FEDERAL COURT OF AUSTRALIA
The Nyamal Palyku Proceeding (No 8) [2024] FCA 11
File numbers: WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019WAD 483 of 2018
Judgment of: COLVIN J Date of judgment: 16 January 2024 Catchwords: NATIVE TITLE - consent determination - application for determination of Native Title - where parties propose the making of consent orders for the determination of native title pursuant to s 87 and s 94A of the Native Title Act 1993 (Cth) - where consent orders proposed after hearing of separate question as to the identity of the holders of native title (if any) but before reasons delivered on separate question - where position of State during hearing of separate question was that it accepted that native title rights and interests are held in the relevant area, subject to extinguishment and the issue to be resolved concerned the identity of the people who hold those rights and interests - consideration of appropriate approach in circumstances where facts are agreed but hearing had been conducted in which evidence had been submitted by competing native title applicants - where all requirements for making of consent determination satisfied - where appropriate to make orders - consent determination made Legislation: Native Title Act 1993 (Cth) ss 13, 55, 56, 66, 87, 94A, 213, 225 Cases cited: Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570
Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849
Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571
Lander v State of South Australia [2012] FCA 427
O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330
O'Connor on behalf of the Palyku People State of Western Australia (No 2) [2021] FCA 195
Stream v State of Western Australia (Palyku #2) [2021] FCA 1068
The Nyamal Palyku Proceeding (No 7) [2023] FCA 528
Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 39 Date of hearing: Determined on the papers Solicitor for the Nyamal Applicant: Mr T Keely SC and Mr J Edwards of Arma Legal Solicitor for the Palyku Applicants: Mr V Hughston SC and Ms T Jowett SC of Cross Country Native Title Services Solicitor for the State of Western Australia: Mr GJ Ranson SC of the State Solicitor's Office Solicitor for the Attorney-General of Australia: Ms S Davies of Australian Government Solicitor Solicitor for FMG Pilbara Pty Ltd Mr K Green of Green Legal Solicitor for Nullagine Gold Pty Ltd Ms A Macmaster of Lawton Macmaster Legal Solicitor for Harvest Road Properties Pty Ltd, Hillside Station (WA) Pty Ltd, Keydrive Pty Ltd, Anne Catherine Paull,…
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- Case
- [2024] FCA 11
- Decision Date
CaseChat Overview and Summary
The Court found that the requirements for the making of consent determinations were satisfied. The Court noted that the parties had agreed that native title exists in the relevant area and that the Nyamal and Palyku peoples are the holders of native title. The Court concluded that it was appropriate to make the proposed orders. The Court made a determination of native title in favour of the Nyamal and Palyku peoples over the specified area. The Court also ordered that the Nyamal Aboriginal Corporation RNTBC and the Palyku-Jartayi Aboriginal Corporation RNTBC hold the determined native title in trust for the Nyamal and Palyku peoples, respectively. The Court made no order as to costs.
Orders
Orders of the court
1. In relation to the Determination Area, there be a determination of native title in WAD 20 of 2019, WAD 23 of 2019 and WAD 483 of 2018 in the terms provided for in Attachment A (the determination).
2. In respect of the Nyamal Area (as defined in paragraph 13 of the determination), the Nyamal Aboriginal Corporation RNTBC (ICN 8770) shall hold the determined Nyamal native title in trust for the Nyamal People pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).
3. In respect of the Palyku Area (as defined in paragraph 13 of the determination), the Palyku-Jartayi Aboriginal Corporation RNTBC (ICN 9217) shall hold the determined Palyku native title in trust for the Palyku People pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth)
4. 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: section 225 Native Title Act
1. Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraphs 5 and 6 of this determination.
2. Native title does not exist in those parts of the Determination Area that are identified in Schedule Four which are shown as generally shaded pink on the maps at Schedule Two.
Native title holders: section 225(a) Native Title Act
3. In the Nyamal Area, native title is held by the Nyamal People.
4. In the Palyku Area, native title is held by the Palyku People.
The nature and extent of native title rights and interests and exclusiveness of native title: sections 225(b) and 225(e) Native Title Act
5. Subject to paragraphs 2, 7, 8, 9 and 12, the nature and extent of the Nyamal native title in relation to the Nyamal Area are that they confer the following non-exclusive rights on the Nyamal People, including the right to conduct activities necessary to give effect to them:
(a) the right to live, being to enter and remain, camp and erect temporary shelters and other temporary structures for that purpose and to travel over and visit any part of the land and waters;
(b) the right to hunt, fish, gather and use the traditional resources;
(c) the right to take and use water; and
(d) the right to engage in cultural activities and the transmission of cultural knowledge, including:
(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and
(ii) conducting burials, ceremony and ritual.
(e) the right to be accompanied by those people who, though not Nyamal People and who (for the avoidance of doubt) cannot themselves exercise any native title rights, are:
(i) the non-Nyamal spouses, parents or children of the Nyamal People; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Nyamal Area.
6. Subject to paragraphs 2, 7, 8, 9 and 12, the nature and extent of the Palyku native title in relation to the Palyku Area are that they confer the following non-exclusive rights on the Palyku People, including the right to conduct activities necessary to give effect to them:
(a) the right to enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters;
(b) the right to hunt, fish, gather, take and use the traditional resources of the land;
(c) the right to take and use water;
(d) the right to engage in cultural activities and the transmission of cultural knowledge, 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 by those people who, though not Palyku People and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Palyku Area, are:
(i) the non-Palyku spouses, parents or children of the Palyku People; or
(ii) people entering in connection with, and subject to, traditional law and custom for the performance of ceremonies or cultural activities.
Qualifications on the native title rights and interests
7. The native title rights and interests are subject to and exercisable in accordance with:
(a) the laws of the State and the Commonwealth, including the common law; and
(b) the traditional laws and customs of the Nyamal People and/or the Palyku People (as the case may be) for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).
8. Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to:
(a) minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);
(b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
(c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(d) water captured by the holders of the Other Interests pursuant to those Other Interests.
9. The native title rights and interests set out in paragraphs 5 and 6 and do not confer:
(a) possession, occupation, use and enjoyment on the Nyamal People or the Palyku 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 47A or s 47B of the Native Title Act applies
10. Section 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Five.
The nature and extent of any other interests: section 225(c) Native Title Act
11. The nature and extent of the Other Interests are described in Schedule Six.
Relationship between native title rights and Other Interests: section 225(d) Native Title Act
12. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 5 and 6 and the Other Interests described in Schedule Six 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; and
(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.
Definitions and Interpretation
13. In this Determination, unless the contrary intention appears:
'Determination Area' means the land and waters described in Schedule One and depicted on the maps at Schedules Two and Three;
'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);
'Nyamal Area' means the land and waters described in Schedule Three and depicted on the map at Schedule Three, being generally shaded in pink;
'Nyamal People' means the people described in Schedule Seven;
'Other Interests' means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Six and referred to in paragraph 11;
'Palyku Area' means the land and waters described in Schedule Three and depicted on the map at Schedule Three, being generally shaded in blue;
'Palyku People' means the people described in Schedule Eight;
'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));
'use' includes by way of share and exchange but does not include use by way of trade; 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, Three, Four, Five or Six and the area as depicted on the maps at Schedule Two or Three, the written description prevails.
SCHEDULE ONE
EXTERNAL BOUNDARY OF THE DETERMINATION AREA
The Determination Area, generally shown as bordered in blue on the maps at Schedule Two and Three, comprises all land and waters bounded by the following description:
All that land and waters commencing at Latitude 22.025695 South, Longitude 120.965628 East being a point on the present boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) and extending southwesterly and generally northwesterly along the northern boundaries of that native title determination to Latitude 21.982987 South, Longitude 120.260763 East; Then northwesterly to Latitude 21.917778 South, Longitude 120.188863 East being a point on the present boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 3) (WCD2021/003); Then westerly to Latitude 21.916020 South, Longitude 120.087871 East being a point on the present boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002); Then northwesterly to Latitude 21.848444 South, Longitude 120.052088 East being a point on the present boundary of Native Title Determination WAD483/2018 Palyku #2 (WCD2021/006); Then northwesterly to Latitude 21.745504 South, Longitude 119.503750 East being a point on the present boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002); Then generally northwesterly along the boundaries of that native title determination to the intersection with Longitude 119.324160 East being a point on the present boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 1) (WCD2021/003); Then generally northwesterly along the northeastern boundaries of that native title determination to a southern corner of Native Title Determination WAD20/2019 Nyamal People #1 (WCD2019/010) at approximate Latitude 21.507192 South, Longitude 119.177279 East; Then generally northeasterly and generally southeasterly along the boundaries of that native title determination back to the commencement point.
Note: Geographic Coordinates provided in Decimal Degrees.
For the avoidance of doubt the determination excludes any land and waters already claimed by:
• Native Title Determination WAD20/2019 Nyamal People #1 (WCD2019/010) as Determined in the Federal Court on 24 September 2019.
• Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) as Determined in the Federal Court on 26 September 2018.
• Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) as Determined in the Federal Court on 12 March 2019.
• Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (WCD2021/003) as Determined in the Federal Court on 10 March 2021.
• Native Title Determination WAD483/2018 Palyku #2 (WCD2021/006) as Determined in the Federal Court on 6 September 2021.
Datum: Geocentric Datum of Australia 2020 (GDA2020)
Prepared By: Geospatial (Landgate) 25th October 2023
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
DESCRIPTION AND MAP OF THE NYAMAL AREA AND PALYKU AREA
Nyamal Area
The Nyamal Area, generally shown as shaded in pink on the map at Schedule Three, comprises all land and waters bounded by the following description:
All that land and waters commencing at the intersection of the northeastern boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 1) (WCD2021/003) with Latitude 21.620591 South and extending generally northeasterly through the following coordinate points:
Latitude (South)
Longitude (East)
21.616258
119.269649
21.611621
119.269649
21.607186
119.275316
21.601790
119.286511
21.596650
119.302358
21.596732
119.311768
21.592125
119.314452
21.579661
119.330769
21.574156
119.340277
21.571523
119.355182
21.573950
119.366175
21.570524
119.382879
21.560130
119.408149
21.540571
119.430849
21.531021
119.452122
21.513874
119.462829
21.498855
119.476135
21.488290
119.491697
21.477297
119.502832
21.469016
119.507829
21.462500
119.521389
21.462592
119.539095
21.448208
119.614322
21.447910
119.644958
21.444639
119.666968
21.446423
119.685408
21.445233
119.703254
21.440475
119.721695
21.440593
119.758577
21.438392
119.763098
21.436251
119.776661
Then easterly to an eastern boundary of Corunna Downs Road at Latitude 21.436191 South; Then generally southerly along the eastern boundary of that road to Latitude 21.450089 South; Then generally southeasterly through the following coordinate points:
Latitude (South)
Longitude (East)
21.459236
119.850793
21.463447
119.852720
Then southerly to the northern boundary of an unnamed road at Longitude 119.852730 East (approximate Latitude 21.475569 South); Then generally southeasterly along the northern boundary of that road to the intersection with a northern boundary of an unnamed road at approximate Latitude 21.498854 South, Longitude 119.869380 East; Then southeasterly to the northern boundary of an unnamed road at Longitude 119.924790 East (approximate Latitude 21.556268 South); Then generally easterly and generally southeasterly along the northern boundary of that road to a northern boundary of Reserve 13688; Then easterly along the northern boundary of that reserve to an eastern boundary of Marble Bar Road; Then generally northeasterly along the eastern boundary of that road to a northern boundary of Pastoral Lease N050430 (Bonney Downs); Then easterly along the northern boundary of that pastoral lease to Longitude 120.182175 East; Then generally southeasterly through the following coordinate points:
Latitude (South)
Longitude (East)
21.628577
120.309534
21.650809
120.358589
21.651869
120.383450
21.655083
120.402871
21.685371
120.451960
21.709376
120.505090
21.730180
120.545738
21.756928
120.590609
21.781702
120.667513
21.796067
120.695338
21.810767
120.757742
Then southeasterly to the intersection of the centreline of Skull Springs Road with Longitude 120.764565 East (approximate Latitude 21.824529 South); Then generally southeasterly along the centreline of that road to Longitude 120.811567 East; Then generally southerly through the following coordinate points:
Latitude (South)
Longitude (East)
21.886884
120.824312
21.922576
120.840730
21.949345
120.847155
21.973615
120.845014
21.990390
120.839303
22.009307
120.840017
22.036076
120.828238
Then southerly to the intersection of a northern boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) with Longitude 120.830735 East; Then northeasterly along the boundary of that native title determination to Latitude 22.025695 South, Longitude 120.965628 East being a point on the present boundary of Native Title Determination WAD20/2019 Nyamal People #1 (WCD2019/010); Then generally northwesterly and generally southwesterly along the boundaries of that native title determination to a southern corner at approximate Latitude 21.507192 South and Longitude 119.177279 East being a point on the present boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 1) (WCD2021/003); Then generally southeasterly along the boundaries of that native title determination back to the commencement point.
Palyku Area
The Palyku Area, generally shown as shaded in blue on the map at Schedule Three, comprises all land and waters bounded by the following description:
All that land and waters commencing at the intersection of the northeastern boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 1) (WCD2021/003) with Latitude 21.620591 South and extending generally northeasterly through the following coordinate points:
Latitude (South)
Longitude (East)
21.616258
119.269649
21.611621
119.269649
21.607186
119.275316
21.601790
119.286511
21.596650
119.302358
21.596732
119.311768
21.592125
119.314452
21.579661
119.330769
21.574156
119.340277
21.571523
119.355182
21.573950
119.366175
21.570524
119.382879
21.560130
119.408149
21.540571
119.430849
21.531021
119.452122
21.513874
119.462829
21.498855
119.476135
21.488290
119.491697
21.477297
119.502832
21.469016
119.507829
21.462500
119.521389
21.462592
119.539095
21.448208
119.614322
21.447910
119.644958
21.444639
119.666968
21.446423
119.685408
21.445233
119.703254
21.440475
119.721695
21.440593
119.758577
21.438392
119.763098
21.436251
119.776661
Then easterly to an eastern boundary of Corunna Downs Road at Latitude 21.436191 South; Then generally southerly along the eastern boundary of that road to Latitude 21.450089 South; Then generally southeasterly through the following coordinate points:
Latitude (South)
Longitude (East)
21.459236
119.850793
21.463447
119.852720
Then southerly to the northern boundary of an unnamed road at Longitude 119.852730 East (approximate Latitude 21.475569 South); Then generally southeasterly along the northern boundary of that road to the intersection with a northern boundary of an unnamed road at approximate Latitude 21.498854 South, Longitude 119.869380 East; Then southeasterly to the northern boundary of an unnamed road at Longitude 119.924790 East (approximate Latitude 21.556268 South); Then generally easterly and generally southeasterly along the northern boundary of that road to a northern boundary of Reserve 13688; Then easterly along the northern boundary of that reserve to an eastern boundary of Marble Bar Road; Then generally northeasterly along the eastern boundary of that road to a northern boundary of Pastoral Lease N050430 (Bonney Downs); Then easterly along the northern boundary of that pastoral lease to Longitude 120.182175 East; Then generally southeasterly through the following coordinate points:
Latitude (South)
Longitude (East)
21.628577
120.309534
21.650809
120.358589
21.651869
120.383450
21.655083
120.402871
21.685371
120.451960
21.709376
120.505090
21.730180
120.545738
21.756928
120.590609
21.781702
120.667513
21.796067
120.695338
21.810767
120.757742
Then southeasterly to the intersection of the centreline of Skull Springs Road with Longitude 120.764565 East (approximate Latitude 21.824529 South); Then generally southeasterly along the centreline of that road to Longitude 120.811567 East; Then generally southerly through the following coordinate points:
Latitude (South)
Longitude (East)
21.886884
120.824312
21.922576
120.840730
21.949345
120.847155
21.973615
120.845014
21.990390
120.839303
22.009307
120.840017
22.036076
120.828238
Then southerly to the intersection of a northern boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) with Longitude 120.830735 East; Then southwesterly along the boundary of that native title determination and generally northwesterly along the boundaries of that native title determination to Latitude 21.982987 South, Longitude 120.260763 East; Then northwesterly to Latitude 21.917778 South, Longitude 120.188863 East being a point on the present boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 3) (WCD2021/003); Then westerly to Latitude 21.916020 South, Longitude 120.087871 East being a point on the present boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002); Then northwesterly to Latitude 21.848444 South, Longitude 120.052088 East being a point on the present boundary of Native Title Determination WAD483/2018 Palyku #2 (WCD2021/006); Then northwesterly to Latitude 21.745504 South, Longitude 119.503750 East being a point on the present boundary of Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002); Then generally northwesterly along the boundaries of that native title determination to the intersection with Longitude 119.324160 East being a point on the present boundary of Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (Area 1) (WCD2021/003); Then generally northwesterly along the northeastern boundaries of that native title determination back to the commencement point.
Note: Geographic Coordinates provided in Decimal Degrees.
All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.
Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 28th September 2023.
Skull Springs Road centreline based on 250K vector data sourced from © Commonwealth of Australia (Geoscience Australia) 2006.
For the avoidance of doubt the Nyamal Area excludes any land and waters already claimed by:
• Native Title Determination WAD20/2019 Nyamal People #1 (WCD2019/010) as Determined in the Federal Court on 24 September 2019.
• Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) as Determined in the Federal Court on 26 September 2018.
• Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) as Determined in the Federal Court on 12 March 2019.
• Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (WCD2021/003) as Determined in the Federal Court on 10 March 2021.
For the avoidance of doubt the Palyku Area excludes any land and waters already claimed by:
• Native Title Determination WAD6280/1998, WAD196/2013, WAD90/2020 Nyiyaparli and Nyiyaparli #3 (WCD2018/008) as Determined in the Federal Court on 26 September 2018.
• Native Title Determination WAD23/2019 Palyku Part A (WCD2019/002) as Determined in the Federal Court on 12 March 2019.
• Native Title Determination WAD23/2019, WAD483/2018 Palyku and Palyku #2 (WCD2021/003) as Determined in the Federal Court on 10 March 2021.
• Native Title Determination WAD483/2018 Palyku #2 (WCD2021/006) as Determined in the Federal Court on 6 September 2021.
Datum: Geocentric Datum of Australia 2020 (GDA2020)
Prepared By: Geospatial (Landgate) 25th October 2023
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 4 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.
For the avoidance of doubt, the non-existence of native title is not necessarily a result of the grant or creation of these interests.
1. Freehold
The following grants of estates in fee simple within the Determination Area:
Certificate of Title
Certificate of Title
Certificate of Title
CT0032500083
CT0145200145
CT0186300066
CT0048700037A
CT0145200146
CT0187300502
CT0048700038A
CT0145200147
CT0189400937
CT0057000114A
CT0149900129
CT0189800630
CT0069000046
CT0164800918
CT0190300096
CT0107000328
CT0165500284
CT0190300128
CT0107000810
CT0166100096
CT0191200610
CT0107000811
CT0168300239
CT0191300826
CT0109500331
CT0168400351
CT0192500309
CT0111000752
CT0168400352
CT0193700786
CT0111800998
CT0170900799
CT0193700787
CT0118300017
CT0171200074
CT0194300066
CT0120100971
CT0175500447
CT0196300976
CT0124100438
CT0178400082
CT0199400988
CT0125901000
CT0179500005
CT0202500386
CT0140400634
CT0180900764
CT0204400082
CT0144400416
CT0180900765
CT0206300360
CT0144400417
CT0181000130
CT0206400388
CT0144600912
CT0181200338
CT0206400540
CT0144600913
CT0181300137
CT0206400861
CT0144600914
CT0181300138
CT0207500291
CT0144600915
CT0181300157
CT0210200141
CT0145000867
CT0184900329
CT0210300010
CT0145200143
CT0185000517
CT0211100688
CT0145200144
CT0186300004
CT0212000878
Certificate of Title
Certificate of Title
Certificate of Title
CT0214100913
CT0297900219
GT0002200671
CT0215200992
GT0002000148
GT0002200787
CT0216200920
GT0002000149
GT0002300074
CT0217500557
GT0002000150
GT0002300093
CT0218900219
GT0002000406
GT0002300094
CT0222000875
GT0002100780
GT0002300095
CT0258500847
GT0002200163
GT0002300096
CT0275300407
GT0002200327
GT0002300217
CT0282000145
GT0002200353
GT0002300773
CT0286300890
GT0002200354
GT0002700132
CT0296100627
GT0002200431
LG0036100011
CT0296100628
GT0002200432
CT0296100629
GT0002200485
2. Reserves
The following Reserves:
Reserve No.
Current / Last Purpose
02804 (part)[1]
Common
07865
Warden's Court and Police (subject to a public work)
07979
Common (formerly subject to RL 332/0568)
09049
Road Board Office
09718
State Battery
12375
Historical Well
12410
Commonage
12411
Commonage
12764
Water (formerly subject to RL 332/0568)
12765
Water (formerly subject to RL 332/0568)
13673
Timber (formerly subject to RL 332/0568)
13674
Timber (formerly subject to RL 332/0568)
14728
Water Supply
15469
Water
19459
Water
23347
Aid Post
23348
Park
25927
School Site (subject to a public work)
27496
Caravan Park
30548
Hall and Community Service Centre
32769
Light Industry
32770
Shire Workshop and Depot
33851
Recreation
Reserve No.
Current / Last Purpose
38413
Water Supply
39086
Water Supply
39087
Water Supply
41327
Use and Requirements of the Government Employees Housing Authority (subject to a public work)
41328
Recreation
41716
Communications Mast
42451
Aerodrome
3. Roads
The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):
MapInfo ID.
Description
Shown on
Road 026
Portion of widening of Marble Bar Road
DP 51197
Road 029
Unnamed rights of way and roads
DP 144241
Road 030
Portion of Airport Road
DP 181171
Road 038
Corner of Great Northern Highway and Airport Road
DP 213676
Road 040
Howard Road
DP 216422
Road 043
Portion of Gallop Road
DP 218031
Road 050
Road No. 3857
DP 213166 & Gaz 01/04/1977 & 14/09/1979
Road 054
Road No. 16109 (Gallop Road)
DP 214379 & Gaz 01/12/1978
Road 055
Road No. 16110 (Walters Street)
DP 214379 & Gaz 01/12/1978
Road 067
Road No. 00389
CPP 503165 & Gaz 07/06/1895
Road 069
Road No. 00762
CPP 503190, CPP 503163 & Gaz 02/12/1898
Road 070
Road No. 01425
Map SF 51-5 1:250,000 & Gaz 19/12/1902
Road 072
Road No. 00762 (formerly Great Northern Highway)
CPP 503164
Road 077
Portion of Cooke Street
CPP 504924
Road 078
Unnamed right of way
DP 144242
Road 082
Various roads in Nullagine
DP 222932
Road 083
Unnamed right of way
DP 90335
Road 084
Portion of Clemensen and Cooke Streets
DP 90336
Road 086
Road No. 03437
CPP 503165, CPP 503171 & Map SF 51-5 1:250,000
Road 095
Road No. 06443
Map SF 50-8 1:250,000, Map 2855 1:100,000, Map SF 51-5 1:250,000 & Gaz 29/04/1921
Road 099
Road No. 06447
CPP 503187 & Gaz 29/04/1921
Road 102
Road No. 07345
Map SF 50-8 1:250,000 & Gaz 29/05/1925
Road 103
Road No. 07346
CPP 503164, CPP 503187, DP 238589, DP 238674 & Gaz 29/05/1925 & 05/06/1925
Road 111
Road No. 09365
CPP 503190 & Gaz 21/09/1934
Road 112
Road No. 09680
CPP 503189, Gaz 07/08/1936 & Gaz 14/08/1936
Road 113
Road No. 10217
Map SF 51-5 1:250,000 & Gaz 09/05/1958
Road 114
Road No. 10500
CPP 503190, Map SF 50‑8 1:250,000, Map SF 5105 1:250,000 & Gaz 29/11/1957
Road 117
Corner of Cooke and Walters Streets
DP 67448
Hist. Road 001
Howard Road and unnamed right of way
DP 213676 & Gaz 0606/1986
Hist. Road 010
Portion of Walker Street
DP 144241
Hist. Road 011
Grant Street, Hourigan Street and Clemensen Street
DP 93611& DP 222932
Hist. Road 012
Various roads in Nullagine
DP 222932
Hist. Road 013
Various roads in Nullagine
DP 222932
Hist. Road 016
Portion of Walters Street
DP 222932
Hist. Road 018
Portion of Massingham Street
DP 222932
Hist. Road 019
Portion of Hourigan Street
DP 222932
Hist. Road 020
McFie Street
DP 222932
Hist. Road 021
Various roads in Nullagine
DP 222932
4. Public works
Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles Validation Act or section 23C(2) of the Native Title Act applies.
SCHEDULE FIVE
AREAS TO WHICH SECTIONS 47A and 47B OF THE NATIVE TITLE ACT APPLY
(Paragraph 10)
1. Section 47A
Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded:
Interest
Description / Purpose
Reserve 16682
Use and Benefit of Aborigines (Palyku #1)
Reserve 36567 (part)
That part of Reserve 36567 (Use and Benefit of Aboriginal Inhabitants) not formerly subject to Historical Roads 12 and 13 (Palyku #1)
Reserve 42717
Use and Benefit of Aboriginal Inhabitants (Palyku #2)
CT0209500726
Freehold property held by the Irrungadji Group Association Inc (Palyku #1)
CT0121500602
Freehold property held by Irrungadji Group Association Inc (Palyku #2)
CT0140400635
Freehold property held by Western Desert Puntukurnuparna Aboriginal Corporation (Palyku #1)
2. Section 47B
Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest (to the extent that the areas were not covered by an interest described in 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:
MapInfo ID.
Description
UCL 21
The whole of UCL 21, formerly subject to part of Reserve 02804
UCL 22 (part)
That part of UCL 022 not subject to mining leases M 46/009 and M 46/263 (being formerly subject to part of Reserve 02804 (Palyku #2)
UCL 36 (part)
That part of UCL 36 that was not subject to Historic Roads 16 and 21 or covered by mining leases M46/154, M46/009 or M46/063 at the time that claim was made (Palyku #1)
UCL 39 (part)
That part of UCL 39 that was not subject to Historic Roads 20 and 21 or covered by mining lease M46/154 at the time that the claim was made (Palyku #1)
UCL 45 (part)
That part of UCL 45 that was not subject to Historic Road 16 or covered by mining lease M46/009 at the time the claim was made (Palyku #1)
UCL 53 (part)
That part of UCL 53 that was not subject to Historic Road 21 or covered by mining lease M46/154 at the time the claim was made (Palyku #1)
UCL 293
The whole of UCL 293, formerly subject to CT0206300361 and part of CT0117000546 (Palyku #1)
UCL 294
The whole of UCL 294, formerly subject to CT0206300362 and part of CT0117000546. (Palyku #1)
UCL 297
The whole of UCL 297, formerly subject to CT0156600572 (Palyku #1)
UCL 309 (part)
That part of UCL 309 formerly subject to part of Reserve 31317 (Palyku #1) other than that portion covered by Mining Lease M46/154 at the time that the claim was made (Palyku #1).
-
That part of unallocated Crown land formerly subject to Reserve Lease RL 332/2179 (and Reserve 02804) (Palyku #2)
SCHEDULE SIX
OTHER INTERESTS
Paragraph 11
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 28 September 2023. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 1 November 2023. All other interests are current as at the date of the determination.
1. Freehold Titles
The following grants of estates in fee simple within the Determination Area:
Certificate of Title
CT0121500602
CT0140400635
CT0209500726
2. Reserves
(a) the following reserves:
Reserve No.
Current / Last Purpose
02805
Water
04974
Water
07587
Water
07588
Water
08932
Water
09700
De Grey - Peak Hill Stock Route
10976
Common
10977
Common
11082
Water
11409
Water
11293
Water
12048
Water
12060
Water
12194
Water
12347
Water
12348
Water
12349
Water
12402
Water
12763
Water
12766
Water
12767
Water
12768
Water
12770
Water
12771
Water
12774
Water
12777
Water
12783
Water
12784
Water
12785
Water
13628
Timber
13663
Timber
13664
Timber
13665
Timber
13668
Timber
13669
Timber
13670
Timber
13671
Timber
13672
Timber
13675
Timber
13684
Timber
13685
Timber
13688
Timber
13689
Timber
13690
Timber
13691
Timber
13692
Timber
13693
Timber
13695
Timber
15159
Warrawagine to Battle Hill Stock Route
16682
Use and Benefit of Aborigines
19460
Timber
24122
Mining
32645
Cemetery
36567
Use and Benefit of Aboriginal Inhabitants
42717
Use and Benefit of Aboriginal Inhabitants
50148
Water Supply
50151
Preservation of Geological Features
(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;
(c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and
(d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.
3. Pastoral Leases
(a) The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
Lease No.
Description
PL N049420
Mt Divide
PL N049879
Wandanya
PL N049987
Eginbah
PL N050058
Noreena Downs
PL N050429
Corunna Downs
PL N050430
Bonney Downs
PL N050452
Hillside
PL N050453
Panorama
(b) Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in subclause (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.
4. Leases
The following leases and the rights and interests of the holders from time to time of those leases:
Lease No.
Purpose
GE M390740
Installation, Maintenance and Operation of Telecommunications Network Facility or Radio Communications
RL K298954
Grazing
5. Easements
The following easements and the rights and interests of the holders from time to time of those easements:
Easement No.
Purpose
H680000
Water Pipeline
L428602
Access to, and construction, repair, maintenance, replacement and use of a seismic monitoring station
6. Roads
The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:
MapInfo ID.
Description
Shown on
Road 008
Lots 252 - 4 (being a portion of Walker Street)
DP 219891
Road 027
Lots 507 - 9
DP 64270
7. Mining Tenements
The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements:
(a) Mining Leases
Tenement ID
Tenement ID
Tenement ID
M 45/0004
M 45/0668
M 45/1243-I
M 45/0084
M 45/0669
M 45/1257-I
M 45/0115
M 45/0670
M 45/1267
M 45/0238
M 45/0671
M 45/1290
M 45/0240
M 45/0672
M 46/0003
M 45/0346
M 45/0678
M 46/0009
M 45/0357
M 45/0679
M 46/0010
M 45/0521
M 45/0682
M 46/0011
M 45/0547
M 45/0692
M 46/0043
M 45/0552
M 45/0725
M 46/0044
M 45/0579
M 45/0906
M 46/0047
M 45/0589
M 45/0987
M 46/0050
M 45/0591
M 45/1197-I
M 46/0056
M 45/0656
M 45/1209-I
M 46/0057
Tenement ID
Tenement ID
Tenement ID
M 46/0064
M 46/0244
M 46/0303
M 46/0098
M 46/0245
M 46/0426
M 46/0115
M 46/0260
M 46/0427
M 46/0124
M 46/0261
M 46/0428
M 46/0129
M 46/0262
M 46/0429
M 46/0142
M 46/0263
M 46/0430
M 46/0146
M 46/0264
M 46/0431
M 46/0163
M 46/0265
M 46/0432
M 46/0164
M 46/0266
M 46/0433
M 46/0165
M 46/0272
M 46/0434
M 46/0166
M 46/0273
M 46/0441
M 46/0167
M 46/0274
M 46/0442
M 46/0175
M 46/0275
M 46/0446
M 46/0177
M 46/0276
M 46/0447
M 46/0182
M 46/0277
M 46/0448
M 46/0187
M 46/0278
M 46/0524
M 46/0189
M 46/0279
M 46/0526-I
M 46/0198
M 46/0282
M 46/0527
M 46/0199
M 46/0283
M 46/0532
M 46/0200
M 46/0302
M 46/0225
M 46/0303
(b) Miscellaneous Licences
Tenement ID
Tenement ID
Tenement ID
L 45/060
L 45/567
L 46/088
L 45/280
L 45/573
L 46/089
L 45/371
L 45/588
L 46/090
L 45/372
L 45/592
L 46/091
L 45/394
L 45/593
L 46/092
L 45/399
L 45/598
L 46/098
L 45/406
L 45/606
L 46/105
L 45/407
L 45/609
L 46/109
L 45/408
L 45/649
L 46/113
L 45/410
L 45/666
L 46/115
L 45/418
L 45/683
L 46/122
L 45/427
L 45/685
L 46/123
L 45/523
L 45/689
L 46/127
L 45/526
L 46/022
L 46/147
L 45/527
L 46/024
L 46/158
L 45/564
L 46/033
L 46/166
L 45/565
L 46/067
L 46/178
L 45/566
L 46/070
(c) General Purpose Leases
Tenement ID
Tenement ID
Tenement ID
G 45/036
G 45/347
G 46/002
G 45/339
G 45/348
G 45/345
G 45/349
(d) Exploration Licences
Tenement ID
Tenement ID
Tenement ID
E 45/2763-I
E 45/4696-I
E 45/5695
E 45/2870-I
E 45/4708
E 45/5717
E 45/2922-I
E 45/4709
E 45/5728
E 45/3321-I
E 45/4713
E 45/5747
E 45/3381
E 45/4734-I
E 45/5823
E 45/3474
E 45/4764
E 45/5834
E 45/3615
E 45/4779
E 45/5835
E 45/3655
E 45/4824
E 45/5846
E 45/3940
E 45/4837
E 45/5847
E 45/4060-I
E 45/4841-I
E 45/5849
E 45/4098
E 45/4843
E 45/5879
E 45/4169-I
E 45/4856
E 45/5890
E 45/4175
E 45/4857
E 45/5891
E 45/4176
E 45/4879
E 45/5893
E 45/4177
E 45/4905
E 45/5933
E 45/4178
E 45/4906
E 45/5966
E 45/4180
E 45/4934
E 45/5967
E 45/4236
E 45/4965
E 45/5969
E 45/4275
E 45/5036
E 45/5972
E 45/4320
E 45/5201
E 45/5975
E 45/4419
E 45/5203
E 45/5976
E 45/4473
E 45/5204
E 45/5984
E 45/4474
E 45/5205
E 45/5985
E 45/4475
E 45/5230
E 45/5986
E 45/4476
E 45/5231
E 45/5987
E 45/4553
E 45/5263
E 45/6043
E 45/4555
E 45/5322
E 45/6054
E 45/4586
E 45/5340
E 45/6055
E 45/4587
E 45/5453
E 45/6069
E 45/4601
E 45/5478
E 45/6077
E 45/4622
E 45/5597
E 45/6097
E 45/4666
E 45/5684
E 45/6211
E 45/4681
E 45/5685
E 45/6215
E 45/4685-I
E 45/5693
E 45/6224
Tenement ID
Tenement ID
Tenement ID
E 45/6280
E 46/1129-I
E 46/1399
E 45/6407
E 46/1148
E 46/1406
E 45/6471
E 46/1190
E 46/1413
E 46/0517-I
E 46/1197
E 46/1415
E 46/0525-I
E 46/1198
E 46/1416
E 46/0530-I
E 46/1201
E 46/1417
E 46/0535-I
E 46/1202
E 46/1421
E 46/0571-I
E 46/1277
E 46/1422
E 46/0711-I
E 46/1280
E 46/1428
E 46/0732-I
E 46/1317
E 46/1430
E 46/0794
E 46/1332
E 46/1431
E 46/0795
E 46/1335
E 46/1455
E 46/0796
E 46/1340
E 46/1456
E 46/0797
E 46/1357
E 46/1457
E 46/0802-I
E 46/1363
E 46/1458
E 46/0934
E 46/1367
E 46/1463
E 46/0951
E 46/1368
E 46/1464
E 46/1026
E 46/1371
E 46/1492
E 46/1065-I
E 46/1373
E 46/1495
E 46/1066-I
E 46/1374
E 46/1501
E 46/1079-I
E 46/1375
E 46/1086
E 46/1382
E 46/1122-I
E 46/1390
E 46/1125-I
E 46/1393
(e) Prospecting Licences
Tenement ID
Tenement ID
Tenement ID
P 45/2964
P 45/2982
P 46/1681
P 45/2965
P 45/3002
P 46/1682
P 45/2966
P 45/3031
P 46/1683
P 45/2967
P 45/3033
P 46/1684
P 45/2968
P 45/3038
P 46/1704
P 45/2970
P 45/3100-S
P 46/1705
P 45/2971
P 45/3132
P 46/1706
P 45/2973
P 45/3140
P 46/1743
P 45/2974
P 45/3141-S
P 46/1744
P 45/2975
P 45/3154-S
P 46/1757
P 45/2976
P 45/3170
P 46/1758
P 45/2977
P 45/3171
P 46/1789
P 45/2979
P 46/1618
P 46/1790
P 45/2980
P 46/1669
P 46/1824
P 45/2981
P 46/1675
P 46/1855
Tenement ID
Tenement ID
Tenement ID
P 46/1858
P 46/1937
P 46/2001
P 46/1864
P 46/1939
P 46/2002
P 46/1868
P 46/1941
P 46/2003
P 46/1869
P 46/1942
P 46/2004
P 46/1872
P 46/1945
P 46/2005
P 46/1874
P 46/1947
P 46/2006
P 46/1875
P 46/1948
P 46/2007
P 46/1876
P 46/1950
P 46/2008
P 46/1878
P 46/1951
P 46/2010
P 46/1879
P 46/1952
P 46/2011
P 46/1880
P 46/1953
P 46/2013
P 46/1881
P 46/1954
P 46/2014
P 46/1882
P 46/1955
P 46/2018-S
P 46/1883
P 46/1956
P 46/2020-S
P 46/1884
P 46/1957
P 46/2021-S
P 46/1885
P 46/1958
P 46/2023
P 46/1886
P 46/1960
P 46/2025
P 46/1888
P 46/1964
P 46/2026
P 46/1900
P 46/1965
P 46/2027
P 46/1901
P 46/1967
P 46/2029
P 46/1902
P 46/1968
P 46/2030
P 46/1903
P 46/1969
P 46/2031
P 46/1904
P 46/1972
P 46/2032
P 46/1905
P 46/1974
P 46/2033
P 46/1906
P 46/1975
P 46/2034
P 46/1907
P 46/1976
P 46/2035
P 46/1908
P 46/1978
P 46/2036
P 46/1909
P 46/1979
P 46/2037
P 46/1910
P 46/1980
P 46/2038
P 46/1911
P 46/1981
P 46/2040
P 46/1912
P 46/1982
P 46/2041
P 46/1914
P 46/1983
P 46/2042
P 46/1915
P 46/1984
P 46/2046
P 46/1916
P 46/1990
P 46/2047
P 46/1917
P 46/1991
P 46/2048
P 46/1918
P 46/1992
P 46/2049
P 46/1919
P 46/1993
P 46/2050
P 46/1920
P 46/1994
P 46/2051
P 46/1922
P 46/1995
P 46/2052
P 46/1932
P 46/1996
P 46/2058
P 46/1933
P 46/1997
P 46/2059
P 46/1934
P 46/1998
P 46/2060
P 46/1935
P 46/1999
P 46/2061
P 46/1936
P 46/2000
P 46/2064
Tenement ID
Tenement ID
Tenement ID
P 46/2065
P 46/2081
P 46/2097
P 46/2066
P 46/2082
P 46/2098
P 46/2067
P 46/2083
P 46/2099
P 46/2068
P 46/2084
P 46/2100
P 46/2069
P 46/2085
P 46/2101
P 46/2070
P 46/2086
P 46/2102
P 46/2071
P 46/2087
P 46/2103
P 46/2072
P 46/2088
P 46/2104
P 46/2073
P 46/2089
P 46/2105
P 46/2074
P 46/2090
P 46/2075
P 46/2091
P 46/2076
P 46/2092
P 46/2077
P 46/2093
P 46/2078
P 46/2094
P 46/2079
P 46/2095
P 46/2080
P 46/2096
(f) Retention Licences
Tenement ID
R 46/3
8. Access to Mining Tenements
(a) Without limiting the operation of any other clause in Schedule Six, but subject to clause 8(b) below, any rights of the holders from time to time of a mining tenement including those listed in clause 7 of this Schedule Six, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this Determination) as are necessary to have access to the area the subject of the mining tenement for the purposes of exercising the rights granted by that tenement.
(b) Nothing in clause 8(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 8(a).
9. Other
The following rights and interests in the Determination Area:
(a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such 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, force and operation of the Rights in Water and Irrigation Act 1914 (WA);
(c) Rights and interests of members of the public arising under 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; or
(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 and unmanaged Crown reserves;
(e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the (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 of the Determination Area; or
(ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A) the land or waters of the Determination Area; or
(B) an estate or interest in the land or waters of the Determination Area; or
(iii) restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.
SCHEDULE SEVEN
NYAMAL PEOPLE
Paragraph 3
The Nyamal People are those persons who:
(a) are descended from Ngurrpangu @ Sally, Yirlkurani @ William Ball, Jarlapangu @ Billy Ball, Minparingu @ Daisy McColl, Wijiringu @ Joey, Ngamalykarinya @ Eginbah Murphy, Kutjikurtapa @ Fred Mitchell, Pularmu @ Albert, Martuwataranu @ Maryanne, Minjikarli @ Jimmy Woodman, Pularjiyi, Putangaja, Mikarnipirti, Mayinkapirti, Walykanpangu, Kujari @ Jenkins, Ngamalangu @ Nellie, Kalpimarra, Yirapinya, Warnangykuranya @ Tommy, Yatawaranu @ Yarriwawurru @ Dinah, Goondy @ Goondanee, Pilunjuji, Nyantipunu, Paddy Bung Bong, Amy Mirabung, Old Maybai, Mary (mother of Stella Ball), Minnie (mother of Allen Mitchell), Punkarli (mother of Alice Mitchell), Winturu, Susan Pontroy, Martin Pontroy or Jack Pontroy or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyamal People; and
(b) identify themselves as Nyamal under traditional law and custom and are so identified by other Nyamal People as Nyamal.
SCHEDULE EIGHT
PALYKU PEOPLE
Paragraph 4
The Palyku People are those Aboriginal persons who:
(a) are the cognatic descendants of, or are culturally reared up (adopted) by such cognatic descendants of, one or more of the following apical ancestors:
(i) Pitawanu;
(ii) Pupu;
(iii) Winnie;
(iv) Wilyarpirna;
(v) Puyungayi;
(vi) Yurramara;
(vii) Munjarnpirna and Jukukayi;
(viii) Jujuna;
(ix) Fannie, Annie Patawani and Chinaman Janjanamarlu;
(x) Pijipangu;
(xi) Kijiempa;
(xii) Maggie Kuntuwarrpangu;
(xiii) Peter Long Wayalpa;
(xiv) Julimanga;
(xv) Wantungu;
(xvi) Kalurru;
(xvii) Alec Weatherall;
(xviii) Major and Judy;
(xix) Mary Barrdi; or
(xx) Sophie Bunbry; and
(b) identify themselves, and are recognised by a substantial number of the descendants of the above apical ancestors as, a Palyku person; and
(c) have rights and interests in, and a connection with, the land and waters of the Palyku Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Palyku People.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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