 6	Repeater station site
Area 42	Reserve R41687	Lacy DRCS – Marndoc 6	Repeater station site
Area 55	Reserve R41350	Napier DRCS – Meda 18	Repeater station site
Area 56	Reserve R40911	King DRCS – Numalgun 15	Repeater station site
Area 57	Reserve R40607	Phillips DRCS – Numalgun 14	Repeater station site
Area 61a	Reserve R22256		Stock route – part only
Area 61b	Reserve R22256		Stock route – part only
Area 61c	Reserve R22256		Stock route – part only
Area 63	Reserve R40770	Synnot Range DRCS – Easton 5	Repeater station site
Area 65	Special Lease 3116/10335
Area 66	Special Lease 3116/10869
Area 69	Special Lease 3116/11701
Area 70	Special Lease 3116/10530
Area 72	Reserve R41150	Foster DRCS – Doongan 12	Repeater station site
Area 90	Reserve R40701	Pentecost  DRCS – Marndoc 6	Repeater station site

 

SCHEDULE 3

Areas where native title does not exist

[Complete extinguishment and not excluded]

The parts of the determination area where native title does not exist are the following Areas:

(a)                the following areas:

Area No.	Description	Name	Purpose
Area 7	Reserve R21969		Use and benefit of Aborigines
Area 8	Reserve R23079		Use and benefit of Aborigines
Area 16A	Special Leases 3102/209, 3107/470
Area 43	Reserve R41921		Use and benefit of Aboriginal inhabitants
Area 44	Reserve R21328		Use and benefit of Aborigines
Area 46	Reserve R19751	Munja	Use and benefit of Aborigines
Area 47	Reserve R21968	Munja painting reserve	Use and benefit of Aborigines
Area 50	Reserve R21327		Use and benefit of Aborigines

(b)               Beverley Springs DRCS Repeater Station in Area 21 described in Schedule 10 and shown on Map 2;

(c)                Bindoola DRCS Repeater Station in Area 26 described in Schedule 10 and shown on the Map 2;

(d)               access tracks established at the date of this Determination to the areas and things in paragraphs (c) to (j) in Schedule 2 from the nearest road (see Map 2 and Schedule 10 for site descriptions);

(e)                access tracks established at the date of this Determination to Areas 27, 32, 34, 42, 55, 56, 57, 63, 72 and 90 (see Map 1 for Area locations) from the nearest road;

(f)                 access tracks established at the date of this Determination to the Bindoola DRCS Repeater Site in Area 26 and the Beverley Springs DRCS Repeater Site in Area 21 from the nearest road (see Map 2 and Schedule 10 for site descriptions);

(g)                land that has been appropriated as at the date of this Determination for use (whether by dedication, setting aside, reservation or other valid means) and used for roads.

SCHEDULE 4

Areas where native title comprises the rights set out in Order 4

[No extinguishment – or to be disregarded]

The parts of the determination area where native title comprises the rights and interests set out in Order 4 are the following areas:

Area	Description	Name	Purpose
Area 3	Reserve R41886	Maranbabidi Community	Use and benefit of Aboriginal inhabitants
Area 4	Unallocated Crown land
Area 14	Pastoral Lease 3114/0918	Pentecost Downs, Karunjie	Pastoral
Area 17	Pastoral Lease 3114/0980 (including the areas of M80/329 and M80/331)	Mr Barnett, Kupungarri	Pastoral (and mining)
Area 23	Pastoral Lease 3114/0723	Pantijan	Pastoral
Area 26	Pastoral Lease 3114/0648	Durack River	Pastoral
Area 41	Reserve R42999	Dodnun Community	Use and benefit of Aboriginal inhabitants
Area 58	Pastoral Lease 3114/0997	Gibb River, Ngallanguda	Pastoral
Area 64 (part)	Unallocated Crown land (to the extent it is not covered by the Fitzroy River proclamation)
Area 68	Special Lease 3116/10534 (including part of the area of M04/161)	Winjingayr Community	Use and Benefit of Aboriginal inhabitants (and mining)
Area 71a (part)	Reserve R10773 (to the extent it is within Area 17 and to the extent (if any) it is not within the present alignment of the Gibb River Road)		Road
Area 73	Reserve R40092	Kupungarri Community	Use and benefit of Aboriginal inhabitants
Area 74	Reserve R40571	Imintji Community	Use and benefit of Aboriginal inhabitants
Area 77 (part)	Unallocated Crown land ( to the extent it was not covered by historical pastoral leases and the historical reserve)
Area 80 (part)	Unallocated Crown land (first leg of third strip of land, and second leg of third strip to the extent it is within Area 58)
Area 83	Unallocated Crown land
Area 84 (part)	Unallocated Crown land (to the extent it was not covered by former pastoral lease K733)
Area 85 (part)	Unallocated Crown land (to the extent it was not covered by former pastoral leases)
Area 86	Unallocated Crown land
Area 87	Unallocated Crown land

