FEDERAL COURT OF AUSTRALIA

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

File number:

WAD 20 of 2019

Judge:

REEVES J

Date of judgment:

24 September 2019

Catchwords:

NATIVE TITLE – application for determination of native title under s 87A of the Native Title Act 1993 (Cth) – whether the parties have satisfied the criteria set out in s 87A – whether it is appropriate for the Court to make an order in terms of the agreement reached by the parties

Legislation:

Native Title Act 1993 (Cth)

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Cases cited:

Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944

Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447

Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343

Sharpe v State of Western Australia [2013] FCA 599

Date of hearing:

24 September 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

41

Solicitor for the Applicant:

Arma Legal

Solicitor for the First Respondent:

State Solicitor’s Office

Solicitor for the Second to Fourth Respondents:

Ashurst Australia

Solicitor for the Fifth to Twenty-Sixth Respondents:

Castledine Gregory

Solicitor for the Twenty-Seventh Respondent:

The Twenty-Seventh Respondent appeared in person

Solicitor for the Twenty-Eighth Respondent:

Roe Legal Services

Solicitor for the Intervener:

Australian Government Solicitor

ORDERS

WAD 20 of 2019

BETWEEN:

KEVIN CHARLES ALLEN, ALICE MITCHELL, JEAN WALKER, TONY TAYLOR AND WILLIE JUMBO ON BEHALF OF THE NYAMAL PEOPLE #1

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

MT GOLDSWORTHY JOINT VENTURERS

Second Respondent

MT NEWMAN JOINT VENTURERS (and others named in the Schedule)

Third Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Intervener

JUDGE:

REEVES J

DATE OF ORDER:

24 SEPTEMBER 2019

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:

Latitude (South)

Longitude (East)

20.339671

119.658516

20.344471

119.700816

20.355770

119.758716

20.368570

119.821916

20.377570

119.871216

20.383469

119.907716

20.394069

119.962316

20.408868

120.045616

20.410668

120.096817

20.418167

120.140517

20.422368

120.177316

20.436067

120.304016

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:

Latitude (South)

Longitude (East)

20.639361

120.768315

20.641561

120.779115

20.644361

120.789915

20.647161

120.801415

20.650461

120.812115

20.654661

120.825915

20.658261

120.838415

20.661861

120.846115

20.667661

120.859015

20.670661

120.866115

20.677161

120.879015

20.684860

120.893615

20.694360

120.908615

20.698660

120.917415

20.702260

120.924415

20.705760

120.930815

20.708560

120.936115

20.711360

120.941315

20.713960

120.944815

20.717160

120.948115

20.720162

120.951753

20.783524

120.985634

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:

Latitude (South)

Longitude (East)

21.124560

121.184017

21.132059

121.184518

21.138059

121.186317

21.145059

121.187418

21.152659

121.188517

21.160859

121.189517

21.169559

121.190418

21.169559

121.190418

21.178259

121.190718

21.185259

121.191218

21.190459

121.191918

21.195059

121.191418

21.201459

121.191318

21.208859

121.190518

21.219759

121.189418

21.239659

121.186018

21.251659

121.184718

21.268859

121.183519

21.296660

121.184919

21.309160

121.188519

21.312760

121.190019

21.316860

121.190819

21.322860

121.192619

21.330460

121.194319

21.335260

121.195719

21.339860

121.195819

21.348660

121.197319

21.351660

121.198319

21.357560

121.199519

21.365260

121.201819

21.372860

121.203419

21.376460

121.204319

21.381660

121.205019

21.384660

121.205919

21.387660

121.206820

21.391860

121.208320

21.401960

121.211520

21.404960

121.213120

21.408060

121.215220

21.412760

121.216620

21.419960

121.218920

21.426360

121.220120

21.433560

121.223120

21.438360

121.225020

21.442060

121.227120

21.445660

121.228620

21.449260

121.230120

21.452960

121.232220

21.457760

121.234820

21.462660

121.237420

21.468060

121.239920

21.472960

121.243120

21.478960

121.245620

21.483959

121.249420

21.487659

121.251520

21.490659

121.253720

21.494959

121.256320

21.499259

121.258320

21.508359

121.264221

21.512759

121.268121

21.517759

121.271921

21.521559

121.275221

21.525259

121.278021

21.528359

121.280121

21.531959

121.282221

21.535059

121.284421

21.538259

121.287121

21.542460

121.289221

21.546160

121.291921

21.549860

121.294621

21.554260

121.297921

21.557960

121.300621

21.561760

121.303921

21.566060

121.307221

21.570960

121.310420

21.575959

121.314220

21.580359

121.318120

21.584659

121.321420

21.589059

121.324720

21.593359

121.328020

21.597759

121.332520

21.602859

121.336920

21.609059

121.342520

21.614059

121.346320

21.618559

121.350820

21.623559

121.355320

21.627959

121.359820

21.632459

121.364320

21.637560

121.369320

21.642060

121.374520

21.647160

121.379520

21.651060

121.384720

21.655560

121.389220

21.663861

121.398920

21.674761

121.410220

21.683061

121.419320

21.686360

121.424020

21.689560

121.427320

21.691660

121.431520

21.693660

121.434420

21.696260

121.437220

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:

Latitude (South)

Longitude (East)

22.019390

120.965246

21.574907

120.788483

21.569416

120.767889

21.553970

120.715032

21.536123

120.650848

21.520677

120.596951

21.513813

120.572248

21.507978

120.557832

21.494935

120.539641

21.487041

120.523510

21.471939

120.500513

21.464388

120.486097

21.461299

120.478890

21.454091

120.449715

21.443107

120.414019

21.433840

120.379353

21.424230

120.344000

21.419425

120.324093

21.409814

120.281876

21.404322

120.255104

21.401577

120.240345

21.400890

120.227302

21.399517

120.205336

21.402263

120.174102

21.405695

120.155911

21.406725

120.093443

21.406039

120.047107

21.404666

120.031662

21.396771

120.016560

21.386131

120.002830

21.381326

119.990474

21.369999

119.971253

21.356614

119.951003

21.347346

119.936587

21.337049

119.915650

21.326409

119.897802

21.320918

119.884073

21.314396

119.870344

21.309591

119.862106

21.301354

119.856271

21.294146

119.852839

21.285908

119.851466

21.279044

119.846661

21.272522

119.840140

21.267031

119.834305

21.265658

119.826410

21.266344

119.806846

21.267031

119.790028

21.268747

119.770464

21.269090

119.736484

21.270463

119.709026

21.271836

119.681224

21.272522

119.659944

21.272866

119.646558

21.275611

119.629053

21.278357

119.610176

21.284535

119.582374

21.290027

119.548395

21.292086

119.530547

21.299637

119.505834

21.304786

119.487643

21.307875

119.468079

21.311650

119.444739

21.316112

119.420027

21.320231

119.395314

21.322291

119.385361

21.323320

119.376093

21.330871

119.364424

21.342541

119.344516

21.352152

119.326668

21.366224

119.305731

21.395055

119.277243

21.423543

119.247382

21.471252

119.205165

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:

Latitude (South)

Longitude (East)

21.490587

119.162025

21.468087

119.143025

21.446087

119.124325

21.429687

119.111625

21.412887

119.102125

21.392387

119.090525

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 Landgates 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).

Tenure ID.

Description

GE I134817 (SL 3116/11682) (part)

That part of Lease GE I134817 (being a lease for the purpose of Use and Benefit of Aboriginal Inhabitants (De Grey Location 102)) not subject to the Yarrie Mine

UCL 025 (part)

That part of UCL 025 not subject to, or formerly subject to, mining leases M 4500434 and M 4500435

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 Landgates 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:

Certificate of Title

Certificate of Title

Certificate of Title

CT0004600171A

CT0044900169

CT0131700923

CT0006000006

CT0046400051

CT0131700924

CT0006000141

CT0046400089

CT0133300038

CT0007500200A

CT0047700154

CT0133700826

CT0008500172

CT0050800035A

CT0133700827

CT0008500177

CT0059100183

CT0133700828

CT0017900106A

CT0103600930

CT0134300031

CT0017900107A

CT0105900237

CT0135000147

CT0017900108A

CT0106300632

CT0135000148

CT0017900109A

CT0107000630

CT0135000149

CT0019200097A

CT0107000848

CT0135000150

CT0019200141A

CT0109000211

CT0135200214

CT0019900140A

CT0110800633

CT0136000155

CT0025800064

CT0112700615

CT0137300358

CT0028100112A

CT0112700616

CT0140300457

CT0028300006A

CT0123300620

CT0141000178

CT0030600141A

CT0125200962

CT0141900170

CT0032100014A

CT0129600919

CT0144800895

CT0035500077A

CT0131000273

CT0144800896

CT0041600157

CT0131000274

CT0146500853

CT0042100119A

CT0131400439

CT0146700526

CT0044700149

CT0177500958

CT0150100292

CT0044800053

CT0131700187

CT0277200137

CT0150100291

CT0131700922

CT0288300370

CT0156800930

CT0177500960

CT0222000755

CT0157800579

CT0179700295

GT0001000069

CT0163100057

CT0179700296

GT0001000070

CT0164400586

CT0180000107

GT0001000071

CT0164400587

CT0180000108

GT0001000072

CT0164400588

CT0180000109

GT0001000073

CT0164400589

CT0180200838

GT0001000084

CT0167500966

CT0180200839

GT0001000151

CT0167500967

CT0181300156

GT0001000152

CT0168500287

CT0182100785

GT0001000265

CT0168500288

CT0182400105

GT0001000427

CT0170600116

CT0183700949

GT0001000428

CT0170600277

CT0183800930

GT0001000429

CT0170600278

CT0184800798

GT0001000430

CT0170600279

CT0186300113

GT0001000431

CT0172500601

CT0190100110

GT0001000432

CT0173100714

CT0190700326

GT0001000433

CT0173200920

CT0191900201

GT0001100271

CT0173200921

CT0191900202

GT0001100317

CT0173500517

CT0194000961

GT0001100406 (part) 1

CT0173500518

CT0194000962

GT0001100407

CT0173500519

CT0196000347

GT0001100452

CT0173600849

CT0197200664

GT0001100453

CT0174800644

CT0198300226

GT0001100541

CT0174900574

CT0199700479

GT0001100542

CT0174900575

CT0204400300

GT0001100543

CT0175500861

CT0204400335

GT0001100598

CT0175500862

CT0204400336

GT0001100656

CT0175800183

CT0215600753

GT0001100724

CT0177500956

CT0215600754

GT0001300329

CT0177500957

CT0219400997

GT0001300374

GT0002000138

CT0222000754

GT0001300463 (part) 2

CT0177500959

CT0217600101

GT0002000139

GT0002000406

CT0219400906

GT0002000164

GT0002100446 (part) 3

LG0041600157

LG0044700149

GT0002100770

LG0042600171

LG0044800053

GT0002300210

LG0042700199

LG0044900169

GT0002300548

LG0042800115

LG0046400051

GT0002300705

LG0042900120 (part) 4

LG0047000194

LG0041000030

LG0043000042 (part) 5

LG0052300032

LG0044100150

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:

Reserve No.

Current / Last Purpose

02338

Park and Drainage

02339

Public Buildings

02906 (part) 6

Common

07080

Public Utility and Stopping Place for Travellers and Stock

Former 10717

Recreation

12233

Sanitary Site

12431

School Site

12459

Mineral Processing

13157

Explosives

14700

Water Supply

15156

State Battery Site

16549

Water

17139

Water

18404

Use and Benefit of Aboriginal Inhabitants

24096

Park and Recreation

25354

Recreation

26960

Park and Drainage

27265

Recreation

28380

Native Ceremonial Grounds

29266

Gravel

29796

Water Supply

29882

Public Recreation (Childrens Playground)

30929

Water Supply

31047

Preservation of Natural Formations

Former 31655

Use and Benefit of Aboriginal Inhabitants

Former 32403 (part) 7

Open Air Picture Theatre

32622

Water Supply

Former 33089

Use and Requirements of the Shire of East Pilbara

33604

Housing (Community Health Services)

33778

Power Station Site

33779

Power Station Site and Depot

33941

Pipeline

34048

Depot and Fire Station

34201

Recreation

Former 34210

Civic Purposes

35814

Water Supply

36431

Hospital Site

Former 36506

Radio and Television Station Site

37658

Water Storage

38596

Drainage

38639

Cemetery Site

39032

Water Supply

39425

Park and Drainage

41179

Mining

41330

Communications Aerial

41518

Repeater Station Site

42413

Repeater Station Site

42528

Repeater Station Site

43938

Repeater Station Site

44422

Tourism and Related Activities

48556

Automatic Weather Station

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:

Lease No.

Current / Last Purpose

Special Leases

GE I123397 (SL 3116/06326)

Boring for conserving, reticulating and drawing water

GE I123406 (SL 3116/05104)

Construction, erection, development, maintenance, use and operation of a power transmission line between Goldsworthy / Shay Gap / Kennedy Gap and all ancillary installations and facilities

GE I123405 (SL 3116/05661)

Laying out, development, operation and use of an aerodrome

GE I123408 (SL 3116/05105 )

Laying out, development, operation and use of a townsite

GE I123410 (SL 3116/05647)

Boring for conserving, reticulating and drawing water

Former GE I123414 (SL 3116/05978)

Construction, upgrading, re-alignment, operation and use of a railway including all necessary bridges, culverts, crossing places, signalling switch and other gear and all proper or usual works therefore

Former GE I123591 (SL 3116/06935)

Construction, upgrading, re-alignment, operation and use of a railway including all necessary bridges, culverts, crossing places, signalling switch and other gear and all proper or usual works therefore

Former GE I123662 (SL 3116/08262)

Construction, erection, installation, operation, use and maintenance of a television and radio transmission mast for the transmission of television and radio signals from Mount Goldsworthy to Shay Gap

GE I123721 (SL 3116/06648)

Boring for conserving, reticulating and drawing water

Former GE I126953 (SL 3116/11323)

Residence and Grazing

Former GE I127594 (SL 3116/11249)

Residence

Former GE I131321 (SL 3116/11427)

Light Industry

Former GE I134597 (SL 3116/11571)

Residence

GE I150259 (SL 3116/11259)

Agriculture

Former GE I150518 (SL 3116/11094)

Residence and Grazing

GE I154279 (SL 3116/03687)

Construction, development, maintenance, use and operation of a railway and ancillary installations and facilities including a service road between the mine townsite and the port

Former SL 3116/09892 (currently GE L546512)

Residence and Agriculture

Former SL 3116/10118 (currently GE L557207)

Residence

Former SL 3116/10151 (currently GE L594979)

Horticulture and Storage

Former SL 1874/152

Market Garden

Former SL 3116/00469 (part) 8

Grazing

Former SL 3116/02752 (part) 9

Grazing

Former SL 3116/03462

Boring for conserving, reticulation and drawing water

Former SL 3116/03584

Residence

GE N105667 (SL 3116/04028)

Construction, development, maintenance, use and operation of radio communications and ancillary installations and facilities between the mine and the port

Former SL 3116/04491

Boring for conserving, reticulation and drawing water

Former SL 3116/05870

Boring for conserving, reticulation and drawing water

Former SL 3116/06140

Boring for conserving, reticulation and drawing water

Former SL 3116/06981

Market Gardening

Former SL 3116/07982

Market Garden

Former SL 3116/08954

Agriculture

Former SL 3116/09170

Residential Purposes

Former SL 3116/09373

Residence and Agriculture

Former SL 3116/09605

Construction, erection, installation, operation, use and maintenance of water supply facilities for the supply of water to the minesite at Shay Gap

Former SL 3116/10206

Residence and Agriculture

Former SL 3117/01358

Town or Suburban Lot

Former SL 3117/02878

Town or Suburban Lot

Reserve Leases

Former RL 332/0568

Grazing (granted over Reserve 07979)

Former RL 332/1455

Grazing (granted over Reserve 16473)

Former RL 333/0720

Rifle Range (granted over Reserve 38097)

Former RL 409/41A

Pastoral Purposes (granted over Reserve 07969)

Former RL 452/41A

Pastoral Purposes (granted over Reserve 10079)

Former RL 472/41A

Pastoral Purposes (granted over Reserve 10079)

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):

MapInfo ID.

Description

Shown on

Road 001

Portion of McLeod Close

DP 168895 & CPP 504674

Road 002

Portion of Lynas Road and General Street

DP 171725 & CPP 504674

Road 003

Portion of Augusta Street

DP 174422

Road 004

Portion of Contest Street

DP 175227

Road 005

Portion of Station Street

DP 216242

Road 031

Portion of Nichols Street

DP 181717

Road 032

Portion of Nichols Street

DP 188859

Road 033

Portion of Nichols Street

DP 192339

Road 034

Portion of Nichols Street

DP 192340

Road 036

Portions of Nichols Street, Comet Mine Road and General Street

DP 211568

Road 037

Unnamed road

DP 213482

Road 039

Portion of General Street

DP 216158

Road 041

That road running between Garden Road and Lot 70

DP 216831

Road 042

Portion of General Street

DP 217447

Road 044

Portion of Road No. 6443 (Comet Mine Road)

DP 215269 & Gaz 15/04/1983

Road 045

Portion of Road No. 6443 (Halse Road)

DP 189122 & Gaz 17/05/1991

Road 046

Portion of General Street

DP 172372, DP 171725 & CPP 504673

Road 047

Green Street

DP 176130

Road 048

Portion of Halse Road

DP 180945

Road 049

Portion of McLeod Close

DP 217408

Road 051

Portion of Road No. 06443 (Halse Road)

DP 184045

Road 052

Road No. 14845

Map SF 50-4 1:250,000 & Gaz 24/08/1973

Road 053

Road No. 15203

DP 212032 & Gaz 19/07/1974

Road 056

Portion of Road No. 16872 (Marble Bar Pool Road)

DP 215269 & Gaz 07/01/1983

Road 057

Road No. 16873 (Garden Road)

DP 215269 & Gaz 15/04/1983

Road 058

Portion of Road No. 16872 (Marble Bar Pool Road)

DP 215269 & Gaz 07/01/1983

Road 063

Portion of Road No. 17406 (North Pole Road)

DP 216311

Road 064

Portion of Road No. 17406 (North Pole Road)

DP 216312

Road 065

Portion of Road No. 17406 (North Pole Road)

DP 216313

Road 066

Portion of General Street

DP 172372, DP 171725 & CPP 504673

Road 068

Portion of Road No. 00432

CPP 506015, DP 42630, Map SF 50-4 and part SE 50-16 1:250,000 & Gaz 22/06/1894

Road 069

Road No. 00762

CPP 503190, CPP 503163 & Gaz 02/12/1898

Road 071

Road No. 02856

Map 2657 1:100,000, Map SF 50-4 1:250,000, Map 28551:100,000 & Gaz 06/09/1907

Road 073

Portion of Road No. 06443

CPP 503187, DP 221153, DP 221152 & Map 2855 1:100,000

Road 076

Portions of Bohemia, Ironclad and Augusta Streets

CPP 504674 & CPP 504675

Road 080

Portions of Exhibition and Ironclad Streets

DP 222775

Road 081

Portions of Bohemia, Augusta, Ironclad, Excelsior General, Francis, Hope and Contest Streets and portion of that road running between Bohemia Street and Davis Avenue

DP 222776 & CPP 504675

Road 085

Portion of Exhibit Street and Lynas Road

CPP 504674 & CPP 504675

Road 087

Road No. 04109

CPP 503187 & Gaz 24/06/1932

Road 088

Road No. 04274

CPP 503194, CPP 503189 & CPP 503177

Road 089

Road No. 06436

CPP 503187 & Gaz 29/04/1921

Road 090

Road No. 06438

CPP 503176, CPP 503187, Map SF 50-4 1:250,000 & Gaz 29/04/1921

Road 091

Road No. 06439

CPP 503187 & Gaz 29/04/1921

Road 092

Road No. 06440

CPP 503178, CPP 503187 & Gaz 29/04/1921

Road 093

Road No. 06441

Map SF 50-4 1:250,000 & Gaz 29/04/1921 & 13/07/1979

Road 094

Road No. 06442

CPP 503187 & Gaz 29/04/1921

Road 095

Road No. 06443

Map SF 50-8 1:250,000, Map 2855 1:100,000, Map SF 51-5 1:250,000 & Gaz 29/04/1921

Road 096

Road No. 06444

Map SF 50-4 1:250,000, Map SF 50-8 1:250,000, Map 2855 1:100,000 & Gaz 29/04/1921

Road 097

Road No. 06445

CPP 503178, CPP 503187 & Gaz 29/04/1921 & 06/05/1921

Road 098

Road No. 06446

CPP 503189, Map SF 51-5 1:250,000 & Gaz 29/04/1921 & 11/10/1935

Road 100

Road No. 06448

CPP 503187 & Gaz 29/04/1921

Road 101

Road No. 07047

Map SF 50-4 1:250,000, Map SF 51-1 1:250,000 & Gaz 11/01/1924

Road 103

Road No. 07346

CPP 503164, CPP 503187, DP 238589, DP 238674 & Gaz 29/05/1925 & 05/06/1925

Road 104

Road No. 07362

CPP 503187, CPP 506008 & Gaz 26/06/1925

Road 105

Road No. 07757

Map 50-4 1:250,000 & Gaz 26/08/1927

Road 106

Road No. 07761

Map 50-4 1:250,000 & Gaz 26/08/1927

Road 107

Road No. 08625

CPP 503159, Map 50-4 1:250,000 & Gaz 23/01/1931

Road 108

Road No. 08626

CPP 503189, Map SF 51-1 1:250,000 & Gaz 23/01/1931 & 03/05/1946

Road 109

Road No. 09178

CPP 506006, Map SF 50-8 1:250,000 & Gaz 17/03/1933

Road 110

Road No. 09179

CPP 503189 & Gaz 31/03/1933

Road 113

Road No. 10217

Map SF 51-5 1:250,000 & Gaz 09/05/1958

Road 115

Portion of South and Nichols Streets

CPP 504675

Road 116

Portion of General and Bohemia Streets

DP 46857

Historical Road 02

Portion of Bohemia Street

DP 183133 & DP 216242

Historical Road 03

Portion of Contest Street

DP 190868 & DP 180580

Historical Road 04

Portion of Davis Avenue

CPP 504674 & DP 168895

Historical Road 05

Portion of General Street

DP 22775 & DP 222777

Historical Road 06

Portion of McLeod Close

CPP 504674 & DP 168895

Historical Road 07

Portion of Road No. 16873 (Garden Road)

DP 215269, DP 216831 & Gaz 15/04/1983

Historical Road 08

Portion of Nichols and South Streets (now Lot 270 on DP 181717)

CPP 504674 & DP 172372

Historical Road 09

Portion of Station Street (now Lots 276 and 288 on DP 216242)

DP 183133

Historical Road 14

Portion of Davis Avenue (now Lot 290 on DP 91703)

CPP 504674, DP 180580 & DP 222776

Historical Road 15

Portion of road running between Bohemia Street and Davis Avenue

CPP 504675

Historical Road 22

Portion of Road No. 04109

CPP 503187 & Gaz 24/06/1932

Historical Road 23

Portion of Road No. 06438

CPP 503176, CPP 503187, Map SF 50-4 1:250,000 & Gaz 29/04/1921

Historical Road 24

Portion of Road No. 06440

CPP 503187 & Gaz 18/12/1959

Historical Road 26

Portion of Road No. 07362

CPP 503187, CPP 506008 & Gaz 26/06/1925, 03/07/1925 & 20/11/1925

Historical Road 27

Portion of Road No. 14845

Map SF 50-4 1:250,000 & Gaz 24/08/1973

Historical Road 28

Portion of Marble Bar Road

Map SF 50-4 1:250,000 & Map SF 50-8 1:250,000

Historical Road 29

All those roads within the townsite of Bamboo

DP 222065

-

Portion of Marble Bar Road (being Lot 309 on DP 58954, formerly subject to portion of CT0262500353)

DP 58954

-

Portion of Marble Bar Road (being Lot 310 on DP 58956, formerly subject to portion of Reserve 17139)

DP 58956

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:

Taking Order

Description

L653793

Lot 555 on DP 61553

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:

Interest

Description / Purpose

Reserve 03838 (part)

That part of Reserve 03838 (Use and Benefit of Aboriginal Inhabitants) not formerly subject to Historical Road 06

Reserve 26772

Use and Requirements of the Local Aboriginal People

Reserve 30888

Housing (Native Welfare Department)

Reserve 39860

Use and Benefit of Aboriginal Inhabitants

GE I134817 (SL 3116/11682)

Lease for the purpose of Use and Benefit of Aboriginal Inhabitants (De Grey Location 102)

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:

MapInfo ID.

