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[2018] FCA 1849
plaintiff. In WAD 6136 of 1998 the overlapping portion was dismissed, a determination of native title was made over the Determination Area in both proceedings, the Nanda Aboriginal Corporation was ordered to...
The Federal Court of Australia recognised the native title of the Nanda People over 17 350 square kilometres of coastal and inland country in Western Australia. By consent, the Court declared that the Nanda People hold exclusive native title rights (possession, occupation, use and enjoyment) over certain reserves and unallocated Crown land around significant pools, and non-exclusive rights to enter, camp, hunt, fish, gather, take water, conduct ceremonies and protect sacred sites over the remainder. These rights are exercised in accordance with Nanda traditional law and custom and are subject to existing pastoral leases, roads, pipelines, mining tenements and other interests. Prior extinguishment over specified areas was disregarded under ss 47A and 47B. The Nanda Aboriginal Corporation holds the native title on trust. The decision rests on extensive connection material provided to the State, which the State accepted as showing a substantially uninterrupted system of laws and customs since before British sovereignty.
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24 cited instruments linked from this judgment.
The Nanda People, represented by two sets of applicants, brought native title determination applications under s 61 of the Native Title Act 1993 (Cth). Proceeding WAD 6136 of 1998 (the Nanda application) was originally filed in 1998, later combined with a related application, and amended in July 2018 to remove seaward areas beyond the lowest astronomical tide and areas overlapping the Malgana claim following an inter-Indigenous agreement. Proceeding WAD 286 of 2018 (the Nanda #2 application) was filed shortly before that amendment to attract the operation of s 47B over discrete areas of unallocated Crown land around Bully Pool and Wilgie Mia Pool. The Determination Area ultimately comprised approximately 17 350 sq km running along the coast from the Murchison River to just south of Shark Bay, encompassing parts of the Shires of Northampton, Murchison and Shark Bay, including the townsite of Kalbarri, pastoral stations, the Kalbarri National Park, nature reserves and areas of unallocated Crown land.
The land tenure within the Determination Area included pastoral leases (Yandi, Coburn, Hamelin, Eurardy, Talisker, Nerren Nerren, Meadow, Murchison House and Tamala), reserves, freehold grants, roads, the Dampier to Bunbury Natural Gas Pipeline, mining tenements, and historic railway alignments. After extensive negotiations the applicants, the State of Western Australia, the Commonwealth, Yamatji Marlpa Aboriginal Corporation, Telstra and the pastoral respondents reached agreement on the terms of a consent determination. A minute of proposed consent determination was filed on 21 November 2018. The agreement provided for dismissal of the overlapping portion of the Nanda application, recognition of native title over the Determination Area, application of ss 47A and 47B to disregard prior extinguishment over identified reserves and unallocated Crown land, detailed definition of exclusive and non-exclusive rights, and nomination of the Nanda Aboriginal Corporation (ICN 8871) to hold the native title in trust.
Connection material provided to the State on a without prejudice basis included Dr Anna Kenny’s 2014 anthropology report with genealogies, site and resource registers and a connection film, two supplementary reports by AnnMarie Volpe, and affidavits or statements from ten Nanda claimants. The State accepted that this material demonstrated a credible or cogent basis for the existence of native title in accordance with s 223. No connection evidence was filed directly with the Court. The matter was determined on the papers. On 28 November 2018 Mortimer J made orders giving effect to the agreement, dismissed the overlapping part of WAD 6136 of 1998, determined native title in the terms set out in Attachment A, ordered that the Nanda Aboriginal Corporation hold the native title in trust under s 56(2)(b), and made no order as to costs.
Mortimer J was satisfied that the procedural prerequisites of ss 87 and 87A had been met. The s 66 notification period had expired, the minute had been signed by all relevant parties including the representative body, and no further notice under s 87A(3) was required. The orders sought were consistent with the parties’ written agreement. The Court possessed power under ss 87, 87A and 94A to make the determination.
On the question of appropriateness, her Honour adopted the approach articulated in Freddie v Northern Territory [2017] FCA 867 at [16]–[18] and the observations of Mansfield J in Brown v Northern Territory of Australia [2015] FCA 1268 at [23]. The Court does not conduct a merits inquiry but assesses whether the State has made a rational, good-faith decision on the material before it. The State had received the 2014 anthropology report, supplementary reports, claimant statements and film. Mortimer J expressly found at [20] that the State had “ample material on which to make an informed decision about the connection of the Nanda People to the claim area”. The joint submissions recorded the State’s conclusion that the Nanda People are bound by a normative system of laws and customs observed in a substantially uninterrupted manner since before sovereignty, and that physical and spiritual connection had not been severed.
The judgment records at [57] the State’s satisfaction that the material evidenced maintenance of connection according to traditional laws and customs. Mortimer J accepted that assessment. She noted the applicants’ nomination of the Nanda Aboriginal Corporation, the unanimous authorisation at the 16 June 2018 claim group meeting, the subsequent directors’ resolution, and the corporation’s compliance with reg 4(2)(b) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). These steps satisfied ss 55 and 56.
The substantive content of the determination was also appropriate. Paragraphs 4 and 5 of the determination set out exclusive rights (subject to water) over the Exclusive Area listed in Schedule Three and non-exclusive rights over the Non-Exclusive Area. Qualifications in paragraphs 6–8 reflect the requirement that rights be exercised in accordance with traditional laws and customs for personal, domestic or communal purposes and not for commercial purposes, and that they yield to inconsistent other interests. Schedule Four identifies areas of total extinguishment. Schedule Six applies ss 47A and 47B to Barrel Well Reserve and specified unallocated Crown land and reserves. The relationship clause at paragraph 11 follows the conventional non-extinguishment and priority wording required by the Act. Because all these elements were agreed, supported by the State’s assessment, and consistent with ss 223 and 225, the Court was satisfied it was appropriate to make the orders.
Prior to this determination the legal position of the Nanda People was that they asserted native title rights and interests but had no judicial recognition. The Nanda application had been on foot since 1998. Amendments in 2018 removed seaward and overlapping Shark Bay areas following agreement with the Malgana claimants. The filing of the Nanda #2 application was a deliberate procedural step to engage s 47B over areas of unallocated Crown land that would otherwise have been subject to extinguishment by prior acts.
The law governing consent determinations was settled. Sections 87 and 87A had been interpreted to require the Court to satisfy itself that the agreement is appropriate and within power, but not to conduct a full trial on connection. The State’s role in assessing connection material on a without prejudice basis had become standard practice. Decisions such as Brown v Northern Territory of Australia [2015] FCA 1268 and Freddie v Northern Territory [2017] FCA 867 confirmed that the Court may rely upon the State’s rational assessment. The non-extinguishment provisions in ss 47A and 47B had been regularly applied to reserves created for the benefit of Aboriginal inhabitants and to unallocated Crown land not covered by extinguishing tenures at the time the application was made.
After the determination the legal position changed in three respects. First, native title is now recognised and declared to exist in the Determination Area in the precise terms set out in paragraphs 4 and 5. The Nanda People are the native title holders. Second, the Nanda Aboriginal Corporation holds the native title on trust and becomes the entity through which future dealings must occur. Third, the relationship between native title and other interests is now authoritatively stated: other interests prevail to the extent of inconsistency during their currency but do not extinguish native title. The balance of the original Nanda application (Nanda Part B) remains unresolved, overlapping as it does with the Mullewa Wadjari and Malgana #2 determinations. The determination therefore finalises native title over the agreed area while leaving Part B for later resolution.
Paragraph 1 states: “The parties agree the following description by one Nanda claim group member embodies the enduring sense of connection of the Nanda People to their country…” The quoted passage speaks of going onto country as healing, clearing the mind and passing knowledge to children. Mortimer J uses this to anchor the legal proceeding in the lived experience of the claim group.
Paragraph 2 reads: “The Court’s determination will preserve, protect and recognise, in contemporary Australian law, what the Nanda People already know, and have always known, about their connection by traditional law and custom to their country.” In plain English, a court order does not create native title; it simply declares in Australian law a relationship that the Nanda People have always understood to exist.
At [57] the joint submissions are summarised as showing that the Nanda People 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 [the Nanda People] in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.” This is the orthodox Ward and Yorta Yorta formulation of the connection test. The State’s acceptance of that proposition was decisive.
Paragraph 30 records a senior Nanda claimant’s description of the water snake that lives in pools along the Murchison River: “That snake is in that pool, so you’ve got to be aware when you get there… You should not kill the snake because if you kill the snake, the pool will go dry.” The passage illustrates that spiritual beliefs form part of the traditional laws and customs grounding native title. Mortimer J notes that respect must be shown by throwing sand into the water before use.
Paragraph 61–67 deal with the PBC nomination. The Court accepted Mr McKellar’s evidence that the claim group meeting on 16 June 2018 unanimously authorised incorporation of the Nanda Aboriginal Corporation to hold native title on trust, and that the directors later resolved to accept the nomination. In plain English, the native title holders chose their own corporate vehicle and followed the statutory process, so the Court could make the trust order under s 56(2)(b) at the same time as the determination.
This judgment will be engaged whenever native title claimants and the State (and other respondents) reach a negotiated consent determination in the Federal Court of Western Australia. The key factual triggers are:
The judgment is particularly relevant where the claim area contains a mixture of pastoral lease, unallocated Crown land, national park and freehold, and where discrete pools or water sources are identified as spiritually significant, justifying the application of s 47B. It also applies where part of an earlier application must be dismissed to accommodate overlapping claims or to allow a fresh application to attract non-extinguishment provisions.
The judgment itself cites Brown v Northern Territory of Australia [2015] FCA 1268, Freddie v Northern Territory [2017] FCA 867 and Narrier v State of Western Australia [2016] FCA 1519 as exemplars of the limited judicial role in consent determinations. Mortimer J’s articulation at [52]–[56] of the appropriateness test has been applied in subsequent Western Australian consent determinations where the State has relied on without-prejudice connection material. The emphasis on the State’s rational assessment as sufficient probative material has been followed where courts have been asked to approve consent minutes without full evidentiary hearings.
The detailed drafting of exclusive and non-exclusive rights, the carve-out for minerals and petroleum, the water qualifications, and the standard non-extinguishment and priority clause have become template language in later determinations. The treatment of the Dampier to Bunbury Natural Gas Pipeline as an “other interest” with corridor rights under the Dampier to Bunbury Pipeline Act 1997 (WA) has been replicated in overlapping claims. The appointment of the Nanda Aboriginal Corporation as a trust PBC on the basis of claim group meeting minutes and directors’ resolutions has been accepted as satisfying s 56 in subsequent matters.
