Federal Court of Australia

Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia [2021] FCA 9

ORDERS

THE COURT NOTES THAT:

A    Proceeding WAD 90 of 2020 (Nyiyaparli Variation Application) is made pursuant to s 13(1)(b) and s 61(1) of the Native Title Act 1993 (Cth). It seeks a variation to the approved determination of native title made by Barker J in proceedings WAD 6280 of 1998 and WAD 196 of 2013 on 26 September 2018 (the Nyiyaparli determination): see Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453.

B.    The Nyiyaparli determination was made in accordance with a Minute of Proposed Consent Orders filed on 19 September 2018 (the Minute). The Minute included an agreement by the parties in WAD 6280 of 1998 and WAD 196 of 2013 that the registered native title body corporate may seek a variation of the Nyiyaparli determination as it related to the application of s 47B of the Native Title Act in the event that the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) [2018] FCAFC 8 (BHP v KN) was subsequently overturned by the High Court. By reason of the Full Court's decision, s 47B(2) of the Native Title Act could not apply to certain areas (as listed in Recital F of the Nyiyaparli determination) that were covered by exploration or prospecting licences at the relevant time.

C.    The parties to the Nyiyaparli determination also agreed that one or more members of the native title claim group 'occupied' (within the meaning of s 47B(1)(c) of the Native Title Act) the areas listed in Recital F at the relevant time and that, but for prior extinguishment and the effect of BHP v KN, the native title rights in those areas would be those exclusive native title rights listed in paragraph 4 of the Nyiyaparli determination: see Recital D of the Nyiyaparli determination.

D.    On 17 April 2019 the High Court of Australia delivered judgment in Tjungarrayi v Western Australia [2019] HCA 12, unanimously allowing two appeals from decisions of the Full Court of the Federal Court of Australia in BHP v KN and Attorney-General v Helicopter-Tjungarrayi [2018] FCAFC 35. In doing so the High Court held that the presence of exploration or prospecting licences or permits did not prevent the disregarding of extinguishment under s 47B(2) of the Native Title Act in respect of land or waters covered by such licences or permits.

E.    Accordingly, the Nyiyaparli Variation Application seeks to vary the Nyiyaparli determination by recognising the application of s 47B (and a right of exclusive possession) over those land and waters identified in Recital F of the Nyiyaparli determination.

F.    The Applicant in the Nyiyaparli Variation Application, the State of Western Australia and the other respondent party (the parties) have reached an agreement as to the terms of the orders, and including a varied determination of native title, to be made in relation to the Nyiyaparli Variation Application.

G.    The parties have filed with the Court this Minute of Proposed Orders and Varied Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Nyiyaparli Variation Application.

BEING SATISFIED that orders in the terms sought by the parties are within the power of the Court and, it appearing to the Court appropriate to do so pursuant to s 13(5) of the Native Title Act, and by the consent of the parties:

THE COURT ORDERS THAT:

1.    The determination of native title at Attachment A to the orders made by Justice Barker in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453 on 26 September 2018 be varied as follows:

(a)    delete the maps in Schedule Two and replace them with the maps contained in Schedule Two of the Varied Determination of Native Title provided for in Attachment A;

(b)    in clause 2(a) of Schedule Three, delete all the words from and including 'Excluding' to the end of clause 2(a);

(c)    in clause 2(b) of Schedule Three, delete all the words from and including 'Excluding' to the end of clause 2(b);

(d)    in clause 2(c) of Schedule Three, delete all the words from and including 'Excluding' to the end of clause 2(c);

(e)    in clause 2(d) of Schedule Three, delete all the words in sub-paragraph (i) and renumber sub-paragraph (ii) to sub-paragraph (i); and

(f)    in clause 2(e) of Schedule Three, delete all the words from and including 'Excluding' to the end of clause 2(e); and

(g)    in the last sentence of the chapeau to Schedule Six replace the words 'the date of the determination' with the words '26 September 2018'.

