Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia

Native title holders: section 225(a) Native Title Act 2. The rights and interests comprising the native title are held in the way described in Schedule 3 by Jabirr Jabirr/Ngumbarl, Nyul Nyul and Nimanburr people, being the people described in Schedule 2 (native title holders).

Nature and Extent of Native Title: sections 225(b) and (e) Native Title Act 3. Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests in relation to the Determination Area (being wholly an area where any extinguishment must be disregarded) is the right of possession, occupation, use and enjoyment as against the whole world. 4. The native title rights and interests are exercisable in accordance with and subject to the: (a) traditional laws and customs of the native title holders; and (b) laws of the State and the Commonwealth, including the common law. 5. Notwithstanding anything in this determination, there are no native title rights and interests in or in relation to: (a) pursuant to the Mining Act 1904 (WA), gold, silver, other precious metals, precious stones and all other minerals; or (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

Other interests: section 225(c) and 225(d) Native Title Act 6. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests). 7. The relationship between the native title rights and interests and the other interests is as follows: (a) the other interests co-exist with the native title rights and interests; (b) the determination does not affect the validity of those other interests; and (c) to the extent of any inconsistency, the native title rights and interests yield to the other interests.

Areas where extinguishment is disregarded: section 47B Native Title Act 8. Section 47B of the Native Title Act applies to disregard any prior extinguishment in respect of the whole of the Determination Area.

Definitions and interpretation 9. In this determination, unless the contrary intention appears: 'Determination Area' means the land and waters described in Schedule 1; 'land' and 'waters' respectively have the same meanings as in the Native Title Act; 'Native Title Act' means the Native Title Act 1993 (Cth) as amended as at the date of this Determination; and 'State' means the State of Western Australia. 10. In the event of an inconsistency between the written description of an area in Schedule 1 and an area depicted on the maps in Schedule 5, the written description prevails.

Determination Area (Paragraphs 1 and 9) The Determination Area, generally shown as bordered in blue on the maps at Schedule 5, comprises all that land comprising that portion of Lot 259 as shown on Deposited Plan 220696 that is wholly within the external boundary of Petroleum Exploration Permit EP 436 R1 (as defined by The Department of Mines, Industry Regulation and Safety as at 11th November 2014). 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 31st May 2019. Mining Tenements sourced from The Department of Mines, Industry Regulation and Safety as at 11th November 2014. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination Application WAD359/2013 Bindunbur (WC2015/007) as Registered in the Federal Court on the 24th March 2016. Native Title Determination Application WAD6006/1998 Rubibi Community (WCD2006/001) as Determined in the Federal Court on the 28th April 2006 Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 12th June 2019 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.

Jabirr Jabirr/Ngumbari people Jabirr Jabirr/Ngumbarl people are the living persons who are the descendants of one or more of the following ancestors, including by adoption in accordance with the traditional laws and customs of the native title holders: Gadalargan; Murrjal; Dorothy Kelly; Liddy Kenagai; Liddy Numarl ("Liddy Skinner"); Bornal; Wallai William & Mary Nelagumia; Senanus; Frank Walmandu; Sophie McKenzie; Frank Dixon (aka Frank Dinghi); Nabi; Appolonia; Dorothy (sister of Senanus); Agnes Imbarr; Deborah & Jacky; Ethyl Jacky; Alice Darada; Milare & Kelergado; Matilda; Louisa; Flora; Madeline; Fred/Friday Walmadang; and Walamandjin.

Nyul Nyul people Nyul Nyul people are the living persons who are the descendants of one or more of the following ancestors, including by adoption in accordance with the traditional laws and customs of the native title holders: Malambor (Tjanganbor); Ringarr Augustine; Alice Kotonel Wright; Bismarck; Kokanbor and Felix Nortingbor and Victor; Abraham Kongudu; Narcis Yumit, Peter Biyarr, Anselem and Patrick (brothers); Patrick Mouda; and Kandy.

Nimanburr people Nimanburr people are the living persons who are the descendants of one or more of the following ancestors, including by adoption in accordance with the traditional laws and customs of the native title holders: Mary and Din Din (sisters); Jidnyambala; and Bobby Ah Choo.

How Native Title is Held (Paragraph 2) The native title is held by the native title holders as follows: 11. Jabirr Jabirr/Ngumbarl people hold native title in that part of the Determination Area coloured yellow in Map A of Schedule 5 (in this schedule, the map) which part includes the areas Carnot Bay, Ngadalargin (Baldwin Creek), and Twin Peaks (Warnjinmirr and Djibbinj) as labelled on the map and the waters adjoining those areas; 12. Nyul Nyul people hold native title in that part of the Determination Area coloured blue in the map, which part includes the areas Beagle Bay (Ngarlan), Middle Lagoon, Chimney Rocks, Binduk, Loongabid, Weedong, Henry Well, Djilang, Djugark, Murphy Creek, Tappers Inlet, Neem, Banana Well (Burrguk) and Bungarduk as labelled on the map and the waters adjoining those areas; 13. Nimanburr people hold native title in that part of the Determination Area coloured red on the map, which part includes the areas Goodenough Bay, Fraser River, Dora Spring, Valentine Island, Madarr, La Djadarr, Lake Paterson and Disaster Bay as labelled on map and the waters adjoining those areas; 14. Jabirr Jabirr/Ngumbarl people, Nyul Nyul people and Nimanburr people hold native title in that part of the Determination Area coloured white on the map, for their respective rights and interests in accordance with traditional laws and customs; but the rights and interests of Nimanburr people do not extend west of the section of the Broome to Cape Leveque Road shown on Map A in Schedule 8. Note 1: For the avoidance of doubt, the areas coloured yellow, blue and red on the map are areas uncontroversially identified by reference to language identity and it is to be understood that Jabirr Jabirr/Ngumbarl, Nyul Nyul and Nimanburr areas respectively may extend beyond the edging of the coloured areas.

Other Interests (Paragraph 6) The nature and extent of the other interests in relation to the Determination Area are are the following as they exist as at the date of this determination:

Telstra

1. The following interests of Telstra Corporation Limited: (a) rights and interests 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); and (b) rights of access by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in, and in the vicinity of, the Determination Area, in the performance of their duties.

Petroleum interests 2. The rights and interests of the holders of the following exploration permits under the Petroleum and Geothermal Energy Resources Act 1967 (WA): (a) EP 436.

Other 3. The following rights and interests: (a) rights and interests, if any, held under valid and validated grants from the Crown pursuant to statute or in the exercise of its executive power or otherwise validly conferred by legislation (whether an Act or a Regulation); (b) rights or interests, if any, held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the: (i) Rights in Water and Irrigation Act 1914 (WA); and (ii) Aboriginal Communities Act 1979 (WA); (c) the right to access the Determination Area by: (i) an employee or agent or instrumentality of the State; (ii) an employee or agent or instrumentality of the Commonwealth; or (iii) an employee or agent or instrumentality of any local government authority; as required in the performance of his or her statutory or common law duty where such access would be permitted to private land; and (d) rights or interests comprised in or conferred under or in accordance with the Canning-Kimberley Groundwater Area, proclaimed by proclamation published in the Western Australian Government Gazette on 2 May 1997.

External boundary description The Prescribed Body Corporate Sub Areas cover all the land and waters within the external boundaries described as:

Jabirr Jabirr-Ngumbarl (Wholly Controlled) Sub Area - Portion of Lot 259 All those lands and waters comprising that portion of Lot 259 as shown on Deposited Plan 220696 that is wholly within the external boundary of Petroleum Exploration Permit EP 436 R1 (as defined by The Department of Mines, Industry Regulation and Safety as at 11th November 2014) and falls west of a line joining Longitude 122.732604˚ Est, Latitude 17.341511˚ South; and Longitude 122.733001˚ East, Latitude 17.723434˚ South.

Jabirr Jabbir-Ngumbarl AND Nimnburr (Joint Ownership) Sub Area - Portion of Lot 259 All those lands and waters commencing at the intersection of a line joining Longitude 122.732604˚ East, Latitude 17.341511˚ South; and Longitude 122.733001˚ East, Latitude 17.723434˚ South with a southern boundary of Country Downs Pastoral Lease (N050014) and extending easterly along the southern boundary of that pastoral lease to its south eastern corner; then southerly along the prolongation southerly of the southernmost eastern boundary of Country Downs Pastoral Lease (N050014) to a southern boundary of Lot 259 as shown on Deposited Plan 220696; then westerly, northerly and again westerly along boundaries of that lot to the intersection with a line joining Longitude 122.732604˚ East, Latitude 17.341511˚ South; and Longitude 122.733001˚ East, Latitude 17.723434˚ South; then northerly along that line back to the commencement point. Note: Data Reference and source • Prescribed Body Corporate Sub Area boundaries compiled by National Native Title Tribunal based on information or instructions provided by the Kimberley Land Council (KLC). • Native Title Determination WAD359/2013 Bindunbur (WCD2018/005) as determined by the Federal Court 2 May 2018. • Cadastre data sourced from Landgate (WA) February 2019. • Petroleum Tenements sourced from The Department of Mines, Industry Regulation and Safety as at 11 November 2014. Reference datum Geographical coordinates have been provide by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDAAAA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time. Use of Coordinates Where coordinates are used with the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of 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. Prepared by Geospatial Services, National Native Title Tribunal (30 July 2019) Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 In the orders of the Court made on 2 May 2018 by North J in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 854, one of two areas which were not then included in the Bindunbur determination area, the proceeding being adjourned in relation to it, was as follows: all that land comprising that portion of Lot 259 as shown on Deposited Plan 220696 that is wholly within the external boundary of Petroleum Exploration Permit EP 436 R1 (as defined by The Department of Mines, Industry Regulation and Safety as at 11 November 2014);… (Present Determination Area) 2 The Present Determination Area is located on the Dampier Peninsula north of Broome. 3 The Present Determination Area is now the subject of an application for a determination of native title in terms specified in a Minute of Proposed Orders. There is also before the Court a document entitled "Joint written submissions in relation to the Minute of Proposed Orders and Determination" prepared by the applicant and the first respondent, the State of Western Australia, and dated 21 October 2019. 4 The position of the applicant and the State is that a determination of native title in respect of the Present Determination Area should be made on the basis of the findings made by North J in relation to the Bindunbur native title determination application (WAD359/2013 at the time of North J's decision and now known as WAD25/2019). 5 As submitted by the applicant and the State, the Bindunbur determination made on 2 May 2018 followed a lengthy hearing involving three native title claims: Bindunbur, Jabirr Jabirr/Ngumbarl and Goolarabooloo. The Bindunbur claim covered significant parts of the country of Nimanburr, Nyul Nyul and Jabirr Jabirr/Ngumbarl people, and was brought on behalf of all of those people. The Jabirr Jabirr/Ngumbarl claim abutted the Bindunbur claim to the southwest, was made only on behalf of Jabirr Jabirr/Ngumbarl people, and was accepted by all of the Bindunbur claimants as being exclusively Jabirr Jabirr/Ngumbarl country. The Goolarabooloo claim overlapped a large part of the Jabirr Jabirr/Ngumbarl claim and was brought on behalf of a separate family who asserted native title rights and interests in addition to those held by Jabirr Jabirr/Ngumbarl people. 6 The hearing ultimately ran for a period of 21 months, with evidence and submissions in relation to connection and extinguishment issues being heard on the claim areas and in Broome and in Perth over a total of 44 hearing days. 7 Justice North published reasons in relation to all matters still in issue on 23 November 2017: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367. The Goolarabooloo native title claim was unsuccessful on all of its bases of claim. The parties were directed to attempt to agree certain matters referred to in the judgment, and to file and serve proposed orders and a draft determination reflecting his Honour's reasons for judgment. 8 On 12 February 2018, the applicant and the State submitted, the State drew the Court's and the parties' attention to the judgment in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl No 2) [2018] FCAFC 8; 258 FCR 521 and the issues in the then-reserved appeal before the Full Federal Court of Australia which was decided on 16 March 2018 in Attorney­General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta No 2) [2018] FCAFC 35; 260 FCR 247. The first of these matters is referred to the judgment of North J on 8 March 2018 in Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275, at [6], as follows: Following delivery of the reasons, the Full Court handed down judgment in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8. At the hearing of argument concerning these additional issues the State flagged the need for the application of that judgment to the terms of the determination in this case. That matter is left for the consideration of the parties. 9 In particular, the State identified what I have identified above as the Present Determination Area as affected by one or more mineral or petroleum exploration tenements when the relevant applications were made. Applying the Tjiwarl and (later) Ngurra Kayanta Full Court decisions, which respectively held that a statutory exploration licence and petroleum exploration permit were each a "lease" for the purpose of s 47B(1)(b)(i) of the Native Title Act 1993 (Cth), the applicant was not able to claim the benefit of s 47B to disregard prior extinguishment of native title rights and interests in relation to the Present Determination Area. By the order made on 2 May 2018, extracted at [1] above, the Present Determination Area was not included and the proceeding was adjourned in relation to it. 10 On 20 December 2018, the Full Court handed down its decision Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; 265 FCR 68 allowing the appeals of the Bindunbur and Jabirr Jabirr/Ngumbarl applicants and dismissing the appeal of the Goolarabooloo applicant. The Full Court decision is now the subject of appeals by the State and the Commonwealth in the High Court. The applicant and the State are agreed that none of the matters at issue in those appeals before the High Court are relevant to the resolution of the present Determination Area. 11 On 17 April 2019, the High Court of Australia allowed the appeals of the native title parties in Tjungarrayi v Western Australia [2019] HCA 12; 366 ALR 603. As a result of the decision, the orders of the Full Court of this Court in the Tjiwarl and Ngurra Kayanta matters were set aside. Accordingly, the applicant and the State are in agreement that in light of the High Court decision in Tjiwarl the present applicant is able to claim the benefit of s 47B in relation to the remainder of the claim area without the need for the filing of a further claim upon surrender of the petroleum exploration permit affecting the remaining portion of the claim area. 12 As is well known, s 94A of the Native Title Act provides that an order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in s 225. That section provides as follows: 225 Determination of native title 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 or 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. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 13 The determination in respect of the Present Determination Area sets out each of these matters. 14 The joint submissions to which I have referred state that the proposed orders and proposed determination are intended to fully and finally resolve native title issues in relation to the remainder of the Bindunbur claim area by the making of a determination of native title. 15 The determination of the prescribed bodies corporate was also addressed in the proposed orders, with the Gogolanyngor Aboriginal Corporation ICN 8947 and Nimanburr Aboriginal Corporation ICN 8948 nominated to be the prescribed bodies corporate for the Determination Area. Orders for the prescribed bodies corporate for the Bindunbur determination area were made by me on 21 August 2019, and the applicant in the State submit that the areas where each prescribed body corporate will hold native title are consistent with those orders. To ensure consistency with these orders a map and technical description of the relevant prescribed bodies corporate areas to be determined were attached to the proposed orders. 16 As the terms of the determination are derived from the terms of the Bindunbur determination and the proposed determination is not a new native title claim, the applicant and the State submitted that it was also appropriate that the determination remain consistent with the orders of North J. I agree that this is the appropriate approach to a determination of native title in the remainder of the Bindunbur claim area as it is the subject of all of the findings made by North J in Manado, which resulted in the orders made on 2 May 2018. 17 The joint submissions stated that the applicant and the State are in agreement that the Minute of Proposed Orders are within the Court's power to make, appropriately reflect the findings made by North J which resulted in the orders being made on 2 May 2018 and should be made so as to resolve the remainder of the Bindunbur native title claim. 18 I accept the joint submissions made on behalf of the applicant and the State. In short, any doubt as to whether native title subsisted in the Present Determination Area in light of a petroleum exploration tenement when the relevant applications were made, or view that it did not so subsist in those circumstances, has fallen away. The result is that the applicant and the State now agree that the Present Determination Area should no longer be excluded from the native title determination made by North J, as explained above. I accept that in the Bindunbur proceeding, questions of the existence and nature of native title rights and interests, extinguishment of those rights and interests, the presence or absence of other interests, and the appropriate terms of a determination, were the subject of comprehensive pleadings, evidence, argument and reasons. The findings made by North J applied to the whole of the Bindunbur claim area, which includes the present area which, as I have explained, was temporarily excluded from the Bindunbur proceedings at the time of determination. 19 As to the two proposed prescribed bodies corporate, there is before me: (a) a consent by Nimanburr Aboriginal Corporation to its nomination as the prescribed body corporate and to be the trustee of the native title rights and interests for the Nimanburr common law holders, executed by that corporation on 7 June 2019 following a nomination by a representative of the Nimanburr common law holders dated 5 June 2019; and (b) a consent by the Gogolanyngor Aboriginal Corporation to its nomination as the prescribed body corporate and to be the trustee of the native title rights and interests for the Jabbir Jabbir/Ngumbarl common law holders, executed by that corporation on 7 June 2019 following a nomination of that corporation by a representative of the Jabbir Jabbir/Ngumbarl common law holders dated 5 June 2019. 20 I have also taken as read and relied on the affidavit affirmed on 4 July 2019 by Mr Alexander Romano, legal officer employed at the Kimberly Land Council, in support of those two corporations as the prescribed bodies corporate. Mr Romano gives evidence, which I accept, in relation to family group meetings with Bindunbur native title holders and two meetings to authorise the nomination of prescribed bodies corporate for the determinations. 21 I have caused to be made specific enquiries as to the position of the other parties to the application. Mr Romano of the Kimberley Land Council informed the Court that all other parties in this matter were provided with a copy of the Minute of Proposed Orders and served with electronic copies on 4 October 2019, and were also served with a copy of the joint submissions of the applicant and the State. No indication has been received by the Court that any of the other parties to the application wish to be heard in relation to the Minute of Proposed Orders. 22 In these circumstances and for these reasons, I will make orders as follows: 1. In relation to the (Present) Determination Area, there be a determination of native title in WAD 25 of 2019 in the terms provided for in Attachment A. 2. Gogolanyngor Aboriginal Corporation ICN 8947 shall hold the determined native title in trust for the Jabirr Jabirr/Ngumbarl native title holders pursuant to s 56(2)(b) of the Native Title Act. 3. Nimanburr Aboriginal Corporation ICN 8948 shall hold the determined native title in trust for the Nimanburr native title holders pursuant to s 56(2)(b) of the Native Title Act. 4. The native title be held in trust by the prescribed bodies corporate referred to in Orders 2 and 3 in the areas identified in the map and technical description annexed to these orders at Attachment B. 5. There be no order as to costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

SCHEDULE OF PARTIES WAD 25 of 2019 Applicants Fourth Applicant: BETTY DIXON Fifth Applicant: WALTER KOSTER Sixth Applicant: PHILLIP MCCARTHY Respondents Fourth Respondent: SHEFFIELD RESOURCES LIMITED Fifth Respondent: JAMIE PETER BURTON Sixth Respondent: KURT ELEZOVICH Seventh Respondent: J D ARROW Eighth Respondent: S J ARROW Ninth Respondent: YEEDA STATION PTY LTD Tenth Respondent: SHIRE OF BROOME