FEDERAL COURT OF AUSTRALIA

Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 6136 of 1998 has made a native title determination application (“Nanda Application”).

B.    The Applicant in proceeding WAD 286 of 2018 has made a native title determination application (“Nanda #2 Application”) which partially overlaps the land and waters the subject of the Nanda Application. The Nanda Application and the Nanda #2 Application are made on behalf of the same persons.

C.    The Applicants in the Nanda and Nanda #2 Applications, the State of Western Australia and the Respondents to the proceedings (“the parties”) have reached an agreement as to the terms of a determination which is to be made in relation to the whole of the Nanda #2 Application and part of the land and waters covered by the Nanda Application (“the Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the determination.

D.    The parties have agreed that, in respect of the balance of the land and waters the subject of the Nanda Application (“Nanda Part B”), no determination is to be made at present. Nanda Part B comprises that portion of the Nanda Application which is geographically overlapped by native title determinations WAD 6119 of 1998 (Mullewa Wadjari Community) and WAD 339 of 2018 (Malgana #2).

E.    Each of BPP Oliver Super Pty Ltd, Calum Graham Carruth, Alan James Crawford, Harold James Crawford, James Michael Drew, Loreto Mary Drew, Gabor Holdings Pty Ltd and Belinda Jean Sparkhall have reached an 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, that agreement will be executed and an application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as a prescribed body corporate agreement pursuant to s 24BG of the Native Title Act 1993 (Cth) (“Native Title Act”).

F.    Pursuant to subsections 87A(1)(d), (2) and (4) of the Native Title Act (in respect of the Nanda Application) and subsections 87(1), (1A) and (2) of the Native Title Act (in respect of the Nanda #2 Application) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Nanda and Nanda #2 Applications.

G.    The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87A (in respect of the Nanda Application) and 87 (in respect of the Nanda #2 Application) of the Native Title Act that native title exists in relation to the land and waters of the Determination Area.

H.    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.

I.    Pursuant to s 87(2) and 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

J.    The Applicants in the Nanda and Nanda #2 Applications have nominated the Nanda Aboriginal Corporation (ICN 8871) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87, 87A and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    In so far as native title determination application WAD 6136 of 1998 relates to land and waters also overlapped by native title determination application WAD 286 of 2018, it is dismissed.

2.    In relation to the Determination Area, there be a determination of native title in WAD 6136 of 1998 and WAD 286 of 2018 in the terms provided for in Attachment A.

3.    The Nanda Aboriginal Corporation (ICN 8871) 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).

4.    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.    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 that are identified in Schedule Four.

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

3.    The native title in the Determination Area is held by the Nanda People.

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

Exclusive Rights and Interests

4.    Subject to paragraphs 6, 7 and 8, 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 water, the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others; and

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

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

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

Non Exclusive Rights and Interests

5.    Subject to paragraphs 6, 7 and 8 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 Nanda People:

(a)    the right to enter and remain on the Non-Exclusive Area, camp, erect temporary shelters and to travel over and visit any part of the Non-Exclusive Area;

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

(c)    the right to take and use water;

(d)    the right to engage in cultural activities on the Non-Exclusive 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; and

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

(e)    the right to be accompanied onto the Non-Exclusive Area by those persons who, though not native title holders, are:

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

(ii)    people who are members of the immediate family of a spouse, partner, parent or child of a native title holder; or

(iii)    people entering the Determination Area in connection with the performance of ceremonies or cultural activities in accordance with traditional laws and customs.

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 Nanda People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial 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);

(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 lawfully captured by the holders of the 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 of those parts of the Determination Area on the Nanda People to the exclusion of all others; nor

(b)    a right to control the access to, or use of, those parts of the Determination Area or its resources.

Sections 47A or 47B of the Native Title Act

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

The nature and extent of any Other Interests

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

Relationship between native title rights and Other Interests

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.

Definitions and Interpretation

12.    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;

“Nanda People” means the people described in Schedule Seven and referred to in paragraph 3;

“Native Title Act” means the Native Title Act 1993 (Cth);

“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 shown as shaded 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 Five and referred to in paragraph 10;

“resources” means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, 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));

“Titles Validation Act” means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);

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

“use” does not include use by way of trade.

13.    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 map 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 description:

All those lands and waters commencing at a point on the eastern boundary of Pastoral Lease N049576 (Tamala) at Latitude 26.635591 South and extending easterly to Latitude 27.630981 South, Longitude 114.031482 East; Then easterly to a western boundary of Lot 214 as shown on Deposited Plan 220375 at Latitude 26.598612 South being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002); Then generally southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2004/010); Then generally southerly along the boundaries of that native title determination to the intersection of Latitude 27.516422 South; Then generally southwesterly and generally westerly through the following coordinate positions:

Then southeasterly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.528780 South, Longitude 115.214195 East and Latitude 27.529570 South, Longitude 115.215606 East; Then southwesterly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.534774 South, Longitude 115.206972 East and Latitude 27.533937 South, Longitude 115.205689 East; Then generally westerly and southerly through the following coordinate positions:

Then southerly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.537054 South, Longitude 115.202046 East and Latitude 27.538650 South, Longitude 115.201845 East; Then southwesterly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.540675 South, Longitude 115.198499 East and Latitude 27.540963 South, Longitude 115.195892 East; Then generally northwesterly and generally westerly through the following coordinate positions:

Then southwesterly to an eastern boundary of Reserve 1805 at Latitude 27.516526 South; Then westerly to a western boundary of Reserve 1805 at Latitude 27.516787 South; Then generally westerly through the following coordinate positions:

Then southwesterly to an eastern boundary of the northern severance of Reserve 1804 at Latitude 27.527989 South; Then southwesterly to the intersection with a northeastern boundary of Native Title Application WAD6001/2000 Hutt River (WC2000/001) at Longitude 114.674773 East; Then northwesterly to Latitude 27.857930 South, Longitude 114.107262 East; Then due west to the intersection with the Lowest Astronomical Tide; Then generally northerly and generally northwesterly along that Lowest Astronomical Tide to Latitude 26.911446 South; Then northeasterly to the eastern boundary of Pastoral Lease N049576 (Tamala) at Latitude 26.895648 South; Then northerly along the eastern boundary of that Pastoral lease 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 1st March 2016.