2.    The determination of native title as varied by order 1 above is in the form of the Varied Determination of Native Title provided for in Attachment A.

3.    There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

1.    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraphs 4 and 5 of this Determination.

2.    Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Four, which are shown as generally shaded pink on the maps in Schedule Two.

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

3.    The native title in the Determination Area is held by the Nyiyaparli People. The Nyiyaparli People are the people described in Schedule Seven.

The nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and (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 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

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 are that they confer the following non-exclusive rights on the Nyiyaparli People, including the right to conduct activities necessary to give effect to them:

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

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

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

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

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

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

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

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

(ii)    people required by or entering in connection with traditional law and custom for the performance of ceremonies or cultural activities on the Non-Exclusive Area.

Qualifications on the native title rights and interests

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

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

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

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

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

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

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

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

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

(a)    possession, occupation, use and enjoyment on the Nyiyaparli People to the exclusion of all others; or

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

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

9.    Section 47A and s 47B of the Native Title Act apply to disregard prior extinguishment in relation to the areas described in clauses 1 and 2, respectively, of Schedule Five.

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

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

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

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

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Liberty to Apply

12.    The parties have liberty to apply to establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in clause 5 of Schedule Four of this Determination.

Definitions and Interpretation

13.    In this Determination, unless the contrary intention appears:

Commonwealth means Commonwealth of Australia;

Determination Area means the land and waters described in Schedule One and depicted on the maps in 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);

Flowing water means the following water within the Determination Area:

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

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

land has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of 'waters';

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

native title holders means the Nyiyaparli People as described in Schedule Seven and referred to in paragraph 3;

Non-Exclusive Area means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist. These lands and waters 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 10;

resources means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));

State means State of Western Australia;

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

use includes by way of share and exchange; and

waters has the same meaning as in the Native Title Act.

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

SCHEDULE ONE

DETERMINATION AREA

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

WAD 6280 of 1998

All those lands and waters commencing at Latitude 22.025709 South and Longitude 120.965618 East and extending southeasterly to a western boundary of Reserve 12297 at Latitude 22.176991; Then southeasterly to Latitude 22.185703 South, Longitude 121.407723 East; Then southwesterly to a western boundary of Reserve 12297 at Latitude 22.267179 South; Then southwesterly to a western boundary of Reserve 12297 at Latitude 22.349350 South; Then southwesterly to an eastern boundary of the eastern severance of Pastoral Lease N049553 (Balfour Downs) at Latitude 22.690004 South; Then southwesterly to a southern boundary of the eastern severance of Pastoral Lease N049553 (Balfour Downs) at Longitude 121.255422 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then generally southwesterly along the boundary of that native title determination to an northern boundary of the eastern severance of Pastoral Lease N049553 (Balfour Downs) at Longitude 121.221018 East; Then southwesterly to a southern boundary of the eastern severance of Pastoral Lease N049553 (Balfour Downs) at Longitude 121.145159 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then generally southwesterly along the boundary of that native title determination to an eastern boundary of Pastoral Lease N049546 (Robertson Range) at Latitude 23.497899 South; Then southwesterly to Latitude 23.565459 South, Longitude 120.871261 East; Then southwesterly to a southern boundary of the eastern severance of Reserve 41265 at Longitude 120.696113 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then southwesterly along the boundary of that native title determination to an eastern boundary of the eastern severance of Pastoral Lease N049890 (Weelarrana) at Latitude 23.751355 South; Then southwesterly to Latitude 23.799908 South, Longitude 120.618550 East; Then southwesterly to a southern boundary of the eastern severance of Pastoral Lease N049890 (Weelarrana) at Longitude 120.568181 East being a point on the present boundary of Native Title Determination WAD6110/1998 Martu (Area A) (WCD2002/002); Then southwesterly along the boundary of that native title determination to Latitude 23.998656 South, Longitude 120.508828 East being a point on the present boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WCD2008/002); Then westerly and southerly along the boundaries of that native title determination to Latitude 24.012185 South, being a point on the present boundary of Native Title Determination WAD6002/2003 Gingirana (WCD2017/011); Then southwesterly, generally westerly and generally northwesterly along the boundaries of the native title determination to the intersection of the centreline of an unnamed intermittent creek with Latitude 24.424384° South also being a point on the present boundary of Native Title Determination WAD78/2005 Ngarlawangga People (WCD2016/007); Then generally northerly along the boundaries of that native title determination to Latitude 23.800165 South, Longitude 119.730429 East; Then northerly, northwesterly and southwesterly through the following coordinate positions.

Then northwesterly to Latitude 23.505056 South, Longitude 119.363043 East being a point on the present boundary of Native Title Determination WAD78/2005 Ngarlawangga People (WCD2016/007); Then generally northwesterly along the boundary of that native title determination to Latitude 23.249178 South, Longitude 119.141883 East; Then generally northerly and generally westerly through the following coordinate positions.

Then westerly to Latitude 22.995316 South, Longitude 119.127503 East, being a point on the present boundary of Native Title Determination WAD6096/1998 Banjima People (WCD2014/001); Then northeasterly and generally northwesterly along the boundaries of that native title determination to Latitude 22.345315 South, Longitude 119.115406 East; Then generally easterly through the following coordinate positions.

Then northeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 29 March 2018.

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

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

Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WCD2008/002) as Determined in the Federal Court on 20 June 2008.

Native Title Determination WAD6002/2003 Gingirana (WCD2017/011) as Determined in the Federal Court on 7 December 2017.

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

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

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

Native Title Determination Application WAD6287/1998 Palyku (WC1999/016) as Registered in the Federal Court on 2 August 1999.

Native Title Determination Application WAD6028/1998 Nyamal (WC1999/008) as Registered in the Federal Court on 28 September 2007.

Native Title Determination Application WAD289/2018 Nyamal Overlap Claim (WC2018/011) as Filed in the Federal Court on 28 June 2018.

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 3 August 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.

WAD 196 of 2013

AREA 1

All those lands and waters commencing at Latitude 23.063501 South, Longitude 119.155112 East and extending northerly and generally westerly through the following coordinate positions.

Then westerly to Latitude 22.995316 South, Longitude 119.127503 East, being a point on the present boundary of Native Title Determination WAD6096/1998 Banjima People (WCD2014/001); Then generally southwesterly along the boundaries of that native title determination to Latitude 23.035240 South, Longitude 118.926692 East, being a point on the present boundary of Native Title Determination WAD340/2010 Yinhawangka Part A (WCD2017/003); Then generally southwesterly along the boundaries of that native title determination to Longitude 118.879717 South, being a point on the present boundary of Native Title Determination WAD78/2005 Ngarlawangga People (WCD2016/007); Then southeasterly along the boundary of that native title determination to Latitude 23.249178 South, Longitude 119.141883 East; Then northerly back to the commencement point.

AREA 2

All those lands and waters commencing at Latitude 23.505056 South, Longitude 119.363043 East being a point on the present boundary of Native Title Determination WAD78/2005 Ngarlawangga People (WCD2016/007); Then southeasterly along the boundary of that native title determination to the intersection with a western boundary of Native Title Application WAD6280/1998 Nyiyaparli People (WC2005/006) at Latitude 23.800165 South; Then northerly, northwesterly and southwesterly along the boundaries of that native title application through the following coordinate positions.

Then northwesterly back to the commencement point.

Note:        Geographic Coordinates provided in Decimal Degrees.

Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 29 March 2018.

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

Native Title Determination WAD340/2010 Yinhawangka Part A (WCD2017/003) as Determined in the Federal Court on 18 July 2017.

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

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

Native Title Determination Application WAD6280/1998 Nyiyaparli People (WC2005/006) as Registered in the Federal Court on 11 August 2010.

Datum:        Geocentric Datum of Australia 1994 (GDA94)

Prepared By:    Graphic Services (Landgate) 3 August 2018

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE TWO

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE AREA (PARAGRAPH 4)

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

1.    Areas where s 47A applies

(a)    The following reserves for the purpose of 'use and benefit of Aborigines', subject to clause 1(b) below in relation to Reserve 41265:

(b)    For the avoidance of doubt, the area of Reserve 41265 does not include:

(i)    Road 103, being the Jigalong Mission Road as described in Schedule Four, clause 4; or

(ii)    Road 14 (Historical), being the Weelarrana-Ethel Creek Road as described in Schedule Four, clause 4

for the purposes of this Schedule Three and paragraph 4 of the Determination.

(c)    The following pastoral leases, being leases which were held or on trust expressly for the benefit of Aboriginal peoples within the meaning of s 47A(1)(b)(ii) of the Native Title Act:

2.    Areas where s 47B applies

(a)    Wonmunna

All those lands and waters commencing at Latitude 23.055742 South, Longitude 119.126278 East and extending easterly and southerly through the following coordinate positions:

Then southerly to the intersection with a northern boundary of Lot 183 as shown on Deposited Plan 219300 being a point on the present northern side of the Great Northern Highway at Longitude 119.164336 East; Then generally westerly along the northern boundaries of that highway to Longitude 119.111522 East; Then northeasterly back to the commencement point.

(b)    Coondiner Creek

PORTION 1

All those lands and waters commencing at Latitude 23.156819 South, Longitude 119.556852 East and extending southeasterly, southwesterly, westerly, northerly, again westerly, northeasterly and again southeasterly through the following coordinate positions:

Then northeasterly back to the commencement point.

PORTION 2

All those lands and waters commencing at the intersection of a southern boundary of the southwestern severance of Pastoral Lease N050368 (Marillana) with Longitude 119.596290 East; Then easterly and southerly along the boundaries of that pastoral lease to a southwestern corner of the southwestern severance at approximate Latitude 23.000043 South, Longitude 119.636977 East; Then generally southwesterly, northwesterly, southwesterly and again northwesterly through the following coordinate positions:

Then northeasterly back to the commencement point.

(c)    Karlka (Kalgan Creek)

All those lands and waters commencing at the intersection of a western boundary of the westernmost northwestern severance of Pastoral Lease N049724 (Ethel Creek) with Latitude 23.190922 South; Then southerly, easterly and again southerly along the boundaries of that pastoral lease to Latitude 23.215004 South; Then northwesterly, generally southwesterly, generally easterly, generally northerly, generally northeasterly, generally easterly, southeasterly and northeasterly through the following coordinate positions:

Then southeasterly back to the commencement point.

(d)    Caramulla Creek

All those lands and waters commencing at the intersection of a northern boundary of the western severance of Reserve 41265 with Longitude 120.301861 East; Then northerly to the intersection with a southern boundary of the southern severance of Pastoral Lease N049724 (Ethel Creek) at Longitude 120.300623 East; Then easterly, northerly and again easterly along the boundaries of that pastoral lease to Longitude 120.371035 East; Then southerly to the intersection with a northwestern boundary of Reserve 9700 at Latitude 23.415873 South; Then southwesterly along the northwestern boundaries of that reserve to the intersection with a northern boundary of the western severance of Reserve 41265; Then westerly along the northern boundary of the western severance of that reserve back to the commencement point.

Excluding:

(i)    For the avoidance of doubt:

(A)    Road 01 (Historical), being part of the old alignment of the Great Northern Highway as described in Schedule Four, clause 4;

(B)    Road 14 (Historical), being the Weelarrana-Ethel Creek Road as described in Schedule Four, clause 4.

(e)    Mintaramunya (Mount Newman)

All those lands and waters commencing at Latitude 23.273889 South, Longitude 119.594217 East and extending generally westerly, generally southwesterly, again generally westerly, generally northeasterly, generally southeasterly and westerly through the following coordinate positions: