WF (Deceased) on behalf of the Wiluna People v State of Western Australia
[2013] FCA 755
FEDERAL COURT OF AUSTRALIA
WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755
Citation: WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Parties: WF (DECEASED), BARRY ABBOTT, ALAN ASHWIN, JUDY ASHWIN, KF (DECEASED), MJ (DECEASED), FJ (DECEASED), JM (DECEASED), BP (DECEASED), KITTY RICHARDS, DUSTY STEVENS, NORMAN THOMPSON, JOYCE TULLOCK, LT (DECEASED) and MW (DECEASED) ON BEHALF OF THE WILUNA PEOPLE v THE STATE OF WESTERN AUSTRALIA, BHP BILLITON NICKEL WEST PTY LTD, NEWMONT YANDAL OPERATIONS PTY LTD, JAW FORD (PAROO STATION), KIMLEY PTY LTD (CARNEGIE STATION), WAYNE WILLIAM LINKE, WILLIAM ROY LINKE, DAWN MARIE MARTIN, NIMINGA PTY LTD (NIMINGA STATION), JP & SA QUADRIO (GRANITE PEAK STATION), KENNETH ARTHUR SHAW, LR WARD (GLEN AYLE STATION), RW WARD (MILLROSE STATION), WILUNA STATIONS PTY LTD, WONGAWOL PTY LTD (WONGAWOL STATION), TELSTRA CORPORATION LIMITED and THE COMMONWEALTH OF AUSTRALIA
LT (DECEASED), CB (DECEASED), FJ (DECEASED) and ELIZABETH WONGYABONG v THE STATE OF WESTERN AUSTRALIA, CENTRAL DESERT NATIVE TITLE SERVICES LTD, BHP BILLITON NICKEL WEST PTY LTD and MPI NICKEL PTY LTD
VICTOR ASHWIN and KELMAN JAMES PATCH v THE STATE OF WESTERN AUSTRALIA
File numbers: WAD 6164 of 1998
WAD 248 of 2007
WAD 181 of 2012Judge: MCKERRACHER J Date of judgment: 29 July 2013 Catchwords: NATIVE TITLE – consent determinations pursuant to s 87 and s 87A of the Native Title Act 1993 (Cth) – whether statutory prerequisites met – whether appropriate – where several persons authorised have died Legislation: Native Title Act 1993 (Cth) ss 87, 87A Cases cited: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025
Brown (on behalf of the Ngarla People) v State of Western Australia (2012) 203 FCR 505
Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588
De Rose v South Australia (No 2) (2005) 145 FCR 290
Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365
Lennon v State of South Australia [2010] FCA 743
Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109Date of hearing: 29 July 2013 Place: Puwanu, Western Australia Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr M O'Dell with Mr MDF Allbrook Solicitor for the Applicant: Central Desert Native Title Services Limited Counsel for the Respondent: Mr AD Rorrison with Ms AB Preston-Samson Solicitor for the Respondent: State Solicitor’s Office
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6164 of 1998
BETWEEN: WF (DECEASED), BARRY ABBOTT, ALAN ASHWIN, JUDY ASHWIN, KF (DECEASED), MJ (DECEASED), FJ (DECEASED), JM (DECEASED), BP (DECEASED), KITTY RICHARDS, DUSTY STEVENS, NORMAN THOMPSON, JOYCE TULLOCK, LT (DECEASED) and MW (DECEASED) ON BEHALF OF THE WILUNA PEOPLE
ApplicantAND: THE STATE OF WESTERN AUSTRALIA, BHP BILLITON NICKEL WEST PTY LTD, NEWMONT YANDAL OPERATIONS PTY LTD, JAW FORD (PAROO STATION), KIMLEY PTY LTD (CARNEGIE STATION), WAYNE WILLIAM LINKE, WILLIAM ROY LINKE, DAWN MARIE MARTIN, NIMINGA PTY LTD (NIMINGA STATION), JP & SA QUADRIO (GRANITE PEAK STATION), KENNETH ARTHUR SHAW, LR WARD (GLEN AYLE STATION), RW WARD (MILLROSE STATION), WILUNA STATIONS PTY LTD, WONGAWOL PTY LTD (WONGAWOL STATION), TELSTRA CORPORATION LIMITED and THE COMMONWEALTH OF AUSTRALIA
Respondents
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 JULY 2013
WHERE MADE:
PUWANU, WESTERN AUSTRALIA
1.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 50 of 2010 be discontinued and no determination is made in respect of that part.
2.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 181 of 2012 be discontinued.
3.In relation to the Determination Area, there be a determination of native title in part of the area covered by WAD 6164 of 1998 and a determination of native title in the whole of the area covered by WAD 248 of 2007 and WAD 181 of 2012 in terms of the Determination at Attachment “A” to these orders. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.
4.Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:
(a)nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
(b)including within the nomination the written consent of the body corporate.
5.If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests described in order 3 in trust for the common law holders of the native title rights and interests.
6.In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.
7.There be no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 248 of 2007
BETWEEN: LT (DECEASED), CB (DECEASED), FJ (DECEASED) and ELIZABETH WONGYABONG
ApplicantsAND: THE STATE OF WESTERN AUSTRALIA, CENTRAL DESERT NATIVE TITLE SERVICES LTD, BHP BILLITON NICKEL WEST PTY LTD and MPI NICKEL PTY LTD
Respondents
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 JULY 2013
WHERE MADE:
PUWANU, WESTERN AUSTRALIA
1.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 50 of 2010 be discontinued and no determination is made in respect of that part.
2.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 181 of 2012 be discontinued.
3.In relation to the Determination Area, there be a determination of native title in part of the area covered by WAD 6164 of 1998 and a determination of native title in the whole of the area covered by WAD 248 of 2007 and WAD 181 of 2012 in terms of the Determination at Attachment “A” to these orders. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.
4.Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:
(a)nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
(b)including within the nomination the written consent of the body corporate.
5.If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests described in order 3 in trust for the common law holders of the native title rights and interests.
6.In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.
7.There be no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 181 of 2012
VICTOR ASHWIN and KELMAN JAMES PATCH
ApplicantsAND: THE STATE OF WESTERN AUSTRALIA
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
29 JULY 2013
WHERE MADE:
PUWANU, WESTERN AUSTRALIA
1.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 50 of 2010 be discontinued and no determination is made in respect of that part.
2.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 181 of 2012 be discontinued.
3.In relation to the Determination Area, there be a determination of native title in part of the area covered by WAD 6164 of 1998 and a determination of native title in the whole of the area covered by WAD 248 of 2007 and WAD 181 of 2012 in terms of the Determination at Attachment “A” to these orders. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.
4.Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:
(a)nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
(b)including within the nomination the written consent of the body corporate.
5.If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests described in order 3 in trust for the common law holders of the native title rights and interests.
6.In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.
7.There be no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 6164 of 1998
BETWEEN: WF (DECEASED), BARRY ABBOTT, ALAN ASHWIN, JUDY ASHWIN, KF (DECEASED), MJ (DECEASED), FJ (DECEASED), JM (DECEASED), BP (DECEASED), KITTY RICHARDS, DUSTY STEVENS, NORMAN THOMPSON, JOYCE TULLOCK, LT (DECEASED) and MW (DECEASED) ON BEHALF OF THE WILUNA PEOPLE
ApplicantAND: THE STATE OF WESTERN AUSTRALIA, BHP BILLITON NICKEL WEST PTY LTD, NEWMONT YANDAL OPERATIONS PTY LTD, JAW FORD (PAROO STATION), KIMLEY PTY LTD (CARNEGIE STATION), WAYNE WILLIAM LINKE, WILLIAM ROY LINKE, DAWN MARIE MARTIN, NIMINGA PTY LTD (NIMINGA STATION), JP & SA QUADRIO (GRANITE PEAK STATION), KENNETH ARTHUR SHAW, LR WARD (GLEN AYLE STATION), RW WARD (MILLROSE STATION), WILUNA STATIONS PTY LTD, WONGAWOL PTY LTD (WONGAWOL STATION), TELSTRA CORPORATION LIMITED and THE COMMONWEALTH OF AUSTRALIA
Respondents
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 248 of 2007
BETWEEN: LT (DECEASED), CB (DECEASED), FJ (DECEASED) and ELIZABETH WONGYABONG
ApplicantsAND: THE STATE OF WESTERN AUSTRALIA, CENTRAL DESERT NATIVE TITLE SERVICES LTD, BHP BILLITON NICKEL WEST PTY LTD and MPI NICKEL PTY LTD
Respondents
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 181 of 2012
VICTOR ASHWIN and KELMAN JAMES PATCH
ApplicantsAND: THE STATE OF WESTERN AUSTRALIA
Respondent
JUDGE: MCKERRACHER J DATE: 29 JULY 2013 WHERE MADE: PUWANU, WESTERN AUSTRALIA REASONS FOR JUDGMENT
(Revised from ex tempore reasons)INTRODUCTION
There are three applications before the Court today for determination pursuant to s 225 of the Native Title Act1993 (Cth) (Native Title Act). WAD 6164 of 1998 known as Wiluna, and WAD 181 of 2012 known as Wiluna #3, are made on behalf of the Wiluna claim group. WAD 248 of 2007 known as Tarlpa, is made on behalf of the Tarlpa claim group, which although differing in composition to the Wiluna claim group has a significant degree of overlap. Together the Wiluna and Tarlpa claim groups comprise the proposed native title holders for the area covered by all three applications.
THE APPLICATIONS
The Wiluna application covers approximately 47595.9 square kilometres of land and waters in the northwest goldfields region of Western Australia. The area claimed covers a number of pastoral leases and includes part of the Canning Stock Route from Wells 1 to 5 and areas of unallocated crown land including around Lake Carnegie in the east of the claim area. The application is a combined application of two previously separate applications, WAD 6164 of 1998 and WAD 6227 of 1997. WAD 6164 of 1998 was lodged with the National Native Title Tribunal (the Tribunal) on 28 April 1997 on behalf of the Tullock family over an area of land that covered the township of Wiluna and land and waters that extended to the south of Wiluna. WAD 6227 of 1997 was lodged with the Tribunal on 25 February 1998 on behalf of the Wiluna people in relation to an area of land and waters that overlapped part of the Tullock application. On 15 September 1999 the two applications were combined pursuant to s 64(2) of the Native Title Act, with WAD 6114 of 1998 as the lead application.
The Tarlpa application was filed on 14 December 2007 over an area of approximately 2265.26 square kilometres to the south of the township of Wiluna.
The Wiluna #3 application was filed on 3 August 2012 over an area of approximately 3596.52 square kilometres for the purpose of securing the application of s 47 of the Native Title Act over the area of land and waters covered by the pastoral lease K601976 (formally 3114/1065) being an area known a Windidda station. Of significance on the date of filing the application, pastoral lease K601976 was held by Windidda Aboriginal Corporation, a registered company whose shareholders are members of the native title claim group for the Wiluna #3 application.
Parties’ agreement to resolve the applications
The parties to the applications have reached an agreement through mediation as to the terms of the determination of native title pursuant to ss 87, 87A and 94A of the Native Title Act. In particular the agreement to a determination that native title exists relates to the land and waters covered by the Tarlpa and Wiluna #3 applications pursuant to s 87 of the Native Title Act, and part of the area of land and waters covered by the Wiluna application pursuant to s 87A of the Native Title Act. As to the remainder of the Wiluna application, the parties have agreed to the applicant discontinuing the application with respect to those areas of land and waters which are also covered by Wiluna #3 and WAD 50 of 2010 known as Birriliburu #3. The parties to the Wiluna application have also agreed that the remaining part of the Wiluna application which is covered by WAD 241 of 2004 known as Wiluna #2, will remain on foot to be finalised as part of the resolution of Wiluna #2.
In support of the agreement reached the applicant in each application has filed the following documents:
(a)A Minute of Proposed Consent Determination of Native Title (the Minute) signed by the applicant and each respondent party to the applications;
(b)Joint submissions of the applicant and State of Western Australia (the State) in support of the Minute;
(c)Further submissions of the applicant in relation to the Minute relating to the applicant’s legal position on two outstanding legal issues;
(d)An edited report entitled ‘Wiluna Native Title Claim Connection Report’ by Dr Lee Sackett; and
(e)An affidavit of Mr Malcolm O’Dell affirmed on 5 July 2013 deposing to the continuing authorisation of the applicant after the death of individual members of the applicant group.
In addition the State has filed an affidavit of Mr John Alan Catlin affirmed 3 July 2013 deposing to the basis on which the State agreed to enter into the agreement the subject of the Minute.
Of note, the Minute includes an agreement by the parties that the common law holders or the registered native title body corporate may seek a variation of the determination of native title in this matter, as it relates to pastoral improvements, in accordance with ss 13(1) and 13(5) of the Native Title Act in the event that the ruling of this Court in De Rose v South Australia (No 2) (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court of Australia (High Court) in the context of an appeal to the High Court from the decision of this Court in Brown (on behalf of the Ngarla People) v State of Western Australia (2012) 203 FCR 505. The parties have agreed that in the event of a variation application being made within 12 months of delivery of the High Court decision, each of the parties to that variation application will consent to the variation application being argued on its merits. Upon such variation application being made the agreement does not prevent any party from opposing a variation to the determination on the basis of the merits of such variation application.
In relation to determination of a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act, the Minute includes agreement that within 12 months of the date the determination is made, the common law holders of the native title rights and interests will nominate a prescribed body corporate pursuant to s 56 or s 57 of the Native Title Act. Until the nomination is made the determination of native title will not take effect and in the event that no nomination is made within 12 months of the date the determination is made, or such time as the Court may order, the matter is to be listed for further directions.
Assessment of connection
Mr Catlin’s affidavit deposes to the basis on which the State has reached an agreement with the applicants and the other respondents to the terms of a determination of native title rights and interests as reflected in the Minute. In particular Mr Catlin deposes that in 2009 Central Desert Native Title Services Limited on behalf of the applicants provided connection material to the State for assessment against the requirements of its Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title (October 2004) (the State’s Guidelines). Mr Catlin further notes that the applicants and the State agreed to depart from the usual process for connection assessment by adopting a two stage process of an experts’ conference which took place in Perth in May 2009 and an on-country meeting in September 2009. The applicants’ expert anthropologist, Dr Sackett, supplemented the oral discussion from those exchanges with written material.
The State’s assessment of the connection material included:
(a)attendance at the experts’ conference and on-country meeting and consideration of the written material by officers from the Land Approvals and Native Title Unit in the Department of the Premier and Cabinet which has the responsibility for conducting native title negotiations on behalf of the State;
(b)engaging an expert consultant anthropologist, Dr Scott Cane, to attend both the experts’ conference and on-country meeting and provide written advice; and
(c)instructing the State Solicitor’s Office to attend both the experts’ conference and on-country meeting and provide written advice.
Following completion of the assessment of connection material in May 2010, the State being satisfied that the connection material met the State’s Guidelines, agreed to enter into negotiations towards a determination of native title. The process of reaching agreement as outlined in Mr Catlin’s affidavit was through active mediation convened by the Court during the period of December 2010 to June 2013.
The State has relied on the Wiluna connection material and the process of assessment and advice on the material as the basis for entering into the agreement reflected by the Minute.
Connection to Country
The joint submissions in support of the Minute and Dr Sackett’s filed report provide the following information regarding the applicants’ connection to country:
(a)the Wiluna and Wiluna #3 applications take their name from the township of Wiluna and the Tarlpa application takes its name from a significant rockhole known as Tarlpa, in the south of the proposed determination area;
(b)the applicants are members of the broader Western Desert cultural bloc, the relevant ‘society’ for native title purposes;
(c)being members of the broader Western Desert cultural bloc, the applicants share a body of law and custom with other Western Desert native title holding groups including shared beliefs, rituals and gathering for ceremonial purposes;
(d)the applicants’ fundamental belief in the Jukurrpa (‘the Dreaming’ or ‘simply the Law’) is the source of Western Desert law and custom to which the applicants adhere, and governs their religious practices, social rules, systems of land tenure and other aspects of their lives;
(e)the applicants are an identifiable subset of the wider Western Desert cultural bloc who have rights and responsibilities to the land in the proposed determination area in accordance with Western Desert law and custom that recognises that certain individuals and family groups are associated with particular areas of country within the proposed determination area (with a degree of overlap or ‘shared country’);
(f)many of the applicants live at Kutkububba, Bondini, Windidda or in the township of Wiluna which are all within the proposed determination area and describe themselves, along with people from other parts of the Western Desert, as Martu;
(g)the applicants are also able to trace connection to countries north, northeast and east of the proposed determination area and some antecedents and/or senior claimants came to the proposed determination area from more remote traditional Western Desert homelands;
(h)traditionally the mechanisms for association with areas of land in the Western Desert included being conceived, born, grown up or initiated on country, or by having acquired knowledge of the country through long traditional association, or being descended from a person who had those connections. As a result, landholding groups were not patrilineally-patrilocally structured but rather members of these groups were landholders through their shared associations with and to land, and the groups were open and inclusive so that people had potential access to a number of areas through a variety of means;
(i)in the eastern part of the proposed determination area, the applicants have an ancestral connection to those who occupied the area at or around the acquisition of British sovereignty;
(j)in the western part of the proposed determination area, which it is agreed is within the areas traditionally associated with the Western Desert, there is limited ancestral link between the applicants and those who occupied the area at sovereignty. Rather, during the period of about 1925 to 1975 the applicants and their antecedents migrated into the area, mostly from areas to the north east, and over time rights were acquired in that area consistent with Western Desert traditional law and custom; and
(k)the Western Desert system of law and custom remains vital for the applicants who have an intimate knowledge of the law and custom including an extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions on women, young men and children). This includes acceptance by the applicants of responsibility which attaches to acquisition of knowledge both in relation to land and generally and the need to transmit that knowledge to younger generations. This is grounded in a system of kinship under which roles and responsibility are known and acknowledged (including in relation to ritual, marriage, death/burial etc). Appropriate behaviour is expected, and sanctions for breach exist under law and custom. Language is generally spoken by the applicants and traditional names for people and places are widespread and generally known.
Authorisation of the applicants
As outlined in the joint submissions, it is necessary to consider the continuing authorisation of the applicants after the sad death of individual members of the applicant groups in the Wiluna and Tarlpa applications. Specifically since the initial authorisation of the applicant in the Wiluna application in 1998, sadly, eight of the 15 persons named as the applicant have died. Similarly regarding the Tarlpa application, since the initial authorisation in 2007 three of the four persons named as the applicant have died. As a consequence the question arises as to whether the remaining named applicants continue to be authorised to deal with all matters arising in relation to the Wiluna and Tarlpa applications pursuant to the Native Title Act, including consenting to the proposed determination.
In considering this issue the Court notes the evidence provided in Mr O’Dell’s affidavit and the joint submissions supporting the on-going authorisation in this way:
(a)the authorisation process, being a decision-making process made in accordance with traditional law and custom, also limits the authority of the representative applicants by requiring that all important decisions are directed by the claim group including the decision to agree to the determination;
(b)the respective claim groups have continued to direct the representative applicants and the representative applicants have made all decisions in accordance with these directions including following the death of individual applicants; and
(c)by continuing this process following the death of individual applicants, the members of the respective native claim groups have at every opportunity on the death of a member of the applicant group either formally or informally expressed their authorisation of the surviving members of the applicant group.
In Lennon v State of South Australia [2010] FCA 743 Mansfield J in considering an application seeking orders for the removal of the names of two deceased persons from a list of persons named as applicant and held that, where one or more of a number of persons authorised to be the applicant in a claim for the determination of native title has died, generally the remaining persons so authorised may continue to deal with all matters arising under the Native Title Act in relation to the application. The remaining persons so authorised will continue to be ‘the applicant’ for that purpose: Lennon (at [1]). In the absence of evidence to the contrary, authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of the persons named as applicant : Lennon (at [34]).
The same reasoning is relevant to these applications and on that basis and in consideration of the evidence, the Court accepts that the applicant group in the Wiluna and Tarlpa remain authorised and have consented to the proposed determination.
Nomination of Prescribed Body Corporate
As noted, the Minute includes agreement that a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act will be nominated by the common law holders within 12 months of the date the determination is made. Order 4 in the Minute contemplates that until a determination of the prescribed body corporate is made, the determination of native title will not take effect. In the event that no nomination is made within 12 months of the date the determination is made, or such time as the Court may order, the matter is to be listed for further directions.
The delay in giving effect to the determination of native title because of the delay in determining the prescribed body corporate is not an ideal situation. However based on the circumstances as reflected in the Minute and the joint submissions in support of the Minute, the Court will make the orders accordingly.
Requirements pursuant to ss 87 and 87A Native Title Act
The applicants and the State submit that a determination of native title should be made pursuant to s 87 of the Native Title Act for the Tarlpa and Wiluna #3 applications and pursuant to s 87A of the Native Title Act for part of the area of the Wiluna application.
Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where:
(a)the period specified in the notice given under s 66 of the Native Title Act has ended and an agreement has been reached regarding the proceeding or part of the proceeding (s 87(1)(a));
(b)the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b));
(c)the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and
(d)it appears appropriate to the Court to make the orders sought (ss 87(1A) and 87(2)).
Section 87A of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:
(a)the period specified in the notice given under s 66 of the Native Title Act has ended (s 87A(1)(b));
(b)there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));
(c)the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2));
(d)the Registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3));
(e)the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8));
(f)the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and
(g)it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).
Regarding these requirements, pursuant to ss 87(1)(a) and 87A(1)(b) of the Native Title Act the notification period ended for the Tarlpa application on 29 October 2008, for the Wiluna #3 application on 9 July 2013 and for the Wiluna application on 17 August 2000.
The Minute reflects the agreement reached for a proposed determination of native title, is filed with the Court, is in writing and is signed by or on behalf of the parties to the applications: ss 87(1)(b), 87A(1)(b)), 87A(1)(c), 87A(1)(d), 87A(2) of the Native Title Act.
The agreement for a proposed determination of native title is in relation to the land and waters claimed in the Tarlpa and Wiluna #3 applications and part of the land and waters claimed in respect to Wiluna: ss 87(1)(a) and 87A(1)(b).
On 17 July 2013 in compliance with s 87A(3) of the Native Title Act the Registrar gave notice to the other parties to the Wiluna application that the proposed determination of native title for part of the Wiluna application was filed with the Court on 5 July 2013: s 87A(3). No objections were received and therefore it is not necessary for the Court to take into account any objections: s 87A(8).
The orders sought in the Minute are consistent with the terms of the agreement pursuant to ss 87(1)(c) and 87A(4)(a) of the Native Title Act for the following reasons:
(a)the proposed determination complies with ss 94A and 225 of the Native Title Act;
(b)the applications pursuant to s 251B of the Native Title Act are validly made having been authorised by the applicant group in each application according to decision-making process that, under the traditional laws and customs of each applicant group, authorised the named applicant in each matter to make the applications.
(c)as required by s 61A(1) of the Native Title Act each application is for a determination of native title in relation to areas for which there is no approved determination of native title; and
(d)the parties agree that:
(i)the pre-conditions for the application of s 47 of the Native Title Act have been met in relation to pastoral lease K601976;
(ii)the pre-conditions for the application of s 47A of the Native Title Act have been met in relation to Reserves 23985, 25670, 32146, 34096, 41801 and 42002 and fee simple interests the subject of CT1356/564, CT1356/565, CT1356/566, CT2052/626, CT2070/454 and CT2095/021; and
(iii)the pre-conditions for the application of s 47B of the Native Title Act have been met in relation to unallocated Crown land 2, 6, 9, 10, 12, 13, 22, 35, 36 and 37,
with the result that any extinguishment of native title in relation to those areas must be disregarded in accordance with those provisions.
Finally in considering whether the orders sought are appropriate to make, the exercise of the Court’s discretion under s 87A of the Native Title Act imports the same principles as those which apply under s 87. As Bennett J noted in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (at [22]) the discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Native Title Act.
The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties. This is because the Native Title Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. When the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. Rather the primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (at [9]) per Bennett J.
Therefore it is not necessary for the Court to embark on its own full inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (at [3]) per French J, as his Honour then was. However the Court may consider evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 (at [29]-[30]) per Emmett J.
In relation to the applications, all parties have been legally represented throughout the mediation process. In particular the State has played an active role in the negotiation of the consent determination and the State, acting on behalf of the community generally, having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process of the connection material, has satisfied itself that the determination is justified in all the circumstances. In addition following the assessment process, mediation was convened by Registrars of the Court during the period of December 2010 to June 2013 which effectively assisted the parties reaching agreement.
In addition the State has conducted searches of land tenure, mining and petroleum registries to determine the extent of ‘other interests’ within the proposed determination area, and those interests are included in the proposed determination, as outlined in Schedule 5 to the Minute.
There are no other applications before the Court relating to native title determination applications that cover any part of the proposed determination area which would otherwise require orders to be made under s 67(1) of the Native Title Act.
In light of the above, the Court is satisfied, pursuant to s 87 of the Native Title Act in relation to the Tarlpa and Wiluna #3 applications and s 87A of the Native Title Act in relation to part of the Wiluna application, that it is appropriate to make the orders sought by the parties in the Minute.
The Court is satisfied that the agreement reached by the parties as reflected in the Minute has been freely entered into on an informed basis. In particular the State has played an active role in the negotiation of the proposed consent determination in mediation and has acted in good faith and rationally.
CONCLUSION
By signing the Minute all other parties to the proceeding have indicated their agreement and their involvement is not to be forgotten. In the circumstances the Court considers it appropriate to make the determination of native title in the terms proposed.
The Native Title Act encourages the resolution by agreement of applications for determinations of native title. In these applications the agreement reached has been assisted by the Tribunal and by the mediation convened by Registrars of the Court. The applicants, the State, the non-State respondent parties, legal representatives and all those involved in assisting resolve these proceedings by agreement are to be congratulated.
In making a determination of native title in the terms set out in the Minute, the Court is recognising what has always existed. Additionally, the nature of the determination recognises not just the applicants’ rights but how they operate in relation to other interests, including those of the respondents with whom agreement has been reached.
For those reasons the following orders are made in recognition that native title exists in accordance with the traditional laws and customs of the applicants:
1.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 50 of 2010 be discontinued and no determination is made in respect of that part.
2.Any part of the application for a determination of native title in WAD 6164 of 1998 that overlaps the native title application in WAD 181 of 2012 be discontinued.
3.In relation to the Determination Area, there be a determination of native title in part of the area covered by WAD 6164 of 1998 and a determination of native title in the whole of the area covered by WAD 248 of 2007 and WAD 181 of 2012 in terms of the Determination at Attachment “A” to these orders. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth) as the case may be.
4.Within 12 months of the date upon which these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are invited to do so by:
(a)nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and
(b)including within the nomination the written consent of the body corporate.
5.If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests described in order 3 in trust for the common law holders of the native title rights and interests.
6.In the event that there is no nomination within the time specified in order 4, or such later time as the Court may order, the matter is to be listed for further directions.
7.There be no order as to costs.
I certify that the preceding forty (40) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 31 July 2013
ATTACHMENT “a”
determination
THE COURT ORDERS AND DETERMINES THAT:
Existence of native title (s 225)
1.Native title exists in relation to the whole of the Determination Area identified in Part 1 of Schedule 1, subject to the exclusions in Part 3 of Schedule 1 (Determination Area).
2.Native title does not exist in the areas described in Part 2 of Schedule 1.
Native title holders (s 225(a))
3.The native title is held by the persons described in Schedule 2 (native title holders).
The nature and extent of native title rights and interests (s 225(b); s 225(e))
4.Subject to Orders 7 to 9, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] is the right of possession, occupation, use and enjoyment of that part as against the whole world.
5.Subject to Orders 6 to 9, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 [being areas where the native title right of possession, occupation, use and enjoyment is not available at law including by reason of partial extinguishment] are the following rights or interests:
(a)the right to access, to remain in and to use that part;
(b)the right to take and use resources in that part; and
(c)the right to have access to, maintain and protect places, and areas and objects of importance on or in that part.
Qualifications on native title rights and interests (s 225(b); s 225(e))
6.The native title rights and interests referred to in Order 5 do not confer:
(a)possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holders to the exclusion of all others; nor
(b)a right to control access to, or use of, those parts of the Determination Area.
7.The native title rights and interests are exercisable in accordance with and subject to the:
(a)traditional laws and customs of the native title holders; and
(b)laws of the State and the Commonwealth, including the common law.
8.For the avoidance of doubt:
(a)the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water; and
(b)the native title right to take resources in relation to the Determination Area recognised by this determination is a right in native title holders to take resources for the purpose of satisfying their personal, domestic or non-commercial communal needs (including social, cultural, religious, spiritual and ceremonial needs and including by way of sharing and exchange).
9.Notwithstanding anything in this Determination, there are no native title rights and interests in the Determination Area in or in relation to:
(a)minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or
(b)petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Resources Energy Act 1967 (WA); or
(c)geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).
The nature and extent of any other interests (s 225(c))
10.The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 5 (other interests).
Relationship between native title rights and other interests (s 225(d))
11.Except as otherwise provided for by law, the relationship between the native title rights and interests and the other interests is as follows:
(a)the Determination does not affect the validity of those other interests;
(b)to the extent of any inconsistency between the other interests and 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
(c)otherwise the other interests co-exist with the native title rights and interests and, for the avoidance of doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them.
12.Without affecting the operation of paragraph 11 above, the native title holders and the holders of the pastoral leases 3114/654 (Granite Peak), 3114/960 (Millrose), 3114/1049 (Cunyu), 3114/1066 (Prenti Downs), 3114/1067 (Yelma), 3114/1068 (Wongawol), 3114/1069 (Niminga), 3114/1070 (Carnegie) and 3114/1131 (Paroo) (being the current holders of an other interest for the purposes of the Determination) have:
(a)agreed in writing to the principles which will apply to the exercise of their co-existing rights, subject to any variation as may be agreed from time to time;
(b)reproduced those principles such as they are agreed as at the date of the Determination in Schedule 6; and
(c)agreed that any rights conferred by those principles do not form part of this determination made for the purposes of sections 94A and 225 of the Native Title Act.
Liberty to apply
13.The parties have liberty to apply for the following purposes:
(a)to establish the precise location of the boundaries of land on which the improvements referred to in Schedule 1, Part 2 of this Determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements;
(b)to establish whether any of the improvements referred to at Schedule 1, Part 2 of this Determination have been constructed unlawfully in breach of the terms of the relevant pastoral lease; and
(c)to establish the precise location of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in Schedule 1, Part 3 of this Determination.
Areas to which ss 47, 47A and 47B of the Native Title Act apply
14.For the avoidance of doubt, sections 47, 47A and 47B of the Native Title Act respectively apply to the areas described in Schedule 8.
Interpretation
15.In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the Maps in Schedule 7, the written descriptions shall prevail.
16.In this Determination, unless the contrary intention appears:
land and waters respectively have the same meanings as in the Native Title Act;
resources means flora, fauna, water and other natural resources; and
State means the State of Western Australia.
SCHEDULE 1 – DETERMINATION AREA
[See Order 1]
Part 1 – External Boundaries and areas of land and waters where native title exists
Subject to the exclusions in Part 3, the Determination Area comprises all of the area of land and waters within the external boundaries described in Part 1 marked on the maps in Schedule 7 with a blue line (WAD 6164/1998), an orange line (WAD 248/2007) and a yellow line (WAD 181/2012):
[WAD 6164/1998 – Wiluna]
1.In relation to WAD 6164/1998, all those land and waters commencing:
[Portion 1]
(a)All those lands and waters commencing at the northwestern corner of the western severance of Pastoral Lease 3114/654 (Granite Peak) being a point on the present boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WC1998/068) and extending easterly and southerly along boundaries of that native title determination to the northernmost northwestern corner of the eastern severance of Pastoral Lease 3114/654 (Granite Peak); Then southerly, generally easterly, again southerly and easterly along boundaries of that pastoral lease to the intersection with the northernmost northwestern corner of Unallocated Crown Land being Lot 4 as shown on Deposited Plan 220354; Then southerly, westerly, again southerly, easterly, again southerly and again easterly along boundaries of that lot to the southwestern corner of Unallocated Crown Land being Lot 3 as shown on Deposited Plan 220354; Then easterly, northerly, again easterly and again northerly along boundaries of that lot to its easternmost northeastern corner being a point on the present boundary of Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WC1998/068); Then extending northerly, westerly, again northerly and northwesterly along boundaries of that native title determination to the intersection with a southern boundary of Native Title Application WAD50/2010 Birriliburu #3 (WC2010/002); Then easterly and northerly along boundaries of that native title application to the westernmost southwestern corner of the eastern severance of Pastoral Lease 3114/1070 (Carnegie); Then northerly, easterly, southerly, generally easterly and generally southerly along boundaries of that severance to the northernmost northeastern corner of Pastoral Lease 3114/1066 (Prenti Downs); Then southerly, westerly and again southerly along boundaries of that pastoral lease to Latitude 26.527203 South; Then southwesterly to Latitude 26.654609 South, Longitude 122.927246 East; Then westerly to easternmost southeastern corner of Pastoral Lease PL K601976 (Windidda); Then northerly, generally westerly, southerly and westerly along boundaries of that pastoral lease to the easternmost northeastern corner of Pastoral Lease 3114/1067 (Yelma); Then southerly and generally westerly along boundaries of that pastoral lease to intersection with a eastern boundary of Pastoral Lease 3114/472 (Lake Violet); Then southerly and westerly along boundaries of that pastoral lease to Longitude 121.017081 East; Then generally northwesterly through the following coordinate positions.
LATITUDE (SOUTH) LONGITUDE (EAST) 26.834142 121.016025 26.828110 121.014255 26.818018 121.011107 26.812565 121.008939 26.806880 121.006771
Then northwesterly to the intersection of a western boundary of Pastoral Lease 3114/472 (Lake Violet) at Latitude 26.798382 South; Then northerly and generally westerly along boundaries of that pastoral lease to the southernmost southeastern corner of the eastern severance of Pastoral Lease 3114/1260 (Millbillillie); Then westerly along the southern boundary of that severance to the intersection with a eastern boundary of Reserve 9699; Then southeasterly along the boundary of that reserve to Latitude 26.758218 South; Then west to a western boundary of Reserve 9699; Then southeasterly along that boundary to the prolongation northerly of the easternmost eastern boundary of Reserve 19456; Then southerly to and southerly, westerly, northerly and easterly along boundaries of that reserve to Longitude 120.193480 East; Then generally northerly and westerly through the following coordinate positions.
LATITUDE (SOUTH) LONGITUDE (EAST) 26.703535 120.194485 26.695743 120.194458 26.695836 120.178475
Then westerly to the southeastern corner of the western severance of Pastoral Lease Pastoral Lease 3114/1260 (Millbillillie); Then westerly and northerly along boundaries of that pastoral lease to the intersection with a southern boundary of Pastoral Lease 3114/1131 (Paroo); Then westerly, northerly, again westerly, generally northeasterly and again northerly along boundaries of that pastoral lease to the intersection with the southern boundary of Road No. 7583 (Goldfields Highway); Then generally westerly along the southern boundary of that road to a eastern boundary of Road No. 4274; Then generally northeasterly and generally northerly along boundaries of that road to the westernmost northwestern corner of Pastoral Lease 3114/1049 (Cunyu); Then generally easterly along boundaries of that pastoral lease to the intersection with a western boundary of Pastoral Lease 3114/654 (Granite Peak); Then northerly along that pastoral lease back to the commencement point.
[Portion 2]
(b)All those lands and waters commencing from the intersection of a northern boundary of Unallocated Crown Land being Lot 3 as shown on Deposited Plan 220354 with Longitude 122.000000 East; Then due south to Latitude 25.600000 South; Then due east to Longitude 122.100000 East; Then due north to a northern boundary of Unallocated Crown Land being Lot 3 as shown on Deposited Plan 220354; Then westerly along the northern boundary of that lot back to the commencement point.
[Portion 3]
(c)All that land comprising Reserve 43016.
[Exclusions]
(d)All those lands and waters commencing from the westernmost northwestern corner of Unallocated Crown Land being Lot 27 as shown on Deposited Plan 220011 and extending easterly, northerly and generally easterly along boundaries of that lot to the westernmost corner of Unallocated Crown Land being Lot 8 as shown on Deposited Plan 220011; Then easterly and southerly along boundaries of that lot to a northeastern corner of Unallocated Crown Land being Lot 27 as shown on Deposited Plan 220011; then southerly, easterly and again southerly along boundaries of that lot to Latitude 26.198661 South; Then westerly to Longitude 121.584723 East, Latitude 26.198662 South; Then due south to Latitude 26.248662 South; Then due east to a eastern boundary of Unallocated Crown Land being Lot 27 as shown on Deposited Plan 220011; Then southerly generally westerly, northerly, westerly, northwesterly and northerly along boundaries of that lot 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 1st May 2013.
For the avoidance of doubt the application excludes any land and waters already claimed by:
Native Title Determination WAD6284/1998 Birriliburu People (Part A) (WC1998/068) as Determined in the Federal Court on the 20th June 2008.
Native Title Application WAD50/2010 Birriliburu #3 (WC2010/002) as Filed in the Federal Court on the 15th March 2010.
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared by: Native Title Spatial Services (Landgate) 3rd July 2013
[WAD 248/2007 – Tarlpa]
2.In relation to WAD 248/2007 all those lands and waters commencing at the northernmost northwestern corner of the northwestern severance of Pastoral Lease 3114/1164 (Lake Way) being a point on the present boundary of Native Title Application WAD6164/1998 Wiluna (WC1999/024); Then extending easterly, generally southeasterly, generally northerly and generally easterly along boundaries of that native title application to the easternmost northeastern corner of the eastern severance of Pastoral Lease 3114/1164 (Lake Way). Then southerly and westerly along boundaries of that severance to a eastern boundary of Lot 304 as shown on Deposited Plan 45189; Then westerly and generally northwesterly along the boundaries of that lot to the intersection with a eastern boundary of reserve 9699; Then southerly along the boundary of that reserve to the intersection with the prolongation easterly of a southern boundary of the southwestern severance of Pastoral Lease 3114/1164 (Lake Way); Then westerly to and generally westerly, northerly and northeasterly along boundaries of that pastoral lease to the intersection with the southern boundary of Reserve 12827; Then westerly, northerly and easterly along boundaries of that reserve to the intersection with Pastoral Lease 3114/1164 (Lake Way); Then generally northwesterly, northerly, generally westerly and again northerly along boundaries of that pastoral lease 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 1st May 2013
For the avoidance of doubt the application excludes any land and waters already claimed by:
Native Title Application WAD6164/1998 Wiluna (WC1999/024) as accepted for registration on the 24th September 1999.
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared by: Native Title Spatial Services (Landgate) 3rd July 2013
[WAD 181/2012 – Wiluna #3]
3.In relation to WAD 181/2012 all those lands and waters commencing at the westernmost northwestern corner of Pastoral Lease PL K601976 (Windidda) and extending easterly, northerly, generally easterly, southerly, generally westerly and again northerly along boundaries of that pastoral lease back to the commencement point.
4.For the avoidance of doubt, WAD 181/2012 does not include all those lands and waters comprising Reserve 43016.
Note: Geographic Coordinates provided in Decimal Degrees
Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 1st May 2013
Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared by: Native Title Spatial Services (Landgate) 3rd July 2013
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.
Part 2 – Areas of land and waters where native title does not exist
[The areas in paragraphs 1 – 3 below are areas of land and waters within the Determination Area where native title does not exist as a result of pastoral improvements.]
1.Any areas of land or waters where any of the following improvements constructed on pastoral leases within the Determination Area:
(a)sheds, buildings and electrical generation facilities;
(b)constructed airstrips;
(c)bores, turkey nests, squatters' tanks, constructed dams or other constructed stock watering points;
(d)stockyards;
(e)trapyards; and
(f)constructed roads.
The areas described by (a)-(f) comprise land on which the improvements have been constructed prior to the date of this Determination, and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements.
2.The following locations and adjacent land or waters within a 2km radius of each location, being areas of land and waters on pastoral leases within the Determination Area on which pastoral improvements being a homestead or house has been constructed prior to the date of this Determination.
Homestead Latitude (South) Longitude (East) Carnegie Station (pastoral lease 3114/1070) 25.7962 122.9752 Cunyu Station (pastoral lease 3114/1049) 25.707360 120.347020 Granite Peak Station (pastoral lease 3114/654) 25.636750 121.354320 Lake Violet Station (pastoral lease 3114/472) 26.5376 120.6636 Lake Way Station (pastoral lease 3114/1164) 26.9409 120.4661 Millbillillie Station (pastoral lease 3114/1260) 26.6192 120.3317 Millrose Station (pastoral lease 3114/960) 26.398440 120.954130 Niminga Station (pastoral lease 3114/1069) 25.47243 122.41170 Prenti Downs Station (pastoral lease 3114/1066) 26.515820 122.806730 Wongawol Station (pastoral lease 3114/1068) 26.121530 121.941840 Yelma Station (pastoral lease 3114/1067) 26.535050 121.689330
3.The land and waters within a 2 km radius of the coordinates 26.351159 latitude (South) and 120.641225 longitude (East), being areas of land and waters on the Jundee Station pastoral lease (3114/1253) within the Determination Area on which pastoral improvements of a homestead or house have been constructed prior to the date of this Determination, with the exception of the area bounded by the following coordinate positions which are within the Determination Area and which represent an area where native title exists:
Latitude (South) Longitude (East) 26.360314 120.644215 26.360257 120.652832 26.335759 120.652535 26.338368 120.642687 26.350452 120.642652 26.352011 120.643602
The areas described in paragraphs 2 and 3 above are shown generally on the maps in Schedule 7 as shaded brown.
Part 3 – Excluded areas
[The areas in paragraphs 1 and 2 below are not included in the Determination Area because they are not included in the originating native title determination applications WAD 6164/1998, WAD 248/2007 and WAD 181/2012.]
1.The areas the subject of the following interests are areas of land and waters where native title has been completely extinguished (either by reason of a previous exclusive possession act (sections 61A and 23B of the Native Title Act and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) or at common law) and are excluded from the Determination Area on that basis.
A. LAND INTERESTS
Reserve RES 05558 RES 21025 RES 21984 RES 39673 RES 06217 RES 21078 RES 23013 RES 39719 RES 07361 RES 21097 RES 23797 RES 41125 RES 07835 RES 21132 RES 29960 RES 41878 RES 08384 RES 21137 RES 30708 RES 42372 RES 08724 RES 21142 RES 30771 RES 42376 RES 09909 RES 21257 RES 30982 RES 42468 RES 11621 RES 21280 RES 32988 RES 42638 RES 12188 RES 21281 RES 33839 RES 42639 RES 13334 RES 21282 RES 34508 RES 42666 RES 15900 RES 21306 RES 34554 RES 42725 RES 19006 RES 21580 RES 35768 RES 42832 RES 19222 RES 21651 RES 36186 RES 43016 RES 20185 RES 21652 RES 38746 RES 50295 RES 20576 RES 21689 RES 39432 RES 20992 RES 21880 RES 39502
Fee simple CT127/177 CT1039/623 GT17/665 CT915/114 CT167/34 CT1039/624 GT17/696 LG454/117 CT167/35 CT1039/625 GT17/738 LG456/77 CT167/36 CT1039/626 GT17/739 LG456/97 CT167/98 CT1039/627 GT17/753 LG457/127 CT173/123 CT1039/628 GT18/29 LG458/168 CT173/124 CT1039/637 GT18/30 LG471/160 CT173/125 CT1039/638 GT18/31 LG491/17 CT173/126 CT1039/639 GT18/32 LG510/146 CT173/128 CT1039/660 GT18/33 LG510/171 CT173/129 CT1039/661 GT18/34 LG522/61 CT173/131 CT1039/918 GT18/222 LG528/174 CT173/167 CT1039/976 GT18/244 CT27/332A CT173/196 CT1044/136 GT18/245 CT34/216A CT173/197 CT1044/709 GT18/246 CT173/167 CT176/1 CT1044/744 GT18/297 CT517/178A CT179/51 CT1044/745 GT18/325 CT551/165A CT179/55 CT1044/784 GT18/369 CT1011/231 CT179/56 CT1047/85 GT18/370 CT1012/050 CT179/57 CT1047/114 GT18/387 CT1033/607 CT179/58 CT1047/115 GT18/388 CT1034/272 CT179/87 CT1047/346 GT18/389 CT1034/663 CT179/103 CT1047/347 GT18/390 CT1035/542 CT179/132 CT1047/409 GT18/391 CT1040/548 CT179/133 CT1047/517 GT18/392 CT1041/826 CT179/134 CT1047/560 GT18/393 CT1044/701 CT179/135 CT1047/561 GT18/394 CT1044/743 CT192/3 CT1047/674 GT18/395 CT1046/502 CT192/4 CT1047/793 GT18/396 CT1048/249 CT198/192 CT1052/212 GT18/397 CT1048/748 CT456/45 CT1052/213 GT18/398 CT1054/570 CT1013/584 CT1052/214 GT18/399 CT1058/542 CT1029/548 CT1052/368 GT18/400 CT1058/898 CT1029/635 CT1052/278 GT18/401 CT1061/067 CT1032/333 CT1052/380 GT18/602 CT1155/312 CT1032/740 CT1052/387 GT18/603 CT1191/277 CT1032/766 CT1052/416 GT18/629 CT1281/999 CT1032/771 CT1052/490 GT18/737 CT1293/319 CT1032/966 CT1052/648 GT18/738 CT1353/443 CT1032/967 CT1052/649 GT18/766 CT1356/567 CT1035/111 CT1052/831 GT19/56 CT1360/162 CT1035/188 CT1057/975 GT19/185 CT1373/396 CT1035/198 CT1064/625 GT19/186 CT1373/397 CT1035/251 CT1208/5 GT19/187 CT1379/272 CT1035/308 CT1267/103 GT19/353 CT1420/752 CT1035/383 CT1316/950 GT19/354 CT1420/753 CT1035/384 CT1349/693 GT19/355 CT1546/115 CT1035/429 CT1405/343 GT19/535 CT1602/843 CT1035/460 CT1405/344 GT19/580 CT1602/844 CT1035/465 CT1602/850 GT19/581 CT1602/845 CT1035/503 CT1604/351 GT19/723 CT1602/846 CT1035/525 CT2006/559 GT20/30 CT1602/848 CT1035/553 CT2006/560 GT20/89 CT1602/850 CT1035/582 CT2194/798 GT20/105 CT1604/302 CT1035/632 CT2194/799 GT20/529 CT1604/351 CT1035/761 GT16/37 GT20/530 CT1639/204 CT1035/840 GT16/167 GT20/675 CT1733/499 CT1035/841 GT16/286 GT20/724 CT1765/515 CT1035/842 GT16/287 GT20/725 CT1765/516 CT1035/843 GT16/448 GT20/787 CT1766/398 CT1035/844 GT16/513 GT20/788 CT1810/185 CT1035/845 GT16/514 GT21/36 CT1810/187 CT1035/846 GT16/580 GT21/37 CT2188/500 CT1035/847 GT16/581 GT21/49 CT2194/701 CT1035/848 GT16/601 GT21/50 CT2194/798 CT1035/857 GT16/615 GT21/51 CT2194/799 CT1035/981 GT16/731 GT21/81 CT2223/667 CT1039/53 GT16/793 GT21/119 CT1039/132 GT17/85 GT21/332 CT1039/224 GT17/86 GT21/374 CT1039/312 GT17/230 GT21/431 CT1039/331 GT17/490 GT22/20 CT1039/529 GT17/491 GT22/21 CT1039/622 GT17/492 GT22/467
Leasehold CL0193200714 CL0193301325 CL0193401072 CL0193600748 CL0193200843 CL0193301326 CL0193401075 CL0193600751 CL0193200859 CL0193301338 CL0193401078 CL0193600752 CL0193201042 CL0193301339 CL0193401126 CL0193600762 CL0193201153 CL0193301340 CL0193401127 CL0193600769 CL0193201158 CL0193301341 CL0193401140 CL0193600834 CL0193201159 CL0193301348 CL0193401150 CL0193600835 CL0193201178 CL0193301352 CL0193401181 CL0193600836 CL0193201179 CL0193301354 CL0193401202 CL0193600837 CL0193201182 CL0193301355 CL0193401212 CL0193600845 CL0193201212 CL0193301363 CL0193401213 CL0193600846 CL0193201228 CL0193301372 CL0193401214 CL0193600887 CL0193201238 CL0193301395 CL0193401253 CL0193600912 CL0193201473 CL0193301396 CL0193401296 CL0193600913 CL0193300048 CL0193301397 CL0193500075 CL0193600915 CL0193300049 CL0193301398 CL0193500079 CL0193600916 CL0193300133 CL0193301399 CL0193500080 CL0193600969 CL0193300260 CL0193301400 CL0193500081 CL0193600992 CL0193300261 CL0193301401 CL0193500082 CL0193601036 CL0193300297 CL0193301429 CL0193500091 CL0193601037 CL0193300308 CL0193301438 CL0193500092 CL0193601125 CL0193300359 CL0193301439 CL0193500267 CL0193601127 CL0193300360 CL0193301440 CL0193500268 CL0193601128 CL0193300362 CL0193301461 CL0193500269 CL0193601159 CL0193300370 CL0193301483 CL0193500270 CL0193601241 CL0193300396 CL0193301485 CL0193500476 CL0193601261 CL0193300423 CL0193301489 CL0193500487 CL0193601411 CL0193300429 CL0193301493 CL0193500571 CL0193601421 CL0193300453 CL0193301512 CL0193500691 CL0193601433 CL0193300468 CL0193301513 CL0193500692 CL0193601434 CL0193300541 CL0193301561 CL0193501193 CL0193601435 CL0193300553 CL0193301563 CL0193501199 CL0193601436 CL0193300561 CL0193400041 CL0193501200 CL0193601476 CL0193300563 CL0193400058 CL0193501201 CL0193601505 CL0193300569 CL0193400076 CL0193600001 CL0193601506 CL0193300576 CL0193400164 CL0193600066 CL0193601543 CL0193300608 CL0193400165 CL0193600120 CL0193601595 CL0193300643 CL0193400179 CL0193600121 CL0193601599 CL0193300655 CL0193400194 CL0193600124 CL0193601630 CL0193300853 CL0193400204 CL0193600138 CL0193601631 CL0193300906 CL0193400235 CL0193600141 CL0193601677 CL0193300908 CL0193400248 CL0193600192 CL0193601695 CL0193300909 CL0193400249 CL0193600213 CL0193601737 CL0193300911 CL0193400288 CL0193600217 CL0193601808 CL0193300916 CL0193400307 CL0193600220 CL0193601816 CL0193300918 CL0193400316 CL0193600229 CL0193601817 CL0193300940 CL0193400317 CL0193600239 CL0193601819 CL0193300958 CL0193400318 CL0193600246 CL0193601820 CL0193300960 CL0193400319 CL0193600280 CL0193601878 CL0193300961 CL0193400327 CL0193600288 CL0193700077 CL0193300965 CL0193400330 CL0193600290 CL0193700107 CL0193300977 CL0193400334 CL0193600296 CL0193700108 CL0193300983 CL0193400335 CL0193600303 CL0193700109 CL0193301008 CL0193400336 CL0193600304 CL0193700110 CL0193301009 CL0193400340 CL0193600309 CL0193700132 CL0193301022 CL0193400341 CL0193600311 CL0193700176 CL0193301025 CL0193400346 CL0193600313 CL0193700177 CL0193301038 CL0193400351 CL0193600314 CL0193700242 CL0193301041 CL0193400429 CL0193600394 CL0193700244 CL0193301048 CL0193400430 CL0193600395 CL0193700253 CL0193301056 CL0193400437 CL0193600416 CL0193700254 CL0193301060 CL0193400438 CL0193600425 CL0193700255 CL0193301061 CL0193400476 CL0193600426 CL0193700256 CL0193301070 CL0193400542 CL0193600427 CL0193700304 CL0193301071 CL0193400545 CL0193600430 CL0193700305 CL0193301074 CL0193400547 CL0193600431 CL0193700343 CL0193301082 CL0193400677 CL0193600432 CL0193700344 CL0193301116 CL0193400682 CL0193600442 CL0193700345 CL0193301122 CL0193400687 CL0193600446 CL0193700346 CL0193301124 CL0193400693 CL0193600449 CL0193700428 CL0193301167 CL0193400697 CL0193600464 CL0193700429 CL0193301175 CL0193400698 CL0193600468 CL0193700446 CL0193301180 CL0193400702 CL0193600480 CL0193700663 CL0193301186 CL0193400704 CL0193600495 CL0193700888 CL0193301188 CL0193400706 CL0193600501 CL0193701016 CL0193301191 CL0193400712 CL0193600527 CL0193701354 CL0193301192 CL0193400745 CL0193600528 CL0193701461 CL0193301210 CL0193400746 CL0193600530 CL0193800187 CL0193301215 CL0193400750 CL0193600535 CL0193800298 CL0193301216 CL0193400807 CL0193600536 CL0193800914 CL0193301218 CL0193400845 CL0193600551 CL0193801559 CL0193301219 CL0193400849 CL0193600559 CL0194000185 CL0193301220 CL0193400852 CL0193600562 CL01947021558 CL0193301246 CL0193400913 CL0193600582 CL0196200422 CL0193301283 CL0193400914 CL0193600599 CL1332/1933 CL0193301310 CL0193400915 CL0193600600 CL135/1933 CL0193301313 CL0193400916 CL0193600610 CL996/1933 CL0193301317 CL0193400957 CL0193600626 I122018 CL0193301323 CL0193400976 CL0193600652 R717/41A CL0193301324 CL0193400977 CL0193600653
Special lease R3116_0473 CL1858/1989 CL1037/1989 I126866 CL40/1970 CL108/1987 CL1049/1989 I150545 CL1860/1989 CL132/1989 CL431/1991 CL1996/464
Easement F 924685 G 205196
B. MINING INTERESTS
Residence lease RL 5300001 RL 5300004 RL 5300007 RL 5300002 RL 5300005 RL 5300008 RL 5300003 RL 5300006 RL 5300009
Mining lease M 5300006
C. ROADS
Dedicated roads Road 1 (Sandstone - Wiluna Road) Road 15 Road 29 Road 2 (Road No. 04344) Road 16 Road 30 (Goldfields Highway) Road 3 (Road No. 04829) Road 17 Road 31 (Goldfields Highway) Road 4 (Road No. 05684) Road 18 Road 32 (Goldfields Highway) Road 5 (Road No. 07583) Road 19 Road 33 Road 6 (Road No. 09146) Road 20 Road 34 Road 7 (Pt Road No. 9493) Road 21 Road 35 Road 8 (Road No. 9587) Road 22 Road 36 Road 9 (Road No. 10439) Road 23 Road 37 (Road No. 3895) Road 10 (Road No. 10473) Road 24 Road 38 (Road No. 4344) Road 11 (Road No. 15609) Road 25 Road 39 (Road No. 7583) Road 12 Road 26 Road 40 (Road No. 10439) Road 13 Road 27 Road 41 (Goldfields Highway) Road 14 Road 28
2.Any other areas of land or waters where a public work as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies.
SCHEDULE 2 – NATIVE TITLE HOLDERS
[The persons referred to in Order 3]
1.The native title holders are persons who:
(a)have rights in part or all of the Determination Area through descent (whether from a parent or grandparent from the area or who died and is buried in the area), conception and/or birth within the area, long-term residence within the area, high ritual knowledge within the area or responsibility for sites within the area; and
(b)who are recognised under the traditional laws and customs by the other native title holders as having rights in the Determination Area.
2.At the date of this Determination, this includes the following persons who are recognised under the relevant traditional laws and customs by the other native title holders as having rights in the Determination Area:
(a)the descendants of the union of the following people:
(i)Milpuntu/Jack Abbott and Puku/Amy Abbott;
(ii)Warilki Anderson and Tjungtawa/Skinny Fannie/Bunnie Stevens;
(iii)Maitungkata/Paddy Anderson and Kiliya/Amy Anderson;
(iv)Yingkali Manara/Mickey Ingle and Kurutjuli/Miriam;
(v)Kunamalaya/Jacky Jackman and Wilunya/Wilana Brown/Jackman;
(vi)Peter Gogo and Lady Gogo;
(vii)Ngalama/Old Paul Morgan and Wangu;
(viii)Lenny Morrison and Fannie Jones/Stevens;
(ix)Anthony Jones and May Jones;
(x)Charlie Riley and Biddy Riley;
(xi)Muddy Patch and Marlala Nanji;
(xii)Kurril/Scotty/Ted/Packhorse Rennie Tullock and Daisy Garland;
(xiii)Piparntjukurr and Kiri/Keri Muru;
(xiv)Wuli/Jimmy Wongawol and Lily Munda;
(xv)Nyarraur/Cutline/Ben Brown and Amy Jackman/Brown;
(xvi)Nanyi-Nanyi/Mr P/Billy Patch and Rosalie Anderson/Patterson; and
(xvii)Wakukutjara and Yayangarta.
(b)the descendants of the following people:
(i)Cyril Bingham;
(ii)Munga/Margaret Long;
(iii)Tauwi/Miriam Stewart;
(iv)Mimpu/Willy Williams;
(v)Ningara Martin;
(vi)Mirta-Mirta/Andy Campbell;
(vii)Kutulan/Hitler Richards;
(viii)Lorna Redman/Stewart;
(ix)Nyunyi/Maudie Jackman;
(x)Ngalyakarnpal/Barbara Anderson;
(xi)Rosy Grant;
(xii)Alfie Ashwin;
(xiii)Gladys Bingham;
(xiv)Adam Bingham;
(xv)Christine Bingham;
(xvi)James Harris;
(xvii)Winya/Minnie;
(xviii)Yungkutjuru/Kitty Hill;
(xix)Tulkiwa/Jeanie Elliott;
(xx)Molly Long;
(xxi)Mitjipung/Sandy/Santa Clause;
(xxii)Kanturangu/Frank Narrier;
(xxiii)Yarltat/Joe Finch;
(xxiv)Pangka Wongawol/Riley;
(xxv)Saxon/Jackson Stevens;
(xxvi)Yupun;
(xxvii)Tjiriltjukul;
(xxviii)Yutunga/Udunga Kianga;
(xxix)Yinyiyapa/Ruby Jackson/Parker;
(xxx)Wungkajtu/George Wongajoe;
(xxxi)Molly Anderson;
(xxxii)Eddieman/Edmund/Eddie Redman; and
(xxxiii)Minnie Wongawol.
(c)the following people and the descendants of their unions with the listed deceased partner:
(i)Jimmy Patch (deceased) and Maxine Warren;
(ii)Yalyalyi/Jack Stevens (deceased) and Tilly Gogo/Stevens;
(iii)Tjupi-Tjupi/Peter Stewart (deceased) and Tjilpi/Greta Long; and
(iv)Yatjuwunga/Peter (deceased) and Katjipil/Daisy Kaddabil.
(d)the following people and their descendants:
(i)Firestick/Barry Abbott;
(ii)Nyapala Morgan;
(iii)Wendy Redman/Abbott;
(iv)Nyulkul-Nyulkul/Dusty Stevens;
(v)Creamy Allison;
(vi)Monty Allison;
(vii)Elizabeth Wongyabong; and
(viii)Shirley Wongyabong.
(e)the following people:
(i)Matuwa/Norman Thompson.
SCHEDULE 3 – WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION
[See Order 4]
The parts of the Determination Area where native title comprises the rights and interests set out in Order 4 are shown generally on the maps in Schedule 7 as shaded pink.
SCHEDULE 4 – WHERE NATIVE TITLE IS NOT EXCLUSIVE POSSESSION
[See Order 5]
The parts of the Determination Area where native title comprises the rights and interests set out in Order 5 are shown generally on the maps in Schedule 7 as shaded beige and comprise:
1.The following stock routes:
(a)the Canning Stock Route; and
(b)Stock Route 1.
2.Areas the subject of the following interests:
A. LAND INTERESTS
Reserve RES 04945 RES 07662 RES 19281 RES 21442 RES 04946 RES 07850 RES 19456 RES 21467 RES 04947 RES 08620 RES 20335 RES 21508 RES 04948 RES 09699 RES 20413 RES 21776 RES 05277 RES 09815 RES 20598 RES 22037 RES 05555 RES 10087 RES 20662 RES 22175 RES 05557 RES 11447 RES 20794 RES 31830 RES 05559 RES 11448 RES 20800 RES 31947 RES 05561 RES 11449 RES 20914 RES 42676 RES 05562 RES 12307 RES 20997 RES 05565 RES 13096 RES 21043 RES 06918 RES 13097 RES 21083 RES 07447 RES 13441 RES 21109
Pastoral lease 0247/102 0408/97 3472/97 395/0762 0248/102 0409/97 3473/97 395/0764 0863/102 0410/97 3475/97 395/0780 0864/102 0411/97 3477/97 395/0838 0907/102 0412/97 3481/97 395/0848 0987/102 0435/97 3485/97 395/0849 0988/102 0450/97 3491/97 395/0850 1015/102 0484/97 3492/97 395/0863 1026/102 0501/97 3495/97 395/0875 1027/102 0540/97 3503/97 395/0906 1041/102 0541/97 3519/97 395/0910 1065/102 0551/97 3524/97 395/0917 1066/102 0552/97 3528/97 395/0920 1132/102 0553/97 3530/97 395/0921 1160/102 0562/97 3531/97 395/0923 1184/102 0567/97 3534/97 395/0929 1216/102 0574/97 3537/97 395/0950 1217/102 0577/97 3538/97 395/0951 1227/102 0578/97 3539/97 395/0961 1235/102 0586/97 3540/97 395/0965 1331/102 0625/97 3541/97 395/0970 1387/102 0627/97 3552/97 395/0971 1434/102 0628/97 3567/97 395/0974 1447/102 0629/97 3579/97 395/0975 1502/102 0630/97 3592/97 395/0976 1570/102 0631/97 3594/97 395/0979 1624/102 0633/97 3597/97 395/1053 1723/102 0634/97 3602/97 395/1055 1797/102 0635/97 3608/97 395/1062 1971/102 0636/97 3623/97 395/1065 2003/102 0638/97 3624/97 395/1099 2157/102 0639/97 3637/97 398/0422 2158/102 0640/97 3657/97 398/0485 2240/102 0641/97 3664/97 398/0539 2241/102 0642/97 3672/97 398/0540 2242/102 0643/97 3682/97 398/0541 2248/102 0645/97 3699/97 398/0542 2277/102 0646/97 3703/97 398/0543 2494/102 0795/97 3708/97 398/0544 2503/102 0797/97 3709/97 398/0545 2506/102 0805/97 3711/97 398/0546 2601/102 0806/97 3714/97 398/0547 2610/102 0810/97 3723/97 398/0548 2611/102 0818/97 3732/97 398/0549 2612/102 0823/97 3740/97 398/0550 2633/102 0840/97 3755/97 398/0551 2634/102 0841/97 3765/97 398/0552 2678/102 0842/97 3768/97 398/0558 2687/102 0845/97 3114/0412 398/0572 2688/102 0849/97 3114/0445 398/0576 2694/102 0851/97 3114/0472 398/0579 2872/102 0854/97 3114/0503 398/0641 2873/102 0972/97 3114/0542 4/0605 2916/102 0974/97 3114/0627 4/0606 2918/102 0976/97 3114/0654 4/0607 2923/102 0989/97 3114/0737 4/0608 2924/102 2642/97 3114/0955 4/0734 2925/102 2643/97 3114/0960 4/0735 2926/102 2650/97 3114/0988 4/0736 3151/102 2651/97 3114/1049 4/0740 3162/102 2652/97 3114/1059 4/0859 3200/102 2653/97 3114/1062 70/0138 3201/102 2654/97 3114/1065 70/0340 3202/102 2771/97 3114/1066 70/0343 3245/102 2851/97 3114/1067 70/0351 3393/102 2887/97 3114/1068 70/0352 3453/102 2971/97 3114/1069 70/0353 3454/102 3000/97 3114/1070 70/0355 0831/94 3034/97 3114/1131 70/0357 0834/94 3039/97 3114/1164 70/0359 0847/94 3040/97 3114/1253 70/0425 0848/94 3048/97 3114/1260 70/0426 0865/94 3081/97 395/0405 70/0427 0918/94 3082/97 395/0406 70/0428 1009/94 3089/97 395/0407 70/0429 1045/94 3101/97 395/0415 70/0434 1072/94 3128/97 395/0424 70/0436 1083/94 3134/97 395/0425 70/0437 1093/94 3135/97 395/0426 70/0438 1097/94 3136/97 395/0430 70/0439 1195/94 3137/97 395/0431 70/0440 1242/94 3143/97 395/0435 70/0441 1250/94 3149/97 395/0450 70/0442 1322/94 3168/97 395/0451 70/0443 1356/94 3174/97 395/0452 70/0444 1363/94 3175/97 395/0460 70/0445 1366/94 3196/97 395/0463 70/0446 1378/94 3198/97 395/0511 70/0447 1382/94 3205/97 395/0512 70/0448 1383/94 3206/97 395/0513 70/0449 1393/94 3214/97 395/0514 70/0456 1394/94 3229/97 395/0515 70/0457 1408/94 3230/97 395/0516 70/0479 1409/94 3231/97 395/0517 70/0480 1572/96 3240/97 395/0561 70/0490 0230/97 3260/97 395/0562 70/0537 0231/97 3269/97 395/0564 70/0540 0233/97 3270/97 395/0572 70/0541 0241/97 3271/97 395/0574 70/0542 0256/97 3277/97 395/0587 70/0543 0258/97 3278/97 395/0588 70/0544 0261/97 3279/97 395/0589 70/0545 0262/97 3280/97 395/0590 70/0546 0275/97 3281/97 395/0591 70/0552 0276/97 3288/97 395/0592 70/0554 0283/97 3297/97 395/0593 70/0556 0288/97 3300/97 395/0619 70/0557 0289/97 3307/97 395/0620 70/0558 0307/97 3311/97 395/0634 70/0729 0308/97 3321/97 395/0671 70/0731 0310/97 3323/97 395/0672 70/0732 0319/97 3332/97 395/0673 70/0735 0322/97 3333/97 395/0674 70/0736 0323/97 3338/97 395/0676 70/0836 0332/97 3346/97 395/0677 70/0842 0333/97 3350/97 395/0678 70/0843 0341/97 3365/97 395/0679 70/0844 0356/97 3375/97 395/0680 70/0846 0357/97 3404/97 395/0681 70/0898 0358/97 3417/97 395/0682 70/0911 0359/97 3430/97 395/0683 0214/97 0360/97 3431/97 395/0690 0218/97 0362/97 3432/97 395/0691 97/0212 0363/97 3445/97 395/0705 97/0233 0384/97 3451/97 395/0752 N2696 0397/97 3452/97 395/0753 0406/97 3453/97 395/0754 0407/97 3456/97 395/0755
Mineral lease ML 5300005 ML 5300008 ML 5300010 ML 5300061 ML 5300007 ML 5300009 ML 5300011
Miners homestead lease MHL3600001 MHL5300025 MHL5300049 MHL5300069 MHL3600012 MHL5300026 MHL5300050 MHL5300070 MHL3600014 MHL5300027 MHL5300051 MHL5300072 MHL5300001 MHL5300028 MHL5300052 MHL5300073 MHL5300003 MHL5300029 MHL5300053 MHL5300074 MHL5300005 MHL5300030 MHL5300054 MHL5300075 MHL5300006 MHL5300031 MHL5300055 MHL5300076 MHL5300010 MHL5300032 MHL5300056 MHL5300077 MHL5300011 MHL5300033 MHL5300057 MHL5300079 MHL5300012 MHL5300034 MHL5300058 MHL5300081 MHL5300013 MHL5300035 MHL5300059 MHL5300084 MHL5300015 MHL5300038 MHL5300060 MHL5300085 MHL5300016 MHL5300039 MHL5300061 MHL5300086 MHL5300017 MHL5300040 MHL5300062 MHL5300087 MHL5300019 MHL5300041 MHL5300063 MHL5300088 MHL5300021 MHL5300042 MHL5300065 MHL5300089 MHL5300022 MHL5300043 MHL5300066 MHL5300090 MHL5300023 MHL5300044 MHL5300067 MHL5300091 MHL5300024 MHL5300048 MHL5300068 MHL5300094
Machinery lease QA 5300002
Tailings lease TL 5300001 TL 5300003 TL 5300002 TL 5300004
Temporary reserve TR 7000798 TR 7003702 TR 7005357 TR 7001643 TR 7004543 TR 7005358 TR 7001926 TR 7004583 TR 7005966
SCHEDULE 5 – OTHER INTERESTS
[Other interests referred to in Order 10]
The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of this Determination:
Reserves
1.The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:
Number Purpose Held by RES 04948 Cemetery RES 06918 Police RES 07850 Excepted from sale and occupation RES 08620 Church Site Salvation Army RES 09699 Peak Hill Stock Route Minster for Mines RES 09815 Water Act 57 Vic No 20 RES 10087 Government Requirements RES 12827 Water RES 12828 Water RES 12829 Water RES 13096 Stock Route Addition to Peak Hill Leonora RES 19281 Watering Place for Travellers & Stock RES 19456 Common RES 20335 Stock Route RES 20662 Church Site Roman Catholic RES 20800 Church of England Church Site RES 21043 Excepted from Sale RES 21083 Public Utility RES 21109 Excepted From Sale RES 21442 Water RES 21508 Water Supply and Stock Camping RES 22037 Government Requirements RES 23985 Use & Benefit of Aborigines Aboriginal Lands Trust RES 25670 Use & Benefit of Aborigines Windidda Aboriginal Corporation RES 31830 Depot Site RES 32146 Use & Benefit of Aborigines Aboriginal Lands Trust RES 34096 Use & Benefit of Aborigines Aboriginal Lands Trust RES 41801 Use & Benefit of Aboriginal Inhabitants Kukabubba Aboriginal Corporation RES 42002 Use & Benefit of Aboriginal Inhabitants Aboriginal Lands Trust RES 42676 Depot Site Commissioner of Main Roads RES 45973 Arboretum Shire of Wiluna RES 49135 School Site Minister for Education
Leases
2.The rights and interests of the holders of the following leases:
Number Purpose Held by L83335 Aboriginal Medical Facility and Staff Accommodation Ngangganawili Aboriginal Community Controlled Health and Medical Services Aboriginal Corporation I222873 Installation, Maintenance and Operation of Telecommunications Network Facility TVNZ (Australia) Pty Ltd
Pastoral Leases
3.The rights and interests of the holders of the following pastoral leases:
Number Station Held by 3114/472 Lake Violet Newmont Yandal Operations Pty Ltd 3114/654 Granite Peak James Peter Quadrio 3114/960 Millrose Rex William Ward 3114/1049 Cunyu Kenneth Arthur Shaw & Dawn Marie Martin K601976 (formerly 3114/1065) Windidda Windidda Aboriginal Corporation 3114/1066 Prenti Downs William Roy Linke 3114/1067 Yelma Wiluna Stations Pty Ltd 3114/1068 Wongawol Wongawol Pty Ltd 3114/1069 Niminga Niminga Pty Ltd 3114/1070 Carnegie Charla Downs Pty Ltd 3114/1131 Paroo James Pengelly Ford & Thomas James Ford 3114/1164 Lake Way Nova Energy Pty Ltd 3114/1253 Jundee Newmont Yandal Operations Pty Ltd 3114/1260 Millbillillie Nova Energy Pty Ltd
Easements
4.The rights and interests of the holders of the following easements:
Number Purpose Held by I 222875 Access TVNZ (Australia) Pty Ltd L 132631 Sewerage Water Corporation L 132618 Sewerage Water Corporation
Mining tenements
5.The rights and interests of the holders of the following mining leases:
Mining lease M 5300024 M 5300196 M 5300487 M 5300025 M 5300197 M 5300492 M 5300026 M 5300198 M 5300501 M 5300027 M 5300199 M 5300502 M 5300030 M 5300200 M 5300503 M 5300032 M 5300205 M 5300504 M 5300034 M 5300220 M 5300535 M 5300035 M 5300221 M 5300536 M 5300036 M 5300224 M 5300537 M 5300040 M 5300226 M 5300538 M 5300041 M 5300228 M 5300539 M 5300043 M 5300229 M 5300540 M 5300044 M 5300230 M 5300541 M 5300045 M 5300235 M 5300552 M 5300049 M 5300236 M 5300555 M 5300050 M 5300237 M 5300588 M 5300052 M 5300245 M 5300589 M 5300053 M 5300246 M 5300611 M 5300054 M 5300247 M 5300707 M 5300055 M 5300248 M 5300708 M 5300064 M 5300249 M 5300711 M 5300069 M 5300250 M 5300712 M 5300071 M 5300253 M 5300796 M 5300092 M 5300326 M 5300797 M 5300095 M 5300336 M 5300798 M 5300096 M 5300347 M 5300836 M 5300100 M 5300371 M 5300874 M 5300113 M 5300372 M 5300895 M 5300121 M 5300384 M 5300908 M 5300122 M 5300411 M 5300910 M 5300123 M 5300412 M 5300911 M 5300129 M 5300413 M 5300929 M 5300130 M 5300414 M 5300935 M 5300131 M 5300415 M 5300940 M 5300139 M 5300441 M 5300949 M 5300147 M 5300446 M 5300955 M 5300155 M 5300451 M 5300966 M 5300156 M 5300452 M 5300971 M 5300173 M 5300456 M 5300972 M 5300182 M 5300458 M 5301002 M 5300183 M 5300461 M 5301016 M 5300188 M 5300468 M 5301017 M 5300191 M 5300477 M 5301018 M 5300192 M 5300478 M 5301078 M 5300193 M 5300479 M 5301086 M 5300194 M 5300480 6.The rights and interests of the holders of the following exploration licences:
Exploration licence E 3802166 E 5301254 E 5301528 E 6901907 E 3802167 E 5301287 E 5301546 E 6902062 E 3802168 E 5301288 E 5301547 E 6902063 E 3802212 E 5301290 E 5301548 E 6902064 E 3802213 E 5301296 E 5301549 E 6902126 E 3802238 E 5301297 E 5301552 E 6902256 E 3802239 E 5301299 E 5301555 E 6902257 E 3802240 E 5301300 E 5301560 E 6902266 E 3802764 E 5301304 E 5301561 E 6902358 E 3802765 E 5301305 E 5301580 E 6902375 E 5101234 E 5301317 E 5301581 E 6902376 E 5101238 E 5301318 E 5301586 E 6902377 E 5101357 E 5301319 E 5301589 E 6902492 E 5101499 E 5301341 E 5301593 E 6902502 E 5202183 E 5301374 E 5301600 E 6902503 E 5202444 E 5301391 E 5301601 E 6902533 E 5300644 E 5301392 E 5301602 E 6902607 E 5300695 E 5301402 E 5301603 E 6902733 E 5301042 E 5301403 E 5301604 E 6902736 E 5301044 E 5301433 E 5301619 E 6902737 E 5301089 E 5301437 E 5301620 E 6902750 E 5301101 E 5301449 E 5301630 E 6902763 E 5301116 E 5301460 E 5301635 E 6902765 E 5301132 E 5301461 E 5301637 E 6902809 E 5301136 E 5301466 E 5301666 E 6902820 E 5301169 E 5301471 E 5301675 E 6902872 E 5301181 E 5301475 E 5301687 E 6902934 E 5301209 E 5301491 E 5301688 E 6902940 E 5301219 E 5301493 E 5301696 E 6902957 E 5301221 E 5301516 E 6901729 E 6903022 E 5301223 E 5301517 E 6901771 E 6903026 E 5301232 E 5301518 E 6901772 E 6903037 E 5301243 E 5301521 E 6901869 E 6903039 E 5301247 E 5301522 E 6901870 E 6903055 E 5301253 E 5301523 E 6901871 7.The rights and interests of the holder of the following general purpose lease:
General purpose lease G 5300020 8.The rights and interests of the holders of the following prospecting licences:
Prospecting lease P 5301264 P 5301372 P 5301528 P 5301265 P 5301373 P 5301543 P 5301350 P 5301374 P 5301564 P 5301351 P 5301396 P 5301565 P 5301352 P 5301397 P 5301566 P 5301355 P 5301496 P 5301567 P 5301356 P 5301497 P 5301568 P 5301357 P 5301508 P 5301569 P 5301358 P 5301509 P 5301570 P 5301359 P 5301510 P 5301571 P 5301360 P 5301524 P 5301572 P 5301366 P 5301525 P 5301575 P 5301369 P 5301526 P 6900045 P 5301370 P 5301527 9.The rights and interests of the holder of the following retention licence:
Retention lease R 5300001 10.The rights and interests of the holders of the following miscellaneous licences:
Miscellaneous licence L 5300020 L 5300044 L 5300082 L 5300127 L 5300021 L 5300045 L 5300083 L 5300136 L 5300022 L 5300048 L 5300089 L 5300137 L 5300023 L 5300050 L 5300090 L 5300138 L 5300024 L 5300051 L 5300094 L 5300140 L 5300030 L 5300052 L 5300097 L 5300142 L 5300032 L 5300053 L 5300098 L 5300143 L 5300033 L 5300060 L 5300099 L 5300144 L 5300034 L 5300062 L 5300100 L 5300149 L 5300035 L 5300066 L 5300102 L 5300150 L 5300036 L 5300068 L 5300103 L 5300153 L 5300037 L 5300069 L 5300106 L 5300163 L 5300038 L 5300070 L 5300107 L 5300164 L 5300039 L 5300071 L 5300108 L 5300169 L 5300040 L 5300072 L 5300112 L 5300174 L 5300041 L 5300073 L 5300113 L 5300042 L 5300075 L 5300117 L 5300043 L 5300077 L 5300125 11.Subject to paragraph 12 below, any rights and interests that may exist as at the date of this Determination that are held by the holders from time to time of the mining tenements listed above, that permits the holder of those mining tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:
(a)as may be permitted in accordance with those rights and interests; and
(b)as are necessary to have access to the area the subject of the mining tenement for the purpose of exercising the rights granted by that mining tenement.
12.Nothing in paragraph 11 above allows any upgrade, extension, widening, re-alignment or other improvement to the road or track.
Petroleum interests
13.The rights and interests of the holders of the following petroleum pipeline licences:
Petroleum pipeline licences PL 24 PL 34 PL 33 PL 73 14.Subject to paragraph 15 below, any rights that may exist as at the date of this Determination that are held by the holders from time to time of the petroleum interests listed above, that permits the holder of those petroleum interests to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:
(a)as may be permitted in accordance with those rights and interests; and
(b)as are necessary to have access to the area the subject of the mining tenement for the purpose of exercising the rights granted by that mining tenement.
15.Nothing in paragraph 14 above allows any upgrade, extension, widening, re-alignment or other improvement to the road or track.
Telstra
16.The rights and interests of Telstra Corporation Limited:
(a)as the owner or operator of telecommunications facilities within the Determination Area;
(b)created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights:
(i)to inspect land;
(ii)to install and operate telecommunications facilities; and
(iii)to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunication facilities;
(c)to occupy an area of land for the purposes of its Well 2A radio telecommunications facility located at Latitude: 25°59'1.48'' South. Longitude: 120°19'21.91'' East;
(d)for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(e)under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.
Other
17.The following rights and interests:
(a)rights and interests held under grants from the Crown in right of the State or of the Commonwealth pursuant to statute or in the exercise of its executive power or otherwise conferred by statute;
(b)rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA);
(c)the right of a member of the public to use (subject to the laws of the State, in particular the Aboriginal Affairs Planning Authority Act 1972 (WA) and Regulations where applicable):
(i)the following roads (being roads which are maintained by the Shire of Wiluna as at the date of this Determination and marked generally on the maps in Schedule 7 with a broken red line):
(A) Carnegie-Glen Ayle Road;
(B) Carnegie-Prenti Downs Road;
(C) Carnegie Road;
(D) Wiluna-Granite Peak Road;
(E) Prenti Downs Road;
(F) Prenti Downs-Warren Bore Road;
(G) Sandstone-Wiluna Road;
(H) Sydney Heads Road;
(I) Wiluna North Road; and
(J) Yeelirrie Road;
(ii)the Canning Stock Route; and
(iii)any road in the determination area over which, as at the date of this Determination, the public has a right of way according to the common law;
(d)the right to access the Determination Area by:
(i)an employee or agent or instrumentality of the State;
(ii)an employee or agent or instrumentality of the Commonwealth;
(iii)an employee or agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty where such access would be permitted to private land; and
(e)so far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:
(i)waterways;
(ii)beds and banks or foreshores of waterways;
(iii)stock routes; or
(iv)areas that were public places at the end of 31 December 1993.
SCHEDULE 6 – PASTORAL CO-EXISTENCE PRINCIPLES
[Referred to in Order 12]
1.BACKGROUND
The Determination recognises the native title rights and interests of the Native Title Holders within the Determination Area. Those rights and interests are held on trust by the Wiluna PBC.
The Determination also identifies a number of Pastoral Leases within the Determination Area. Individual Pastoralists hold and exercise rights in accordance with the terms of their respective Pastoral Leases. The Determination recognises that the rights of the Native Title Holders co-exist with the rights of the individual Pastoralists.
This document provides agreed principles by which both the Native Title Holders and Pastoralists will exercise their co-existing rights and interests harmoniously and in accordance with the Determination on those parts of the Pastoral Lease which are part of the Determination Area.
2.DISCUSSION AND NOTICE
The Pastoralist and the Native Title Holders may discuss matters relating to the exercise of their co-existing rights in a cooperative and consultative manner and will use their respective best endeavours to notify each other of certain upcoming matters.
2.1The Pastoralist and the Wiluna PBC and/or Native Title Holders may discuss from time to time any matter including (but not limited to):
(a)safety issues;
(b)the efficient undertaking of Pastoral Activity;
(c)relevant business of the Pastoralist;
(d)places to be avoided temporarily due to Pastoral Activities such as mustering or trapping;
(e)heritage, cultural and law business issues; and
(f)issues related to compliance with any Law,
including, but not limited to discussions about:
(i)camping on the Pastoral Lease;
(ii)use of Pastoral Lease roads and tracks, including closure;
(iii)the lighting and extinguishment of fires;
(iv)consumption of alcohol;
(v)control of animals;
(vi)the use of fire arms;
(vii)soil or other environmental conservation matters (including but not limited to feral animal control); and
(viii)heritage issues including the interference with sites or areas of cultural significance.
2.2The Pastoralist and Wiluna PBC or Native Title Holders will use best endeavours to:
(a)in the case of the Wiluna PBC / Native Title Holders, provide 48 hours notice to the Pastoralist of the intention to access the Pastoral Lease for the purpose of exercising native title rights and interests; and
(b)in the case of the Pastoralist, provide reasonable notice of significant Inconsistent Events that are proposed on the Pastoral Lease.
3.WASTE AND RUBBISH
The Native Title Holders acknowledge that the Pastoral Lease should be kept free of waste and rubbish.
3.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease:
(a)bury all human waste in a suitable manner; and
(b)do not leave any rubbish on the Pastoral Lease, especially rubbish near water sources when accessing the Pastoral Lease.
4.STATION FACILITIES
The Native Title Holders acknowledge that the Pastoralist is entitled to conduct Pastoral Activities without interference.
4.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease do not:
(a)use or interfere with Pastoral Lease facilities including buildings, vehicles, fences, plant and equipment, stockyards, dams and watering points and other Pastoral Improvements; or
(b)interfere with stock.
5.VISITS TO HOMESTEAD
The Native Title Holders acknowledge that the Pastoralist is entitled to retain privacy while at their homestead.
5.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease only call at the homestead between the hours of 6am and 6pm, except in the case of an emergency or as otherwise agreed.
6.CAMPING AND ACCESS
The Pastoralist acknowledges that the Native Title Holders are entitled to camp on and access the Pastoral Lease. The Native Title Holders acknowledge that the Pastoralist is entitled to conduct Pastoral Activities without interruption.
6.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders, when accessing the Pastoral Lease:
(a)camp:
(i)at least 500 meters away from airstrips;
(ii)at least two kilometres away from any man-made watering points (including windmills, bores and dams) except where such camping occurs at an agreed Site of Significance;
(iii)at least 5km away from the homestead, any freehold areas, stockyards (when in use) and other buildings located on the Pastoral Lease; and
(iv)away from station access roads;
(b)do not access Pastoralist Improvements except watering points, which shall only be accessed for the purpose of obtaining water subject to:
(i)Native Title Holders driving at 5km/h in the vicinity of watering points to not unduly disturb watering stock;
(ii)watering points being left as they were found; and
(iii)no picnicking, loitering or unnecessary noise or activity within 2 kilometres of a watering point, except where it occurs at an agreed Site of Significance;
(c)take away all waste, litter or rubbish brought with them;
(d)erect only temporary dwellings or other structures and dismantle them when they leave, unless otherwise agreed between the Pastoralist and a Native Title Holder; and
(e)do not access man-made watering points that are being used by stock.
7.HUNTING
The Pastoralist acknowledges that the Native Title Holders are entitled to hunt on the land. The Native Title Holders acknowledge the need to practice hunting in a way that does not create a safety risk.
7.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease:
(a)do not hunt or gather within two kilometres of any improvements;
(b)do not use any high calibre or high powered firearms;
(c)use firearms only if a licensed firearm holder and in accordance with the Firearms Act 1973 (WA); and
(d)only hunt in a manner that does not present a risk to other persons or their property, including any employees or invitees of the Pastoralist or stock.
8.DOGS AND DOG BAITING
The Native Title Holders acknowledge that dogs can be detrimental to Pastoral Activities and that regular baiting happens on the Pastoral Lease, which puts dogs at risk. The Pastoralist acknowledges that dogs are an integral part of Native Title Holders lives.
8.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease restrain and control any dogs brought onto the Pastoral Lease.
8.2The Pastoralist shall use their best endeavours to advise the Wiluna PBC and/or any Native Title Holders of the locations of any dog baiting programs that the Pastoralist is undertaking on the Pastoral Lease in an area where the Pastoralist has received prior written notice of a visit.
8.3The Native Title Holders will not bring dogs onto the Pastoral Lease when agreed in accordance with clause 2. Native Title Holders acknowledge that they bring dogs onto the station at their own risk.
9.STATION TRACKS AND ROADS
The Pastoralist acknowledges that the Native Title Holders can access and use the Pastoral Lease roads and tracks unless there are reasons why these roads and tracks may be inaccessible for various reasons.
9.1The Pastoralist shall not unreasonably restrict the use of Pastoral Lease roads and tracks by the Native Title Holders.
9.2The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease:
(a)use vehicles on existing Pastoral Lease roads, tracks and public roads when ever possible;
(b)when exercising their native title rights in an area not serviced by existing Pastoral Lease roads, tracks and public roads, use the shortest reasonable route from the station track or road to the relevant location; and
(c)do not travel on roads (including public roads) or tracks on the Pastoral Lease which are declared by State authorities to be closed to traffic due to wet or adverse weather conditions or when agreed in accordance with clause 2, except:
(i)in the case of an emergency; or
(ii)where the Native Title Holders are on the Pastoral Lease prior to the roads or tracks being closed and need to return to their homes before the road closure has been lifted,
in which case the Native Title Holders shall take all appropriate precautions to avoid damage to such roads or tracks and other affected land.
10.GATES
The Pastoralist acknowledges that the Native Title Holders have a right to access the Pastoral Lease through pastoral gates. The Native Title Holders acknowledge that sometimes pastoral gates may need to be closed in which case alternative arrangements shall be made for access.
10.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease leave gates as they are found, that is, open if they are found open and closed if they are found closed.
10.2The Pastoralist shall leave gates unlocked unless the Pastoralist considers it reasonably necessary to lock particular gates:
(a)to ensure proper stock management;
(b)to control public access; or
(c)for other reasons as are reasonable for the carrying on of Pastoral Activity.
10.3If the Pastoralist locks particular gates, then the Pastoralist shall advise the Wiluna PBC which gates have been locked and what arrangements can be put in place to enable the Native Title Holders to continue to have access to those locked areas.
11.FIRES
The Native Title Holders acknowledge that fire can have a detrimental affect on a Pastoral Lease.
11.1The Wiluna PBC shall use its best endeavours to ensure that the Native Title Holders when accessing the Pastoral Lease shall:
(a)ensure that their use of fire is restricted to campfires, cooking fires and fires for ritual and ceremonial purposes, which shall be controlled at all times;
(b)obey any temporary fire bans that are in place;
(c)use fire in accordance with the Bush Fires Act 1954 (WA), associated Regulations and other relevant Laws of Western Australia; and
(d)not in any circumstances light wildfires (burn-offs).
12.PRIVACY
12.1Each of the Pastoralist and the Native Title Holders shall at all times respect the privacy of the other.
13.COMMON LAW HOLDERS’ RITUALS AND CEREMONIES
The Pastoralist acknowledges that the Native Title Holders are entitled to conduct ceremonial, ritual and law business activities on the Pastoral Lease and shall not interfere with these activities.
13.1The Pastoralist shall not intentionally interfere with the ceremonial, ritual or law business activities of the Native Title Holders.
13.2Where the Wiluna PBC, or a Native Title Holder, has informed the Pastoralist, in accordance with clause 2, the undertaking of a ritual or ceremony or otherwise appear to be conducting a ritual or ceremony on the Pastoral Lease, the Pastoralist shall only engage with the Native Title Holders in order to deal with immediate and significant issues such as:
(a)threats to persons or property;
(b)actual injury to or death of persons; or
(c)damage to property,
unless otherwise invited by a Native Title Holder.
14.INTERPRETATION
14.1In this Document, unless the contrary intention appears, the following words and phrases have following meanings:
“Determination” means the determination of native title made by McKerracher J in the Federal Court of Australia on 29 July 2013 in the matter of WAD 6164 of 1998, W.F. (Deceased) & Ors v the State of Western Australia & Ors;
“Determination Area” means the area of land and waters the subject of the Determination;
“Inconsistent Event” is:
(a)a Pastoral Activity limited in area and duration; or
(b)a natural event,
which by its nature is inconsistent with Native Title Holders accessing an area of land within the Pastoral Lease to exercise their native title rights and interests where the Pastoral Activity is being undertaken, or the natural event has occurred, and includes (but is not limited to):
(c)areas where mustering is being carried out;
(d)areas being used as a temporary stock yard;
(e)a paddock which has been prepared for sowing or where a crop is growing; or
(f)areas where weather or other factors make the proposed entry unsafe or potentially hazardous;
“Native Title Holders” means the persons described in Schedule 2 of the Determination;
“Pastoral Activity” means an activity or activities that the Pastoralist is permitted to undertake within the Pastoral Lease in accordance with the terms of the Pastoral Lease and the Land Administration Act 1997 (WA), including to:
(a)use, enjoy and develop the Pastoral Lease for purposes consistent with the terms of the Pastoral Lease;
(b)use the Pastoral Lease for the domestic and recreational purposes of the Pastoralist; and
(c)authorise others to enter and use the land and waters of the Pastoral Lease for purposes consistent with (a) above.
“Pastoral Lease” means the parts of each of the following pastoral stations that are in the Determination Area:
(a)Paroo Station, described in Crown Lease 15/1980 in relation to all of the parcels of land that is Thadoona Location 4, Kyarra Location 105 and Nabberu Location 38;
(b)Granite Peak Station, described in Crown Lease 332/1966 in relation to the parcel of land that is Hann Location 7 and Nabberu Location 26;
(c)Millrose Station, described in Crown Lease 183/1973 in relation to the parcel of land that is Nabberu Location 30;
(d)Cunyu Station, described in Crown Lease 180/1972 in relation to the parcel of land that is Hann Location 9 and Nabberu Location 28;
(e)Wongawol Station, described in Crown Lease 261/1993 in relation to all of the parcels of land that is Hann Location 10, Wells Location 4, Yelina Location 1 and Nabberu Location 29;
(f)Niminga Station, described in Crown Lease 240/1973 in relation to the parcel of land that is Wells Location 2;
(g)Carnegie Station, described in Crown Lease 59/1974 in relation to the parcel of land that is Wells Location 7;
(h)Prenti Downs Station, described in Crown Lease 239/1973 in relation to the parcel of land that is Yelina Location 4 and Wells Location 5;
(i)Yelma Station, described in Crown Lease 224/1973 in relation to the parcel of land that is Nabberu Location 35 and Yelina Location 3;
“Pastoralist” means, in relation to each Pastoral Lease the registered lessee of that Pastoral Lease;
“Prescribed Body Corporate” means a corporation whose name and address are registered on the National Native Title Register as a prescribed body corporate under section 193(2)(d)(iii) of the Native Title Act;
“Site of Significance” means a particular place that would be defined as a site under the provisions of the Aboriginal Heritage Act 1972 (WA) or equivalent Commonwealth legislation, of importance to the Native Title Holders according to Aboriginal custom and tradition; and
“Wiluna PBC” means the Prescribed Body Corporate for the Determination.
SCHEDULE 8 – AREAS TO WHICH SECTION 47, 47A OR SECTION 47B APPLIES
[Areas referred to in Order 14]
The parts of the Determination Area to which sections 47, 47A or 47B of the Native Title Act respectively apply are the following:
1.Section 47 applies to the following pastoral lease (shown generally on the maps in Schedule 7 as shaded olive):
Number Station Held by K601976 (formerly 3114/1065) Windidda Windidda Aboriginal Corporation 2.Section 47A applies to (shown generally on the maps in Schedule 7 as shaded blue):
(a)the following reserves:
Number Purpose Held by RES 23985 Use & Benefit of Aborigines Aboriginal Lands Trust RES 25670 Use & Benefit of Aborigines Windidda Aboriginal Corporation RES 32146 Use & Benefit of Aborigines Aboriginal Lands Trust RES 34096 Use & Benefit of Aborigines Aboriginal Lands Trust RES 41801 Use & Benefit of Aboriginal Inhabitants Kukabubba Aboriginal Corporation RES 42002 Use & Benefit of Aboriginal Inhabitants Aboriginal Lands Trust (b)the following fees simple:
Certificate of title Held by (when application was made) CT1356/564 Marruwayura Aboriginal Corporation CT1356/565 Marruwayura Aboriginal Corporation CT1356/566 Marruwayura Aboriginal Corporation CT2052/626 Marruwayura Aboriginal Corporation CT2070/454 Ngangganawili Aboriginal Community Controlled Health and Medical Services Aboriginal Corporation CT2095/021 Marruwayura Aboriginal Corporation 3.Section 47B applies to the following areas of unallocated Crown land (shown generally on the maps in Schedule 7 as shaded pink):
Unallocated Crown land UCL 2 UCL 13 UCL 6 UCL 22 UCL 9 UCL 35 UCL 10 UCL 36 UCL 12 UCL 37
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