 

SCHEDULE 5

Areas where native title comprises the rights set out in Order 5

[Pastoral lease partial extinguishment]

The parts of the determination area where native title comprises the rights and interests set out in Order 5 are the following areas:

 

Area	Description	Name	Purpose
Area 1	Reserve R08248		Watering place for travellers and stock
Area 2	Reserve R08247		Watering place for travellers and stock
Area 5	Pastoral Lease 398/0844 (including the area of G04/31)	Drysdale River (Extension)	Pastoral (and mining)
Area 9	Pastoral Lease 3114/0833	Theda	Pastoral
Area 10	Pastoral Lease 3114/1174	Doongan	Pastoral
Area 11	Pastoral Lease 398/0446	Drysdale River	Pastoral
Area 12	Pastoral Lease 3114/1190	Ellenbrae	Pastoral
Area 13	Pastoral Lease 3114/1204	Mr Elizabeth	Pastoral
Area 15	Pastoral Lease 398/0790	Kachana	Pastoral
Area 16	Pastoral Lease 3114/1180	El Questro	Pastoral
Area 18	Pastoral Lease 3114/1042	Marion Downs	Pastoral
Area 19	Pastoral Lease 3114/0785	Glenroy	Pastoral
Area 20	Pastoral Lease 3114/0786	Mr House	Pastoral
Area 21	Pastoral Lease 3114/0865	Beverley Springs	Pastoral
Area 22	Pastoral Lease 398/0691	Charnley River	Pastoral
Area 24	Pastoral Lease 3114/1045 (including the area of M04/90)	Mr Hart	Pastoral (and mining)
Area 25	Pastoral Lease 3114/0682 (including the area of each of G04/2, M04/84, M04/86, M04/88, M04/91, M04/162 and part of M04/161)	Napier Downs	Pastoral (and mining)
Area 28(part)	Reserve R08258 (to the extent covered by historical pastoral lease K921)		Watering place for travellers and stock
Area 30	Reserve R08260		Watering place for travellers and stock
Area 33	Reserve R33706		Government requirements
Area 35	Reserve R08237		Watering place for travellers and stock
Area 36	Reserve R17423		Camping
Area 37	Reserve R17424		Camping
Area 38	Reserve R08238		Watering place for travellers and stock
Area 39	Reserve R22279		Stopping place for travellers and stock
Area 40	Reserve R17422		Camping
Area 45	Reserve R08254		Watering place for travellers and stock
Area 48	Reserve R08255		Watering place for travellers and stock
Area 49	Reserve R08256		Watering place for travellers and stock
Area 51	Reserve R08257		Watering place for travellers and stock
Area 52	Reserve R09742		Government requirements
Area 53	Reserve R17204		Stock route
Area 54	Reserve R17205 (including the area of M04/161)		Stock route (and mining)
Area 59	Reserve R22278		Stopping place for travellers and stock
Area 60a	Reserve R17421		Stock route – part only
Area 60b	Reserve R17421		Stock route – part only
Area 60c(part)	Reserve R17421(to the extent covered by historical pastoral leases 5/11,5/17,5/45,5/104,5/105,5/111,K485, K655, and K656		Stock route – part only
Area 62	Reserve R08239		Watering place for travellers and stock
Area 64(part)	Unallocated Crown land (to the extent it is covered by the Fitzroy River Proclamation)
Area 67	Pastoral Lease 398/0836	Mt Hart (former part)	Pastoral
Area 71a (part)	Reserve R10773 (to the extent it is not within Area 17 and to the extent (if any) it is not within the present alignment of the Gibb River Road)		Road
Area 71b	Reserve R10773 (to the extent (if any) it is not within the present alignment of the Gibb River Road		Road
Area 75	Pastoral Lease 398/0834	Kimberley Downs (Part)	Pastoral
Area 76	Pastoral Lease 3114/0962	Home Valley	Pastoral
Area 77(part)	Unallocated Crown land (to the extent it was covered by historical pastoral leases)
Area 78	Unallocated Crown land
Area 79	Unallocated Crown land
Area 80 (part)	Unallocated Crown land ( to the extent it is not within Schedule 4 or Schedule 6)
Area 81	Unallocated Crown land
Area 82 (part)	Unallocated Crown land (including the area of TR70/5610)
Area 84 (part)	Unallocated Crown land ( to the extent it was covered by historical pastoral lease K733)
Area 85 (part)	Unallocated Crown land (to the extent it was covered by former pastoral leases
Area 88	Unallocated Crown land
Area 89	Unallocated Crown land

 

SCHEDULE 6

Areas where native title comprises the rights set out in Order 6

[Non‑vested reserve partial extinguishment]

The parts of the determination area where native title comprises the rights and interests set out in Order 6 are the following areas:

Area	Description	Name	Purpose
Area 28 (part)	Reserve R08258 (to the extent not covered by historical pastoral lease K921)		Watering place for travellers and stock
Area 60c (part)	Reserve R17421( to the extent not covered by historical pastoral leases 5/11,5/17,5/45,5/104,5/105, 5/111, K485, K655 and K656)		Stock route – part only
Area 77 (part)	Unallocated Crown land (to the extent covered by historical Reserve R8262)
Area 80 (part)	Unallocated Crown land (to the extent covered by historical Reserve R8265)

 

SCHEDULE 7

Areas where native title comprises the rights set out in Order 7

[By-Laws 13 and 15 made in 1963 pursuant to s8 of the Parks and Reserves Act 1895]

The part of the determination area where native title comprises the rights and interests set out in Order 7 is:

Area	Description	Name	Purpose
Area 29 (part)	Reserve 32853	Drysdale River National Park	National Park Class “B” Reserve

 

SCHEDULE 8

Areas where native title comprises the rights set out in Order 8

[Tidal Waters]

The parts of the determination area where native title comprises the rights and interests set out in Order 8 are: so much, if any, of the determination area in the vicinity of the mouth of the Calder River and in the vicinity of the mouth of the Roe and Moran Rivers as are seaward of the high water mark.

SCHEDULE 9

The members of the Wanjina-Wunggurr Community referred to in Order 3

The descendants of Manumordja, Bulun, Muduu, Banganjaa, Djanghara, Yamara, Baangngayi, Miyaawuyu, Juugaariitor, Djurog-gal, Gilingii, Buunduunguu, Awololaa, Baarrbarrnguu, Angaarambuu, Liinyang, Maanduu-Nuunda, Yuulbal, Freddie Yauubidi, Djalalarmarra, Biljimbirii, Didjingul and Jimmy Manguubangguu.

The descendants of Bandilu, Jarara, Garnag, Momolindij, Galadna, Wanbalug, Burrimbalu, Niyalgarl, Janggara, Ngambijmoro Birramang-nguray, Marala, Gayroog, Buunbuun, Bunngn-guuluu, Djanban, Ngaul-gnarli, Wuungulaa, Maamaandil, Djalanoo, Djilawalaa, Gunagang-ngarii, Mirgngala,, Wabilu, Babirri, Morndignali, Wulagudan, Balangurr, Nyolgodi, Bagumaya, Banggulmoro, Bundungumen, Bagurrngumen, Jilbidij, Bulyuriyali, Brarnggun, Moundi Nirrin,. Molabayng, King O'Malley, Ulinji, Nyaminjenman, Nyalangun, Nalawaru, Bumangul Jarngulay, Bandibej, Munbara, Didburr, Gungala, Wundij, Larburr, Mandi Bandumar, Omboni, Wama, Jalimburr, Bundanali, Umbawinali, Dinamoro, Yalwamurrngarri, Milarbiyar, Mudarwin, Larungumen, Gunduran, Warrwarr, Dandangumen, Didburrngomen, Naranyalgan, Jimmy Bird, Monarriyali, Ngarburrngu, Yanbongu, Dudungungga, Jimmy Wawawawarri, together with the descendants of Dalbi, who was adopted into the native title claimant group; and

The descendants of Bulun/Mauckie, Luwirr, Binjirrngu/Kadi, Djamai, Marnpiny, Munguwadawoi, Kanaway, Arai Djinbari, Maudie Kaiimbinya, Nyanggawana, Ernie Nyimandum and Ruby, Manumortja, Peter Malanaby, Old Jacob, Miyardu, Jerry Jangoot, Jabadayim, Nalawaru, Junggara and Murunguny together with Kenny Oobagooma, Jacob Sesar and Evelyn Bandora, who were adopted into the native title claimant group, and their descendants.

SCHEDULE 10

Location and Description of certain items mentioned in Schedules 2 and 3

 

Schedule Reference	Item	Location
Schedule 2(b)	Gibb River to Wyndham and Gibb River to Kalumburu Roads and rest areas
Schedule 2(c)	Seven water bores
Schedule 2(d)	Borrow pits
Schedule 2(e)	Fifteen meteorological sites
Schedule 2(f)	Seventeen surface water sites
Schedule 2(g)	Surface water site
Schedule 2(h)	Seventy four groundwater wells
Schedule 2(i)	Groundwater well
Schedule 2(j)	Three groundwater wells
Schedule 3(b)	Beverley Springs DRCS Repeater Site	Beverley Springs DRCS Repeater Site in Area 21, being a square shaped area of 0.36 hectares (60 metres by 60 metres), the corner points of which are located 42.43 metres from a central station mark located at Longitude 125º28'03 Latitude 16º43'53.
Schedule 3(c)	Bindoola DRCS Repeater Site	Bindoola DRCS Repeater Site in Area 26, being a square shaped area of 0.36 hectares (60 metres by 60 metres), the corner points of which are located 42.43 metres from a central station mark located at Longitude 127º23'23 Latitude 15º53'23.

 

AND THE COURT FURTHER ORDERS THAT:

How the Native Title is Held

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

The Native Title Body Corporate

15.              Within six months of the date of this Determination the Registered Native Title Claimants are to nominate in writing to the Court a prescribed body corporate to:

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

(b)               perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate,

as to which there is liberty to apply.

16.              In the event that there is no nomination within the time specified in Order 14 or such later time as the Court may order, the Registered Native Title Claimants are to forthwith apply to the Court for further directions.

17.              Until such time as there is a registered native title body corporate in relation to the determination area any notices required under the Native Title Act or otherwise to be served on the Native Title Holders, the native title claim group or the Registered Native Title Claimants may be served upon the solicitors for the Applicants and the representative Aboriginal body for the determination area, and such service shall be deemed to be sufficient.

18.              In respect of land and waters other than that referred to in paragraph 2, Applications WAG 6016 of 1996, WAG 6015 of 1999 and WAG 6006 of 2002 are not “finalised” within the meaning of s 190(4)(e) of the Native Title Act until a prescribed body corporate has been determined, in accordance with s 57(2) of the Native Title Act, to perform the functions mentioned in s 57(3) of that Act.

DEPUTY DISTRICT REGISTRAR