Because the reasons are concise and focus on the statutory prerequisites rather than novel points of principle, later courts have treated the decision as confirmatory of established consent-determination practice rather than as establishing new doctrine. The judgment’s respectful acknowledgement of Nanda spiritual beliefs and the role of pastoral-station history in maintaining connection has been cited as an example of how courts can record the human reality behind the legal test without turning the proceeding into a contested trial.
The judgment leaves unresolved the native title status of Nanda Part B—the portion of the original Nanda application overlapped by the Mullewa Wadjari and Malgana #2 determinations. Whether native title exists there, and if so in what form, remains for future determination or agreement.
The precise content of the obligation to “protect” places of cultural or spiritual importance by “carrying out lawful activities to preserve their physical or spiritual integrity” (paragraph 5(d)(i)) is not further defined. Its interaction with State heritage legislation and the rights of pastoral lessees is left to case-by-case resolution.
The commercial-use exclusion in paragraph 6(b) reflects the parties’ agreement but leaves open whether particular activities (for example, guided cultural tours or sale of art created on country) fall inside or outside that limitation. The judgment does not explore the boundary between “personal, domestic, and communal purposes” and commercial exploitation.
The application of s 47B to the discrete areas around Syphon Pool, Glasses Well, Bully Pool and Wilgie Mia Pool depended on those areas not being covered by extinguishing interests at the time the applications were made. Whether that factual premise remains accurate if further tenure history is later discovered is not addressed.
Finally, the long-term operation of the trust PBC, the relationship between the Nanda Aboriginal Corporation and the wider claim group, and the mechanisms for decision-making about future acts are not before the Court in this proceeding. Those governance questions remain open and will be answered by the corporation’s rule book, the Native Title Act’s future act provisions, and any ILUAs concluded under s 24BG with the pastoral respondents.
Legislation: Australian Telecommunications Corporation Act 1989 (Cth) Conservation and Land Management Act 1984 (WA) Federal Court of Australia Act 1976 (Cth), ss 37M, 37N Native Title Act 1993 (Cth), ss 23C(2), 47A, 47B, 55, 56, 61, 62A, 66, 87, 87A, 94A, 212, 223, 225, 251D Post and Telegraph Act 1901 (Cth) Rights in Water and Irrigation Act 1914 (WA), s 101 Telecommunications Act 1975 (Cth) Telecommunications Act 1991 (Cth) Telecommunications Act 1997 (Cth) Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), reg 4(2)(b) Dampier to Bunbury Pipeline Act 1997 (WA), ss 34, 36, 41(2)(b) Land Acquisition and Public Works Act 1902 (WA) Mining Act 1904 (WA) (repealed) Mining Act 1978 (WA) Northampton - Ajana Railway Act 1911 (WA) (repealed) Petroleum and Geothermal Energy Resources Act 1967 (WA)
Petroleum (Submerged Lands) Act 1982 (WA) Petroleum Act 1936 (WA) (repealed) Petroleum Pipelines Act 1969 (WA) Rights in Water and Irrigation Act 1914 (WA)
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), ss 12J, 14
Cases cited: Brown v Northern Territory of Australia [2015] FCA 1268 Freddie v Northern Territory [2017] FCA 867 Narrier v State of Western Australia [2016] FCA 1519
Date of hearing: Determined on the papers
Date of last submissions: 21 November 2018
Registry: Western Australia
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 69
Solicitor for the Applicant: Mr Colin McKellar and Mr Eldon Stone of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia: Mr Jeff O'Halloran of the State Solicitor's Office
Solicitor for the Commonwealth of Australia in WAD 6136/1998 and WAD 286/2018: Australian Government Solicitor
Solicitor for Yamatji Marlpa Aboriginal Corporation in WAD 6136/1998: Yamatji Marlpa Aboriginal Corporation
Solicitor for BPP Oliver Super Pty Ltd, Calum Graham Carruth, Alan James Crawford, Harold James Crawford, James Michael Drew, Loreto Mary Drew, Gabor Holdings Pty Ltd, Vivian Roy Porter and Belinda Jean Sparkhall in WAD 6136/1998: Cornerstone Legal
Solicitor for Telstra Corporation Limited in WAD 6136/1998: Herbert Smith Freehills
21 May 2019 In clause 2(a) in Schedule Five of Appendix A, "PL N049576 Tamala Station" has been inserted at the end of the table
BETWEEN: VIOLET DRURY, COLEEN DRAGE, JOHN STEPHEN DRAGE, STEVEN KELLY (FATHER OF MARRICK KELLY), STEVEN KELLY (GRANDSON OF CORNELIUS KELLY), WILLIAM MALLARD (JNR), WILLIAM MALLARD (SNR), NORA MALLARD, GWEN MITCHELL, HELEN NUTTER, ANNETTE PEPPER, JUNE RUFFIN, MARY TULLOCK, GERALD JOHN WHITBY, LORRAINE WHITBY AND JANET WILTON Applicant
AND: STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, YAMATJI MARLPA ABORIGINAL CORPORATION, BPP OLIVER SUPER PTY LTD, CALUM GRAHAM CARRUTH, ALAN JAMES CRAWFORD, HAROLD JAMES CRAWFORD, JAMES MICHAEL DREW, LORETO MARY DREW, GABOR HOLDINGS PTY LTD, VIVIAN ROY PORTER, BELINDA JEAN SPARKHALL AND TELSTRA CORPORATION LIMITED Respondents
BETWEEN: DEREK DRAGE, HELEN NUTTER, ANNETTE PEPPER, DOUGLAS WILLIAM RYDER AND DELVEEN WHITBY Applicant
AND: STATE OF WESTERN AUSTRALIA AND COMMONWEALTH OF AUSTRALIA Respondents
JUDGE: MORTIMER J DATE OF ORDER: 28 NOVEMBER 2018
A. The Applicant in proceeding WAD 6136 of 1998 has made a native title determination application ("Nanda Application"). B. The Applicant in proceeding WAD 286 of 2018 has made a native title determination application ("Nanda #2 Application") which partially overlaps the land and waters the subject of the Nanda Application. The Nanda Application and the Nanda #2 Application are made on behalf of the same persons. C. The Applicants in the Nanda and Nanda #2 Applications, the State of Western Australia and the Respondents to the proceedings ("the parties") have reached an agreement as to the terms of a determination which is to be made in relation to the whole of the Nanda #2 Application and part of the land and waters covered by the Nanda Application ("the Determination Area"). The external boundaries of the Determination Area are described in Schedule One to the determination. D. The parties have agreed that, in respect of the balance of the land and waters the subject of the Nanda Application ("Nanda Part B"), no determination is to be made at present. Nanda Part B comprises that portion of the Nanda Application which is geographically overlapped by native title determinations WAD 6119 of 1998 (Mullewa Wadjari Community) and WAD 339 of 2018 (Malgana #2). E. Each of BPP Oliver Super Pty Ltd, Calum Graham Carruth, Alan James Crawford, Harold James Crawford, James Michael Drew, Loreto Mary Drew, Gabor Holdings Pty Ltd and Belinda Jean Sparkhall have reached an agreement with the Applicant in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the making of the determination, that agreement will be executed and an application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as a prescribed body corporate agreement pursuant to s 24BG of the Native Title Act 1993 (Cth) ("Native Title Act"). F. Pursuant to subsections 87A(1)(d), (2) and (4) of the Native Title Act (in respect of the Nanda Application) and subsections 87(1), (1A) and (2) of the Native Title Act (in respect of the Nanda #2 Application) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Nanda and Nanda #2 Applications. G. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87A (in respect of the Nanda Application) and 87 (in respect of the Nanda #2 Application) of the Native Title Act that native title exists in relation to the land and waters of the Determination Area. H. The parties acknowledge that the effect of the making of 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, should be recognised as the native title holders for the Determination Area as set out in the determination. I. Pursuant to s 87(2) and 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. J. The Applicants in the Nanda and Nanda #2 Applications have nominated the Nanda Aboriginal Corporation (ICN 8871) pursuant to s 56(2)(a) 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 set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87, 87A and 94A of the Native Title Act and by the consent of the parties:
In so far as native title determination application WAD 6136 of 1998 relates to land and waters also overlapped by native title determination application WAD 286 of 2018, it is dismissed. 2. In relation to the Determination Area, there be a determination of native title in WAD 6136 of 1998 and WAD 286 of 2018 in the terms provided for in Attachment A. 3. The Nanda Aboriginal Corporation (ICN 8871) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth). 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Existence of native title: s 225 Native Title Act
Native title holders: s 225(a) Native Title Act 3. The native title in the Determination Area is held by the Nanda People.
The nature and extent of native title rights and interests: ss 225(b) and 225(e) Native Title Act
Exclusive Rights and Interests 4. Subject to paragraphs 6, 7 and 8, the nature and extent of the native title rights and interests in relation to the Exclusive Area is: (a) except in relation to flowing and underground water, the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others; and (b) in relation to flowing and underground water, the right to use and enjoy the flowing and underground water, including: (i) the right to hunt on, fish from, take and use the resources of the flowing and underground water; and (ii) the right to take and use the flowing and underground water.
Non Exclusive Rights and Interests 5. Subject to paragraphs 6, 7 and 8 the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area is that they confer the following non-exclusive rights on the Nanda People: (a) the right to enter and remain on the Non-Exclusive Area, camp, erect temporary shelters and to travel over and visit any part of the Non-Exclusive Area; (b) the right to hunt, fish, gather and use the resources of the Non-Exclusive Area; (c) the right to take and use water; (d) the right to engage in cultural activities on the Non-Exclusive Area, including: (i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and (ii) conducting ceremony and ritual, including burial rites; and (e) the right to be accompanied onto the Non-Exclusive Area by those persons who, though not native title holders, are: (i) spouses, partners, parents or children of the native title holders; (ii) people who are members of the immediate family of a spouse, partner, parent or child of a native title holder; or (iii) people entering the Determination Area in connection with the performance of ceremonies or cultural activities in accordance with traditional laws and customs.
Qualifications on the native title rights and interests 6. The native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth, including the common law; and (b) the traditional laws and customs of the Nanda People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes. 7. Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to: (a) minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA); (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (d) water lawfully captured by the holders of the Other Interests. 8. The native title rights and interests set out in paragraphs 4(b) and 5 do not confer: (a) possession, occupation, use and enjoyment of those parts of the Determination Area on the Nanda People to the exclusion of all others; nor (b) a right to control the access to, or use of, those parts of the Determination Area or its resources.
Sections 47A or 47B of the Native Title Act 9. Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule Six.
The nature and extent of any Other Interests 10. The nature and extent of the Other Interests are described in Schedule Five.
Relationship between native title rights and Other Interests 11. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.
Definitions and Interpretation 12. 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 Schedule Two; "Exclusive Area" means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps at Schedule Two); "flowing water" means the following water within the Determination Area: (a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; "Nanda People" means the people described in Schedule Seven and referred to in paragraph 3; "Native Title Act" means the Native Title Act 1993 (Cth); "Non-Exclusive Area" means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two); "Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 10; "resources" means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed)); "Titles Validation Act" means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); "underground water" means water from and including an underground water source, including water that percolates from the ground; and "use" does not include use by way of trade. 13. In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six and the area as depicted on the map at Schedule Two the written description prevails.
The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description: All those lands and waters commencing at a point on the eastern boundary of Pastoral Lease N049576 (Tamala) at Latitude 26.635591 South and extending easterly to Latitude 27.630981 South, Longitude 114.031482 East; Then easterly to a western boundary of Lot 214 as shown on Deposited Plan 220375 at Latitude 26.598612 South being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002); Then generally southerly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2004/010); Then generally southerly along the boundaries of that native title determination to the intersection of Latitude 27.516422 South; Then generally southwesterly and generally westerly through the following coordinate positions: Latitude (South) Longitude (East) 27.519708 115.224597 27.520539 115.222755 27.520224 115.220720 27.519729 115.218438 27.519549 115.216790 27.520308 115.215371 27.521439 115.214523 27.523508 115.213930 27.525829 115.213454 27.527758 115.213129 27.528780 115.214195
Then southeasterly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.528780 South, Longitude 115.214195 East and Latitude 27.529570 South, Longitude 115.215606 East; Then southwesterly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.534774 South, Longitude 115.206972 East and Latitude 27.533937 South, Longitude 115.205689 East; Then generally westerly and southerly through the following coordinate positions: Latitude (South) Longitude (East) 27.533937 115.205689 27.534227 115.204085 27.534217 115.202580 27.537054 115.202046
Then southerly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.537054 South, Longitude 115.202046 East and Latitude 27.538650 South, Longitude 115.201845 East; Then southwesterly to a point at the intersection of a line joining coordinate positions Latitude 27.544635 South, Longitude 115.190358 East and Latitude 27.520530 South, Longitude 115.228852 East with a line joining coordinate positions Latitude 27.540675 South, Longitude 115.198499 East and Latitude 27.540963 South, Longitude 115.195892 East; Then generally northwesterly and generally westerly through the following coordinate positions: Latitude (South) Longitude (East) 27.540963 115.195892 27.541052 115.192382 27.540438 115.190548 27.539178 115.187833 27.538555 115.185653 27.538168 115.182755 27.537892 115.180321 27.537198 115.178474 27.536446 115.176589 27.535568 115.176039 27.535031 115.175905 27.534293 115.175022 27.533624 115.174204 27.532630 115.172483 27.532166 115.170549 27.532156 115.169134 27.531870 115.165118 27.531117 115.163335 27.530248 115.161770 27.529019 115.160792 27.528039 115.160101 27.527414 115.159425 27.526975 115.158468 27.526825 115.157271 27.525532 115.155636 27.524098 115.153190 27.522922 115.151326 27.521737 115.149178 27.521263 115.146974 27.520451 115.145398 27.519767 115.143603 27.518606 115.141392 27.517524 115.139104 27.517006 115.136642 27.516656 115.134723 27.516282 115.132803 27.515809 115.130535 27.515515 115.128693 27.515126 115.127287 27.514483 115.126020 27.513605 115.125510 27.512756 115.125527 27.511698 115.125863 27.509893 115.125188 27.509493 115.123666 27.509368 115.122212 27.508756 115.120020 27.508246 115.117932 27.507379 115.116071 27.506419 115.114338 27.506426 115.112127 27.506967 115.110577 27.507883 115.109340 27.508186 115.107376 27.508641 115.105118 27.509095 115.102963 27.510098 115.102202 27.510905 115.103072 27.511571 115.104352 27.512853 115.104622 27.514214 115.103647 27.514731 115.102174 27.514868 115.100825 27.515154 115.099542 27.515035 115.098667 27.514763 115.096916 27.514801 115.095103 27.515509 115.094056 27.515947 115.092479 27.516525 115.090749
Then southwesterly to an eastern boundary of Reserve 1805 at Latitude 27.516526 South; Then westerly to a western boundary of Reserve 1805 at Latitude 27.516787 South; Then generally westerly through the following coordinate positions: Latitude (South) Longitude (East) 27.516821 115.074337 27.517434 115.073240 27.518105 115.072514 27.519241 115.070995 27.519600 115.069083 27.519946 115.067467 27.520739 115.065791 27.521806 115.064323 27.523152 115.063732 27.523801 115.062852 27.523776 115.061643 27.523773 115.060614 27.524126 115.059551 27.524433 115.058435 27.524374 115.057200 27.523877 115.056308 27.523366 115.055698 27.523191 115.054591 27.523128 115.052508 27.522913 115.050615 27.522332 115.048706 27.521468 115.047888 27.520715 115.047379 27.520498 115.045834 27.520238 115.043890 27.520457 115.042375 27.521030 115.040889 27.521359 115.039890 27.521687 115.038993 27.521559 115.037796 27.521026 115.037031 27.520288 115.036200 27.520063 115.035594 27.520228 115.034991 27.520955 115.034523 27.521864 115.034018 27.523453 115.033133 27.525448 115.031701 27.527069 115.029724 27.528137 115.028063 27.528441 115.025880 27.528381 115.023243 27.528062 115.021427 27.527680 115.020497 27.526837 115.019782 27.526086 115.019132 27.525797 115.017933 27.525877 115.016519 27.526555 115.014790 27.527174 115.013228
Then southwesterly to an eastern boundary of the northern severance of Reserve 1804 at Latitude 27.527989 South; Then southwesterly to the intersection with a northeastern boundary of Native Title Application WAD6001/2000 Hutt River (WC2000/001) at Longitude 114.674773 East; Then northwesterly to Latitude 27.857930 South, Longitude 114.107262 East; Then due west to the intersection with the Lowest Astronomical Tide; Then generally northerly and generally northwesterly along that Lowest Astronomical Tide to Latitude 26.911446 South; Then northeasterly to the eastern boundary of Pastoral Lease N049576 (Tamala) at Latitude 26.895648 South; Then northerly along the eastern boundary 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 March 2016. Lowest Astronomical Tide depicted from the Low Water Mark sourced from Landgate's Spatial Cadastral Database dated 1st March 2016. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination Application WAD6236/1998 The Malgana Shark Bay People's Application (WC1998/017) as Registered by the Native Title Registrar on the 30th March 1998. Native Title Determination Application WAD6033/1998 Wajarri Yamatji (WC2004/010) as Registered by the Native Title Registrar on the 5th December 2005. Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19th October 2017. Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23rd April 2018. Native Title Determination Application WAD6119/1998 Mullewa Wadjari Community (WC1996/093) as Registered by the Native Title Registrar on the 19th August 1996. Native Title Determination Application WAD6001/2000 Hutt River (WC2000/001) as Registered by the Native Title Registrar on the 7th July 2000. Native Title Determination Application WAD339/2018 Malgana 2 (WC2018/014) as filed in the Federal Court on the 30th July 2018. Native Title Determination Application WAD339/2018 Wajarri Yamatji #2 (WC2018/004) as filed in the Federal Court on the 1st July 2017. Native Title Determination Application WAD32/2018 Wajarri Yamatji #3 (WC2018/001) as filed in the Federal Court on the 5th February 2018. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 10th October 2018 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
Areas where native title comprises the rights set out in paragraph 4 Native title comprises the rights and interests set out in paragraph 4 of the determination in relation to the following areas (which areas are generally shown as shaded green on the maps at Schedule Two):
Then northwesterly to the intersection of the left bank of the Murchison River and Longitude 114.2601621 East. Then easterly, generally northeasterly and northwesterly along the left bank of that River until the intersection with Latitude 27.614161 South; Then northwesterly to Latitude 27.614235 South, Longitude 114.271687 East; Then northwesterly back to the commencement point. 7. All that portion of UCL 225 located around Wilgie Mia Pool that falls within the boundary commencing at Latitude 27.495831 South, Longitude 114.373594 East and extending generally westerly and generally northwesterly through the following coordinate positions; Latitude (South) Longitude (East) 27.496445 114.372947 27.496475 114.372914 27.499188 114.370054 27.502873 114.363910 27.503608 114.357880 27.502700 114.351557 27.496736 114.345675 27.495035 114.344742 27.494933 114.344687
Then northwesterly to the intersection of a line being the 500 metre buffer southeasterly from the left bank of the Murchison River with Longitude 114.342670 East; Then generally northeasterly along that line until the intersection with Longitude 114.350204 East; Then northwesterly to the intersection of the left bank of that river with Longitude 114.348994 East; Then generally easterly along the left bank of that river approximately 500m to the intersection with Longitude 114.353927 East; Then southeasterly to the intersection of a line being the 500 metre buffer southeasterly from the left bank of the Murchison River with Longitude 114.355084 East; Then along that line to the intersection between that line with Longitude 114.374251 East; Then northeasterly to the intersection with the left bank of the Murchison River with Latitude 27.479977 South; Then southeasterly along that left bank approximately 500m to the intersection with Latitude 27.484167 South; Then westerly to the intersection of a line being the 500 metre buffer westerly from the left bank of the Murchison River with Longitude 114.374794 East; Then generally southwesterly and southeasterly along that line to the intersection with Latitude 27.494601 South; Then southwesterly back to the commencement point.
AREAS WHERE NATIVE TITLE DOES NOT EXIST (PARAGRAPH 2) Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:
Reserves The following reserves: Reserve No. Current / Last Purpose 01474 Water for Travellers 12996 Parkland and Recreation 16064 Water Supply 16571 Water 17970 Recreation 18719 Water 19526 Water 21593 Agricultural Hall (underlain by vested Reserve 16193) 22676 Gravel (underlain by vested Reserve 12656 and Lease 777/41A) 24629 Childrens Playground 24631 Historic Site - School 24716 Gravel (underlain by vested Reserve 12656 and Lease 777/41A) 25307 Recreation and Parklands Act 76 - 1961 25447 Recreation 25448 Caravan Park and Camping 25600 Stock Route (underlain by CT 1161/555) 26326 School Site 26591 Parklands 27004 (part)1 Kalbarri National Park 27083 Conservation of Flora and Fauna (Galena Nature Reserve) 27637 Park and Recreation 28750 Recreation (Pindadanno Nature Reserve) 29282 Protection of Zuytdorp Wreck 30502 Slipway 30524 Emergency Services 30946 Drainage 30953 Recreation 31003 Road Transport Depot 31100 Aerial Landing Ground 31285 Main Roads Purposes - Water 31390 Change Rooms and Parking Area 31489 Conservation of Flora and Fauna (underlain by CT 0119900349) 31502 Rubbish Depot Site (including portion now UCL 14 and UCL 189) 31503 Water Supply 31631 Water Supply 31883 Fishing and Tourist Industries 32600 Effluent Disposal 32958 Gardens 32959 Pedestrian Access Way 32960 Parking 33087 Police 33703 Recreation 34443 Drainage 34446 Protection of Water Main 34550 Recreation and Parklands 35041 Drain (underlain by Special Lease 3116/4138) 35181 Ambulance Depot 35559 Community Purposes and Recreational Camp 36019 Pedestrian Access Way 36021 Cemetery Site 36068 Housing Water Supply 36095 Water Supply 36656 Emu Proof Fence 36661 Sewage Treatment Plant Site 36807 Drain 36923 Parks and Gardens 37389 Pumping Station 37445 Caravan Park 37673 Country Automatic Exchange 37701 Communications Site 37825 Parkland 38262 Sewerage Pumping Station Site 38384 Depot Site (Shire of Northampton) 38515 Parking 38533 Parking 38945 Doctors Surgery 39053 Satellite Ground Station 39120 Housing - Shire of Northampton 39474 Park and Recreation 39617 Natural Gas Pipeline Purposes 39694 Padmount Site 40731 Administration Centre and Library 40819 Natural Gas Pipeline Purposes 41416 Natural Gas Pipeline Purposes 41417 Natural Gas Pipeline Purposes 41418 Natural Gas Pipeline Purposes 41556 Repeater Station Site 41561 Padmount Site 41653 Drainage 41755 Church Site 42621 Padmount Site 42665 Recreation 43170 Photovoltaic Site 44619 Sewerage Pump Station 44699 Health (Multi Purpose Health Centre) 45047 Aged Persons Accommodation 45065 Airstrip (Natural Gas Pipeline) 46413 Recreation and Parklands 46417 Buffer Strip 47133 Public Recreation (underlain by CT 0138400450) 48271 Historical Purposes (underlain by CTs 0107800347 and ECO 1215) 49019 Health Services (underlain by CT 0141300541 and Reserve 34830) 49086 Rubbish Disposal (underlain by CT 0119900349) 49109 Drainage (underlain by CT 0138400450) 49934 Public Recreation (underlain by CT 0138400450) 50026 Park and Recreation 50396 Harbour Purposes 50456 Use and requirements of the Shire of Northampton (underlain by Road 19 and Reserve 35181) 51528 Mall (underlain by Reserve 32959) 52436 Fishing and Tourist Industries (underlain by Reserve 26591, 30502 and 31883) 52398 Public Recreation (underlain by CT 0138400450) 53065 Pedestrian Access Way (underlain by SL 3116/08951)
Leases The following leases: Lease No. Current / Last Purpose /Underlying act GE H863490 Café/Restaurant GE I538913 Light Industry Lease 223/61 Conditional Purchase Lease (underlying portion of current Pastoral Lease PL N50525) Lease 777/41A Grazing (underlying current Reserves 22676 and 24716) Lease 332/2169 Grazing (underlying current Reserve 14606) Lease 19091/68 (part)2 Grazing Lease 10398/56 Conditional Purchase Lease (underlying current Reserve 16331) Lease 27648/44 Conditional Purchase Lease (underlying UCL 12) Lease 27647/55 Conditional Purchase Lease (underlying UCL 13 and UCL 19) Lease 36886/55 Conditional Purchase Lease (underlying UCL 117, UCL 118 and UCL 190) Lease 33050/55 Conditional Purchase Lease (underlying UCL 185) Lease 3116/4138 Holiday Village (Motel, Cottages and Caravan Park) (underlying current Reserve 35041) Lease 3116/8876 Grazing (underlying UCL 191, UCL 192 and UCL 193) Lease 3116/11204 Transit Caravan Park (underlying UCL 187 and UCL 188)
Roads The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act): MapInfo No. Description Road 002 One Chain Road as shown on DP 167643 Road 003 Two Chain Road as shown on DP 168187 Road 007 Magee Street as shown on DP 174477 Road 008 One Chain Road as shown on DPs 165202174813 Road 009 Magee Crescent as shown on DPs 17563 and 213733 Road 010 Grey Street as shown on DP 175693 Road 011 One chain road as shown on DP 202248 Road 012 Hackney Street as shown on DP 208858 Road 013 Portions Mortimer, Clotworthy, Auger and Smith Streets as shown on DP 208859 Road 014 North West Coastal Highway as shown on DP 209051 Road 017 Three Chain road as shown on DP 209385 Road 018 One chain road as shown on DP 210114 Road 019 Balaam, Maver, Hasleby streets and Carlton and Patrick Crescents as shown on DP 211141 Road 020 Mallard and Gould streets and Clifton, Ash and Cornell Places as shown on DP 211575 Road 021 Portions Porter Street and Smith Street as shown on DP 211633 Road 022 Road to Meanarra Lookout as shown on DP 213025 Road 023 Road north east of Meanarra Lookout as shown on DP 241722 Road 025 Widening of North West Coastal Highway Road 028 George Grey Drive Road 029 Widening of North West Coastal Highway Road 032 North West Coastal Highway widening Road 041 Road 3970 as shown on DP 226817 Road 043 Portion of Explorer Avenue as shown on DP 022368 Road 044 Portion of Jacques Boulevard as shown on DP 034421 Road 045 Portions of Browne and Jacques Boulevards and Charlton Loop, Pelican Road and Tern Way as shown on DP 041045 Road 046 Portion of Charlton Loop Road 047 Portion of Surprise Road shown on DP 183188 Road 048 Extension of Smith Street as shown on DP 191801 Road 049 Portion of Walker Street and Magee Crescent shown on DP 213733 Road 050 Portion of Grey Street as shown on DP 213722 Road 051 Portion of Porter Street as shown on DP 213855 Road 052 Ridgeman Road as shown on DP 213883 Road 053 Walker Street, Magee Crescent, Chick Place, Harvey Place and Ralph Street as shown on DP 214082 Road 054 Porter Street, Sutherland Street, Atkinson Crescent as shown on DP 214340 Road 055 Access road Lots 824 and 825 as shown on DP 215882 Road 056 Glass Street, Batavia Circle, Karina Mews and Tiki Cove as shown on DP 216164 Road 057 Francis Close, Menari Court, Orabanda Way, Starfire Close and Gantheaume Crescent as shown on DP 216572 Road 059 Gantheaume Crescent, Glass Street and Kelsar Green as shown on DP 217355 Road 060 Waikiri Parade, Callion Way, Gantheaume Crescent, Granada Court and Adair Close as shown on DP 217722 Road 061 Gallant Close, Sequita Way, Zephyr Court, Questro Glade, Gantheaume Crescent and Salamit Place as shown on DP 218019 Road 062 Gallant Close, Nanda Drive, Portree Elbow, Gantheaume Crescent, Seakist Retreat and Ralph Street as shown on DP 219378 Road 063 Mainwaring Drive, Crocos Circuit, Gliddon Avenue and Nanda Drive as shown on DP 220064 Road 064 Pederick Place, Nanda Drive and Walker Street as shown on DP 220065 Road 065 Victoria Locations 4541, 4545, and Binnu townsite - Road 11944 as shown on DP 207469 Road 066 Lot 4541 - Road 11945 Road 068 Road 12373 as shown on DP 211660 Road 069 Road 12373 (deviation) as shown on DP 210373 Road 070 Road No. 12373 (extension) as shown on DP 211946. Road 071 Road No. 12458 (regazettal) as shown on DP 209206 Road 072 Road 12553 as shown on DP 209245 Road 073 Road 12590 as shown on DP 209101 Road 074 Road No. 2812 as shown on DP 209530 Road 076 Road No. 13924 as shown on DP 210829 Road 077 Road No 13924 (widening of part) as shown on DP 211141 Road 078 Road 13960 as shown on DP 210373 Road 079 Road No. 13975 as shown on DP 209071 Road 080 Road No. 14009 as shown on DP 172806 Road 081 Road No. 14009 (widening) as shown on DP 211660 Road 082 Road No. 14010 as shown on DP 172806 Road 083 Road 14254 as shown on DP 210685 Road 085 Road No. 14708 as shown on DP 211706 Road 086 Road No. 14904 as shown on DP 211949 Road 087 Road No. 14905 as shown on DP 211949 Road 088 Road No. 15178 on DP 176607 Road 090 Portion of Nanda Drive (Road NO. 16741) shown on DP 191803 Road 091 Road No. 16741 as shown on DP 215111 and DP 211141 Road 092 Grey Street (Road 16974) as shown on Public Plan 504476 and DP 185550 Road 093 Road No. 17415 (Butchers Track) as shown on DPs 215618 and 216276 Road 094 Road No. 18548 (Geraldine Road) as shown on DPs 217158 and 190756 Road 095 Road No 4271 (North West Coastal Highway) widening as shown on DP 169811 Road 096 Road 4271 (North West Coastal Highway) widening as shown on DP 171956 Road 097 Road No. 4271 (North West Coastal Highway) widening as shown on DP 173477 Road 098 Road 4271 (North West Coastal Highway) widening as shown on DP 181078 Road 099 Road No. 4271 (North West Coastal Highway) deviation as shown on DP 211192 Road 100 Road No. 5251 widening as shown on DP 170131 Road 103 Road No. 5709 (widening) as shown on/in Government Gazette 16/06/1967, Plan of Road, Victoria District DO Cor 573/11 and Diagram 820 Road 104 Road No. 16792 (Rochester Street) as shown on DP 184853 Road 105 Road No. 6427 (North West Coastal Highway) deviation at shown on DP 209530 Road 107 Road No. 8300 deviation as shown on DP 169040 Road 108 Road 8521 widening as shown on DP 209206 Road 109 Road No. 8570 (Northwest Coastal Highway) widening and extension as shown on DP 215944 Road 110 Road 8570 (North West Coastal Highway) widening as shown on DP 216141 Road 111 Jacques Boulevard, Grey Road, Mariner Crescent, Castaway Street, Charlton Loop and Browne Boulevard as shown on DP 024160 Road 112 Lawrencia Loop, Centrolepis Circuit, and all roads shown on DP 049898 Road 113 Flora Avenue, Darwinia Drive and all roads shown on DP 052549 Road 114 Road in Ranch Court as shown on DP 057800 Road 115 Coral Boulevard, Emerald Vista and other roads shown on DP 57812 Road 116 Beagle Road as shown on DP 058862 Road 117 Phelps Loop and Rowe Street as shown on DP 061773 Road 118 Dalgleish Crescent, Richardson Road and Ross Street as shown on DP 061774 Road 119 Road beside Northampton-Ajana Railway as shown on DP 083115 Road 122 One chain road and stockroute as shown on DP 226632 Road 123 One chain road shown on DP 226633 Road 124 Road as shown on DP 226635 Road 125 Marne, View, Mons and Station Streets as shown on DP 226893 Road 126 Road through locations 22, 21, 19 and 18 as shown on DP 228428 Road 127 Three roads as shown on DP 228430 Road 128 Road through locations 4547 and 4541 as shown on DP 232384 Road 129 Road No. 1977 and other roads as shown on DP 232399 Road 130 Road shown on DP 232404 Road 131 Roads 5029 and 4271 as shown on DP 232405 Road 132 Road 5290 as shown on DP 232407 Road 136 One chain road shown on DP 232433 Road 137 One chain road as shown on DP 232433 Road 141 Road shown on DP 232514 to north of townsite Road 142 One chain road as shown on DP 232552 Road 143 Road No. 1977 as shown on Public Plan 501721 Road 144 Road No. 5029 as shown on DP 232405 Road 147 Road No. 5709 as shown on DP 082994 Road 148 Road No. 8301 as shown on/in DP 232433 and Government Gazette 12/09/1930 Road 150 Road shown on DP 143294 Road 151 One chain road shown on DP 143510 Road 152 One chain road shown on DP 143651 Road 153 Road shown on DP 149520 Road 162 Road shown on DP 156186 Road 163 Road shown on DP 156191 Road 164 Road shown on DP 159495 Road 167 Road shown on DP 161621 Road 170 Road shown on DP 202188 Road 171 Roads in Galena shown on DP 202242 and CPP 504295 Road 172 Road shown on DP 202246 Road 173 Road shown on DP 202249 Road 174 Road shown on DP 202646 Road 175 Road shown on DP 202800 Road 176 Road shown on DP 203324 Road 177 Road shown on DP 203325 Road 178 Road shown on DP 203335 Road 179 Road shown on DP 203336 Road 180 Road shown on DP 203755 Road 181 Road shown on DP 204118 Road 182 Road shown on DP 204338 Road 184 Road shown on DP 204866 Road 185 Roads shown on DP 205825 (being Rushton, Kaiber and Walker Streets) Road 186 Roads shown on DP 206892 (being Grey, Mortimer, Smith, Woods, Coles, Auger and Clotworthy Streets) Road 187 Road shown on DP 207341 Road 190 Road shown on DP 207623 Road 191 Road shown on DP 207624 Road 192 Road shown on DP 207625 Road 195 Road shown on DP 210528 Road 196 Roads shown on DP 232410 Road 200 Road No. 4271 shown on DPs 161287 and 232405 Road 201 Road No. 4271 shown on DPs 165143 - 165143 (inclusive) and Original Plan 7471 Road 203 Road No. 5251 shown on DP 152934 Road 204 Road No. 5251 shown on DP 152934 Road 206 Road No. 5251 as shown on/in Government Gazette 05/02/1928 and Plan 191/80 Road 207 Road No. 6423 as shown on/in Government Gazette 08/04/1921 and DP 232404 Road 208 Road No. 6427 as shown on DP 152430 Road 209 Road No.7095 as shown on/in Government Gazette 11/04/1924 and CPP 503020 Road 212 Road No. 7945 as shown on DP 152443 Road 215 Road No. 8300 shown on DP 204659 Road 216 Road No. 8300 shown on DP 207362 Road 217 Road No. 8301 shown on DPs 165142 and 207470 Road 218 Road No. 8520 shown on DPs 228431 and 152936 Road 219 Road No. 8521 shown on DP 152936, 211660 and 232404 Road 220 Road No. 8570 shown on DPs 165578 - 81 (inclusive) and 207729 Road 221 Road No. 8570 shown on DPs 204676, 204694 and 204695 Road 223 Road widening shown on DP 022368 Road 225 Road shown on DP 065744 Road 226 Road (North West Coastal Highway) shown on DP 181258 Historic Road 01 Road No. 4005 shown on CPP 501727 Historic Road 02 Closed road shown on DP 211633 Historic Road 03 Road (Walker Street) shown on DP 208858 Historic Road 04 Five chain road shown on DP 210152 Historic Road 05 Closed road shown on DP 208904 Historic Road 06 Closed road shown on DP 211660 Historic Road 07 Road (Glass Street) shown on CPP 504470 and DP 213733 Historic Road 12 Road (Porter Street) shown on DP 180358 Historic Road 13 Closed road shown on DP 215111 Historic Road 14 Road No. 12720 shown on/in Government Gazette 28/08/1964 and Public Plan 192/80 Historic Road 15 Road No. 14904 shown on DP 211949 Historic Road 16 Road (Hackney Street [Lot 533]) shown on DP 214519 Historic Road 17 Road No. 12456 shown on/in Government Gazette 14/06/1963 and Original Plan 9206 Historic Road 18 Road (Bridgeman Road) shown on DP 213883 Historic Road 19 Roads (portions of Criddle Street, Blood Street, Magee Street, Ralph Place, Chick Place and Harvey Place) shown on DP 213733 Historic Road 20 Road (Ralph Street [Lot 1008]) shown on DPs 214082 and 93638 Historic Road 24 Closed road shown on DP 232405 Historic Road 25 Closed road shown on DPs 232404 and 207470 Historic Road 26 Closed road shown on DPs 232433 and 207470 Historic Road 27 Road No. 5029 shown as closed on DP 226812 Historic Road 28 Road No. 5290 (Ralphs Road) shown as closed on DP 232407 Historic Road 29 Road shown on DP 226859 Historic Road 31 Road shown on DP 232552 Historic Road 32 Road No. 8301 (deviation and extension) shown on DP 232433 Historic Road 33 Road No. 8520 shown on DP 226632 Historic Road 34 Roads shown on DP 226632 Historic Road 35 Closed road shown on DP 226635 Historic Road 36 Road shown on DP 232384 Historic Road 37 Road shown on DP 232384 Historic Road 38 Closed road shown on DP 232399 Historic Road 39 Road No. 12373 (Ajana-Kalbarri Road) shown on DPs 232399 and 211660 Historic Road 40 Road shown on DP 232410 Historic Road 41 Road shown on DP 232399 Historic Road 42 Road shown on DP 226633 Historic Road 45 Road No. 6427 (North West Coastal Highway) shown on DP 161285 Historic Road 47 Road shown on DP 143390 Historic Road 50 Road No. 8520 shown on DP 228431 Historic Road 51 Road No. 6427 shown on DP 152430 Historic Road 52 Road shown on DP 206425 Historic Road 53 Road shown on DP 208051 Historic Road 54 Road No. 4271 shown on DP 207471 Historic Road 55 Road shown on DP 202245 Historic Road 56 Road No. 7095 shown on/in Government Gazette 11/04/1924 and CPP 503020 Historic Road 58 Road No. 8570 shown on DP 204695 Historic Road 59 Road (Woods Street) shown on DP 206892 Historic Road 67 Road shown on DP 204667
Dampier to Bunbury Natural Gas Pipeline The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 and the following easements (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas: MapInfo No. Easement No. Easement 01 E180193 (3134B/214) Easement 05 E003973 (3134B/359) Easement 06 E367985 (3134B/207) Easement 07 E367983 (3134B/205) Easement 08 E367984 (3134B/206)
Taking Orders (a) The land and waters subject to the following taking orders: Taking Order Purpose J073749 Amalgamation of portion Kalbarri Lot 470 into Kalbarri Lot 10 for the purpose of "Entertainment Centre". J142592 Inclusion of Lot 1009 into Reserve 38384 "Depot Site" and inclusion of Lot 1010 into Reserve 36021 "Cemetery Site". J711744 Creation of power line easement. J958910 Sale to LandCorp K103561 Sale of land for subdivisional development for light industrial purposes K627787 Caravan Park K689587 To extend adjoining Reserve 26326 "School Site". K777890 Park and Recreation K881999 Industrial Development K956110 For sale for commercial purposes L112944 Reservation for harbour purposes L534303 For amalgamation into the adjoining freehold land
(b) The land and waters subject to the following Notices of Resumption under the Land Acquisition and Public Works Act 1902 (WA): Notification Purpose Government Gazette WA 30 April 1996 (page 1876) Subdivisional development and sale of lots as shown on LAWA 1076 Government Gazette WA 25 June 1996 (page 2932) Multi purpose health centre as shown on LAWA 1085 Government Gazette WA 4 July 1997 (page 3492) Sale of lot as shown on Diagram 93072.
Railway The former Northampton to Ajana Railway constructed pursuant to the Northampton - Ajana Railway Act 1911 (WA) (repealed) and whose line is generally described in the Schedule to that Act. 8. Public Works Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in s 251D of the Native Title Act) and to which s 12J of the Titles Validation Act or s 23C(2) of the Native Title Act applies.
OTHER INTERESTS (PARAGRAPH 10) The nature and extent of the Other Interests in relation to the Determination Area are as follows. Land tenure interests registered with the Western Australian Land Information Authority are current as at 29 June 2018. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 12 October 2018. All other interests are current as at the date of the determination.
(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above; (c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and (d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above. 2. Pastoral Leases (a) The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: Lease No. Station Name PL N049654 Yandi PL N049686 Coburn PL N049704 Hamelin PL N049731 Eurardy PL N049949 Talisker PL N050053 Nerren Nerren PL N050496 Meadow PL N050525 Murchison House PL N049576 Tamala Station
(b) Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in clause 2(a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses. 3. Leases (a) The following lease and the rights and interests of the holders from time to time of that lease: Lease No. Description GE N451762 Grazing
(b) Any rights and obligations of the lessee pursuant to the lease referred to in clause 3(a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the lease in order to manage stock and for the management, conservation and regeneration of pasture for the permitted use of the lease. 4. Roads (a) The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time: MapInfo ID. Description Road 024 Widening of North West Coastal Highway as shown on DP 023486 Road 026 Road widening Road 027 Lot 561 on DP 60562 Portion of Nanda Drive Road 030 North West Coastal Highway Road 031 North West Coastal Highway Road 033 Glass Street road widening Road 034 North West Coastal Highway Road 035 North West Coastal Highway Road 036 North West Coastal Highway widening Road 037 North West Coastal Highway widening Road 038 North West Coastal Highway Road 039 North West Coastal Highway Road 040 Nanda Drive road widening Road 042 North West Coastal Highway widening Road 227 Protected Road located in Ajana townsite
Lots 600 and 601 on DP 408200 (North West Coastal Highway widening)
(b) The following leases of roads and the rights and interests of the holders from time to time of those leases: Lease Description RO M383697 Installation, maintenance and operation of telecommunications network facility or radio communications facility (granted over Road 030) RO M384926 Installation, maintenance and operation of telecommunications network facility or radio communications facility (granted over Road 031)
(b) For the avoidance of doubt, those interests include: Interest Description / Purpose Easement 03 (E367986 [3134B/208]) Access
(b) Mining Leases Tenement ID M 0900102 M 0900103 M 0900104 M 0900105 M 0900106 M 0900111 M 0900112
(c) Miscellaneous Licences Tenement ID L 0900021 L 0900043
Petroleum Interests The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum (Submerged Lands) Act 1982 (WA) or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those interests: (a) Pipeline Licences No. Name PL 40 Dampier to Bunbury Natural Gas Pipeline
Access to Mining Tenements and Petroleum Interests (a) Without limiting the operation of any other clause in Schedule Five, but subject to clause 9(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clauses 7 and 8 of this schedule, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this Determination) as are necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest. (b) Nothing in clause 9(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 9(a). 10. Telstra Corporation Limited The rights and interests of Telstra Corporation Limited (ACN 051 775 556): (a) as the owner or operator of telecommunications facilities within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (i) to inspect land; (ii) to install, occupy and operate telecommunications facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and (d) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area including, but not limited to, Licence No 2472/101 (Meanarra Hill CMTS) located within Reserve 27004 and granted pursuant to s 101 of the Conservation and Land Management Act 1984 (WA). 11. Other The following rights and interests in the Determination Area: (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes; (b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA); (c) Rights and interests of members of the public arising under common law, including but not limited to: (i) the public right to fish; (ii) the public right to navigate; and (iii) the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law; (d) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; or (iii) an employee, agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty, including for the purpose of pest management control and fire hazard management on areas of unallocated Crown land; (e) So far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles Validation Act 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) coastal waters; (iv) beaches; (v) stock routes; and (vi) areas that were public places at the end of 31 December 1993; (f) Any other: (i) legal or equitable estate or interest in the land or waters of the Determination Area; or (ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (A) the land or waters of the Determination Area; or (B) an estate or interest in the land or waters of the Determination Area; or (iii) restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.
AREAS TO WHICH SS 47A OR 47B APPLY (PARAGRAPH 9)
NANDA PEOPLE (PARAGRAPH 3) The Nanda People are those Aboriginal persons who: (a) are descended from at least one of the following Nanda apical ancestors: (i) Jilba; (ii) Venus; (iii) Mary Jane Batt; (iv) Brindy; (v) Alice McMurray; or (vi) Polly Descent includes adoption in accordance with traditional Nanda laws and customs; (b) identify themselves as Nanda under Nanda traditional law and custom and are so identified by other Nanda People as Nanda; and (c) have a connection with the land and waters in the Determination Area in accordance with traditional Nanda laws and customs.
MORTIMER J: 1 The parties agree the following description by one Nanda claim group member embodies the enduring sense of connection of the Nanda People to their country, which is by this Court's orders the subject of a determination of native title: I go out and visit my country on every occasion I can. When I'm on country, I'm healing. I'm out of the town, I'm on country, I'm home. I can feel myself and spirit getting better when I'm on country. I clear my mind, I clear everything. And then I go back to the hustle and bustle, build it all up and then go back out to release it all. I get my children out there so they experience it too. 2 The Court's determination will preserve, protect and recognise, in contemporary Australian law, what the Nanda People already know, and have always known, about their connection by traditional law and custom to their country.
The applications 3 The orders made today for the determination of native title arise out of two applications made pursuant to s 61 of the Native Title Act 1993 (Cth). They are proceeding WAD 6136 of 1998 which I will describe as the "Nanda application", and proceeding WAD 286 of 2018 which I will describe as the "Nanda #2 application". 4 The Determination Area is approximately 17,350 sq km of land and waters located in the Geraldton region of Western Australia approximately 200 km south of Carnarvon and approximately 90 km north of Geraldton. It runs along the coast in the Mid-West and southern Gascoyne regions of Western Australia, roughly from the Murchison River to just south of Shark Bay. Three local government regions fall within the Determination Area: (a) the Shire of Northampton; (b) the Shire of Murchison; and (c) the Shire of Shark Bay. The town site of Kalbarri is also included in the Determination Area. 5 The Nanda application is, in fact, the product of two separate, original applications in WAD 6004 of 1998 and WAD 6136 of 1998. They were combined by orders of this Court on 29 September 2000, and the proceeding number WAD 6136 of 1998 was retained. It is not necessary to set out all the procedural history in detail. There were some early amendments, which also need not be set out in detail. 6 More recently, there was an amendment, made by orders on 18 July 2018, for two purposes. Firstly the amendment removed part of the Nanda application which was seaward of the lowest astronomical tide. Secondly the amendment removed part of the Nanda application which was on and near Shark Bay because of an inter-Indigenous agreement reached with the native title claimants in the adjoining Malgana Application (WAD 6236 of 1998). The amended Nanda claim was accepted for registration under s 190A(6A) of the Act on 17 August 2018. 7 Just before this amendment in 2018, the Nanda #2 application was filed. It was filed to seek the benefit of s 47B of the Act, on behalf of the same group of claimants, and overlapped entirely with the Nanda application. Subsequently, by orders made by this Court on 15 October 2018, the area of the Nanda #2 application was reduced, so that it covered only those areas of Bully Pool and Wilgie Mia Pool described in Schedule Three, items 6 and 7 of the Determination.
The parties 8 The land tenure of the application area consists of large reserves and pastoral leases, unallocated Crown land and freehold land. The tenure is reflected in the identity of the parties to the proceedings and the Determination. 9 The parties to the Nanda application, are: (a) the Nanda applicant; (b) the State of Western Australia; (c) the Commonwealth of Australia; (d) Yamatji Marlpa Aboriginal Corporation; (e) Telstra Corporation Limited; and (f) the following pastoralists: (i) BPP Oliver Super Pty Ltd; (ii) Calum Graham Carruth; (iii) Alan James Crawford; (iv) Harold James Crawford; (v) James Michael Drew; (vi) Loreto Mary Drew; (vii) Gabor Holdings Pty Ltd; (viii) Vivian Roy Porter; and (ix) Belinda Jean Sparkhall. 10 The parties to the Nanda #2 application, are: (a) the Nanda applicant; (b) the State; and (c) the Commonwealth of Australia. 11 The Nanda applicant consists of the following claim group members: Violet Drury, June Ruffin, Gwen Mitchell, Janet Wilton, Gerald John Whitby, Coleen Drage, John Stephen Drage, Annette Pepper, Steven Kelly (grandson of Cornelius Kelly), Lorraine Whitby, Mary Tullock, Steven Kelly (father of Marrick Kelly), William Mallard Jr, William Mallard Sr, Helen Nutter and Nora Mallard. 12 The Nanda #2 applicant consists of the following claim group members: Derek Drage, Helen Nutter, Annette Pepper, Douglas William Ryder and Delveen Whitby.
The native title holders 13 Rights and interests in the Determination Area under traditional law and custom are held by the Nanda People by reference to descent, including adoption in accordance with traditional law and custom. 14 The initial identification of the apical ancestors to whom the native title holders traced their rights and interests in the Determination Area was limited to four individuals: Jilba, Mary Jane Batt, Sarah Feast and Alice McMurry. After a connection report on behalf of the applicant was given to the State on a without prejudice basis, and after further negotiations, the parties agreed to a different description, which is the one to be found in the Determination made by the Court. In that new description, Sarah Feast has been removed as an apical ancestor, on the basis that the connection report concluded Sarah Feast was, more likely than not, not a Nanda person. Added to the list of apical ancestors were Venus (the sister of Jilba), Brindy (one of Mary Jane Batt's partners) and Polly. 15 Thus, the native title holders in this Determination Area, described as the Nanda People, are those Aboriginal persons who: (a) are descended from at least one of the following Nanda apical ancestors: (i) Jilba; (ii) Venus; (iii) Mary Jane Batt; (iv) Brindy; (v) Alice McMurray; or (vi) Polly; (b) identify themselves as Nanda under Nanda traditional law and custom and are so identified by other Nanda people as Nanda; and (c) have a connection with the land and waters in the Determination Area in accordance with traditional Nanda laws and customs. 16 The term "descent" here, and in the Determination, includes adoption in accordance with traditional Nanda laws and customs.
The material before the Court 17 Aside from the material which accompanied the original Nanda applications, and the Nanda #2 application, no connection material has been filed with the Court. The affidavits which were filed with the Nanda application were not substantive in nature, in terms of providing any evidence about Nanda traditional law and custom. 18 The Court therefore has: (a) The original and amended applications under s 61 of the Act in both Nanda and Nanda #2; (b) A proposed minute of consent determination filed on 21 November 2018 jointly prepared by the applicant and the State, and signed by all relevant parties; (c) Joint submissions on behalf of the applicant and the State filed on 21 November 2018 in support of the application for consent determination in both proceedings; (d) An affidavit of Colin McKellar sworn 13 November 2018, in support of the application for consent determination in both proceedings; (e) An affidavit of Colin McKellar sworn 22 November 2018 confirming the written nomination by the applicant of the Nanda Aboriginal Corporation (ICN 8871) to be the prescribed body corporate pursuant to s 56(2)(a)(i) of the Act; and a document demonstrating the written consent of the Nanda Aboriginal Corporation to be the PBC pursuant to s 56(2)(a)(ii) of the Act.
Material provided to the State of Western Australia 19 However, significant connection material has been provided to the State. The applicant provided the State with the following material on a without prejudice basis: (a) Nanda Anthropology Report dated 14 December 2014 prepared by Dr Anna Kenny, which included genealogies, a site register, a resources register and a connection film; (b) Nanda Supplementary Report #1 dated 29 July 2016 prepared by AnnMarie Volpe; (c) Nanda Supplementary Report #2 dated 9 December 2016 prepared by AnnMarie Volpe; and (d) Affidavits or statements from the following Nanda claimants: (i) Clayton Drage Senior dated 24 June 2018; (ii) Violet Drury dated 20 December 2001; (iii) Tim Mallard dated 22 June 2018; (iv) William Mallard Senior dated 25 March 1999; (v) Carrum Mourambine dated 22 June 2018; (vi) Annette Pepper dated 19 June 2018; (vii) Barry Randall dated 28 December 2001; (viii) Lucy Ryder dated 23 March 1999 and 18 December 2001; (ix) June Ruffin dated 2 May 2018; and (x) Peta Wilson dated 11 June 2018. 20 I am satisfied the State had ample material on which to make an informed decision about the connection of the Nanda People to the claim area. The basis for connection is also well explained in the joint submissions filed with the Court.
The country of the Nanda People 21 As I have noted above, the Determination Area is located on the coast of Western Australia and extends inland. It runs from Bluff Point near the southern boundary of the claim area, inland to just west of Dartmoor, north to just west of Muggon and across back to the coast just south of Freycinet Harbour. The Murchison River runs through the claim area in the southern part. There are also a number of waterways and tributaries that form part of the Murchison catchment area within the claim area that are significant to the Nanda People including Long Springs, Cement Slab, Bully Pool, Wilgie Mia Pool and Syphon Pool. 22 Since European settlement, the nature of the land in the claim area has generally consisted of pastoral leases, national parks or nature reserves. There are eight pastoral stations associated with the claim area: Yandi, Coburn, Hamelin, Eurardy, Talisker, Nerren Nerren, Meadow and Murchison House stations. 23 The Determination Area also includes some highly significant areas of natural heritage: the Kalbarri National Park, the Zuytdorp Nature Reserve and the Toolonga Nature Reserve. Most of the freehold and leasehold tenure within the Determination Area exists in and around the town of Kalbarri. There are also areas of unallocated Crown land, and these were the subject of the Nanda #2 application.
A brief description of the Nanda People, their traditional law and custom and their country in the claim area 24 Like all Aboriginal and Torres Strait Islander Peoples, the Nanda People have complex social structures, and as a people are guided by deep and rich traditional law and custom, to which it is not possible to do justice in this short summary. However, it is important that the Court's record reflect some summary of these matters, as part of acknowledging the importance of the recognition of the native title of the Nanda People by this Determination. 25 In describing the Nanda People, their traditional law and customs, and their connection to country, the role played by European studies and early accounts about Aboriginal and Torres Strait Islander Peoples in the proof of native title under the current Australian legal system must be noted, without giving a prominence to those studies and accounts which diminishes or drowns out the authentic, abiding voice of the Nanda People themselves in telling the story of their country, and of the traditional laws and customs which connect them to it and have done since time immemorial. Much modern anthropological, ethnographic and historical work strives to give Indigenous people that voice, and such an approach is to be commended.
Rights and interests in country 26 Nanda country is acknowledged to belong to all Nanda people, who have acquired their rights and interests by descent from a known Nanda ancestor who had a traditional connection to Nanda country. As one socio-territorial language group, united by their acknowledgment and observance of the same body of traditional laws and customs relating to rights and interests in the country of the Determination Area, Nanda People accept and observe that the exercise of those rights is influenced by a number of factors. 27 Knowledge about country and traditional laws and customs will earn the bearer influence, status and prestige. Active participation in the networks of relatedness and group affairs of the Nanda community is important. Long-term residence near or on Nanda country and recognised, active engagement with the Nanda community is another factor. Being born or having a Nanda ancestor who was born on Nanda country may be relevant, however without a descent based claim from a Nanda ancestor, other relevant criteria such as birthplace, knowledge or long-term residence are not sufficient for claim group membership. 28 Descent, in and of itself, may also not be sufficient. Although it is the starting point, descent will not confer rights and interests under traditional Nanda law and custom unless those rights and interests are "activated" by social participation in the Nanda group, and thereby recognised by the group. In this way, a significant level of cohesion is achieved.
Nanda spiritual beliefs 29 The spiritual beliefs of Nanda People connect them to country, provide the context in which many of their laws and customs arise, and demonstrate the way in which the land, waters, flora and fauna that occupy and depend on it, and the people who share it and have responsibilities for it, are woven together. 30 The snake, or serpent, which lives in some of the springs and pools of the Murchison River, is a central feature of the beliefs of Nanda People. The snake is called bimarda, bimarra, thayidi or ididibarndi. A senior Nanda claimant described it in this way: Some of the springs on the Murchison River bubble because a water snake is in there. One of these pools is called Beeragudda, that is a proper Nanda name they told me. That snake is in that pool, so you've got to be aware when you get there. That pool bubbles, you walk along that pool and it bubbles. That snake is still in there, he never died. He will not hurt you but he is in there. There's another pool further down, they call him Goonabalinya, funny name. And there's a snake down in Natt's pool too. I've seen the water bubbling, that's how you know that he's still in there. You should not kill the snake because if you kill the snake, the pool will go dry. That is what they told me, if you kill the pool they will die because that is where they belong, they are living in there, sleeping in that pool. 31 Nanda People believe the creative serpent lives in the waters of their country and created many pools and watercourses by travelling down the Murchison River, and also travelling away from the river, creating further creeks, pools and water sources within Nanda country. Respect should be shown to the snake before using the water sources by throwing sand into the water. This may also pacify the snake when people are nearby. 32 Early European visitors to the area, such as Augustus Oldfield in 1865, were told of the need to avoid a bubbling spring, because the commotion was caused "by an underground serpent, which continually spews up the water". 33 There are also more localised myths, about people and animals who lived in the past, and how they shaped and made the land. There is an emu and kangaroo dreaming associated with Mt Curious, which is located on Murchison House Station and Yoadadalliny hill: The kangaroo and the emu had a quarrel about which of them should have the egg, and who should have the joey. This quarrel developed into a fight because the kangaroo wanted the egg. The kangaroo made the hill, Yaodadadliny, and emu made Mt Curious. The latter, with its characteristic flat topped shape, was judged to be the better nest. Consequently, it was decided that the emu could keep the egg and the kangaroo kept the joey. 34 The story of the Wedge-tailed Eagle and the Willy Wagtail is associated with Nature's Window, a striking rock formation framing an upstream part of the Murchison River in Kalbarri National Park: Willy Wagtail used to be big and Wedgetail Eagle used to be small. Willy Wagtail was cheeky and boisterous and on an occasion he chased the Wedgetail Eagle through Nature's Window. As they emerged on the other side they had transformed. The eagle had become big and the cheeky Willy Wagtail small, which nevertheless has not changed his character. He still is cheeky. 35 Some stories are instructional, about how to find and use the land's resources. The emu in the sky story tells Nanda people about when is the right time to collect emu eggs: I remember the old people telling myself about the story of the emu in the sky. You can see the shape of the emu at night amongst the stars and when it becomes clear you will know that the emu has started laying their eggs. 36 It is not only animals that are present on Nanda country. There are also spirits. They are called innga. The existence of the innga may require Nanda people to behave in certain ways, or create obligations that must be observed. The innga include the "old people" (deceased relatives), "travellers" (spirits that wander across the country) and "little people" (mischievous and meddlesome spirits). Many of these innga are dangerous, and Nanda people are wary of places, thickets and waterways associated with them. When going onto country, the spirits must be spoken to or addressed by Nanda people and have to be respected, just as one would living Nanda elders.
How Nanda people maintained connection to country after European settlement 37 As for all Aboriginal and Torres Strait Islander Peoples, the coming of Europeans resulted in practical and legal interruption to the rights and interests of Nanda people in their land. However, the parties agree and the Court is satisfied that it did not result in any surrender, or washing away, of traditional rights and interests in Nanda country or in loss of connection to country. With determination and persistence, and through adaptation to the pastoral activities of European settlers, Nanda people maintained an ongoing connection to Nanda country in accordance with their traditional law and customs. 38 From about 1850, pastoral settlement began in the Determination Area. Dispossession by pastoralists led to conflict, depletion of the natural resources and new diseases inflicted on Nanda people. Like other groups, the Nanda People suffered in many ways, including but not limited to significant population loss. Yet, as I have noted, they also adapted, and found ways to remain on their country by working on stations, therefore also managing to keep their families on country because they could live around the homesteads or at out-camps. 39 Working on pastoral stations led to multigenerational employment for Nanda people within their country. By the 1950s and 1960s, third and fourth consecutive generations were taking up work on stations in and around Nanda country, alongside their fathers and uncles or extended family members. Other Nanda people lived in townships such as Ajana and Galena, on or near the Determination Area. 40 This pastoral station work, and associated work on stations, or residence in nearby townships all contributed to the ability of Nanda people to continue to visit, hunt and gather on their country, care for it and look after it in the traditional way, and transmit knowledge about their land to their children. 41 The parties agree, and the Court accepts, that the following statement from Dr Kenny's Connection Report describes how that connection was maintained through inter-generational visits to country and activities on country: Nanda people living on stations and in townships often did not have much money and were dependent on hunting and foraging for bush foods to supplement their diets. They took their children and grandchildren with them and taught them how to feed themselves from the land. Children also 'knocked about' the bush on weekends and holidays, taking care of their own food. [Two senior claimants] told me that in their childhood they fished, hunted and collected bush tucker 'all the time': We used to go down to the river from Galena and find sugarbrothers, boggata beans, kylies and kumberalas - mum and dad showed us. Matha are bulbs that grew in winter. They are very hot. Njakus are little white round onions on the sand plains. Quandong, silver wattle gum. In winter we children would go off looking for mushrooms from Galena. We would catch fish in the river and look for worms. Yellowtail fish were at Galena, but mum would not eat them or cook them. 42 The pastoral work did not last however, and from the 1970s onwards, some Nanda people were forced to move to larger regional centres. The mines around Galena also closed, which forced more people to move to be able to survive. People moved to places such as Geraldton, Northampton, Denham and Carnarvon, all outside of the Determination Area. Many Nanda people still live in these places today. However, those Nanda people who live outside the Determination Area continue to camp, fish, hunt and gather on their country on weekends and during holidays. 43 Some Nanda people managed to stay on country, and still do, living at places near Kalbarri such as Barrel Well and Kelly Camp. 44 Even from this brief summary, it can be seen that native game and plant foods have always been important to Nanda people, and continue to be. They retain their knowledge about the numerous edible or useful native plants which exist in the Determination Area. They still hunt and collect foods including Mallee fowl eggs, bangara (lizards), bardi (grubs), echidnas, bigurda (kangaroo) and emu and emu eggs. Fishing on the coast and in the pools of the Murchison River is another traditional activity. In the freshwater pools they catch bream and yellowtail and on the coast they catch a number of different fish such as snapper, mullet, rock cod and parrotfish. Coastal use also includes collecting periwinkles, oysters, abalone and kurnaaku (crayfish). 45 As reflected in the connection material for the Nanda application, Nanda peoples' own accounts of their history, their traditional way of life, their laws and customs and how those laws and customs connect them to country, can be placed in a post-European settlement context by some of the ethnographic materials set out in the connection materials, and which are outlined in the joint submissions in support of the consent determination. 46 One of the earliest European visitors to the Determination Area, whom I have already mentioned, was Augustus Oldfield, a botanist who from around 1865 wrote the first serious ethnographic report relating to Nanda country. Also around that time, and onwards into the early 20th century, a number of Europeans who either lived in the area, or visited it, documented accounts or references to the Nanda People and their connection to the Determination Area. These included: (1) Edward Micklethwaite Curr, a pastoralist and writer originally from Tasmania who in the 1880s collated information from correspondence with settlers, police officers and colonial officials around Australia into his four volume work entitled The Australian Race: Its Origins, Languages, Customs (Melbourne, 1886-87); (2) Robert Hamilton Mathews, a surveyor in New South Wales who, with an interest in Aboriginal societies and language, retired from surveying in the 1890s to devote himself to the study of the linguistics, social structure, ceremonial life, customs, art and beliefs of Aboriginal peoples in various parts of Australia, including references to the Nanda People; and (3) Daisy Bates, about whom I have written, expressing mixed views, in Narrier v State of Western Australia [2016] FCA 1519 (Tjiwarl) at [462]-[493]. Ms Bates referred to the Nanda people in some of her works published between 1904 and 1912. 47 The joint submissions referred to the works of other anthropologists and ethnographers, whose works also had some references to the Nanda People, but it is not necessary to set them out in these reasons. The focus should be, through the connection materials and the State's acceptance of them, on what Nanda people themselves, and those experts who have in contemporary times been working with them for the purposes of these applications, have had to say about their society and its traditional laws and customs.
The applicable requirements of s 87 and s 87A 48 It is not necessary to set out the statutory requirements in s 87 and s 87A. The basic requirements are similar as between s 87 and s 87A, although there are additional requirements in s 87A because it relates to only part of a claim area. 49 I am satisfied, and the parties agree: (a) the s 66 notice period has expired (ss 87(1) and 87A(1)(b)); (b) as I have explained above, there is agreement that the proposed determination relates to only part of the land and waters the subject of the Nanda application (s 87A(1)(b)). This condition is not relevant to the Nanda #2 application; (c) the relevant parties, in both the Nanda application and the Nanda #2 application, have filed the terms of their agreement, by providing a proposed minute of consent determination (ss 87(1)(a), 87(1)(b), 87A(1)(c), 87A(1)(d) and 87A(2)); (d) the minute has been signed by all relevant and applicable respondent parties and by the applicant (s 87A(1)(c)), including the Yamatji Marpla Aboriginal Corporation, which is the representative Aboriginal and Torres Strait Islander body for the region. This means no further notice is required to be given under s 87A(3), and at the time of the preparation of these reasons for judgment, and the making of the Court's orders, there are no objections for the Court to take into account under s 87A(8) of the Act; and (e) there are no other registered native title claimants or persons who claim to hold native title in relation to the Determination Area (s 87A(1)(c)(ii) and (vi)). 50 I am satisfied the orders sought are both consistent with the terms of the parties' agreement as reflected in the minute of consent determination, and are within the Court's power to pronounce (s 87(1)(c) and s 87A(4)(a)).
Whether it is appropriate to make the orders sought 51 The requirement that the Court be satisfied that the order is "appropriate" is present in both s 87 and s 87A. It is obviously a core requirement. It is common ground that the applicable principles are the same. 52 I set out my approach to the question of "appropriateness", and the Court's function in Freddie v Northern Territory [2017] FCA 867 at [16]-[18] and I adopt without repeating what I said in those paragraphs, which is equally applicable to s 87A. I also noted in Freddie at [20] that it is important to see the exercise of the judicial power in s 87 in the context of the Court's jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act. This applies equally to s 87A. 53 I respectfully agree with the observations of Mansfield J in Brown v Northern Territory of Australia [2015] FCA 1268 at [23], about the Court's task in these circumstances: The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. 54 This means there must be probative material before the Court to enable it to assess whether the matters set out in s 225 of the Act can be determined to exist, and to have always existed, so that the claimants' connection to their country, and their rights and interests in accordance with traditional law and custom can be recognised. 55 As is often the case, the principal source for the Court's assessment is what is contained in the joint submissions filed on behalf of the key active parties: the applicant and the State. There has been no agreed statement of facts filed pursuant to s 87A(9) of the Act. 56 In Freddie at [23]-[24], I pointed to the State's public responsibility to ensure any agreement made under s 87 (and this applies also to agreements made under s 87A) is one which is in the interests of the community it represents. Part of its responsibility is to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of satisfying the requirements of s 225 of the Act, but the way in which the State satisfies itself of that matter may vary considerably from case to case. No minimum requirements of proof can or should be set out. However, if the State embarks on such a course, and ultimately accepts it is appropriate to recognise the existence of native title in the claim group, then the Court is entitled to proceed on the basis the State has made a reasonable and rational assessment of the material to which it has been given access. 57 The joint submissions record the State's position that there is sufficient material for it to be satisfied there is a "credible or cogent basis" for the proposed determination of native title, in that the Nanda People 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 [the Nanda People] in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Further, the Nanda people have maintained a physical presence in the Determination Area since the acquisition of British sovereignty and evidence of their continuing physical or spiritual involvement in the Determination Area was sufficient to enable the First Respondent to conclude that this connection had not been severed. Taken together, the First Respondent was satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area. 58 The State has, as the joint submissions record, conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of "other interests" within the Determination Area. I am satisfied the searches have been carried out with the State's usual diligence, and that the relevant interests are included in Schedule 5 of the proposed Determination. 59 Based on all the material, and for reasons I have set out, the Court is satisfied that it is appropriate to make the determination of native title that is jointly sought by the relevant parties. The Court is also satisfied that the proposed Determination sets out a description of the nature and extent of the native title rights and interests of the Nanda People in relation to the Determination Area, and sets out the "other interests", so as to comply with s 225 of the Act, and with s 223. 60 Finally, the Court is satisfied that the Nanda applicant and the Nanda #2 applicant have agreed to the minute of consent determination pursuant to the authority conferred on them by s 62A of the Act, which empowers those individuals constituting an applicant to "deal with all matters arising under this Act in relation to the application." Further, at a claim group meeting at Geraldton on 1 September 2018, the Nanda People authorised the two applicants to consent to the Court making a determination in, or consistent with, the terms of the minute.
Nomination of a prescribed body corporate 61 As I have noted above, through Mr McKellar's affidavit, the applicants have nominated the Nanda Aboriginal Corporation (ICN 8871) to be the PBC pursuant to s 56(2)(a)(i) of the Act, and have filed documentary consent of the Nanda Aboriginal Corporation to be the PBC pursuant to s 56(2)(a)(ii) of the Act. 62 Mr McKellar deposes to a meeting of the Nanda native title claim group on 16 June 2018, and that one notified purpose of this meeting was to incorporate the Nanda Aboriginal Corporation so that it could be the Nanda PBC. His evidence was that the number of Nanda claim group members in attendance at the June meeting was consistent with attendance at previous claim group meetings. 63 He deposed that the meeting authorised the incorporation of the Nanda Aboriginal Corporation as the PBC which is to hold Nanda native title on trust for the common law holders. Mr McKellar's further affidavit annexes a letter from Annette Pepper (a member of the applicant for both Nanda and Nanda #2) confirming that at the 16 June 2018 meeting there was unanimous consensus from the Nanda claim group that they intend the Nanda Aboriginal Corporation to be the Nanda PBC, and that the native title would be held by that corporation on trust. 64 Mr McKellar's evidence was that all, or almost all of the Nanda persons who attended the 16 June 2018 meeting became incorporation members of the Nanda Aboriginal Corporation. He deposed that all members of the Nanda Aboriginal Corporation are persons who are included or are proposed to be included in the Nanda Determination as native title holders as required by reg 4(2)(b) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). 65 On Mr McKellar's evidence, at a meeting on 2 November 2018, the directors of the Nanda Aboriginal Corporation unanimously resolved to accept the nomination to hold Nanda native title in trust for the Nanda common law holders. The directors unanimously passed the resolution accepting Nanda Aboriginal Corporation's nomination. 66 Mr McKellar annexed to his affidavit a copy of the Nanda Aboriginal Corporation Certificate of Registration. 67 I accept Mr McKellar's evidence. The Court is therefore able to perform its function under s 55 of the Act at the same time as making a determination of native title, and to determine pursuant to s 56(2)(b) of the Act that the Nanda Aboriginal Corporation (ICN 8871) is to hold the rights and interests from time to time comprising the native title of the Nanda People in the Determination Area in trust for the common law holders of that title.
CONCLUSIONS ON THE APPLICATION 68 A determination of native title will be made in accordance with the parties' proposed minute. A determination under s 56(2)(b) will also be made. 69 The Nanda People finally have recognition by Australian law of their native title. They are to be admired for their persistence and determination, in light of the many obstacles facing Aboriginal people and their communities. Their legal representatives, and their representative body, are to be congratulated for the support and assistance provided. The responsible and important role played by the State in this outcome should be favourably recognised. So too, the attitude and support of the other active respondents for this outcome. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Associate: Dated: 28 November 2018
Drury on behalf of the Nanda People
State of Western Australia
In WAD 6136 of 1998 the overlapping portion was dismissed, a determination of native title was made over the Determination Area in both proceedings, the Nanda Aboriginal Corporation was ordered to hold native title in trust, and there was no order as to costs.