The Nyamal Palyku Proceeding (No 8)

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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 2019

WAD 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

Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya'u determination) [2021] FCA 1464

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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Details
Case
[2024] FCA 11
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the parties in the Nyamal Palyku Proceeding (No 8) applied for a determination of native title over a specified area. The application was made following a hearing in which the issue of the identity of the holders of native title had been determined. The parties proposed consent orders for the determination of native title. The Court was required to consider the appropriate approach in circumstances where the facts were agreed but a hearing had been conducted in which evidence had been submitted by competing native title applicants. The Court had to determine whether it was appropriate to make orders for the determination of native title in light of the agreed facts.

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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