Gilla on behalf of the Yugunga-Nya People v State of Western Australia [2021] FCA 1338 | Case summary

Gilla on behalf of the Yugunga-Nya People v State of Western Australia [2021] FCA 1338 | Case summary | Zoe

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A. The Applicant in this proceeding WAD 29 of 2019 has made a native title determination application (Yugunga-Nya Application). B. The Applicant in the Yugunga-Nya Application (Applicant), the State of Western Australia and the other Respondents to the Yugunga-Nya Application (the parties) have reached an agreement as to the terms of the determination that is to be made in relation to part of the land and waters covered by the Yugunga-Nya Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule One to the Determination. C. The parties have agreed that, in respect of the balance of the land and waters the subject of the Yugunga-Nya Application (Yugunga-Nya Part B), no determination is to be made at present. Yugunga-Nya Part B comprises portions of the Yugunga-Nya Application that are currently unallocated Crown land (some of which were not unallocated Crown land at the time the application was made), the portion of the application wholly overlapped by the Gingirana #4 native title determination application (WAD 230 of 2020), the Karbar Pastoral Lease area (which was not held for the benefit of Aboriginal people at the time the application was made but now is), and 10 freehold titles that are invalid insofar as they affect native title and which are proposed to be validated pursuant to an indigenous land use agreement. D. A new native title determination application will be filed over the Yugunga-Nya Part B area or part thereof so the Yugunga-Nya Applicant can obtain the benefit of s 47A and s 47B of the Native Title Act 1993 (Cth) (Native Title Act) and have native title rights of exclusive possession recognised over relevant areas. E. Pursuant to s 87A(1)(d), (2) and (4) of the Native Title Act, 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 Yugunga-Nya Application. F. The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area. G. The terms of the agreement also involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act that native title does not exist in relation to some parts of the land and waters of the Determination Area. H. The parties acknowledge that the effect of 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, will be recognised as the native title holders for the Determination Area as set out in the determination. I. The Applicant has nominated the Yugunga-Nya Native Title Aboriginal Corporation pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders. J. The Yugunga-Nya Native Title Aboriginal Corporation has consented in writing to hold the rights and interests comprising the 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 is within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87A and s 94A of the Native Title Act and by the consent of the parties:

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ATTACHMENT A DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225 Native Title Act)

Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraphs 4 and 5 of this determination.
Native title does not exist in those parts of the Determination Area set out in Schedule Four. Native title holders (s 225(a) Native Title Act)
The native title in the Determination Area is held by the Native Title Holders as identified in Schedule Seven. Nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and s 225(e) Native Title Act) Exclusive rights and interests
Subject to paragraph 6, the nature and extent of the native title rights and interests in relation to the Exclusive Area are the right to possession, occupation, use and enjoyment of the Exclusive Area to the exclusion of all others. Non-exclusive rights and interests
Subject to paragraphs 6 and 7, the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are that they confer non-exclusive rights to: (a) access, remain in and use that area; (b) access and take the resources in that area; and (c) protect places, areas and things of traditional significance in that area. Qualifications on the native title rights and interests
Notwithstanding anything in this determination, the native title rights and interests set out in paragraphs 4 and 5: (a) are subject to and exercisable in accordance with: (i) the traditional laws and customs of the Native Title Holders; and (ii) the laws of the State and the Commonwealth, including the common law. (b) do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA); and (c) do not confer any rights in relation to: (i) 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); (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iv) water lawfully captured by the holders of the Other Interests pursuant to those Other Interests.
The native title rights and interests set out in paragraph 5 do not confer: (a) possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; or (b) a right to control the access to, or use of, the Non-Exclusive Area or its resources. Areas to which s 47A or s 47B of the Native Title Act apply
Section 47A and s 47B of the Native Title Act apply to disregard any prior extinguishment in relation to those parts of the Determination Area identified in Schedule Five. The nature and extent of any Other Interests
The nature and extent of the Other Interests are described in Schedule Six. Relationship between native title rights and Other Interests
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) the determination does not affect the validity of those Other Interests; (b) 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, (c) 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
In this determination, unless the contrary intention appears: 'Determination Area' means the land and waters described in Schedule One and depicted on the maps in Schedule Two; 'Exclusive Area' means those lands and waters of the Determination Area described in Schedule Three (which areas are shaded green on the maps in Schedule Two); 'Native Title Holders' 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 shaded yellow on the maps in Schedule Two); 'Other Interests' means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Six and referred to in paragraph 9; '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 the Mining Act 1904 (WA) (repealed)); 'Titles Validation Act' means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six and the area depicted on the maps in Schedule Two, the written description prevails.

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SCHEDULE ONE DETERMINATION AREA The Determination Area, generally shown as bordered in blue on the maps in Schedule Two, comprises all land and waters bounded by the following description: EXTERNAL BOUNDARY DESCRIPTION All those lands and waters commencing at Latitude 25.834935 South, Longitude 118.979625 East being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) and extending generally southwesterly, generally westerly and again generally southwesterly along the boundary of that native title determination to a corner on the northern boundary of Native Title Determination WAD6123/1998 Badimia People (WCD2015/001), further described as: Then southwesterly to a western side of Road Number 2854, being the original alignment of Great Northern Highway (former alignment before road widenings) at Latitude 26.165366 South; then southerly and generally southwesterly along western sides of Road Number 2854 to the intersection with a northwestern boundary of Lot 500 as shown on Deposited Plan 406913; then generally southwesterly along boundaries of that lot again to a western side of Road Number 2854; then generally southwesterly along western sides of Road Number 2854 and Road Number 703 to a northern boundary of the Meekatharra Townsite boundary; then northwesterly and generally southwesterly along boundaries of that townsite to an intersection with the northwestern boundary of a Lot 1031 on Deposited Plan 218692 at approximate Latitude 26.601406 South; then southerly across that lot to an intersection with the western side of Road Number 703, being the original alignment of Great Northern Highway (former alignment before road widenings) at Latitude 26.602045 South; then generally southwesterly along western sides of Road Number 703 to a northern corner of Lot 274 as shown on Deposited Plan 218692; then southwesterly along the western boundary of that lot to again a western side of Road Number 703; then generally southwesterly along sides of that road to a northern boundary of Pastoral Lease N050578 (Annean) at approximate Longitude 118.435112 East; then easterly, southerly, westerly, generally southwesterly and northwesterly along boundaries of that pastoral lease to its intersection with an eastern side of Road Number 703 at approximate Longitude 118.397087 East; then generally southwesterly along eastern sides of Road Number 703 to an eastern boundary of Pastoral Lease N050578 (Annean); then southerly, easterly, again southerly, westerly, generally southerly and generally southwesterly along boundaries of that pastoral lease to its intersection with an eastern boundary of Pastoral Lease N050577 (Annean); then southerly and westerly along boundaries of that pastoral lease to an eastern side of Road Number 457, then generally southwesterly along sides of Road Number 457 to a northern boundary of Pastoral Lease N050576 (Annean); then westerly to a southeastern corner of Pastoral Lease N050577 (Annean); then generally westerly and southerly along boundaries of that pastoral lease to its intersection with an eastern boundary of Reserve 10367 (Wandry Springs Cue Stock Route); then south along the prolongation southerly of the eastern boundary of Pastoral Lease N050577 (Annean) to the prolongation east of the southern boundary of the southwestern severance of that pastoral lease at approximate Latitude 27.043457 South, Longitude 117.983824 East; then westerly to the southernmost south eastern corner of the south western severance of Pastoral Lease N050577 (Annean); then southwesterly to the northernmost corner of Cue Townsite; then southwesterly along the northwestern boundary of that townsite to its westernmost corner; then southwesterly to Latitude 27.579253 South, Longitude 117.685671 East, being a point on the northern boundary of Native Title Determination WAD6123/1998 Badimia People (WCD2015/001); Then generally southeasterly along the northern boundary of that native title determination to Latitude 27.878925 South, Longitude 118.941345 East; then southeasterly to a eastern side of Road Number 4274 at Latitude 27.879005 South; then generally northeasterly along the eastern boundary of Road Number 4274 to Latitude 26.826718 South; then northeasterly to the intersection of the eastern boundary of Road Number 4274 with Latitude 26.820668 South; then again generally northeasterly along the eastern boundary of Road Number 4274 to the intersection with a southern boundary of Road Number 7583 (Goldfields Highway) being a point on the present boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004); then generally northeasterly, generally northerly, easterly and northerly along the boundaries of that native title determination to the intersection with a southwestern corner of Native Title Determination WAD6002/2003 Gingirana (WCD2017/011); then northerly, generally westerly and generally southwesterly along the boundaries of that native title determination to the intersection with a southeastern boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (Area 1) (WCD2000/001); then generally southwesterly along the boundaries of that native title determination to the intersection with a northern boundary of Lot 36 as shown on Deposited Plan 238583 at Longitude 119.078725 East; then generally southwesterly through the following coordinate points: LATITUDE (SOUTH) LONGITUDE (EAST) 25.808731 119.071605 25.815082 119.048805 25.826272 119.019055 25.832553 118.998216

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Then southwesterly to a western boundary of Lot 36 as shown on Deposited Plan 238583 at Latitude 25.832988 South being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (Area 1) (WCD2000/001); then southwesterly along the boundary of that native title determination to Latitude 25.834773 South, Longitude 118.988426 East; then westerly back to the commencement point. EXCLUSIONS All the lands and waters within the parcels identified below are excluded to the extent they fall within the WAD29/2019 Yugunga-Nya Part A External Boundary: Exclusion 1 • All those lands and waters comprising Native Title Application WAD230/2020 Gingirana #4 (WC2020/003) as filed in the Federal Court on the 6th October 2020. Exclusion 2 • UCL 795, 796 and 797 - All that Unallocated Crown Land comprising Lot 36 as shown on Deposited Plan 238583. • UCL 819 and 820 - All that Unallocated Crown Land comprising Lot 11 as shown on Deposited Plan 238583. • UCL 824, 825 and 826 - All that Unallocated Crown Land comprising Lot 143 as shown on Deposited Plan 238583. Exclusion 3 • All that land comprising Pastoral Lease N050049 (Karbar). Exclusion 4 • UCL 140 - All that Unallocated Crown Land parcel surrounded by Pastoral Lease N049924 (Sherwood) with an approximate centroid of Latitude 26.610220 South, Longitude 118.737790 East. Exclusion 5 • UCL 882 - All that land comprising Lot 221 as shown on Deposited Plan 194443. Exclusion 6 • UCL 115 - All that Unallocated Crown Land parcel bound to the south, west and the north by Pastoral Lease N049488 (Murchison Downs), also bound to the north by Lot 143 as shown on Deposited Plan 238583, bound to the east by Pastoral Lease N049804 (Paroo) and bound to the southeast by Crown Reserve 29839 with an approximate centroid of Latitude 26.686681 South, Longitude 119.403937 East. Exclusion 7 All that land identified below to the extent it is not within the external boundary of Mining Lease M20/10, M20/18, M20/201, M20/233, M20/235, M20/288, M20/293, M20/295 or M20/296 (as defined by Department of Mines, Industry Regulation and Safety as at 29th October 1999) or Historical Closed Road, (part of Hicks Street, Fienburg Street and surveyed ways), as described in Government Gazette 08/04/1988 page 1111: • UCL 24 - All that Unallocated Crown Land parcel bound to the northwest by Unallocated Crown Land (previously Cue - Nannine Railway by Government Gazette 27/10/1896) and Lots 573, 574 and 624 as shown on Deposited Plan 216985, bound to the northeast and southeast by Lot 301 as shown on Deposited Plan 65923 and bound to the southwest by Dedicated Road (Livingstone Street) as shown on Deposited Plan 91494, Crown Reserve 6749 and Lots 255, 263, 264, 265 and Dedicated Road (Hill Street, McLean Street, Trigg Street and Threadgold Streets) as shown on Deposited Plan 254227 with an approximate centroid of Latitude 27.423121 South, Longitude 117.907587 East. • UCL 25 - All that Unallocated Crown Land parcel bound to the southwest, northwest and northeast by Lots 208 and 218 as shown on Deposited Plan 222350, Lot 633 as shown on Deposited Plan 194379 and Dedicated Road (Marshall Street, Kinsella Street, Dundee Street, Derwent Street and Darlot Street) as shown on Deposited Plan 222350 and bound to the southeast by Lot 301 as shown on Deposited Plan 65923 with an approximate centroid of Latitude 27.429400 South, Longitude 117.900900 East. • UCL 29 - All that Unallocated Crown Land parcel bound to southwest by Dedicated Road (Marshall Street) as shown on Deposited Plan 222349, bound to the northwest by Lot 1 on Plan 1001, bound to northeast by Lot 22 as shown on Deposited Plan 222349 and bound to the southeast by Lot 3 on Plan 1001 with an approximate centroid of Latitude 27.425249 South, Longitude 117.894470 East. • UCL 30 - All that Unallocated Crown Land parcel bound to the east by Dedicated Road No. 8483 and bound to the northeast, northwest and southwest by Dedicated Road (Livingstone Street, Railway Street and Salisbury Street) as shown on Deposited Plan 222350 with an approximate centroid of Latitude 27.424824 South, Longitude 117.902821 East. • UCL 31 - All that Unallocated Crown Land parcel bound to the west by Dedicated Road No. 8483 and bound to the northeast and southeast by Dedicated Road (Livingstone Street and Kinsella Street) as shown on Deposited Plan 222350 with an approximate centroid of Latitude 27.425016 South, Longitude 117.903366 East. • UCL 32 - All that Unallocated Crown Land parcel bound to the northwest by Lots 109 and 330 as shown on Deposited Plan 222355, bound to the northeast by Dedicated Road (Patterson Street) as shown on Deposited Plan 222355, bound to the southeast by Lot 406 as shown on Deposited Plan 222355 and Lot 495 as shown on Deposited Plan 135093 and bound to the southwest by Dedicated Road (Post Office Street) as shown on Deposited Plan 222355 with an approximate centroid of Latitude 27.423193 South, Longitude 117.900044 East. • UCL 39 - All that Unallocated Crown Land parcel bound to the northeast by Dedicated Road No. 10118 (Robinson Street) as shown on Deposited Plan 144205 and Closed Road as shown on Deposited Plan 189381, bound to the southeast by Dedicated Road (Stewart Street) as shown on Deposited Plan 222351, bound to southwest by Lot 300 as shown on Deposited Plan 65923 and bound to the northwest by Lot 643 as shown on Deposited Plan 33386, Lots 592 and 593 as shown on Deposited Plan 403380 and Lots 584, 585, 586, 587, 588, 589 and Dedicated Road (Heydon Place) as shown on Deposited Plan 189381 with an approximate centroid of Latitude 27.422469 South, Longitude 117.890652 East. • UCL 40 - All that Unallocated Crown Land parcel bound to the northwest by Lot 304 as shown on Deposited Plan 65923, bound to the northeast by Dedicated Road No. 4145, bound to the east by Dedicated Road No. 848, bound to the southeast by Public Access Way as shown on Deposited Plan 103005 and Closed Road (Cowle Street) as shown on Deposited Plan 93222 and bound to the southwest by Dedicated Road No. 10118, Closed Road (Cowle Street) as shown on Deposited Plan 93222, Lot 379 as shown on Deposited Plan 222353 and Lots 422, 423, 424, 425, 426, 427 and 428 as shown on Deposited Plan 135092 with an approximate centroid of Latitude 27.418052 South, Longitude 117.893416 East. • UCL 41 - All that Unallocated Crown Land parcel bound to the northwest and northeast by Closed Road (Cowle Street) as shown on Deposited Plan 93222, bound to the southeast by Public Access Way as shown on Deposited Plan 103005 and bound to the southwest by Dedicated Road No. 10118 (Robinson Street) as shown on Deposited Plan 144205 with an approximate centroid of Latitude 27.420193 South, Longitude 117.893568 East. • UCL 43 - All that Unallocated Crown Land parcel bound to the west by Dedicated Road No. 848, bound to the northwest by Lot 304 as shown on Deposited Plan 65923, bound to the northeast by Lot 304 as shown on Deposited Plan 65923 and Lot 258 as shown on Deposited Plan 218691, bound to the southeast by Closed Road as shown on Deposited Plans 106035 and 205509, Dedicated Road No. 10029, Lot 419 as shown on Deposited Plan 120042, Lot 420 as shown on Deposited Plan 90403, Lot 421 as shown on Deposited Plan 135081 and bound to the south by Lots 319, 329 and Closed Road as shown on Deposited Plan 106035, Lot 3001 as shown on Deposited Plan 43388, Lot 297 as shown on Deposited Plan 222352, Lot 600 as shown on Deposited Plan 74106, Lot 497 as shown on Deposited Plan 184667 and Dedicated Road (Mitchell Street, Simpson Street and Stewart Street) as shown on Deposited Plans 184667 and 222352 with an approximate centroid of Latitude 27.416936 South, Longitude 117.898549 East. • UCL 44 - All that Unallocated Crown Land parcel bound to the northeast by Lot 258 as shown on Deposited Plan 218691, bound to the west by Closed Road as shown on Deposited Plan 205509 and bound to the southeast by Dedicated Road No. 10029 with an approximate centroid of Latitude 27.417516 South, Longitude 117.902266 East. • UCL 51 - All that Unallocated Crown Land parcel bound to the northwest by Dedicated Road No. 10029, bound to the northeast by Lot 258 as shown on Deposited Plan 218691 and Lot 301 as shown on Deposited Plan 65923, bound to the southeast by Unallocated Crown Land (previously Cue - Nannine Railway by Government Gazette 27/10/1896) and bound to the southwest by Dedicated Road (Livingstone Street) as shown on Deposited Plan 91494, Dedicated Road (Hicks Street) and Closed Road (Hicks Street) as shown on Deposited Plan 222353 and Lot 591 and Dedicated Road (Austin Street) as shown on Deposited Plan 189288 with an approximate centroid of Latitude 27.420267 South, Longitude 117.903642 East. • UCL 52 - All that Unallocated Crown Land parcel bound to the northeast by Dedicated Road No. 8483, bound to the southeast by Lot 301 as shown on Deposited Plan 65923, bound to the southwest by Dedicated Road (Darlot Street) as shown on Deposited Plan 222350 and bound to the northwest by Lots 236, 237, 238, 239, 240, 241 and 242 as shown on Deposited Plan 222350 with an approximate centroid of Latitude 27.427277 South, Longitude 117.902914 East. • UCL 53 - All that Unallocated Crown Land parcel bound to the northwest by Lot 235 as shown on Deposited Plan 222350, bound to the northwest and northeast by Dedicated Road (Salisbury Street, Livingstone Street and Kinsella Street) as shown on Deposited Plan 222350, bound to the southeast by Lot 301 as shown on Deposited Plan 65923 and bound to the southwest by Dedicated Road No. 8483 with an approximate centroid of Latitude 27.426443 South, Longitude 117.904026 East. • UCL 107 - All that Unallocated Crown Land parcel bound to the northwest by Dedicated Road (Corrigan Street and Public R.O.W) as shown on Deposited Plan 216512, bound to the northeast by Lots 507, 508, 509, 556 and Dedicated Road (Burt Place) as shown on Deposited Plan 216512, Lot 2 as shown on Deposited Plan 410738 and Lot 554 as shown on Deposited Plan 191111, bound to the southeast by Dedicated Road extending southeast from the southeastern corner of Lot 554 as shown on Deposited Plan 191111 to the northeastern corner of Lot 302 as shown on Deposited Plan 65923 and bound to the southwest by Lot 302 as shown on Deposited Plan 65923 and Lot 258 as shown on Deposited Plan 218691 with an approximate centroid of Latitude 27.428627 South, Longitude 117.894274 East. • UCL 134 - All that Unallocated Crown Land parcel bound to the northeast by Lot 301 as shown on Deposited Plan 65923, bound to the southeast by Lots 574 and 624 shown on Deposited Plan 216985, bound to the south by Lot 573 as shown on Deposited Plan 216985 and bound to the northwest by Unallocated Crown Land (previously Cue - Nannine Railway by Government Gazette 27/10/1896) and Lots 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446 and Dedicated Road (George Street) as shown on Deposited Plan 222354 with an approximate centroid of Latitude 27.420598 South, Longitude 117.907787 East. • UCL 150-151 - All that Unallocated Crown Land comprising Lots 319 and 329 as shown on Deposited Plan 106035. • UCL 152, 163-177, 186-201, 209, 855-856, 876, 1158-1170 and 1181-1188 - All that Unallocated Crown Land comprising Lots 110, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 178, 179, 181, 183, 184, 185, 186, 188, 195, 197, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 236, 237, 238, 240, 241, 242 and 632 as shown on Deposited Plan 222350. • UCL 178-185 - All that Unallocated Crown Land comprising Lots 199, 200, 202, 203, 204, 206, 269 and 270 as shown on Deposited Plan 222351. • UCL 202-208 - All that Unallocated Crown Land comprising Lots 249, 256, 258, 260, 261, 262 and 263 as shown on Deposited Plan 254227. • UCL 210-211 - All that Unallocated Crown Land comprising Lots 277 and 278 as shown on Deposited Plan 103005. • UCL 214 - All that Unallocated Crown Land comprising Lot 292 as shown on Deposited Plan 103031. • UCL 216-224 - All that Unallocated Crown Land comprising Lots 331, 334, 335, 337, 339, 341, 342, 343 and 344 as shown on Deposited Plan 106087. • UCL 226-239 - All that Unallocated Crown Land comprising Lots 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445 and 446 as shown on Deposited Plan 222354. • UCL 246 - All that Unallocated Crown Land comprising Lot 421 as shown on Deposited Plan 135081. • UCL 247-253 - All that Unallocated Crown Land comprising Lots 422, 423, 424, 425, 426, 427 and 428 as shown on Deposited Plan 135092. • UCL 240-245, 254-265, 272 and 353 - All that Unallocated Crown Land comprising Lots 368, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390 398, 400, 401, 404, 408 and 409 as shown on Deposited Plan 222353. • UCL 273 and 311 - All that Unallocated Crown Land comprising Lots 591 and 592 as shown on Deposited Plan 189288. • UCL 854 - All that Unallocated Crown Land comprising Lot 624 as shown on Deposited Plan 216985. • UCL 893 - All that Unallocated Crown Land comprising Lot 643 as shown on Deposited Plan 33386. Exclusion 8 • UCL 636 - All that Unallocated Crown Land comprising Lot 54 as shown on Deposited Plan 222768 that is wholly within the external boundary of Mining Lease M21/39-I (as defined by Department of Mines, Industry Regulation and Safety as at 29th October 1999). • UCL 831 and 833 - All that Unallocated Crown Land comprising those portions of Lot 293 as shown on Deposited Plan 31197 that are wholly within the external boundary of Mining Leases M21/23 and M21/39-I (as defined by Department of Mines, Industry Regulation and Safety as at 29th October 1999). • UCL 888 - All that Unallocated Crown Land comprising Lot 59 as shown on Deposited Plan 31197 that is wholly within the external boundary of Mining Leases M21/23 and M21/39-I (as defined by Department of Mines, Industry Regulation and Safety as at 29th October 1999). Exclusion 9 • UCL 114 - All that portion of an Unallocated Crown Land parcel bound to the west and the north by Pastoral Lease N049488 (Murchison Downs), bound to the south by Crown Reserve 12300 and bound to the east by Reserve 29839 with an approximate centroid of Latitude 26.886769 South, Longitude 119.303346 East that is wholly within the external boundary of Mining Lease M51/660 (as defined by Department of Mines, Industry Regulation and Safety as at 29th October 1999). Exclusion 10 • All that land comprising Lot 610 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2162 folio 946. • All that land comprising Lot 613 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 228. • All that land comprising Lot 614 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 229. • All that land comprising Lot 615 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 230. • All that land comprising Lot 616 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 231. • All that land comprising Lot 617 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 232. • All that land comprising Lot 618 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 233. • All that land comprising Lot 619 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 234. • All that land comprising Lot 621 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 236. • All that land comprising Lot 622 as shown on Deposited Plan 217741 and being the land described in certificate of title volume 2220 folio 237. 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 January 2020. Mining Leases sourced from Department of Mines, Industry Regulation and Safety as at 29th October 1999. For the avoidance of doubt the determination excludes any land and waters subject to: Native Title Determination Application WAD6123/1998 Badimia People (WCD2015/001) as Determined in the Federal Court on the 25/05/2015. Native Title Determination Application WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as Determined in the Federal Court on the 29/08/2000. Native Title Determination Application WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19/10/2017. Native Title Determination Application WAD382/2017 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23/04/2018. Native Title Determination Application WAD6164/1998 Wiluna (Combined) (WCD2013/004) as Determined in the Federal Court on the 29/07/2013. Native Title Determination Application WAD6002/2003 Gingirana (WCD2017/011) as Determined in the Federal Court on the 07/12/2017. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 12th July 2021 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.

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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 7 of this Schedule), are generally shaded in pink on the maps in Schedule Two. For the avoidance of doubt, unless otherwise specified, the following interests are as they existed as at 1 January 2020 and as contained in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated 31 July 2020. The non-existence of native title is not necessarily a result of the grant or creation of these interests.4 4 This is particularly the case with current tenures within the townsite of Meekatharra. The tenures included in the determination are by reference to current tenures as at 1 January 2020, however, native title over the area of the Meekatharra townsite was extinguished by the vesting of Reserve 15815 in the Meekatharra Road Board on 9 November 1917.

Freeholds The following grants of estates in fee simple: Meekatharra Current Freehold Certificate of Title CT0034000013A CT0103800989 CT0008600044A CT0034000014A CT0104400825 CT0008600074A CT0034000015A CT0104700062 CT0010900090A CT0037700002A CT0104700083 CT0012300031A CT0038300131A CT0104700418 CT0026100070A CT0043000014A CT0104700692 CT0029100146A CT0043000045 CT0104700879 CT0031900027A CT0043700037 CT0105000780 CT0031900028A CT0046700199A CT0105200300 CT0031900029A CT0047100032 CT0105200333 CT0031900030A CT0048400192 CT0105700413 CT0031900031A CT0055100061A CT0105800401 CT0031900032A CT0060400189A CT0106000104 CT0031900033A CT0069500181 CT0108000563 CT0031900034A CT0082500164 CT0108700956 CT0033800108A CT0089200187 CT0109400657 CT0034000012A CT0102800202 CT0109600294

[27]

Cue Current Freehold Certificate of Title CT0104200268 CT0163400428 CT0006200101 CT0104400459 CT0163600981 CT0009200127A CT0104400511 CT0164900041 CT0009500074 CT0104400512 CT0166300790 CT0009900036 CT0104500963 CT0166400357 CT0010200175 CT0104800808 CT0167300202 CT0011000044 CT0109000845 CT0167800490 CT0011900135 CT0110500657 CT0171000391 CT0012100160 CT0112200876 CT0171300055 CT0012300125A CT0120800006 CT0173100713 CT0019400177 CT0120800007 CT0173300488 CT0019700154 CT0120800008 CT0173500625 CT0020500145 CT0124600614 CT0173500628 CT0020500146 CT0124600645 CT0173900634 CT0021700051 CT0125300354 CT0173900752 CT0021700052 CT0125300355 CT0174600764 CT0022700101 CT0127200723 CT0175800192 CT0022700102 CT0129400438 CT0176900623 CT0024600104 CT0135900268 CT0178200356 CT0028000198 CT0135900269 CT0178300774 CT0028100150 CT0136200639 CT0179300052 CT0028900107 CT0136200640 CT0180400050 CT0029700090 CT0136200641 CT0180900099 CT0029900192 CT0136200642 CT0180900100 CT0031900117 CT0136200644 CT0181000101 CT0031900151 CT0137300887 CT0181000109 CT0032200164 CT0138300386 CT0181200334 CT0036000171 CT0138300387 CT0181300727 CT0040000116 CT0142700960 CT0182000059 CT0041000052 CT0148400026 CT0183400023 CT0041600097 CT0149800498 CT0185300038 CT0042100146 CT0149800499 CT0186100677 CT0043700084 CT0156100296 CT0186500284 CT0046300068 CT0157400061 CT0186600719 CT0048500142 CT0157600167 CT0187300004 CT0050200100 CT0157800396 CT0188300682 CT0056800195A CT0159800287 CT0188300683 CT0096000077 CT0160400305 CT0188400345

[35]

Reserves The following Reserves: Reserve No. Current / Last Purpose 2460 Police 2464 Town Hall 2693 Golf Club and Premises 2900 Resting Place for Travellers and Stock 3133 Water 3134 Water 3135 Municipal Purposes 3530 Explosives Magazine 3620 Recreation 4590 Racecourse 5216 Drain 5326 Explosives 5697 Recreation 6021 Endowment for Road Board 6760 Town Hall 7053 Commonage 7274 Common 8282 Shire Purposes 8984 Excepted from Sale and Occupation 8988 Water 9142 Mineral Processing 9169 Water and Conservation of Flora and Fauna 9761 Police 10076 Youth and Community Purposes 10306 Common 11334 Church Site - Presbyterian Church 11643 Municipal Endowment 11651 Water and Camping 11672 Common 11783 Water Act 57 Vic No. 20 12300 Vermin Proof Fence 12364 Power Station Site 13513 Excepted From Sale 13515 Use and Benefit of Aboriginal Inhabitants 13931 Water 14426 Use and Requirements of GEHA 14523 Water Supply Office 15523 Picture Gardens 15815 Parks and Recreation - except for Lot 290 on Deposited Plan 30589 15944 Water 16706 Water 16841 Water 17275 Minerals 18501 Public Utility 19253 Use and Benefit of Aboriginal Inhabitants 19400 Pipeline 19401 Water 20434 Parkland and Recreation 20982 Water Supply 21243 Cemetery 21408 Municipal Endowment 21482 Drainage 21515 Power Station 21597 Recreation 21619 Public Utility 21915 Golf Links 21978 Road Board Purposes 22025 Aerial Landing Ground 22045 Sanitary Site 22569 Aerial Landing Ground 22610 Racecourse 22974 Swimming Pool and Park Gardens 23051 Public Utility 23195 Recreation Golf Links 23232 Use and Benefit of Aboriginal Inhabitants 23889 Hospital and Allied Purposes 24054 Flying Doctor Base 24220 Community Welfare Purposes 24241 Public Purposes and Picture Garden 25641 Use and Requirements of Shire of Cue 25665 Use and Requirements of Shire of Cue 25694 Road Board Purposes 27180 Native Housing 27201 Depot Site Main Roads Department 27243 Golf Course 27539 Arboretum 27986 Parking 27989 Racing Stables 28081 Native Housing 28209 Transport Parking Area 28321 Water 29063 Native Housing 29496 School Site 29501 Use and requirements of Shire of Cue 29839 Protection of Rabbit Proof Fence 30553 Native Housing 31350 Office Site 31394 Hostel Site Students 31397 Aboriginal Quarry Site 32293 Use and Requirements of Royal Flying Doctor Service 32332 Government Requirements 32459 Sewerage 32543 Recreation Wildlife Sanctuary and Historical Museum 32790 Water Supply 32931 Radio and Television Site 33230 Office Storage State Housing Commission 34021 Housing Department of Hospital and Allied Services 35295 Recreation 35296 Use and Benefit of Aboriginal Inhabitants 35387 Public Conveniences 35388 Community Welfare Services 35389 Use and Benefit of Aboriginal Inhabitants 35512 Use and Benefit of Aboriginal Inhabitants 36131 Recreation Motor Cycle Club 36263 Recreation 36371 Parking 36389 Country Automatic Exchange Site 36396 Hospital Staff Housing 36452 Parklands 36627 Public Utility Services and Access 36977 Common 37165 Drain 37472 Water Supply (25 Mile Well) 37841 Radio Transmitter Site 37897 Fire Brigade Site 38040 Stockyard and Access 38127 Recreation 38357 Community Purposes and Camp Accommodation 38524 Civic, Cultural and Community Purposes 38633 Drainage 38927 Municipal Purposes 39267 Park 39356 Pedestrian and Vehicular Access 39955 Park 39956 Park 39957 Public Utilities Services 40000 Repeater Station Site 40098 Public Utilities Services and Drainage 40290 Clinic (Health Department) 40507 Church Site 40646 Rubbish Disposal Site 40754 Ambulance Depot 40845 Stockpiling and Loading Facilities 40847 Stockyards 40979 Repeater Station 41082 Water Supply 41143 Repeater Station 41870 Aged Persons Homes 42089 Water Supply 42382 Radio Mast 42391 Aerial Landing Ground 42472 Repeater Station Site 42912 Hall Site 43098 Radio Communications Site 43183 Stockpiles Site 44100 Park 44239 Regenerator Sit 44276 Public Utilities Services and Access 44325 Pistol Club 44737 Access 45037 Depot 46944 Child Care Centre 50286 Tourism and Protection of Natural Formations (Garden Granite Rock)

[37]

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 on5 Road 1 Great Northern Highway - Road No. 6114 GG04041919p769 and Lot 77 on DP 217093 Road 2 Cue - Day Dawn - Road No. 1327 GG28021902p839 Road 3 Day Dawn Townsite Road CPP140106_2 Road 4 Cue Townsite Road CPP140111 Road 5 Ned's Creek Station - Road No. 9088 GG09121932p1834 Road 6 Rabbit Proof Fence Road - Road No. 4274 CPP506498 Road 7 Rabbit Proof Fence Road - Road No. 4274 CPP503038 Road 8 Rabbit Proof Fence Road - Road No. 4274 CPP502982 Road 9 Road No. 2253 GG23031906p976 Road 10 Hillview Station - Yarrabubba - Road No. 11227 GG17081956p2109 Road 11 Meekatharra - Sandstone Road - Road No. 12227 DP76753 Road 12 Road No. 2845 GG20101939p1806 Road 13 Rabbit Proof Fence Road - Road No. 4274 CPP503038_2 Road 14 Road within Polelle Pastoral Lease - Road No. 9991 GG22091939p1676 Road 15 Road No. 9992 GG22091939p1676_2 Road 16 Road No. 8484 GG17041930p1109 Road 17 Road No. 12636 GG22051964p2240 Road 18 Road No. 11528 GG28111958p3127 Road 19 Road No. 8101 GG12071929p1662 Road 20 Cue - Tuckanarra - Road No. 10029 GG22121939p2251 Road 21 Great Northern Highway - Culliculli Homestead - Road No. 10995 GG06081954p1356 Road 22 Reedy to Tuckanarra - 10028 GG22121939p2250

[38]

5 When interpreting the references in this column: GG = Government Gazette (followed by the date in day, month, year format, followed by page number) CMA = Central Mapping Agency CPP = Cancelled Public Plan DP = Deposited Plan D = Document (e.g. Road 165 = Document I60229) P = Plan PP = Public Plan MapInfo ID. Description Shown on Road 23 Naninne - Cogla Downs - Road No. 8579 GG24101930p2374 Road 24 Road No. 11527 GG03101958p2545 Road 25 Warda Warra - Nannine - Road No. 457 GG14121894p1251 Road 26 Road No. 10996 GG06081954p1356_2 Road 27 Great Northern Highway - Road No 14517 DP218692_2 Road 28 Cue - Tuckanarra Road No. 845 GG30061899p1887_3 Road 29 Unnamed Road - Locations 78 and 79 DP216783 Road 31 Meekatharra - Abbotts Road - Road No. 2854 GG22051914p2148 Road 32 Rubbish Tip Road Meekatharra DP217265 Road 33 Road No. 5714 GG04051917p672 Road 34 Road from Meekatharra Townsite heading south, south-east - Road No. 5716 GG04051917p672_2 Road 35 Road from Meekatharra Townsite heading south - Road No. 5711 GG04051917p672_3 Road 36 Meekatharra - Sandstone Road DP216513 Road 37 Road No. 665 GG13081897p1623 Road 38 Road in Hillview and Polelle Pastoral Leases - Road No. 1656 GG05121980p4086 Road 39 Naninne to Abbotts - Road No 703 DP227848 Road 40 Road heading west from Meekatharra Townsite - Road No. 5713 GG04051917p672_4 Road 41 Road Inside Meekatharra Townsite - Road No. 5710 GG04051917p672_5 Road 42 Sherwood Station to Murchison Downs Station - Road No. 5710 DP242997 Road 43 Murchison Downs Road - Road No. 17828 GG02091988p3410 Road 44 Chain road - south-east from Meekathara Townsite - Road No. 5712 GG04051917p672_7 Road 45 Road No. 9139 GG30061933p980 Road 46 Deviation of Great Northern Highway south east of Cue Townsite - Road No. 9139 GG09011976p4 Road 47 Cue to Millie Millie Station - Road No. 846 GG30061899p1887_2 Road 48 Cue to Sanitary Depot R9603 - Road No. 3680 CPP501747 Road 49 Road No. 3204 GG14081908p2313 Road 50 Road No. 5366 CPP502990.pdf Road 51 Road heading south from Cue townsite - Road No. 12179 GG27101961p2999_3 Road 52 Road heading north from Cue townsite - Road No. 4143 GG14071911p2551 Road 53 Road from Cue townsite to Recreation Reserve - Road No. 2196 GG23031906p976_2 Road 54 Road No. 12179 GG27101961p2999 Road 55 Road south of Cue townsite - Road No. 12182 GG27101961p2999_2 Road 56 Cue townsite Road along discontinued Railway CPP140111_2 Road 57 Cue townsite road on discontinued Railway DP172087 Road 58 Cue townsite road on discontinued Railway DP218691sht3 Road 59 Cue - Day Dawn on discontinued Railway CMA50164_Cue_SE Road 60 From Dalgetty Street Day Dawn to Cuddingwarra - Road No. 849 GG21121906p3613_2 Road 61 Day-Dawn townsite heading north-westerly direction - Road No. 2537 GG21121906p3613 Road 62 Day - Dawn to Lakeside Station Homestead - Road No. 2538 GG02081929p1762 Road 63 Earliest version of Road No. 2538 GG14121906p3554 Road 64 Start of road 2538 that intersects with discontinued railway line at Day Dawn CPP140106 Road 65 Road north-east of Cue townsite - Road No. 3487 CPP502995 Road 66 Rifle Range Road - North-west of Cue townsite - Road No. 3416 CPP502994_2 Road 67 Meekatharra - Wiluna Road - Road No. 7583 GG18061926p1241 Road 68 Meekatharra townsite road heading north-west - Road No. 5715 GG04051917p672_6 Road 69 Road within Pinnacles townsite DP220333 Road 70 Deviation of Kalgoorlie - Meekatharra Road within PL 3114/598 - Road No. 7583 GG08051981p1404 Road 71 Miners Pass Road - Road No. 12179 DP65910 Road 72 Miners Pass Road - Road No. 12179 DP65922 Road 76 Dairy Wells Road - Road No. 19000 DP193379 Road 77 Road No. 4274 DP218805 Road 88 Road re-alignment Rabbit Proof Fence - Road No. 4274 DP219759 Road 89 Meekatharra townsite - Road widening Main Street where it becomes Great Northern Highway - Road No. 703 DP29717 Road 96 Intersection of Goldfields Highway and Great Northern Highway in Meekatharra DP402607 Road 99 Cue Townsite - Road No. 8483 GG02051930p1221_2 Road 100 Road between Mt Yagahong and Naninne - Road No. 2845 CPP503033 Road 101 Cue and Black Range GG30081935p1632 Road 102 Cue Townsite Road DP222354 Road 103 Cue Townsite central roads CPP504112 Road 104 Road Ex Cue Lot 500 - Road No. 18803 DP192624 Road 105 Robinson Street DP221385 Road 106 Cue Town Lot 12 resumption - Road No. 17708 P000976 Road 107 Convict Court Road DP43388 Road 108 Cue Town Road DP216512 Road 109 Threadgold - McClean - Trigg Streets DP254227 Road 110 Livingstone Street DP91494 Road 111 Corner of Wittenoom and Hicks Street PP_BK47_16.07 Road 112 Road No. 8483 GG02051930p1221 Road 113 Road No. 848 GG30061899p1887 Road 114 Road No. 4145 GG14071911p2551 Road 115 Road No. 10118 DP144205 Road 116 Heydon Place DP189381 Road 117 McCarthy Drive DP217741 Road 118 Between Richmond and Robinson Streets DP103005 Road 120 Portion of Austin Street DP194475 Road 121 Portion of Austin Street DP189288 Road 122 Road No. 10029 GG19041940p562 Road 123 Reedy Townsite Roads DP144176 Road 124 Reedy Townsite Roads DP204564 Road 125 Reedy Townsite - Culculli Street DP144168 Road 126 Reedy Townsite Roads DP144177 Road 127 Reedy Townsite Roads - Belsey Street DP205529 Road 128 Porlell - Barret Street DP223061 Road 129 Day Dawn Townsite Roads DP222369 Road 130 Day Dawn Townsite Roads DP222370 Road 131 Day Dawn Townsite Roads DP222372 Road 132 Day Dawn Townsite Roads DP222374 Road 133 Day Dawn Townsite - Anstey Street PPBK47_20_14.03 Road 134 Day Dawn Townsite Roads DP222373 Road 135 Day Dawn Townsite Roads DP222371 Road 136 Day Dawn Townsite Road next to train station DP204598 Road 137 Mainland Townsite Roads DP222768 Road 138 Tuckanarra Townsite Roads DP223168 Road 139 Tuckanarra Townsite Roads DP144173 Road 140 Tuckanarra Townsite - Beebyn Karbar Road DP189424 Road 141 Gabintha Townsite Roads DP222468 Road 142 No Road identified in MapInfo NA Road 143 Meekatharra Townsite - Road Widening ex Lot 432 and ROW ex Lot 429 DP174765 Road 144 Meekatharra Townsite - Road Widening ex Lots 510 and 511 DP186022 Road 145 Meekatharra Townsite - Porter Street DP181870 Road 146 Meekatharra Townsite - Road Deviations Great Northern Highway Road No. 703 GG22021974p564_2 Road 147 Meekatharra Townsite - corner of McCleary and Donovan Streets DP214757 Road 148 Meekatharra Townsite - corner Main and Savage Streets DP215819 Road 149 Meekatharra Townsite Streets CPP_504716 Road 150 Meekatharra Townsite - Stoddart Street, Gwalia Street and Consols Road DP188612 Road 151 Meekatharra Townsite - High and Savage Street DP214471 Road 152 Meekatharra Townsite - High Street DP144189 Road 153 Meekatharra Townsite - Road No. 7583 (deviation of part) GG22021974p564 Road 154 Meekatharra Townsite - Road No. 703 DP227848_2 Road 155 Meekatharra Townsite - Rubbish Tip Road DP217265_2 Road 156 Meekatharra Townsite - McCleary Street, Livingstone Street DP230234 Road 157 Meekatharra Townsite - Road No. 17329 - McCleary Street extension DP216054 Road 158 Meekatharra Townsite - Caddy Place D62623 Road 159 Meekatharra Townsite - Trenfield Court DP217086 Road 160 Meekatharra Townsite - Road No. 5710 CPP504717 Road 161 Meekatharra Townsite - Campbell Road - Road No. 5712 GG17121993p6692 Road 162 Meekatharra Townsite - Gascoyne Junction Road Misc_Plan_908 Road 163 Meekatharra Townsite - Great Northern Highway - Road No. 703 - road widening DP183647 Road 164 Meekatharra Townsite - R.O.W - off Queen Road DP182354 Road 165 Meekatharra Townsite - Lot 952 on Deposited Plan 217086 - corner of High and Queen Street DI60229 Road 166 Meekatharra Townsite - Savage Street Lot 501 on DP69309 DL773669 Road 167 Meekatharra Townsite - Meehan Street - Lot 3025 on DP74349 DM179545 Road 168 Meekatharra Townsite - road widening Lot 305 on DP402614 DN432570 Road 169 Meekatharra Townsite - Lots 302 and 317on DP402617 DN548360 Road 170 Meekatharra Townsite - road widening Great Northern Highway - Road No. 703 - Lot 304 on DP 405786 DN833421 Road 171 Road 5716 - Gabanintha Townsite passing through Reserve 10597 Gabanintha Townsite Plans 466/80 and 54/300

[47]

Reserves (a) The following reserves: Reserve No. Current / Last Purpose 2463 Public Utility 2560 Independent Order of Oddfellows 2689 Drill Hall 2719 Water Supply 2970 Police 3202 Municipal Services 3957 Public Utility 3959 Hall Site Ancient Order of Druids 4266 Public Utility 4267 Public Utility 4268 Public Utility 4269 Public Utility 4270 Recreation 4280 School Site 4548 Cemetery 4549 Recreation 4659 Quarry 5219 School Site 5222 Historic Site Cemetery 5223 Rubbish Depot 5571 Commonage 5819 Public Utility 5821 Public Utility 5847 Racecourse 5890 Public Utility 5891 Mechanics Institute 6263 Townsite 6265 Rubbish Disposal Site 6278 Public Utility 6279 Public Utility 6280 Public Utility 6281 Public Utility 6282 Public Utility 6283 Public Utility 6312 Recreation 6498 Warden's Quarters 6517 Public Utility 6518 Public Utility 6519 Public Utility 6520 Post Office 6521 Public Utility 6749 Excepted From Sale 6764 Church Site Roman Catholic 6838 Excepted From Sale 6914 Townsite 6927 Excepted From Sale 6986 Mines Department Buildings 6995 Excepted From Sale 7002 Excepted From Sale 7242 Excepted From Sale 7273 Common 7364 Mechanics Institute 7747 Water 7854 Excepted From Sale 7995 Trades Hall 8302 Excepted From Sale 8713 Public Utility 8699 Government Requirements 8700 Mining 8749 Excepted From Sale and Occupation 8803 Racecourse 8911 Excepted From Sale 8931 Water 9147 Hall Site Amalgamated Workers Association 9148 Excepted From Sale and Occupation 9455 Independent Order of Goodfellows 9469 Common 9544 Water 9603 Sanitary Depot 9699 Peak Hill to Leonora Stock Route 9700 De Grey to Peak Hill Stock Route 9728 Water 9771 Cemetery 9835 Excepted From Sale 10022 Common 10110 Excepted From Sale 10223 Cemetery 10348 Charity Lodge Independent Order of Templars 10367 Wandry Springs to Cue Sock Route 10597 Common 10710 Excepted From Sale 11410 Water 11443 Water (Rabbit Department) 11544 Water 11545 Water 11574 Mining 11638 Water 11644 Mining 11691 Water 11772 Water 12091 Government Requirements 12313 Water 12819 Water 12820 Water 12822 Water 12823 Water 12830 Water 12831 Water 12870 Water 12871 Water 12874 Water 13041 Water 13245 Water 13435 Water 13574 Water Supply 13584 Water Supply Rabbit Department 14583 Salvation Army 15947 Excepted From Sale 16197 Sewage Disposal 16311 Common 16326 Cemetery 16360 Stock Route 18006 Water 18525 Water 20092 Stock Route 20387 Public Utility 21193 Excepted From Sale 21242 Sanitary Site 21244 Church Site Presbyterian 21270 Hall Site 21324 Excepted From Sale 21334 Church Site Roman Catholic 21343 Shire Purposes 21444 Mining 22010 Church Site Methodist 22067 Hall Site - Royal Antedeluvian Order of Buffaloes 22350 Explosives Magazine 22712 School Site Roman Catholic 24646 Rubbish Depot 47617 Drainage 48478 Heritage and Community Purposes

[62]

Access to Mining Tenements and Petroleum Interests (a) Without limiting the operation of any other clause in Schedule Six, but subject to clause 11(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest listed in clauses 7 and 10 of this Schedule Six, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area existing as at the date of this Determination as are necessary to access 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 11(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 11(a).
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.
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) stock routes; and (iv) 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.

[64]

Introduction 1 The parties have sought and the Court has agreed to this Determination of native title under s 87A of the Native Title Act 1993 (Cth) as to part of an area the subject of the Yugunga-Nya application. 2 The Yugunga-Nya application was originally made in 1996, and has since been the subject of many inter and intra-mural issues, amendments, variations and consolidations. The parties are to be commended for having resolved the issues sufficiently to now allow a determination over part of the claim area. 3 The Yugunga-Nya application covers approximately 21,305 square kilometres in the mid-west region of Western Australia. The claim area includes the towns of Meekatharra and Cue at its western edge, which is roughly defined by the Great Northern Highway. The eastern boundary of the claim area follows the Rabbit Proof Fence. The southern boundary is defined by a line running between a point south-west of Lake Austin to the Rabbit Proof Fence, while the northern boundary is marked by the northern extent of Ned's Creek Station. 4 Pastoral leases and mining tenements cover most of the claim area. There are also some large areas of unallocated Crown land where pastoral leases have been relinquished. 5 There are a number of historical mining towns in the claim area such as Mainland, Reedy, Naninne and Tuckanarra. The claim area continues to be important for mining. 6 The claim area is surrounded to the west, north-west, north, north-east, east and south respectively by a number of determinations, being: the Wajarri Yamatji People (Part A) (I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215); Nharnuwangga (Clarrie Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494); Gingirana (Atkins on behalf of the Gingirana People v State of Western Australia [2017] FCA 1465); Wiluna (WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755); Tjiwarl (Narrier v State of Western Australia [2016] FCA 1519); and Badimia (CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204). 7 This Determination covers part of the claim area referred to as Yugunga-Nya Part A, with some areas excluded (as described in the Determination), and with the expectation that a further determination will be pursued in due course. 8 For the reasons set out below, the Court is satisfied it is appropriate to make the orders sought, and that it is within the power of the Court to do so. This Determination records, recognises and protects the claimants' long-standing connection to country by traditional law and culture.

[68]

The parties 13 As discussed further below in the context of authorisation of this Determination, the Native Title Act vests the carriage of a native title determination application in the 'applicant'. The Yugunga-Nya application is made by Evelyn Gilla, William (Bill) Shay, Leonie Gentle, Russell Little, Audrey Shar, Troy Little, Robyn Kelly, Elaine King, Nathanial Bann and Leonard Barnard (Applicant) on behalf of the Yugunga-Nya native title claimants. 14 The Yugunga-Nya native title holders are defined in this Determination made by the Court as those Aboriginal people who: (a) under the traditional laws and customs of the Western Desert, have a spiritual connection to the claim area and the Tjukurpa associated with it on the basis of one or more of the following: (i) the claim area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or (ii) he or she has traditional geographical and religious knowledge of the claim area through a long-term association with the area; and (iii) he or she has an affiliation to the claim area through a parent or grandparent with a connection to the claim area specified in sub-paragraphs (i) or (ii) above; and (b) are recognised under the traditional laws and customs by the other native title holders as having rights in the claim area. 15 This currently includes: (a) the descendants of Annie Wilba, Dolly Ward Bootha and Jimmy Wheelbarrow; and (b) the following siblings set (where living) and their descendants: Bert Dorizzi, Olive Fraser (nee Dorizzi), Frank Dorizzi, Kevin Dorizzi, Quilla Dorizzi, Shirley Thorn (nee Dorizzi), Celie Martin (nee Dorizzi), Valerie Dorizzi, Patricia Dorizzi and Richard Dorizzi. 16 The Joint Submissions properly drew the Court's attention to the fact that the description of the native title holders in Schedule Seven of the Minute does not precisely align with the description of those claiming native title in Schedule A of the Application. I accept the submission that the Court may make a determination in the terms proposed, as the variation has arisen as a result of additional genealogical/anthropological research undertaken in relation to the Yugunga-Nya application and in consultation with the Yugunga-Nya claimants. It has been agreed to by the Yugunga-Nya claimants and the State. Further, the Joint Submissions note that no person said to hold native title rights and interests is excluded. I therefore consider it appropriate to accept the variations: see Billy Patch on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]; and Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33].

[69]

The material provided to the State and the Joint Submissions as to connection 17 The Applicant provided the State with connection materials in support of the Yugunga-Nya claimants' connection to, and occupation of, the Yugunga-Nya claim area. Those materials included a Yugunga-Nya Anthropology Report prepared by anthropologist Mr Kim McCaul dated 17 December 2019, which included site and resources registers; a further confidential report by Mr McCaul as to the connection between former respondents (referred to as the Ashwin respondents); a report by Mr McCaul as to the connection between the Dorrizis and the claim area; a Dreaming (Tjukurpa) Map and associated explanations for the Yugunga-Nya claim area; genealogies for the Yugunga-Nya claim group; and a report by Mr McCaul on occupation for the purposes of s 47A and s 47B of the Native Title Act dated 27 January 2021. 18 The Joint Submissions set out a summary of the facts about the Yugunga-Nya application relevant to the key concepts as to native title provided for in s 223 of the Native Title Act, and drawn from the connection material, material which formed the basis of the State's agreement to a consent determination. Because of the historical importance of such material, and having regard to the clarity with which the summary has been drafted, I will include the summary from the Joint Submissions in full (excluding footnotes). 19 The Joint Submissions state as follows: Traditional laws and customs 45. The Yugunga-Nya people are members of a society united in and by acknowledgment of a shared body of laws and customs from which their rights and interests in the Determination Area are derived. The Yugunga-Nya people acknowledge and observe a body of laws and customs which has demonstrably evolved from the traditional laws and customs transmitted from and acknowledged by their ancestors who occupied the Determination Area at effective sovereignty, while still retaining all of the features of that traditional system. 46. Effective sovereignty refers to the approximate year or years by which the acknowledgement and observance of traditional laws and customs by any Aboriginal peoples then occupying the Determination Area are likely to have been materially affected by the presence or activities of non-Aboriginal people on or near to the Determination Area. In the Yugunga-Nya claim area, effective sovereignty was approximately 1890, the date of the first gold rush in the region. McCaul summarises his view of the impact of white settlement of the claim area by stating: 'While there is no detailed data for this area, our knowledge of other areas allows the inference that there would have been a "catastrophic" decline in the Aboriginal population as a result of the substantial non-Aboriginal population influx during the mining boom in the late 19th century. The dramatic demographic shifts in this area are also highlighted in my view by the fact that today there are only three or four descent groups asserting rights and interests in this area.' 47. The system of law and custom under which people are affiliated to country, and which has been maintained and transmitted from generation to generation, since prior to effective sovereignty, and by reasonable inference since prior to the declaration of sovereignty in Western Australia in 1829, is held at the regional societal level. The rights and interests in land and waters which are distributed throughout the community of Yugunga-Nya native title holders are derived from this body of traditional laws and customs. 48. The relevant society for the purposes of the Yugunga-Nya Application is the Western Desert society. The Yugunga-Nya claimants follow the system of traditional law and custom that is shared with other members of the Western Desert Cultural Bloc (WDCB). This society is characterised by 'multiple pathways' to acquiring rights and interests in land and waters and the importance of Tjukurpa in governing social and political relations between its members. 49. The Yugunga-Nya Application shares a number of similarities with the Gingirana native title determination to its north and the Wiluna and Tjiwarl native title determinations to its east, in that: (a) all the claims were brought on the basis that the claimants are part of a broader Western Desert society; (b) there are 'multiple pathways' to acquiring rights and interests in the land and waters of the claim area; (c) there has been a migration to the west by the apical ancestors over time; and (d) the Tjukurpa/Tjukurrpa underpins the observance of traditional laws and customs. Acquiring rights and interests in country 50. The Yugunga-Nya people hold rights and interests in the Determination Area under their system of traditional law through the 'multiple pathways' system of the WDCB. While birth may be the principal source for 'core' rights in country there are other avenues through which people gain rights in country, most notably long-term occupation when accompanied by intimate knowledge of the land and its religious geography. 51. McCaul states that: 'From a functionalist anthropological model, the emphasis on birth, as well as the provision of numerous other criteria, can be explained as an adaptation to an extremely harsh environment in which movement and a broad extent of rights and interests are essential to survival.' 52. Ron Shay (deceased) responded to the question of why he considered the claim area to be his country by saying 'Because I was born here and grew up around here'. Bill Shay supported this view by stating 'It's from your mother and father. Where you were born and reared up. They tell you, "that's your country''.' Language 53. Kim McCaul states that: 'In terms of their cultural identity, claimants identify as Wanmala and Tjupan. Wanmala is found frequently across the ethnohistorical record for this area. It appears to have started as an exonym (i.e. a name given to people from the desert by their western neighbours) and has now become an autonym (i.e. a name people use for themselves). The name Tjupan is less frequent, but nonetheless consistently found in the relevant literature.' 54. Tjupan and Wanmala people are linked to the Ngayuwangka/Naiawaonga people identified by Daisy Bates as being associated with the Yugunga-Nya claim area in the early 20th century: 'The limited information we have suggests that Ngayuwangka [Ngaiawonga] were Western Desert people. Their linguistic identifier, the pronoun nagyu for "I", is the same used by contemporary Tjupan and Putitjara speakers. The locations with which this label is associated are places from which the ancestors of Tjupan and other Western Desert people are known to have come. And as discussed, Bates' data indicates their social orientation to places in the east. The labelling of these people as Wanmala, then, is not only consistent with the more contemporary views on the same name, but indicates a long-standing recognition by their western neighbours of them as somehow "different".' 55. McCaul notes that in this region '[l]inguistic identity appears to be secondary to the connections of the people to the country encompassed within a given claim area, a fact that reflects what seems to have been a particularly high fluidity of identity labels in this area even by Western Desert standards.' Obligations to country derived from the Tjukurpa 56. The Yugunga-Nya people share with their neighbours to the north and east a belief in the Tjukurpa. Observance of the Tjukurpa requires the Yugunga-Nya people to maintain and protect significant sites in the Determination Area including places imbued with spiritual or cosmological significance. Such places include birth and burial places of claimants' forebears as well as important Tjukurpa sites, and law grounds of various kinds. It is common for important Tjukurpa places to be associated with age and gender prohibitions which highlight the importance accorded to transmission of cultural knowledge and ongoing respect for the traditions held by the senior generation. 57. Mount Yagahong in the claim area is one such site of enormous importance to the Yugunga-Nya people. It is associated with the Karlaya (Emu) Tjukurpa. McCaul recorded the story for Mt Yagahong from Ron Shay (deceased), with Bill, Rex [Mr Rex Shay (deceased)] and Rhonda Shay and Evelyn Gilla all present: 'From the air the hill looks like an emu lying on its nest. It is very important to us. We were born around here and lived here It's our home. Dingoes attacked the emu while on the nest. The cliffs on the side of the hill are where the flesh was torn off the emu. The emu died here. When the emu died they [the dogs] pulled fat off it. Emu fat is yellow. That made gold. Two little hills further west on the station are emu chicks, Little Bunggu and Big Bunggu. Two little chicks. They travelled to Kalgoorlie. The dogs pursued the chicks towards Kalgoorlie. Along the way they vomited up the emu fat and where they did they created gold.' 58. Audrey Shar and Evelyn Gilla both said that their mothers used to sing the song for Mt Yagahong. Audrey Shar said that Mt Yagahong is 'part of us'. For Leonie Gentle, 'that's [the hill] what it's [the native title claim] is all based on' and McCaul notes that 'in naming the claim after this key site, the claimants have made this sentiment very public'. 59. The Yugunga-Nya people treat Mt Yagahong with considerable respect and consider it their responsibility to look after the site. This is shown by the fact that they registered the site with the Department of Aboriginal Affairs (as it then was) as a sacred site and by their expressed desire to ensure that it is not impacted by mining. Bill Shay for example said that they had requested a 3km buffer zone around the hill to ensure companies could not drill sideways to get underneath it, 'because they'll go into mother's dreamtime story'. 60. McCaul notes that: 'Based on the claimants' knowledge of the tjukurpa for Mt Yagahong, their strong emotional attachment to it and their fearful respect of the spiritual dangers of the hill, it is my firm opinion that the claimants' connection to Mt Yagahong is fundamentally religious in nature and that this kind of connection to a particular site of significance is deeply traditional.' 61. Leonie Gentle, a senior member of the Yugunga-Nya claim group, demonstrates the ongoing transmission of knowledge of laws and customs by stating: 'Boys all take off together (to law time) because they have a job to do. To keep our hill alive. When we all finish they hold the reins to sing the song and start again.' 20 The State confirmed by the Joint Submissions that it considered the connection materials demonstrated to the requisite standard that: (a) the claimants and their ancestors have maintained a presence in the claim area since the acquisition of British sovereignty; (b) the claimants have continuously maintained a connection to the claim area pursuant to Western Desert traditional laws and customs; (c) the claimants hold rights and interests in the claim area pursuant to Western Desert traditional laws and customs; and (d) the claimants occupied the areas to which s 47A and s 47B of the Native Title Act are agreed to apply within the meaning of s 47A(1)(c) and s 47B(1)(c), as applicable, as set out at Schedules Three and Five of this Determination.

[70]

Authorisation of the Applicant 21 Section 61(1) of the Native Title Act permits the making of a native title determination application by a person or persons who are 'authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed'. The authorised person or persons is defined by s 61(2)(c) jointly as the 'applicant'. The Native Title Act vests the carriage of a native title determination application in the applicant. 22 Section 251B provides: Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. 23 The role of an applicant appointed under s 61(1) is therefore quite distinct from that of the claim group (although members of the applicant must be members of the claim group). The reason for appointment of a designated applicant is to assist in dealings by the claim group with third parties. It is the applicant who may authorise the making of an application for a determination of native title and make decisions relating to it. The powers granted to the applicant by the Native Title Act are such that the evidence should clearly disclose that the applicant has had the opportunity to properly consider the proposed consent determination and has properly authorised it on behalf of the claim group: see generally Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75; (2016) 241 FCR 301 at [69]-[82]; see also Butchulla People v State of Queensland [2006] FCA 1063; (2006) 154 FCR 233 at [38]-[40]; Brown v State of South Australia [2009] FCA 206 at [21]-[24]; and Lyndon on behalf of the Budina 2 Claim Group v State of Western Australia [2021] FCA 134 at [32]-[51]. 24 In the present case Mr Gaffney has addressed the convening of meetings and the authorisation process in his first affidavit. Mr Gaffney is a solicitor and acts for the Applicant. Mr Gaffney explains that he met with members of the Applicant to share information relevant to informed decision making on 8 April 2021, and to provide a presentation on PBCs. Mr Gaffney received instructions at that meeting to continue to facilitate the consent determination process and to make certain amendments to the draft PBC rule book. 25 Mr Gaffney attended a second meeting with some of the members of the Applicant on 16 April 2021 to obtain in-principle agreement to the Minute. Those Applicant members who remained present at the meeting proposed two geographically separate meetings for the purpose of seeking authorisation from the claim group, a course that had previously been undertaken for claim group meetings. Mr Gaffney also provided copies of the proposed Minute and discussed the terms, including by reference to maps. 26 The claim group met on 8 June 2021 in Perth and on 10 June 2021 in Meekatharra to consider and authorise the Applicant to consent to the Yugunga-Nya determination. Mr Gaffney arranged for notice of the meetings to be given, both by public notice and by mail to claim group members. Information sessions were held at the venues prior to the resolutions being proposed. Mr McCaul spoke at both sessions, as did other speakers, including Mr Gaffney who explained (amongst other things) the reason for the split of the determination process into Parts A and B. 27 The ballots at the meeting were conducted and managed by the Western Australian Electoral Commission (Commission). The identity of the eligible voters was confirmed by reference to a members' register and, as to potential claimants whose names were not on the register, with the assistance of Mr McCaul. At the meetings, the claimants commenced by resolving to the effect that the members of the Yugunga-Nya claim group did not have a decision-making process under their traditional law and customs. They also resolved to the effect that the agreed decision-making process relating to the proposed determination was by the conduct of the separate meetings in Perth and Meekatharra; with a secret ballot administered by the Commission; and with resolutions being carried by a simple majority of votes calculated from the total sum of votes cast at the two meetings. 28 That decision-making process was followed, and the Commission's returning officer conducted a supervised count, providing certificates of results on 15 June 2021. The resolutions as to the decision-making process were carried, as were resolutions authorising the Applicant to amend the claim group description, re-authorising the Applicant, and authorising the Applicant to agree to the resolution of the Yugunga-Nya claim by consent, provided that the consent determination was in substantially the same form as the Minute. 29 The evidence therefore establishes and the parties agree that pursuant to an agreed and adopted decision-making process, the claimants authorised the Applicant to consent to the consent determination in substantially the form of the Minute. 30 I am satisfied that the Applicant is authorised to consent to the Court making this Determination, a determination consistent with the terms of the Minute. 31 I note for completeness that the same members of the Applicant were also authorised to make a new native title claim with respect to the balance of the claim area if necessary and convenient. 32 Mr Gaffney's detailed evidence included minutes of the meetings and copy registers, and the Court is grateful for the information that was provided as to the meetings of the claimants.

[72]

Appropriate to make order 35 The exercise of the Court's discretion pursuant to s 87A of the Native Title Act imports the same principles as those which apply to the making of a consent determination under s 87: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]; and O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 at [34]. 36 Those principles are well recognised. 37 The discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365, citing Lota Warria on behalf of the Poruma and Masig Peoples v State of Queensland [2005] FCA 1117 at [7]. 38 Against that backdrop, the Native Title Act does not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met: Watson at [29]. Orders may be made when the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The requirements should not be construed so as to require evidence as if in a trial: Ward at [8]. 39 However, there must be probative material before the Court to enable it to assess whether the matters set out in s 225 of the Native Title 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. 40 As is often the case, the principal source for the Court's assessment of those matters is what is contained in the joint submissions filed on behalf of the key active parties, being in this case (as is usual) the Applicant and the State. The role and obligations of the State are vital in applications such as this: Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [17], [20]. 41 In this case, the State has through competent legal representation satisfied itself as to the cogency of the evidence upon which the Applicant relies, having undertaken an assessment process that has included close consideration of the connection material. 42 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 Determination sets out a description of the nature and extent of the native title rights and interests of the Yugunga-Nya claimants in relation to the Determination Area, and sets out the 'other interests', so as to comply with s 223 and s 225 of the Native Title Act.

[73]

Nomination of prescribed body corporate 43 Mr Gaffney explained through his first and second affidavits the process by which the Applicant has nominated the Yugunga-Nya Native Title Aboriginal Corporation (ICN 9509) to be the PBC pursuant to s 56(2)(a)(i) of the Native Title Act, and has filed documentary consent of the Yugunga-Nya Native Title Aboriginal Corporation to be the PBC pursuant to s 56(2)(a)(ii) of the Native Title Act. 44 Mr Gaffney deposed to addressing the PBC issue with the Applicant on the same occasions as are set out above with respect to the authorisation of the Applicant. The terms of the proposed rule book were discussed with the members of the Applicant present at the meetings of 8 April and 16 April 2021, and Mr Gaffney was instructed to establish the Yugunga-Nya Native Title Aboriginal Corporation on the Applicant's behalf. By way of a pre-incorporation meeting, the foundation PBC members were appointed and the necessary paperwork completed. Mr Gaffney submitted the paperwork to the Office of the Registrar of Indigenous Corporations (ORIC) as required. 45 At the 8 June 2021 and 11 June 2021 authorisation meetings in Perth and Meekatharra respectively, Mr Gaffney provided copies of the draft PBC rule book and membership application forms. Mr Gaffney said that he 'explained the proposed establishment of the PBC and the role that the PBC could have in the Yugunga-Nya people's journey to self-determination'. 46 The attendees of the meetings voted, in accordance with the agreed and adopted process, to nominate the Yugunga-Nya Native Title Aboriginal Corporation to be the Yugunga-Nya PBC under the Native Title Act and to hold the determined native title rights and interests in trust. 47 Mr Gaffney annexed to his second affidavit a copy of the Yugunga-Nya Native Title Aboriginal Corporation certificate of registration and rule book. Mr Gaffney deposed to the fact that in accordance with rule 11.6.2 of the rule book, a circular resolution to directors nominating the corporation to be the PBC was signed by the requite majority, accepting Yugunga-Nya Native Title Aboriginal Corporation's nomination to hold native title in trust for the Yugunga-Nya native title holders. 48 I accept Mr Gaffney's careful evidence. Therefore, and having regard to s 55 of the Native Title Act, at the same time as making this Determination, the Court is able to determine pursuant to s 56(2)(b) of the Native Title Act that the Yugunga-Nya Native Title Aboriginal Corporation (ICN 9509) is to hold the rights and interests from time to time comprising the native title of the Yugunga-Nya native title holders in the Determination Area in trust for the common law holders of that title.

Gilla on behalf of the Yugunga-Nya People v State of Western Australia

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Cases Cited (22)