Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia
[2021] FCA 9
•19 January 2021
FEDERAL COURT OF AUSTRALIA
Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia [2021] FCA 9
File number:
WAD 90 of 2020
Judgment of:
COLVIN J
Date of judgment:
19 January 2021
Catchwords:
NATIVE TITLE - application to vary approved determination of native title pursuant to s 13(1)(b) of Native Title Act 1993 (Cth) - where change in law relevant to determination by subsequent decision of High Court - where Court noted agreement of parties to possibility of future variation if High Court appeal successful when approving determination - whether appropriate for proposed orders to be made - where statutory requirements addressed in decision of original determination - where variation application does not seek to depart from basis upon which original determination made - orders made in terms of proposed orders
Legislation:
Native Title Act 1993 (Cth) ss 13, 47B, 61, 80, 87, 87A, 94A, 225
Cases cited:
BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8; (2018) 258 FCR 521
Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548
Hobbs on behalf of the Ngurrara D2 Claim Group v State of Western Australia [2020] FCA 624
Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40
Tjungarrayi v Western Australia [2019] HCA 12
Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416
Division:
General Division
Registry:
Western Australia
National Practice Area:
Native Title
Number of paragraphs:
18
Date of hearing:
Determined on the papers
Solicitor for the Applicant:
Dr C Tan of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:
Ms A Warren of the State Solicitors Office
Representative for Alinta Energy (Chichester) Pty Ltd:
Mr R Slaughter
Solicitor for Telstra Corporation Limited:
Mr SE Singleton of King & Wood Mallesons
Solicitor for BHP Billiton Minerals Pty Ltd, BHP Iron Ore (Jimblebar) Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd, Mitsui-Itochu Iron Pty Ltd, BHP Billiton Direct Reduced Iron Pty Ltd and Pilbara Pastoral Company Pty Limited:
Ms S Audeyev of King & Wood Mallesons
Solicitor for Hamersley Exploration Pty Limited, Hamersley Iron Pty Limited, Hamersley Iron‑Yandi Pty Limited, Hamersley Resources Limited, Hamersley WA Pty Ltd, Hope Downs Iron Ore Pty Ltd, Mitsui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Limited, Nippon Steel Raw Materials Australia Pty Ltd, North Mining Limited and Robe River Mining Co Pty Ltd:
Mr A Gay of Ashurst Australia
Representative for John Albert Hine and Jonathon Barry Hine:
Mr JA Hine
Solicitor for Heather Rosemary Foote and Herbert Nicholas Foote:
Mr M Gregory of Castledine Gregory
Solicitor for Kimberly Quarry Pty Ltd:
Ms AV Macmaster of All Mining Legal Pty Ltd
ORDERS
WAD 90 of 2020
BETWEEN:
KARLKA NYIYAPARLI ABORIGINAL CORPORATION RNTBC
Applicant
AND:
STATE OF WESTERN AUSTRALIA
Respondent (and others named in the Schedule)
order made by:
COLVIN J
DATE OF ORDER:
19 january 2021
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
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.
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.
Latitude (South)
Longitude (East)
23.799776
119.730443
23.517542
119.659365
23.586534
119.564249
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.
Latitude (South)
Longitude (East)
23.063501
119.155112
23.003843
119.165211
23.003396
119.163741
23.001105
119.153405
23.000125
119.146432
22.999049
119.143061
22.997148
119.136689
22.995623
119.130872
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.
Latitude (South)
Longitude (East)
22.332946
119.241060
22.264352
119.938288
22.291786
120.176544
22.389190
120.828284
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.
Latitude (South)
Longitude (East)
23.003843
119.165211
23.003396
119.163741
23.001105
119.153405
23.000125
119.146432
22.999049
119.143061
22.997148
119.136689
22.995623
119.130872
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.
Latitude (South)
Longitude (East)
23.799776
119.730443
23.517542
119.659365
23.586534
119.564249
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):
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:
Reserve No.
Name
Reserve 11463
Well 61
Reserve 41265
Jigalong
Reserve 42835
Parnpajinya
(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:
Lease No.
Name
PL N049404
Walagunya Station
PL N049420
Mount Divide Station
PL N049546
Robertson Range Station
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:
Latitude (South)
Longitude (East)
23.055741
119.167059
23.077529
119.167926
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:
Latitude (South)
Longitude (East)
23.162897
119.572377
23.207231
119.555638
23.205734
119.537131
23.187337
119.538872
23.181974
119.472865
23.160947
119.486818
23.183385
119.544832
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:
Latitude (South)
Longitude (East)
23.070603
119.608190
23.082976
119.602235
23.121108
119.586613
23.116114
119.573910
23.137363
119.564155
23.115128
119.507541
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:
Latitude (South)
Longitude (East)
23.178920
119.734410
23.192118
119.728054
23.199739
119.720011
23.205435
119.708752
23.204508
119.688881
23.205303
119.676429
23.205832
119.662123
23.204508
119.651525
23.201593
119.636424
23.199077
119.624634
23.199209
119.611122
23.202653
119.600922
23.210734
119.589265
23.217225
119.575886
23.225113
119.564712
23.208095
119.566323
23.198679
119.564626
23.186095
119.585688
23.180796
119.604367
23.179520
119.614859
23.182685
119.622950
23.174655
119.626638
23.192299
119.671590
23.181494
119.676552
23.168045
119.724675
23.197239
119.821864
23.181489
119.829449
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:
Latitude (South)
Longitude (East)
23.274091
119.593396
23.274170
119.593068
23.274241
119.592777
23.274410
119.592110
23.274484
119.591799
23.274525
119.591614
23.274560
119.591441
23.274590
119.591276
23.274615
119.591118
23.274632
119.590997
23.274647
119.590874
23.274673
119.590619
23.274693
119.590350
23.274708
119.590061
23.274717
119.589787
23.274722
119.589480
23.274727
119.588353
23.274727
119.588043
23.274721
119.587718
23.274709
119.587376
23.274690
119.587009
23.274670
119.586693
23.274645
119.586339
23.274556
119.585205
23.274526
119.584807
23.274501
119.584433
23.274482
119.584094
23.274469
119.583786
23.274460
119.583493
23.274456
119.583213
23.274457
119.582944
23.274460
119.582788
23.274465
119.582625
23.274472
119.582453
23.274482
119.582270
23.274504
119.581926
23.274566
119.581084
23.274581
119.580851
23.274592
119.580641
23.274600
119.580414
23.274605
119.580201
23.274605
119.579999
23.274602
119.579805
23.274597
119.579707
23.274590
119.579604
23.274579
119.579496
23.274566
119.579381
23.274534
119.579156
23.274466
119.578734
23.274440
119.578563
23.274417
119.578388
23.274401
119.578231
23.274394
119.578140
23.274390
119.578053
23.274387
119.577969
23.274388
119.577887
23.274390
119.577808
23.274395
119.577731
23.274402
119.577656
23.274412
119.577583
23.274431
119.577470
23.274456
119.577352
23.274487
119.577229
23.274524
119.577098
23.274559
119.576983
23.274601
119.576856
23.274751
119.576427
23.274806
119.576264
23.274987
119.575711
23.275091
119.575399
23.275192
119.575107
23.275288
119.574846
23.275389
119.574590
23.275490
119.574352
23.275541
119.574238
23.275592
119.574129
23.275644
119.574022
23.275697
119.573918
23.275765
119.573792
23.275840
119.573662
23.275922
119.573528
23.276014
119.573387
23.276101
119.573260
23.276199
119.573119
23.276558
119.572622
23.276701
119.572419
23.276844
119.572207
23.276907
119.572107
23.276966
119.572012
23.277055
119.571861
23.277146
119.571701
23.277240
119.571532
23.277339
119.571350
23.277517
119.571009
23.277940
119.570188
23.278055
119.569968
23.278161
119.569772
23.278343
119.569444
23.278536
119.569104
23.278743
119.568747
23.278967
119.568367
23.279164
119.568037
23.279386
119.567671
23.280382
119.566037
23.280638
119.565611
23.280866
119.565224
23.281094
119.564832
23.281304
119.564460
23.281502
119.564104
23.281687
119.563759
23.281886
119.563380
23.282089
119.562983
23.282301
119.562564
23.282524
119.562113
23.282724
119.561704
23.282945
119.561248
23.283877
119.559304
23.284527
119.557972
23.284770
119.557471
23.284903
119.557189
23.285026
119.556926
23.285141
119.556675
23.285248
119.556434
23.285400
119.556099
23.285697
119.555465
23.285816
119.555208
23.285935
119.554939
23.286038
119.554697
23.286094
119.554556
23.286147
119.554419
23.286195
119.554286
23.286240
119.554156
23.286281
119.554029
23.286319
119.553904
23.286354
119.553781
23.286385
119.553660
23.286438
119.553432
23.286487
119.553202
23.286530
119.552969
23.286569
119.552734
23.286602
119.552498
23.286629
119.552262
23.286652
119.552026
23.286669
119.551792
23.286676
119.551645
23.286679
119.551495
23.286680
119.551341
23.286677
119.551184
23.286670
119.551023
23.286661
119.550856
23.286647
119.550685
23.286631
119.550506
23.286613
119.550346
23.286593
119.550178
23.286543
119.549812
23.286490
119.549466
23.286370
119.548714
23.286324
119.548413
23.286256
119.547961
23.286183
119.547514
23.286107
119.547074
23.286026
119.546639
23.285941
119.546210
23.285852
119.545786
23.285759
119.545368
23.285661
119.544956
23.285611
119.544758
23.285549
119.544539
23.285485
119.544324
23.285316
119.543778
23.285269
119.543620
23.285229
119.543477
23.285187
119.543317
23.285150
119.543166
23.285119
119.543023
23.285092
119.542884
23.285057
119.542673
23.285025
119.542458
23.284997
119.542239
23.284972
119.542017
23.284952
119.541790
23.284935
119.541561
23.284921
119.541329
23.284912
119.541093
23.284900
119.540659
23.284898
119.540498
23.284899
119.540352
23.284903
119.540209
23.284910
119.540075
23.284920
119.539948
23.284933
119.539826
23.284942
119.539754
23.284955
119.539680
23.284971
119.539604
23.284989
119.539523
23.285011
119.539435
23.285038
119.539339
23.285155
119.538950
23.285202
119.538779
23.285225
119.538686
23.285244
119.538598
23.285259
119.538515
23.285271
119.538434
23.285285
119.538296
23.285295
119.538150
23.285301
119.537996
23.285302
119.537830
23.285300
119.537691
23.285295
119.537537
23.285267
119.536960
23.285258
119.536719
23.285244
119.535850
23.285239
119.535641
23.285232
119.535453
23.285221
119.535247
23.285208
119.535055
23.285191
119.534873
23.285171
119.534700
23.285156
119.534559
23.285121
119.534182
23.285108
119.534071
23.285092
119.533973
23.285070
119.533863
23.285044
119.533763
23.285012
119.533671
23.284995
119.533628
23.284976
119.533586
23.284939
119.533512
23.284899
119.533440
23.284859
119.533371
23.284816
119.533306
23.284773
119.533245
23.284729
119.533189
23.284684
119.533137
23.284638
119.533090
23.284600
119.533055
23.284560
119.533020
23.284516
119.532986
23.284469
119.532952
23.284420
119.532919
23.284368
119.532886
23.284256
119.532824
23.284192
119.532792
23.284124
119.532766
23.284053
119.532743
23.283979
119.532725
23.283902
119.532710
23.283821
119.532700
23.283736
119.532694
23.283647
119.532692
23.283562
119.532693
23.283473
119.532698
23.283378
119.532706
23.283276
119.532718
23.283091
119.532744
23.282750
119.532801
23.282619
119.532821
23.282478
119.532839
23.282149
119.532869
23.282001
119.532885
23.281922
119.532897
23.281850
119.532910
23.281782
119.532924
23.281719
119.532939
23.281649
119.532960
23.281585
119.532984
23.281524
119.533010
23.281468
119.533039
23.281416
119.533071
23.281367
119.533106
23.281323
119.533144
23.281282
119.533185
23.281249
119.533225
23.281215
119.533272
23.281182
119.533324
23.281093
119.533473
23.281064
119.533518
23.281036
119.533555
23.280949
119.533668
23.280901
119.533725
23.280852
119.533774
23.280829
119.533793
23.280806
119.533810
23.280772
119.533829
23.280734
119.533843
23.280692
119.533852
23.280645
119.533857
23.280600
119.533857
23.280550
119.533855
23.280360
119.533832
23.280283
119.533826
23.280242
119.533826
23.280205
119.533828
23.280171
119.533833
23.280140
119.533841
23.280091
119.533857
23.280042
119.533877
23.279991
119.533902
23.279937
119.533932
23.279839
119.533995
23.279605
119.534158
23.279540
119.534198
23.279481
119.534232
23.279388
119.534278
23.279174
119.534379
23.279078
119.534426
23.279006
119.534465
23.278932
119.534510
23.278856
119.534560
23.278775
119.534617
23.278703
119.534672
23.278623
119.534734
23.278347
119.534960
23.278237
119.535047
23.278123
119.535132
23.278019
119.535203
23.277958
119.535241
23.277898
119.535275
23.277840
119.535305
23.277783
119.535332
23.277726
119.535355
23.277670
119.535376
23.277614
119.535393
23.277558
119.535406
23.277483
119.535420
23.277404
119.535432
23.277321
119.535441
23.277234
119.535448
23.277143
119.535452
23.277045
119.535453
23.276941
119.535453
23.276825
119.535450
23.276760
119.535446
23.276689
119.535439
23.276367
119.535394
23.276290
119.535385
23.276221
119.535381
23.276010
119.535369
23.275897
119.535367
23.275843
119.535368
23.275793
119.535372
23.275745
119.535377
23.275701
119.535385
23.275656
119.535396
23.275611
119.535411
23.275566
119.535430
23.275521
119.535452
23.275476
119.535478
23.275431
119.535508
23.275385
119.535542
23.275338
119.535580
23.275261
119.535651
23.275176
119.535736
23.275098
119.535821
23.274918
119.536023
23.274830
119.536116
23.274750
119.536194
23.274675
119.536259
23.274259
119.536600
23.273998
119.536809
23.273754
119.536996
23.273640
119.537081
23.273529
119.537160
23.273402
119.537251
23.273108
119.537468
23.272974
119.537564
23.272832
119.537662
23.272703
119.537745
23.272632
119.537788
23.272562
119.537828
23.272494
119.537864
23.272428
119.537897
23.272362
119.537927
23.272298
119.537954
23.272234
119.537977
23.272171
119.537999
23.272103
119.538018
23.272031
119.538033
23.271955
119.538045
23.271873
119.538055
23.271791
119.538061
23.271699
119.538065
23.271338
119.538069
23.271184
119.538076
23.271101
119.538082
23.271025
119.538091
23.270953
119.538104
23.270884
119.538118
23.270669
119.538171
23.270540
119.538207
23.270479
119.538227
23.270423
119.538248
23.270371
119.538271
23.270322
119.538295
23.270267
119.538328
23.270208
119.538371
23.270142
119.538426
23.270008
119.538551
23.269948
119.538602
23.269884
119.538652
23.269853
119.538671
23.269823
119.538689
23.269789
119.538706
23.269753
119.538722
23.269716
119.538736
23.269677
119.538748
23.269636
119.538759
23.269594
119.538767
23.269504
119.538779
23.269413
119.538785
23.269311
119.538786
23.269205
119.538782
23.268913
119.538766
23.268826
119.538765
23.268748
119.538766
23.268660
119.538772
23.268580
119.538783
23.268506
119.538800
23.268437
119.538821
23.268369
119.538850
23.268299
119.538886
23.268228
119.538931
23.268154
119.538984
23.268090
119.539034
23.268020
119.539094
23.267795
119.539298
23.267712
119.539371
23.267630
119.539437
23.267555
119.539493
23.267476
119.539542
23.267401
119.539582
23.267363
119.539599
23.267326
119.539613
23.267289
119.539625
23.267252
119.539634
23.267201
119.539644
23.267144
119.539651
23.267077
119.539656
23.266869
119.539665
23.266803
119.539672
23.266745
119.539683
23.266663
119.539703
23.266579
119.539729
23.266492
119.539761
23.266402
119.539799
23.266309
119.539842
23.266212
119.539891
23.266108
119.539948
23.265995
119.540014
23.265922
119.540060
23.265849
119.540111
23.265773
119.540168
23.265694
119.540233
23.265627
119.540292
23.265553
119.540358
23.265240
119.540650
23.265166
119.540717
23.265097
119.540775
23.264944
119.540899
23.264776
119.541034
23.263993
119.541646
23.263806
119.541794
23.263640
119.541929
23.263406
119.542126
23.263147
119.542349
23.262904
119.542564
23.262338
119.543068
23.262061
119.543311
23.261808
119.543527
23.261575
119.543720
23.261406
119.543851
23.261216
119.543992
23.261021
119.544129
23.260498
119.544492
23.260344
119.544602
23.260207
119.544704
23.260054
119.544823
23.259915
119.544939
23.259786
119.545053
23.259667
119.545168
23.259557
119.545280
23.259448
119.545397
23.259339
119.545517
23.259231
119.545641
23.259124
119.545770
23.259018
119.545902
23.258912
119.546038
23.258807
119.546178
23.258704
119.546321
23.258601
119.546469
23.258499
119.546620
23.258398
119.546774
23.258298
119.546933
23.258200
119.547094
23.258102
119.547259
23.258006
119.547427
23.257927
119.547572
23.257848
119.547719
23.257771
119.547869
23.257696
119.548023
23.257622
119.548179
23.257550
119.548338
23.257479
119.548500
23.257409
119.548665
23.257341
119.548832
23.257275
119.549002
23.257210
119.549175
23.257147
119.549350
23.257085
119.549527
23.257026
119.549706
23.256968
119.549888
23.256912
119.550072
23.256855
119.550265
23.256802
119.550452
23.256752
119.550633
23.256707
119.550809
23.256664
119.550981
23.256624
119.551150
23.256587
119.551314
23.256554
119.551476
23.256523
119.551635
23.256495
119.551791
23.256471
119.551944
23.256449
119.552094
23.256430
119.552242
23.256414
119.552387
23.256401
119.552530
23.256390
119.552670
23.256383
119.552843
23.256381
119.553019
23.256386
119.553200
23.256398
119.553384
23.256416
119.553573
23.256440
119.553768
23.256472
119.553970
23.256509
119.554180
23.256545
119.554354
23.256585
119.554537
23.256631
119.554728
23.256682
119.554934
23.256784
119.555314
23.257039
119.556230
23.257104
119.556476
23.257160
119.556698
23.257215
119.556931
23.257262
119.557149
23.257302
119.557358
23.257336
119.557558
23.257387
119.557902
23.257441
119.558286
23.257613
119.559589
23.257681
119.560086
23.257751
119.560571
23.257917
119.561685
23.257992
119.562210
23.258172
119.563468
23.258250
119.564042
23.258287
119.564341
23.258319
119.564621
23.258347
119.564887
23.258370
119.565142
23.258377
119.565242
23.258381
119.565354
23.258383
119.565474
23.258384
119.565823
23.258387
119.565932
23.258392
119.566029
23.258402
119.566139
23.258415
119.566241
23.258433
119.566336
23.258456
119.566426
23.258489
119.566536
23.258528
119.566646
23.258572
119.566757
23.258621
119.566867
23.258674
119.566975
23.258731
119.567081
23.258791
119.567184
23.258854
119.567284
23.258886
119.567329
23.258921
119.567375
23.258961
119.567421
23.259004
119.567468
23.259099
119.567563
23.259300
119.567750
23.259384
119.567830
23.259427
119.567875
23.259467
119.567919
23.259502
119.567961
23.259535
119.568003
23.259577
119.568061
23.259617
119.568122
23.259657
119.568185
23.259696
119.568252
23.259734
119.568321
23.259772
119.568394
23.259809
119.568471
23.259846
119.568553
23.259905
119.568693
23.259967
119.568852
23.260024
119.569005
23.260154
119.569365
23.260220
119.569539
23.260283
119.569695
23.260344
119.569834
23.260383
119.569915
23.260428
119.570003
23.260482
119.570103
23.260647
119.570398
23.260697
119.570493
23.260739
119.570579
23.260784
119.570679
23.260820
119.570773
23.260849
119.570865
23.260871
119.570953
23.260883
119.571024
23.260891
119.571098
23.260894
119.571177
23.260893
119.571261
23.260888
119.571348
23.260879
119.571444
23.260831
119.571823
23.260822
119.571908
23.260815
119.571983
23.260811
119.572069
23.260811
119.572148
23.260815
119.572223
23.260822
119.572293
23.260835
119.572362
23.260851
119.572432
23.260872
119.572502
23.260898
119.572573
23.260928
119.572644
23.260963
119.572717
23.261002
119.572791
23.261047
119.572867
23.261087
119.572930
23.261130
119.572994
23.261230
119.573133
23.261332
119.573265
23.261579
119.573575
23.261697
119.573733
23.261752
119.573810
23.261801
119.573884
23.261846
119.573955
23.261885
119.574024
23.261920
119.574090
23.261952
119.574156
23.261979
119.574220
23.262003
119.574284
23.262024
119.574347
23.262041
119.574410
23.262054
119.574473
23.262064
119.574535
23.262073
119.574619
23.262080
119.574707
23.262085
119.574799
23.262088
119.574896
23.262089
119.574998
23.262087
119.575107
23.262077
119.575357
23.262068
119.575469
23.262051
119.575593
23.262032
119.575711
23.261982
119.575986
23.261961
119.576119
23.261947
119.576239
23.261941
119.576348
23.261940
119.576501
23.261945
119.576658
23.261956
119.576820
23.261973
119.576986
23.261997
119.577158
23.262026
119.577334
23.262062
119.577517
23.262105
119.577706
23.262157
119.577920
23.262201
119.578079
23.262223
119.578151
23.262246
119.578219
23.262270
119.578283
23.262294
119.578343
23.262323
119.578406
23.262360
119.578474
23.262398
119.578537
23.262489
119.578682
23.262531
119.578754
23.262565
119.578820
23.262591
119.578882
23.262614
119.578948
23.262633
119.579018
23.262649
119.579094
23.262663
119.579176
23.262672
119.579248
23.262680
119.579331
23.262700
119.579605
23.262709
119.579707
23.262720
119.579806
23.262735
119.579894
23.262813
119.580333
23.262836
119.580452
23.262860
119.580557
23.262887
119.580667
23.262917
119.580768
23.262949
119.580862
23.262983
119.580951
23.263006
119.581000
23.263031
119.581051
23.263060
119.581102
23.263092
119.581157
23.263164
119.581266
23.263316
119.581483
23.263379
119.581575
23.263440
119.581675
23.263489
119.581767
23.263545
119.581885
23.263598
119.582010
23.263649
119.582141
23.263698
119.582278
23.263746
119.582423
23.263792
119.582576
23.263838
119.582738
23.263883
119.582913
23.263908
119.583027
23.263931
119.583155
23.263949
119.583279
23.263986
119.583572
23.264009
119.583716
23.264035
119.583850
23.264050
119.583910
23.264065
119.583968
23.264079
119.584012
23.264095
119.584057
23.264136
119.584155
23.264180
119.584247
23.264295
119.584476
23.264324
119.584540
23.264349
119.584598
23.264373
119.584662
23.264393
119.584724
23.264407
119.584782
23.264417
119.584840
23.264425
119.584916
23.264429
119.584997
23.264429
119.585083
23.264425
119.585174
23.264417
119.585269
23.264404
119.585372
23.264388
119.585487
23.264364
119.585631
23.264353
119.585687
23.264338
119.585746
23.264320
119.585807
23.264298
119.585872
23.264252
119.585992
23.264133
119.586273
23.264105
119.586347
23.264081
119.586414
23.264061
119.586484
23.264045
119.586551
23.264034
119.586615
23.264027
119.586676
23.264024
119.586766
23.264027
119.586860
23.264036
119.586960
23.264051
119.587067
23.264069
119.587166
23.264093
119.587277
23.264197
119.587717
23.264234
119.587874
23.264280
119.588048
23.264328
119.588212
23.264444
119.588598
23.264498
119.588789
23.264542
119.588961
23.264628
119.589346
23.264669
119.589516
23.264694
119.589607
23.264720
119.589692
23.264746
119.589772
23.264774
119.589846
23.264824
119.589973
23.264866
119.590075
23.264907
119.590167
23.264946
119.590250
23.264986
119.590329
23.265026
119.590401
23.265067
119.590468
23.265109
119.590530
23.265141
119.590573
23.265178
119.590616
23.265219
119.590659
23.265265
119.590701
23.265315
119.590744
23.265371
119.590789
23.265603
119.590959
23.265699
119.591035
23.265749
119.591079
23.265794
119.591122
23.265834
119.591164
23.265870
119.591208
23.265932
119.591292
23.265992
119.591383
23.266052
119.591482
23.266111
119.591589
23.266169
119.591703
23.266228
119.591829
23.266289
119.591969
23.266360
119.592139
23.266380
119.592192
23.266400
119.592248
23.266418
119.592309
23.266435
119.592375
23.266464
119.592500
23.266529
119.592813
23.266549
119.592899
23.266570
119.592974
23.266596
119.593054
23.266624
119.593128
23.266654
119.593194
23.266688
119.593255
23.266724
119.593310
23.266765
119.593365
23.266812
119.593419
23.266866
119.593475
23.266918
119.593525
23.266978
119.593578
23.267201
119.593763
23.267289
119.593841
23.267335
119.593884
23.267376
119.593925
23.267413
119.593965
23.267448
119.594005
23.267486
119.594054
23.267524
119.594107
23.267563
119.594164
23.267603
119.594228
23.267673
119.594348
23.267694
119.594387
23.267694
119.594217
Then southerly back to the commencement point.
(f) Jimblebar Creek
All those lands and waters commencing at the intersection of a northern boundary of Pastoral Lease N049932 (Sylvania) with Longitude 120.216343 East; Then westerly along the northern boundary of that pastoral lease to Longitude 120.160604 East; Then northerly through the following coordinate positions:
Latitude (South)
Longitude (East)
23.362113
120.160593
23.289470
120.160593
Then northwesterly to a southeastern corner of the southern severance of Pastoral Lease N049724 (Ethel Creek) at approximate Latitude 23.266514 South, Longitude 120.157687 East; Then northerly and easterly along the boundaries of that pastoral lease to Longitude 120.216406 East; Then southerly back to the commencement point.
Excluding:
(i) That part of the Nyiyaparli (WAD6280 of 1998) claim area which was covered by mining lease AM 7000266 (M266SA) as at the date the Nyiyaparli claim was filed on 29 September 1998.
(ii) For the avoidance of doubt, Road 01 (Historical), being part of the old alignment of the Great Northern Highway as described in Schedule Four, clause 4.
Note in respect of technical descriptions in Schedule Three, clause 2:
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 29 March 2018.
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared By: Graphic Services (Landgate) 7 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 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 5 of this Schedule), are generally shown as shaded in pink on the maps in Schedule Two:
Freehold
Grants of estates in fee simple within the Determination Area including the following:
Freehold No.
CT0110700649
CT0128700662
CT0129200383
CT0129200384
CT0150300791
CT0218200337
CT0284500317
CT0284500318
Reserves
Reserve No.
Current / Last Purpose
17562
Water
17563
Water Supply and Battery Site
37344
Quarry Purposes
41155
Repeater Station Site
41702
Repeater Station Site
42274
Repeater Station Site
43076
Regenerator Site
43277
Regenerator Site
44274
Rubbish Disposal Site
44387
Recreation (Gun Club and Rifle Club)
Leases
(a) Grants of the following leases, subject to clause 3(b) below in respect of special leases GE N088235 (formerly 3116/03684), 3116/03685 and 3116/03686:
Lease No.
Current / Last Purpose
GE I123595
Quarry for the production of railway ballast a stockpile area for the storage of the said railway ballast and other materials and equipment and a site for maintenance and construction workers' accommodation workshops and ancillary facilities for the requirements of the Lessees in the operation and maintenance of the railway constructed pursuant to the Agreement
GE I126374
Laying out development construction and provision of a water supply and ancillary installations and facilities for drawing conserving reticulating and supplying water for the requirements of the Lessees in the operation and maintenance of the railway constructed pursuant to the Agreement
GE I126948
Railway spur
GE I154279 (formerly 3116/03687)
Construction development maintenance use and operation of
a railway and a service road between the mine and the port
(ii) all works facilities and services ancillary to the railway and service road referred to above
GE I163682
Construction development maintenance use and operation of radio communications and ancillary installations and facilities
GE J717063
The final design, construction, use, operation and maintenance of a rail spur line and associated access road from the Mining Lease to the West Angelas Spur Line together with associated infrastructure as detailed in the Approved Proposals and for ancillary and incidental purposes thereto including in accordance with the Approved Proposals the construction, use, operation and maintenance of borrow pits for the taking of soil and of water bores
GE J717064
The final design, construction, use and maintenance of a private access road from the Great Northern Highway to the Mining Lease to service the mining operations area and permanent accommodation village and for ancillary and incidental purposes thereto including in accordance with the Approved Proposals the construction, use, operation and maintenance of borrow pits and of water bores
GE N088235 (formerly 3116/03684)
The construction development maintenance use and operation of -
(i) a water supply for supplying water to the Mineral Lease and to the other areas demised to the Lessees in the vicinity of the Mineral Lease; and
(ii) all installations and facilities for conserving drawing reticulating and supplying water to the Mineral Lease and to the other areas demised to the Lessees in the vicinity of the Mineral Lease ancillary to all or any of the improvements referred to in paragraph (i)
GE N105667 (formerly 3116/04028)
Construction development maintenance use and operation of radio communications and ancillary installations and facilities
3116/02717
Grazing
3116/03683
Construction development maintenance use and operation of an aerodrome and ancillary installations and facilities
3116/03685
Construction development maintenance use and operation of -
(i) the greenbelt roads and ancillary facilities and amenities for the mine townsite and the town common surrounding the mine townsite
(ii) the control by the Lessees of any undesirable persons or elements who or which are or may be attracted to or in the vicinity of the said townsite or to any other operations in the vicinity thereof;
(iii) all works facilities and improvements ancillary to all or any of the matters referred to in paragraphs (i) and (ii) of this sub-clause
3116/03686
Construction development maintenance use and operation of -
(i) a townsite for the purpose of the Lessees' operations contemplated in the Agreement;
(ii) without limiting the foregoing the townsite, housing, shopping facilities, health, educational, social, recreational and welfare services, amenities, benefits and facilities, communication facilities and other residential and community services, utilities and facilities for the mine townsite;
(iii) the railway and service road constructed pursuant to the Agreement;
(iv) all works facilities and services ancillary to all or any of the improvements and matters referred to in paragraphs (i), (ii) and (iii)
(b) In respect of special leases GE N088235 (formerly 3116/03684), 3116/03685 and 3116/03686 listed above, the relevant area is the area originally granted (meaning, in the case of GE N088235 (formerly 3116/03684), the area originally granted under special lease 3116/03684 for the avoidance of doubt), but omitting:
(i) Reserve 42835 (Parnpajinya), being an area to which s 47A of the Native Title Act applies as set out in Schedule Five, clause 1; and
(ii) The following areas of unallocated Crown land, being areas to which s 47B of the Native Title Act applies as set out in Schedule Five, clause 2:
Area
Description / Location
UCL 002
Lot 401 on DP 71872
UCL 005
Lot 402 on DP 71872
UCL 021
Lot 370 on DP 71869
UCL 022
Lot 349 on DP 74327
UCL 024
Lot 352 on DP 74327
UCL 026
Lot 353 on DP 74327
UCL 029
Lot 369 on DP 71870
UCL 030
Lot 510 on DP 73722
UCL 031
Lot 300 on DP 65155
UCL 032
Lot 510 on DP 73722
UCL 033
Lot 301 on DP 47460
UCL 034
Lot 348 on DP 71871
UCL 036
Lot 552 on DP 71668
UCL 039
Lot 1789 on DP 216374
UCL 043
Lot 72 on DP 216352, except to the extent covered by mineral lease AML700244 as at 29 September 1998
UCL 049
Lot 550 on DP 71666
UCL 050
Lot 1500 on DP 215129
UCL 052
Lot 300 on DP 64866
UCL 055
Lot 1976 on DP 216852
UCL 057
Lot 551 on DP 71667
UCL 093
Area bounded by Road 010, UCL 023 (Lot 2354 on DP 218837), general lease GE K858923, special lease 3116/03684, general lease GE I150289 and reserves 38674 and 39117, being the area of unallocated Crown land generally south of UCL 029 (Lot 369 on DP 71870) and UCL 032 (Lot 510 on DP 73722)
UCL 094
Area bounded by Road 010 and reserves 38674 and 39117
Roads
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:
MapInfo ID.
Description
Shown in
ROAD 084
Road No. 3857 (part of Marble Bar Road)
Roy Hill 1:250,000 cadastral map dated April 1968
Government Gazette dated 10 June 1910, 1 April 1977 and 14 September 1979
ROAD 085
Road No. 14501
Original plan 11376
Government Gazette dated 3 March 1972
ROAD 086
Road No. 15053 (part of Marble Bar Road)
Roy Hill 1:250,000 (250) Public Plan prepared 4 October 1988
Government Gazette dated 19 July 1974
ROAD 102
Road No. 4274
Public Plan 503168 (99/300 No.3) cancelled on 8 February 1923
Public Plan 503101 (90/300 No.2) cancelled on 1 June 1916
Public Plan 506518 (80/300 No.2) cancelled on 31 October 1916
ROAD 103
Jigalong Mission Road
Public Plan 503111 (99/300 No.8) cancelled on 20 January 1971
Public Plan 506520A (80/300 No.5) cancelled on 24 April 1946
Government Gazette dated 10 March 1944
ROAD 104
Road No. 9170 (Noreena-Roy Hill Road)
Public Plan 503165 (98/300 No.8) cancelled on 16 July 1965
Government Gazette dated 3 and 10 March 1933
ROAD 105
Road No. 9169 (Munjina-Roy Hill Road)
Public plan 503165 (98/300 No.8) cancelled on 16 July 1965
Government Gazette dated 3 and 10 March 1933
ROAD 106
Road No. 8172
Public plan 503111 (91/300 No.8) cancelled on 20 January 1971
Public Plan 506523 (80/300) cancelled on 20 January 1972
Government Gazette dated 6 and 13 September 1929, 14 December 1951 and 18 January 1952
ROAD 107
Road No. 6588
Public Plan 503111 (91/300 No.8) cancelled on 20 January 1971
Public Plan 506523 (80/300) cancelled on 20 January 1972
Government Gazette dated 24 February 1922 and 3 March 1922
ROAD 01 (Historical)
Part of old alignment of Great Northern Highway
Public Plan 503111 (91/300 No.8) cancelled on 20 January 1971
Robertson SF51-13 topographic map published 1965
Roberston (250) Public Plan dated 1991
ROAD 13 (Historical)
Road No. 3857
Public Plan 503160 (98/300 No.4) cancelled on 6 May 1921
Government Gazette dated 10 June 1910, 1 April 1977 and 14 September 1979
ROAD 14 (Historical)
Weelarrana-Ethel Creek Road (part of old alignment of Great Northern Highway)
Public Plan 503111 (91/300 No.8) cancelled on 20 January 1971
Government Gazette dated 10 March 1944 and 27 November 1987
ROAD 15 (Historical)
Road No. 8172
Public Plan 503109 (91/300 No.6) cancelled on 7 September 1937
Government Gazette dated 6 September 1929
Public Works
Any other 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 land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act), and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 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)
Section 47A Areas
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:
(a) The following reserves for the purpose of 'use and benefit of Aborigines', subject to clause 1(b) below in relation to Reserve 41265:
Reserve No.
Name
Reserve 11463
Well 61
Reserve 41265
Jigalong
Reserve 42835
Parnpajinya
(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 Five and paragraph 9 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:
Lease No.
Name
PL N049404
Walagunya Station
PL N049420
Mount Divide Station
PL N049546
Robertson Range Station
Section 47B Areas
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 s 47B(1)(b)(i) or (ii) or subject to a resumption process as described in s 47B(1)(b)(iii) of the Native Title Act when the relevant native title determination application was made) is to be disregarded:
Area
Description / Location
Wonmunna
As described in Schedule Three, clause 2(a)
Coondiner Creek
As described in Schedule Three, clause 2(b)
Karlka (Kalgan Creek)
As described in Schedule Three, clause 2(c)
Caramulla Creek
As described in Schedule Three, clause 2(d)
Mintaramunya (Mount Newman)
As described in Schedule Three, clause 2(e)
Jimblebar Creek
As described in Schedule Three, clause 2(f)
UCL 002
Lot 401 on DP 71872
UCL 005
Lot 402 on DP 71872
UCL 021
Lot 370 on DP 71869
UCL 022
Lot 349 on DP 74327
UCL 024
Lot 352 on DP 74327
UCL 026
Lot 353 on DP 74327
UCL 029
Lot 369 on DP 71870
UCL 030
Lot 510 on DP 73722
UCL 031
Lot 300 on DP 65155
UCL 032
Lot 510 on DP 73722
UCL 033
Lot 301 on DP 47460
UCL 034
Lot 348 on DP 71871
UCL 036
Lot 552 on DP 71668
UCL 039
Lot 1789 on DP 216374
UCL 043
Lot 72 on DP 216352, except to the extent covered by mineral lease AML700244 as at 29 September 1998
UCL 049
Lot 550 on DP 71666
UCL 050
Lot 1500 on DP 215129
UCL 052
Lot 300 on DP 64866
UCL 055
Lot 1976 on DP 216852
UCL 057
Lot 551 on DP 71667
UCL 093
Area bounded by Road 010, UCL 023 (Lot 2354 on DP 218837), general lease GE K858923, special lease 3116/3684, general lease GE I150289 and reserves 38674 and 39117, being the area of unallocated Crown land generally south of UCL 029 (Lot 369 on DP 71870) and UCL 032 (Lot 510 on DP 73722)
UCL 094
Area bounded by Road 010 and reserves 38674 and 39117
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 29 March 2018. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 15 June 2018. All other interests are current as at 26 September 2018.
Reserves
(a) The following reserves:
Reserve No.
Current Purpose
RES 09698
Fortescue-Cue Stock Route
RES 09700
De Grey-Peak Hill Stock Route
RES 11463 (Well 61)
Use and Benefit of Aboriginal Inhabitants
RES 12297
Protection of the Rabbit-proof Fence No.1
RES 15159
Stock Route
RES 17650
Racecourse
RES 18938
Stock Route (Deviation)
RES 41265 (Jigalong)
Use and Benefit of Aboriginal Inhabitants
RES 42835 (Parnpajinya)
Use and Benefit of Aboriginal Inhabitants
(b) The rights and interests of persons who have the care, control and management of the reserves identified in clause 1(a) above;
(c) The rights and interests of persons entitled to access and use the reserves identified in clause 1(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 clause 1(a) above, if any.
Pastoral Leases
(a) The following pastoral leases and the rights and interests of the holders from time to time of those leases:
Lease No.
Station Name
PL N049546
Robertson Range Station
PL N049553
Balfour Downs Station
PL N049879
Wandanya Station
PL N050368
Marillana Station
PL N049724
Ethel Creek Station
PL N049404
Walagunya Station
PL N050553
Prairie Downs Station
PL N050094
Kumarina Station
PL N049943
Bulloo Downs Station
PL N050430
Bonney Downs Station
PL N049932
Sylvania Station
PL N049890
Weelarrana Station
PL N050452
Hillside Station
PL N049420
Mount Divide Station
PL N050058
Noreena Downs Station
PL N049548
Balfour Downs Station
PL N050622
Roy Hill Station
(b) Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in clause 2(a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses.
Leases
(a) The following leases and the rights and interests of the holders from time to time of those leases:
Lease No.
Purpose
GE H326098
Cultivation and grazing
Roads
(a) The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time, to the extent the areas of these roads do not fall within Schedule Four as areas where native title does not exist:
MapInfo ID.
Description
Shown in
ROAD 013
Part of Great Northern Highway
DP 217097
ROAD 014
Part of Great Northern Highway
DP 217098
ROAD 015
Part of Great Northern Highway
DP 217099
ROAD 017
Part of Great Northern Highway
DP 219293
ROAD 018
Part of Great Northern Highway
DP 219294
ROAD 019
Part of Great Northern Highway
DP 219295
ROAD 020
Part of Great Northern Highway
DP 219296
ROAD 021
Part of Great Northern Highway
DP 219297
ROAD 022
Part of Great Northern Highway
DP 219298
ROAD 023
Part of Great Northern Highway
DP 219299
ROAD 024
Part of Great Northern Highway
DP 219300
ROAD 025
Part of Great Northern Highway
DP 219301
ROAD 026
Part of Great Northern Highway
DP 219302
ROAD 027
Part of Great Northern Highway
DP 50856 and DP 50859 (formerly DP 219303)
Easements
(a) The following easements and the rights and interests of the holders from time to time of those easements, to the extent the areas of these easements do not fall within Schedule Four as areas where native title does not exist:
Easement No.
Description
J717065 E
Rail spur
N248447
Electricity transmission line and associated infrastructure
Mining Tenements and Petroleum Interests
(a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:
(i) Mining Leases:
Tenure ID
Tenure ID
Tenure ID
Tenure ID
M 4501102
M 4600337
M 4600412
M 4600491
M 4501124
M 4600338
M 4600413
M 4600518
M 4501125
M 4600339
M 4600414
M 4600519
M 4600080
M 4600340
M 4600415
M 4700514
M 4600081
M 4600341
M 4600416
M 4700580
M 4600121
M 4600342
M 4600417
M 4701233
M 4600249
M 4600343
M 4600418
M 4701414
M 4600292
M 4600344
M 4600419
M 4701423
M 4600293
M 4600345
M 4600420
M 4701424
M 4600314
M 4600346
M 4600421
M 4701439
M 4600315
M 4600347
M 4600422
M 4701461
M 4600316
M 4600348
M 4600423
M 5200007
M 4600317
M 4600349
M 4600424
M 5200010
M 4600318
M 4600350
M 4600437
M 5200059
M 4600319
M 4600351
M 4600438
M 5200062
M 4600320
M 4600352
M 4600439
M 5200211
M 4600321
M 4600353
M 4600440
M 5200609
M 4600322
M 4600354
M 4600450
M 5200661
M 4600323
M 4600355
M 4600451
M 5200790
M 4600324
M 4600356
M 4600452
M 5200791
M 4600325
M 4600357
M 4600453
M 5200798
M 4600326
M 4600401
M 4600454
M 5200803
M 4600327
M 4600402
M 4600481
M 5200804
M 4600328
M 4600403
M 4600482
M 5201034
M 4600329
M 4600404
M 4600483
M 5201043
M 4600330
M 4600405
M 4600484
M 5201052
M 4600331
M 4600406
M 4600485
M 5201053
M 4600332
M 4600407
M 4600486
M 5201063
M 4600333
M 4600408
M 4600487
M 5201064
M 4600334
M 4600409
M 4600488
M 5201070
M 4600335
M 4600410
M 4600489
M 4600336
M 4600411
M 4600490
(ii) Exploration Licences:
Tenure ID
Tenure ID
Tenure ID
Tenure ID
E 4502498
E 4601080
E 4702053
E 5202372
E 4502652
E 4601085
E 4702054
E 5202398
E 4600413
E 4601087
E 4702085
E 5202409
E 4600467
E 4601099
E 4702119
E 5202591
E 4600516
E 4601116
E 4702141
E 5202876
E 4600518
E 4601119
E 4702172
E 5202933
E 4600519
E 4601128
E 4702173
E 5203097
E 4600535
E 4601131
E 4702177
E 5203160
E 4600566
E 4601132
E 4702280
E 5203184
E 4600567
E 4601157
E 4702291
E 5203204
E 4600568
E 4601158
E 4702664
E 5203217
E 4600569
E 4601159
E 4702665
E 5203233
E 4600580
E 4601160
E 4702666
E 5203261
E 4600586
E 4601188
E 4703170
E 5203296
E 4600590
E 4601189
E 4703194
E 5203306
E 4600595
E 4700013
E 4703218
E 5203323
E 4600600
E 4700280
E 4703222
E 5203348
E 4600601
E 4700319
E 4703225
E 5203348
E 4600610
E 4700539
E 4703226
E 5203357
E 4600611
E 4700540
E 4703315
E 5203360
E 4600612
E 4700541
E 4703347
E 5203361
E 4600616
E 4700542
E 4703349
E 5203363
E 4600621
E 4700622
E 4703403
E 5203364
E 4600623
E 4700623
E 4703405
E 5203365
E 4600662
E 4700624
E 4703444
E 5203366
E 4600664
E 4701137
E 4703454
E 5203370
E 4600666
E 4701140
E 4703498
E 5203371
E 4600675
E 4701191
E 4703499
E 5203373
E 4600699
E 4701192
E 4703505
E 5203390
E 4600706
E 4701224
E 4703512
E 5203396
E 4600741
E 4701225
E 4703513
E 5203411
E 4600743
E 4701228
E 4703549
E 5203413
E 4600776
E 4701235
E 4703575
E 5203416
E 4600787
E 4701307
E 4703581
E 5203417
E 4600799
E 4701308
E 4703583
E 5203422
E 4600835
E 4701313
E 4703585
E 5203441
E 4600861
E 4701320
E 4703628
E 5203444
E 4600862
E 4701326
E 5200023
E 5203447
E 4600947
E 4701327
E 5201658
E 5203448
E 4600965
E 4701380
E 5201711
E 5203450
E 4601000
E 4701385
E 5201772
E 5203456
E 4601001
E 4701387
E 5201776
E 5203471
E 4601020
E 4701388
E 5201894
E 5203474
E 4601036
E 4701392
E 5201905
E 5203517
E 4601041
E 4701393
E 5201926
E 5203524
E 4601042
E 4701423
E 5201937
E 5203532
E 4601044
E 4701491
E 5202009
E 5203536
E 4601045
E 4701522
E 5202160
E 5203541
E 4601046
E 4701540
E 5202247
E 5203543
E 4601055
E 4701587
E 5202300
E 5203544
E 4601069
E 4701598
E 5202303
E 5203559
E 4601076
E 4701922
E 5202311
E 5203561
E 4601077
E 4702052
E 5202350
E 5203562
(iii) General Purpose Leases:
Tenure ID
Tenure ID
Tenure ID
Tenure ID
G 4600007
G 5200083
G 5200151
G 5200219
G 5200008
G 5200084
G 5200152
G 5200220
G 5200015
G 5200085
G 5200153
G 5200221
G 5200018
G 5200086
G 5200154
G 5200222
G 5200019
G 5200087
G 5200155
G 5200223
G 5200020
G 5200088
G 5200156
G 5200224
G 5200021
G 5200089
G 5200157
G 5200225
G 5200022
G 5200090
G 5200158
G 5200226
G 5200023
G 5200091
G 5200159
G 5200227
G 5200024
G 5200092
G 5200160
G 5200228
G 5200025
G 5200093
G 5200161
G 5200229
G 5200026
G 5200094
G 5200162
G 5200230
G 5200027
G 5200095
G 5200163
G 5200231
G 5200028
G 5200096
G 5200164
G 5200232
G 5200029
G 5200097
G 5200165
G 5200233
G 5200030
G 5200098
G 5200166
G 5200234
G 5200031
G 5200099
G 5200167
G 5200235
G 5200032
G 5200100
G 5200168
G 5200236
G 5200033
G 5200101
G 5200169
G 5200237
G 5200034
G 5200102
G 5200170
G 5200238
G 5200035
G 5200103
G 5200171
G 5200239
G 5200036
G 5200104
G 5200172
G 5200240
G 5200037
G 5200105
G 5200173
G 5200241
G 5200038
G 5200106
G 5200174
G 5200242
G 5200039
G 5200107
G 5200175
G 5200243
G 5200040
G 5200108
G 5200176
G 5200244
G 5200041
G 5200109
G 5200177
G 5200245
G 5200042
G 5200110
G 5200178
G 5200246
G 5200043
G 5200111
G 5200179
G 5200247
G 5200044
G 5200112
G 5200180
G 5200248
G 5200045
G 5200113
G 5200181
G 5200249
G 5200046
G 5200114
G 5200182
G 5200250
G 5200047
G 5200115
G 5200183
G 5200251
G 5200048
G 5200116
G 5200184
G 5200252
G 5200049
G 5200117
G 5200185
G 5200253
G 5200050
G 5200118
G 5200186
G 5200254
G 5200051
G 5200119
G 5200187
G 5200255
G 5200052
G 5200120
G 5200188
G 5200256
G 5200053
G 5200121
G 5200189
G 5200258
G 5200054
G 5200122
G 5200190
G 5200259
G 5200055
G 5200123
G 5200191
G 5200260
G 5200056
G 5200124
G 5200192
G 5200261
G 5200057
G 5200125
G 5200193
G 5200262
G 5200058
G 5200126
G 5200194
G 5200263
G 5200059
G 5200127
G 5200195
G 5200264
G 5200060
G 5200128
G 5200196
G 5200265
G 5200061
G 5200129
G 5200197
G 5200266
G 5200062
G 5200130
G 5200198
G 5200267
G 5200063
G 5200131
G 5200199
G 5200268
G 5200064
G 5200132
G 5200200
G 5200269
G 5200065
G 5200133
G 5200201
G 5200270
G 5200066
G 5200134
G 5200202
G 5200271
G 5200067
G 5200135
G 5200203
G 5200272
G 5200068
G 5200136
G 5200204
G 5200273
G 5200069
G 5200137
G 5200205
G 5200274
G 5200070
G 5200138
G 5200206
G 5200276
G 5200071
G 5200139
G 5200207
G 5200277
G 5200072
G 5200140
G 5200208
G 5200278
G 5200073
G 5200141
G 5200209
G 5200279
G 5200074
G 5200142
G 5200210
G 5200280
G 5200075
G 5200143
G 5200211
G 5200281
G 5200076
G 5200144
G 5200212
G 5200282
G 5200077
G 5200145
G 5200213
G 5200283
G 5200078
G 5200146
G 5200214
G 5200284
G 5200079
G 5200147
G 5200215
G 5200285
G 5200080
G 5200148
G 5200216
G 5200081
G 5200149
G 5200217
G 5200082
G 5200150
G 5200218
(iv) Miscellaneous Licences:
Tenure ID
Tenure ID
Tenure ID
Tenure ID
L 4600035
L 4600112
L 4700627
L 5200087
L 4600036
L 4600124
L 4700642
L 5200088
L 4600037
L 4600130
L 4700654
L 5200099
L 4600040
L 4600133
L 4700655
L 5200101
L 4600047
L 4600134
L 4700656
L 5200103
L 4600048
L 4600135
L 4700658
L 5200105
L 4600049
L 4700092
L 4700660
L 5200108
L 4600051
L 4700193
L 4700693
L 5200109
L 4600052
L 4700197
L 4700702
L 5200115
L 4600053
L 4700198
L 4700726
L 5200123
L 4600057
L 4700346
L 4700727
L 5200131
L 4600064
L 4700347
L 4700735
L 5200141
L 4600066
L 4700378
L 4700752
L 5200157
L 4600080
L 4700399
L 4700757
L 5200163
L 4600084
L 4700400
L 4700766
L 5200174
L 4600085
L 4700417
L 4700770
L 5200177
L 4600096
L 4700420
L 4700772
L 5200178
L 4600099
L 4700515
L 4700809
L 5200179
L 4600100
L 4700555
L 5200079
L 5200181
L 4600104
L 4700559
L 5200083
L 5200183
L 4600110
L 4700569
L 5200084
L 4600111
L 4700626
L 5200086
(v) Prospecting Licences:
Tenure ID
P 4601688
P 4701611
P 4701718
P 4701816
P 5201485
P 5201525
(vi) Retention Licences:
Tenure ID
R 4600001
R 4600002
R 4700013
R 4700015
R 4700016
R 5200002
R 5200003
R 5200004
R 5200005
R 5200006
R 5200008
(vii) Temporary Reserves:
Tenure ID
TR 7004192
TR 7004193
TR 7004266
TR 7004267
TR 7004737
TR 7004881
TR 7004882
TR 7004883
TR 7004884
TR 7007484
(b) The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests:
Tenement ID
Tenement Type
PL24
Pipeline licence
F924685
Easement
(c) 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 (M 282SA)
Mining lease
(d) 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
AM 7000263 (M 263SA)
Mining lease
(e) The agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 (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 7000005 (L 5SA)
Miscellaneous licence
(f) 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 (M 270SA)
Mining lease
(g) 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
AML 7000249 (ML 249SA)
Mineral lease
AML 7000281 (ML 281SA)
Mineral lease
(h) 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 (ML 244SA)
Mineral lease
(i) The agreement as amended and ratified by the Iron Ore (McCamey's Monster) Agreement Authorisation 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
AM 7000266 (M 266SA)
Mining lease
(j) 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 (M 274SA)
Mining lease
(k) 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 (L 1SA)
Miscellaneous licence
(l) The agreement as amended and ratified by the Railway (Roy Hill Infrastructure Pty Ltd) Agreement Act 2010 (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 7000004 (L 4SA)
Miscellaneous licence
Access to Mining and Petroleum Areas
(a) Without limiting the operation of any other clause in Schedule Six, but subject to clause 7(b) below, any rights of the holders from time to time of a mining tenement or petroleum title, including those referred to in clause 6 of Schedule Six, to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum title for the purposes of exercising the rights granted by that tenement or title.
(b) Nothing in clause 7(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 7(a).
(c) Nothing in this Schedule Six will limit the rights of the holders from time to time of mining tenements or petroleum titles, including those referred to in clause 6 of 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 title.
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 performance of their duties; and
(d) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.
Indigenous Land Use Agreements
The following Indigenous Land Use Agreements, including the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, each agreement:
(a) The Nyiyaparli and BHP Billiton Comprehensive Agreement Initial Indigenous Land Use Agreement (Area Agreement) dated 26 June 2012, and registered on the Register of Indigenous Land Use Agreements on 13 March 2013 (Tribunal No. WI2012/005).
(b) The Nyiyaparli and BHP Billiton Comprehensive Agreement Further Indigenous Land Use Agreement (Area Agreement) (Nyiyaparli #3) dated 16 July 2015, and registered on the Register of Indigenous Land Use Agreements on 18 January 2016 (Tribunal No. WI2015/011).
(c) The RTIO and Nyiyaparli People Indigenous Land Use Agreement (Area Agreement) dated 12 July 2012, and registered on the Register of Indigenous Land Use Agreements on 13 March 2013 (Tribunal No. WI2012/007).
(d) The RTIO and Nyiyaparli People Additional ILUA (Area Agreement) for Nyiyaparli People's Native Title Claim #3 dated 9 October 2005, and registered on the Register of Indigenous Land Use Agreements on 10 March 2016 (Tribunal No. WI2015/013).
Other
The following rights and interests:
(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 legislation;
(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 force and operation of 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, including for the purpose of pest management control and fire hazard management on areas of unallocated Crown land;
(e) 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) as at the date of this Determination, any 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) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993;
(f) any other:
(i) legal or equitable estate or interest in the land or waters; 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; 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 SEVEN
NATIVE TITLE HOLDERS (PARAGRAPH 3)
The Nyiyaparli People are those persons who:
(a) are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyiyaparli People, one or more of the following persons:
(i) Mintaramunya;
(ii) Pitjirrpangu;
(iii) Yirkanpangu (Jesse);
(iv) Kitjiempa (Molly);
(v) Mapa (Rosie);
(vi) Iringkulayi (Billy Martin Moses);
(vii) Parnkahanha (Toby Cadigan);
(viii) Wirlpangunha (Rabbity-Bung);
(ix) Wuruwurunha (Tommy Malana);
(x) Ijiyangu (Daisy);
(xi) Sibling set of Ivy, Solomon and Mildred; and
(xii) Sibling set of Maynha and Itika,
or, though not descended from those persons, have been incorporated into the Nyiyaparli group in accordance with Nyiyaparli traditional laws and customs,
and
(b) identify themselves as Nyiyaparli under traditional law and custom and are so identified by other Nyiyaparli People as Nyiyaparli;
and
(c) have a connection with the land and waters of the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyiyaparli People.
REASONS FOR JUDGMENT
COLVIN J:
On 26 September 2018, the Court made a determination as to the existence of native title in respect of an area of almost 50,000 square kilometres in the eastern Pilbara region of Western Australia (Determination). The Nyiyaparli People were determined to be the holders of native title for the area. Karlka Nyiyaparli Aboriginal Corporation ICN 3649 (KNAC) was nominated as the registered native title body corporate to hold the determined native title in trust for the native title holders. At that time, an appeal was pending in the High Court in respect of the decision of the Full Court of this Court in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8; (2018) 258 FCR 521.
When the Determination was made, the parties to the relevant applications for native title agreed that in the event that the High Court was to decide thereafter that the presence of exploration or prospecting licences or permits as at the date that an application is made does not prevent extinguishment of native title from being disregarded under s 47B(2) of the Native Title Act 1993 (Cth) then the registered native title body corporate may apply for a variation of the Determination in certain respects and the parties would agree to that variation. This was a matter that was formally noted by the Court when the Determination was made by consent.
The High Court allowed the appeal (and an appeal in another matter): Tjungarrayi v Western Australia [2019] HCA 12. The High Court held that exploration or prospecting licences or permits were not 'leases' within the meaning of s 47B(1)(b)(i) of the Native Title Act with the result that they did not prevent the disregarding of extinguishment under s 47B(2).
KNAC now brings an application to vary the determination of native title. Notification of the application has been given by the Native Title Registrar. The parties who responded to that notice of application (save for one party who has been removed as a respondent by Court order) all consent to the application.
Section 13(1)(b) of the Native Title Act allows for an application to revoke or vary an approved determination of native title on certain grounds specified in s 13(5). They are:
(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b) that the interests of justice require the variation or revocation of the determination.
An application to revoke or vary may be made by the registered native title body corporate: s 61(1). KNAC is that body in respect of the Determination.
Variations to an approved determination of native title have been made in circumstances where, after the making of a determination of native title, there has been a change in law that would have led to a different outcome had such law been applied at the time of making the determination: see, for example, Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40; and Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia [2020] FCA 1416.
I am satisfied that the power to vary the determination has been enlivened and it is appropriate for that power to be exercised in this case, particularly in circumstances where the parties to the original determination contemplated that course at the time the determination was made by this Court.
Section 87(1) of the Native Title Act provides:
This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
The reference to 'proceedings' is to 'proceedings in relation to applications filed in the Federal Court that relate to native title': s 80.
In Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC where the Court considered a similar application, Barker J concluded that if the grounds for variation are met pursuant to s 13(5)(b) of the Native Title Act it is unnecessary to review the grounds for the making of a determination pursuant to s 87. His Honour explained the reason for that view in the following terms (at [16]):
… the result of the variation is that the varied determination will replace the determination as the approved determination of native title with the only change to the determination being the inclusion of areas of pastoral improvements as areas where native title exists. Nothing further will be varied in the determination nor the agreement reached between the parties for the determination on 29 July 2013.
However, in my view, an application to vary a determination must be a proceeding in relation to an application filed in the Federal Court that relates to native title. Therefore, with due respect to his Honour, the requirements of s 87 (or the equivalent provision in s 87A) must be met in respect of the present application. I note that this was the course followed by Rares J in Yindjibarndi Aboriginal Corporation RNTBC (and see also the approach of Rangiah J in Finlay on behalf of the Kuruma Marthudunera Peoples v State of Western Australia [2018] FCA 548).
Nevertheless, the fact that the Court has already determined that native title exists when it made the Determination by consent and did so on the basis of an agreement which contemplated the possibility of future variation of the determination if the High Court appeal was successful are matters that are relevant in deciding whether it is appropriate for the proposed orders to be made on the present application. The Court has already determined that it is appropriate to declare native title and has thereby been satisfied as to the matters specified in s 87 as to the making of a determination of native title by consent. Necessarily implicit in that decision was an acceptance that but for the decision BHP Billiton Nickel West Pty Ltd (since overturned), it would have been appropriate to make a determination of native title in the terms now sought. The orders made at that time contemplated the present application. The present application does not seek to depart from the basis upon which the Determination was made or to point to some matter that was not in contemplation at that time.
Therefore, this is not an instance where the application seeks to justify the variation of a previous determination of native title in terms that were not demonstrated to the Court when making the previous determination. Were that not to be the case then, in my view, it would be necessary for the Court to be provided with material of a kind that would support the making of a determination by consent in the exercise of the power conferred by s 87. The fact that the determination is to be made by way of variation does not take it outside the terms of that requirement.
Section 87 is an important requirement. Recently, in Hobbs on behalf of the Ngurrara D2 Claim Group v State of Western Australia [2020] FCA 624 at [24]‑[28], I summarised the authorities as to the nature of the matters that must be established on such an application. The communal nature of native title and its perpetual proprietary character mean that the Court must have an eye for the public interests and the future interests of those who may be affected by the terms of a determination of native title which, though made with the requisite consent, will have consequences for those who are not themselves before the Court on the application. However, in the circumstances of the present application, the Court can look to the earlier Determination as having addressed those matters and proceed on the basis that no party raises any issue as to the earlier consent or the appropriateness of the order. Rather, the Court is asked to take a step that was contemplated at that time.
The notice period has expired in respect of the variation application. The agreed terms are before the Court. The requirements of s 94A and s 225 of the Native Title Act are met by the terms of the proposed orders.
KNAC and the State of Western Australia have filed joint submissions through solicitors by which they confirm their joint view that the orders are appropriate.
In those circumstances, I am satisfied that the proposed orders should be made.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.
Associate:
Dated: 19 January 2021
SCHEDULE OF PARTIES
WAD 90 of 2020
Respondents:
ALINTA ENERGY (CHICHESTER) PTY LTD
TELSTRA CORPORATION LIMITED (ABN 33 051 775 556)
BHP BILLITON MINERALS PTY LTD
BHP IRON ORE (JIMBLEBAR) PTY LTD
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD
MITSUI IRON ORE DEVELOPMENT PTY LTD
MITSUI-ITOCHU IRON PTY LTD
BHP BILLITON DIRECT REDUCED IRON PTY LTD
PILBARA PASTORAL COMPANY PTY LIMITED
HAMERSLEY EXPLORATION PTY LIMITED
HAMERSLEY IRON PTY LIMITED
HAMERSLEY IRON-YANDI PTY LIMITED
HAMERSLEY RESOURCES LIMITED
HAMERSLEY WA PTY LTD
HOPE DOWNS IRON ORE PTY LTD
NIPPON STEEL AUSTRALIA PTY LIMITED
NIPPON STEEL RAW MATERIALS AUSTRALIA PTY LTD
NORTH MINING LIMITED
ROBE RIVER MINING CO PTY LTD
JOHN ALBERT HINE
JONATHON BARRY HINE
HEATHER ROSEMARY FOOTE
HERBERT NICHOLAS FOOTE
KIMBERLEY QUARRY PTY LTD
MITSUI IRON ORE CORPORATION PTY LTD
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