Eaton on behalf of the Nyamal People #10 v State of Western Australia

SCHEDULE FOUR AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2) Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 5 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

1. Reserves The following Reserves: Reserve No. Current / Last Purpose 13656 Parkland and Camping 37758 Radio Mast Site

Leases The following leases: Lease No. Current / Last Purpose Reserve Leases Former RL 409/41A Pastoral Purposes (granted over former Reserve 07969) Former RL 452/41A (part) (being that portion of former RL 452/41A which is currently subject to Reserve 13683 and portion of Marble Bar Road, being Lot 305 on DP 58951) Pastoral Purposes (granted over former Reserve 10079)

Roads The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act): MapInfo ID. Description Shown on Road 052 Road No. 14845 Map SF 50-4 1:250,000 & Gaz 24/08/1973 Road 059 Portion of Road No. 17406 (North Pole Road) DP 216307 & Gaz 08/11/1985 & 01/07/1988 Road 060 Portion of Road No. 17406 (North Pole Road) DP 216308 & Gaz 08/11/1985 & 01/07/1988 Road 061 Portion of Road No. 17406 (North Pole Road) DP 216309 & Gaz 08/11/1985 & 01/07/1988 Road 062 Portion of Road No. 17406 (North Pole Road) DP 216310 & Gaz 08/11/1985 & 01/07/1988 Road 063 Portion of Road No. 17406 (North Pole Road) DP 216311 & Gaz 08/11/1985 and 01/07/1988 Road 068 Portion of Road No. 00432 CPP 506015, DP 42630, Map SF 50-4 and part SE 50-16 1:250,000 & Gaz 22/06/1894 Road 071 Road No. 02856 Map 2657 1:100,000, Map SF 50-4 1:250,000, Map 2855 1:100,000 & Gaz 06/09/1907 Road 074 Unnamed road CPP 503190 & Map SF 50-4 1:125,000 Road 075 Portion of Road No. 06441 CPP 503190 & Map SF 50-4 1:125,000 Road 087 Road No. 04109 CPP 503187 & Gaz 24/06/1932 Road 089 Road No. 06436 CPP 503187 & Gaz 29/04/1921 Road 091 Road No. 06439 CPP 503187 & Gaz 29/04/1921 Road 093 Road No. 06441 Map SF 50-4 1:250,000 & Gaz 29/04/1921 & 13/07/1979 Road 094 Road No. 06442 CPP 503187 & Gaz 29/04/1921 Road 096 Road No. 06444 Map SF 50-4 1:250,000, Map SF 50-8 1:250,000, Map 2855 1:100,000 & Gaz 29/04/1921 Road 105 Road No. 07757 Map 50-4 1:250,000 & Gaz 26/08/1927 Road 107 Road No. 08625 CPP 503159, Map 50-4 1:250,000 & Gaz 23/01/1931 Historical Road 25 Portion of Road No. 06441 Map SF 50-4 and Part SE 50-16, Map SF 50-4 1:250,000 & Gaz 29/04/1921, 06/05/1921 & 13/07/1979 Historical Road 27 Portion of Road No. 14845 Map SF 50-4 1:250,000 & Gaz 24/08/1973 Historical Road 28 Portion of Marble Bar Road Map SF 50-4 1:250,000 & Map SF 50-8 1:250,000

•               Portion of Marble Bar Road (being Lot 500 on DP 58185, formerly subject to portion of Road 075)  DP 58185
  

Railways The former Port Hedland to Marble Bar Railway constructed pursuant to the Port Hedland - Marble Bar Railway Act 1907 (WA) (repealed) and whose line is generally described in the Schedule to that Act. 5. Public Works Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles Validation Act or section 23C(2) of the Native Title Act applies. SCHEDULE FIVE AREAS TO WHICH SECTION 47A OF THE NATIVE TITLE ACT APPLIES (Paragraph 9) Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded: Interest Description / Purpose Lease GE N104198 (Special Lease 3116/09217) Residential Former Special Lease 3116/09218 Residential Former Special Lease 3116/09219 (part) That part of former Special Lease 3116/09219 (for the purpose of Residential) not subject to, or formerly subject to, Road 052 Lease GE N104172 (Special Lease 3116/09220) Residential Pastoral Lease N049539 (part) (formerly PL 3114/1061) That part of Coongan Pastoral Lease not subject to, or formerly subject to, the Port Hedland to Marble Bar Railway, Historical Road 025 and Historical Road 028 Pastoral Lease N049544 (formerly PL 398/716) Coongan Pastoral Lease

SCHEDULE SIX 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 6 May 2019. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 31 July 2019. All other interests are current as at the date of the determination.

1. Reserves (a) The following reserves: Reserve No. Current / Last Purpose 04976 Water 04977 Water 08774 Cemetery 10167 Water 12738 Water 12739 Water 12740 Water 12741 Water 12742 Water 12743 Water 12744 Water 12746 Water 12747 Water 12748 Water 13185 Water 13610 Timber 13611 Timber 13612 Timber 13613 Timber 13614 Timber 13615 Timber 13616 Timber 13617 Timber 13618 Timber 13620 Timber 13645 Timber 13655 Timber 34041 Gravel 35423 Cemetery 36523 Mining Purposes

(b) The rights and interests of persons who have the care, control and management from time to time 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 The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: Lease No. Description PL N049539 (formerly 3114/1061) Coongan Pastoral Lease PL N049544 (formerly 398/716) Coongan Pastoral Lease PL N050091 (formerly 3114/1281) Strelley Pastoral Lease

3. Other Leases The following leases and the rights and interests of the holders from time to time of those leases: Lease No. Purpose GE N104198 (SL 3116/09217) Residential GE N104172 (SL 3116/09220) Residential

4. Roads The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time: MapInfo ID. Description Shown on

•        Portion of Marble Bar Road (Lot 300)  DP 58181
  

•        Portion of Marble Bar Road (Lot 301)  DP 58182
  

•        Portion of Marble Bar Road (Lot 302)  DP 58183
  

•        Portion of Marble Bar Road (Lot 303)  DP 58184
  

•        Portion of Marble Bar Road (Lot 304)  DP 58185
  

Mining Tenements (a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements: (i) Mining Leases Tenement ID M 4500374 M 4500442 M 4500649

(ii) Miscellaneous Licences Tenement ID Tenement ID Tenement ID L 4500166 L 4500284 L 4500331 L 4500170 L 4500289 L 4500369 L 4500188 L 4500291 L 4500405 L 4500189 L 4500292 L 4500436 L 4500204 L 4500329 L 4500486

(iii) Exploration Licences Tenement ID Tenement ID Tenement ID E 4502241 E 4502363 E 4503473 E 4503488 E 4504630 E 4504775 E 4503511 E 4504637 E 4504800 E 4503545 E 4504638 E 4504801 E 4503648 E 4504640 E 4504887 E 4503659 E 4504643 E 4504907 E 4503674 E 4504684 E 4504909 E 4503816 E 4504716 E 4504923 E 4503856 E 4504722 E 4504961 E 4503858 E 4504735 E 4504987 E 4504523 E 4504741 E 4505097 E 4504572 E 4504759 E 4505347 E 4504592 E 4504772 E 4504616 E 4504773

(iv) Prospecting Licences Tenement ID Tenement ID Tenement ID P 4502987 P 4502993 P 4503015 P 4502988 P 4502995 P 4503044 P 4502991 P 4502997 P 4502992 P 4502998

(b) The agreement as amended and ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements: Tenement ID Tenement Type AML7000249 Mineral Lease

Access to Mining Areas (a) Without limiting the operation of any other clause in Schedule Six, but subject to clause 6(b) below, the rights of the holders from time to time of the mining tenements, including those listed in clause 5 of this Schedule Six, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as area necessary to have access to the area the subject of the mining tenement for the purpose of exercising the rights granted by that tenement. (b) Nothing in clause 6(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 6(a). (c) Nothing in this Schedule Six will limit the rights of the holders from time to time of mining tenements, including those referred to in clause 5 of this Schedule Six, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement. 7. Telstra Corporation Limited The rights and interests of Telstra Corporation Limited: (a) as the owner or operator of telecommunications facilities installed 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, to access; and (d) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area. 8. Warralong Aboriginal Community (a) The interests of Coongan Aboriginal Corporation in the community housing and school located on PL N049539 (being the Warralong Aboriginal Community) and all related works including buildings, sewerage and power infrastructure and roads; (b) The interests of Nomads Charitable and Educational Foundation as the occupier of Lot 200 on DP 29718 (on PL N049539) in the use of and access to the lot for the purposes of a school under the School Education Act 1999 (WA) and related works; and (c) The interests of persons who have the care, control and management from time to time of the Warralong Aboriginal Community. 9. Other The following rights and interests in the Determination Area: (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes; (b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including but not limited to the Rights in Water and Irrigation Act 1914 (WA); (c) Rights and interests of members of the public arising under the 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; and/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 where such access would be permitted to private land; (e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 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. SCHEDULE SEVEN NYAMAL PEOPLE (Paragraph 3) The Nyamal People are those persons who: (a) are descended from Ngurrpangu @ Sally, Yirlkurani @ William Ball, Jarlapangu @ Billy Ball, Minparingu @ Daisy McColl, Wijiringu @ Joey, Ngamalykarinya @ Eginbah Murphy, Kutjikurtapa @ Fred Mitchell, Pularmu @ Albert, Martuwataranu @ Maryanne, Minjikarli @ Jimmy Woodman, Pularjiyi, Putangaja, Mikarnipirti, Mayinkapirti, Walykanpangu, Kujari @ Jenkins, Ngamalangu @ Nellie, Kalpimarra, Yirapinya, Warnangykuranya @ Tommy, Yatawaranu @ Yarriwawurru @ Dinah, Goondy @ Goondanee, Pilunjuji, Nyantipunu, Paddy Bung Bong, Amy Mirabung, Old Maybai, Mary (mother of Stella Ball), Minnie (mother of Allen Mitchell), Punkarli (mother of Alice Mitchell), Winturu, Susan Pontroy, Martin Pontroy or Jack Pontroy or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyamal People; and (b) identify themselves as Nyamal under traditional law and custom and are so identified by other Nyamal People as Nyamal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 In this proceeding, the Nyamal People have sought to have the Court make, what is commonly referred to as, a consent determination of native title under the apposite provisions of the Native Title Act 1993 (Cth) (the NTA). They seek to have that determination made on the terms of an agreement they have reached with the various parties to the proceedings, including the State of Western Australia. The area of land and waters with respect to which the determination is sought are situated some 30 kilometres east of Port Hedland in the central Pilbara region in the north of Western Australia. 2 For the reasons that follow, I propose to make the determination that they have sought.

PROCEDURAL HISTORY 3 The procedural history to this proceeding is lengthy and complex. The following is a brief summary. 4 The Nyamal #10 Application was filed with the Court under s 61 of the NTA on 25 May 2000. It was subsequently entered on the Register of Native Title Claims on 7 July 2000. It was then notified by the Registrar pursuant to s 66 of the NTA. The notification period under s 66 ended on 17 April 2001. 5 When it was filed, the Nyamal #10 Application overlapped native title determination application WAD 82 of 1998 (Warrarn Application). The application itself was then subsequently overlapped by a portion of native title determination application WAD 77 of 2005 (Ngarla #2 Application). 6 In 2007, the parties to WAD 6185 of 1998 (Ngarla Application) and the Ngarla #2 Application reached an agreement in relation to a part of those proceedings (Ngarla Determination Area A) and requested the Court to make a consent determination based on that agreement. The parties proposed that the Ngarla Determination Area A should also include that part of the Njamal (former spelling) #10 Application which geographically overlapped the Ngarla #2 Application but which did not also geographically overlap the Warrarn Application. 7 Accordingly, on 27 March 2007, Bennett J made orders pursuant to s 67(1) of the NTA that, to the extent that the Nyamal #10 Application geographically overlapped the Ngarla #2 Application and did not also geographically overlap the Warrarn Application, it be dealt with in the Ngarla #2 proceeding. 8 On 30 May 2007, Bennett J made a consent determination of native title in respect of the Ngarla Determination Area A: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025. To the extent that any area of the Njamal #10 Application fell within the land and waters of Ngarla Determination Area A, it was to be subject to that determination and native title was held in that area by the Ngarla People as defined in the Fifth Schedule to that Determination. 9 On 1 November 2007, Bennett J made orders pursuant to s 67(1) of the NTA whereby: (a) the Nyamal #10 Application, to the extent that it covered the same area as the Warrarn Application; (b) the Ngarla and Ngarla #2 Applications, to the extent that they covered the same area as the Warrarn Application; and (c) the Warrarn Application, to the extent that it covered the same area as Ngarla and Ngarla #2 Applications were to be dealt with in the same proceeding (the Ngarla Overlap Proceeding). That proceeding was subsequently programmed for trial. 10 On 20 August 2010 (during the hearing of the Ngarla Overlap Proceeding), Bennett J made orders that, pursuant to s 64(1A) of the NTA, the Nyamal #10 Application was to be amended to reduce the area of land and waters covered by it so that it no longer covered any of the land or waters the subject of the Ngarla Overlap proceeding. The Nyamal #10 Applicant was also given leave to file an amended Form 1, which was filed on 13 September 2010. 11 On 21 November 2012, Bennett J delivered reasons for judgment in respect of the Ngarla Overlap Proceeding: AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268. 12 On 22 February 2013, her Honour made orders dismissing the Warrarn Application to the extent that it overlapped the Ngarla and Ngarla #2 Applications and made a determination of native title in those applications in favour of the Ngarla People. 13 On 3 October 2014, Bennett J made further orders dismissing the remainder of the Warrarn Application. Accordingly, from that date the Nyamal #10 Application was no longer overlapped by any other native title determination application. 14 By order of the Federal Court dated 16 January 2019, the Nyamal #10 Application was given a new electronic court file proceeding number WAD 26 of 2019.

THE PARTIES REACH AGREEMENT 15 In early 2019, the parties in the Nyamal #10 Application informed the Court that they had reached an agreement on the terms of a proposed determination of native title under s 87 of the NTA. To give effect to that agreement, a minute of the terms of the proposed determination (the consent determination minute) and joint submissions of the Nyamal #10 Applicant and the State were filed with the Court. The parties have now requested the Court make a determination of native title in accordance with the terms of that consent determination minute.

THE DETERMINATION AREA 16 The area the subject of the proposed consent determination comprises 4,394 square kilometres of land and waters which, as already mentioned above, is situated some 30 kilometres east of Port Hedland in the central Pilbara region in the north of Western Australia (the Determination Area). The majority of that area is covered by pastoral leases, mining tenements, roads and reserves with a large portion of the Determination Area being comprised of Strelley and Coongan pastoral stations.

THE FIVE CONDITIONS IN SECTION 87 HAVE BEEN MET 17 Section 87 of the NTA empowers the Court to make an order consistent with the terms of a written agreement between the parties to a native title proceeding without holding a hearing in that proceeding. Before the Court can exercise that power, the procedural conditions specified in s 87(1) must be satisfied. In Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson), I set out five procedural conditions that the parties must meet in order to have the Court make a consent determination of native title under s 87: see at [3]-[7]. It is convenient to briefly outline each of those conditions and to consider whether they have been met in this matter. 18 The first condition is that the notice period under s 66 of the NTA must have ended: s 87(1). The present application was notified by the Native Title Registrar on 17 January 2001. The period specified in that notice expired on 17 April 2001. I am therefore satisfied that this first condition has been met. 19 The second condition is that the agreement that has been reached must relate to the whole of the proceeding, or to a part of the proceeding, or to a matter arising out of the proceeding: s 87(1)(a). The consent orders filed with the Court show that the agreement relates to the whole of this proceeding. This second condition has therefore been met. 20 The third condition is that the agreement must be reduced to writing, it must be signed by, or on behalf of, the parties and it must be filed with the Court: s 87(1)(b). As I have already mentioned above, the consent orders have been filed with the Court. This condition has also been satisfied. 21 Fourthly, the Court must be satisfied that an order in, or consistent with, the terms of the consent orders would be within the power of the Court: s 87(1)(c). In Nelson, I observed (at [4]): … An order will be within the power of the Court if it is consistent with s 94A of the [NTA], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination … 22 Section 94A of the NTA requires the Court, in making a determination of native title, to set out the details of the matters mentioned in s 225 of the NTA. Section 225 defines a "determination of native title" as follows: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land and waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 23 Schedule A to the Form 1 in the Nyamal #10 Application described a claim group consisting of six people. All but two of them are now deceased. However, according to the joint submissions filed by the parties, during the course of negotiations for the agreement reflected in the consent determination minute, it was agreed that this description of the Nyamal #10 claim group "was problematic". That description wrongly implied, firstly, that the claim was made by the Nyamal #10 Applicant on behalf of individuals holding individual rights and, secondly, that native title would cease to exist on the death of the last surviving person. Accordingly, the parties have been proceeding as though the application was made on behalf of the same persons. The parties ultimately settled on the description of native title holders in Schedule Seven of the proposed consent determination (the Nyamal People), having satisfied themselves that the description reflects the position as described in the connection materials captures all the native title holders. 24 That Schedule states as follows: (a) Ngurrpangu @ Sally, Yirlkurani @ William Ball, Jarlapangu @ Billy Ball, Minparingu @ Daisy McColl, Wijiringu @ Joey, Ngamalykarinya @ Eginbah Murphy, Kutjikurtapa @ Fred Mitchell, Pularmu @ Albert, Martuwataranu @ Maryanne, Minjikarli @ Jimmy Woodman, Pularjiyi, Putangaja, Mikarnipirti, Mayinkapirti, Walykanpangu, Kujari @ Jenkins, Ngamalangu @ Nellie, Kalpimarra, Yirapinya, Warnangykuranya @ Tommy, Yatawaranu @ Yarriwawurru @ Dinah, Goondy @ Goondanee, Pilunjuji, Nyantipunu, Paddy Bung Bong, Amy Mirabung, Old Maybai, Mary (mother of Stella Ball), Minnie (mother of Allen Mitchell), Punkarli (mother of Alice Mitchell), Winturu, Susan Pontroy, Martin Pontroy or Jack Pontroy or are adopted by such biological descendants in accordance with the traditional laws acknowledged and the traditional customs observed by the Nyamal People; and (b) identify themselves as Nyamal under traditional law and custom and are so identified by other Nyamal People as Nyamal. 25 According to the affidavit of Mr John Edwards filed in support of this application and the joint submissions, the Nyamal Application consent determination was approved at a meeting of the Nyamal People held on 9 August 2019. That description of the Nyamal native title holders is included in the consent determination minute (Paragraph 3 and Schedule Seven). While this description does not precisely correspond to the description of the native title claim group set out in the original combined Nyamal Application, the Nyamal Applicant and the State contended in the joint submissions that the Court may make a determination in that form provided that it is supported by the evidence before it, relying on Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] and Sharpe v State of Western Australia [2013] FCA 599 at [18]. I agree and, having regard to the matters set out above, I am satisfied it is appropriate to use this description of the Nyamal native title holders in this determination. 26 I have examined the proposed consent determination as outlined in the consent orders executed by the parties. I am satisfied that each of the matters referred to in s 225(a) to (e) above is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia. 27 Based on the records of the National Native Title Register kept under Pt 8 of the NTA, I am satisfied that there is no determination of native title in existence over the area the subject of this proposed consent determination. 28 I am therefore satisfied that a determination of native title in the terms sought by the parties would be within the power of the Court as required by s 87(1)(c). 29 Finally, before the Court makes a native title determination consistent with the terms of the parties' agreement, it must be satisfied that it is appropriate to do so: s 87(1A) of the NTA. In Nelson, I noted (at [7]) that these words: … have been held to confer on the Court a discretion which, subject to the Court being satisfied about the pre-conditions mentioned above, is unfettered. However, like all discretions conferred on the Court, it must be exercised judicially and in exercising it, the Court must have regard to the objects of the [NTA], one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229 ("Munn") [sic - Munn (for and on behalf of the Gunggari People) v Queensland] at [26] and [28]. 30 After canvassing the authorities relevant to this question in Nelson, I identified (at [14]) the following principles: (a) the central issue is whether there exists a free and informed agreement between the parties; (b) in determining whether such an agreement exists, the following factors will be significant: (i) the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title; (ii) whether the parties have independent and competent legal representation: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 (Munn) at [29] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (Lovett) at [39]-[40]; (iii) whether the terms of the proposed consent orders are unambiguous and clear: Munn at [32]; and (iv) whether the agreement has been preceded by a mediation process: Nangkiriny v State of Western Australia [2004] FCA 1156 at [6]; Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]-[42]. 31 In their joint submissions, the parties submitted that it was appropriate that the Court make a determination in the terms of the parties' agreement because: (a) the parties have been legally represented throughout; (b) "[the State] has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of 'other interests' within the Determination Area, and those interests are included in the proposed determinations"; (c) the parties have agreed "the nature and extent of native title rights and interests and the 'other interests' in relation to the Nyamal Determination Area which complies with [s] 225 of the NTA"; and (d) "[the State] has played an active role in the negotiation of the proposed consent determination … In doing so, the [State] (acting on behalf of the community generally), having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances". 32 As to the principle set out in [30(b)(iii)] above, I have examined the executed consent orders filed by the parties and I consider that they are unambiguous and clear in their terms.

THE PRESCRIBED BODY CORPORATE 33 Pursuant to s 56(2) of the NTA, the Nyamal Applicant has nominated the Nyamal Aboriginal Corporation (ICN: 8770) (the Corporation) as the prescribed body corporate to hold the native title of the claim group in trust following the making of this determination. That nomination is in writing and the Corporation has given its consent to it. I am therefore satisfied that the relevant requirements of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met in this respect.

CONCLUSIONS 34 For these reasons, I consider the five conditions contained in s 87 of the NTA have been met and it is therefore appropriate to make a determination of native title in accordance with the terms of the proposed consent determination minute. 35 One of the objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this determination of native title clearly serve to advance that object. 36 The parties are to be congratulated for the years of effort and persistence that have been required to pursue the negotiations to their finality. 37 The legal representatives of all the parties are also to be congratulated for the support and assistance they have provided to their clients, over those years, to achieve this outcome. 38 In conclusion, it is worth making this observation: this determination of native title does not create native title in the Determination Area. Instead, it marks the recognition, by the Australian legal system, of the Nyamal People's long held, and pre-existing, native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the Nyamal People, since long before this determination today. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

SCHEDULE OF PARTIES WAD 26 of 2019 Respondents Fourth Respondent: THE NOMADS CHARITABLE AND EDUCATIONAL FOUNDATION INC Fifth Respondent: YAMATJI MARLPA ABORIGINAL CORPORATION