FEDERAL COURT OF AUSTRALIA

Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD216 of 2010 and WAD340 of 2010 (collectively, “Yinhawangka Applications”) has made native title determination applications that relate to the area of land and waters the subject of the attached Consent Determination of Native Title (“Determination”).

B.    The Applicant in the Yinhawangka 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 is to be made in relation to the land and waters covered by the Yinhawangka Applications (“Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the Determination.

C.    Each of:

(a)    Cheela Plains Pastoral Co Pty Ltd (ACN 096 951 094) of Cheela Plains Station;

(b)    Barkley Marshall Day, Zane Bradley Day, Joan Elizabeth Day and Richard Ernest Day of Mt Vernon Station;

(c)    Wendy Ruth Harvey of Mininer Station;

(d)    Bruce Michael Maguire and Turee Pastoral Co Pty Ltd (ACN 008 691 718) of Turee Creek Station; and

(e)    Andrew Nicholas Glenn of Ashburton Downs Station,

has agreed to the terms of the Determination on the basis of having reached agreement with the Applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the Determination, those agreements will be executed and an 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).

D.    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 Yinhawangka Applications.

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

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

G.    Pursuant to s 87(2) of the Native Title Act 1993 (Cth), the parties have requested that the Court determine the Yinhawangka Applications together without holding a hearing.

H.    The Applicant in the Yinhawangka Applications has nominated the Yinhawangka Aboriginal Corporation (ICN 7837) 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.

BEING SATISFIED that a determination in the terms set out at Attachment A would be within the power of the Court, and it appearing to the Court appropriate to do so, pursuant to ss 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 WAD340 of 2010 and WAD216 of 2010 in terms of the Determination as provided for in Attachment A.

2.    The Yinhawangka Aboriginal Corporation (ICN 7837) 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.    There be no order as to costs.

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 paragraphs 4 and 5 of this Determination.

2.    Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Four 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 Yinhawangka People. The Yinhawangka People are the people referred to in Schedule Seven.

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

Exclusive rights and interests

4.    Subject to paragraphs 6, 7, 8 and 11, the nature and extent of the native title rights and interests in relation to the Exclusive Area is:

(a)    except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment to the exclusion of all others; and

(b)    in relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:

(i)    the right to hunt on, fish from, take and use the traditional resources of the flowing and underground waters; and

(ii)    the right to take and use the flowing and underground waters.

Non-exclusive rights and interests

5.    Subject to paragraphs 6, 7, 8 and 11, the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area is that they confer the following non-exclusive rights on the Yinhawangka People, including the right to conduct activities necessary to give effect to them:

(a)    the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose, and travel over and visit any part of the land and waters of the Non-Exclusive Area;

(b)    the right to hunt, fish, gather, take and use the traditional resources of the Non-Exclusive Area;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities and the transmission of cultural knowledge on the Non-Exclusive Area, including:

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

(ii)    conducting ceremony and ritual, including burial and burial rites; and

(e)    the right to be accompanied on to the Non-Exclusive 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 or entering in connection with traditional law and custom for the performance of ceremonies or cultural activities on the Non-Exclusive Area.

Qualifications on the native title rights and interests

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

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

(b)        the traditional laws and customs of the Yinhawangka People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

7.    Notwithstanding anything in this Determination, there are no native title rights and interests in the Determination Area in relation to:

(a)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA); or

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

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

(d)    water captured by the holders of the Other Interests pursuant to those Other Interests.

8.    The native title rights and interests set out in paragraphs 4(b) and 5 do not confer:

(a)    possession, occupation, use and enjoyment on the Yinhawangka 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.

Areas to which ss 47, 47A or 47B of the Native Title Act apply

9.    Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Five.

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

10.    The nature and extent of the Other Interests are described in Schedule Six.

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

11.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 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

12.    The parties have liberty to apply to 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 5 of Schedule Four of this Determination.

Definitions and interpretation

13.    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;

"Exclusive Area" means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps at Schedule Two);

"flowing water" means the following water within the Determination Area:

(a)    water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

(b)    any natural collection of water into, through, or out of which a river, creek, stream or brook flows;

"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 Yinhawangka People as described in Schedule Seven and referred to in paragraph 3;

"Non-Exclusive Area" means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shaded as yellow on the maps at Schedule Two);

"Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Six and referred to in paragraph 10;

"resources" means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin, 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;

"underground water" means water from and including an underground water source, including water that percolates from the ground; and

"waters" has the same meaning as in the Native Title Act and includes flowing and underground water.

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

SCHEDULE ONE

DETERMINATION AREA

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

WAD340/2010 Yinhawangka Part A

Area 1

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 (WCD2007/001); Then generally northeasterly and generally southeasterly along the boundaries of that native title determination to the intersection with a western boundary of Reserve 30082 (Karijini National Park) at Latitude 22.874031 South; Then generally southerly and generally easterly along the boundaries of that reserve to Longitude 118.504822 East being a point on the present boundary of Native Title Application WAD216/2010 Yinhawangka Part B (WC2010/011); Then generally southwesterly and generally northwesterly along the boundaries of that native title application through the following coordinate positions:

Then continuing northwesterly along the boundary of that native title application to Latitude 23.102006 South, Longitude 117.229470 East being a point on the present boundary of Native Title Application WAD490/2016 Yinhawangka Gobawarrah (WC2016/004); Then generally northwesterly along the boundaries of that native title application through the following coordinate positions:

Then continuing northwesterly along the boundary of that native title application to Latitude 23.067401 South, Longitude 117.161884 East being a point on the present boundary of Native Title Determination WAD126/2005 Puutu Kunti Kurrama and Pinikura #2 (WCD2015/003); Then generally northwesterly, generally northerly, generally easterly, again generally northwesterly and generally northeasterly along the boundaries of that native title determination back to the commencement point.

Area 2

All those lands and waters commencing at the intersection of an eastern boundary of Reserve 30082 (Karijini National Park) with Latitude 23.129889 South being a point on the present boundary of Native Title Application WAD216/2010 Yinhawangka Part B (WC2010/011); Then generally easterly and generally northeasterly along the boundaries of that native title application through the following coordinate positions:

Then continuing northeasterly along the boundary of that native title application to Latitude 23.061676 South, Longitude 118.876551 East being a point on the present boundary of Native Title Determination WAD78/2005 Ngarlawangga People (WCD2016/007); Then northeasterly along the boundary of that native title determination to Latitude 23.059844 South, Longitude 118.881488 East being a point on the present boundary of Native Title Application WAD196/2013 Nyiyaparli #3 (WC2013/003); Then generally northeasterly along the boundaries of that native title application through the following coordinate positions:

Then continuing northeasterly along the boundary of that native title application to Latitude 23.035240 South, Longitude 118.926692 East being a point on the present boundary Native Title Determination WAD6096/1998 Banjima People (WCD2014/001); Then generally westerly, generally southwesterly, again generally westerly and generally northwesterly along the boundaries of that native title determination to the intersection with an easternmost boundary of the southern severance of Reserve 30082 (Karijini National Park) at Latitude 23.024322 South; Then generally southwesterly, westerly, northerly, again westerly and southerly along the boundaries of that reserve back to the commencement point.

Note:

•    Geographic Coordinates provided in Decimal Degrees.

•    All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

•    Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28 February 2017.

•    For the avoidance of doubt the application excludes any land and waters already claimed by:

•    Native Title Determination Application WAD6096/1998 Banjima People (WCD2014/001) as determined in the Federal Court on 11 March 2014

•    Native Title Determination Application WAD78/2005 Ngarlawangga People (WCD2016/007) as determined in the Federal Court on 7 December 2016

•    Native Title Determination Application WAD6208/1998 Eastern Guruma (WCD2007/001) as determined in the Federal Court on 1 March 2007

•    Native Title Determination Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura People (WCD2015/003) as determined in the Federal Court on 2 September 2015

•    Native Title Determination Application WAD126/2005 Puutu Kunti Kurrama and Pinikura #2 (WCD2015/003) as determined in the Federal Court on 2 September 2015

•    Native Title Determination Application WAD490/2016 Yinhawangka Gobawarrah (WC2016/004) as filed in the Federal Court on 17 October 2016

•    Native Title Determination Application WAD196/2013 Nyiyaparli #3 (WC2013/003) as registered in the Federal Court on 27 August 2013

•    Native Title Determination Application WAD216/2010 Yinhawangka Part B (WC2010/011) as registered in the Federal Court on 17 September 2010

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:        Graphic Services (Landgate) 19 June 2017

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.

WAD216/2010 Yinhawangka Part B

All those lands and waters commencing at Latitude 23.102006 South, Longitude 117.229470 East being a point on the present boundary of Native Title Application WAD490/2016 Yinhawangka Gobawarrah (WC2016/004); Then generally southeasterly along the boundaries of that native title application through the following coordinate positions:

Then continuing southeasterly along the boundary of that native title application to Latitude 23.701683 South, Longitude 117.739177 East being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001); Then generally northeasterly along the boundaries of that native title determination to the intersection with a western boundary of Pastoral Lease N049718 (Mininer) at Latitude 23.607725 South; Then generally northeasterly through the following coordinate positions:

Then northwesterly to the intersection with an eastern boundary of Pastoral Lease N049718 (Mininer) at Latitude 23.571113 South being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001); Then generally northeasterly and generally southeasterly along the boundaries of that native title determination to Longitude 118.797685 East being a point on the present boundary of Native Title Determination WAD78/2005 Ngarlawangga People (WCD2000/001); Then generally northeasterly and generally northerly along the boundaries of that native title determination to Latitude 23.061676 South, Longitude 118.876551 East being a point on the present boundary of Native Title Application WAD340/2010 Yinhawangka Part A (WC2010/016); Then generally southwesterly and generally westerly along the boundaries of that native title application through the following coordinate positions:

Then continuing westerly along the boundary of that native title application to the intersection with an eastern boundary of Reserve 30082 (Karijini National Park) at Latitude 23.129889 South; Then southerly and westerly along the boundaries of that reserve to Longitude 118.504822 East being a point on the present boundary of Native Title Application WAD340/2010 Yinhawangka Part A (WC2010/016); Then generally southwesterly and generally northwesterly along the boundaries of that native title application through the following coordinate positions:

Then continuing northwesterly along the boundary of that native title application back to the commencement point.

Note:

•    Geographic Coordinates provided in Decimal Degrees.

•    All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

•    Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28 February 2017.

•    For the avoidance of doubt the application excludes any land and waters already claimed by:

•    Native Title Determination Application WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as determined in the Federal Court on 29 August 2000

•    Native Title Determination Application WAD78/2005 Ngarlawangga People (WCD2016/007) as determined in the Federal Court on 7 December 2016

•    Native Title Determination Application WAD490/2016 Yinhawangka Gobawarrah (WC2016/004) as filed in the Federal Court on 17 October 2016

•    Native Title Determination Application WAD327/2012 Jurruru #2 (WC2012/012) as filed in the Federal Court on 22 November 2012

•    Native Title Determination Application WAD340/2010 Yinhawangka Part A (WC2010/016) as registered in the Federal Court on 10 December 2010

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 29 May 2017

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.

SCHEDULE TWO

MAPS OF THE DETERMINATION AREA

Schedule THREE

EXCLUSIVE AREA

Areas where native title comprises the rights set out in paragraph 4 of the Determination

Native Title comprises the rights and interests set out in paragraph 4 of the Determination in relation to the following land and waters (which areas are generally shown as shaded in green on the maps at Schedule Two):

1.    Wakathuni

All that land comprising Lot 105 as shown on Deposited Plan 219084 being subject to Aboriginal Lease H164887.

2.    Mundari

All those land and waters commencing at Latitude 22.976921 South, Longitude 117.185721 East and extending generally northerly, generally easterly, generally southeasterly, generally southwesterly, and generally northwesterly through the following coordinate positions:

Then northerly back to the commencement point.

3.    Bibi Tree

All those land and waters commencing at Latitude 22.934047 South, Longitude 117.388053 East and extending generally northeasterly, generally southeasterly, generally southerly, generally southwesterly, generally northwesterly and generally northerly through the following coordinate positions:

Then northwesterly back to the commencement point.

EXCLUSIONS:

•    All that land comprising Pastoral Lease N050372 (Rocklea).

•    Paraburdoo Road being Road No. 16245 as shown on Deposited Plan 41995.

4.    Waarnarra

All those land and waters commencing at Latitude 22.926466 South, Longitude 117.393966 East and extending generally southeasterly, generally southwesterly, generally northwesterly, generally northeasterly, again generally southeasterly and again generally southwesterly through the following coordinate positions:

Then southerly back to the commencement point.

EXCLUSIONS:

•    All that land comprising Pastoral Lease N050372 (Rocklea).

5.    Piritayi

All those land and waters commencing at Latitude 22.817668 South, Longitude 117.482145 East and extending generally northeasterly, generally southeasterly, generally southwesterly and generally northwesterly through the following coordinate positions:

Then northwesterly back to the commencement point.

EXCLUSIONS:

•    All that land comprising Pastoral Lease N050372 (Rocklea).

6.    Nyimili

All those land and waters wholly within the external boundary of Native Title Application WAD340/2010 Yinhawangka Part A (WC2010/016) commencing at Latitude 22.765367 South, Longitude 117.620913 East and extending generally southeasterly, generally southwesterly, generally northwesterly, generally northerly and generally northwesterly through the following coordinate positions: