FEDERAL COURT OF AUSTRALIA

Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940

THE COURT NOTES THAT:

A.    The Applicants in proceedings WAD 6007 of 2001 and WAD 126 of 2005 have made native title determination applications (PKKP Applications) that relate to an area of land and waters the subject of the attached minute of proposed consent determination (Determination).

B.    The Applicants in the PKKP Applications, the State of Western Australia and the other Respondents to the proceedings (the parties) have reached an agreement as to the terms of the Determination which the parties submit should be made in relation to the land and waters covered by the PKKP Applications (Determination Area). The external boundaries of the Determination Area are described in Schedule One to the Determination.

C.    Pursuant to s 87(1) 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 by the parties in relation to the PKKP Applications.

D.    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87 and s 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.

E.    The PKKP Applications are made on behalf of two separate but related language groups (Puutu Kunti Kurrama People and Pinikura People) who together claim rights and interests within the claim area. The applications are made on the basis that within the application area, as between the Puutu Kunti Kurrama People and Pinikura People, the Puutu Kunti Kurrama People speak for Puutu Kunti Kurrama country, Pinikura People speak for Pinikura country, and together they both speak for a shared area of country. While this delineation is not apparent in the terms of the Determination, it is reflected in the membership and decision making structure of the prescribed body corporate nominated by the Applicants to hold the determined native title on trust for the native title holders (see Recitals I and J below). On that basis, the parties have agreed that a single determination in favour of the Puutu Kunti Kurrama Pinikura People is appropriate in the circumstances.

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

G.    The parties have requested that the Court hear and determine the proceedings the subject of the PKKP Applications together and that, pursuant to s 87(2) of the Native Title Act 1993 (Cth), the Court determine those proceedings without holding a hearing.

H.    The pastoral respondents Cheela Plains Pastoral Co Pty Ltd, A N & J A Glenn, P R & S J Grey, Stamco Beef Pty Ltd and Red Sky Stations Pty Ltd have agreed to the terms of the Determination on the basis of having reached agreements with the Applicants in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the Determination taking effect, 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).

I.    The Applicants in the PKKP Applications intend that the PKKP Aboriginal Corporation (ICN 7630) be nominated pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders. As at the date of these orders, the Applicants are not in a position to make that nomination, but expect to be able to do so within 6 months of the date of these orders.

J.    The parties have reached agreement the subject of these orders on the basis that, when the Determination takes effect:

(i)    the native title will be held in trust by the PKKP Aboriginal Corporation (ICN 7630), or such other corporation as the PKKP Applicants may, with the consent of the parties, nominate;

(ii)    the members of that corporation will have adopted either:

(A)    the rule book at Attachment B, being the rule book approved by a resolution passed by a duly convened meeting of members of the PKKP native title claim groups on 13 February 2015; or

(B)    the rule book at Attachment B as amended and approved in writing by the State of Western Australia in its capacity as First Respondent to the proceedings;

(iii)    if necessary, the Registrar of Indigenous Corporations will have approved and registered the rule book; and

(iv)    the corporation nominated to hold the native title will expeditiously execute the agreements as agreed between Cheela Plains Pastoral Co Pty Ltd, A N & J A Glenn, P R & S J Grey, Stamco Beef Pty Ltd and Red Sky Stations Pty Ltd.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 and s 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 WAD 6007 of 2001 and WAD 126 of 2005 in terms of the Determination as provided for in Attachment A. The Determination is to take effect immediately upon the making of a determination under s 56(1) of the Native Title Act 1993 (Cth) provided that within 6 months of the date upon which these orders are made:

(a)    a representative of the common law holders of the native title rights and interests shall nominate in writing to the Federal Court (and copied to the parties) a prescribed body corporate to hold the native title rights and interests held in trust on behalf of the native title holders; and

(b)    the representative of the common law holders shall include within the nomination:

(i)    the written consent of the body corporate; and

(ii)    a statement that either:

(i)    the rule book at Attachment B; or

(ii)    the rule book at Attachment B as amended and approved in writing by the State of Western Australia in its capacity as First Respondent to the proceedings,

has been adopted by the members of the corporation and, if necessary, approved by the Registrar of Indigenous Corporations.

2.    If a prescribed body corporate is nominated in accordance with order 1, it shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).

3.    If a prescribed body corporate is not nominated in accordance with order 1 within the time specified, or such later time as the Court may order, the Determination will not take effect and the matter is to be listed for further directions.

4.    The parties have liberty to apply in relation to these orders at any time prior to the Determination taking effect.

5.    There be no order as to costs.

Date that entry is stamped:     2 September 2015

_______________________________

The Honourable Justice McKerracher

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

1.    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.

2.    Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Three which are shown as generally shaded pink on the maps at Schedule Two.

Native title holders (s 225(a) Native Title Act)

3.    The native title in the Determination Area is held by the Puutu Kunti Kurrama and Pinikura People. The Puutu Kunti Kurrama and Pinikura People are the people referred to in Schedule Five.

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

4.    Subject to paragraphs 2, 5, 6 and 8 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 Puutu Kunti Kurrama and Pinikura People, including the right to conduct activities necessary to give effect to them:

(a)    the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Determination Area;

(b)    the right to hunt, fish, gather, take and use the traditional resources of the land;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities on the Determination Area, including:

(i)    visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

(ii)    conducting ceremony and ritual, and the transmission of cultural knowledge; and

(e)    the right to be accompanied onto the Determination Area by those people who, though not native title holders, and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are:

(i)    spouses, parents or children of the native title holders; or

(ii)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.

Qualifications on the native title rights and interests

5.    The native title rights and interests set out in paragraph 4:

(a)    are subject to and 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 Puutu Kunti Kurrama and Pinikura People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) 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 in 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.

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

(a)    possession, occupation, use and enjoyment on the Puutu Kunti Kurrama and Pinikura People to the exclusion of all others; or

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

The nature and extent of any other interests (s 225(c) Native Title Act)

7.    The nature and extent of the Other Interests are described in Schedule Four.

Relationship between native title rights and other interests (s 225(d) Native Title Act)

8.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that:

(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 do not extinguish them.

Liberty to Apply

9.    The parties have liberty to apply to:

(a)    establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in clause 4 of Schedule Three of this determination; and

(b)    clarify the relationship between the native title rights and interests set out in paragraph 4 and Easement F924685 referred to in clause 3(b) of Schedule Four of this determination if a court of competent jurisdiction should find that its creation did not affect native title.

Definitions and Interpretation

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

“Determination Area” means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

“land” has the same meaning as in the Native Title Act 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 Puutu Kunti Kurrama and Pinikura People as described in Schedule Five and referred to in paragraph 3;

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 7;

“resources” means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin, sand, clay, gravel and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));

“use” includes by way of share and exchange, but does not include use by way of trade;

“waters” has the same meaning as in the Native Title Act.

11.    In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the maps at Schedule Two the written description prevails.

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue and green on the maps at Schedule Two, comprises all land and waters bounded by the following descriptions:

PKKP #1 Determination Area

All those lands and waters commencing at Latitude 22.250819 South, Longitude 115.995908 East and extending generally southeasterly, generally easterly and generally northeasterly through the following coordinate positions:

Then easterly to Latitude 22.274940 South, Longitude 117.021666 East, being a point on the present boundary of Native Title Determination WAD6208/1998 Eastern Guruma (WC1997/089); Then generally southerly, generally easterly and generally southeasterly along the boundaries of that native title determination to its southernmost southwestern corner at Latitude 22.705647 South, Longitude 117.334829 East; Then generally westerly and generally southerly through the following coordinate positions:

Then southeasterly to the southern bank of the Hardy River at Longitude 116.670555 East; Then extending generally northwesterly along that river bank to Longitude 116.123696 East; Then southwesterly, generally northerly and generally northwesterly through the following coordinate positions:

Then northwesterly back to the commencement point.

PKKP #2 Determination Area

PORTION 1

All those lands and waters commencing at Latitude 22.139378 South, Longitude 115.673793 East, being a point on the present boundary of Native Title Determination WAD6113/1998 Thalanyji (WC1999/045); Then generally southeasterly and generally easterly through the following coordinate positions:

Then easterly to Latitude 22.179325 South, Longitude 115.912264 East, being a point on a western boundary of Native Title Application WAD6090/1998 Kuruma Marthudunera (Combined) (WC1999/012); Then generally southeasterly along boundaries of that native title application to the intersection with northernmost northwestern corner of Native Title Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) at Latitude 22.250819 South, Longitude 115.995908 East; Then generally southerly along boundaries of that native title application to Latitude 22.740495 South, Longitude 116.120168 East; Then generally southwesterly through the following coordinate positions:

Then southwesterly to Latitude 22.774669 South, Longitude 116.062249 East, being a point on a eastern boundary of Native Title Determination WAD6212/1998 Thudgari People (WC1997/095); Then northerly and generally southwesterly along boundaries of that native title determination to the centreline of the Henry River at Latitude 22.904084 south; Then generally northerly along the centreline of that river to the intersection with the centreline of the Ashburton River, being a point on the present boundary of Native Title Determination WAD6113/1998 Thalanyji (WC1999/045); Then northerly along the boundary of that native title determination to Latitude 23.398692 South, Longitude 115.672633 East and then northerly back to the commencement point.

PORTION 2

All those lands and waters commencing at Latitude 22.705647 South, Longitude 117.334829 East, being a point on the present boundary of Native Title Determination WAD6208/1998 Eastern Guruma (WC1997/089); Then southwesterly to the centreline of the Beasley River at Latitude 22.710860 South; Then generally southwesterly along the centreline of that river to Latitude 22.881360 South; Then generally southeasterly, generally westerly, generally southerly and again generally southeasterly through the following coordinate positions:

Then southerly to the northernmost northwestern corner of Native Title Application WAD6173/98 Gobawarrah Minduarra Yinhawanga (WC1997/043) at Latitude 23.067401 South, Longitude 117.161884 East; Then southerly along a western boundary of that native title application to the intersection with the boundary of Native Title Application WAD6007/2000 Jurruru (WC2000/008) at Longitude 117.169463 East; Then generally northwesterly along the boundaries of that native title application to the intersection with a southeastern corner of Native Title Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) at Longitude 116.670555 East; Then generally northerly, generally easterly and generally northeasterly along boundaries of that native title application back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

Ashburton River, Beasley Creek and Henry River based on topographic

1:250 000 vector data is © Commonwealth of Australia and is from Geoscience Australia (2003).

For the avoidance of doubt the PKKP #2 Determination Area excludes any land and waters covered by:

Native Title Application WAD6173/1998 Gobawarrah Minduarra Yinhawanga (WC1997/043) as accepted for registration on the 25th June 1997.

Native Title Application WAD6007/2000 Jurruru People (WC2000/008) as accepted for registration on the 1st March 2001.

Native Title Application WAD6090/1998 Kuruma Marthudunera (Combined Application) (WC1999/012) as accepted for registration on the 24th June 1999.

Native Title Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) as accepted for registration on the 29th November 2001.

Native Title Determination WAD6113/1998 Thalanyji (WC1999/045) as determined in the Federal Court on the 18th September 2008.

Native Title Determination WAD6212/1998 Thudgari People (WC1997/095) as determined in the Federal Court on the 18th November 2009.

Native Title Application WAD340/2010 Yinhawangka Part A (WC2010/016) as accepted for registration on the 10th December 2010.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Native Title Spatial Services (Landgate) 15th July 2015

Use of Coordinates:

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

MAPS OF THE DETERMINATION AREA

AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2)

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 4 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

1.    Freehold

Lot 2 on Deposited Plan 130398 being the whole of the land currently the subject of certificate of title volume 959 folio 23.

Lot 1 on Deposited Plan 253489 being the whole of the land currently the subject of certificate of title volume 2209 folio 879.

2.    Dedicated roads and roads set aside, taken or resumed

Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following:

Road No 14619 (Nanutarra-Wittenoom Road) dedicated by notice published in the Government Gazette on 3 March 1972;

Road No 8385 dedicated by notice published in the Government Gazette on 17 January 1930;

Road No 8477 dedicated by notice published in the Government Gazette on 4 April 1930;

Road No 8476 dedicated by notice published in the Government Gazette on 4 April 1930;

Road No 8474 dedicated by notice published in the Government Gazette on 4 April 1930;

Road No 8469 dedicated by notice published in the Government Gazette on 4 April 1930;

Road No 7911 dedicated by notice published in the Government Gazette on 17 January 14 September 1928;

Road No 440 dedicated by notice published in the Government Gazette on 7 September 1894;

Road No 258 dedicated by notice published in the Government Gazette on 8 September 1887; and

Road No 257 dedicated by notice published in the Government Gazette on 8 September 1887.

3.    Reserves

Reserve 37596 (Quarry) vested under section 33 of the Land Act 1933 (WA) (repealed).

4.    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) (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.

OTHER INTERESTS (Paragraph 7)

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:

(b)    The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;

(c)    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

(d)    The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

2.    Pastoral Leases

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

3.    Mining Tenements and Petroleum Interests

(a)    The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:

(i)    Mining Leases

(ii)    Exploration Licences

(iii)    Prospecting Licences

(iv)    Miscellaneous Licences

(v)    Retention Licences

(vi)    General Purpose Lease

(b)    The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:

(c)    The agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement:

4.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Schedule Four, but subject to clause (4)(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest including those referred to in clause 3 of Schedule Four 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 clause 4(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 4(a).

(c)    Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clause 3 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

5.    Indigenous Land Use Agreements

(a)    The RTIO and PKKP People Indigenous Land Use Agreement (Area Agreement) dated 15 November 2012, and registered on the Register of Indigenous Land Use Agreements on 24 April 2013 (Tribunal No. WI2012/011), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that ILUA.

6.    Other

The following rights and interests: