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[2013] FCA 769
Federal Court of Australia
2013-08-07
Ms J, Gilmour J
Original judgment source is linked above.
Counsel for the Applicant: Ms J Cole with Ms J Arman
Solicitor for the Applicant: Kimberley Land Council
Counsel for the State of Western Australia: Ms C Taggart
Solicitor for the State of Western Australia: State Solicitor's Office
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6004 of 2000
BETWEEN: DELORES CHEINMORA, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, FRANK CHULUNG, JAMES TAYLOR, JEAN LEYLAND, JEFF CLARKE, JENNIFER EURA, KENNY MORGAN, LAURIE WAINA, LUVEY WEAVER, MARY TERESA TAYLOR, MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, ROY MARTIN, TOM BIRCH, VERNON GERRARD AND VICTOR MARTIN
AND: STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, DELAWARE NORTH EL QUESTRO PTY LTD AND TELSTRA CORPORATION LIMITED
JUDGE: GILMOUR J DATE OF ORDER: 7 AUGUST 2013 WHERE MADE: WYNDHAM
THE COURT NOTES THAT: A. The applicant in proceeding WAD 6004 of 1998 has made a native title determination application (Balanggarra #3 Application) that relates to an area of land and waters the subject of a proposed determination of native title. B. The applicant in the Balanggarra #3 Application, the State of Western Australia and the other respondents to the proceeding (parties) have reached an agreement as to the terms of a determination which is to be made in relation to part of the land and waters covered by the Balanggarra #3 Application. C. Pursuant to section 87A(1)(b) and section 87A(1)(c) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title which reflects the terms of the agreement reached by the parties. D. The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87A and 94A of the Native Title Act that native title exists in relation to part of the land and waters the subject of the Balanggarra 3# Application. E. The parties have agreed that in respect of the Excluded Area, as described in paragraph 3A of the Determination, no determination be made at present and the matter is to continue in case management by a Registrar of the Court. F. The maps provided at Schedule One which indicate the location of the Wyndham Port as referred to at Schedule Three have been agreed between the parties on the basis they are indicative only. G. The parties acknowledge that the effect of making the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the native title holders for the Determination Area. H. The parties have requested that the Court hear and determine that part of the proceeding that relates to the Determination Area. I. The applicant in the Balanggarra #3 Application has nominated Balanggarra Aboriginal Corporation ICN 2923 pursuant to section 56(2) of the Native Title Act to hold the determined native title in trust for the native title holders. BEING SATISFIED that a determination of native title in the terms sought by the parties would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87A and section 94A of the Native Title Act: BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:
Existence of native title (s 225 Native Title Act) 1 Subject to paragraph 3A, the Determination Area is the land and waters described in Schedule One and depicted on the maps at Attachment One to Schedule One. 2 Subject to paragraph 3, native title exists in the Determination Area in the manner set out in paragraphs 5 to 10. 3 By reason of extinguishment, native title does not exist in relation to those parts of the Determination Area comprising land and waters the subject of the interests identified in Schedule Three and which are generally shaded green on the maps at Attachment One to Schedule One. 3A In relation to the Excluded Area as described in Schedule One, no determination be made and the matter is to continue in case management by a Registrar of the Court. Native title holders (s 225(a) Native Title Act) 4 The native title in relation to the Determination Area is held in common by members of the Balanggarra community being the people referred to in Schedule Six. The nature and extent of native title rights and interests (s225(b) Native Title Act) and exclusiveness of native title (s 225(e) Native Title Act) Exclusive rights in relation to certain land 5 Subject to paragraphs 7 and 8, the nature and extent of the native title rights and interests in relation to the areas of land generally shown as shaded pink and brown on the map at Attachment One to Schedule One, being all of the land in the Determination Area which: (a) has not been the subject of prior extinguishment of native title as described in Schedule Two and Schedule Three; or (b) has been the subject of prior extinguishment of native title, which extinguishment must be disregarded by operation of s 47, 47A or 47B of the Native Title Act as described in Schedule Five, is the right to possession, occupation, use and enjoyment to the exclusion of all others. Non-exclusive rights in relation to certain land and waters 6 Subject to paragraph 7, 8 and 9 the nature and extent of the native title rights and interests in relation to the area of land and waters described in Schedule Two and generally shown as shaded orange on the map at Attachment One to Schedule One, being areas where the native title right to possession, occupation, use and enjoyment to the exclusion of all others is not available at law including by reason of partial extinguishment of native title, is: (a) the right to enter, travel over and remain on the land; (b) the right to live and camp on the land including erecting shelters and other structures for those purposes; (c) the right to hunt, fish, gather and use including by way of sharing or exchange the resources of the land and waters for personal, domestic and communal needs including, but not limited to, cultural or spiritual needs but not for commercial purposes as in accordance with paragraph 7(a)(ii)); (d) the right to light fires for domestic purposes; (e) the right to engage in cultural activities on the land including: (i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; (ii) conducting and participating in ceremony and ritual including in relation to death; (iii) holding meetings; and (iv) passing on knowledge about the physical and spiritual attributes of the Determination Area and areas of importance on or in the Determination Area. Qualifications on native title rights and interests 7 The native title rights and interests described in paragraphs 5 and 6: (a) are exercisable in accordance with: (i) the laws of the State and the Commonwealth, including the common law; and (ii) the traditional laws and customs of the native title holders for their personal, domestic and communal needs including cultural or spiritual needs but not for commercial purposes. 8 Notwithstanding anything in this Determination: (a) there are no native title rights and interest in the Determination Area in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); (ii) petroleum as defined in the Petroleum and Geothermal Energy Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iv) water captured by the holders of the other interests in accordance with those interests; and (b) 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 for personal, domestic and communal needs including cultural or spiritual needs but not for commercial purposes. 9 The native title rights and interests described in paragraph 6 do not confer: (a) possession, occupation, use and enjoyment of the land or waters of the Determination Area on the native title holders to the exclusion of all others; nor (b) a right to control the access to, or use of, the land and waters, or their resources, of those parts of the Determination Area referred to in paragraph 6. 10 For the avoidance of doubt, subject to the qualifications described in paragraphs 7, 8 and 9, the manner of exercise of native title rights and interests recognised by this Determination is a matter for the native title holders to determine having regard to, and in accordance with, their traditional laws and customs.
Areas to which sections 47, 47A and 47B of the Native Title Act apply 11 Sections 47, 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas identified in Schedule Five. The nature and extent of any other interests (s 225(c) Native Title Act) 12 The nature and extent of the other interests in relation to the Determination Area are described in Schedule Four. Relationship between native title rights and other interests (s 225(d) Native Title Act) 13 The relationship between the native title rights and interests described in paragraphs 5 and 6 and the other interests is that: (a) to the extent that any of the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to the operation of section 24JB(2) of the Native Title Act, do not extinguish them. Definitions and Interpretation 14 In this Determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule One and depicted on the maps at Attachment One to Schedule One not including the Excluded Area; "Excluded Area" means the land and waters described as the "Excluded Area" in Schedule One; "Intertidal Area" means the area of land and waters between lowest astronomical tide and the mean high water mark; and "land" has the same meaning as in the Native Title Act; "Native Title Act" means the Native Title Act 1993 (Cth); "Native Title Holders" means the persons described in paragraph 4; "other interests" means the legal or equitable estates or interests and other rights in relation to the determination area described in Schedule Four and referred to in paragraph 12; "resources" means flora, fauna and other natural resources such as ochre (except ochres for use in the manufacture of porcelain, fine pottery or pigments), charcoal, stone, soil, wood and resin; "waters" has the same meaning as in the Native Title Act; 15 In the event of any inconsistency between the written description of an area in Schedules One, Two, Three, Four or Five and the area as depicted on the maps at Attachment One to Schedule One, the written description prevails. 16 In the event of any inconsistency as to the existence of native title rights and interests in an area of land and waters which is or was covered by interests that are listed in Schedule Two and Schedule Three, Schedule Three prevails. 17 In the event of any inconsistency as to the existence of native title rights and interests in an area of land and waters which is or was covered by interests that are listed in Schedule Two or Schedule Three and Schedule Five, Schedule Five prevails. SCHEDULE ONE DETERMINATION AREA The Determination Area, generally shown as bordered in dark blue on the maps at Attachment One to the First Schedule, comprises all land and waters bounded by the following description subject to the exclusion of those areas described as the "Excluded Area": PART A All those lands and waters commencing at the southernmost southwestern corner of the southernmost southwestern severance of Pastoral Lease 3114/962 (Home Valley) and extending northerly, westerly, again northerly, easterly and southerly along boundaries of that Pastoral Lease to the southernmost southwestern corner of Reserve 13873; then generally southerly and generally southwesterly passing through the following co-ordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 15.754244 127.714105 15.757685 127.714105 15.766218 127.716582 15.775688 127.718234 15.779185 127.721954 15.785047 127.722749 15.789230 127.727703 15.791873 127.729135 15.794516 127.727703 15.797268 127.722859 15.799147 127.717778 15.803215 127.716252 15.803435 127.712508 15.805197 127.707994 15.807840 127.703149 15.810593 127.696432 15.809161 127.682338 15.809110 127.671937 15.811473 127.658445 15.814545 127.654847 15.815327 127.652389 15.812795 127.647765 15.813455 127.645453 15.811253 127.639727 15.810015 127.635014 15.807950 127.631138 15.808390 127.627505 15.818961 127.622770 15.826669 127.620788 15.828981 127.618366 15.829421 127.615503 15.835147 127.611649 15.836358 127.608015 15.832615 127.598436 15.829753 127.596124 15.829312 127.594582 15.828211 127.584673 15.830633 127.581150 15.831735 127.575314 15.830413 127.567716 15.830744 127.565624 15.833794 127.563628 15.835258 127.557917 15.838011 127.553732 15.834488 127.533914 15.837792 127.524775 15.838012 127.518939 15.837351 127.517177 15.838012 127.504074 15.841976 127.497798 15.848317 127.488661
Then southwesterly to intersect with the northern boundary of the southernmost southeastern severance of Pastoral Lease 3114/962 (Home Valley) with Longitude 127.475058 East; then generally southwesterly along the boundary of that severance to its westernmost southwestern corner; then westerly back to the commencement point. PART B All those lands and waters commencing at Latitude 15.158555 South, Longitude 128.110801 East and extending generally southeasterly, generally southerly, generally westerly, again generally southerly, again generally westerly and generally northwesterly passing through the following co-ordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 15.159457 128.120650 15.165766 128.126024 15.172978 128.148410 15.181990 128.167394 15.188112 128.174153 15.198317 128.184291 15.201719 128.193077 15.204760 128.222040 15.209559 128.224002 15.215259 128.226594 15.219269 128.228101 15.223447 128.229722 15.227965 128.231513 15.233327 128.233994 15.238293 128.236247 15.242358 128.237930 15.246311 128.239497 15.250937 128.241875 15.255497 128.245609 15.258531 128.248902 15.261270 128.253793 15.262998 128.257644 15.265176 128.261957 15.268247 128.267959 15.271565 128.271188 15.275729 128.274812 15.280297 128.277427 15.285541 128.280381 15.290502 128.283459 15.294954 128.286488 15.299349 128.289518 15.303411 128.291613 15.308326 128.293161 15.313469 128.294468 15.314939 128.294850 15.315734 128.294539 15.315514 128.293542 15.320885 128.294668 15.326095 128.294678 15.330339 128.294944 15.334699 128.294972 15.339909 128.294864 15.345855 128.294741 15.351125 128.294220 15.355658 128.293714 15.361217 128.292480 15.366151 128.291319 15.370518 128.290404 15.374992 128.290253 15.379179 128.290637 15.384047 128.290831 15.388520 128.290917 15.392934 128.291238 15.398081 128.292015 15.403056 128.293208 15.407803 128.294464 15.412663 128.295777 15.418097 128.296018 15.422616 128.297515 15.426873 128.300239 15.427966 128.300551 15.429840 128.300395 15.431557 128.299927 15.435773 128.299147 15.436778 128.298566 15.437419 128.298275 15.438033 128.298131 15.438540 128.297815 15.439334 128.297772 15.440475 128.297526 15.440865 128.297021 15.440669 128.296660 15.441532 128.296365 15.445023 128.294682 15.445335 128.294609 15.446255 128.294529 15.446985 128.294409 15.447325 128.294269 15.447715 128.294219 15.448435 128.294189 15.449025 128.294069 15.450315 128.293879 15.451595 128.293849 15.452035 128.293849 15.452335 128.293919 15.452775 128.293939 15.452835 128.293959 15.453365 128.293989 15.453595 128.294059 15.453875 128.294219 15.454035 128.294239 15.455325 128.294329 15.455555 128.294309 15.456425 128.294449 15.456865 128.294609 15.457155 128.294799 15.457505 128.295109 15.457895 128.295529 15.458125 128.295699 15.458585 128.295839 15.459645 128.296159 15.460405 128.296439 15.460795 128.296679 15.461625 128.297079 15.462265 128.297599 15.462795 128.297899 15.464105 128.298509 15.465145 128.299189 15.465215 128.299239 15.465535 128.299449 15.466405 128.299809 15.467075 128.300089 15.467495 128.300369 15.468435 128.301339 15.469385 128.302419 15.469795 128.302819 15.470185 128.303549 15.470355 128.303839 15.470905 128.304379 15.471135 128.304549 15.471735 128.304849 15.472234 128.304989 15.472334 128.305009 15.472924 128.305199 15.473524 128.305269 15.473774 128.305269 15.474354 128.305149 15.474814 128.304959 15.475014 128.304769 15.475134 128.304479 15.475544 128.303869 15.475724 128.303649 15.476204 128.302889 15.476204 128.302819 15.476224 128.302749 15.476574 128.302609 15.476704 128.302609 15.476864 128.302699 15.476874 128.302839 15.476644 128.303199 15.476344 128.303959 15.475914 128.304459 15.475654 128.304759 15.475294 128.304929 15.475154 128.305049 15.475064 128.305429 15.475114 128.305859 15.475274 128.306279 15.475414 128.306489 15.475874 128.306919 15.476424 128.307579 15.477144 128.308309 15.477394 128.308469 15.477464 128.308549 15.478504 128.309249 15.479534 128.310169 15.480204 128.310669 15.480504 128.311069 15.480294 128.311019 15.479424 128.310529 15.478734 128.310059 15.478244 128.309609 15.477234 128.308809 15.476594 128.308409 15.476174 128.307859 15.475784 128.307369 15.475294 128.306919 15.475234 128.306869 15.474584 128.306259 15.474144 128.305999 15.473504 128.305669 15.472924 128.305529 15.472584 128.305509 15.472444 128.305559 15.472374 128.305649 15.472404 128.305869 15.472744 128.306269 15.473734 128.307089 15.474954 128.308149 15.475004 128.308219 15.475674 128.308689 15.476084 128.309169 15.477174 128.309939 15.478164 128.310479 15.478364 128.310649 15.478944 128.311549 15.479124 128.311849 15.479264 128.312229 15.479494 128.312559 15.479774 128.313129 15.480264 128.313959 15.480494 128.314359 15.481044 128.315089 15.481904 128.316249 15.482704 128.317309 15.483374 128.318369 15.483444 128.318439 15.483704 128.318769 15.484134 128.319219 15.484464 128.319459 15.485224 128.320539 15.485704 128.321199 15.486094 128.321559 15.486354 128.321789 15.487114 128.322329 15.487644 128.322709 15.488284 128.322969 15.488954 128.323229 15.489414 128.323299 15.490584 128.323499 15.491094 128.323639 15.491684 128.323669 15.492054 128.323789 15.492744 128.323879 15.493014 128.323859 15.493844 128.324009 15.494424 128.324149 15.494974 128.324359 15.495614 128.324679 15.496074 128.324849 15.496674 128.325169 15.496924 128.325229 15.497204 128.325349 15.498074 128.325849 15.498304 128.325929 15.498514 128.326059 15.498564 128.326109 15.498914 128.326449 15.499274 128.326659 15.499594 128.326709 15.499924 128.326689 15.500354 128.326779 15.500624 128.326739 15.501204 128.326429 15.501564 128.326319 15.502134 128.326109 15.502914 128.325989 15.503724 128.325959 15.504084 128.325839 15.504964 128.325729 15.505264 128.325589 15.505404 128.325469 15.505694 128.325039 15.505904 128.324569 15.506064 128.324329 15.506134 128.324279 15.506314 128.324329 15.506564 128.324589 15.506524 128.324899 15.506154 128.325139 15.506084 128.325209 15.506064 128.325349 15.506274 128.325629 15.506484 128.325749 15.506644 128.325749 15.507034 128.325579 15.507264 128.325439 15.507318 128.325439 15.507318 128.309083 15.507310 128.282993 15.507302 128.251244 15.536294 128.251245 15.536276 128.130670 15.536416 128.130860 15.537056 128.131310 15.537516 128.131490 15.538436 128.131490 15.538986 128.131470 15.539856 128.131250 15.540136 128.131180 15.540686 128.130910 15.541026 128.130560 15.541276 128.130200 15.541326 128.130130 15.541626 128.129420 15.541776 128.128870 15.541986 128.128260 15.541936 128.127690 15.541776 128.127210 15.541356 128.126270 15.540946 128.125540 15.540576 128.125060 15.540476 128.124920 15.540356 128.124810 15.540296 128.124710 15.540016 128.124310 15.539946 128.124280 15.539786 128.124050 15.539376 128.123620 15.539026 128.123150 15.538636 128.122510 15.538476 128.122110 15.538396 128.121730 15.538326 128.121260 15.538326 128.120740 15.538396 128.120310 15.538646 128.119740 15.539076 128.119050 15.540066 128.117980 15.540616 128.117510 15.540686 128.117460 15.541236 128.117000 15.541376 128.116910 15.541966 128.116720 15.542626 128.116340 15.543066 128.116100 15.543526 128.115950 15.544146 128.115600 15.544626 128.115380 15.545796 128.115190 15.546136 128.115110 15.546986 128.115160 15.547866 128.115130 15.549336 128.115010 15.550686 128.114930 15.551626 128.114900 15.552016 128.114830 15.552226 128.114740 15.552336 128.114660 15.553076 128.114310 15.553506 128.114160 15.554406 128.113780 15.555316 128.113210 15.555896 128.112850 15.556506 128.112230 15.556606 128.112180 15.557496 128.111350 15.557836 128.111110 15.558636 128.110490 15.558956 128.110350 15.559716 128.110230 15.560156 128.109970 15.560706 128.109750 15.561166 128.109510 15.562076 128.109300 15.562696 128.109390 15.563486 128.109670 15.563846 128.109860 15.564056 128.110090 15.564496 128.110920 15.564496 128.111120 15.564566 128.111870 15.564526 128.112170 15.564546 128.112390 15.564476 128.112530 15.564326 128.113150 15.564096 128.113480 15.563956 128.113600 15.563686 128.113790 15.563086 128.114010 15.562376 128.114170 15.562286 128.114200 15.561206 128.114080 15.560606 128.113830 15.559986 128.113590 15.559546 128.113500 15.559336 128.113500 15.558006 128.113500 15.556906 128.113600 15.556216 128.113770 15.555966 128.113890 15.555716 128.114110 15.555326 128.114390 15.554336 128.114920 15.553716 128.115250 15.553036 128.115850 15.553006 128.115920 15.552596 128.116390 15.552076 128.117130 15.551956 128.117250 15.551656 128.117650 15.551346 128.118270 15.551276 128.118530 15.551096 128.119310 15.551116 128.119550 15.551256 128.120000 15.551696 128.120610 15.552296 128.121040 15.553606 128.121740 15.554666 128.122260 15.554966 128.122450 15.556256 128.123150 15.557606 128.123860 15.557696 128.123910 15.558256 128.124210 15.558776 128.124550 15.558896 128.124710 15.559266 128.124990 15.559676 128.125150 15.560736 128.125440 15.561226 128.125690 15.562116 128.126260 15.562516 128.126870 15.563116 128.127560 15.563436 128.128080 15.563666 128.128460 15.564386 128.129430 15.564936 128.130560 15.565166 128.130910 15.566116 128.132240 15.566646 128.133020 15.567086 128.133490 15.567126 128.133560 15.567706 128.133960 15.568536 128.134360 15.568926 128.134550 15.569866 128.134620 15.569936 128.134620 15.570596 128.134570 15.571034 128.134361 15.571034 128.132764 15.571056 128.132760 15.571646 128.132710 15.572206 128.132520 15.572586 128.132090 15.572656 128.132070 15.572886 128.131620 15.573046 128.131030 15.573026 128.130650 15.572926 128.130480 15.572746 128.130250 15.572076 128.129610 15.571636 128.129330 15.571034 128.129084 15.571034 128.127746 15.570966 128.127720 15.569546 128.127340 15.568556 128.127160 15.567956 128.126970 15.567146 128.126740 15.566256 128.126310 15.565976 128.126130 15.565336 128.125540 15.564936 128.125020 15.564796 128.124540 15.564866 128.123670 15.564886 128.123550 15.564996 128.122770 15.565156 128.122460 15.565416 128.122150 15.565666 128.121890 15.565686 128.121810 15.566556 128.121120 15.567706 128.120460 15.567976 128.120380 15.568226 128.120380 15.568736 128.120400 15.569676 128.120640 15.570386 128.120970 15.570626 128.121230 15.570866 128.121560 15.571196 128.122150 15.571726 128.122930 15.572286 128.123900 15.572586 128.124250 15.572816 128.124580 15.573456 128.125170 15.573756 128.125340 15.574386 128.125710 15.574976 128.125780 15.575416 128.125760 15.575666 128.125640 15.576076 128.125120 15.576196 128.124970 15.576306 128.124810 15.576676 128.124450 15.576996 128.124000 15.577496 128.123470 15.577726 128.123260 15.578416 128.122830 15.578806 128.122710 15.579006 128.122710 15.579766 128.122680 15.580246 128.122750 15.581076 128.122920 15.581586 128.123170 15.581926 128.123430 15.582066 128.123670 15.582626 128.124380 15.582946 128.124690 15.583616 128.125180 15.583816 128.125390 15.584236 128.125720 15.585083 128.126207 15.585106 128.126220 15.585706 128.126500 15.586416 128.126660 15.587246 128.126750 15.588006 128.126770 15.588896 128.126940 15.589686 128.127240 15.590396 128.127600 15.590946 128.127920 15.591206 128.128140 15.591296 128.128210 15.592536 128.128940 15.593616 128.129600 15.593896 128.129670 15.594533 128.129739 15.594569 128.132476 15.593246 128.135245 15.592142 128.136410 15.591982 128.137242 15.591982 128.138049 15.592055 128.142160 15.591941 128.143752 15.593165 128.149335 15.593791 128.154301 15.594072 128.160098 15.595041 128.162402 15.597737 128.165656 15.599856 128.166962 15.600708 128.166986 15.603125 128.167127 15.603839 128.167578 15.604461 128.168172 15.606995 128.170238 15.608492 128.170879 15.612661 128.173372 15.613007 128.174132 15.613214 128.174939 15.613951 128.175343 15.617588 128.174842 15.623296 128.174531 15.627187 128.175290 15.628546 128.176144 15.629375 128.176073 15.629812 128.175384 15.629926 128.174576 15.630340 128.173839 15.631122 128.173625 15.632434 128.172792 15.632663 128.171984 15.633077 128.171271 15.633790 128.170867 15.635055 128.169821 15.636366 128.168799 15.637126 128.169108 15.637679 128.169749 15.641273 128.173383 15.642056 128.173691 15.642885 128.173857 15.645371 128.173927 15.650158 128.172476 15.653427 128.172284 15.654187 128.172664 15.656466 128.173542 15.657179 128.173090 15.658721 128.172519 15.660310 128.172685 15.664408 128.173419 15.670070 128.172989 15.673317 128.173772 15.674100 128.173463 15.675734 128.173082 15.676586 128.173200 15.678980 128.173698 15.679740 128.173389 15.680430 128.172937 15.681212 128.172604 15.682064 128.172556 15.682893 128.172794 15.688579 128.173551 15.690903 128.172790 15.691501 128.172219 15.691961 128.171506 15.692213 128.170698 15.693638 128.167751 15.694348 128.163736 15.695242 128.158959 15.698415 128.155015 15.701727 128.151235 15.704831 128.147385 15.706211 128.146529 15.710031 128.144839 15.710881 128.144744 15.714956 128.144409 15.715669 128.144837 15.716107 128.145573 15.716223 128.146404 15.716109 128.147260 15.715374 128.149636 15.715146 128.151253 15.715584 128.152725 15.717197 128.154577 15.717911 128.155005 15.720468 128.157071 15.721320 128.157023 15.722010 128.156547 15.723552 128.156357 15.724151 128.156903 15.724428 128.157687 15.725235 128.159112 15.725834 128.159658 15.727286 128.161511 15.727286 128.162319 15.726781 128.162961 15.726160 128.163507 15.724412 128.165148 15.724412 128.165956 15.724620 128.166739 15.725727 128.168925 15.726418 128.169352 15.728261 128.171015 15.729505 128.171774 15.730218 128.171370 15.733761 128.169420 15.734521 128.169681 15.736525 128.171011 15.736387 128.171819 15.735997 128.172532 15.735055 128.174885 15.735079 128.175693 15.736164 128.179660 15.736924 128.179921 15.737752 128.179897 15.741022 128.180371 15.741827 128.180251 15.743324 128.180678 15.743900 128.181248 15.744567 128.180797 15.745073 128.180107 15.748199 128.175235 15.750614 128.172549 15.751282 128.173000 15.756211 128.176016 15.760449 128.178770 15.764618 128.181952 15.768833 128.184872 15.774106 128.187294 15.774728 128.187816 15.774844 128.188648 15.775099 128.190311 15.775468 128.191047 15.776551 128.192282 15.778025 128.193018 15.778853 128.193041 15.779659 128.192922 15.781270 128.192969 15.781961 128.193373 15.783389 128.194180 15.784886 128.194987 15.789264 128.198882 15.794377 128.201517 15.799303 128.202584 15.804207 128.203817 15.805681 128.204601 15.810218 128.207093 15.812474 128.208090 15.817402 128.209181 15.818967 128.209798 15.821155 128.210842 15.821961 128.210890 15.826081 128.210864 15.826887 128.210555 15.828475 128.210126 15.834161 128.210884 15.838399 128.213591 15.839897 128.215610 15.844389 128.219291 15.845172 128.219481 15.850191 128.220167 15.853368 128.220974 15.854796 128.221781 15.855624 128.221781 15.857236 128.221376 15.860296 128.220091 15.864783 128.217832 15.869777 128.216642 15.875138 128.214454 15.880062 128.211577 15.882456 128.211695 15.884022 128.211932 15.884804 128.211742 15.886415 128.211670 15.886807 128.212382 15.886946 128.213237 15.887269 128.213974 15.887914 128.214449 15.887963 128.214443 15.891143 128.210781 15.905451 128.186520 15.908255 128.185867 15.917767 128.165798 15.921374 128.015556 15.849258 127.930219 15.730268 127.832862 15.723873 127.827995
Then northwesterly to intersect with a southeastern boundary of Reserve 13873 at Longitude 127.826924 East; then generally northeasterly along boundaries of that reserve to Latitude 15.685255 South; then generally northeasterly and generally northerly passing through the following co-ordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 15.677527 127.854946 15.670992 127.858765 15.663689 127.864111 15.657538 127.869076 15.653358 127.871191 15.652906 127.871191 15.651548 127.871191 15.649736 127.871191 15.648378 127.871191 15.647472 127.871191 15.646566 127.871191 15.645661 127.871191 15.644302 127.870741 15.642943 127.870291 15.642037 127.870291 15.640679 127.869840 15.639320 127.868941 15.637961 127.868041 15.637056 127.867591 15.636150 127.867141 15.635244 127.866691 15.634338 127.866241 15.633433 127.865791 15.632527 127.865791 15.631622 127.865342 15.630263 127.864442 15.629357 127.863992 15.627999 127.862642 15.626640 127.861742 15.625735 127.860393 15.625282 127.859493 15.624829 127.858593 15.623470 127.857243 15.622565 127.856794 15.621659 127.855894 15.620753 127.855894 15.619848 127.855894 15.618942 127.855894 15.617583 127.855894 15.615772 127.855894 15.614413 127.856794 15.613508 127.857243 15.612602 127.857243 15.611696 127.858143 15.610791 127.859043 15.609885 127.859943 15.608979 127.860843 15.608073 127.861742 15.606715 127.863542 15.605357 127.865791 15.604451 127.867591 15.603545 127.869390 15.602639 127.870740 15.602187 127.872090 15.601734 127.873889 15.601281 127.875239 15.601281 127.876139 15.601281 127.877038 15.600375 127.877938 15.599922 127.878838 15.599017 127.880638 15.598111 127.882887 15.597205 127.883787 15.596300 127.885586 15.595847 127.886486 15.594941 127.888286 15.594488 127.889185 15.594035 127.890085 15.593583 127.891885 15.593130 127.893234 15.591771 127.895484 15.591771 127.896383 15.591318 127.897283 15.590865 127.899083 15.590865 127.899983 15.589960 127.901332 15.589507 127.903132 15.589054 127.904482 15.588601 127.905381 15.587695 127.907181 15.586790 127.908980 15.585884 127.909880 15.584979 127.911680 15.584073 127.912579 15.583620 127.913479 15.582714 127.914379 15.582262 127.915279 15.581808 127.916178 15.580903 127.917528 15.579997 127.918428 15.579544 127.919777 15.577732 127.921576 15.576826 127.923376 15.575921 127.924276 15.575015 127.926075 15.574562 127.926975 15.573656 127.927874 15.573204 127.928774 15.572298 127.929674 15.571845 127.931024 15.570034 127.933723 15.569128 127.935522 15.567769 127.936872 15.566864 127.939122 15.565958 127.940921 15.565052 127.942721 15.564147 127.944069 15.563241 127.945419 15.562335 127.946769 15.561882 127.948118 15.561430 127.949468 15.560977 127.950368 15.560071 127.951717 15.559618 127.953067 15.558712 127.953517 15.557354 127.954417 15.555996 127.955766 15.554184 127.957566 15.553278 127.958916 15.552373 127.960265 15.551920 127.961165 15.551467 127.962065 15.551014 127.962965 15.550109 127.964764 15.549656 127.966114 15.548750 127.967013 15.548297 127.967913 15.547844 127.968813 15.546939 127.969713 15.546486 127.970613 15.545580 127.971512 15.544674 127.972412 15.543769 127.973312 15.542864 127.974212 15.541505 127.975113 15.540600 127.976462 15.539694 127.977362 15.538788 127.978711 15.537430 127.979611 15.536524 127.980511 15.535619 127.981411 15.534713 127.981861 15.533807 127.982311 15.532449 127.982596 15.531489 127.984027 15.531009 127.984980 15.531009 127.985934 15.530529 127.986888 15.530529 127.987841 15.529569 127.988318 15.529089 127.989271 15.528609 127.990225 15.527650 127.990702 15.527170 127.991655 15.526210 127.992132 15.525250 127.993086 15.524290 127.993086 15.523330 127.994039 15.522370 127.994039 15.521411 127.994039 15.520451 127.994516 15.519491 127.994516 15.518531 127.995469 15.517571 127.995946 15.516612 127.996423 15.516132 127.997377 15.515172 127.997854 15.514692 127.998807 15.514212 127.999761 15.514212 128.000714 15.513252 128.001668 15.512772 128.002621 15.512292 128.003575 15.511812 128.004528 15.511332 128.005482 15.511332 128.006436 15.510852 128.007389 15.509893 128.008343 15.508933 128.008343 15.508453 128.009296 15.507493 128.009773 15.506533 128.010250 15.506053 128.011203 15.505093 128.011680 15.504134 128.012634 15.503174 128.013111 15.502214 128.013587 15.501734 128.014541 15.501734 128.015494 15.501254 128.016448 15.500774 128.017401 15.500294 128.018355 15.500294 128.019309 15.499334 128.019785 15.498855 128.020739 15.498375 128.021693 15.497895 128.022646 15.497895 128.023600 15.497895 128.024553 15.497415 128.025507 15.496935 128.026937 15.496935 128.027891 15.496455 128.028844 15.495975 128.029798 15.495495 128.030751 15.495015 128.031705 15.494055 128.032658 15.493575 128.033612 15.493575 128.034566 15.493575 128.035519 15.493095 128.035996 15.492136 128.036949 15.491176 128.037903 15.490696 128.038857 15.490216 128.039810 15.489736 128.040764 15.489256 128.041717 15.488296 128.042194 15.488296 128.043148 15.487817 128.044101 15.487337 128.045055 15.487337 128.046008 15.486857 128.046962 15.486857 128.047915 15.486857 128.048869 15.486377 128.049822 15.486377 128.050776 15.485897 128.051730 15.485417 128.052683 15.484937 128.053637 15.483977 128.054114 15.483497 128.055067 15.482537 128.055544 15.481577 128.056021 15.480618 128.056497 15.479658 128.056497 15.478698 128.056497 15.477738 128.056974 15.476778 128.057451 15.475818 128.057451 15.475338 128.058404 15.474379 128.058881 15.473419 128.059358 15.472939 128.060312 15.471979 128.060788 15.471019 128.060788 15.470060 128.061265 15.469100 128.061742 15.468140 128.062219 15.467180 128.062219 15.466220 128.062696 15.465260 128.063172 15.464300 128.063649 15.463341 128.064603 15.462381 128.065079 15.461421 128.065556 15.460461 128.066033 15.459501 128.066510 15.458542 128.066987 15.457582 128.067463 15.456622 128.067940 15.455662 128.068417 15.454702 128.068417 15.453742 128.068894 15.452899 128.069141 15.452093 128.069589 15.451287 128.070036 15.450570 128.070529 15.449584 128.071111 15.448017 128.071648 15.447023 128.071754 15.446064 128.072231 15.445104 128.072708 15.444144 128.073185 15.443184 128.074138 15.442224 128.075092 15.441265 128.075569 15.440305 128.076045 15.439345 128.076522 15.438385 128.077476 15.437425 128.077952 15.436465 128.078429 15.435985 128.079383 15.435026 128.079860 15.434066 128.080336 15.433106 128.081290 15.432146 128.081767 15.431186 128.082244 15.430227 128.082720 15.429267 128.083197 15.428307 128.083674 15.427347 128.084627 15.426387 128.085581 15.425427 128.086058 15.424467 128.087011 15.423508 128.087488 15.422548 128.087488 15.421588 128.087965 15.420628 128.087965 15.420148 128.088918 15.419188 128.089395 15.418708 128.090349 15.417749 128.090826 15.416789 128.091302 15.415829 128.091302 15.414869 128.092256 15.413909 128.092733 15.412949 128.093209 15.412470 128.094163 15.411510 128.095117 15.410550 128.096070 15.409590 128.096547 15.408630 128.097024 15.407670 128.097501 15.406710 128.098454 15.405751 128.098931 15.405271 128.099884 15.404311 128.100361 15.403351 128.100838 15.402391 128.101315 15.401431 128.102268 15.400223 128.102788 15.377592 128.103638 15.329819 128.100953 15.273933 128.103639 15.262216 128.098266 15.247792 128.096475 15.231567 128.094683 15.213540 128.103638 15.203625 128.103638 15.185597 128.102741 15.168471 128.108115
Then northeasterly back to the commencement point. Excluded Area All those land and waters being: Lot 1702 and 1709 as shown on Deposited Plan 183763 being Unallocated Crown Land; Lot 1776 as shown on Deposited Plan 208835 being Certificate of Title 2561/586; Lot 1777 as shown on Deposited Plan 208835 being Certificate of Title 2561/587; Lot 1778 as shown on Deposited Plan 208835 being Certificate of Title 2561/588; Lot 1779 as shown on Deposited Plan 208835 being Certificate of Title 2561/589; Lot 1365 as shown on Deposited Plan 213443 being Certificate of Title 2600/54; Lot 1297 as shown on Deposited Plan 210697 being Certificate of Title 2726/303.
• 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 SCDB as at February 2013.
Prepared by: Native Title Spatial Services (Landgate) 18 July 2013. Use of Co-ordinates: Where co-ordinates 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. ATTACHMENT ONE (SCHEDULE ONE) MAPS OF THE DETERMINATION AREA SCHEDULE TWO LAND AND WATERS THE SUBJECT OF NON-EXCLUSIVE NATIVE TITLE Areas where native title comprises the rights set out in paragraph 6. Areas the subject of the native title rights and interests described in paragraph 6 of the Determination are: (a) the areas of land listed below, which are generally shown as shaded orange on the maps at Attachment One to Schedule One; (b) waters not within an area described in Schedule Three; and (c) that part of the Wyndham Port area as declared pursuant to s 10 of the Shipping and Pilotage Act 1967 (WA) generally shown with hatched blue lines on the maps at Attachment One to Schedule One and which is not covered by. (i) the Wyndham Port Area as described in Schedule Three; or (ii) an area described in Schedule Five as an area where section 47A of the Native Title Act 1993 (Cth) applies. Notes: Schedule Five identifies areas where any prior extinguishment of native title is to be disregarded. While all care has been taken, the areas in Schedule Five may cover areas which are referred to in Schedule Two and, if that occurs, Schedule Five prevails. For the avoidance of doubt, the maps provided at Attachment One of Schedule One do not depict all of the waters within the Determination Area.
Current RES 01126 RES 20359 RES 38740 PART RES 01275 PART RES 20623 RES 40520 RES 08263 RES 26370 RES 42155 RES 08264 PART RES 27441 That portion of RES 22256 which is not vested in the Shire of Wyndham - East Kimberley RES 16729 RES 28410 RES 17421 RES 37677
SCHEDULE THREE AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 3) Areas of land and waters where, by reason of extinguishment, native title rights and interests do not exist, as described in paragraph 3 of the Determination are the areas listed below which are generally, with the exception of public works, shown as shaded green on the maps at Attachment One to Schedule One: Note: Schedule Five identifies areas where any prior extinguishment of native title is to be disregarded. While all care has been taken, the areas in Schedule Five may cover areas which are referred to in Schedule Three and, if that occurs, Schedule Five prevails.
Current CT67/1A CT1379/295 CT1710/428 CT2086/520 CT75/128A CT1379/296 CT1723/899 CT2088/474 CT77/36A CT1381/106 CT1726/726 CT2091/537 CT79/184A CT1381/107 CT1730/686 CT2091/725 CT83/153A CT1381/108 CT1731/98 CT2091/757 CT91/7A CT1381/109 CT1734/3 CT2097/984 CT91/71A CT1381/110 CT1743/620 CT2107/838 CT123/59A CT1381/111 CT1755/446 CT2114/432 CT124/50A CT1381/112 CT1759/109 CT2114/595 CT126/78 CT1381/113 CT1761/780 CT2116/360 CT126/79 CT1381/124 CT1762/353 CT2133/665 CT179/74A CT1381/125 CT1765/651 CT2135/885 CT258/163A CT1381/126 CT1765/839 CT2136/117 CT306/52A CT1387/752 CT1776/548 CT2137/452 CT319/6A CT1394/813 CT1782/779 CT2140/978 CT334/66A CT1399/16 CT1782/780 CT2140/979 CT334/172A CT1405/141 CT1784/851 CT2144/195 CT334/173A CT1407/978 CT1784/852 CT2149/401 CT334/174A CT1435/294 CT1784/853 CT2152/969 CT334/175A CT1438/978 CT1784/854 CT2152/970 CT340/45A CT1443/58 CT1784/855 CT2153/270 CT349/3A CT1443/59 CT1784/856 CT2157/44 CT421/133A CT1443/60 CT1784/857 CT2158/594 CT440/151A CT1443/70 CT1784/858 CT2161/78 CT508/77A CT1443/71 CT1784/859 CT217/722 CT508/78A CT1446/500 CT1784/860 CT2174/465 CT551/96A CT1447/501 CT1784/861 CT2176/676 CT551/97A CT1452/161 CT1784/862 CT2177/46 CT613/162A CT1452/162 CT1784/863 CT2178/209 CT619/108A CT1460/750 CT1784/864 CT2178/210 CT721/111 CT1462/488 CT1784/865 CT2178/219 CT1088/75 CT1463/780 CT1784/866 CT2178/220 CT1149/626 CT1471/562 CT1784/868 CT2178/221 CT1185/198 CT1495/545 CT1784/870 CT2179/965 CT1188/639 CT1498/403 CT1784/871 CT2179/966 CT1199/328 CT1500/69 CT1788/193 CT2184/984 CT1222/82 CT1504/11 CT1815/767 CT2184/985 CT1222/241 CT1504/211 CT1824/173 CT2184/986 CT1232/884 CT1520/354 CT1826/143 CT2184/987 CT1245/583 CT1527/147 CT1826/152 CT2184/988 CT1252/254 CT1527/148 CT1831/110 CT2184/989 CT1252/367 CT1528/541 CT1834/3 CT2185/47 CT1252/368 CT1528/542 CT1834/200 CT2185/918 CT1252/476 CT1528/543 CT1843/882 CT2185/919 CT1252/575 CT1537/611 CT1857/722 CT2185/920 CT1252/644 CT1537/694 CT1861/799 CT2185/921 CT1252/648 CT1538/862 CT1866/230 CT2185/922 CT1252/714 CT1538/863 CT1877/937 CT2185/923 CT1252/730 CT1545/569 CT1887/69 CT2185/924 CT1252/744 CT1545/980 CT1888/382 CT2185/925 CT1252/879 CT1546/116 CT1895/734 CT2185/926 CT1259/21 CT1546/159 CT1895/735 CT2185/927 CT1259/22 CT1546/160 CT1896/935 CT2185/928 CT1259/391 CT1546/161 CT1908/511 CT2185/948 CT1259/749 CT1546/163 CT1909/681 CT2186/567 CT1259/932 CT1546/164 CT1912/63 CT2188/611 CT1275/925 CT1546/166 CT1920/783 CT2188/612 CT1279/288 CT1559/138 CT1930/476 CT2205/29 CT1293/17 CT1565/925 CT1937/283 CT2206/971 CT1293/134 CT1566/533 CT1937/742 CT2210/206 CT1293/135 CT1566/534 CT1944/206 CT2210/258 CT1293/282 CT1595/39 CT1945/589 CT2210/261 CT1293/457 CT1595/40 CT1945/590 CT2210/383 CT1293/843 CT1605/709 CT1947/601 CT2213/997 CT1293/941 CT1605/710 CT1947/817 CT2214/149 CT1315/979 CT1605/711 CT1949/121 CT2217/67 CT1316/317 CT1609/798 CT1949/122 CT2218/615 CT1316/993 CT1618/250 CT1949/123 CT2221/42 CT1317/2 CT1628/383 CT1949/130 CT2228/358 CT1317/7 CT1630/242 CT1949/156 CT2227/144 CT1317/12 CT1632/984 CT1958/211 CT2549/703 CT1317/74 CT1633/821 CT1968/854 CT2561/585 CT1317/89 CT1639/221 CT1971/976 CT2574/344 CT1317/91 CT1641/238 CT2044/334 CT2574/345 CT1317/94 CT1641/242 CT2048/756 CT2574/346 CT1317/464 CT1641/244 CT2050/888 CT2574/347 CT1317/567 CT1641/245 CT2053/215 CT2574/348 CT1317/680 CT1643/282 CT2055/201 CT2574/349 CT1317/712 CT1643/905 CT2055/732 CT2574/350 CT1317/721 CT1669/169 CT2057/150 CT1407/978 CT1317/765 CT1669/651 CT2057/158 CT2618/945 CT1318/29 CT1675/892 CT2057/177 CT2676/134 CT1318/339 CT1675/893 CT2059/894 CT2704/973 CT1318/669 CT1676/145 CT2062/980 CT2726/303 CT1323/653 CT1676/146 CT2070/776 CT2726/309 CT1372/120 CT1676/147 CT2076/185 CT2726/317 CT1372/121 CT1678/518 CT2079/62 CT2741/247 CT1372/122 CT1678/519 CT2080/195 CT2758/292 CT1372/182 CT1682/396 CT2081/980 CT2786/41 CT1379/290 CT1687/997 CT2082/234 CT2786/94 CT1379/291 CT1702/938 CT2083/291 CT2794/143 CT1324/801 CT1643/906 CT1972/446 CT2800/725 CT1324/802 CT1645/60 CT1996/940 CT2805/321 CT1329/910 CT1645/61 CT1999/776 CT 2600/54 CT1329/927 CT1645/62 CT1999/777 CT1330/342 CT1646/342 CT2003/499 CT1336/710 CT1647/623 CT2016/754 CT1336/711 CT1654/281 CT2023/804 CT1351/835 CT1659/344 CT2030/799 CT1354/126 CT1663/778 CT2033/19 CT1369/471 CT1667/371 CT2040/220 CT1372/119 CT1667/373 CT2040/349 CT1379/294 CT1710/136 CT2083/292
Current RES 04298 RES 29323 RES 33896 RES 06067 RES 29443 RES 33992 RES 17921 RES 29606 RES 34221 RES 19746 RES 29616 RES 34279 That portion of RES 22256 which is vested in the Shire of Wyndham-East Kimberley RES 30099 RES 34280 RES 24041 RES 30137 RES 34281 RES 24384 RES 30798 RES 34340 RES 24857 RES 31271 RES 34427 RES 24968 RES 31451 RES 34958 RES 26051 RES 31967 RES 35042 RES 26308 RES 31980 RES 36528 RES 26361 RES 31981 RES 36556 RES 26896 RES 32078 RES 36818 RES 26907 RES 32079 RES 38269 RES 27256 RES 32654 RES 38477 RES 27724 RES 32816 RES 40371 RES 27725 RES 33109 RES 40961 RES 27757 RES 33268 RES 44714 RES 28384 RES 33380 RES 49399 RES 28697 RES 37768 RES 46940 RES 28844 RES 33527 RES 50168 RES 28976 RES 33684 RES 50648 RES 29261 RES 33852 RES 29308 RES 33880
Current GE H075699 GE I162473 GE L735847 GE H603413 GE I766964 L 17782 GE I012418 GE I837493 GE L735848 GE I027096 GE J234748 GE I123611 GE K934650
(ii) Miscellaneous Licences Tenement ID Holder Date Granted L8000056 KMG Logistics Pty Ltd 06/08/2010 L8000059 KMG Logistics Pty Ltd 22/09/2010
Nothing in paragraph 5(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use as contemplated by that paragraph. 6. Telstra Corporation 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 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 telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the determination area in performance of their duties; and (d) under any lease, licence or easement relating to its telecommunications facilities in the determination area. 7. Other (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including but not limited to the rights and interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to that legislation. (b) Rights and interests held by reason of the force and operation of the laws of the State (including the Rights in Water and Irrigation Act 1914 (WA)) and the Commonwealth. (c) Rights and interests of members of the public arising under common law including but not limited to: (i) the public right to fish; (i) the public right to navigate; and (ii) the right of any person to use Meat Works Road, Hugo Austla Drive and any other road in the determination area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under common law. (a) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; (iii) an employee, agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty where such access would be permitted to private land. (b) So far as confirmed pursuant to section 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) beaches; and (iv) stock routes. (c) The international right of innocent passage through the territorial sea. SCHEDULE FIVE AREAS TO WHICH SECTIONS 47A AND SECTION 47B OF THE NATIVE TITLE ACT APPLY Areas of land within the Determination Area to which sections 47A or 47B of the Native Title Act 1993 (Cth) apply as described in paragraph 11 of the Determination are the following areas described and listed as being in Schedule Five in the Determination Area table and are generally shown as shaded in brown on the maps at Attachment One to Schedule One:
Other areas (a) Reserve 46252 SCHEDULE SIX NATIVE TITLE HOLDERS The native title is held by the descendants of: Wundangana Waina, Wuju, Amburu, Djirlarmuru, Mitilber/Njorda, Jiani, Akingungka/Nakmara, Rugben, Moolpan/Kandarworl, Boongottor, Matilda Moorajayi, Joonpan/Moorajayi, Maraltadj, Miuron, Moongkama, Purwan, Waapa, Makumuku, Torto/Yilimbiri, Nandjimara, Jalalarimiri/Kolorumari, Puraru, Nandjimara, Yarluwutj, Koolberi, Angela, Moongkama, Yoolyool, Mutumutu, Murungga, Bundamiri, Vernon Dah, Mayaltor, Malangnari, Dz^ngal, Naringa, Wolarmbar, Murlu, Zamin^elli, Mandomiri, G^nambul, Nganawongka, Ng^lnari, Mal^ngu, W^Nu, W^garmiri, Waibela, ^Nuwija, Jidei-ida/Wugad^r, N^lamiri, Malnuben, Gootimurri, Junbabara, Linound^ri, Wungur^ru, Judu, Linound^ri, Jumbabera, Bo, Do^lu, Lau-uri, Wiju/Baluga, Wanguben, Mundjangal, D^lnga, Mud^ta, Rebern, D^lnga, Med^rda, Aruwund^rdzera, Mal^ngunawal, Galamiri, Angular, Benmiri, Ziranim/Ganggu, M^labu, ^m]ra, Wulangan, Jura/Juradide, Njama, Dagi, Zunggalima, Weni, Njama, Charlie Plateman, Dickie Kooyoo, Baija, Jeduri, Zunggalima, Mandurga, W^ngadju, Nitil, Lura/Gurul, Birim, ^Ngari, Dumalbon/Tumelben, Merliman, Wangooloo, Wamblma, W^rga, Bangudenanga, Birra-rar-raa, Wanjuwila, Wungaruru, Wurarwungedzi, Zuandi, Z^lubern, G^mura, W^mbu/Njurnji, Waneigera, J^wan, Z^Inga, Guri, Banmon, Warin. For the avoidance of doubt, recognition of the native title rights and interests by this determination includes recognition of the Native Title Holders' ability to transmit those rights and interests to successive generations of Balanggarra people in accordance with traditional laws and customs. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6004 of 2000
BETWEEN: DELORES CHEINMORA, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, FRANK CHULUNG, JAMES TAYLOR, JEAN LEYLAND, JEFF CLARKE, JENNIFER EURA, KENNY MORGAN, LAURIE WAINA, LUVEY WEAVER, MARY TERESA TAYLOR, MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, ROY MARTIN, TOM BIRCH, VERNON GERRARD AND VICTOR MARTIN Applicant
AND: STATE OF WESTERN AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, DELAWARE NORTH EL QUESTRO PTY LTD AND TELSTRA CORPORATION LIMITED
JUDGE: GILMOUR J DATE: 7 AUGUST 2013 PLACE: WYNDHAM
REASONS FOR JUDGMENT 1 This proceeding, WAD 6004 of 2000, (Balanggarra #3 Application) was filed by the applicant on 3 July 2000 pursuant to the Native Title Act 1993 (Cth) (Native Title Act). It is the third application made on behalf of members of the Balanggarra community; two previous applications were combined into proceeding WAD 6027 of 1998 (Balanggarra Combined Application). 2 The Balanggarra #3 Application area covers approximately 4,318 square kilometres of land and includes areas of the waters of the Cambridge Gulf and islands located in the northern Kimberley region of Western Australia. It comprises two major land areas, an eastern component which includes Wyndham and a western component which includes parts of Home Valley pastoral station. The eastern and western components of the Balanggarra #3 Application area are separated by the southern portion of the Balanggarra Combined Application.
Agreement of parties to resolve the proceeding 3 Through mediation, the parties have reached an agreement as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Balanggarra community in relation to part of the land and waters covered by the Balanggarra #3 Application (Determination Area). The parties have agreed in respect of the balance of the land and waters the subject of the Balanggarra #3 Application that no determination be made at present and the matter remain in case management before a Registrar of the Court. 4 Consent orders signed by each of the parties to the proceeding have been filed together with a Minute of Proposed Consent Determination of Native Title (Minute). 5 The parties, or their representatives, who have signed the Minute are: (a) the applicant; (b) State of Western Australia; (c) The Commonwealth of Australia; (d) Delaware North El Questro Pty Ltd; and (e) Telstra Corporation Ltd. 6 The external boundaries of the Determination Area are described in Schedule One to the Minute. In summary, the Determination Area includes all of the land and waters of the Balanggarra #3 Application except certain areas that are excluded (Excluded Area) as follows: (a) two parcels of land generally located east of the Wyndham airport and known as Lot 1702 and Lot 1709 as shown on Deposited Plan 183763; (b) four blocks of land generally located in the town of Wyndham and known as Lots 1776 to 1779 as shown on Deposited Plan 208835; and (c) two blocks of land generally located east of the Wyndham airport and known as Lot 1297 as shown on Deposited Plan 210697 and Lot 1365 as shown on Deposited Plan 213443. 7 A new application, WAD 163 of 2013 (Balanggarra #4 Application), was recently filed over the area identified at paragraph 6(a) above, in order to take advantage of the provisions in section 47B of the Native Title Act in respect of that area. The parties have agreed that no determination in respect of the areas described at paragraph 6(b) and (c) above be made at this time to allow continued discussions in relation to them. 8 In Ward v State of Western Australia (1998) 159 ALR 483 (Ward), it was found that the Balang[g]arra peoples and the Miriuwung and Gajerrong people held native title rights and interests in the area known as Boorroonoong (Lacrosse Island): Ward, at 639. 9 The finding in Ward was upheld by a Full Court: Western Australia v Ward (2000) 170 ALR 159, at [264] - [271] (Ward (WA) FC). It was not disturbed, though not specifically considered, also by a Full Court: Attorney-General (NT) v Ward (2003) 134 FCR 16 (Ward (NT) FC). 10 The applicant has filed genealogical, ethnographic, historical and anthropological material relating to the connection of the members of the Balanggarra community to the areas covered by the Determination Area, being: (a) an affidavit of Catherine Wohlan, Anthropologist, affirmed 13 May 2013 regarding the apical ancestors; (b) an affidavit of Caitlin Fegan, Legal Officer, affirmed 13 May 2013 relating to authorisation; and (c) an affidavit of Caitlin Fegan, Legal Officer, affirmed 28 May 2013 annexing a summary of connection material prepared by the Kimberley Land Council in support of the proposed determination of native title. 11 The parties agree that the members of the Balanggarra community are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. 12 Pursuant to s 56(2)(a) of the Native Title Act, the applicant has nominated the Balanggarra Aboriginal Corporation ICN 2923 (Corporation) as the prescribed body corporate to hold the determined native title in trust for the native title holders. That nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Native Title Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.
Assessment of connection 13 In his affidavit affirmed on 25 July 2013, John Alan Catlin, on behalf of the State, deposes to the reasons why the State considers that the material provided by the applicant demonstrates the applicant's traditional connection with the Determination Area and satisfies the requirements of the Native Title Act. It also affirms the State's satisfaction, based on its assessment, with the evidence of the Balanggarra community's connection with the Determination Area as described in the Minute. Annexed to Mr Catlin's affidavit is a comprehensive list of materials, including published and unpublished literature, to which the State had regard for the purposes of its assessment. 14 In forming its assessment of the Balanggarra #3 Application, the State had regard to the decision of Lee J in Ward, upheld by the Full Court in Ward (WA) FC, in which it was found that the members of the Balang[g]arra community constituted a society and observed a normative system of law and custom that had remained substantially unchanged since sovereignty: Ward (WA) FC at [264] - [271]. 15 Mr Catlin deposes that the State completed its assessment of connection material for the Balanggarra #3 Application in 2009 and was, by then, satisfied that the information in the connection material met the State's October 2004 "Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title" (State's Connection Guidelines). This formed the basis on which the State entered into negotiations towards a consent determination of native title. 16 The applicant and the State jointly submit that the ethnographic and historical materials combined with the Aboriginal evidence provided in accordance with the State's Connection Guidelines demonstrate that members of the Balanggarra community have maintained a physical presence in the Determination Area since the acquisition of British sovereignty. In addition, evidence of their continuing physical or spiritual involvement in the application area was more than sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material presented was strongly indicative of the maintenance of connection according to traditional laws and custom in the Balanggarra #3 Application area.
Authorisation issues 17 Some issues in relation to authorisation arise. The first concerns the fact that 10 of the 20 persons who are named as the applicant have died and whether the surviving 10 persons remain authorised without the need for further authorisation. The second concerns the fact that the native title claimant group, as described in the Balanggarra #3 Application, differs from the proposed native title holding group identified in Schedule Six of the Minute. Additionally, the native title holding group identified in Schedule Six is not, prima facie, identical to the description of "Balangarra peoples" as recognised and described in the decision of the Full Court in Ward (NT) FC. 18 The Balanggarra #3 Application has not been amended since 8 August 2000. In respect of the first issue, the applicant has provided evidence that at an authorisation meeting held on 1 and 2 May 2013, in relation to the proposed Determination Area, the surviving members of the applicant group were authorised to agree to the terms as reflected in the Minute. 19 In her affidavit affirmed on 13 May 2013, Ms Fegan deposes that prior to the authorisation meeting, the Kimberley Land Council gave notice of that meeting by, inter alia, writing both by post and by email to those Balanggarra persons whose relevant contact details are known to the Kimberley Land Council, as well as distributing information about the meeting in person and via word of mouth, and publishing a notice in the Broome Advertiser and Kimberley Echo newspapers. 20 In each instance, those notices advised that the authorisation meeting would consider, inter alia: (a) the difference between the description of the native title claim group in the Balanggarra #3 Application and the native title holding group in the Minute; and (b) whether to affirm the authorisation of those living persons who comprise the applicant. 21 A description of the proposed native title holding group as described in Schedule Six of the Minute was also provided in that notice. In respect of this, it was resolved at the authorisation meeting that: (a) "The persons at this meeting resolve that there are enough people present and that this is an appropriate meeting to make decisions about authorising the terms of the proposed draft minute of consent determination for Balanggarra #3 WAD 6004/2000"; (b) "The description of the native title holding group in the Minute should remain in its current form, noting the difference between that description and the Balanggarra #3 Application"; and (c) "The Balanggarra claim group affirms that the surviving members of the applicant of the Balanggarra #3 Application WAD 6004/2000 or such of them as are able to act are authorised to continue acting as applicant." 22 The differences between the Balanggarra #3 Application and the description of the native title holding group in the Minute are explained in the affidavits of Caitlin Fegan affirmed 13 May 2013 and Catherine Wohlan, affirmed 13 May 2013, who is an anthropologist with specialised knowledge relevant to this matter. In summary, those affidavits provide: (a) the differences relate to 3 ancestors who are not identified in the Balanggarra #3 Application but who are named in the native title claim group description set out in the Balanggarra Combined Application; (b) similarly, there are an additional 3 ancestors who are not referred to in the Balanggarra Combined Application who are named in the native title claim group description set out in the Balanggarra #3 Application; (c) it is Ms Wohlan's opinion that those 6 names are likely a reference to 3 ancestors who have been described differently because of personal style and orthographic preference of the person who compiled those various applications; and (d) it is Ms Wohlan's overall opinion that the differences in the claim group descriptions between Balanggarra Combined Application and the Balanggarra #3 Application and the native title holding group, as determined in Ward (NT) FC, do not result in differences of constituency between the three groups described. 23 The Balang[g]arra native title holding group is referred to in Schedule Five of the determination made by Wilcox, North and Weinberg JJ in Ward (NT) FC. Schedule Five states: "Persons identified with the Balangarra as at the date of this determination include descendants of the following persons". A number of ancestors are then listed. The names of the ancestors Dalza-ungnari, Zigalu, Mangular, Madamal, Timothy, Lumbia and Gumbol referred to in the decision in Ward (NT) FC are not included in the native title holding group described at Schedule Six of the Minute. Conversely, the Minute before me identifies ancestors named as Njama, Weni and Nandjimara, who are not individually referred to in the decision in Ward (NT) FC. 24 In respect of the formulation and effect of the proposed native title holding group described at Schedule Six of the Minute, I find that: (a) the description is likely to be the result of further research undertaken since the Balanggarra #3 Application was made; (b) while there is a difference between that description and the description in Ward (NT) FC, that difference is a matter of form rather than substance as the difference in the two descriptions does not change the membership of the native title holding group; (c) the description is consistent with the native title holding group which is to be recognised in the determination relating to the Balanggarra Combined Application which is to be determined concurrently with this proceeding; (d) the description, including its apparent difference from that set out in Ward (NT) FC, has been extensively considered by an anthropologist with specialised knowledge relevant to this matter, who is of the opinion that the description in Schedule Six of the Minute does not result in any differences between the Balanggarra Combined Application, the Balanggarra #3 Application or the finding in Ward (NT) FC; and (e) notices advising of the authorisation meeting were widely distributed, identified persons who are members of the Balanggarra community by reference to the description of the proposed native title holding group and a resolution was passed at the authorisation meeting authorising that description of the native title holding group and the ongoing authority of the applicant. 25 I am satisfied, based on the material before me, that there is no difference in substance between the native title holders described in Ward (NT) FC and the persons described in Schedule Six of the Minute as persons who together comprise the Balanggarra community. Further, in making the determination sought in the Minute, the Court will not be making a contrary finding or otherwise departing from the finding made in Ward (NT) FC as to the identity of the native title holding group described therein. 26 Although the description of the claim group in the Balanggarra #3 Application has not been amended to conform with the description in Schedule Six of the Minute, the Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Billy Patch on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]. In my view it would be appropriate for the Court to make a determination as sought in the Minute. My reasons for so concluding are very similar to those applied in Sharpe v State of Western Australia [2013] FCA 599, at [19]-[23] (Sharpe), in that: (a) there will be a satisfactory resolution of the Balanggarra #3 Application for all parties; (b) the nature of any defect in authorisation does not arise out of any dispute within the Balanggarra community and is not a recent development; (c) the description of the native title holding group in Schedule Six of the Minute was widely notified and advertised in the process of notifying the authorisation meeting; (d) the State is satisfied that the holders of native title rights and interests in the Determination Area are the persons described in Schedule Six of the Minute; and (e) appropriate measures have been taken to notify members of the Balanggarra community of the proposed determination of native title and they have authorised the applicant to agree to the making of the Minute in its current terms, including the description of the proposed native title holding group. 27 To the extent that it might be thought that there is a defect in the authorisation of this application I find, pursuant to s 84D(4) of the Native Title Act, that it is in the interests of justice and would be appropriate for the Court to make the Determination. This long running application should not fail simply on authorisation grounds. My reasons for so concluding are, in effect, the same as applied in Sharpe, at [20] - [21] where I referred to Barunga v State of Western Australia [2011] FCA 518 (Barunga), at [12]-[21]. 28 In Barunga, some of the members of the applicant group were deceased at the time of the making of an agreement for the determination of native title by consent in that matter. The native title holding group recognised in the determination then made was a larger group of people than the native title claimant group on whose behalf the application was brought. In the present case, for the same reasoning I adopted in Barunga, I would exercise my discretion under s 84D(4) of the Native Title Act to make the determination sought despite any perceived defect in authorisation.
Requirements of s 87A of the Native Title Act 29 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 section 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 section 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(5)); (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)). 30 The first three of the above pre-conditions have been met. The Balanggarra #3 Application was made on 3 July 2000 and was notified by the Native Title Registrar pursuant to section 66 of the Native Title Act. The period of 3 months after the notification day referred to in sections 66 (8) and 66 (10)(c) of the Native Title Act ended on 29 August 2001. There is an agreement for a proposed determination of native title, the terms of which are in writing and signed by or on behalf of all of the parties and contained in the Minute. The fourth and fifth pre-conditions are not applicable as all relevant parties to the application are parties to the agreement the subject of the Minute. Hence the Registrar need not give notice to any party pursuant to s 87A(3). It follows that there are no objections for the Court to take into account pursuant to s 87A(5). There is no reason why the Court should not be satisfied that an order in, or consistent with, the terms of the agreement as reflected in the Minute is within the power of the Court and that there is no barrier under ss 13(1)(a), 67(1), 68, 94A and 225 of the Native Title Act to the making of a consent determination of native title, as proposed by the parties. I am satisfied that the Court has jurisdiction to make the orders sought and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders. 31 It remains for me to consider whether it appears to be appropriate to make the orders consented to by the parties. In Wurrunmurra v State of Western Australia [2012] FCA 1399, at [22], citing my earlier decision in Goonack v State of Western Australia [2011] FCA 516, I considered the terms and operation of s 87A(4) of the Native Title Act, as follows: [25] The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia [2007] FCA 1025; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia. [26] The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37]. 32 The State has played an active role in the negotiation of the proposed consent determination which is an important factor. I consider that in so doing, 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 has satisfied itself that the determination as sought is justified in all the circumstances. 33 In all the circumstances I am satisfied that it would be appropriate and within power to make orders under ss 87A and 94A of the Native Title Act. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the Native Title Act. 34 The effect is that the native title claim group, being the Balanggarra community, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area. 35 I propose therefore to make orders, in effect, as sought in the Minute. I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
Cheinmora
State of Western Australia
(2003) 134 FCR 16
(2001) 115 FCR 109
(2002) 117 FCR 6
(1998) 159 ALR 483
(2000) 170 ALR 159