FEDERAL COURT OF AUSTRALIA

Thudgari People v State of Western Australia [2009] FCA 1334

CORRIGENDUM

CHARLIE LAPTHORNE, WAYNE LAPTHORNE, ALICE MONCRIEFF, STEWART PECK, BELLA RANDALL, BEN ROBERTS, WARREN STANLEY RYAN AND PETER WINDIE ON BEHALF OF THE THUDGARI PEOPLE v THE STATE OF WESTERN AUSTRALIA, BAGDEN PTY LTD, BAMBI PTY LTD, GLEN STANLEY DELLAR, JAMES EDWARD DORRELL, LORAINE PATRICIA DORRELL, PR & SJ GREY (GLEN FLORRIE STATION), GAIL SUZANNE HOPKINSON, GRAEME ROBERT HOPKINSON, K BIGGS ENTERPRISES PTY LTD, KANANGRA GRAZING PTY LTD, LYNDON STATION PTY LTD, WARREN CLIFFORD MCKINNON, MOOGOOREE PTY LTD, NANUTARRA GRAZING PTY LTD, PINDARRA PASTORAL PTY LTD, STAMCO BEEF PTY LTD, THREE CORNER PROPERTIES PTY LTD, WILLIAMBURY STATION WA PTY LTD (WILLIAMBURY STATION), YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION and TELSTRA CORPORATION LIMITED

WAD 6212 of 1998

BARKER J

18 NOVEMBER 2009 (Corrigendum 23 november 2009)

SOUTH BORE, ULLAWARRA STATION

CORRIGENDUM

1                     Following Order 4 of the Orders of the Court, the Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998 is added.

Associate:

Dated:         23 November 2009

THE COURT NOTES THAT:

A.               The applicant in proceeding WAD 6212 of 1998 has made a native title determination application that relates to an area of land and waters (the Thudgari Application), part of which comprises the subject of the proposed determination of native title (theDetermination).

B.             The applicant proposes to discontinue its application in respect of an area of land and waters in the south-western portion of the Thudgari application which geographically overlaps part of Pastoral Lease 3114/656, being Middalya Station, part of Pastoral Lease 3114/728, being Mia Mia Station and part of Pastoral Lease I080126, being Wandagee Station.  The State of Western Australia and the other respondents to the proceedings agree to that course.

C.             The applicant and each of the respondents (the parties) have reached agreement as to the terms of the Determination which is to be made in relation to the balance of the land and waters covered by the Thudgari application (the Determination Area).

D.             Each of the second respondents, with the exception of the seventh and eighth named second respondents (whose interests lie wholly in that part of the Thudgari Application that is being discontinued), has agreed to the terms of the Determination on the basis of having reached agreements with the applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area.  Following the making of the Determination, those agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth).  The seventh and eighth named second respondents have agreed to the terms of the Determination on the basis that Pastoral Lease I080126, being Wandagee Station, forms part of the Thudgari Application that is to be discontinued and no determination made pursuant to order 2.

E.              Pursuant to ss 87(1)(a)(i) and 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached. 

F.              The terms of the agreement involve the making of consent orders for a determination of native title pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the Determination Area as set out in the Determination.

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

H.             The parties have requested the Court to hear and determine the proceedings that relate to the Determination Area.

I.                The applicants have nominated the Wyamba Aboriginal Corporationpursuant to s 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination of native title in the terms set out in the attached Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 of the Native Title Act 1993 (Cth) and by the consent of the parties:

THE COURT ORDERS THAT:

1.             In relation to the Determination Area, there be a determination of native title in WAD 6212 of 1998 in terms of the attached Minute of Proposed Consent Determination of Native Title.

2.             Any part of the Thudgari Application that lies outside the external boundaries of the Determination Area be discontinued and no determination is made in respect of that part.

3.       The Wyamba Aboriginal Corporationshall hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act 1993 (Cth).

4.       There be no order as to costs.

Minute of Proposed Consent Determination of Native Title in respect of WAD 6212 of 1998

Existence of Native Title (S225)

1.                  Subject to paragraph 2, native title exists in the Determination Area.

2.                  Native title does not exist in relation to those parts of the Determination Area identified in the Second Schedule and shaded green in the maps at Attachment 1 to the First Schedule.

Native Title Holders (S225(A))

3.                  The common rights comprising the native title in the Determination Area are held by the Thudgari people being the people referred to in the Fourth Schedule.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

4.                  Subject to paragraphs 5, 6 and 7, the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non‑exclusive rights on the Native Title Holders:

(a)              Access the land and waters;

(b)              Enter and remain on the land, camp, erect shelters and light firesfor cooking, heating and lighting purposes;

(c)              Take flora, fauna, fish and other traditional resources (excluding minerals) from the land and waters;

(d)              Take and use water, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured or controlled by the holders of the pastoral leases pursuant to those leases or other valid permit or authority;

(e)               Engage in ritual and ceremony;

(f)               Care for, maintain and protect from physical harm, particular sites and areas of significance to the native title holders; and

(g)              Be accompanied onto the determination area by those people who, though not native title holders, are spouses, parents or descendants of native title holders.

5.                  The native title rights and interests set out in paragraph 4 are subject to and exercisable in accordance with:

(a)                the laws of the State and the Commonwealth, including the common law; and

(b)               the traditional laws and customs of the Native Title Holders for personal, domestic or non-commercial communal purposes (including social, medicinal, cultural, religious, spiritual and ceremonial purposes).

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

(a)        possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; nor

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

7.                  Notwithstanding anything in this determination the native title rights and interests set out in paragraph 4 include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA) (repealed), but do not confer any rights in relation to:

(a)                minerals as defined in the Mining Act 1904 (WA) (repealed), Mining Act 1978 (WA);

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

(c)                geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

No application of s47A or s47B of the Native Title Act

8.                  For the avoidance of doubt, sections 47A and 47B of the Native Title Act do not apply in relation to the Determination Area.

The nature and extent of any other interests (s225(c))

9.                  The nature and extent of the other rights in the Determination Area are described in the Third Schedule.

Relationship between native title rights and other interests (s225(d))

10.              The relationship between the native title rights and interests described in paragraph 4 and the other interests referred to in pararaph 9 is that:

(a)                to the extent that any of the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests and cannot be enjoyed or exercised to the extent of the inconsistency during the currency of the other interests; and otherwise,

(b)               the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but subject to the operation of section 24JB(2) of the Native Title Act, do not extinguish them.

Definitions and Interpretation

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

"Determination Area" means the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule;

"land" has the same meaning as in the Native Title Act;

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

"Native Title Holders" means the persons described in the Fourth Schedule;

"Pastoral Leases" means Pastoral Leases 3114/547, 3114/580, 3114/647, 3114/656, 3114/728, 3114/946, 3114/1014, 3114/1041, 3114/1055, 3114/1096, 3114/1122, 3114/1225, 3114/1236, 3114/1249, and 398/593; and

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

12.              In the event of any inconsistency between the written description of an area in the First, Second or Third Schedules and the area as depicted on the maps at Attachment 1 to the First Schedule, the written description prevails.

[Schedule referred to in paragraphs 11 and 12]

The Determination Area, generally shown as bordered in blue on the maps at Attachment 1 to this Schedule, comprises all that land and waters bounded by the following description:

All those lands and waters commencing at Latitude 22.955968 South, Longitude 115.544976 East, being a point on the southern boundary of Native Title Determination WAD6113/98 Thalanyji (WC99/45), and extending generally north easterly along boundaries of that application passing through the following coordinate points:

Then easterly to Latitude 22.904084 South, Longitude 115.702487 East, being the southernmost south western corner of the western severance of Native Title Determination Application WAD126/05 Puutu Kunti Kurrama and Pinikura 2 (WC05/4), then generally north easterly and southerly along boundaries of that application passing through the following coordinate points:

Then southerly and south easterly passing through the following coordinate points:

Then south westerly to Latitude 23.417207 South, Longitude 116.345406 East, being a point on a northern boundary of Native Title Determination Application WAD6161/98 Gnulli (WC97/28); then generally south westerly along boundaries of that application passing through the following coordinate points:

Then generally north westerly passing through the following coordinate points:

Then south easterly to a point on the boundary of Native Title Determination Application WAD131/04 Budina People (WC04/5) at Latitude 23.639774South, Longitude 114.978912East; then again south easterly, north westerly and northerly along boundaries of that application passing through the following coordinate points:

Then north easterly back to the commencement point.

Data Reference and Sources:

§         Native Title Determination Applications:

-         WAD6113/98 Thalanyji (WC99/45) as determined by the Federal Court on the 18/09/2008.

-         WAD6161/98 Gnulli (WC97/28) as accepted for Registration on the 20/10/2000.

-         WAD131/04 Budina People (WC04/5) as accepted for Registration on the 22/08/2005.

-         WAD126/05 Puutu Kunti Kurrama and Pinikura 2 (WC05/4) as accepted for Registration on the 15/08/2006.

§         Extent of western most western boundary sourced from Geospatial Services, National Native Title Tribunal.

Note:               Geographic Co-ordinates provided in Decimal Degrees

Datum:           Geocentric Datum of Australia (1994)

Prepared by:  Native Title Spatial Services, Landgate, 23 September 2009

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

FIRST SCHEDULE – ATTACHMENT 1

Grants of estates in fee simple within the Determination Area including, but not limited to, the following:

(a)                    Gascoyne Location 17 (CT 1940/873).

(a)                    Reserve 26808 ("Barlee Range Nature Reserve") for the purpose of conservation of flora and fauna vested pursuant to section 33 of the Land Act 1933 (WA) in the Western Australian Wildlife Authority on 29 August 1969 and 14 September 1984 (currently vested in the Conservation Commission of Western Australia);

(b)                   Reserve 40852 (Gascoyne Location 365) for the purpose of natural gas pipeline purposes vested pursuant to section 33 of the Land Act 1933 (WA) in the State Energy Commission on 17 March 1989 (currently vested in the Dampier to Bunbury Natural Gas Pipeline Land Access Minister); and

(c)                    Reserve 41058 (Hardey Location 6) for the purpose of a repeater station site vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian Telecommunications Commission on 1 September 1989.

(a)               Road No. 314, described as a Main Road, one chain wide, from Carnarvon to Williamberg and gazetted on 24 September 1890 at p.712;

(b)               Road No. 440 (one chain wide), dedicated pursuant to section 58 of the Roads Act 1888 (WA) and gazetted on 7 September 1894 at p.890;

(c)               Road No. 566, described as "Westward No. 2" road, dedicated pursuant to section 58 of the Roads Act 1888 (WA) and gazetted on 24 April 1896 at p.660;

(d)               Road No. 3609, dedicated pursuant to section 5 of the Road Districts Act 1919 (WA) and marked on Plan No. 503091;

(e)               Road No. 3626 (one chain wide), set apart, taken or resumed under section 17 of the Public Works Act 1902 (WA) and gazetted on 6 September 1935 at p.1764;

(f)                 Road No. 5432, dedicated pursuant to section 5 of the Road Districts Act 1919 (WA) and marked on Plan No. 503085;

(g)               Road No. 5993 (one chain wide), dedicated pursuant to the Roads Act 1911 and gazetted on 3 May 1918 at p.569;

(h)               Road No. 8475 (one chain wide), set apart, taken or resumed under section 17 of the Public Works Act 1902 (WA) and gazetted on 4 April 1930 at pp.997-998;

(i)                 Road No. 9476 (one chain wide), set apart, taken or resumed under section 17 of the Public Works Act 1902 (WA) and gazetted on 10 May 1935 at p.945; and

(j)                 Public Road shown on Deposited Plan 105762 and dedicated pursuant to section 5 of the Road Districts Act 1911 (WA).

Easements containing public works granted to the State Energy Commission of Western Australia (and currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purposes of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas, including the following:

(a)          Easement 3134B/219 granted on 13 September 1988;

(b)          Easement 3134B/234 granted on 25 October 1988;

(c)          Easement 3134B/239 granted on 13 September 1988; and

(d)          Easement 3134B/785 granted on 20 March 1992.

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

[Schedule referred to in paragraph 9]

The nature and extent of other interests in relation to the Determination Area are:

(1)         The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

(a)          Reserve 711 ("Alma Island") for public purposes;

(b)         Reserve 1111 ("Biangoola Pool") and Reserve 1121 ("Blue Rock Pool") for the purpose of watering stock;

(c)          Reserve 2907 ("Williambury Pool") for the purpose of resting place for travellers and stock;

(d)         Reserve 9701 for the purpose of the De Grey-Mullewa stock route;

(e)          Reserve 16454 for the purpose of the protection of vermin proof fence;

(f)           Reserves 16516, 16517, 16518 and 16519 (Lyndon Locations 16, 17, 18 and 19 respectively) for the purpose of Water (Rabbit Department); and

(g)          Reserve 17673 for the purpose of addition to the De Grey-Mingenew stock route.

(2)                   The rights and interests of persons holding leases over areas of the reserves identified in subparagraph (1) above.

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

(a)                    Pastoral lease 3114/547 being Edmund Station;

(b)                   Pastoral lease 3114/580 being Uaroo Station;

(c)                    Pastoral lease 3114/647 being Wyloo Station;

(d)                   Pastoral lease 3114/656 being Middalya Station;

(e)                    Pastoral lease 3114/728 being Mia Mia Station;

(f)                     Pastoral lease 3114/946 being Maroonah Station;

(g)                    Pastoral lease 3114/1014 being Glen Florrie Station;

(h)                    Pastoral lease 3114/1041 being Lyndon Station;

(i)                      Pastoral lease 3114/1055 being Minnie Creek Station;

(j)                     Pastoral lease 3114/1096 being Nanutarra Station;

(k)                   Pastoral lease 3114/1122 being Mangaroon Station;

(l)                      Pastoral lease 3114/1225 being Williambury Station;

(m)                  Pastoral lease 3114/1236 being Kooline Station;

(n)                    Pastoral lease 3114/1249 being Ullawarra Station; and

(o)                   Pastoral lease 398/593 being Towera Station.

The rights and interests of the holders of the following mining tenements granted under the Mining Act 1978 (WA):

(a)                    Mining Leases

(b)                   Miscellaneous Licences

(c)                    Prospecting Licences

(d)                   Exploration Licences

(1)         The interests of the holders of the following interests granted under the Petroleum Pipeline Act 1969 (WA):

(a)        Pipeline Licences

(2)         The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of DBNGP (WA) Nominees Pty Limited and any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34 and 36 of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land the subject of the following taking orders:

For the avoidance of doubt, those interests include:

(a)          Access Easement to Bore 4/1 within Lot 178 on Deposited Plan 220208 and being the land shown on Deposited Plan 95901 (I321898); and

(b)         Access Easement to R14 within Lot 414 on Deposited Plan 238006 and being the land shown on Deposited Plan 219742 (H641164).

(a)          Without limiting the operation of any other paragraph in the Third Schedule, but subject to paragraph 5(b) below, the rights of the holders from time to time of a mining tenement or petroleum interest referred to in paragraphs 3 and 4 of the Third Schedule to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)          Nothing in paragraph 5(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to paragraph 5(a).

The rights and interests held by Telstra Corporation Limited:

(a)                    as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and cabling;

(b)                   as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(c)                    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

(d)           for its employees, agents or contractors to enter the Determination Area to access its facilities in, and in the vicinity of, the Determination Area.

The following rights and interests:

(a)          rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power;

(b)          rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA);

(c)          rights and interests of members of the public arising under the common law;

(d)          the right to access the Determination Area by an employee, agent or instrumentality of:

(i)             the State;

(ii)            the Commonwealth;

(iii)          any local government authority, 

as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;

(e)          so far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect on Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:

(i)             waterways; or

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

(iii)          stock routes;

(f)           the right of any person to use and enjoy (subject to the laws of the State) any road in the Determination Area over which, as at the date of this determination, members of the public have access according to the common law; and

(g)      any other:

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

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

(A)     the land or waters; or

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

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

[Schedule referred to in paragraphs 3 and 11]

The Native Title Holders are the Thudgari people who:

(1)          are the descendants of people who belonged to the Tharrkari, Warriyangka, Jiwarli and Thiin language groups, in particular the descendants of the following ancestors: 

(a)            Maldurdari and Jiraguru;

(b)           Balgonyunga and Wurajulba;

(c)            Yagaraja and Kurmainma;

(d)           Thaldungu and Jigura;

(e)            Larry Brewer and Nancy Cameron;

(f)             Togo Griffin and Agnes Barron;

(g)            Marigold; and

(h)            Warngarri and Didibirri;

or who are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Thudgari; and

(2)          identify themselves as Thudgari under traditional law and custom and are so identified by other Native Title Holders as Thudgari; and

(3)                   have a connection with the land and waters in the Determination Area, in accordance with traditional laws acknowledged and the traditional customs observed by the Thudgari.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.