FEDERAL COURT OF AUSTRALIA

Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 20 of 2019 has made a native title determination application (“Nyamal Application”).

B.    The Applicant in the Nyamal Application, 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 part of the land and waters covered by the Nyamal Application (“the Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the Determination.

C.    The parties have agreed that, in respect of the balance of the land and waters of the Nyamal Application (namely those areas of the Nyamal Application which are overlapped by native title determination applications WAD 23 of 2019 (“Palyku Application”) and WAD 483 of 2018 (“Palyku Application #2”)), no determination be made at present. The overlap between the Nyamal Application and the Palyku and Palyku #2 Applications is currently the subject of a separate question and separate proceeding constituted by orders made by the Court on 31 August 2018.

D.    Pursuant to subsections 87A(1) and (2) of the Native Title Act 1993 (Cth) (the Native Title Act) 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 part of the Nyamal Application.

E.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A and 94A of the Native Title Act 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 section 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.

H.    The Applicant in the Nyamal Application has nominated the Nyamal Aboriginal Corporation (ICN 8770) pursuant to section 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 sections 87A and 94A of the Native Title Act 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 20 of 2019 in the terms provided for in Attachment A.

2.    The Nyamal Aboriginal Corporation (ICN: 8770) 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).

3.    There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: section 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 that are identified in Schedule Four and which are generally shown as shaded pink on the maps at Schedule Two.

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

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

The nature and extent of native title rights and interests: sections 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 Nyamal People, including the right to conduct activities necessary to give effect to them:

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

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

(c)    the right to take and use water on the Non-Exclusive Area; and

(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 protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and

(ii)    conducting burials, ceremony and ritual.

(e)    the right to be accompanied on to the Non-Exclusive Area by those people who, though not Nyamal People and who (for the avoidance of doubt) cannot themselves exercise any native title rights, are:

(i)    the non-Nyamal spouses, parents or children of the Nyamal People; or

(ii)    people required by 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 Nyamal 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) (repealed);

(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 on the Nyamal People to the exclusion of all others; or

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

Areas to which sections 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 land and waters described in Schedule Five.

The nature and extent of any Other Interests

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

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;

“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);

“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);

“Nyamal People” means the people referred to in Schedule Seven;

“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, 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);

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

“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.

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 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 description:

All those lands and waters commencing at Latitude 20.455583 South and Longitude 118.782218 East being a point on the present boundary of Native Title Determination WAD6185/1998 Ngarla and Ngarla 2 (Area A) (WCD2007/003) and extending generally easterly along the boundaries of that native title determination to a point on the western boundary of Pastoral Lease N050091 (Strelley) at Latitude 20.448278 South; Then generally southerly, easterly and generally northerly along boundaries of that pastoral lease to the westernmost southwestern corner of Pastoral Lease N050454 (Panorama); Then northerly, easterly, generally northeasterly, generally northerly and again easterly along boundaries of that pastoral lease to the westernmost northwestern corner of Pastoral Lease N049987 (Eginbah); Then generally easterly along the boundaries of that pastoral lease to the intersection with a western boundary of Pastoral Lease N050507 (Muccan); Then northerly along the boundaries of that pastoral lease to the southernmost southeastern corner of Pastoral Lease N050027 (De Grey); Then generally westerly and northerly along the boundaries of that pastoral lease to Latitude 20.499104 South being a point on the present boundary of Native Title Determination WAD6185/1998 Ngarla and Ngarla 2 (Area A) (WCD2007/003); Then generally easterly and generally northeasterly along the boundaries of that native title determination to Latitude 20.340141 South, Longitude 119.642311 East; Then generally easterly through the following coordinate positions:

Then southeasterly to a southwestern boundary of Reserve 12297 at Longitude 120.344825 East; Then generally southeasterly along the boundaries of that reserve to Longitude 120.767153 East; Then generally southeasterly through the following coordinate positions:

Then easterly to a western boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002) at Latitude 20.783613 South; Then southerly and easterly along the boundaries of that native title determination to the intersection with a western boundary of Reserve 12297 at Latitude 20.998625 South; Then generally southerly along the boundaries of that reserve to Latitude 21.118060 South; Then generally southerly and southeasterly through the following coordinate positions:

Then southeasterly to a western boundary of Reserve 12297 at Latitude 21.697745 South; Then

generally southerly along the boundaries of that reserve to Latitude 22.176991 South, being a point on a northern boundary of Native Title Determination WAD6280/1998 Nyiyaparli People

(WCD2018/008); Then generally northwesterly along the boundary of that native title determination to the intersection with the easternmost northeastern point of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002); Then generally northerly, westerly, and southerly through the following coordinate positions:

Then southwesterly along a line joining coordinate positions Latitude 21.471252 South, Longitude 119.205165 East and Latitude 21.511067 South, Longitude 119.174274 East to the intersection of a line joining coordinate positions Latitude 21.513187 South, Longitude 119.182725 East and Latitude 21.490587 South, Longitude 119.162025 East; Then generally northwesterly through the following coordinate positions:

Then northwesterly to the northernmost northeastern corner of Reserve 22626; Then westerly along the northern boundary of that reserve to an intersection with the eastern boundary of Native Title Determination WAD47/2014 Kariyarra - Abydos (WCD2018/015); Then generally northwesterly along the boundary of that native title determination to the intersection with the eastern boundary of Native Title Determination WAD6169/1998 Kariyarra People (WCD2018/015); Then generally northwesterly along the boundary of that native title determination to the intersection with the eastern boundary of Native Title Determination WAD232/2009 Kariyarra - Pipingarra (WCD2018/015); Then generally northeasterly along the boundary of that native title determination back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 01 July 2019.

