Banjima People v State of Western Australia (No 3)
[2014] FCA 201
•12 March 2014
FEDERAL COURT OF AUSTRALIA
Banjima People v State of Western Australia (No 3) [2014] FCA 201
Citation: Banjima People v State of Western Australia (No 3) [2014] FCA 201 Parties: BANJIMA PEOPLE v STATE OF WESTERN AUSTRALIA & ORS File number: WAD 6096 of 1998 Judge: BARKER J Date of judgment: 12 March 2014 Catchwords: NATIVE TITLE – determination Legislation: Native Title Act 1993 (Cth) Cases cited: Banjima People v State of Western Australia (No 2) [2013] FCA 868 Date of hearing: 11 March 2014 Place: Karijini, Western Australia Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 4
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6096 of 1998
BETWEEN: BANJIMA PEOPLE
ApplicantAND: STATE OF WESTERN AUSTRALIA & ORS
Respondent
JUDGE:
BARKER J
DATE:
12 MARCH 2014
PLACE:
KARIJINI, WESTERN AUSTRALIA
REASONS FOR JUDGMENT
On 28 August 2013, I made the following order in this proceeding:
1.The claimants are entitled to a determination of native title under the Native Title Act 1993 (Cth). The Court will now invite the claimants to bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course.
On 11 March 2014 at Karijini National Park in the Pilbara Region of Western Australia, the claimants moved for a determination of native title in terms that were, as all parties to the proceeding agreed, in accordance with my findings as to existence of native title and extinguishment set out in my reasons in Banjima People v State of Western Australia (No 2) [2013] FCA 868.
Accordingly, I then made a determination of native title, pursuant to the Native Title Act 1993 (Cth), in the terms proposed.
The determination of native title so made is attached to these reasons.
I certify that the preceding four (4) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 12 March 2014
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6096 of 1998
BETWEEN: BANJIMA PEOPLE
ApplicantAND: STATE OF WESTERN AUSTRALIA, SHIRE OF ASHBURTON, SHIRE OF MEEKATHARRA, NICHOLAS COOK, H PARKER [DECEASED], MAITLAND PARKER, W PARKER [DECEASED], W PARKER [DECEASED], CHARLIE SMITH, STEVEN SMITH, ALEC TUCKER, YAMATJI MARLPA ABORIGINAL CORPORATION, CHANNAR MINING PTY LTD, CHICHESTER METALS PTY LTD, CMIEC (CHANNAR) PTY LTD, FMG PILBARA PTY LTD, FORTESCUE METALS GROUP LTD, HAMERSLEY EXPLORATION PTY LTD, HAMERSLEY IRON – YANDI PTY LTD, HAMERSLEY IRON PTY LTD, HAMERSLEY RESOURCES LTD, HANCOCK PROSPECTING LTD, HEMISPHERE RESOURCES LTD, HOPE DOWNS IRON ORE PTY LTD, MARILANA STATION, MITSUI IRON ORE DEVELOPMENT PTY LTD, MITSUI ITOCHU IRON ORE PTY LTD, MOUNT BRUCE MINING PTY LTD, MULGA DOWNS INVESTMENTS PTY LTD, MULGA DOWNS IRON ORE PTY LTD, NIPPON STEEL AUSTRALIA PTY LTD, NORTH MINING LIMITED, PILBARA IRON PTY LTD, PILBARA PASTORAL CO PTY LTD, ROBE RIVER MINING CO PTY LTD, SIPA EXPLORATION NL, SUMITOMO METAL AUSTRALIA PTY LTD, THE PILBARA INFRASTRUCTURE PTY LTD, WESTRAINT RESOURCES PTY LTD, WRIGHT PROSPECTING PTY LTD, BHP BILLITON IRON ORE (JIMBLEBAR) PTY LTD, BHP BILLITON IRON ORE PTY LTD, BHP MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE CORPORATION PTY LTD, PG COOK, HANCOCK PROSPECTING PTY LTD – GH RINEHART (MULGA DOWNS STATION), JUNA STATION PTY LTD, BEN NEWLAND (SYLVANA STATION), TR RICHARDSON (MOUNT FLORANCE STATION), ROCKLEA STATION PTY LTD AND TELSTRA CORPORATION LIMITED
RespondentsJUDGE:
BARKER J
DATE OF ORDER:
11 MARCH 2014
WHERE MADE:
KARIJINI, WESTERN AUSTRALIA
BEING SATISFIED that a determination of native title in the terms set out in Attachment A in respect of WAD 6096 of 1998 would be within the power of the Court, pursuant to section 94A of the Native Title Act 1993 (Cth):
THE COURT ORDERS THAT:
1.In relation to the Determination Area, there be a determination of native title in WAD 6096 of 1998 in terms of the Determination in Attachment A.
2. The Banjima Native Title Aboriginal Corporation (ICN 7971) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act1993 (Cth).
3.There be no order as to costs.
Dated: 11 March 2014
__________________________
The Honourable Justice Barker
ATTACHMENT A
DETERMINATION OF NATIVE TITLE
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s 225 Native Title Act)
1.Native title exists in the Determination Area in the manner set out in paragraphs 3 and 4 of this determination.
Native title holders (s 225(a) Native Title Act)
2.The native title in the Determination Area is held by the Banjima People. The Banjima People are the people referred to in Schedule 6.
The nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) Native Title Act)
3.Subject to paragraphs 4, 5, 6 and 9 the nature and extent of the native title rights and interests in relation to the Determination Area (other than the Exclusive Area) are that they confer the following non-exclusive rights on the Banjima People, including the right to conduct activities necessary to give effect to them:
(a)the right to access and move about the land and waters of the Determination Area, be present on the land and waters, live on the land in camps and shelters, and engage in cultural activities on the land and waters including conducting and participating in ceremonies and meetings;
(b)the right to hunt and take fauna, gather and take flora, take fish and take stones, timber, ochre and water;
(c)the right to have access to, maintain and protect places and areas of importance on or in the land and waters of the Determination Area, including rock art, engraving sites, stone arrangements and the like.
4.Subject to paragraphs 5 and 9 the nature and extent of the native title rights and interests in relation to the Exclusive Area are that they confer the following exclusive rights on the Banjima People, including the right to conduct activities necessary to give effect to them:
(a)the right as against the whole world to possess, occupy, use and enjoy the land and waters of the Exclusive Area;
(b)a right to make decisions about the use of the land and waters of the Exclusive Area by persons who are not members of the Banjima People; and
(c)a right to control the access of others to the land and waters of the Exclusive Area.
Qualifications on the native title rights and interests
5.The native title rights and interests set out in paragraphs 3 and 4:
(a)are subject to and exercisable in accordance with:
(i) the laws of the State and the Commonwealth, including the common law; and
(ii) the traditional laws and customs of the Banjima People;
(b)do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this Determination; and
(c)do not confer any rights in relation to:
(i) minerals as defined in the Mining Act1904 (WA) (repealed) and in the Mining Act 1978 (WA);
(ii) petroleum as defined in the Petroleum Act1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act1967 (WA);
(iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(iv) water captured by the holders of the Other Interests pursuant to those Other Interests.
6. The native title rights and interests set out in paragraph 3 do not confer:
(a)possession, occupation, use and enjoyment on the Banjima 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 (other than the Exclusive Area) or its resources.
Areas to which s 47A or s 47B of the Native Title Act apply
7. 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 4.
The nature and extent of any other interests
8.The nature and extent of the Other Interests are described in Schedule 5.
Relationship between native title rights and other interests
9.Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 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
10.In this determination, unless the contrary intention appears:
“Determination Area” means the land and waters within the external boundary described in item S1.1 of Schedule 1 and depicted on the maps at Schedule 3, but not including the Unclaimed Area;
“Exclusive Area” means that part of the Determination Area described in item S1.2 of Schedule 1 and depicted on the maps at Schedule 3;
“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);
“ochre” does not include ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed);
“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule 5 and referred to in paragraph 8, as at the date of this determination;
“Unclaimed Area” means the land and waters described in Schedule 2 and shaded pink on the maps in Schedule 3;
“underground water” includes water that percolates from the ground;
“use” does not include use by way of trade;
“waters” has the same meaning as in the Native Title Act.
11.In the event of any inconsistency between the written description of an area in Schedule 1, Schedule 2, Schedule 4 or Schedule 5, and the area as depicted on the maps at Schedule 3, the written description prevails.
Schedule 1 Determination Area and Exclusive Area
S1.1 Determination Area
The external boundary of the Determination Area, generally shown as bordered in blue on the maps at Schedule 3, is as follows:
Commencing at a point on the northern boundary of Reserve 30082 (Karijini National Park) at Longitude 118.124481° East, also being a point on the southern boundary of Native Title Determination Application WAD6005/03 Yindjibarndi #1 (WC03/3), and extending north westerly, generally north easterly and generally easterly along boundaries of that native title determination application passing through the following coordinate points.
Longitude (East)
Latitude (South)
118.066727
22.177725
118.244529
22.043553
118.321057
21.927553
118.335569
21.923244
118.391671
21.921325
118.469730
21.982051
118.582419
21.968384
Then south easterly along boundaries of that native title determination application to the intersection with Native Title Determination Application WAD6287/98 Palyku (WC99/16) at Longitude 118.814893° East, Latitude 22.008794° South; then generally south easterly along boundaries of that native title determination application passing through the following coordinate points.
Longitude (East)
Latitude (South)
118.998448
22.084728
119.082157
22.288105
Then south easterly to a northern boundary of Native Title Determination Application WAD6280/98 Nyiyaparli (WC05/6) at Latitude 22.345315° South and extending generally south easterly along boundaries of that native title determination application passing through the following coordinate points.
Longitude (East)
Latitude (South)
119.249935
22.576797
119.301788
22.795397
Then south westerly along boundaries of that native title determination application to the intersection with Native Title Determination Application WAD196/2013 Nyiyaparli #3 (WC13/3) at Longitude 119.127503° East, Latitude 22.995316° South; then generally south westerly along boundaries of that native title determination application passing through the following coordinate points.
Longitude (East)
Latitude (South)
119.121440
23.002285
118.941522
23.019693
118.940505
23.020809
118.936945
23.024922
118.932942
23.030788
118.932172
23.031113
118.928092
23.033906
Then continuing south westerly along the boundary of that native title determination application to Longitude 118.926692° East; then generally westerly passing through the following coordinate points.
Longitude (East)
Latitude (South)
118.907401
23.036837
118.890123
23.037907
118.882137
23.037086
118.877361
23.037086
118.867584
23.034175
118.856409
23.037404
118.849937
23.042655
118.842607
23.051530
118.836573
23.059998
118.824910
23.068668
118.813698
23.077498
118.809213
23.079881
118.803186
23.081142
118.795950
23.079381
118.786087
23.077638
118.779920
23.079600
118.766091
23.078945
118.760207
23.079817
118.753850
23.079040
118.745301
23.077077
118.732209
23.070666
118.720676
23.069293
118.705636
23.071051
118.695825
23.074835
118.681529
23.071051
118.649792
23.047597
118.623483
23.028031
Then north westerly to an easternmost boundary of the southern severance of Reserve 30082 (Karijini National Park) at Latitude 23.024322° South and extending northerly, easterly, again northerly, westerly and again northerly to the southern boundary of the Pastoral Lease 3114/1191 (Juna Downs); then generally westerly, generally northerly, generally easterly and northerly along boundaries of that pastoral lease to Latitude 22.809865° South; then generally north westerly passing through the following coordinate points back to the commencement point.
Longitude (East)
Latitude (South)
118.407264
22.770879
118.308845
22.747356
118.282302
22.613946
118.293569
22.579722
118.142003
22.235568
For the avoidance of any doubt, land and waters within the following native title determinations applications are excluded:
·Native title determination application WAD6169/98 Kariyarra People (WC99/3)
·Native title determination application WAD6287/98 Palyku (WC99/16)
·Native title determination application WAD6005/03 Yindjibarndi 1 (WC03/3)
·Native title determination application WAD6280/98 Nyiyaparli (WC05/6)
·Native title determination application WAD196/2013 Nyiyaparli #3 (WC13/3)
·Native title determination application WAD340/2010 Yinhawangka Part A (WC10/16)
S1.2 Exclusive Area
The Exclusive Area, generally shown as shaded green on the maps at Schedule 3, comprises:
Areas where section 47A applies
SL 3116/11923 (GE I144640)
Reserve 31428
Areas where section 47B applies
UCL 7
UCL 9
UCL 42
Schedule 2
Unclaimed AreaThe following areas, being land and waters where native title has been completely extinguished, were excluded from the application for native title in WAD 6096 of 1998 and are excluded from the Determination Area.
All of the following areas are shown generally as shaded pink on the maps in Schedule 3.
S2.1 Freehold
Freehold No.
CT0007700069A
CT0016000027A
CT0016000028A
CT0016000029A
CT0018400139A
CT0018500059A
CT0018800124A
CT0018900013A
CT0018900175A
CT0019600120A
CT0019600121A
CT0021700077A
CT0022300135A
CT0029300114A
CT0029900019A
CT0032700028A
CT0032700083A
CT0037800011A
CT0041700053A
CT0043000081A
CT0053000198A
CT0054500182A
CT0054500184A
CT0054700197A
CT0055100159A
CT0055500014A
CT0059700099A
CT0060000199A
CT0060900059A
CT0062600137A
CT0119800803
CT0119800804
CT0119800805
CT0119800806
CT0119800807
CT0119800808
CT0119800809
CT0119800810
CT0119800811
CT0119800811
CT0119800812
CT0119800813
CT0119900467
CT0121500837
CT0121500919
CT0122200617
CT0122900734
CT0122900991
CT0123800446
CT0123800463
CT0123800669
CT0123800670
CT0123800721
CT0125200040
CT0125200184
CT0125900658
CT0129300132
CT0129300413
CT0129300619
CT0131800209
CT0131800301
CT0131900010
CT0132000315
CT0132200610
CT0132200660
CT0132200674
CT0132400525
CT0132400526
CT0132700480
CT0132700481
CT0132700915
CT0132800628
CT0133100374
CT0133100974
CT0133400171
CT0133800741
CT0134200423
CT0134200424
CT0134300929
CT0134500545
CT0134600122
CT0134900164
CT0135200349
CT0135300253
CT0135500480
CT0136200162
CT0136500506
CT0136700096
CT0137300656
CT0137500656
CT0137600410
CT0137600567
CT0140200111
CT0140200112
CT0140200113
CT0140200114
CT0140200115
CT0140300705
CT0140300706
CT0140300707
CT0140300708
CT0140300709
CT0140300710
CT0140300711
CT0140300712
CT0140300713
CT0140300714
CT0140300715
CT0140300716
CT0140300717
CT0140300718
CT0140300719
CT0140300720
CT0140300721
CT0140300722
CT0140300723
CT0140300724
CT0140300725
CT0140300726
CT0140300727
CT0140300728
CT0140300729
CT0140300730
CT0140300731
CT0140300732
CT0140300733
CT0140300734
CT0140300735
CT0140300736
CT0140300737
CT0140300738
CT0140300739
CT0140300740
CT0140300741
CT0140300742
CT0140300743
CT0140300744
CT0140300745
CT0140300746
CT0140300747
CT0140300748
CT0140300749
CT0140300750
CT0140300751
CT0140300752
CT0140300753
CT0140300754
CT0140300755
CT0140300756
CT0140300757
CT0140300758
CT0140300759
CT0140300760
CT0140300761
CT0140300762
CT0140300763
CT0140300764
CT0140300765
CT0140300766
CT0140300767
CT0140300768
CT0140300769
CT0140300770
CT0140300771
CT0140300772
CT0140300773
CT0140300774
CT0140400530
CT0140400531
CT0141700694
CT0141800108
CT0141800871
CT0142200402
CT0142200525
CT0142200616
CT0145300112
CT0145500632
CT0146600505
CT0146600506
CT0146600511
CT0147200651
CT0147200652
CT0147200654
CT0147600152
CT0149900117
CT0152800090
CT0155200888
CT0156400262
CT0159000555
CT0162100290
CT0162100291
CT0163200081
CT0167200443
CT0172900666
CT0173000453
CT0173700572
CT0173800326
CT0173800768
CT0174000801
CT0174500969
CT0175900800
CT0176100592
CT0176400726
CT0176600714
CT0177000596
CT0177200837
CT0177300714
CT0177600029
CT0177600030
CT0177600031
CT0179600559
CT0185600117
CT0187800904
CT0187800905
CT0188900685
CT0195000834
CT0200400375
CT0200800478
CT0200800479
CT0200800480
CT0201100615
CT0201100616
CT0204600979
CT0207300476
CT0207700889
CT0219400344
CT0219400345
CT0219400346
CT0222200358
CT0222200359
S2.2 Reserves
Reserve No.
Current / Last Purpose
23710
Boy Scouts
23278
Aerial Landing Ground
23776
Explosive Magazine
23864
Sports Ground, Racecourse and Caravan park
23865
Park and Recreation
23866
Shire Purposes
24236
Disused Cemetery
24438
Protection of Flora & Fauna
24824
Police
24849
Depot Site – St John Ambulance
24858
Shire Purposes
24898
Aerial Landing Ground
25156
Church Site – Church of England
25793
Park
26028
Water Supply
26031
Water Supply Depot & Quarters
26369
Use & Requirements of Shire of West Pilbara
26764
Hospital Site
26780
School Site
27373
Gun Club and Club Premises
27588
Recreation
27998
Fire Station Site
28375
Fire Station Site
30082 (part) being that portion of Reserve 30082 vested pursuant to section 33 of the Land Act 1933 (WA) on 31 October 1969
National Park
34773
Power Station Site
34774
Tank Site
34775
Pipeline
37591
Tourist Information Bay
38972
Vehicle Parking
39305
Tourist Purposes
39515
Depot Site (Water Authority of Western Australia)
42078
Gravel Purposes
S2.3 Leases
Lease No.
Summary / General Description of the Current / Last Purpose
SL 3116/03132
A Store and Yard
SL 3116/03687 (GE I154279)
Construction, development, maintenance, use and operation of a railway and ancillary installations and facilities
SL 3116/03882
Service Station Site
SL 3116/03914
Tourist Information Centre
SL 3116/04028
Construction, development, maintenance, use and operation of radio communications and ancillary installations and facilities
SL 3116/04147
Caravan Park Site
SL 3116/04955
Riding School and Stables
SL 3116/05078
Fuel Storage
SL 3116/05990
Service Station
SL 3116/06300 (GE I123596)
Quarry for the production of railway ballast and a stockpile area for the storage of railway ballast.
SL 3116/06329 (GE I123720)
Laying out, development, construction, provision and use of a water supply and ancillary installations and facilities for drawing, conserving, reticulating and supplying water to the maintenance camp established on the land the subject of Special Lease 3116/6300.
SL 3116/11869 (GE I134828)
Development, construction, provision, upgrading, operation and use of a railway, power transmission line and communications system and associated facilities including borrow pits
GE J717063
Final design, construction, use, operation and maintenance of a rail spur line and associated access road
GE K843924
Construction, provision, extension, use, operation and maintenance of a railway spur line and access roads
GE K843925
Construction, provision, extension, use, operation and maintenance on the Land of a communication repeater station
S2.4 Dedicated roads and roads set aside, taken or resumed and associated features
(a)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) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following:
Road Name
Location / Description
Bolitho Road
(Historical Roads 4 and 8)Bolitho Road shown generally on CPP 503154, Map 2553 Wittenoom 1:100 000 and Wittenoom Townsite Public Plan BL61(2) 06.20
Great Northern Highway (Current Roads 19 – 32)
The Great Northern Highway (including a 200m road corridor) shown generally as Lot 186 on DP 219303, Lot 187 on DP 219304, Lot 188 on DP 219305, Lot 189 on DP 219306, Lot 190 on DP 219307, Lot 191 on DP 219308, Lots 192 and 193 on DP 219309, Lot 194 on DP 219310, Lots 195 and 196 on DP 219311, Lots 197 to 199 on DP 219312, Lots 200 and 312 on DP 219313, Lot 313 on DP 219314, Lot 314 on DP 219315, Lots 315 and 316 on DP 219316 and Lot 3000 on DP 50859
Karijini Drive
Karijini Drive (including a 200m road corridor outside of Reserve 30082 and a 30m road corridor within Reserve 30082) shown generally as Lot 301 on DP 63350 (sheets 1 – 10), Lot 302 on DP 62473 and Lot 303 on DP 62474 (sheets 1 – 3)
Munjina / Roy Hill Road (Current Road 5, Historical Road 7)
Munjina / Roy Hill Road shown generally on CPP 502697, CPP 503154, CPP 503164 and Map SF 50–12 Roy Hill 1:250 000
Nanutarra / Munjina Road
(Current Roads 4 and 33, Historical Roads 9 – 10)Nanutarra / Munjina Road (including a 200m road corridor outside of town boundaries and a 100m road corridor within town boundaries) shown generally on DP 243189, CPP 502692, CPP 503154, Map SF 50–11 Mt Bruce 1:125 000 (dated Jan 1969) and Map 2553 Wittenoom 1:100 000. Road also known as the Nanutarra / Wittenoom Road and the Munjina / Wittenoom Road
Road No. 15057
(Current Road 17)Commencing at eastern boundary of Pastoral Lease 3114/974 and extending southeast and northeast through Reserve 30082 to terminate at Joffre Falls. Gazetted as a public street on 24 February 1978 and shown generally on Map SF 50–11 Mt Bruce 1:125 000 (dated Jan 1969)
Road No. 17957
(Current Road 18)Road adjacent to CT0207700889 (Auski Roadhouse) at the junction of the Great Northern Highway and Nanutarra / Munjina Road. Gazetted as a public street on 29 June 1990 and shown generally on DP 188611
Roebourne / Wittenoom Road (Current Roads 6 and 14, Historical Road 5)
Roebourne / Wittenoom Road shown generally on DP 170097, CPP 503154 and Map 2553 Wittenoom 1:100 000
Wittenoom Roads
(Current Roads 1 – 3, 9, 12, 13, 15 and 16, Historical Roads 1 – 3 and 6)Those roads, road widenings and rights of way in the townsite of Wittenoom shown generally on DPs 33612, 162974, 162975, 168772, 173044, 173515, 174937, 175021, 206101, 206102, 212103 and 213988
(b)The following public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) associated with the roads identified in sub-item 0 above:
Public Work
Location / Description
Tourist Information Bay
Located at the junction of the Great Northern Highway and Karijini Drive (approximately 1 hectare in size)
Water Bores
Located on or near the Great Northern Highway being:
(each of an area of 0.1 ha, the centre point of which is:)
Bore
Straight Linear Kilometre - distance in linear kilometres from the start of the road
Easting
Northing
3 1321 .60 50K0674210 UTM7490675 5 1347.50 50K0674228 UTM7514938 5B 1347.50 50K0674924 UTM7514946 5C 1347.50 50K0675046 UTM7514883 11 1373.40 50K0681426 UTM7538054 10 1383.10 50K0683405 UTM7547350 8A 1388.75 50K0684579 UTM7552644 Located on or near the Nanutarra / Munjina Road being:
Bore
Straight Linear Kilometre
Easting
Northing
362.10 2.8 360.10 50K626602 UTM7550066 75-10-90 3.80L 386.40 50K0647216 UTM7539198 H025 31.000 4.0 406.50 50K0666029 UTM7531624 Located on or near Karijini Drive being:
Bore
Straight Linear Kilometre
Easting
Northing
4B1 29.40 50K0649564 UTM7505390 5 21.70 50K0656244 UTM7501319
Schedule 3 Maps of the Determination Area
Schedule 4 Areas to which sections 47A & 47B apply (paragraph 7)
Sections 47, 47A or 47B of the Native Title Act apply to the following land and waters within the Determination Area, which are generally shown as hatched in green on the maps at Schedule 3:
S4.1 Section 47A
Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of prior interests, including those referred to below, in relation to those parts of the Determination Area the subject of the following interests has been disregarded:
Areas where section 47A applies
SL 3116/11923 (GE I144640)
Reserve 31428
S4.2 Section 47B
Section 47B of the Native Title Act applies with the effect that any extinguishment by the creation of prior interests in relation to those parts of the Determination Area referred to below has been disregarded:
Areas where section 47B applies
UCL 7
UCL 9
UCL 42
Schedule 5 Other Interests (Paragraph 0)
The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:
S5.1 Leases
The following leases and the rights and interests of the holders from time to time of those leases:
Lease No.
Summary / General Description of the Current Purpose
SL 3116/11923 (GE I144640)
Use and Benefit of Aboriginal Inhabitants
GE L021122
Installation or construction and the use, operation and maintenance of fibre-optic cables and associated repeater stations for rail radio communications
GE L021123
Construction, provision, extension, use, operation and maintenance of an accommodation village
GE L021124
Construction, provision, extension, use, operation and maintenance of a railway and associated access road
S5.2 Reserves
(a) The following reserves:
Reserve No.
Current Purpose
01329
Water and Stopping Place
01330
Water and Stopping Place
01470
Public Utility
01747
Watering Place for Travellers and Stock
22415
Government Requirements
22418
Public Utility
23863
Historical Site – Cemetery
30082
National Park
31428
Use and Benefit of Aborigines
50105
Airstrip
(b)The rights and interests of persons who have the care, control and management of the reserves identified in sub-item 0 above;
(c)The rights and interests of persons entitled to access and use the reserves identified in sub-item 0 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 sub-item 0 above, including but not limited to the lease dated 1 March 1988 granted by the Aboriginal Lands Trust to Mugarinya Community Association Inc. in respect of Reserve 31428.
S5.3 Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
Pastoral Lease
Station Name
3114/0465
Mt Florance
3114/0984
Marillana
3114/1047
Mulga Downs
3114/1173
Hooley
3114/1191
Juna Downs
398/763
Mulga Downs
S5.4 Water Interests
(a)The following licences and permits granted pursuant to the Rights in Water and Irrigation Act1914 (WA) and the rights and interests of the holders from time to time of those licences and permits:
(i) Licences to take groundwater (section 5)
Instrument ID
66333
89501
105695
110044
158473
158573
158838
159658
161141
161143
161814
164559
164672
165652
166205
166389
166549
166889
167112
167113
167115
167239
170358
170361
170749
171321
171469
171728
171847
171858
171866
172052
172106
172110
172221
172438
172439
172447
172861
173219
173579
173615
174096
174097
174098
174180
174412
174534
174541
174542
174613
177962
(ii) Licences to construct or alter wells (section 26D)
Instrument ID
171320
171357
171533
171857
171865
172096
172147
172151
172152
172664
172665
172666
172667
172859
172860
172871
172949
172952
173043
173254
174335
174588
174616
174652
174673
174674
174681
174712
174714
174817
174867
(iii) Permits to obstruct or interfere with the bed, banks or waters of a watercourse (section 17)
Instrument ID
167685
167840
168343
171385
171386
172597
173345
173346
173347
(b)The following proclamations made under the Rights in Water and Irrigation Act 1914 (WA) and the rights and interests comprised in, conferred under or in accordance with those proclamations:
(i) Pilbara Surface Water Area Proclamation 1965 (proclaimed on 13 August 1965); and
(ii) Pilbara Ground Water Area Proclamation 1965 (proclaimed on 12 February 1965 and varied by proclamation on 21 December 1990 and 2 May 1997)
S5.5 Mining Tenements
(a) The rights and interests of the holders from time to time of the following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA):
(i) Mining Leases
Tenement ID
M 4500629
M 4501086
M 4501087
M 4501088
M 4501089
M 4501090
M 4501091
M 4501092
M 4501093
M 4501094
M 4700069
M 4700070
M 4700071
M 4700206
M 4700281
M 4700283
M 4700284
M 4700289
M 4700290
M 4700291
M 4700292
M 4701353
M 4701354
M 4701355
M 4701356
M 4701359
M 4701360
M 4701414
M 4701421
M 4701433
M 4701434
(ii) Miscellaneous Licences
Tenement ID
L 4500147
L 4500222
L 4700050
L 4700055
L 4700059
L 4700070
L 4700071
L 4700072
L 4700073
L 4700074
L 4700075
L 4700076
L 4700077
L 4700078
L 4700092
L 4700095
L 4700097
L 4700098
L 4700099
L 4700100
L 4700104
L 4700108
L 4700113
L 4700114
L 4700115
L 4700118
L 4700173
L 4700182
L 4700183
L 4700223
L 4700321
L 4700336
L 4700361
L 4700375
L 4700378
L 4700420
L 4700422
L 4700554
L 4700559
L 4700560
L 4700569
L 4700643
L 4700696
(iii) General Purpose Leases
Tenement ID
G 4700012
G 4700013
G 4700014
G 4700015
G 4700016
G 4700017
G 4700018
G 4700019
G 4700020
(iv) Exploration Licences
Tenement ID
E 4501073
E 4501074
E 4502497
E 4502499
E 4502593
E 4502651
E 4502652
E 4502708
E 4502841
E 4502842
E 4503593
E 4504028
E 4504231
E 4700013
E 4700014
E 4700328
E 4700421
E 4700487
E 4700525
E 4700584
E 4700628
E 4700631
E 4700641
E 4700753
E 4701016
E 4701222
E 4701235
E 4701236
E 4701238
E 4701239
E 4701243
E 4701244
E 4701315
E 4701329
E 4701361
E 4701363
E 4701385
E 4701399
E 4701408
E 4701429
E 4701431
E 4701432
E 4701434
E 4701436
E 4701453
E 4701490
E 4701491
E 4701495
E 4701539
E 4701540
E 4701561
E 4701584
E 4701607
E 4701608
E 4701612
E 4701613
E 4701614
E 4701620
E 4701644
E 4701645
E 4701646
E 4701647
E 4701648
E 4701673
E 4701674
E 4701702
E 4701767
E 4701790
E 4701819
E 4701841
E 4701870
E 4701871
E 4701872
E 4701873
E 4701874
E 4701875
E 4701904
E 4701927
E 4701943
E 4702001
E 4702004
E 4702044
E 4702046
E 4702110
E 4702113
E 4702117
E 4702221
E 4702366
E 4702432
E 4702473
E 4702474
E 4702500
E 4702655
E 4702656
E 4702733
(v)Prospecting Licences
Tenement ID
P 4701421
P 4701539
P 4701540
P 4701555
P 4701598
P 4701612
P 4701613
P 4701614
P 4701615
P 4701616
P 4701617
P 4701618
P 4701636
(vi)Temporary Reserves
Tenement ID
TR 7005616
TR 7005621
TR 7005622
(b)The agreement as amended and ratified by the Iron Ore (Mt 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
AML 7000281
Mineral Lease
(c)The agreement as amended and ratified by the Iron Ore (Mount Newman) 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
AML 7000244
Mineral Lease
(d)The agreement as amended and ratified by the Iron Ore (Mount Bruce) 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
AML 7000252
Mineral Lease
(e)The agreement as amended and ratified by the Iron Ore (Marillana Creek) Agreement Act 1991 (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
AM 7000270
Mining Lease
(f)The agreement as amended and ratified by the Iron Ore (Hope Downs) Agreement Act 1992 (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
AM 7000282
Mining Lease
(g)The agreement as amended and ratified by the Iron Ore (Yandicoogina) Agreement Act 1996 (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
AM 7000274
Mining Lease
(h)The agreement as amended and ratified by the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (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
AL 7000001
Miscellaneous Licence
(i)The agreement as amended and ratified by the Iron Ore (FMG Chichester Pty Ltd) Agreement Act 2006 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement.
S5.6 Other
The following rights and interests:
(a)Valid or validated 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 legislation.
(b)Valid or validated rights or 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 force and operation of the Rights in Water and Irrigation Act1914 (WA) and the Land Administration Act 1997 (WA).
(c) 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 or other statutory authority;
as required and permitted by law in the performance of his or her statutory or common law duty.
(d)So far as confirmed pursuant to s. 212(2) of the Native Title Act and s. 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), any then existing public access to, and enjoyment of, the following places in the Determination Area:
(i)waterways;
(ii)beds and banks or foreshores of waterways;
(iii)stock routes; and
(iv)areas that were public places at the end of 31 December 1993.
(e)Powers of entry and other rights, obligations and powers by reason and force of the declarations as to Wittenoom and surrounding areas being contaminated sites pursuant to the relevant provisions of the Contaminated Sites Act 2003 (WA).
(f)Any other valid or validated:
(i)legal or equitable estate or interest in the land or waters; or
(ii)any other 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; or
(B) an estate or interest in the land or waters; or
(iii)restriction on the use of the land or waters, whether or not annexed to other land or waters.
Schedule 6 Title Holders (Paragraph 2)
The Banjima People are those Aboriginal persons who:
(a) are descendants of one or more of the following apical ancestors:
(i) Bob Tucker (Wirilimura);
(ii) Gawi;
(iii) Yinini (Arju);
(iv) Sam Coffin;
(v) George Marndu;
(vi) Whitehead;
(vii) Yidingganin;
(viii) Maggie (Nyukayi);
(ix) Yandikuji; and
(b)recognise themselves as a Banjima person, and are recognised by others as a Banjima person.
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