Lowest Astronomical Tide depicted from the Low Water Mark sourced from Landgate’s Spatial Cadastral Database dated 1st March 2016.

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

Native Title Determination Application WAD6236/1998 The Malgana Shark Bay People’s Application (WC1998/017) as Registered by the Native Title Registrar on the 30th March 1998.

Native Title Determination Application WAD6033/1998 Wajarri Yamatji (WC2004/010) as Registered by the Native Title Registrar on the 5th December 2005.

Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19th October 2017.

Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23rd April 2018.

Native Title Determination Application WAD6119/1998 Mullewa Wadjari Community (WC1996/093) as Registered by the Native Title Registrar on the 19th August 1996.

Native Title Determination Application WAD6001/2000 Hutt River (WC2000/001) as Registered by the Native Title Registrar on the 7th July 2000.

Native Title Determination Application WAD339/2018 Malgana 2 (WC2018/014) as filed in the Federal Court on the 30th July 2018.

Native Title Determination Application WAD339/2018 Wajarri Yamatji #2 (WC2018/004) as filed in the Federal Court on the 1st July 2017.

Native Title Determination Application WAD32/2018 Wajarri Yamatji #3 (WC2018/001) as filed in the Federal Court on the 5th February 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 10th October 2018

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 AREAS

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

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

1.    Reserve 00656 as described in Government Gazette 1st April 1884 page 152.

2.    Reserve 01475 (Barrel Well).

3.    UCL 004 - All that area commencing at the southwestern corner of Road 179 being a point on an eastern boundary of Reserve 12996 and extending generally northwesterly and northerly along that Reserve to the intersection with a southern boundary of Pastoral Lease N050525 (Murchison House); Then easterly along the southern boundary of that pastoral lease to the intersection with the eastern boundary of Road 179: Then generally southwesterly along that eastern boundary back to the commencement point.

4.    All that portion of UCL 109 located around Syphon Pool that falls within the boundary commencing at the intersection of Longitude 114.572345 East and the right bank of the Murchison River and extending generally northeasterly along the right bank of that river approximately 500m to the intersection with Longitude 114.576702 East; Then northwesterly to the intersection of the southern boundary of Road 126 with Longitude 114.575189 East; Then southwesterly along the southern boundary of that Road to the intersection with Longitude 114.571729 East; Then southeasterly back to the commencement point.

5.    All that portion of UCL 118 located around Glasses Well that falls within the boundary commencing at the intersection of the eastern boundary of CT0011700160 and the right bank of a southern tributary of the Murchison River at approximate Latitude 27.830070 South; Then extending generally easterly and northerly along that bank to the intersection with the left bank of the main tributary of the Murchison River at approximate Longitude 114.701883 East; Then northwesterly and generally southwesterly along that bank to the intersection with the right bank of a southern tributary of the Murchison River at approximate Longitude 114.692276 East; Then generally southeasterly along that bank to intersection of the northern boundary of CT0011700160 at approximate Longitude 114.6930497 East; Then easterly and southerly along boundaries of CT0011700160 back to the commencement point.

Reserve 28750 is excluded from this area.

6.    All that portion of UCL 225 located around Bully Pool that falls within the boundary commencing at Latitude 27.611899 South, Longitude 114.275501 East and then extending northerly, generally southeasterly, generally southerly, generally westerly and northwesterly passing through the following coordinate positions;

Then northwesterly to the intersection of the left bank of the Murchison River and Longitude 114.2601621 East. Then easterly, generally northeasterly and northwesterly along the left bank of that River until the intersection with Latitude 27.614161 South; Then northwesterly to Latitude 27.614235 South, Longitude 114.271687 East; Then northwesterly back to the commencement point.

7.    All that portion of UCL 225 located around Wilgie Mia Pool that falls within the boundary commencing at Latitude 27.495831 South, Longitude 114.373594 East and extending generally westerly and generally northwesterly through the following coordinate positions;

Then northwesterly to the intersection of a line being the 500 metre buffer southeasterly from the left bank of the Murchison River with Longitude 114.342670 East; Then generally northeasterly along that line until the intersection with Longitude 114.350204 East; Then northwesterly to the intersection of the left bank of that river with Longitude 114.348994 East; Then generally easterly along the left bank of that river approximately 500m to the intersection with Longitude 114.353927 East; Then southeasterly to the intersection of a line being the 500 metre buffer southeasterly from the left bank of the Murchison River with Longitude 114.355084 East; Then along that line to the intersection between that line with Longitude 114.374251 East; Then northeasterly to the intersection with the left bank of the Murchison River with Latitude 27.479977 South; Then southeasterly along that left bank approximately 500m to the intersection with Latitude 27.484167 South; Then westerly to the intersection of a line being the 500 metre buffer westerly from the left bank of the Murchison River with Longitude 114.374794 East; Then generally southwesterly and southeasterly along that line to the intersection with Latitude 27.494601 South; Then southwesterly back to the commencement point.

SCHEDULE FOUR

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 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

1.    Freehold

The following grants of estates in fee simple: