FEDERAL COURT OF AUSTRALIA

Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia [2019] FCA 2090

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings WAD 22 of 2019 has made a native title determination application (“Gnulli Application”).

B.    The Applicant in proceedings WAD 366 of 2018 has made a native title determination application (“Gnulli #2 Application”).

C.    The Applicant in proceedings WAD 261 of 2019 has made a native title determination application (“Gnulli #3 Application”).

D.    The Applicant in the Gnulli Application, the Applicant in the Gnulli #2 Application, the Applicant in the Gnulli #3 Application, the State of Western Australia and the other Respondents to the Gnulli, Gnulli #2 and Gnulli #3 Applications (“the parties”) have reached an agreement as to the terms of the determination which is to be made in relation to the land and waters covered by the Gnulli, Gnulli #2 and Gnulli #3 Applications (“the Determination Area”). The external boundaries of the Determination Area are described in Schedule One to the Determination.

E.    The Applicants’ rights and interests have co-existed for more than 50 years with usage of the waters and fisheries of Exmouth Gulf by commercial fishers. The Applicants acknowledge that the prawn fishery of the gulf has been trawled by commercial fishers and understand that such usage will continue. 

F.    Pursuant to subsections 87(1), (1A) and (2) of the Native Title Act 1993 (Cth) (“Native Title Act”) the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Gnulli, Gnulli #2 and Gnulli #3 Applications.

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

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

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

J.    In respect of the Baiyungu and/or Thalanyji Area (as defined in paragraph 15 of the determination), the Baiyungu and/or Thalanyji native title holders have nominated the Nganhurra Thanardi Garrbu Aboriginal Corporation (ICN 9183) pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the Baiyungu and/or Thalanyji native title holders. In respect of the Yinggarda Area (as defined in paragraph 15 of the determination), the Yinggarda native title holders have nominated the Yinggarda Aboriginal Corporation (ICN 9184) pursuant to section 56(2)(a) of the Native Title Act to hold the determined native title in trust for the Yinggarda 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 87 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 22 of 2019, WAD 366 of 2018 and WAD 261 of 2019 in the terms provided for in Attachment A.

2.    In respect of the Baiyungu and/or Thalanyji Area (as defined in paragraph 15 of the determination), the Nganhurra Thanardi Garrbu Aboriginal Corporation (ICN 9183) shall hold the determined native title in trust for the Baiyungu and/or Thalanyji native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

3.    In respect of the Yinggarda Area (as defined in paragraph 15 of the determination), the Yinggarda Aboriginal Corporation (ICN 9184) shall hold the determined native title in trust for the Yinggarda native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

4.    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 5 and 6 of this determination.

2.    Native title does not exist in those parts of the Determination Area that are identified in Schedule Four.

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

3.    The native title in the Baiyungu and/or Thalanyji Area is held by the Baiyungu and/or Thalanyji native title holders.

4.    The native title in the Yinggarda Area is held by the Yinggarda native title holders.

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

Exclusive rights and interests

5.    Subject to paragraphs 2, 7, 8, 9, 12 and 13, the nature and extent of the native title rights and interests in relation to the Exclusive Area are:

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

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

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

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

Non-exclusive rights and interests

6.    Subject to paragraphs 2, 7, 8, 9 and 12, the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are that they confer the following non-exclusive rights, including the right to conduct activities necessary to give effect to them:

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

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

(c)    the right to take and use water;

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

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

(ii)    conducting and participating in ceremony and ritual, including burials, burial rites and the transmission of cultural knowledge;

(e)    the right to light contained and controlled fires for domestic, cultural and spiritual purpose but not for the clearance of vegetation;

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

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

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

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

Qualifications on the native title rights and interests

7.    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 native title holders for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

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

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

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

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

(d)    water lawfully captured by the holders of the Other Interests.

9.    The native title rights and interests set out in paragraphs 5(b) and 6 do not confer:

(a)    possession, occupation, use and enjoyment on the native title holders to the exclusion of all others; or

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

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

10.    Sections 47, 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to those parts of the Determination Area identified in Schedule Five.

The nature and extent of any other interests

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

Relationship between native title rights and other interests

12.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 5 and 6 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.

13.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 5 and mining lease M0900086 is that, to the extent that is inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, M0900086 continues to exist in its entirety, but is invalid to the extent of the inconsistency with the native title rights and interests during the currency of M0900086, pursuant to section 24OA of the Native Title Act.

Liberty to Apply

14.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in clause 8 of Schedule Four of this determination

Definitions and Interpretation

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

“Baiyungu and/or Thalanyji Area” means the land and waters described in Part 1 of Schedule Eight as depicted on the Map in Part 2 of Schedule Eight;

“Baiyungu and/or Thalanyji native title holders” means the people described in Schedule Seven and referred to in paragraph 3;

“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 in Schedule Two)

“native title holders” means the people described in Schedule Seven and referred to in paragraphs 3 and 4;

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

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

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Six and referred to in paragraph 11;

“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 the Mining Act 1904 (WA) (repealed));

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

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

“Yinggarda Area” means the land and waters described in Part 1 of Schedule Eight as depicted on the Map in Part 2 of Schedule Eight;

“Yinggarda native title holders” means the people described in Schedule Seven and referred to in paragraph 4;

16.    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 land and waters commencing at the intersection of the Low Water Mark with Longitude 114.637842 East, being a point on the northwestern boundary of Native Title Determination WAD6113/1998 Thalanyji (WCD2008/003) and extending generally southerly along the western boundary of that native title determination to coordinate point Latitude 23.032494 South Longitude 115.030893 East; then easterly to coordinate point Latitude 23.032003 South, Longitude 115.037178 East, being a point on again Native Title Determination WAD6113/1998 Thalanyji (WCD2008/003); then generally southwesterly and generally southerly through the following coordinate points:

Then northeasterly to the westernmost corner of Native Title Determination WAD464/2016 Combined Thiin-Mah, Warriyangka, Tharrkari And Jiwarli People (WCD2019/003); then generally easterly along the southern boundaries of that native title determination to its southernmost southeastern corner; then southwesterly to coordinate point Latitude 24.589108 South Longitude 116.245187 East being a point on Native Title Determination WAD28/2019 Wajarri Yamatji Part A (WCD2017/007); then generally southerly and generally westerly along the western boundaries of that native title determination to the intersection with Longitude 115.594032 East, being a point on the centreline of Wooramel River; then generally westerly along the centreline of that river to the intersection with the easternmost northeastern corner of Native Title Determination WAD6236/1998 Malgana Part A (WCD2018/012); then generally westerly along the northern boundary of that determination to the intersection with the Low Water Mark; then generally northerly along the Low Water Mark to Latitude 24.035314 South; then west to the intersection with the 3 Nautical Mile Coastal Waters Limit; then generally northeasterly along the 3 nautical mile coastal waters limit to Longitude 114.119412 East; then northeasterly to the intersection of Longitude 114.127550 East with a 3 nautical mile buffer seaward from the coastline; then generally easterly and generally southerly along the boundary of that buffer to the intersection with Latitude 22.369171 South; then easterly to the intersection of the 3 nautical mile buffer seaward of the coastline with Latitude 22.369205 South; then generally northeasterly along that buffer to the intersection with Latitude 22.048564 South; then generally northeasterly through the following coordinates:

Then northeasterly to the intersection of again the 3 nautical mile buffer seaward of the coastline with Longitude 114.538638 East; then generally northeasterly along that buffer to the intersection with a line joining Latitude 21.786115 South Longitude 114.622533 East and Latitude 21.798818 South Longitude 114.626945 East; then generally southerly through the following coordinate points:

Then southeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

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

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 02 January 2018.

Wooramel River sourced from © Commonwealth of Australia (Geoscience Australia) 2006.

3 Nautical Mile Coastal Waters Limit Maritime boundaries data sourced from © Commonwealth of Australia (Geoscience Australia) 2006.

3 Nautical Mile Buffer seaward from the coastline based on topographic Coastline (GEODATA COAST 100K 2004) sourced from © Commonwealth of Australia (Geoscience Australia) 2004.

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

Native Title Determination Application WAD6113/1998 Thalanyji (WCD2008/003) as Determined in the Federal Court on the 18/09/2008.

Native Title Determination Application WAD6212/1998 Thudgari People (WCD2009/002) as Determined in the Federal Court on the 18/11/2009.

Native Title Determination Application WAD464/2016 Combined Thiin-Mah, Warriyangka, Tharrkari And Jiwarli People (WCD2019/003) as Determined in the Federal Court on the 16/04/2019.

Native Title Determination Application WAD28/2019 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19/10/2017.

Native Title Determination Application WAD44/2018 Wajarri Yamatji Part C (WCD2018/014) as Determined in the Federal Court on the 07/12/2018.

Native Title Determination Application WAD6236/1998 Malgana Part A (WCD2018/012) as Determined in the Federal Court on the 04/12/2018.

Native Title Determination Application WAD28/2019 Wajarri Yamatji (WC2004/010).

Native Title Determination Application WAD382/2017 Wajarri Yamatji #2 (WC2017/004).

Native Title Determination Application WAD439/2019 Budina 2 (WC2019/010).

Native Title Determination Application WAD278/2018 Wajarri Yamatji (Byro Plains) (WC2018/008).