Description

UCL 024 (part)

That part of UCL 024 formerly subject to portion of special leases SL 3116/00469 and SL 3116/02752

UCL 025 (part)

That part of UCL 025 not subject to, or formerly subject to, mining leases M 4500434 and M 4500435

UCL 049

Whole of UCL 049, formerly subject to portions of freehold titles GT0001300463, GT0002100446, LG0043000042 and LG0042900120

UCL 050

Whole of UCL 050, formerly subject to portion of Reserve 32403 and portion of freehold title GT0001100406

UCL 263

Whole of UCL 263 (being Lot 333 on DP 188859 [LR 3013/394]), formerly subject to freehold title CT0183700948 and portion of Reserve 32403

UCL 266

Whole of UCL 266 (being Lot 258 on DP 180562 [LR 3013/407]), formerly subject to portion of freehold title GT0001300463

UCL 267

Whole of UCL 267 (being Lot 259 on DP 176130 [LR 3013/408]), formerly subject to portions of freehold titles LG0042900120 and LG0043000042

UCL 268

Whole of UCL 268 (being Lot 260 on DP 176130 [LR 3013/409]), formerly subject to portions of freehold titles LG0042900120 and LG0043000042

UCL 269

Whole of UCL 269 (being Lot 261 on DP 176130 [LR 3013/410]), formerly subject to portions of freehold titles LG0042900120 and GT0002100446

UCL 272

Whole of UCL 272 (being Lot 212 on DP 172283 [LR 3027/981]), formerly subject to Reserve 29191

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:

Reserve No.

Current / Last Purpose

00377

Water

03838

Use and Benefit of Aboriginal Inhabitants

04783

Cemetery

04975

Water

04978

Water

08288

Water

08289

Water

09700

De Grey - Peak Hill Stock Route

11280

Water

11293

Water

12051

Water

12052

Water

12053

Water

12054

Water

12055

Water

12056

Water

12057

Water

12062

Water

12094

Water

12297

Protection of the Rabbit Proof Fence No. 1

12745

Water

12750

Water

12751

Water

12752

Water

12755

Water

12756

Water

12757

Water

12758

Water

12759

Water

12760

Water

12761

Water

12762

Water

12769

Water

12772

Water

12773

Water

12804

Water

13619

Timber

13621

Timber

13622

Timber

13623

Timber

13624

Timber

13625

Timber

13626

Timber

13644

Timber

13646

Timber

13647

Timber

13648

Timber

13649

Timber

13650

Timber

13651

Timber

13652

Timber

13653

Timber

13654

Timber

13657

Timber

13658

Timber

13659

Timber

13660

Timber

13661

Timber

13662

Timber

13666

Timber

13668

Timber

13676

Timber

13677

Timber

13678

Timber

13679

Timber

13681

Timber

15159

Warrawagine to Battle Hill Stock Route

15540

Protection of the Rabbit Proof Fence

19795

Water

21650

Excepted from Sale

26772

Use and Requirements of the Local Aboriginal People

30888

Housing (Native Welfare Department)

39860

Use and Benefit of Aboriginal Inhabitants

40881

Drainage and Parkland

44710

Management of Significant Geological Feature

44711

Management of Significant Geological Feature

50149

Preservation of Geological Features

50150

Preservation of Geological Features

(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:

Lease No.

Description

PL N049420 (formerly 398/467)

Mt Divide Station

PL N049436 (formerly 3114/1169)

Warrawagine Station

PL N049839 (formerly 3114/1188)

Kangan Station

PL N049843 (formerly 3114/0860)

Pippingarra Station

PL N049879 (formerly 3114/0979)

Wandanya

PL N049987 (formerly 3114/1244)

Eginbah Station

PL N050012 (formerly 3114/1197)

Indee Station

PL N050027 (formerly 3114/1142)

De Grey Station

PL N050199 (formerly 3114/1215)

Yarrie Station

PL N050324 (formerly 3114/0446)

Pardoo Station

PL N050365 (formerly 3114/1266)

Wallareenya Station

PL N050429 (formerly 3114/0745)

Corunna Downs

PL N050453 (formerly 398/643)

Panorama Station

PL N050454 (formerly 398/623)

Panorama Station

PL N050507 (formerly 3114/1233)

Muccan Station

3.    Leases

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

Lease No.

Purpose

GE I134817 (SL 3116/11682)

Use and Benefit of Aboriginal Inhabitants

4.    Easements

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

Easement No.

Purpose

L428602

Access to, and construction, repair, maintenance, replacement and use of a seismic monitoring station

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:

MapInfo ID.

Description

Shown on

Road 007

Portion of widening of Road No. 06443 (Marble Bar Road) (Lots 153 and 182)

DP 195179

Road 009

Portion of widening of Road No. 06443 (Marble Bar Road) (Lots 152, 154, 155, 156 and 181)

DP 221151

Road 010

Portion of widening of Road No. 06443 (Marble Bar Road) (Lots 157 and 158)

DP 221152

Road 011

Portion of widening of Road No. 06443 (Marble Bar Road) (Lots 159, 160 and 161) and portion of Ripon Hills Road (Lots 160 and 180)

DP 221153

Road 012

Portion of Ripon Hills Road (Lot 162)

DP 221154

Road 013

Portion of Ripon Hills Road (Lot 163)

DP 221155

Road 014

Portion of Ripon Hills Road (Lot 164)

DP 221156

Road 015

Portion of Ripon Hills Road (Lot 165)

DP 221157

Road 016

Portion of Ripon Hills Road (Lot 166)

DP 221158

Road 017

Portion of Ripon Hills Road (Lot 167)

DP 221159

Road 018

Portion of Ripon Hills Road (Lots 168 and 169)

DP 221160

Road 019

Portion of Ripon Hills Road (Lot 170)

DP 221161

Road 020

Portion of Ripon Hills Road (Lot 171)

DP 221162

Road 021

Portion of Ripon Hills Road (Lots 172 and 173)

DP 221163

Road 022

Portion of Ripon Hills Road (Lot 174)

DP 221164

Road 023

Portion of Ripon Hills Road (Lots 175 and 176)

DP 221165

Road 024

Portion of Ripon Hills Road (Lot 177)

DP 221166

Road 025

Portion of Ripon Hills Road (Lots 178 and 179)

DP 221167

Road 118

Portion of Road No. 04109 Map SF 51-1 1:250,000 & Map SF 50-4 1:250,000

-

Portion of Marble Bar Road (Lot 306)

DP 58955

-

Portion of Marble Bar Road (Lot 307)

DP 58935

-

Portion of Marble Bar Road (Lot 308)

DP 58952

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

Tenement ID

Tenement ID

Tenement ID

M 4500014

M 4500078

M 4500258

M 4500016

M 4500107

M 4500284

M 4500057

M 4500202

M 4500296

M 4500076

M 4500235

M 4500297

M 4500302

M 4500573

M 4501022

M 4500328

M 4500587

M 4501023

M 4500329

M 4500588

M 4501095

M 4500333

M 4500592

M 4501096

M 4500354

M 4500594

M 4501115

M 4500368

M 4500600

M 4501134

M 4500375

M 4500601

M 4501160

M 4500376

M 4500602

M 4501161

M 4500377

M 4500606

M 4501162

M 4500385

M 4500607

M 4501163

M 4500395

M 4500618

M 4501164

M 4500407

M 4500637

M 4501179

M 4500411

M 4500638

M 4501189

M 4500429

M 4500639

M 4501218

M 4500430

M 4500640

M 4501226

M 4500431

M 4500641

M 4501230

M 4500432

M 4500642

M 4501231

M 4500433

M 4500648

M 4501241

M 4500434

M 4500649

M 4501244

M 4500435

M 4500650

M 4501254

M 4500435A

M 4500651

M 4501255

M 4500438

M 4500653

M 4501256

M 4500453

M 4500655

M 4501260

M 4500459

M 4500665

M 4501266

M 4500478

M 4500680

M 4600092

M 4500480

M 4500744

M 4600093

M 4500481

M 4500838

M 4600094

M 4500490

M 4500873

M 4600108

M 4500494

M 4500874

M 4600137

M 4500511

M 4501001

M 4600150

M 4500514

M 4501004

M 4600161

M 4500515

M 4501015

M 4600162

M 4500517

M 4501016

M 4600383

M 4500538

M 4501017

M 4600384

M 4500554

M 4501018

M 4500558

M 4501019

(ii)    Miscellaneous Licences

Tenement ID

Tenement ID

Tenement ID

L 4500004

L 4500188

L 4500401

L 4500012

L 4500189

L 4500402

L 4500037

L 4500204

L 4500403

L 4500060

L 4500207

L 4500404

L 4500072

L 4500257

L 4500411

L 4500074

L 4500284

L 4500413

L 4500086

L 4500285

L 4500414

L 4500101

L 4500286

L 4500416

L 4500105

L 4500287

L 4500417

L 4500110

L 4500292

L 4500425

L 4500127

L 4500294

L 4500430

L 4500140

L 4500310

L 4500448

L 4500141

L 4500320

L 4500449

L 4500145

L 4500322

L 4500450

L 4500146

L 4500323

L 4500454

L 4500148

L 4500325

L 4500473

L 4500160

L 4500329

L 4500477

L 4500164

L 4500331

L 4500480

L 4500166

L 4500351

L 4500481

L 4500170

L 4500361

L 4500485

L 4500173

L 4500364

L 4500495

L 4500179

L 4500396

L 4600029

L 4500185

L 4500397

L 4500186

L 4500400

(iii)    General Purpose Leases

Tenement ID

Tenement ID

Tenement ID

G 4500021

G 4500279

G 4500333

G 4500025

G 4500280

G 4500334

G 4500037

G 4500281

G 4500335

G 4500038

G 4500282

G 4500336

G 4500039

G 4500283

G 4600004

G 4500040

G 4500284

G 4600005

G 4500276

G 4500332

(iv)    Exploration Licences

Tenement ID

Tenement ID

Tenement ID

E 4501072

E 4503619

E 4504227

E 4502032

E 4503641

E 4504236

E 4502201

E 4503648

E 4504309

E 4502241

E 4503655

E 4504320

E 4502287

E 4503662

E 4504328

E 4502363

E 4503674

E 4504356

E 4502364

E 4503675

E 4504368

E 4502470

E 4503679

E 4504386

E 4502510

E 4503705

E 4504433

E 4502533

E 4503717

E 4504445

E 4502535

E 4503724

E 4504450

E 4502612

E 4503725

E 4504462

E 4502641

E 4503728

E 4504476

E 4502697

E 4503856

E 4504477

E 4502698

E 4503857

E 4504480

E 4502763

E 4503858

E 4504498

E 4502983

E 4503940

E 4504523

E 4502985

E 4503952

E 4504545

E 4502986

E 4503956

E 4504553

E 4502987

E 4504024

E 4504555

E 4503084

E 4504025

E 4504560

E 4503217

E 4504060

E 4504572

E 4503298

E 4504065

E 4504578

E 4503332

E 4504069

E 4504580

E 4503381

E 4504070

E 4504581

E 4503438

E 4504116

E 4504582

E 4503473

E 4504118

E 4504592

E 4503474

E 4504137

E 4504598

E 4503511

E 4504169

E 4504599

E 4503545

E 4504174

E 4504604

E 4503571

E 4504175

E 4504605

E 4503586

E 4504178

E 4504606

E 4503601

E 4504194

E 4504610

E 4503615

E 4504198

E 4504611

E 4504615

E 4504766

E 4504939

E 4504616

E 4504772

E 4504950

E 4504620

E 4504774

E 4504952

E 4504624

E 4504778

E 4504954

E 4504630

E 4504779

E 4504958

E 4504631

E 4504780

E 4504959

E 4504633

E 4504781

E 4504971

E 4504637

E 4504787

E 4504972

E 4504640

E 4504788

E 4504973

E 4504641

E 4504790

E 4504976

E 4504643

E 4504796

E 4504982

E 4504651

E 4504800

E 4504987

E 4504666

E 4504801

E 4504988

E 4504669

E 4504803

E 4504993

E 4504670

E 4504806

E 4504996

E 4504675

E 4504811

E 4504999

E 4504684

E 4504814

E 4505004

E 4504689

E 4504843

E 4505005

E 4504690

E 4504850

E 4505006

E 4504691

E 4504853

E 4505017

E 4504693

E 4504854

E 4505020

E 4504700

E 4504858

E 4505022

E 4504703

E 4504873

E 4505023

E 4504714

E 4504874

E 4505024

E 4504718

E 4504875

E 4505031

E 4504720

E 4504877

E 4505032

E 4504721

E 4504879

E 4505033

E 4504724

E 4504880

E 4505034

E 4504727

E 4504888

E 4505035

E 4504732

E 4504900

E 4505044

E 4504735

E 4504909

E 4505045

E 4504741

E 4504914

E 4505053

E 4504746

E 4504915

E 4505075

E 4504751

E 4504920

E 4505076

E 4504754

E 4504921

E 4505088

E 4504759

E 4504922

E 4505098

E 4504764

E 4504923

E 4505100

E 4505101

E 4505350

E 4601072

E 4505113

E 4505354

E 4601074

E 4505114

E 4600513

E 4601081

E 4505172

E 4600525

E 4601085

E 4505179

E 4600535

E 4601099

E 4505180

E 4600571

E 4601116

E 4505246

E 4600649

E 4601117

E 4505282

E 4600739

E 4601121

E 4505298

E 4600835

(v)    Prospecting Licences

Tenement ID

Tenement ID

Tenement ID

P 4502783

P 4502951

P 4502995

P 4502818

P 4502952

P 4502996

P 4502819

P 4502954

P 4502997

P 4502820

P 4502955

P 4502998

P 4502873

P 4502956

P 4503000

P 4502874

P 4502957

P 4503009

P 4502875

P 4502958

P 4503010

P 4502876

P 4502961

P 4503029

P 4502883

P 4502962

P 4503035

P 4502884

P 4502963

P 4503037

P 4502885

P 4502969

P 4503039

P 4502886

P 4502970

P 4503040

P 4502887

P 4502978

P 4503041

P 4502893

P 4502985

P 4503042

P 4502910

P 4502987

P 4503058

P 4502911

P 4502989

P 4503059

P 4502946

P 4502990

P 4503066

P 4502947

P 4502991

P 4503071

P 4502948

P 4502992

P 4503072

P 4502949

P 4502993

P 4601870

P 4502950

P 4502994

P 4601871

(vi)    Retention Licences

Tenement ID

R 4500005

R 4500006

(b)    The agreement as amended and ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

Tenement ID

Tenement Type

AML7000249

Mineral Lease

(c)    The agreement as amended and ratified by the Iron Ore (Goldsworthy - Nimingarra) Agreement Act 1972 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

Tenement ID

Tenement Type

AML7000251

Mineral Lease

AM 7000263

Mineral Lease

7.    Petroleum interests

The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those interests:

Tenement ID

Tenement Type

PL 60

Pipeline Licence (Telfer Pipeline)

8.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Schedule Six, but subject to clause 8(b) below, the rights of the holders from time to time of the mining tenements or petroleum interests, including those listed in clauses 6 and 7 of this Schedule Six, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as are necessary to have access to the area the subject of the mining tenement or petroleum interest for the purpose of exercising the rights granted by that tenement or interest.

(b)    Nothing in clause 8(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 8(a).

(c)    Nothing in this Schedule Six will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clauses 6 and 7 of this Schedule Six, 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.

9.    Telstra Corporation Limited

The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunications facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.

10.    Other

The following rights and interests in the Determination Area:

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes;

(b)    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including but not limited to the Rights in Water and Irrigation Act 1914 (WA);

(c)    Rights and interests of members of the public arising under the common law, including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;

(d)    The right to access the Determination Area by:

(i)    an employee, agent or instrumentality of the State;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty where such access would be permitted to private land;

(e)    So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock routes; and

(vi)    areas that were public places at the end of 31 December 1993; and

(f)    Any other:

(i)    legal or equitable estate or interest in the land or waters of the Determination Area; or

(ii)    right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(A)    the land or waters of the Determination Area; or

(B)    an estate or interest in the land or waters of the Determination Area; or

(iii)    restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

SCHEDULE SEVEN

NYAMAL PEOPLE (Paragraph 3)

The Nyamal People are those persons who:

(a)    are descended from Ngurrpangu @ Sally, Yirlkurani @ William Ball, Jarlapangu @ Billy Ball, Minparingu @ Daisy McColl, Wijiringu @ Joey, Ngamalykarinya @ Eginbah Murphy, Kutjikurtapa @ Fred Mitchell, Pularmu @ Albert, Martuwataranu @ Maryanne, Minjikarli @ Jimmy Woodman, Pularjiyi, Putangaja, Mikarnipirti, Mayinkapirti, Walykanpangu, Kujari @ Jenkins, Ngamalangu @ Nellie, Kalpimarra, Yirapinya, Warnangykuranya @ Tommy, Yatawaranu @ Yarriwawurru @ Dinah, Goondy @ Goondanee, Pilunjuji, Nyantipunu, Paddy Bung Bong, Amy Mirabung, Old Maybai, Mary (mother of Stella Ball), Minnie (mother of Allen Mitchell), Punkarli (mother of Alice Mitchell), Winturu, Susan Pontroy, Martin Pontroy or Jack Pontroy or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyamal People; and

(b)    identify themselves as Nyamal under traditional law and custom and are so identified by other Nyamal People as Nyamal.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    In this proceeding, the Nyamal People have sought to have the Court make, what is commonly referred to as, a consent determination of native title under the apposite provisions of the Native Title Act 1993 (Cth) (the NTA). They seek to have that determination made on the terms of an agreement they have reached with the various parties to the proceedings, including the State of Western Australia. The area of land and waters with respect to which the determination is sought is in the central Pilbara region in the north of Western Australia.

2    For the reasons that follow, I propose to make the determination that they have sought.

PROCEDURAL HISTORY

3    The procedural history to this proceeding is lengthy and complex. The following is a brief summary.

4    The present Nyamal Application results from the combination of nine separate native title determination applications made by the Nyamal People. They were:

(a)    Nyamal #1 (WC 1995/031, WAD 6028/1998) lodged on 7 August 1995;

(b)    Nyamal #2 (WC 1996/056, WAD 6093/1998) lodged on 24 May 1996;

(c)    Nyamal #3 (WC 1996/112, WAD 6137/1998) lodged on 9 December 1996;

(d)    Nyamal #4 (WC 1996/115, WAD 6139/1998) lodged on 9 December 1996;

(e)    Nyamal #5 (WC 1996/117, WAD 6141/1998) lodged on 30 December 1996;

(f)    Nyamal #6 (WC 1997/008, WAD 6145/1998) lodged on 3 February 1997;

(g)    Nyamal #7 (WC 1997/034, WAD 6165/1998) lodged on 21 May 1997;

(h)    Nyamal #8 (WC 1997/042, WAD 6172/1998) lodged on 9 June 1997; and

(i)    Nyamal #9 (WC 1997/045, WAD 6174/1998) lodged on 26 June 1997.

5    All of these applications were lodged with the National Native Title Tribunal (NNTT) pursuant to s 61 of the NTA as it stood (the old Act) prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the Amendment Act). They were all subsequently notified by the Native Title Registrar (Registrar) pursuant to s 66 of the old Act. Under the transitional provisions of the Amendment Act, all nine applications were taken to have been made to the Federal Court and any notifications given by the Registrar pursuant to s 66 of the old Act were taken to be for that application and the same people were to be parties (see the table at Schedule 5, Part 3, Item 6 of the Amendment Act).

6    Nyamal applications #1 – #8 were, in effect, small polygon claims within (or in the case of the Nyamal #8 application, outside) of the boundary of the present Nyamal Application. The boundary of the Nyamal #9 application was larger than, but closely resembled, the boundary of the present Nyamal Application and was lodged over the entire area of land and waters that the Nyamal People claimed were their traditional lands.

7    Accordingly, by order made on 19 March 1999, the Nyamal #1 application was amended so that it included Nyamal applications #2 – #9. It was subsequently entered on the Register of Native Title Claims on 3 June 1999.

8    On 25 May 2006, leave was granted to amend the application to reduce the boundary of the claim area so that certain overlaps with the Ngarla (WAD 6185 of 1998), the Nyiyaparli (WAD 6280 of 1998), the Kariyarra (WAD 6196 of 1998), the Nyangumarta (WAD 6281 of 1998) and the Palyku Application (WAD 6287 of 1998) native title determination applications were either removed entirely or reduced.

9    Over the years since 2006, a number of further amendments have been made to the application, including changes to the constitution of the Nyamal Applicant and the claim group description.

10    By order of the Federal Court dated 15 January 2019, the Nyamal Application was given a new electronic court file proceeding number WAD 20 of 2019.

11    In respect of the balance of the land and waters the subject of the Nyamal Application, that is those areas not within the Nyamal Part A determination area or the Nyamal #10 determination area, no determination is to be made at present. This area comprises that portion of the Nyamal Application which is geographically overlapped by native title determination applications WAD 23 of 2019 (Palyku Application), WAD 289 of 2018 (Nyamal Overlap Application) and WAD 483 of 2018 (Palyku #2 Application). These overlaps are being progressed as part of the Nyamal Palyku Proceeding (WAD 392 of 2018).

12    Finally, as required by s 87A(3) of the NTA, on 4 September 2019, Judicial Registrar McGregor, acting on behalf of the Chief Executive Officer of the Court, gave notice to the other parties to the Nyamal #10 Application that the consent determination minute had been filed with the Court. On the same date, notice was formally given to the lawyers acting for the applicant in the Nyamal Application to the effect that, unless any objections to the Court making a determination in the terms of the consent determination minute were received by 13 September 2019, the Court may infer the Nyamal Applicant did not have any objections to that course. No such objections were received.

THE PARTIES REACH AGREEMENT

13    In early 2019, the parties in the Nyamal Application informed the Court that they had reached an agreement on the terms of a proposed determination of native title under s 87A of the NTA. To give effect to that agreement a minute of the terms of the proposed determination (the consent determination minute) and joint submissions of the Nyamal Applicant and the State were filed with the Court. The parties have now requested the Court make a determination of native title in accordance with the terms of that consent determination minute.

THE DETERMINATION AREA

14    The area the subject of the proposed consent determination comprises land and waters, which, as already mentioned above, is in the central Pilbara region in the north of Western Australia (the Determination Area). The majority of that area is covered by pastoral leases, mining tenements, roads and reserves.

THE SEVEN CONDITIONS IN SECTION 87A HAVE BEEN MET

15    The power of the Court to give effect to the agreement reflected in the consent determination minute is founded on s 87A of the NTA. That section sets out the conditions which must be met before the Court may make an agreed determination of native title, where that agreement relates to a part of the claim area covered by an application (s 87A(1)(b)). In this matter, s 87A sets seven such conditions, some of which contain multiple requirements.

16    The first condition is that the notice period under s 66 of the NTA must have ended (s 87A(1)(b)). As is already mentioned above (at [5]), the NNTT’s notification in the mid to late 1990s of the nine Nyamal applications which it incorporates was taken to have applied to this application. That condition has therefore been met.

17    The second condition has already been alluded to above. It is that the agreement of the parties must relate to an area which is included in the area covered by the application (s 87A(1)(b)). As has also already been mentioned above, in this instance, the Determination Area relates to part of the Nyamal Application claim area. Accordingly, this condition has also been met.

18    The third condition is that all of the parties described in s 87A(1)(c), who were parties to the proceeding at the time the agreement was made, must be parties to the agreement. In this matter, those parties are:

(a)    the Nyamal Applicant;

(b)    the State of Western Australia;

(c)    the Attorney-General of the Commonwealth of Australia (as Intervener);

(d)    the following pastoralists and other leaseholders:

(a)    Balfour Downs Pastoral Coy Pty Ltd;

(b)    Anthony B Bettini, David F Bettini, Ethel M Bettini, John J Bettini, Mark J Bettini, Mary E Bettini and Paul D Bettini;

(c)    Bovidae Pty Ltd;

(d)    Colin Brierly;

(e)    Grant William Robert Brooks and Wendy Mcwhirter Brooks;

(f)    Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day and Zane Bradley Day;

(g)    Greenleigh Pty Ltd;

(h)    Hillside Station (WA) Pty Ltd;

(i)    Keydrive Pty Ltd;

(j)    Pardoo Beef Corporation Pty Ltd;

(k)    Anne Catherine Paull;

(l)    Startline Nominees Pty Ltd;

(m)    Vanguard Enterprises Pty Ltd; and

(n)    Pinga Pty Ltd.

(e)    the following mining, exploration and related industry parties:

(a)    BHP Direct Reduced Iron Pty Ltd;

(b)    Mt Goldsworthy Joint Venturers; and

(c)    Mt Newman Joint Venturers.

19    Having examined the consent determination minute, I am satisfied that each of the above parties is a party to the agreement. I am therefore satisfied that the third condition in s 87A has been met.

20    There is, however, one matter concerning this condition that should be recorded. Parkwood Enterprises Pty Ltd (Parkwood) is a respondent party to the Nyamal Application. As outlined in Ms Warren’s affidavit sworn on 19 August 2019, she confirmed with the Department of Mines, Industry Regulation and Safety that the mining lease held by Parkwood fell wholly within the portion of the Nyamal Application which is overlapped by the Palyku #2 Application, that being the portion which is not proceeding to consent determination at this stage. Accordingly, Parkwood did not sign the agreement.

21    The fourth condition is that “the terms of the proposed determination are in writing and signed by or on behalf of each of [the] parties” (s 87A(1)(d)). This condition has been met because, as is already mentioned above, the consent determination minute is in writing and it is apparent from the copy of that minute filed with the Court that each of the parties described above has signed that minute themselves, or someone has signed it on their behalf.

22    The fifth condition concerns the provisions of ss 87A(3) and (8). The former requires notice of the filing of a copy of the consent determination minute to be given to “the other parties to the proceeding”. That requirement is linked to the latter provision, which provides that “the Court must take into account any objections made by the other parties to the proceedings”. As is recorded in the procedural history of the Nyamal Application above (at [12]), the notice required by the former provision has been given. I infer from the lack of response to that notice that condition five has been met.

23    The sixth condition is that the Court must be satisfied that an order in the terms of the consent determination minute, or an order consistent with those terms, would be within the power of the Court (s 87A(4)(a)). For present purposes, and subject to the observations I have made about s 56 below (at [36]), it will be within the power of the Court to make a determination in the terms of the consent determination minute if that minute complies with s 94A of the NTA, if the rights and interests described in it are recognisable by the common law of Australia and if there is no other determination in existence over the Determination Area.

24    Addressing these matters in reverse order, first, I am satisfied on the evidence before me that there is no other determination of native title in existence over any part of the Determination Area. Secondly, having examined the native title rights and interests of the Nyamal People described in the consent determination minute, I am satisfied that they are recognisable by the common law of Australia. As for s 94A of the NTA, it requires the Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. That section provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

25    Section 225(a) above requires consideration of an issue raised in the joint submissions which concerns the way in which the Nyamal native title holders have been described in the consent determination minute.

26    Schedule A of the Form 1 in the Nyamal Application provides that the application is brought on behalf of: (a) the descendants of: Ngurrpangu / Sally; Yirlkurani / William Ball; Pularji and Minparingu / Daisy; Walykunpangu; Mujayakirrirri; Mikarnipirti; Kuijikurtapa / Fred Mitchell; Putangaja; Jarlapangu / Billy Ball; Wijiringu; Yirapinya; Ngamalykarinya; Wanarngykuranya / Tommy; and (b) the following incorporated members: Reggie Malana; and Colin Malana.

27    Despite the claim group description differences in the Nyamal Application and the Nyamal #10 Application, the Nyamal and Nyamal #10 Applicants and the State have been proceeding as though those applications were made on behalf of the same persons, being the Nyamal people described in the Nyamal Application.

28    The parties ultimately settled on the description of native title holders in Schedule Seven of the minute of proposed consent determination, having satisfied themselves that the description reflects the position as described in the connection materials and captures all of the known native title holders.

29    According to the affidavit of Mr John Edwards filed in support of this application and the joint submissions, the Nyamal Application consent determination was approved at a meeting of the Nyamal People held on 9 August 2019. That description of the Nyamal native title holders is included in the consent determination minute (Paragraph 3 and Schedule Seven).

30    While this description does not precisely correspond to the description of the native title claim group set out in the original combined Nyamal Application, the Nyamal Applicant and the State contended in the joint submissions that the Court may make a determination in that form provided that it is supported by the evidence before it, relying on Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] and Sharpe v State of Western Australia [2013] FCA 599 at [18]. I agree and, having regard to the matters set out above, I am satisfied it is appropriate to use this description of the Nyamal native title holders in this determination.

31    As for ss 225(b) to (e) above, having perused Attachment A to the consent determination minute, particularly Paragraphs 4 to 11, I am satisfied that this determination sets out the matters mentioned in those subsections in compliance with s 94A.

32    Having regard to all these matters, I am therefore satisfied that this sixth condition has been met.

33    The seventh and final condition concerns the operation of s 87A(4)(b) of the NTA. That section requires the Court to be satisfied that it is appropriate to make a determination in terms of the consent determination minute. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) (at [5]–[13]), I canvassed the authorities that identified the factors that the Court will routinely have regard to in determining this question of “appropriateness” under s 87. For the reasons canvassed in Bigambul Part A (Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447) (at [14]), the same factors apply equally to s 87A. It is not necessary for me to repeat all those observations here. It will suffice to set out the concluding summary as follows (Nelson at [14]):

It follows from all these considerations that the central issue in an application for a consent determination under s 87 is whether there exists a free and informed agreement between the parties. In this respect, the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation ...; whether the terms of the proposed order are unambiguous and clear …; and whether the agreement has been preceded by a mediation process …

34    In considering whether this condition has been met, I have been assisted by the joint submissions filed by the Nyamal Applicant and the State. Having regard to those submissions, I am satisfied that there exists a free and informed agreement between the parties. In reaching this conclusion, I have had particular regard to the fact that all parties have had the advantage of competent legal representation and that this proceeding has been supervised under intensive case management by a Registrar of the Court. Finally, I am satisfied that the terms of the consent determination minute are unambiguous and clear. I am therefore satisfied that this seventh condition has been met.

35    Notwithstanding this conclusion, and despite the lack of any necessity to do so (see Nelson at [12]–[13]), it is appropriate to set out the following excerpt from the joint submissions which summarises the Nyamal traditional laws and customs and their connection to their traditional country comprising the Determination Area. This summary goes some way to explaining why the parties came to the agreement that this determination of the Nyamal Peoples native title should be made:

45.    The Nyamal People are unique socio-territorial language group located in the Pilbara region of Western Australia. They comprise a single society who identify as Nyamal, who speak a common Nyamal language, and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters. While many of those laws and customs are similar to those of other Pilbara Aboriginal people, they constitute a distinct body of Nyamal laws and customs.

46.    The ethnographic materials provide evidence for the existence of a distinct group of Aboriginal people called Nyamal who spoke a particular language and occupied the Nyamal Determination Area since the late the late 19th century, commencing with the reports of pioneer pastoralists and other amateur observers. These included: McKenzie Grant and C Harper, who held De Grey Station (1880 – 1886); E.M. Curr a pastoralist and writer who collated survey data from around the continent by correspondence with settlers, police officers and colonial officials (1886); John Withnell, one of the original pastoral settlers of the north-west who had an interest in Aboriginal customs (1901); Emile Clement, a self-described ‘explorer’ who undertook research with Aboriginal people (1903); John F Connelly, a prospector and explorer who upon retirement travelled around Australia writing articles of ethnographic interest (1932); and Daisy Bates, who was employed by the Western Australia government and collected ethnographic data on sites, languages and tribal distribution and who referred to the Nyamal on a number of occasions in her works (1904 – 1912).

47.    The Nyamal were later recorded by ethnographers, anthropologists and linguists who conducted work in the region. The anthropologist AR Radcliffe-Brown who, whilst he did not visit the Nyamal, nevertheless located the group between the Shaw and De Grey Rivers (1911-1931). The anthropologist Norman Tindale recorded Nyamal country in a similar location (1940), as did anthropologist John Wilson (1961) and linguist Carol von Brandenstein (1972).

48.    The Nyamal system of traditional laws and customs connects the Nyamal People to their country and the traditional spiritual beliefs of the Nyamal People are firmly embedded within the physical landscape. The Nyamal People believe that Nyamal language was mythologically inscribed on the country by ancestral beings during the Kapukarri (the dreamtime or dreaming). It was during the Kapukarri that the ancestral beings created the current physical features of the Nyamal Determination Areas, put the Nyamal People and language in the land and also laid down the laws to govern the Nyamal People and how they behave. It is these laws and customs that connect the Nyamal People to their country. The Nyamal People believe that dreaming spirits continue to inhabit the Nyamal Determination Area, respond to Nyamal language and have a particular relationship with the Nyamal People.

49.    The Nyamal People’s contemporary land tenure system is traditionally based, albeit with some modifications due to the effects of settlement. It appears to be derived from an earlier estate based system which was typical of groups in the Pilbara at the time of sovereignty with the estates having expanded or merged over time and are now referred to as family areas or ‘runs’.

50.    Contemporary rights in Nyamal country are held by subgroups of families of the Nyamal People who have the right to speak in relation to particular runs within the Nyamal Determination Area. Nyamal People describe the situation thus:

We all Nyamal, altogether, but got own areas inside which we own – this family here, that family there. We know where the families belong ...

Inside Nyamal country there are different special areas that different family groups speak for. These are usually around the yinta of those people

51.    Inheritance of a family group area or run is reckoned by descent from Nyamal forebears associated with the area. Birthplace, knowledge or long-term residence in Nyamal country alone (without the requisite element of descent from Nyamal forebear) does not provide for rights and interest in land.

52.    Family group areas or runs are centred around yinta, which are significant sites often associated with spirits inherent in the land and are most commonly, but not only, permanent pools in the rivers. Nyamal People describe yinta as follows:

Yinta pool, belong to that bloke, like where he come from. People belong to yinta from before, belong where water is.

A yinta is a special place, like a hill or a pool or a creek that belongs to a family. Yinta which are creeks or pools are associated with the snake katakatarra ...

Yinta is how Aboriginal people organised who belongs where. When you visit someone you ask where the yinta here? Its asking whose country this is. Where the Ngayarta [people] come from or which people belong here.

53.    In most cases family group areas or runs, as well as their yinta, are associated with representative elders who are considered to have the right to speak for the area.

54.    The Nyamal People have maintained their connection the Nyamal Determination Area since the assertion of sovereignty. It is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Nyamal Determination Area since well before first contact.

55.    Pastoral settlement in the region of the Nyamal Determination Area began around 1880. The towns of Nullagine, Marble Bar and various other mining centres were established in the area following the gold rushes of the 1880s. Whilst the Nyamal People suffered demographical losses as a result of conflict with settlers, depletion of the natural resources by the encroachment of the pastoral and mining industries and the introduction of new diseases, Nyamal People continued to occupy Nyamal country and progressively settled in mining areas or were incorporated into the pastoral industry as station workers or dependants of station workers living in and around the Nyamal Determination Area.

56.    Through this work and residence on stations, townships or mining centres in or near the Determination Area, Nyamal People were able to continue to visit, hunt and gather on their country and transmit knowledge about the land to their children, thereby maintaining a continued connection to their land.

57.    This relatively stable situation began to alter with the Aboriginal Pastoral Workers Strike in 1946. Many Nyamal and other Aboriginal people left pastoral station employment in this period and, instead, supported themselves collectively through small scale mining (much of which took place on Nyamal country). The success of this venture and numbers of people involved varied over the next 15 years. In 1959 – 1960 there was a significant split in the strike movement and many Nyamal People re-established a community at Yandeyarra.

58.    Today, whilst some Nyamal People still live permanently in the Nyamal Determination Area at Marble Bar, a majority of Nyamal People now reside in Port Hedland whilst some remain at Yandeyarra. However, those Nyamal People who reside outside the Nyamal Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays.

59.    Accordingly, the Nyamal People continue to have a rich knowledge of the natural environment and particular sites in the Nyamal Determination Area (including mythological sites, dangerous, restricted, ceremonial, totemic and historical sites). Native game and plant foods continue to be important to Nyamal People and Nyamal People actively engage in hunting and gathering techniques and use traditional natural resources in accordance with a system of traditional laws and customs. The Nyamal People are also mindful of their responsibility to ensure that such knowledge is passed down to younger generations.

THE PRESCRIBED BODY CORPORATE

36    Pursuant to s 56(2) of the NTA, the Nyamal Applicant has nominated the Nyamal Aboriginal Corporation (ICN: 8770) (the Corporation) as the prescribed body corporate to hold the native title of the claim group in trust following the making of this determination. That nomination is in writing and the Corporation has given its consent to it. I am therefore satisfied that the relevant requirements of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met in this respect.

CONCLUSIONS

37    For these reasons, I consider the seven conditions contained in s 87A of the NTA have been met and it is therefore appropriate to make a determination of native title in accordance with the terms of the consent determination minute.

38    One of the objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this determination of native title clearly serve to advance that object.

39    The parties are to be congratulated for the years of effort and persistence that have been required to pursue the negotiations to their finality.

40    The legal representatives of all the parties are also to be congratulated for the support and assistance they have provided to their clients, over those years, to achieve this outcome.

41    In conclusion, it is worth making this observation: this determination of native title does not create native title in the Determination Area. Instead, it marks the recognition, by the Australian legal system, of the Nyamal People’s long held, and pre-existing, native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the Nyamal People, since long before this determination today.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:    

Dated:    24 September 2019

SCHEDULE OF PARTIES

WAD 20 of 2019

Respondents

Fourth Respondent:

BHP DIRECT REDUCED IRON PTY LTD

Fifth Respondent:

BALFOUR DOWNS PASTORAL COY PTY LTD

Sixth Respondent:

BOVIDAE PTY LTD

Seventh Respondent:

HILLSIDE STATION (WA) PTY LTD

Eighth Respondent:

PARDOO BEEF CORPORATION PTY LTD

Ninth Respondent:

VANGUARD ENTERPRISES PTY LTD

Tenth Respondent:

STARTLINE NOMINEES PTY LTD

Eleventh Respondent:

ANNE CATHERINE PAULL

Twelfth Respondent:

GREENLEIGH PTY LTD

Thirteenth Respondent:

KEYDRIVE PTY LTD

Fourteenth Respondent:

BARKLEY MARSHALL DAY

Fifteenth Respondent:

JOAN ELIZABETH DAY

Sixteenth Respondent:

RICHARD ERNEST DAY

Seventeenth Respondent:

ZANE BRADLEY DAY

Eighteenth Respondent:

PAUL D BETTINI

Nineteenth Respondent:

JOHN J BETTINI

Twentieth Respondent:

ETHEL M BETTINI

Twenty-First Respondent:

ANTHONY B BETTINI

Twenty-Second Respondent:

MARY E BETTINI

Twenty-Third Respondent:

MARK J BETTINI

Twenty-Fourth Respondent:

DAVID F BETTINI

Twenty-Fifth Respondent:

GRANT WILLIAM ROBERT BROOKS

Twenty-Sixth Respondent:

WENDY MCWHIRTER BROOKS

Twenty-Seventh Respondent:

COLIN BRIERLY

Twenty-Eighth Respondent:

PINGA PTY LTD