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

    Native Title Determination WAD77/2005 Ngarla Overlap Proceeding (WCD2013/001) as Determined in the Federal Court on 19/02/2013.

    Native Title Determination WAD6185/1998 Ngarla and Ngarla 2 (Area A) (WCD2007/003) as Determined in the Federal Court on 30/05/2007.

    Native Title Determination WAD6281/1998 Nyangumarta People (Part A) (WCD2009/001) as Determined in the Federal Court on 11/06/2009.

    Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002) as Determined in the Federal Court on 27/09/2002.

    Native Title Determination WAD6280/1998 Nyiyaparli People (WCD2018/008) as Determined in the Federal Court on 26/09/2018

    Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) as Determined in the Federal Court on 12/03/2019.

    Native Title Determination WAD6169/1998 Kariyarra People (WCD2018/015) as Determined in the Federal Court on 13/12/2018.

    Native Title Determination WAD232/2009 Kariyarra - Pipingarra (WCD2018/015) as Determined in the Federal Court on 13/12/2018.

    Native Title Determination WAD47/2014 Kariyarra - Abydos (WCD2018/015) as Determined in the Federal Court on 13/12/2018.

    Native Title Determination Application WAD26/2019 Njamal People #10 (WC2000/005).

    Native Title Determination Application WAD23/2019 Palyku (WC1999/016).

    Native Title Determination Application WAD483/2018 Palyku #2 (WC2018/022).

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 30 July 2019

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 land and waters the subject of the following interests (which areas are generally shown as shaded green on the maps at Schedule Two).

For the purpose of this Schedule Yarrie Mine comprises all those land and waters bounded by the following description:

All those lands and waters commencing at the intersection of a western boundary of General Lease I134817 with a northern boundary of Mining Lease M45/1018-I at approximately 219,108.663mE, 7,720,257.045mN and extending easterly along the boundary of that mining lease to the intersection with a western boundary of Mineral Lease S.A. ML 249SA at approximately 219,900.414mE, 7,720,268.823mN; Then northerly, easterly and southerly along boundaries of that mineral lease S.A. to the intersection with a northern boundary of Mining Lease S.A. M263SA at approximately 223,080.003mE, 7,721,622.474mN; Then easterly, southerly and westerly along boundaries of that mining lease S.A. to the intersection with a western boundary of Mining Lease M45/1016-I at approximately 219,966.333mE, 7,717,359.963mN; Then southerly along the boundary of that mining lease to the intersection with a southern boundary of General Lease I134817; Then westerly and northerly along the boundary of that general lease back to the commencement point.

EXCLUSIONS

All that land being the subject of General Lease I123414 which, to avoid doubt, is an area where native title does not exist.

Note:    Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 31st October 2017.

   Mining Tenements sourced from Department of Mines, Industry Regulation and Safety as at 25th October 2017.

Datum:        MGA94, Grid Coordinates (Easting, Northing, Zone 51)

Prepared By:        Graphic Services (Landgate) 7th March 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 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 6 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 within the Determination Area:

1    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

2    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

3    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

4    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

5    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

2.    Reserves

The following Reserves:

6    Area as vested pursuant to section 33 of the Land Act 1933 (WA) on 16 November 1973, to the extent not subject to the application of section 47A of the Native Title Act (being Reserve 39860): see Schedule Five

7    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

3.    Leases

    The following leases:

8    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

9    To the extent not subject to the application of section 47B of the Native Title Act: see Schedule Five

4.    Roads

The following 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 Act):

5.    Railways

The former Port Hedland to Marble Bar Railway constructed pursuant to the Port Hedland - Marble Bar Railway Act 1907 (WA) (repealed) and whose line is generally described in the Schedule to that Act.

6.    Compulsory Acquisitions

The land and waters the subject of the following Taking Orders:

7.    Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (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 Act or section 23C(2) of the Native Title Act applies.

SCHEDULE FIVE

AREAS TO WHICH SECTIONS 47A and 47B OF THE NATIVE TITLE ACT APPLY (Paragraph 9)

1.    Section 47A

Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded:

2.    Section 47B

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest (to the extent that the areas were not covered by an interest described in section 47B(1)(b)(i) or (ii) or subject to a resumption process as described in section 47B(1)(b)(iii) of the Native Title Act when the relevant native title determination application was made) is to be disregarded:

SCHEDULE SIX

OTHER INTERESTS (Paragraph 10)

The nature and extent of the Other Interests in relation to the Determination Area are as follows:

Land tenure interests registered with the Western Australian Land Information Authority are current as at 6 May 2019. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 31 July 2019. All other interests are current as at the date of the determination.

1.    Reserves

(a)    The following reserves:

(b)    The rights and interests of persons who, from time to time, 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.    Leases

The following lease and the rights and interests of the holders from time to time of that lease:

4.    Easements

The following easement and the rights and interests of the holders from time to time of that easement:

5.    Roads

The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:

6.    Mining Tenements

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

(i) Mining Leases