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 12 November 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 AREAS

Paragraph 5

Native title comprises the rights and interests set out in paragraph 5 of the Determination in relation to the following land and waters (which areas are generally shown as shaded in green on the maps in Schedule Two):

1.    PL N49635    (Cardabia Station);

2.    PL N49969 (Towrana Station) (part), being that portion of PL N49969 not subject to Easement 48;

3.    Reserve 22313 (Use and Benefit of Aboriginal Inhabitants) (part), being that portion of Reserve 22313 not subject to Historical Road 096;

4.    Reserve 27778 (Use and Benefit of Aboriginal Inhabitants);

5.    Reserve 37185 (Use and Benefit of Aboriginal Inhabitants);

6.    Lease AB I428655 (Lease in perpetuity to Gulungoor Yammatji Aboriginal Corporation);

7.    UCL 135 (Kennedy Range);

8.    UCL 381 (Kennedy Range);

9.    UCL 382 (Kennedy Range);

10.    UCL 383 (Kennedy Range);

11.    UCL 384 (Kennedy Range);

12.    UCL 385 (Kennedy Range);

13.    UCL 386 (Kennedy Range);

14.    UCL 388 (Kennedy Range);

15.    UCL 394 (Kennedy Range);

16.    UCL 395 (Kennedy Range);

17.    UCL 396 (part) (Kennedy Range), being that portion of UCL 396 not subject to mining leases M0900109 and M0900018 and Historical Road 051;

18.    UCL 421 (part) (Giralia Landing), being all those land and waters commencing at the intersection of a northern boundary of Lot 167 as shown on Deposited Plan 238194 at Longitude 114.312203 East and extending south and westerly through the following coordinate points:

Then northerly to the intersection of a northern boundary of again Lot 167 as shown on Deposited Plan 238194 at Longitude 114.292203 East; then generally easterly along the boundaries of that lot back to the commencement point;

19.    UCL 423 (part) (Corroboree Grounds), being all those land and waters within Lot 167 as shown on Deposited Plan 238194 enclosed by the following coordinate points:

20.     UCL 442 (Kennedy Range);

21.    UCL 453 (part) (Mauds Landing), being all those land and waters commencing at the intersection of a northwestern boundary of Lot 57 as shown on Deposited Plan 220960 and Longitude 113.779284 East and extending south to the intersection of the northeastern boundary of Road No 8397; then northwesterly along the boundary of that road to the intersection with a southeastern boundary of Lot 56 as shown on Deposited Plan 220960; then northeasterly, northwesterly, southwesterly, generally northwesterly, again northeasterly, again northwesterly, again southwesterly, southeasterly, again southwesterly, southeasterly, again northeasterly, again southeasterly, again northeasterly, again northwesterly and again northeasterly along boundaries of that lot to the intersection with again Road No 8397, then southeasterly along the boundary of that road to an intersection with Longitude 113.779284 East, then south and westerly through the following coordinate points:

22.    UCL 457 (Kennedy Range);

23.    UCL 504 (part), being all those land and waters commencing at the intersection of a western boundary of Lot 522 as shown on Deposited Plan 54946 and Latitude 23.049336 South and extending easterly and southwesterly through the following coordinate points:

then westerly to the intersection of a western boundary of again Lot 522 as shown on Deposited Plan 54946 and Latitude 23.051260 South; then generally northerly and generally northeasterly along the boundaries of that lot back to the commencement point;

24.    UCL 504 (part) (Oyster Bridge), being all those land and waters commencing at the intersection of a western boundary of Lot 522 as shown on Deposited Plan 54946 and Latitude 23.068874 South; then extending southerly to coordinate point Latitude 23.070175 South Longitude 113.817305 East; then southwesterly to the intersection of a western boundary of again Lot 522 as shown on Deposited Plan 054946 and Latitude 23.071648 South; then generally northwesterly and generally northeasterly along the boundaries of that lot back to the commencement point.

25.    UCL 723 (part) (Bibbawarra Bore), being that portion of UCL 723 not subject to mining leases M090008 and, M0900090, miscellaneous licence L0900057 and Historical Road 037;

26.    UCL 724 (Bibbawarra Bore);

27.    UCL 730 (Kennedy Range);

28.    UCL 753 (part), being all those land and waters commencing at the intersection of a western boundary of Lot 711 as shown on Deposited Plan 405551 and Latitude 23.209513 South and extending southeasterly and generally southerly through the following coordinate points:

Then generally southwesterly to the intersection of a western boundary of again Lot 711 as shown on Deposited Plan 405551 and Latitude 23.226555 South; then generally northerly along the boundary of that Lot back to the commencement point;

29.    UCL 758 (part), being all those land and waters commencing at the intersection of a western boundary of Lot 714 as shown on Deposited Plan 405551 and Latitude 23.518274 South and extending southeasterly to the intersection of an eastern boundary of that lot and Longitude 113.762940 East; then generally southwesterly along the boundary of that lot to the intersection of Longitude 113.750876 East; then northwesterly to the intersection of a western boundary of again Lot 714 as shown on Deposited Plan 405551 and Longitude 113.749616 East; then generally northeasterly along the boundary of that Lot back to the commencement point; and

30.    UCL 769 (part), being all those land and waters commencing at the intersection of a western boundary of Lot 526 as shown on Deposited Plan 407153 at Latitude 23.174453 South and extending generally southeasterly through the following coordinate points:

Note:    Geographic Coordinates provided in Decimal Degrees.

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

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 02 January 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 12 November 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 FOUR

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Paragraph 2

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

For the avoidance of doubt, unless otherwise specified, the area of the following interests are as they existed as at 2 January 2018 and as contained in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated 7 June 2019. The non-existence of native title is not necessarily a result of the grant or creation of these interests.

1.    Freeholds

The following grants of estates in fee simple: