FEDERAL COURT OF AUSTRALIA
Barunga v State of Western Australia [2011] FCA 518
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT NOTES THAT:
A. The applicant in proceeding WAD 6061 of 1998 has made a native title determination application (“Wanjina-Wunggurr Dambimangari Application”).
B. The applicant in the Wanjina-Wunggurr Dambimangari Application, the State of Western Australia and the other respondents to the proceeding have reached an agreement as to the terms of the determination which is to be made in relation to most of the land and waters covered by the Wanjina-Wunggurr Dambimangari Application (“Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the Determination.
C. The applicant in the Wanjina-Wunggurr Dambimangari Application has agreed to the dismissal of the application in respect of the area of the land and waters the subject of the Wanjina-Wunggurr Dambimangari Application that is outside the Determination Area ("Dismissal Area"). The Dismissal Area comprises the land and waters of Cone Island (being Lot 24 as shown on Deposited Plan 93237) which area is currently the subject of Special Lease I/126910. The parties have agreed that no determination is to be made over this area.
D. Pursuant to section 87(1)(a) and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to the Determination Area.
E. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the Determination Area as set out in the Determination.
F. The parties acknowledge that the effect of the making of the Determination is that the members of the Wanjina-Wunggurr Community, 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.
G. Pursuant to section 87(2) of the Native Title Act 1993 (Cth) the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.
H. The applicant in the Wanjina-Wunggurr Dambimangari Application has nominated the Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC pursuant to section 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.
I. The parties have requested that the Court order that the Wanjina-Wunggurr (Native Title) RNTBC and the first respondent will negotiate in good faith to reach agreement on the matters in Attachment A to these orders, as provided for in Attachment A.
BEING SATISFIED that a determination of native title in the terms set out in Attachment B would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A 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 terms of the Determination as provided for in Attachment B.
2. In so far as WAD 6061 of 1998 relates to land and waters outside the Determination Area, WAD 6061 of 1998 is dismissed and no determination is made in relation to the land and waters comprised in that area.
3. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
4. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation RNTBC and the first respondent will negotiate in good faith to reach agreement on the matters in Attachment A to these orders, as provided for in Attachment A.
5. There be no order as to costs.
ATTACHMENT A
1. The Wanjina-Wunggurr (Native Title) Aboriginal Corporation Registered Native Title Prescribed Body Corporate ("WW PBC") and the State of Western Australia ("State") will enter into negotiations in good faith to reach agreement on the relationship between the native title rights and interests recognised in the Determination Area, and the non-native title rights and interests which exist on the land and waters within the Determination Area ("Negotiations").
2. The WW PBC and the State are together the Parties to the Negotiations. However, pending entry of the WW PBC on the National Native Title Register, the applicant for the Wanjina-Wunggurr Dambimangari Determination Application will carry out the obligations of the WW PBC in relation to the Negotiations, and this Attachment A should be read to that effect.
3. The matters the subject of the Negotiations are set out in paragraph 7, in the general order of priority that the Parties intend they will be negotiated.
4. The Parties recognise and agree that:
(a) each party will bear its own costs in relation to the Negotiations;
(b) the WW PBC does not have any resources available to engage in the Negotiations;
(c) the Kimberley Land Council ("KLC"), as the Representative Aboriginal/Torres Strait Islander Body for the land and waters the subject of the Wanjina-Wunggurr Dambimangari Native Title Determination, has been funded to provide assistance to native title holders such as the WW PBC, but allocation of funding by the KLC to the WW PBC for the purposes of the Negotiations will be subject to the KLC’s priorities for resolution of native title claims in the Kimberley; and
(d) there may be matters outside the control of the parties, in particular relating to cultural obligations and the climatic conditions of the Kimberley region, which affect the progress and timing of the Negotiations.
5. It is proposed that Negotiations will also take place in relation to the Determination Area and that, if appropriate and agreed by all parties, the Negotiations may take place concurrently with respect to both the Wanjina-Wunggurr Uunguu and the Wanjina-Wunggurr Dambimangari Native Title Determination Areas.
6. The Wanjina-Wunggurr Willinggin Native Title Determination Area (the subject of the determination reported as Neowarra v State of Western Australia [2004] FCA 1092 is not the subject of the Negotiations. However, the parties note that the affected common law holders of native title within the Wanjina-Wunggurr Willinggin Determination Area may choose to participate in the Negotiations, or similar negotiations, in relation to their affected native title rights and interests.
7. The Negotiations will address the following matters, in the following order of priority (which may be subject to change at the agreement of the parties).
(a) Future mining tenements and petroleum interests, including access.
(i) Subject to the availability of resources and within 2 months after the date upon which this Determination is made, members of the WW PBC and the KLC will meet with State representatives on country to discuss proposed Indigenous Land Use Agreements ("ILUAs") to deal with:
(i) alternative processes for the grant of exploration and prospecting licences;
(ii) standard heritage agreement provisions to apply in the Determination Area (including for Government business); and
(iii) the creation, maintenance and upgrade of roads and tracks in the future to allow access by mining and petroleum interest holders within the Determination Area.
(ii) The State will provide all necessary information, including maps, to the KLC at least one month prior to the meeting in 7(a)(i).
(iii) Within 2 months after the date of the meeting referred to in 7(a)(i) above, the State will provide draft ILUAs to the KLC.
(iv) Within 2 months after receipt of the draft ILUAs referred to in 7(a)(iii) above, the KLC will meet with the WW PBC and provide comments on the draft ILUAs to the State.
(v) Subject to agreement on the terms of ILUAs being reached, within 12 months after the date of the meeting referred to in 7(a)(i) above, the WW PBC and the State will apply to register the ILUAs on the Register of Indigenous Land Use Agreements maintained by the National Native Title Tribunal ("NNTT").
(b) Other Government Business Arrangements.
The Parties will, subject to the availability of resources and commitments in relation to the ILUAs in 7(a) above, enter into negotiations to agree processes for:
(i) the approval and construction of houses and public works;
(ii) implementation of Community Layout Plans in Aboriginal communities; and
(iii) defining and carrying out of low impact future acts.
(c) Relationship between native title rights and interests and non-native title rights and interests identified in Schedule Five of the Determination.
The parties will, subject to the availability of resources and commitments in relation to the ILUAs in 7(a) and 7(b) above, enter into negotiations for agreements which will assist native title holders and non-native title holders to understand and apply their rights, and the relationship between those rights. These negotiations or agreements may relate to:
(i) the holders of the current mining and petroleum interests that are set out at Schedule Five of the Determination in relation to:
(i) use of existing roads and tracks to access their interests; and
(ii) maintenance of those roads and tracks;
(ii) navigation of public waters by members of the public; and
(iii) use of roads by members of the public.
(d) If the negotiations of the matters in 7(c) above may affect the holders of any interests within the Determination Area that are:
(i) included in Schedule Five to the Determination; and
(ii) either;
(i) represented by the Western Australian Fishing Industry Council (Inc.) (“WAFIC”); or
(ii) held by the Paspaley Pearls Group,
then the State will consult with WAFIC or the Paspaley Pearls Group, as the case may be, during the course of the negotiations about how the negotiations may affect those interests.
8. Definitions:
In this Attachment A, unless the contrary intention appears:
Paspaley Pearls Group means Paspaley Pearling Company Pty Ltd [ACN 009 591 708], Pearls Pty Ltd [ACN 008 396 825] and Roebuck Pearls Producers Pty Ltd [ACN 009 149 651].
Wanjina-Wunggurr Uunguu Native Title Determination Area means the land and waters the subject of the determination made under section 87A of the Native Title Act 1993 (Cth) in proceedings WAD 6033 of 1999.
ATTACHMENT B
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s 225 Native Title Act)
1. The Determination Area is the land and waters described in Schedule One and depicted on the maps at Attachment One to Schedule One.
2. Subject to paragraph 3, native title exists in the Determination Area in the manner set out in paragraphs 5, 7, 8 and 9 of this Determination.
3. Native title does not exist in those parts of the Determination Area the subject of the interests identified in the Schedule Three which are shown as shaded green on the maps at Attachment One to Schedule One.
Native Title Holders (s 225(a) Native Title Act)
4. The native title is held by the members of the WanjinaWunggurr Community for their respective communal, group and individual rights and interests in the Determination Area. The members of the Wanjina-Wunggurr Community are the persons referred to in Schedule Six.
The nature and extent of native title rights and interests (s 225(b) Native Title Act) and exclusiveness of native title (s 225(e) Native Title Act)
Exclusive rights in relation to certain land
5. Subject to paragraph 11, the Native Title Holders have the rights to possession, occupation, use and enjoyment of land within the Determination Area which:
(a) has not been the subject of prior extinguishment of native title (as described in Schedule Two and Schedule Three); and
(b) has been the subject of prior extinguishment of native title but which extinguishment must be disregarded by operation of sections 47A or 47B of the Native Title Act (as described in Schedule Four),
to the exclusion of all others (and which land is shown as shaded orange on the maps at Attachment One to Schedule One).
6. For the avoidance of doubt, the native title rights referred to in paragraph 5 include the right to make decisions about the manner of exercise of those rights and interests in relation to the land (and activities pursuant to them) by the Native Title Holders.
Non-exclusive rights in relation to other land
7. Subject to paragraphs 11 and 12, the Native Title Holders have the following rights in relation to land within the Determination Area which has been the subject of partial extinguishment of native title (as described in Schedule Two and which land is shown as shaded purple on the maps at Attachment One to Schedule One):
(a) the right to enter, travel over and remain on the land;
(b) the right to live and camp on the land (including erecting shelters and other structures for those purposes);
(c) the right to hunt, fish, gather and use the resources of the land including:
(i) sharing and exchanging those resources; and
(ii) manufacturing traditional items from those resources
for personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes (as in accordance with paragraph 11(a)(ii));
(d) the right to light fires for domestic purposes but not for the clearance of vegetation;
(e) the right to take and use water from the land;
(f) the right to engage in cultural activities on the land including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
(ii) conducting ceremony and ritual;
(iii) holding meetings;
(iv) participating in cultural practices relating to birth and death, including burial rights;
(v) passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance on or in the Determination Area; and
(vi) maintaining, and protecting from physical harm, places and areas of importance including, for the avoidance of doubt, freshening or repainting images at painting sites.
Non-exclusive rights in relation to Intertidal Areas
8. Subject to paragraphs 11 and 12, the Native Title Holders have the following rights in relation to Intertidal Areas within the Determination Area:
(a) the right to enter, travel over and remain on the Intertidal Area;
(b) the right to live and camp on the Intertidal Area (including erecting shelters and other structures for those purposes);
(c) the right to hunt, fish, gather and use the resources of the Intertidal Area including:
(i) sharing and exchanging those resources; and
(ii) manufacturing traditional items from those resources
for personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes (as in accordance with paragraph 11(a)(ii));
(d) the right to light fires for domestic purposes;
(e) the right to take and use water from the Intertidal Area;
(f) the right to engage in cultural activities on the Intertidal Area including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
(ii) conducting ceremony and ritual;
(iii) holding meetings;
(iv) participating in cultural practices relating to birth and death, including burial rights;
(v) passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance on or in the Determination Area; and
(vi) maintaining, and protecting from physical harm, places and areas of importance including, for the avoidance of doubt, freshening or repainting images at painting sites.
Non-exclusive rights in relation to waters
9. Subject to paragraphs 11 and 12, the Native Title Holders have the following rights in relation to waters within the Determination Area (which waters are generally shown as dotted light blue on the maps at Attachment One to Schedule One):
(a) the right to enter, travel over and remain on the waters;
(b) the right to hunt, fish, gather and use the resources of the waters for personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes (as in accordance with paragraph 11(a)(ii)); and
(c) the right to take and use water.
10. For the avoidance of doubt, and subject to paragraphs 11 and 15, in exercising the native title rights and interests referred to in paragraphs 7 and 8 any question of:
(a) whether a place or area in the Determination Area is a place or area of cultural or spiritual importance to the Native Title Holders;
(b) whether an activity or practice is a cultural activity or practice of the Native Title Holders;
(c) the location, timing and content of any cultural activity, practice, ceremony or ritual of the Native Title Holders; and
(d) the use, exchange, sharing, or manufacture of traditional items by the Native Title Holders
is to be determined in accordance with the Native Title Holders' traditional laws and customs.
Qualifications on native title rights and interests
11. The native title rights and interests described in paragraphs 5, 7, 8 and 9:
(a) are exercisable in accordance with:
(i) the laws of the State and the Commonwealth, including the common law; and
(ii) the traditional laws and customs of the Native Title Holders for their personal, domestic and communal needs (including, but not limited to, cultural or spiritual needs) but not for commercial purposes; and
(b) do not confer any rights in relation to:
(i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
(ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
(iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(iv) water captured by the holders of the Other Interests pursuant to those Other Interests.
12. The native title rights and interests described in paragraphs 7, 8 and 9 do not confer:
(a) possession, occupation, use and enjoyment of the land or waters of the Determination Area on the Native Title Holders to the exclusion of all others; nor
(b) a right to control the access to, or use of, the land and waters of the Determination Area or their resources.
Areas to which s 47A or s 47B of the Native Title Act apply
13. Sections 47A or 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule 4.
The nature and extent of any other interests (s 225(c) Native Title Act)
14. The nature and extent of the Other Interests in relation to the Determination Area are described in Schedule Five.
Relationship between native title rights and other interests (s 225(d) Native Title Act)
15. The relationship between the native title rights and interests described in paragraphs 5, 7, 8 and 9 and the Other Interests is that:
(a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,
(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of s 24JB(2) of the Native Title Act, do not extinguish them.
Definitions and interpretation
16. In this Determination, unless the contrary intention appears:
“Determination Area” means the land and waters described in Schedule One and depicted on the maps at Attachment One to Schedule One;
“Excluded Area” means the land and waters described as the “Excluded Area” in Schedule One;
“Intertidal Area” means:
(a) the shore, or subsoil under or airspace over the shore between the mean low water mark and the mean high water mark; and
(b) any intertidal or navigable waters between the mean low water mark and the mean high water mark;
“land” includes the airspace over, or subsoil under, land, but does not include “waters” or “Intertidal Areas” and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;
“Native Title Act” means the Native Title Act 1993 (Cth);
“Native Title Holders” means the persons described in paragraph 4;
“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 14;
“resources” means flora, fauna and other natural resources such as ochre (except ochres for use in the manufacture of porcelain, fine pottery or pigments), charcoal, stone, soil, wood and resin;
“waters” means:
(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters;
(b) a creek, a stream or brook;
(c) any natural collection of water into, through, or out of which a river, creek, stream or brook flows;
(d) waters which percolate from the ground; or
(e) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraphs (a), (b), (c) and (d)).
17. In the event of any inconsistency between the written description of an area in Schedules 1 to 5 and the area as depicted on the map at Attachment One to Schedule One, the written description prevails.
| SCHEDULE ONE |
DETERMINATION AREA
The Determination Area, shown as bordered in bark blue on the maps at Attachment One to Schedule One, comprises all that land and waters bounded by the following description:
Portion A
All those lands and waters commencing at a point in the Indian Ocean, being the intersection of the 3 Nautical Mile Limit with Longitude 124.407894 East and extending generally southwesterly along that 3 nautical mile limit to Latitude 15.898983 South, Longitude 123.469479 East, being a point coincident with the northern boundary of Native Title Application WAD6255/98 Mayala (WC98/039); Then easterly, generally southerly and westerly along boundaries of that application passing through the following coordinate positions:
| Latitude (South) | Longitude (East) |
| 15.899077 | 123.575674 |
| 16.079550 | 123.575711 |
| 16.179582 | 123.548727 |
| 16.206407 | 123.560439 |
| 16.208898 | 123.560281 |
| 16.210332 | 123.557986 |
| 16.211188 | 123.553828 |
| 16.217224 | 123.547377 |
| 16.220970 | 123.548209 |
| 16.227839 | 123.555078 |
| 16.234969 | 123.560888 |
| 16.239078 | 123.564237 |
| 16.243449 | 123.564237 |
| 16.247612 | 123.562363 |
| 16.251151 | 123.559241 |
| 16.251151 | 123.556743 |
| 16.248653 | 123.549459 |
| 16.252399 | 123.534472 |
| 16.257811 | 123.539052 |
| 16.259603 | 123.539313 |
| 16.260998 | 123.536024 |
| 16.260998 | 123.531040 |
| 16.259724 | 123.523720 |
| 16.256007 | 123.513036 |
| 16.254965 | 123.504549 |
| 16.256643 | 123.501922 |
| 16.259424 | 123.501927 |
| 16.263847 | 123.509912 |
| 16.269883 | 123.516364 |
| 16.275161 | 123.513729 |
| 16.284938 | 123.507675 |
| 16.291841 | 123.508655 |
| 16.300064 | 123.513450 |
| 16.301942 | 123.517837 |
| 16.301942 | 123.522122 |
| 16.298815 | 123.525106 |
| 16.287250 | 123.523958 |
| 16.281539 | 123.525314 |
| 16.279293 | 123.528855 |
| 16.279666 | 123.533848 |
| 16.305748 | 123.572624 |
| 16.321045 | 123.598195 |
| 16.322110 | 123.599400 |
| 16.324023 | 123.601419 |
| 16.324414 | 123.604199 |
| 16.324589 | 123.609045 |
| 16.319419 | 123.623973 |
| 16.319627 | 123.640208 |
| 16.322446 | 123.644855 |
| 16.337319 | 123.657275 |
| 16.346477 | 123.663103 |
| 16.346477 | 123.671845 |
| 16.350848 | 123.676424 |
| 16.357092 | 123.677048 |
| 16.353345 | 123.634380 |
| 16.354305 | 123.630958 |
| 16.356676 | 123.630010 |
| 16.358874 | 123.629896 |
| 16.374784 | 123.638752 |
| 16.392892 | 123.656236 |
| 16.399348 | 123.664545 |
| 16.406368 | 123.669953 |
| 16.409131 | 123.671866 |
| 16.411893 | 123.673035 |
| 16.420286 | 123.673141 |
| 16.425784 | 123.672583 |
| 16.427688 | 123.669834 |
| 16.428148 | 123.666224 |
| 16.426395 | 123.661381 |
| 16.417452 | 123.636670 |
| 16.410375 | 123.621060 |
| 16.399968 | 123.598164 |
| 16.392269 | 123.556328 |
| 16.375410 | 123.507831 |
| 16.371432 | 123.492170 |
| 16.372912 | 123.490690 |
| 16.374604 | 123.491959 |
| 16.380406 | 123.503461 |
| 16.395183 | 123.518030 |
| 16.399346 | 123.516782 |
| 16.399138 | 123.496593 |
| 16.399971 | 123.480774 |
| 16.401465 | 123.469328 |
| 16.406118 | 123.467636 |
| 16.420785 | 123.493263 |
| 16.435727 | 123.549064 |
| 16.448416 | 123.577406 |
| 16.450954 | 123.588405 |
| 16.471566 | 123.626889 |
| 16.477394 | 123.637087 |
| 16.483013 | 123.638961 |
| 16.486760 | 123.635839 |
| 16.488010 | 123.613568 |
| 16.485348 | 123.594309 |
| 16.485429 | 123.590943 |
| 16.487386 | 123.588928 |
| 16.495370 | 123.583329 |
| 16.499177 | 123.582694 |
| 16.500446 | 123.586502 |
| 16.502138 | 123.587982 |
| 16.503407 | 123.586290 |
| 16.508272 | 123.587559 |
| 16.511021 | 123.586289 |
| 16.511033 | 123.580903 |
| 16.490948 | 123.525449 |
| 16.464693 | 123.481711 |
| 16.467017 | 123.465491 |
| 16.475262 | 123.457726 |
| 16.483799 | 123.468296 |
| 16.488393 | 123.463194 |
| 16.491989 | 123.462349 |
| 16.495711 | 123.460488 |
| 16.498122 | 123.458541 |
| 16.497783 | 123.453713 |
| 16.493149 | 123.436993 |
| 16.496402 | 123.426424 |
| 16.502564 | 123.423854 |
| 16.508909 | 123.423431 |
| 16.512743 | 123.423061 |
| 16.515044 | 123.423644 |
| 16.516364 | 123.426224 |
| 16.518216 | 123.435488 |
| 16.518850 | 123.445006 |
| 16.524858 | 123.456913 |
| 16.534615 | 123.465042 |
| 16.539507 | 123.469559 |
| 16.553959 | 123.488363 |
| 16.562631 | 123.493439 |
| 16.571303 | 123.493862 |
| 16.581773 | 123.497564 |
| 16.599434 | 123.510781 |
| 16.600473 | 123.513011 |
| 16.599222 | 123.514800 |
| 16.595838 | 123.515858 |
| 16.587589 | 123.515647 |
| 16.581366 | 123.518297 |
| 16.575956 | 123.518185 |
| 16.571726 | 123.521992 |
| 16.572995 | 123.531721 |
| 16.571937 | 123.536797 |
| 16.573508 | 123.541493 |
| 16.572995 | 123.544411 |
| 16.570457 | 123.550122 |
| 16.567136 | 123.554071 |
| 16.563883 | 123.562202 |
| 16.549102 | 123.594529 |
| 16.548748 | 123.596746 |
| 16.549574 | 123.598269 |
| 16.553210 | 123.602483 |
| 16.555226 | 123.603421 |
| 16.559668 | 123.602786 |
| 16.561148 | 123.599825 |
| 16.563052 | 123.589885 |
| 16.566437 | 123.588616 |
| 16.576589 | 123.594326 |
| 16.579973 | 123.588404 |
| 16.579340 | 123.579732 |
| 16.579033 | 123.569650 |
| 16.574474 | 123.567254 |
| 16.572994 | 123.564293 |
| 16.574264 | 123.561966 |
| 16.584211 | 123.560982 |
| 16.605144 | 123.541873 |
| 16.613816 | 123.543776 |
| 16.623291 | 123.536948 |
| 16.628198 | 123.533412 |
| 16.631582 | 123.521991 |
| 16.638139 | 123.516915 |
| 16.639173 | 123.511953 |
| 16.639492 | 123.510466 |
| 16.642580 | 123.499995 |
| 16.644907 | 123.500206 |
| 16.649137 | 123.505282 |
| 16.657597 | 123.496611 |
| 16.663519 | 123.498937 |
| 16.666903 | 123.513108 |
| 16.670077 | 123.559638 |
| 16.672826 | 123.578461 |
| 16.673884 | 123.595593 |
| 16.679383 | 123.604265 |
| 16.682344 | 123.611667 |
| 16.695246 | 123.626261 |
| 16.707090 | 123.639163 |
| 16.722953 | 123.632394 |
| 16.725702 | 123.633663 |
| 16.731413 | 123.651852 |
| 16.750074 | 123.668301 |
| 16.794803 | 123.715447 |
| 16.794801 | 123.501280 |
Then south to Latitude 16.931933 South, Longitude 123.501280 East; Then east to a western boundary of Pastoral Lease 3114/594 (Meda); then northeasterly and generally easterly along northern boundaries of that pastoral lease to a northwestern corner of Pastoral lease 3114/682 (Napier Downs); Then generally easterly along northern boundaries of that pastoral lease to a southwestern corner of Reserve 46235 (Conservation Park); Then generally northerly along boundaries of that reserve to its northernmost northwestern corner; Then northerly to Latitude 16.492245 South, Longitude 124.781741 East; Then northeasterly to the southwestern most southern corner of Pastoral Lease 3114/723 (Pantijan); then generally northerly and easterly along boundaries of that pastoral lease to Longitude 125.002438; Then generally northeasterly, northerly and generally northwesterly passing through the following coordinate positions:
| Latitude (South) | Longitude (East) |
| 15.878595 | 125.017020 |
| 15.706918 | 125.434599 |
| 15.506918 | 125.431264 |
| 15.406165 | 125.318340 |
| 15.375323 | 125.338014 |
| 15.328823 | 125.231728 |
and then northwesterly back to the commencement point.
Portion B
All those lands and waters within the area defined by exploration licence application number E04/896, excluding those areas that fall within Native Title Determination WAD 6015/99 Wanjina-Wunggurr Willinggin (WC99/011).
Excluded Area:
The area excluded from the determination comprises all that land being Lot 24 as shown on Deposited Plan 93237 (Special Lease I126910).
| Note: | • Geographic Coordinates provided in Decimal Degrees • Cadastral boundaries sourced from Landgate’s SCDB as at May 2009 • 3 Nautical Mile Limit is based on and sourced from AMB data, 6th Edition released in February 2006 • Native Title Determination WAD6015/99 Wanjina-Wunggurr Willinggin (WC99/011), as determined by the Federal Court on 27 August 2004. • Native Title Application WAD6255/98 Mayala (WC98/039), as accepted for Registration on the 28/07/2005 |
| Datum: | Geocentric Datum of Australia 1994 (GDA94) |
| Prepared by: | Native Title Spatial Services (Landgate) 4 June 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.
SCHEDULE ONE
ATTACHMENT ONE
MAPS OF THE DETERMINATION AREA
| SCHEDULE TWO |
NON EXCLUSIVE NATIVE TITLE IN RELATION TO CERTAIN LAND
Areas where native title comprises the rights set out in paragraph 7 of the Determination.
Native title comprises the rights and interests set out in paragraph 7 of the determination in relation to land the subject of the following interests, shown as shaded purple on the maps at Attachment One to Schedule One:
1. Reserves:
(a) Former Reserve 17204 (district of Meda) set apart as a public reserve for the purpose of stockroute (which area currently comprises unallocated Crown land); and
(b) Reserve 22050 (Meda Location 4) set apart as a public reserve for the purpose of water.
2. Pastoral Leases:
Pastoral Lease 3114/0682 (Fitzroy Location 249 and Meda Location 22) being Napier Downs Station.
3. Mining Tenements:
(a) The following Mineral Leases granted pursuant to the Mining Act 1904 (WA) (repealed) or the Mining Act 1978 (WA):
| Tenement | Grant Date |
| ML 0400005 | 22/01/1919 |
| ML 0400006 | 22/01/1919 |
| ML 0400007 | 22/01/1919 |
| ML 0400010 | 01/01/1919 |
| ML 0400011 | 01/01/1919 |
| ML 0400012 | 01/01/1920 |
| ML 0400043 | 01/01/1948 |
| ML 7000128 | 18/12/1907 |
| ML 7000129 | 18/12/1907 |
| ML 7000130 | 18/12/1907 |
| ML 7000131 | 18/12/1907 |
| ML 7000132 | 18/12/1907 |
| ML 7000164 | 18/05/1910 |
| ML 7000165 | 18/05/1910 |
(b) The following Mineral Leases granted pursuant to the Mining Act 1904 (WA) (repealed) or the Mining Act 1978 (WA) and the Broken Hill Proprietary Steel Industry Agreement Act 1952 (WA):
| Tenement | Grant Date |
| ML 0400050 | 23/01/1953 |
| ML 0400051 | 23/01/1953 |
| ML 0400052 | 23/01/1953 |
| ML 0400053 | 23/01/1953 |
| ML 0400054 | 23/01/1953 |
| ML 0400055 | 23/01/1953 |
| ML 0400056 | 23/01/1953 |
| ML 0400057 | 23/01/1953 |
| ML 0400058 | 23/01/1953 |
| ML 0400059 | 23/01/1953 |
| ML 0400060 | 23/01/1953 |
| ML 0400061 | 23/01/1953 |
| ML 0400062 | 23/01/1953 |
| ML 0400063 | 23/01/1953 |
| ML 0400064 | 23/01/1953 |
| ML 0400065 | 23/01/1953 |
| ML 0400066 | 23/01/1953 |
| ML 0400071 | 21/11/1980 |
| ML 0400072 | 21/11/1980 |
| ML 0400073 | 21/11/1980 |
| ML 0400074 | 21/11/1980 |
| ML 0400075 | 21/11/1980 |
| ML 0400076 | 21/11/1980 |
| ML 0400077 | 21/11/1980 |
| ML 0400078 | 21/11/1980 |
| ML 0400079 | 21/11/1980 |
| ML 0400080 | 21/11/1980 |
| ML 0400081 | 21/11/1980 |
| ML 0400082 | 21/11/1980 |
| ML 0400083 | 21/11/1980 |
(c) The following Mining Leases granted pursuant to the Mining Act 1978 (WA):
| Tenement | Grant Date |
| M 0400137 | 14/06/1990 |
| M 0400235 | 03/10/1991 |
(d) The following Machinery Leases granted pursuant to the Mining Act 1904 (WA) (repealed) or the Mining Act 1978 (WA) and the Broken Hill Proprietary Steel Industry Agreement Act 1952 (WA):
| Tenement | Grant Date |
| MYL 0400001 | 24/10/1963 |
| MYL 0400002 | 24/10/1963 |
| MYL 0400003 | 24/10/1963 |
| MYL 0400004 | 24/10/1963 |
| MYL 0400005 | 24/10/1963 |
| SCHEDULE THREE |
AREAS WHERE NATIVE TITLE DOES NOT EXIST
Native title does not exist in relation to areas the subject of the following interests within the Determination Area which, with the exception of public works (paragraph 5 of this Schedule), are shown as shaded in green on the maps at Attachment One to Schedule One:
1. Freehold:
(a) Certificate of Title volume 1545 folio 970 (Meda Location 15) being the Yampi Defence Training Facility; and
(a) Former Certificate of Title volume 1252 folio 137 (former Easton Location 12 and 28) (which area currently comprises Easton Location 27 on Deposited Plan 189265 being Reserve 45499 for the purpose of navigation, communication, meteorology and survey, Reserve Lease H612319 and unallocated Crown land).
2. Reserves:
(a) Reserve 21971 (Wurwai Cave) (Easton Location 18) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(b) Reserve 21972 (Nymandum Cave) (Easton Location 15) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(c) Reserve 21973 (Purulba Cave) (Easton Location 16) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(d) Reserve 21974 (Jackson Island) (Easton Location 19) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(e) Reserve 22051 set apart as a public reserve for the purpose of water (which area was previously subject to former Reserve Lease 332/446);
(f) Reserve 22052 set apart as a public reserve for the purpose of water (which area was previously subject to former Reserve Lease 332/446);
(g) Reserve 22053 set apart as a public reserve for the purpose of water (which area was previously subject to former Reserve Lease 332/446);
(h) Reserve 22054 set apart as a public reserve for the purpose of water (which area was previously subject to former Reserve Lease 332/446 and which area currently comprises Reserve 22054 and Crown Lease L/251563);
(i) Reserve 22493 (Meda, Cockatoo Island) vested pursuant to section 33 of the Land Act 1933 (WA) in the Minister for Mines on 21 December 1945 for the purpose of explosives;
(j) Former Reserve 26208 (Koolan Lot 3) set apart as a public reserve pursuant to section 29 of the Land Act 1933 (WA) for the purpose of schoolsite on 23 February 1962 (which area currently comprises unallocated Crown land);
(k) Reserve 26417 (Meda Location 9) vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 3 August 1973 for the purpose of the use and benefit of Aborigines; and
(l) Reserve 27164 (Doongan and Easton: Prince Regent Nature Reserve) vested pursuant to section 33 of the Land Act 1933 (WA) in the Fauna Protection Advisory Committee of Western Australia on 10 April 1964 for the purposes of conservation of flora & fauna.
3. Leases:
(a) Former Special Lease 1149/152 granted pursuant to section 152 of the Land Act 1898 (WA) for the special purpose of collecting guano on 21 June 1910 (which area currently comprises unallocated Crown land)
(b) Former Special Lease 3116/1471 (Meda Location 17) granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of sites for buildings, warehouses, wharves, jetties, quays and factories on 1 October 1947 (which area was subsequently the subject of former Special Lease 3116/9636 and currently is the subject of Special Lease 3116/11261 (Crown Lease I/127597));
(c) Former Special Lease 3116/3089 (Crown Lease I/144493) (Koolan Lot 2) granted pursuant to section 117 of the Land Act 1933 (WA) for the purpose of a townsite and purposes incidental thereto on 1 January 1963 (which area currently comprises unallocated Crown land);
(d) Former Special Lease 3116/3090 (Koolan Lot 1) granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of a site for an aerial landing ground on 1 January 1963 (which area currently comprises unallocated Crown land);
(e) Former Special Lease 3116/6345 (Easton Location 3) granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of accommodation and other buildings in support of the cultured pearl industry on 11 October 1984 (which area was subsequently the subject of former Special Lease 3116/9652 and is currently the subject of Special Lease 3116/11110 (Crown Lease I/150260));
(f) Former Special Lease 3116/8762 (Crown Lease 256/1984) (Koolan Lot 4) granted pursuant to section 117 of the Land Act 1933 (WA) for the purpose of townsite extension on 30 March 1984 (which area currently comprises unallocated Crown land);
(g) Special Lease 3116/9543 (Crown Lease I/150295) (Meda Location 16) granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of holiday and tourist accommodation on 2 December 1986;
(h) Former Special Lease 3116/9978 (Koolan Lots 5, 6, 7 and 8) granted pursuant to section 117 of the Land Act 1933 (WA) for the purpose of townsite extension on 24 May 1990 (which area was subsequently the subject of former Crown Lease H/324273 and is currently unallocated Crown land).
4. The areas the subject of the following dedicated roads and roads set aside, taken or resumed:
Road No. 230, a main road leaving the Derby townsite and extending in a north easterly direction, gazetted on 11 February 1886.
(a) Derby Port Area vested pursuant to section 9 of the Marine and Harbours Act 1981 (WA); and
(b) Yampi Sound Port Area vested pursuant to section 9 of the Marine and Harbours Act 1981 (WA) (which area comprises Reserve 50387 for the purpose of Yampi Port Area, being Lot 3000 on Deposited Plan 63939).
6. Public Works
Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) 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, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act.
| SCHEDULE FOUR |
AREAS TO WHICH SECTION 47A OR SECTION 47B OF THE NATIVE TITLE ACT APPLY (Paragraph 13)
Sections 47A or 47B of the Native Title Act apply to the following areas within Determination Area, which are shown as hatched in orange on the maps at Attachment One to Schedule One:
1. Section 47A
Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to areas within the Determination Area the subject of the following interests:
(a) Reserve 15530 (Kunmunya) (Easton Location 24) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(b) Reserve 21970 (Languid Cave) (Easton Location 20) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines;
(c) Reserve 23079 (Kunmunya) (Easton Location 14) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 15 June 1973 for the purpose of the use and benefit of Aborigines; and
(d) Reserve 30674 (Wotjalum) (Meda Location 9) vested pursuant to section 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) in the Aboriginal Affairs Planning Authority on 4 June 1971 for the purpose of the use and benefit of Aborigines.
2. Section 47B
Section 47B of the Native Title Act applies to disregard any extinguishment over the following areas, including any extinguishment by the creation of the following interests, (to the extent that they were not covered by an interest described in sections 47B(1)(b)(i) or (ii) or subject to a resumption process as described in section 47B(1)(iii) of the Native Title Act when the relevant native title determination application was made):
(a) Reserve 1101 (Easton Location 29) set apart as a public reserve for the purpose of townsite and landing place;
(b) Temporary Reserve 70/1147 (Cockatoo Island) reserved to the Crown under section 276 of the Mining Act 1904 (WA) (repealed) for Iron;
(c) Temporary Reserve 70/1309 (Koolan Island) reserved to the Crown under section 276 of the Mining Act 1904 (WA) (repealed) for Iron;
(d) Unallocated Crown land numbers part 158 and 781 (which areas were previously subject to former Pastoral Leases 291/98, 733/98, 1550/98 and 3114/1046);
(e) Unallocated Crown land numbers part 193, part 197, 208, 209, part 246, 265, 281, 284, 290, 292, 295, 300, 322, 327, 329, 333, 337, 349, 352, 362, 364, 372, 404, 408, 410, 411, 412 and 414 (which areas were previously subject to former Pastoral Lease 396/810 (Crown Lease 297/1958));
(f) Unallocated Crown land number 293 (which area was previously subject to former Special Lease 4979/153 and former Pastoral Lease K843);
(g) Unallocated Crown land numbers part 308, 348, 387, 390 and 405 (which areas were previously subject to former Pastoral Leases 396/810 (Crown Lease 297/1958) and 396/843 (Crown Lease 122/1965));
(h) Unallocated Crown land numbers 311, 312, 314, 315, 316, 317, 318, 319, 320, 325, 326, 330, 331, 334, 338, 345, 351, 354, 356, 357, 370, 371, 373, 374, 376, 377, 379, 381, 383, 384, 385, 386, 393, 394, 395, 396, 397, 399 and 406 (which areas were previously subject to former Pastoral Lease 396/843 (Crown Lease 122/1965));
(i) Part unallocated Crown land number 332 (which area was previously subject to former Pastoral Leases 5/209, 396/843 (Crown Lease 122/1965) and 778/98);
(j) Part unallocated Crown land number 458 (which area was previously subject to former Pastoral Leases 396/843 (Crown Lease 122/1965), 675/98, 1550/98 and 3114/1046 (Crown Lease 137/1974 being Kimbolton Station);
(k) Unallocated Crown land number 553 (which area was previously subject to former Pastoral Leases 337/98, 954/98 (Crown Lease 7879/1911) and K765;
(l) Unallocated Crown land numbers part 613 and 730 (which areas were previously subject to former Pastoral Lease 3114/1046 (Crown Lease 137/1974, being Kimbolton Station));
(m) Part unallocated Crown land numbers 650, 710, 726, 727 and 737 (which areas were previously subject to former Mineral Lease 70/221);
(n) Unallocated Crown land number 689 (which area was previously subject to former Pastoral Lease 1986/98 (Crown Lease 499/1921) and former Reserve 19560);
(o) Unallocated Crown land numbers part 759, 761, 764, 772, 773, 777, 779, 782, 783, 784, 787, 790, 792, 794, 795, 796, 797, 798 and 803 (which areas were previously subject to former Pastoral Leases 675/98 and 1550/98);
(p) Unallocated Crown land number 760 (which area was previously subject to former Pastoral Leases 675/98 and 1550/98, former Reserve 21423 and former Reserve Lease 332/446);
(q) Unallocated Crown land number 775 (which area was previously subject to former Pastoral Leases 291/98, 733/98 and 1550/98);
(r) Unallocated Crown land numbers 1193, 1194, 1195, 1197, part 1203, 1217, 1229, 1237, 1239, 1248, 1262, 1263, 1264, 1265, 1288, part 1291, 1296, 1297, 1303, 1304, 1306, 1309, part 1318, part 1328, 1341, part 1349, 1372 and 1373 (which areas were previously subject to former Pastoral Lease K561);
(s) Unallocated Crown land numbers part 1210, 1343, 1351, 1362, 1364, 1368, 1369, 1375, 1383, 1385 and 1387 (which areas were previously subject to former Pastoral Leases 208/98, 396/584 and 1423/98 (Crown Lease 3123/1929));
(t) Unallocated Crown land number 1339 (which area was previously subject to former Pastoral Leases 140/98, 208/98, 396/584, 398/487 (Crown Lease 118/1970), 1423/98 (Crown Lease 3123/1929) and 1550/98 and former Special Lease 3116/2377);
(u) Unallocated Crown land number 1365 (which area was previously subject to former Pastoral Leases 140/98, 208/98, 396/584, 1423/98 (Crown Lease 3123/1929) and 1550/98);
(v) Unallocated Crown land number 1398 (which area was previously subject to former Pastoral Leases 140/98, 396/584 and 1550/98).
| SCHEDULE FIVE |
OTHER INTERESTS (Paragraph 14)
The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:
1. Reserves:
(a) The following Reserves:
(i) Reserve 1011 for the purposes of townsite and landing place;
(ii) Reserves 15530, 21970, 23079 and 30674 for the purpose of the use and benefit of Aborigines; and
(iii) Reserve 22050 for the purpose of water;
(b) The rights and interests of persons who have the care, control and management of the reserves identified in subparagraph (a) above or in whom the reserves identified in subparagraph (a) above are vested (as the case may be);
(c) The rights and interests of persons entitled to access and use the reserves identified in subparagraph (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and
(d) The rights and interests of persons holding valid leases over areas of the reserves identified in subparagraph (a) above.
2. Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
(a) Pastoral Lease 3114/0682 (Fitzroy Location 249 and Meda Location 22) being Napier Downs Station
The rights and interests of the holders from time to time of the following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA):
(a) Mining Leases
| Tenement | Holder | Date Granted |
| M 0400137 | Cockatoo Mining Pty Ltd | 14/06/1990 |
| M 0400235 | Pelican Resources Ltd | 03/10/1991 |
| M 0400416 | Koolan Iron Ore Pty Ltd | 21/04/2006 |
| M 0400417 | Koolan Iron Ore Pty Ltd | 21/04/2006 |
(b) Mineral Leases
| Tenement | Holder | Date Granted |
| ML 0400010 | Cockatoo Mining Pty Ltd | 01/01/1919 |
| ML 0400011 | Cockatoo Mining Pty Ltd | 01/01/1919 |
| ML 0400012 | Cockatoo Mining Pty Ltd | 01/01/1920 |
| ML 0400043 | Cockatoo Mining Pty Ltd | 01/01/1948 |
(c) General Purpose Leases
| Tenement | Holder | Date Granted |
| G 0400033 | Cliffs Asia Pacific Iron Ore Pty Ltd | 01/08/1994 |
| G 0400034 | Cliffs Asia Pacific Iron Ore Pty Ltd | 01/08/1994 |
| G 0400035 | Cliffs Asia Pacific Iron Ore Pty Ltd | 01/08/1994 |
| G 0400036 | Cliffs Asia Pacific Iron Ore Pty Ltd | 01/08/1994 |
| G 0400037 | Cliffs Asia Pacific Iron Ore Pty Ltd | 01/08/1994 |
(d) Miscellaneous Licences
| Tenement | Holder | Date Granted |
| L 0400029 | Koolan Iron Ore Pty Ltd | 08/07/2004 |
| L 0400049 | Cliffs Asia Pacific Iron Ore Pty Ltd | 17/10/2005 |
(e) Exploration Licences:
| Tenement | Holder | Date Granted |
| E 0401026 | Spinifex Abrasives Pty Ltd | 26/08/2005 |
| E 0401131 | Cliffs Asia Pacific Iron Ore Pty Ltd | 29/05/2003 |
| E 0401265 | Koolan Iron Ore Pty Ltd | 30/05/2003 |
| E 0401266 | Koolan Iron Ore Pty Ltd | 30/05/2003 |
| E 0401441 | Kimminco Pty Ltd | 08/08/2005 |
| E 0401448 | Pancontinental Mining Corporation Pty Ltd | 03/02/2006 |
| E 0401533 | Michael Latham and Terrence Daniel Reid | 04/12/2006 |
| E 0401534 | FMG Resources Pty Ltd | 01/11/2007 |
| E 0401589 | Starwolf Resources Pty Ltd | 10/08/2007 |
| E 0401797 | Kode Kosasih | 14/01/2009 |
| E 0401852 | Glenn Griffin Venn Money | 15/03/2010 |
(f) Temporary Reserves:
| Tenement | Holder | Date Granted |
| TR 7001147 | Minister for Mines | 25/05/1945 |
| TR 7001309 | Minister for Mines | 06/04/1951 |
The interests of the holders from time to time of the following petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA):
(a) Exploration Permits:
| Tenement | Holder | Date Granted |
| EP 464 | Exceed Energy (Australia) Pty Ltd | 15/01/2009 |
5. Access to Mining and Petroleum Areas
(a) Without limiting the operation of any other paragraph in Schedule Five, 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 paragraph 3 or 4 of Schedule Five (as the case may be) 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).
6. Telstra Corporation
The rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities installed within the Determination Area;
(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), including the right to install and operate telecommunications facilities within the Determination Area;
(d) The right to establish a telecommunications facility on, and remain in occupation of:
(i) the Datum Bay Telecommunications Site, having an area of 2500 square metres with a station mark located at the base of the radio mast at Latitude 16°24'58.66" South, Longitude 123°30'49.38" East. The north east corner of the Site 40.37 metres at a bearing of 53°16' (TN) from the station mark and by reference to the north east corner the site boundaries are 50 metres west by 50 metres south by 50 metres east by 50 metres north; and
(ii) the Cockatoo Island Telecommunications Site, being located at Latitude -16.087525 and Longitude 123.593287; and
(e) for its employees, agents or contractors to enter the Determination Area in the performance of their duties, to access its telecommunications facilities in, and in the vicinity of, the Determination Area.
7. Other
The following rights and interests:
(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of the holders of licences granted under the Jetties Act 1926 (WA) and the rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to such legislation;
(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under common law including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate; and
(iii) the right of any person to use any road in the determination area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under common law.
(d) The right to access the Determination Area by:
(i) an employee, agent or instrumentality of the State;
(ii) an employee, agent or instrumentality of the Commonwealth; or
(iii) an employee, agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;
(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(i) waterways;
(ii) beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993; and
(f) Any other valid:
(i) legal or equitable estate or interest in the land or waters; or
(ii) other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters; or
(B) an estate or interest in the land or waters; or
(iii) restriction on the use of the land or waters, whether or not annexed to other land or waters.
| SCHEDULE SIX |
DESCRIPTION OF THE NATIVE TITLE HOLDERS
Members of the Wanjina-Wunggurr Community (referred to in paragraph 4 of the Determination) are descendants of the following persons:
1. 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;
2. 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
3. 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.
For the avoidance of doubt, those persons who are Native Title Holders have the right to pass on to, and inherit from, other Native Title Holders, the native title rights and interests set out in paragraphs 5, 7, 8 and 9 of this Determination in accordance with traditional law and custom.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | |
| GENERAL DIVISION | WAD 6061 of 1998 |
| BETWEEN: | VICTOR BARUNGA, HEATHER UMBAGAI, KENNY OOBAGOOMA, JANET OOBAGOOMA, DONNY WOOLAGOODJA, NELSON BARUNGA AND FREDMUND OOBAGOOMA Applicant |
| AND: | STATE OF WESTERN AUSTRALIA First Respondent |
| COMMONWEALTH OF AUSTRALIA Second Respondent | |
| WARREN MELVYN ARMS, LENDEN NOMINEES PTY LTD, NEWFISHING AUSTRALIA PTY LTD, WA SEAFOOD EXPORTERS PTY LTD AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) Eighth Respondents | |
| MAXIMA PEARLING COMPANY PTY LTD, PASPALEY PEARLING COMPANY PTY LTD, PEARLS PTY LTD AND ROEBUCK PEARL PRODUCERS PTY LTD Ninth Respondents | |
| TELSTRA CORPORATION LIMITED Eleventh Respondent |
| JUDGE: | GILMOUR J |
| DATE OF ORDER: | 26 MAY 2011 |
| WHERE MADE: | YALOON |
REASONS FOR JUDGMENT
Introduction
1 On 15 January 1996 a native title claimant application called “Wororra and others” was lodged with the National Native Title Tribunal (NNTT) pursuant to the Native Title Act 1993 (Cth) (Native Title Act) as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth). This application was given NNTT file number WC96/3 and was notified by the Native Title Registrar with the notification period ending on 7 August 1996. The solicitor for the claimants subsequently wrote to the NNTT President requesting to have the name of the claim changed to “Dambimangari”.
2 On 24 June 1996 a native title claimant application given NNTT file number WC96/74 was lodged with the NNTT. This application was notified by the Native Title Registrar with the notification period ending on 11 November 1996.
3 As a result of the 1998 amendments to the Native Title Act, on 30 September 1998, both applications became proceedings in this Court and were allocated Federal Court file numbers WAG 6061/1998 and WAG 6106/1998, respectively. On 27 April 1999, the applications were amended by order of the Court so that the application called Dambimangari was combined with, and included WAG 6106 of 1998 and became the lead application. The amendments to the application included a revision to the description of the claimant group, amongst other things expressly stating, that the claimant group “comprises those people who hold in common the body of laws and customs derived from beliefs about Wanjina/Wunggurr”.
4 The claim made in the application as amended was considered by the NNTT Registrar as required by s 190A of the Native Title Act. The Registrar was satisfied that the application met all conditions specified in s 190B and s 190C of the Native Title Act and, on 27 May 1999, the application was accepted for registration on the Register of Native Title Claims.
5 The application area covers approximately 27,937 square kilometres and is located in the Kimberley region of Western Australian. The application is in two parcels. The bulk of the application area extends across the northern coast from King Sound, north of Derby, through to the Saint George Basin. The balance of the application area is located within the Napier Downs pastoral lease.
6 The Wanjina-Wunggurr Dambimangari Application is one of three applications brought on behalf of the people who hold in common the body of traditional laws and customs concerning land and waters known as Wanjina-Wunggurr. The first of these applications, the Wanjina-Wunggurr Willinggin application, was the subject of a judgment in Neowarra v State of Western Australia [2003] FCA 1402. Sundberg J found that the members of the Wanjina-Wunggurr Community constituted a society and were bound together by a normative system of laws and customs which had continued to be acknowledged and observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.
7 On 27 August 2004, Sundberg J determined that native title existed within the area covered by the Wanjina-Wunggurr Willinggin application and that the native title was held by the Wanjina-Wunggurr Community for their respective communal, group and individual rights and interests in the determination area: Neowarra v State of Western Australia [2004] FCA 1092. The members of the Wanjina-Wunggurr Community are the people descended from named apical ancestors referred to in Schedule 9 of the determination: Neowarra [2004] FCA 1092 at [3].
Agreement of the parties to resolve the proceeding
8 Through mediation the applicant in the Wanjina-Wunggurr Dambimangari Application, the State and the other respondents to the proceeding have reached an agreement. Amongst other things, this provides for the recognition of the pre-existing native title rights and interests held by members of the Wanjina-Wunggurr Community in relation to almost all of the land and waters of the Wanjina-Wunggurr Dambimangari Application (Determination Area) and contemplates that the Court will make a determination of native title by consent and without the need for a hearing, pursuant to s 87A of the Native Title Act. The applicant has agreed to the dismissal of the application in respect of the Excluded Area referred to in Schedule One, which is an area of land and waters the subject of the Wanjina-Wunggurr Dambimangari Application that is not included in the Determination Area. This area comprises the land and waters of Cone Island (being Lot 24 as shown on Deposited Plan 93237) which is currently the subject of Special Lease I/126910. The parties have agreed that no determination is to be made over the Excluded Area on the basis that it is not considered by any of the parties that Cone Island forms, or formed, part of the traditional lands and waters of the Wanjina-Wunggurr Community.
9 Apart from the land and waters of Cone Island, the parties agree that the areas claimed in each Wanjina-Wunggurr application together comprise the traditional country of the members of the Wanjina-Wunggurr Community, being the land and waters ‘under’ (or subject to) Wanjina. This includes the Wanjina-Wunggurr Uunguu native title determination I made on 23 May 2011: see Goonack v Western Australia [2011] FCA 516. It is not in dispute in their applications that the traditional system of law which the members of the Wanjina-Wunggurr Community follow comes from the spirit beings known as Wanjina. Accordingly, the parties have set out in the Minute of Proposed Consent Determination of Native Title (Wanjina-Wunggurr Dambimangari) filed on 13 April 2011 (the ‘Minute’) that, in respect of the land and waters the subject of the Determination Area, it be determined that 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 proposed determination area.
10 In his affidavit sworn 7 April 2011, Mr Catlin, on behalf of the State, deposes to the reasoning behind this approach. Following the Wanjina-Wunggurr Willinggin determination, the State advised the applicant’s legal representative that, subject to establishing that the members of the Wanjina-Wunggurr Community, by their laws and customs, had maintained a connection to the land and waters the subject of the Wanjina-Wunggurr Dambimangari Application, the findings made by Sundberg J with respect to the identity of the Wanjina-Wunggurr Community, their traditional laws and customs and native title rights and interests were equally applicable to and could be adopted in the Wanjina-Wunggurr Dambimangari Application. Mr Catlin deposes to the materials provided by the applicant’s legal representatives. This, together with other material, including the reasons for judgment in Neowarra [2003] FCA 1402, was assessed by the State in accordance with the State’s Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title dated October 2004. Mr Catlin deposes that the connection material provided by the applicant and the findings of Sundberg J in Neowarra [2003] FCA 1402, satisfied the State of the existence of a body of traditional laws and customs under which the members of the Wanjina-Wunggurr Community hold rights and interests within the area to which the Minute relates. In his affidavit, Mr Catlin further states the basis for this, as follows:
16. This was on the basis that:
(a) the ancestors of the current members of the Wanjina-Wunggurr Community held native title rights and interests in relation to the area of the proposed determination at settlement, and by inference, at sovereignty;
(b) there is evidence of continuity of acknowledgement and observance of traditional laws and customs in relation to the area of the proposed determination by current members of the Wanjina-Wunggurr Community and their predecessors from settlement to the present day; and
(c) the members of the Wanjina-Wunggurr Community form a society, the members of which have continued to observe a normative system of laws and customs unique to the area of the proposed determination and who, by that system of traditional law and custom, have an ongoing continuity of connection with the area of the proposed determination.
Authorisation issues
11 Two issues in relation to authorisation arise. The first concerns the fact that 2 of the 7 persons named as the applicant have died and whether the surviving 5 remain authorised without the need for further authorisation. The second concerns the fact that notwithstanding these circumstances the applicant, with the consent of the other parties, seeks to obtain a determination in which the native title holders are comprised of the members of the Wanjina-Wunggurr Community, as opposed to the native title claimant group described in the application. Very similar issues also arose in Goonack [2011] FCA 516.
Authorisation of surviving persons comprising the applicant
12 The parties acknowledge in their joint submissions that 2 of the 7 persons named as the applicant have died since the application was amended in 1999. A question therefore arises as to whether the other 5 persons are authorised to deal with all matters arising in relation to the application pursuant to the Native Title Act. Where the terms of the authorisation encompass and accommodate the death or incapacity of any one, or more, of the persons named as applicant, for example, by making express provision for the on-going or continuing authorisation of the remaining persons who comprise the applicant following the death or incapacity of any other named applicant, the remaining person or persons named applicants may continue to deal with all matters arising under the Native Title Act in relation to the application: Anderson v Western Australia [2007] FCA 1733 at [37]; Coyne v Western Australia [2009] FCA 533 at [56]; Roe v Western Australia (No. 2) [2011] FCA 102 at [149]; cf Lennon v South Australia [2010] FCA 743.
13 In Lennon, Mansfield J was considering an application seeking orders for the removal of the names of 2 deceased persons from a list of persons named as applicant and held that, where one or more of a number of persons authorised to be the applicant in a claim for the determination of native title has died, generally the remaining persons so authorised may continue to deal with all matters arising under the Native Title Act in relation to the application. The remaining persons so authorised will continue to be “the applicant” for that purpose: Lennon at [1]. In the absence of evidence to the contrary, authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of the persons named as applicant: Lennon at [34].
14 It is conceded by the State and the applicant’s legal representative that written evidence as to the terms of the authorisation at the time of the making of the Wanjina-Wunggurr Dambimangari Application has been unable to be located. That is an unfortunate situation for the applicant. The need to preserve for future reference the terms of a written authorisation given to the applicant in a native title determination proceeding is of particular significance in the conduct of the proceeding. The applicant alone is empowered to deal with all matters arising in relation to the application under the Native Title Act: FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30 at [15]. A question for resolution such as the present one could arise which, given the length of time usually taken to resolve such proceedings, might be some considerable time after the applicant was authorised to make the application which, in this case, is a period of more than 10 years.
15 In their joint submissions, the State and the applicant contend that, in the event the Court considers there is, or there may be, a defect in the authorisation of the Wanjina Wungurr Dambimangari Application, pursuant to s 84D(4) of the Native Title Act it is in the interests of justice and would be appropriate for the Court to make the determination sought in the Determination Area for the reasons that:
(i) it will result in a timely and satisfactory resolution of the Wanjina Wungurr Dambimangari Application for all parties. Should the Wanjina-Wungurr Community be required to hold an authorisation meeting under s 251B of the Native Title Act or bring a s 66B Native Title Act application prior to a determination being made it may potentially delay the proposed determination for some period;
(ii) the nature of the defect in authorisation (if there is one) does not arise out of any dispute within the Wanjina-Wungurr Community and relates solely to an inability to demonstrate that the terms of the authorisation given accord with the applicant’s understanding of that authorisation;
(iii) the making of a determination by the Court will only occur with the knowledge and support of the Wanjina-Wungurr Community generally. The members of the Wanjina-Wungurr Community are aware of the proposed determination of native title and a community meeting was held authorising the terms of the Minute of Proposed Consent Determination of Native Title on 18 October 2010; and
(iv) the Wanjina-Wungurr Community is also aware of the deaths of some of the persons named as applicant and the fact that the other persons who are named as applicant have been continuing to deal with all matters in respect of the application, including consenting to the proposed determination. It is not asserted by the Wanjina-Wungurr Community that the remaining persons named as applicant have exceeded the authority given to them in consenting to the proposed determination and, as mentioned above, are aware of their intention to do so.
16 This situation is analogous to that which was considered by Finn J in Akiba v Queensland (No 2) [2010] FCA 643, where his Honour, at [55] noted that:
[55] Only two of the originally named four persons making up the applicant are still alive. Those deceased have not been replaced. Each of the original four were said to be authorised by one or other of the four cluster group segments of the claim group. I note at the outset that there are very real issues about whether the application was, and remains, authorised as required by the NT Act and whether the defects (if any) in authorisation can be cured by me under s 84D of the Act. What is clear is that none of the parties wish for the matter to fail simply on authorisation grounds – the more so as both the State and the Commonwealth have conceded, albeit to differing territorial extents, the existence of native title within the area of the Part A sea claim.
17 Sections 84D(3) and (4) of the Native Title Act are in these terms:
84D Proceedings affected by possible defect in authorisation
. . .
(3) Subsection (4) applies if:
(a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or
(b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.
. . .
(4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
18 In Akiba, Finn J was satisfied that there was a proper basis for the exercise of his discretion under s 84D(4) of the Native Title Act. At [930]-[931] his Honour stated,
[930] I am satisfied that while Mr Mye, Mr Akiba and the others were selected as representatives of their respective cluster group, the purpose of their selection was to prosecute the claim of all of the holders of native title in the claim area. It has been prosecuted to all but finality and successfully so. Justice would be denied if this matter did not proceed to a determination.
[931] I am satisfied that considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act.
19 The same rationale has application in the present case, in my opinion, and on that basis I would exercise my discretion under s 84D(4) to make the determination despite any perceived defect in authorisation.
Authorisation – expanded claimant group
20 The Wanjina-Wunggurr Dambimangari Application has not been further amended since leave was granted on 27 April 1999. The description of the native title claimant group in the application includes some, but not all, of the members of the Wanjina-Wunggurr Community in Schedule 9 of the determination made by Sundberg J in Neowarra [2004] FCA 1092. The difference is that the Wanjina-Wunggurr Dambimangari claimant group description omits to mention the names of the apical ancestors included in the first and second sections of Schedule 9 of the Wanjina-Wunggurr Willinggin determination. In these circumstances, the Court is not limited to making a determination in the form sought in the application and could proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Patch v Western Australia [2008] FCA 944 at [18]. The parties contend that I should make my determination referable to an expanded native title claimant group. I consider this to be appropriate in the circumstances.
21 The submissions of the State and the applicant are supported by the eighth and ninth respondents and, as I understand it, are not opposed by the Commonwealth or Telstra Corporation Limited. I accept the above contentions and in the exercise of my discretion under s 84D(4) of the Native Title Act I consider it to be in the interests of justice to determine the application as sought despite the defect in authorisation. I have reached this conclusion because I consider that in the present circumstances s 84D(3)(b) of the Native Title Act has application. It follows that s 84D(4) of the Native Title Act applies to this proceeding so that, after balancing the need for due prosecution of the application and the interests of justice, the Court may make such orders as is considered appropriate.
22 It remains to be considered whether the relevant order should be made under s 87 of the Native Title Act. As the State and the applicant correctly submit, s 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent without holding a hearing where the period specified in the notice given under section 66 of the Native Title Act has ended, the terms of an agreement, in writing signed by or on behalf of the parties, are filed, the Court is satisfied that an order in, or consistent with, those terms would be within power and it appears appropriate to the Court to make the orders sought.
23 As the above pre-conditions have been met I must consider whether it is appropriate to make the determination sought by the parties as required by s 87(1A) of Native Title Act.
24 Section 87(1A) was introduced into the Native Title Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the Native Title Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court’s discretion pursuant to the s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1). The discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act, including the resolution of native title disputes by mediation and agreement: Hughes v Western Australia [2007] FCA 365 at [8].
25 The terms of s 87(2) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. This is so even where the Court has received no evidence of the primary facts substantiating native title so long as that the parties have freely and on an informed basis come to an agreement: Hughes at [9] and Ward v Western Australia [2006] FCA 1848 at [8]. The requirements of s 87(2) will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37].
26 The State has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. It is submitted that in doing so, the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process, has satisfied itself that the determination is justified in all the circumstances.
27 The parties to the proceeding have requested the Court to make orders to give effect to the terms of an agreement and in order to have their agreement to negotiate about these matters formally recorded in the determination of native title that involves the following matters:
(i) The framework for making an ILUA with respect to the future grant of exploration and prospecting licences, processes to apply with respect to future Aboriginal heritage surveys and the creation and upkeep of roads and tracks to allow access to mining and petroleum tenements within the determined native title area;
(ii) The framework for making an ILUA with respect to processes for the construction of houses and public works and implementation of Community Layout Plans in Aboriginal communities within the Determination Area;
(iii) The framework for making an ILUA with respect to the doing in the future of low impact acts in the Determination Area, and the manner of their exercise;
(iv) The framework for making an ILUA about the relationship between native title rights and interests and other rights and interests such as the public right to navigate in waters in the Determination Area and the manner of their exercise.
28 In Brown v South Australia [2010] FCA 875 at [24] Mansfield J considered the power of the Court under s 87 of the Native Title Act and observed that:
[24] Section 87 now contemplates that, in an application under s 61 of the NT Act for determination of native title, the Court may make such orders as it considers appropriate even if it does not proceed to make a determination of native title. Such orders as the parties agree may include orders which do not relate directly to the determination of native title rights and interests. They may be confined to orders which do not directly relate to the determination of native title rights and interests…..it is difficult to see that the parties to an application under s 61 could not agree upon any of the matters encompassed within the coverage of an ILUA: see ss 24BB, 24CB and 24DB. Nor is there any apparent reason why the range of matters which may be the subject of an agreement incorporated into Court orders under s 87 is confined to those matters, although they are widely expressed. The only step the Court must take to include the terms of an agreement is to be satisfied that it is appropriate to do so: s 87(1A).
In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87 and 94A of the Native Title Act. I propose therefore to make orders, in effect, as sought in the Minute.
| I certify that the preceding twenty- |
Associate:
