Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia

Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia - [2020] FCA 1416 - FCA 2020 case summary — Zoe

[10]

THE COURT NOTES THAT: A. This application ("Yindjibarndi Variation Application") is made pursuant to sections 13(1)(b) and 61(1) of the Native Title Act 1993 (Cth). It seeks a variation to the approved determination of native title made by the orders of the Court (Moore, North and Mansfield JJ) in proceeding WAD 114 of 2005 on 27 August 2007 (the "Moses determination"). B. The Yindjibarndi Variation Application seeks to vary the Moses determination by: (1) recognising a right of exclusive possession held by the Yindjibarndi People over Reserve 40617 and 6 areas (or parts thereof) of unallocated Crown land; and (2) addressing an ambiguity as to whether Reserve 12260 is within the determination area by providing that no part of Reserve 12260 is covered by the determination (consistent with the written description of the external boundary of the determination area included in the original determination). C. The variation is sought following: (1) findings of fact made by the Court (Rares J) on 20 July 2017 in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 to the effect that, under their traditional laws and customs, the Yindjibarndi people hold native title rights of exclusive possession: and the determination made by the Court (Rares J) on 13 November 2017 in Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v State of Western Australia (No. 2) [2017] FCA 1299; and (2) identification of the determination boundary issue with respect to Reserve 12260 by the National Native Title Tribunal in March 2017. D. The Applicant in the Yindjibarndi Variation Application, the State of Western Australia and the other Respondents to the Yindjibarndi Variation Application ("the parties") have reached an agreement as to the terms of the orders, and including a varied determination of native title, to be made in relation to the Yindjibarndi Variation Application. E. The parties filed in the Court a Minute of Proposed Orders and Varied Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Yindjibarndi Variation Application that they signed on 11 September 2020. BEING SATISFIED that orders in the terms sought by the parties are within the power of the Court and, it appearing to the Court appropriate to do so pursuant to sections 13(5) and 87A(4) of the Native Title Act, and by the consent of the parties:

[11]

The substituted determination effected by Order 2 made by the Court in proceeding WAD 114 of 2005 on 27 August 2007 be varied as follows: (a) In paragraph 4, first line, replace "The native title rights and interests:" with: "The native title rights and interests in the Ngarluma Native Title Area (including, for the avoidance of doubt, that part of the Yindjibarndi Native Title Area which overlaps the Ngarluma Native Title Area):" (b) Insert new paragraphs 4A and 4B as follows: "4A The native title rights and interests in Yindjibarndi Native Title Area are subject to and exercisable in accordance with the traditional laws and customs of the Yindjibarndi People." "4B The native title rights and interests in those parts of the Yindjibarndi Native Title Area which do not either form part of the Yindjibarndi Exclusive Possession Area or overlap with the Ngarluma Native Title Area do not confer possession, occupation, use and enjoyment of that land or waters on the Yindjibarndi People to the exclusion of all others." (c) In paragraph 5, delete the words "non-exclusive" in the first line; (d) In paragraph 7, in the first line add the words "4A, 4B," after the words "paragraphs 4,"; (e) In paragraph 7, in the second and third lines, replace "in relation to the Yindjibarndi Native Title Area" with: "in relation to those parts of the Yindjibarndi Native Title Area which do not form part of the Yindjibarndi Exclusive Possession Area" (f) Insert new paragraph 7A as follows: "Subject to paragraphs 13 - 15 inclusive, the Yindjibarndi People have the right to the possession, occupation, use and enjoyment of the Yindjibarndi Exclusive Possession Area to the exclusion of all others." (g) Insert paragraph 14A as follows: "14A. The native title rights in paragraph 7A 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) as at the date of this determination." (h) In paragraph 15, delete the words "non-exclusive" in the first line; (i) In paragraph 17, delete the words "non-exclusive" in the first line; (j) In the definition of "Yindjibarndi Total Extinguishment Area" in the First Schedule at (8) ("Reserves containing public works), delete the reference to "12260". (k) In the First Schedule add the following definition after the definition of the "Yindjibarndi Area": "'Yindjibarndi Exclusive Possession Area' means the following land and waters: Area Location / Tenure No. But not including the following areas: 85 Reserve 40617 82 West of Mallina Not part which falls within the Ngarluma Area 99 South of Mt Welcome Not part which falls within the Ngarluma Area 110A Coolawanyah 110B Coolawanyah 110C South of Coolawanyah Not part which falls within the Hamersley Ranges Area 114 East of Res 30071 Not part which falls within the Ngarluma Area

[15]

Existence of native title 2. Native title does not exist in relation to the following parts of the Determination Area: (a) the 'Burrup' (as described and depicted in the First Schedule); (b) 'Offshore Waters' (as described and depicted in the First Schedule); (c) 'Depuch Island' (as described and depicted in the First Schedule); (d) the 'Hamersley Ranges Area' (as described and depicted in the First Schedule); (e) the 'Total Extinguishment Area' (as described and depicted in the First Schedule). 3. Subject to paragraph 2 above, native title rights and interests exist in the following parts of the Determination Area: (a) 'Ngarluma Native Title Area' (as defined in the First Schedule); and (b) 'Yindjibarndi Native Title Area' (as defined in the First Schedule), including the 'Section 47A Area' and the 'Section 47B Area' (as described in the Fifth Schedule) in respect of which extinguishment is disregarded in accordance with sections 47A and 47B of the Native Title Act 1993 (Cth). 4. The native title rights and interests in the Ngarluma Native Title Area (including, for the avoidance of doubt, that part of the Yindjibarndi Native Title Area which overlaps the Ngarluma Native Title Area): (a) do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and (b) are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes). 4A The native title rights and interests in Yindjibarndi Native Title Area are subject to and exercisable in accordance with the traditional laws and customs of the Yindjibarndi People. 4B The native title rights and interests in those parts of the Yindjibarndi Native Title Area which do not either form part of the Yindjibarndi Exclusive Possession Area or overlap the Ngarluma Native Title Area do not confer possession, occupation, use and enjoyment of that land or waters on the Yindjibarndi People to the exclusion of all others.

[17]

Native title rights and interests 6. Subject to paragraphs 4 and 8 to 15 inclusive, the Ngarluma People have the following non-exclusive native title rights and interests in relation to the Ngarluma Native Title Area: (a) A right to access (including to enter, to travel over and remain); (b) A right to engage in ritual and ceremony (including to carry out and participate in initiation practices); (c) A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter; (d) A right to fish from the waters; (e) A right to collect and forage for bush medicine; (f) A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan); (g) A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey); (h) A right to take black, yellow, white and red ochre; (i) A right to take water for drinking and domestic use; (j) A right to cook on the land including light a fire for this purpose; (k) A right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others). 7. Subject to paragraphs 4, 4A, 4B and 8 to 15 inclusive, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to those parts of the Yindjibarndi Native Title Area which do not form part of the Yindjibarndi Exclusive Possession Area : (a) A right to access (including to enter, to travel over and remain); (b) A right to engage in ritual and ceremony (including to carry out and participate in initiation practices); (c) A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter; (d) A right to fish from the waters; (e) A right to collect and forage for bush medicine; (f) A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle); (g) A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey); (h) A right to take black, yellow, white and red ochre; (i) A right to take water for drinking and domestic use; (j) A right to cook on the land including light a fire for this purpose; (k) A right to protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others). 7A Subject to paragraphs 13 to 15 inclusive, the Yindjibarndi People have the right to the possession, occupation, use and enjoyment of the Yindjibarndi Exclusive Possession Area to the exclusion of all others. 8. The non-exclusive native title rights and interests in relation to the 'Inter-tidal Zone' (defined in the First Schedule) do not include the rights in subparagraphs (b), (c), (e), (g), (h), (i), (j) or (k) of paragraph 6 above. 9. The non-exclusive native title rights and interests in relation to the 'Offshore Islands' (defined in the First Schedule) do not include any of the native title rights and interests in subparagraphs (a)-(j) of paragraph 6 above. 10. The non-exclusive native title rights and interests in relation to the 'Cemetery Reserve Area' (defined in the First Schedule) do not include: (a) the right to engage in ritual and ceremony referred to in subparagraph (b) of paragraph 6 above, save to the extent it relates to ritual and ceremony for the dead; or (b) any of the rights in subparagraphs (c), (d), (h), (j) and (k) of paragraph 6 above. 11. The non-exclusive native title rights and interests in relation to the 'Telstra Area' (defined in the First Schedule) do not include: (a) a right to remain (part of right (a) in paragraphs 6 and 7 above); and (b) right (c) in paragraphs 6 and 7 above. 12. The non-exclusive native title rights and interests in relation to the 'Telstra Cable Routes' (defined in the First Schedule) do not include right (h) in paragraphs 6 and 7 above, to the extent that the right involves digging beneath the surface of that land.

[20]

FIRST SCHEDULE - DEFINITIONS 'Burrup' means the land and waters shaded in green on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Cemetery Reserve Area' means the land and waters the subject of reserves 5698, 30904 and 41146, as shaded in orange on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Depuch Island' means Depuch Island and Sandy Island, West Moore Island and East Moore Island landward of the low water mark, as shaded in dark green on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Determination Area' means the land and waters described in Attachment 1 to this First Schedule, being the land and waters bordered in light blue on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Hamersley Ranges Area' means the land and waters shaded light brown on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Inter-tidal Zone' means that part of the Ngarluma Native Title Area which is between mean high water mark and mean low water mark, as shaded in orange on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Ngarluma Area' means the land and waters bordered and hatched in dark blue on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Ngarluma Native Title Area' means the Ngarluma Area but not including the Ngarluma Total Extinguishment Area. 'Ngarluma Total Extinguishment Area' means the land and waters the subject of the following interests: (1) Certificates of Title CT Number Parcel Identification 3/239 Roebourne Town Lot 124 10/118 Roebourne Town Lot 174 11/48 Roebourne Town Lot 130 11/60 Roebourne Town Lot 166 11/91 Cossack Town Lot 164 14/174 Roebourne Town Lot 150 15/341 Roebourne Suburban Lot 3 15/345 Cossack Town Lot 165 18/329 North Location 39 18/330 North Location 38 18/331 North Location 37 20/36 Roebourne Town Lot 271 21/329A Cossack Lot 151 31/373 Cossack Town Lot 170 33/39 Cossack Town Lot 160 35/14 Roebourne Town Lot 152 35/15 Roebourne Town Lot 153 35/16 Roebourne Town Lot 154 35/17 Roebourne Town Lot 155 35/18 Roebourne Town Lot 156 35/177 Cossack Town Lot 135 35/178 Cossack Town Lot 136 35/283 Roebourne Town Lot 57 35/284 Roebourne Town Lot 58 38/44A North Location 6 39/380A Roebourne Town Lot 190 79/189A Roebourne Town Lots 144 and 145 124/188A Roebourne Town Lot 114 186/197 Roebourne Town Lots 380 and 381 136/2 Roebourne Town Lots 174 and 175 156/22 Cossack Town Lot 116 193/174 Balla Balla Town Lot 45 221/143 Lot 1 on Deposited Plan 528 228/9 Roebourne Lot 385 265/56 Cossack Town Lot 152 267/54 Cossack Town Lot 424 319/143 Roebourne Lot 115 354/50 Cossack Town Lot 176 390/172A Roebourne Lot 394 405/11A Roebourne Lot 396 416/2 Roebourne Suburban Lot 4 416/3 Roebourne Suburban Lot 5 421/143 Balla Balla Lot 73 424/127 Balla Balla Lot 68 445/76 Roebourne Town Lots 134, 135, 146 and 147 451/184A Roebourne Town Lots 99, 100, 101, 102, 103, 106, 107 and 108 451/185A North Location 4 451/186A North Location 9 451/187A North Location 54 451/190A North Location 72 451/192A North Location 23 451/193A North Location 70 451/194A North Location 26 456/131 Roebourne Town Lot 1 464/35A Portion Roebourne Town Lot 53 466/103A Roebourne Town Lot 21 475/37A Lot 1 on Diagram 41164 475/38A Lot 2 on Diagram 41164 486/44A Portion Roebourne Lots 49 and 50 481/143 Cossack Town Lot 153 488/164 North Location 34 506/197A Lot 13 on Diagram 41455 508/149A Roebourne Lot 438 508/165A Roebourne Lot 436 523/114 Cossack Town Lot 121 541/78A Lot 2 on Plan 528 541/82A Lot 4 on Plan 528 550/87 Cossack Town Lot 145 570/65 Roebourne Town Lots 266, 267, 268, 269, 270, 272, 273, 274, 275, 276, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288 and 289 583/51 Roebourne Townsite 149 610/193A Roebourne Lot 471 762/156 Roebourne Town Lot 123 839/108 De Witt Location 11 (but not insofar as it covers the Section 47B Area) 1002/353 Cossack Town Lot 125 1020/864 Roebourne Town Lots 128, 145, 151, 265 and 271 1022/225 De Witt Location 14 1024/426 Part Lots 5 and 7 on Plan 528 1031/75 North Location 71 1031/76 Balla Balla Town Lots 43 and 44 1040/615 Peawah Location 6 1046/512 Roebourne Town Lot 27 1093/705 Roebourne Suburban Lot 16 (but not insofar as it covers the Section 47A Area) 1093/889 De Witt Location 15, Roebourne Suburban Lot 9, North Location 36 (part) and Roebourne Suburban Lot 16 (part) (but not insofar as it covers the Section 47B Area) 1107/653 Roebourne Lots 162 and 163 1113/927 Cossack Town Lot 124 1130/580 Cossack Town Lot 141 1156/380 North Location 3 1160/901 Roebourne Lot 19 1188/398 Roebourne Lot 105 1188/526 Roebourne Lot 176 1188/965 Roebourne Lot 169 1200/267 Roebourne Lot 54 and Portion Roebourne Town Lot 53 1203/514 Roebourne Lot 121 1203/515 Roebourne Lot 28 1222/113 Roebourne Part Lot 18, Lots 116, 117 1225/674 Roebourne Town Lot 29 1238/195 Roebourne Lot 119 1238/229 Roebourne Lot 6 1238/230 Roebourne Lot 10 1238/231 Roebourne Lot 259 1238/595 Roebourne Lot 127 1245/348 De Witt Location 12 1247/338 Roebourne Lot 188, 189 1249/383 Lot 11 on Plan 528 1252/43 Roebourne Lots 399, 400 1259/853 Roebourne Lot 416 1266/926 Balla Balla Lot 97 1316/148 Roebourne Lots 428, 437, 439, 440, 441, 442, 443, 445 1316/347 Roebourne Lot 196 1318/889 Roebourne Lot 434 1320/11 Roebourne Lot 59 1320/12 Roebourne Lot 60 1320/17 Roebourne Lot 146 1322/526 Lot 1 on Diagram 42823 1322/0527 Lot 2 on diagram 42823 1322/528 Roebourne Lot 397 1323/681 Roebourne Lot 111 1328/400 Roebourne Lot 435 1329/912 Roebourne Lot 421 1329/913 Roebourne Lot 422 1335/179 Portion Roebourne Lot 9 1336/708 Roebourne Lot 428 1346/865 Roebourne Lot 113 1348/518 Roebourne Town Lot 167 1349/725 Roebourne Lot 194 1349/726 Roebourne Lot 195 1352/369 Roebourne Lot 188 1363/796 Cossack Town Lot 170 1363/797 Balla Balla Town Lots 65, 66 & 67 1363/798 Roebourne Town Lot 168 1364/592 Roebourne Lot 415 1364/593 Roebourne Lot 479 1364/594 Roebourne Lot 484 1364/595 Roebourne Lot 485 1364/596 Roebourne Lot 508 1364/597 Roebourne Lot 509 1364/598 Roebourne Lot 515 1364/599 Roebourne Lot 521 1364/600 Roebourne Lot 527 1365/847 North Location 42, 43, 51, 36 (part), 55 (part), 56 (part) & 65 (part) 1368/185 Roebourne Lot 492 1368/186 Roebourne Lot 496 1368/187 Roebourne Lot 499 1369/444 Roebourne Lot 519 1369/461 Roebourne Lot 522 1376/584 Roebourne Lot 440 1376/585 Roebourne Lot 441 1381/810 De Witt Location 17 1381/811 De Witt Location 70 & 71 1382/158 Roebourne Lot 413 1382/159 Roebourne Lot 401 1382/160 Roebourne Lot 412 1382/161 Roebourne Lot 408 1382/162 Roebourne Lot 403 1384/491 Karratha Lot 1143 1387/780 Roebourne Lot 143 1387/781 Roebourne Lot 482 1387/782 Roebourne Lot 477 1387/783 Roebourne Lot 483 1387/784 Roebourne Lot 497 1387/785 Roebourne Lot 498 1390/918 Lot 3 on Plan 528 1390/952 North Location 47 1390/953 North Location 2 1391/354 Roebourne Lot 474 1396/5 Roebourne Lot 545 1397/994 Lot 1 of North Location 67 1397/995 North Location 67 1401/992 De Witt Location 83 1405/827 Roebourne Lot 443 1435/582 North Location 16 1437/701 Roebourne Town Lot 30 1442/176 North Locations 10 & 11 1443/601 Karratha Lot 1485 1445/635 Roebourne Lot 534 1453/191 Roebourne Lot 669 1453/192 Roebourne Lot 667 1453/193 Roebourne Lot 665 1453/194 Roebourne Lot 661 1453/195 Roebourne Lot 660 1453/196 Roebourne Lot 658 1453/197 Roebourne Lot 651 1453/198 Roebourne Lot 645 1453/199 Roebourne Lot 642 1453/200 Roebourne Lot 640 1455/603 Roebourne Lot 630 1455/604 Roebourne Lot 629 1462/999 North Location 32 1484/784 Part of Lot 15 on Diagram 42138 1490/126 Roebourne Lot 140, 141, 142 1500/542 Roebourne Town Lot 14 1500/543 Roebourne Town Lot 16 1517/780 Lot 1 on Diagram 53119 1517/781 Lot 2 on Diagram 53119 1518/440 Roebourne Town Lot 31 1519/118 Roebourne Lot 571 1519/119 Roebourne Lot 574 1519/120 Roebourne Lot 575 1519/121 Roebourne Lot 576 1519/122 Roebourne Lot 577 1519/123 Roebourne Lot 578 1519/125 Roebourne Lot 581 1519/126 Roebourne Lot 582 1519/127 Roebourne Lot 583 1519/128 Roebourne Lot 584 1519/129 Roebourne Lot 585 1519/130 Roebourne Lot 586 1519/131 Roebourne Lot 587 1519/132 Roebourne Lot 588 1519/133 Roebourne Lot 589 1519/134 Roebourne Lot 590 1519/135 Roebourne Lot 591 1519/136 Roebourne Lot 592 1519/137 Roebourne Lot 593 1519/138 Roebourne Lot 594 1519/139 Roebourne Lot 596 1519/140 Roebourne Lot 597 1519/141 Roebourne Lot 598 1519/142 Roebourne Lot 599 1519/143 Roebourne Lot 602 1519/144 Roebourne Lot 603 1519/145 Roebourne Lot 604 1519/146 Roebourne Lot 605 1519/147 Roebourne Lot 606 1519/148 Roebourne Lot 607 1519/149 Roebourne Lot 608 1519/150 Roebourne Lot 609 1519/151 Roebourne Lot 610 1519/152 Roebourne Lot 612 1519/153 Roebourne Lot 613 1519/154 Roebourne Lot 614 1519/155 Roebourne Lot 615 1519/156 Roebourne Lot 616 1519/157 Roebourne Lot 617 1519/158 Roebourne Lot 618 1519/159 Roebourne Lot 619 1519/160 Roebourne Lot 621 1519/161 Roebourne Lot 622 1519/162 Roebourne Lot 623 1519/163 Roebourne Lot 624 1519/164 Roebourne Lot 625 1519/165 Roebourne Lot 626 1519/166 Roebourne Lot 627 1519/167 Roebourne Lot 688 1519/168 Roebourne Lot 570 1519/169 Roebourne Lot 569 1519/994 Cossack Lot 117 1523/780 Roebourne Lot 649 1523/781 Roebourne Lot 650 1525/178 Roebourne Lot 407 1526/90 Roebourne Lot 400 1526/946 North Location 48 and portion North Location 64 1527/151 Roebourne Lot 546 1531/382 Roebourne Lot 489 1531/439 Roebourne Lot 480 1532/262 Roebourne Lot 33 1546/495 Roebourne Town Lot 112 1550/99 Roebourne Town Lot 23 1563/652 Roebourne Lot 487 1564/269 Roebourne Lot 644 1566/568 Roebourne Lot 659 1566/569 Roebourne Lot 704 1566/570 Roebourne Lot 705 1567/519 Karratha Lot 1996 1567/578 Roebourne Lot 662 1581/605 Roebourne Lot 409 1581/606 Roebourne Lot 410 1581/607 Roebourne Lot 411 1585/796 Roebourne Lot 531 1590/377 Roebourne Lot 631 1590/378 Roebourne Lot 524 1590/379 Roebourne Lot 420 1598/311 Roebourne Lot 32 1598/312 Roebourne Lot 34 1599/430 Roebourne Lot 507 1602/758 Roebourne Lot 494 1604/987 Roebourne Lot 513 1608/922 Roebourne Lot 643 1610/761 Roebourne Town Lot 264 1613/0306 Roebourne Lot 634 1617/564 Roebourne Lot 635 1617/565 Roebourne Lot 637 1619/336 Roebourne Lot 517 1624/832 Roebourne Lot 469 1624/833 Roebourne Town Lot 193 1624/0834 Roebourne Lot 552 1626/166 Roebourne Lot 264 1628/574 Roebourne Lot 512 1632/643 Roebourne Lot 675 1634/0234 Roebourne Lot 652 1634/0235 Roebourne Lot 653 1642/0893 Roebourne Lot 488 1644/525 Roebourne Lot 126 1644/526 Cossack Town Lot 167 1646/278 Roebourne Lot 495 1654/988 Roebourne Lot 525 1654/989 Roebourne Lot 526 1659/66 Roebourne Lot 429 1659/67 Roebourne Lot 486 1659/68 Roebourne Lot 490 1659/69 Roebourne Lot 503 1659/71 Roebourne Lot 514 1659/72 Roebourne Lot 516 1659/73 Roebourne Lot 523 1659/74 Roebourne Lot 657 1659/75 Roebourne Lot 668 1659/869 Roebourne Suburban Lot 1 (Part Lot 12 on Plan 528) 1667/5 Roebourne Lot 417 1677/989 Roebourne Lot 424 1683/785 Cossack Town Lot 149 1683/787 Cossack Town Lot 150 1685/729 Roebourne Lot 423 1685/866 Roebourne Lot 418 1687/59 Roebourne Lot 520 1691/19 Roebourne Lot 405 1692/99 Roebourne Lot 454 1694/689 Roebourne Lot 504 1694/857 Lot 100 on Diagram 67860 1694/858 Portion Roebourne Lot 448 1697/31 Roebourne Lot 753 1705/771 Roebourne Lot 424 1708/691 Roebourne Lot 426 1713/478 Roebourne Lot 459 1713/554 Roebourne Lot 461 1714/861 Roebourne Lot 666 1719/18 Roebourne Lot 547 1722/82 Roebourne Lot 427 1723/39 Roebourne Lot 752 1724/734 Roebourne Lot 432 1726/177 Roebourne Lot 452 1728/883 Roebourne Lot 431 1728/884 Roebourne Lot 437 1738/703 Roebourne Lot 110 1738/766 Roebourne Lot 120 1740/598 Roebourne Lot 656 1748/823 Lot 1 on Diagram 70971 1751/134 Roebourne Lot 447 1751/0412 Roebourne Lot 512 1751/413 Roebourne Lot 749 1753/164 Roebourne Lot 151 1773/240 Roebourne Lot 632 1773/241 Roebourne Lot 636 1773/242 Roebourne Lot 648 1773/243 Roebourne Lot 663 1773/867 Roebourne Lot 638 1778/353 Lot 6 on Plan 528 1783/174 Roebourne Lot 466 1785/795 Lot 12 on Diagram 72573 1785/796 Lot 11 on Diagram 72573 1789/434 Lot 14 on Diagram 41455 1792/87 Karratha Lot 4202 1792/687 Lot 12 on Diagram 72573 1795/967 Roebourne Lot 655 1800/365 Roebourne Lot 501 1802/855 Roebourne Lot 548 1810/175 Roebourne Lot 755 1812/355 Roebourne Lot 564 1814/928 Roebourne Lot 475 1817/551 Roebourne Lot 558 1821/191 Roebourne Lot 419 1827/408 Roebourne Lot 147 1827/409 Roebourne Lot 148 1837/802 Roebourne Lot 529 1838/757 Roebourne Lot 530 1845/991 Roebourne Lot 491 1845/992 Roebourne Lot 481 1849/424 Roebourne Lot 476 1857/926 Roebourne Lot 701 1861/571 Lot 1 on Diagram 41696 1861/572 Lot 2 on Diagram 41696 1861/573 Lot 3 on Diagram 41696 1866/336 Roebourne Lot 478 1872/17 Lot 100 on Diagram 77649 1881/279 Lot 710 on Diagram 78197 1881/325 Roebourne Lot 518 1892/697 Lot 1 on Diagram 78763 1903/131 Roebourne Lot 533 1940/136 Roebourne Lot 464 1940/559 Roebourne Lot 664 1946/77 Lot 1 on Diagram 80812 1948/185 Lot 17 on Diagram 52876 1958/220 Roebourne Town Lot 25 1972/692 Peawah Location 58 1977/98 De Witt Location 153 1986/554 Roebourne Lot 414 1991/48 Karratha Lot 1090 1991/423 Roebourne Lot 537 1994/185 Roebourne Lot 678 2009/631 Roebourne Town Lot 49 2023/664 Roebourne Lot 563 2032/535 Karratha Lot 2637 2052/356 Lot 10 on Diagram 89258 2073/140 Roebourne Lot 460 2073/141 Roebourne Lot 540 2081/501 Roebourne Lot 511 2084/921 Roebourne Lot 500 0029/1996 CL

[26]

(7) Special leases: 3116/00798 (but not insofar as it covers the Section 47B Area) 3116/04629 3116/07616 3116/10363 3116/01173 3116/04659 3116/07842 3116/10364 3116/01310 3116/04826 3116/07936 3116/10424 3116/01815 3116/04837 3116/08193 3116/10640 3116/02482 3116/04866 3116/08252 3116/10702 3116/03211 3116/04873 3116/08303 3116/10707 3116/03354 3116/04878 3116/08543 3116/10865 3116/03469 3116/04896 3116/08861 3116/10889 3116/03470 (but not insofar as it covers the Section 47B Area) 3116/04907 3116/08870 3116/11041 3116/03471 3116/04976 3116/09123 3116/11084 3116/03725 3116/04977 3116/09124 3116/11104 3116/03806 3116/04984 3116/09125 3116/11217 3116/03807 3116/05154 3116/09126 3116/11281 3116/04002 3116/05503 3116/09127 3116/11311 3116/04011 3116/05552 3116/09128 3116/11346 3116/04358 3116/05603 3116/09129 3116/11465 3116/05828 3116/09130 3116/11543 3116/04384 3116/05947 3116/09131 3116/11567 3116/04538 3116/05969 3116/09132 3116/11580 3116/04596 3116/06037 3116/09133 3116/11588 3116/04597 3116/06221 3116/09435 3116/11611 3116/04598 3116/06282 3116/09503 3116/11623 3116/04599 3116/06499 3116/09578 3116/11668 3116/04600 3116/06691 3116/09678 3116/11671 3116/04621 3116/06702 3116/09914 3116/11780 3116/04622 3116/06806 3116/10115 3116/4892 3116/04623 3116/06829 3116/10135 3116/10694 3116/04624 3116/06940 3116/10136 3116/04625 3116/06967 3116/10179 3116/04628 3116/07615 3116/10252

[28]

(9) Roads: Road ID Road No Road Name 1 155 2 156 3 279 4 371 5 388 North West Coastal Highway 6 390 Roebourne Wittenoom Road 7 391 8 392 9 393 10 407 11 432 North West Coastal Highway 12 656 13 657 14 658 15 1206 16 1644 18 7694 19 7695 20 7696 21 14625 22 14780 25 15215 26 15389 27 16088 28 18651 29 Road 30 Sams Creek Road 31 Point Samson Roebourne Road 32 Point Samson Roebourne Road 33 Point Samson Roebourne Road 34 Point Samson Roebourne Road 35 Road 36 Point Samson Roebourne Road 37 Point Samson Roebourne Road 39 North West Coastal Highway 40 15863 North West Coastal Highway 41 Croul Road 42 Road 43 15863 North West Coastal Highway 44 432 North West Coastal Highway 45 15863 North West Coastal Highway 46 Burrup Road 47 18785 Mof Road 48 Burrup, Village and Bay Roads 49 18741 Griffin Road 50 Hearson Cove and Burrup Roads 51 Burrup Road 52 16312 53 Cinders Road 54 Cinders Road 55 16211 Cinders Road 56 16211 Cinders Road 57 15444 Dampier Road 58 15444 Dampier Road 59 15444 60 15444 Dampier Road 61 Road 62 17821 Madigan Road 63 Rosemary Road 64 Gwen Road 65 Karratha Road 66 Corral Road 67 Mystery Road 68 Robins Road 69 18673 Kennels Road 70 388 71 Karratha Road 72 14530 73 17922 Madigan Road 74 Rankin Road 75 Roads 76 Roads 77 Roads 78 Roads 79 Jager Street 80 Jager Street, Samson Road and Murray Road 81 15861 Watson Street 82 14273 Samson Road 83 14274 Nairn Street 84 14272 Cleaverville Road 85 14275 86 Burrup Road and Lockyer Way 87 Roads 88 Cleaver Court 89 Roads 90 Roads 91 Roads 92 Roads 93 390 Scholl Street 94 390 Scholl Street 95 15597 Fisher Drive 96 13979 De Grey Street 97 13979 De Grey Street 98 15864 Jiwuna Way 99 Jiwuna Way 100 15863 North West Coastal Highway 101 Road 102 15863 North West Coastal Highway 103 15863 North West Coastal Highway 104 15863 North West Coastal Highway 105 Roads 106 13959 North West Coastal Highway Section of road 390 shown in Government Gazette 31 August 1893 page 869 3705 Portion of Point Samson - Roebourne Road Road on Deposited Plan 217003 Portion of Point Samson-Roebourne Road (shown on Deposited Plans 214781 and 214782) Hakea Place (shown on Deposited Plan 214782) Portion of Spinifex Road (shown on Deposited Plan 214782) as shown on Map 1 Tamarind Place (shown on Deposited Plan 214782)

[29]

(10) Resumptions: Parcel No (Whole or part of) Parcel Type 3116/4629 Special Lease 394/439 Pastoral Lease 3114/439 Pastoral Lease 3114/464 Pastoral Lease 3114/466 Pastoral Lease 3114/716 Pastoral Lease 28.01.1983 p 356 1240/869 Freehold 1240/868 Freehold 1240/867 Freehold 1067/369 Freehold R 611 Reserve R 613 Reserve part R 9701 Reserve R 30948 Reserve part R 31113 Reserve part R 31114 Reserve R 41012 Reserve Land marked off and more particularly described on Plan PWD WA 48208-1-3-4-5-6-7-8 Karratha Lot 4631, Crown land volume 3113 folio 465 Land shown on Deposited plans 194628 & 28085 Government Gazette Details (containing extent of resumption) 21.02.1995 pp 576, 577 09.08.1974 p 2966 09.08.1974 p 2966 18.05.1979 p 1329 09.08.1974 p 2966 18.05.1979 p 1329 23.08.1985 p 3005 23.08.1985 p 3005 23.08.1985 p 3005 23.08.1985 p 3005 21.02.1995 pp 576, 577 21.02.1995 pp 576, 577 18.05.1979 p 1330 28.10.1997 p 5977 18.05.1979 p 1330 18.05.1979 p 1330 28.10.1997 p 5977 18.05.1979 p 1329 Unallocated Crown land Taking order dated 20.11.2001 Unallocated Crown land Taking order dated 05.01.04

[30]

(11) Vested reserves: 492 30717 33666 36424 37967 40877 715 30871 33812 36633 38009 40879 1186 30872 33861 36708 38193 40896 1564 30948 33864 36778 38287 41012 1721 31289 33945 36800 38387 41049 1724 31429 34034 36813 38616 41092 1729 31446 34129 36889 38773 41275 4562 31624 34254 36907 38962 41594 12346 31815 34403 36908 39095 41636 12464 31950 34588 36909 39140 41666 12654 31999 34631 36910 39141 41739 15645 32059 34687 36911 39161 41764 17500 32209 34922 36912 39202 42039 18301 32318 34944 36913 39775 42080 24006 32465 35053 36915 39776 42311 24116 32980 35140 36991 39777 42337 24573 32981 35385 37120 39778 42399 25208 32987 35452 37121 39973 42820 25981 (but not insofar as it covers the Section 47B Area) 33023 35776 37140 40071 42850 27211 33134 35798 37294 40121 43195 28352 33135 35813 (but not insofar as it covers the Section 47B Area 37314 40146 43302 29092 33250 35823 37315 40174 43303 29304 33354 35892 37349 40206 43734 30071 33360 36408 37526 40457 44103 30450 33361 36409 37669 40599 44292 30617 33577 36416 37835 40718 44452 30649 33643 36423 40858

[39]

'Offshore Islands' means the land landward of the mean low water mark of islands in the Offshore Waters, excluding the Burrup and Depuch Island and the Ngarluma Total Extinguishment Area, as shaded in red on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Offshore Waters' means the waters within the Determination Area seaward of the mean low water mark of the coastline, as shaded in light blue on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Subterranean Waters' means waters which are for the time being contained in aquifers underneath the natural surface of the Determination Area; but does not include such waters to the extent they have percolated to the natural surface of the Determination Area. 'Telstra Area' means the land comprising Telstra Corporation Limited's: (1) customer terminal sites; and (2) Mount Fraser Optical Fibre Regenerator site, being Peawah Location 63, as shown on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Telstra Cable Routes' means the land and waters through which Telstra Corporation Limited's underground cabling is installed. 'Total Extinguishment Area' means the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area, as shaded in olive on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. In the event of an inconsistency between the written description of the Ngarluma Total Extinguishment Area or the Yindjibarndi Total Extinguishment Area and the Total Extinguishment Area as depicted on the Maps in Attachment 2, the written description prevails. 'Yindjibarndi Area' means the land and waters bordered and hatched in orange on the maps marked 'Map 1' which are Attachment 2 to this First Schedule. 'Yindjibarndi Exclusive Possession Area' means the following land and waters: Area Location / Tenure No. But not including the following areas: 85 Reserve 40617 82 West of Mallina Not part which falls within the Ngarluma Area 99 South of Mt Welcome Not part which falls within the Ngarluma Area 110A Coolawanyah 110B Coolawanyah 110C South of Coolawanyah Not part which falls within the Hamersley Ranges Area 114 East of Res 30071 Not part which falls within the Ngarluma Area

[49]

Thence southerly to the easternmost northeastern corner of Pastoral Lease 3114/558 (Sherlock Station); Thence southerly, westerly and again southerly along boundaries of that pastoral lease to a southeastern corner; Thence southeasterly to Latitude 21.025485 South, Longitude 117.880424 East; Thence southeasterly to Latitude 21.029842 South, Longitude 117.892260 East; Thence southeasterly to the westernmost northwestern corner of Reserve 31427; Thence southerly, easterly and again southerly along boundaries of that reserve to the northern boundary of Reserve 31429 (Mungaroona Range Nature Reserve); Thence easterly and generally southeasterly along boundaries of that reserve to a eastern corner at Latitude 21.809846 South; Thence westerly to Latitude 21.813716 South, Longitude 118.422139 East; Thence westerly to Latitude 21.817967 South, Longitude 118.301556 East; Thence westerly to a western corner of Pastoral Lease 3114/1173 (Hooley Station) at Latitude 21.827702 South; Thence westerly and southerly along boundaries of that pastoral lease to a northern boundary of Reserve 5515; Thence southerly to the intersection of the southern boundary of Reserve 5515 with a western boundary of Pastoral Lease 3114/1173 (Hooley Station); Thence southerly along that western boundary to a western corner of that pastoral lease and onwards to Latitude 21.955976 South, Longitude 118.020315 East; Thence westerly to a southeastern corner of Pastoral Lease 3114/1228 (Coolawanyah Station); Thence westerly along a southern boundary of that pastoral lease to a southeastern corner; Thence westerly to Latitude 21.955893 South, Longitude 117.494065 East; Thence westerly to Latitude 21.955894 South, Longitude 117.411064 East; Thence north to a eastern corner of Unallocated Crown; Thence northerly along a eastern boundary of that unallocated crown land to a southern boundary of Reserve 38991; Thence northerly and generally westerly along boundaries of that reserve to a northeastern boundary of Ashburton Location 148 (Reserve 38991); Thence northwesterly along that boundary to a eastern corner of Pastoral Lease 3114/1013 (Yalleen Station); Thence northerly, easterly and generally northwesterly along boundaries of that pastoral lease to Longitude 116.819303 East; Thence westerly to a western boundary of Special Lease 3116/4622 at Latitude 21.474046 South; Thence generally northerly along western boundaries of that special lease to a northern boundary of Reserve 38991; Thence westerly along that boundary of that reserve to a eastern boundary of Pastoral Lease 3114/1013 (Yalleen Station); Thence northerly and westerly along boundaries of that pastoral lease to Longitude 116.800532 East; Thence northerly to a southern boundary of Pastoral Lease 3114/716 (Mt Welcome Station) at Longitude 116.800535 East; Thence westerly, northerly, again westerly and again northerly along boundaries of that pastoral lease to its westernmost northwestern corner; Thence northerly to the southwestern corner of the southern severance of Reserve 356; Thence northerly along the western boundary of that severance to its northwestern corner; Thence northerly to and northerly along the western boundary of the northern severance of Reserve 356 to Latitude 20.844722 South; Thence northwesterly to Latitude 20.841057 South, Longitude 116.589897 East; Thence northwesterly to Latitude 20.836480 South, Longitude 116.582319 East; Thence northwesterly to a eastern corner of Reserve 9701 at Longitude 116.572288 East; Thence generally northwesterly along northeastern boundaries of that reserve to a northern corner; Thence northwesterly to the High Water Mark of the Indian Ocean at Longitude 116.546795 East; Thence generally northwesterly along that high water mark to Longitude 116.510163 East; Thence northwesterly to Latitude 20.783849 South, Longitude 116.508825 East; Thence northwesterly back to the commencement point.

[51]

Karratha All those lands and waters commencing at the intersection of a western boundary of Reserve 34922 with a northern side of Searipple Road and extending generally easterly along northern sides of that road to a western boundary of Reserve 44015; Thence northwesterly, northeasterly and southeasterly along boundaries of that reserve to a northern side of Searipple Road; Thence generally northeasterly along sides of that road to a southern boundary of Karratha Lot 1481 as shown on Department of Land Information Deposited Plan 182315; Thence westerly, northerly, easterly, southeasterly and southerly along boundaries of that lot to a northern boundary of Mystery Road; Thence generally southeasterly along sides of that road to Longitude 116.871324 East; Thence southerly to a southern side of Mystery Road at Longitude 116.871197; Thence northwesterly along sides of that road to a eastern side of Maitland Road; Thence southwesterly and generally southerly along eastern sides of that road to a northern side of Millstream Road; Thence southeasterly, southerly and northwesterly along sides of that road to a eastern boundary of Reserve 32197; Thence generally southwesterly, southeasterly, southwesterly, northwesterly, northeasterly, again southeasterly and generally northeasterly along boundaries of that reserve to a southern side of Millstream Road; Thence generally westerly and generally southwesterly along southern sides of that road and southern sides of Dampier Road to a eastern boundary of Reserve 34105; Thence generally southwesterly and westerly along boundaries of that reserve to a southeastern corner of Reserve 37085; Thence westerly and northwesterly along boundaries of that reserve to a eastern boundary of Reserve 37774; Thence southerly, southwesterly, again southerly and again southwesterly along boundaries of that reserve to a eastern side of Rosemary Road; Thence southwesterly to a western side of Rosemary Road at Latitude 20.755515 South; Thence northwesterly along western sides of that road to the easternmost corner of Karratha Lot 2636 as shown on Department of Land Information Deposited Plan 214685; Thence southwesterly, northwesterly and northerly along boundaries of that lot to a southern side of Radley Drive; Thence generally southwesterly along sides of that road to a eastern boundary of reserve 40708; Thence southerly, westerly and northerly along boundaries of that reserve to a southern side of Radley Drive; Thence generally southwesterly and generally northwesterly along sides of that drive to a southeastern side of Baynton Drive; Thence southwesterly, northwesterly and generally northeasterly along sides of that Drive to a southwestern boundary of Reserve 40989; Thence northwesterly, northeasterly and southeasterly along boundaries of that reserve to a western side of Baynton Drive; Thence generally northeasterly and generally northerly along sides of that drive to a southern side of Dampier Road; Thence generally westerly along southern sides of that road to the prolongation southerly of the western side of Balmoral Road; Thence northerly to and generally northerly, generally northeasterly and generally southeasterly along sides of that road to a northern boundary of Lot 2654 as shown on Department of Land Information Deposited Plan 184357; Thence northeasterly, northwesterly, again northeasterly and southwesterly along boundaries of that lot and onwards to the northernmost corner of Lot 4210 as shown on Department of Land Information Deposited Plan 29179; Thence southwesterly along the northwestern boundary of that lot to its westernmost corner; Thence northwesterly to the southernmost corner of Lot 2654 as shown on Department of Land Information Deposited Plan 184357; Thence northwesterly and southwesterly along boundaries of that lot to a northeastern side of Balmoral Road; Thence generally southeasterly along sides of that road to a northern side of a Closed Road as shown on Department of Land Information Deposited Plan 213104; Thence southeasterly along that side of that closed road to a northern side of Balmoral Road; Thence generally northeasterly along sides of that road to a northwestern side of Warambie Road; Thence easterly and generally northeasterly along sides of that road to the southeastern corner of Reserve 33666; Thence northwesterly along the northeastern boundary of that reserve to the westernmost corner of Reserve 41119, being Lot 4545; Thence northeasterly along the northern boundary of that lot and the northern boundary of Reserve 41120 to the westernmost northwestern corner of Lot 1121 as shown on Department of Land Information Deposited Plan 175620; Thence northeasterly and southeasterly along boundaries of that lot to a western side of Searipple Road; Thence generally northeasterly and generally easterly along sides of that road back to the commencement point. All those lands and waters commencing at the northernmost corner of the northeastern severance of Reserve 35098 and extending southeasterly along the eastern boundary of that severance to the northwestern boundary of Reserve 35097; Thence northeasterly along that boundary of that reserve to the southernmost corner of reserve 31834; Thence northwesterly, northeasterly and southeasterly along boundaries of that reserve to the northwestern boundary of Reserve 35097; Thence northeasterly and southeasterly along boundaries of that reserve to a northern boundary of Karratha Lot 2567 as shown on Department of Land Information Deposited Plan 214664; Thence northeasterly along the northern boundary of that lot to a western boundary of Unallocated Crown Land, previously Lot 1058 as shown on Department of Land Information Deposited Plan 211552; Thence northerly, easterly, southeasterly and southwesterly along boundaries of that unallocated crown land to the easternmost boundary of Karratha Lot 4601 as shown on Department of Land Information Deposited Plan 35280; Thence southwesterly along the southeastern boundary of that lot to the northernmost corner of the northern severance of Reserve 32318; Thence southwesterly along the northwestern boundary of that severance to its westernmost corner; Thence southwesterly to the northernmost corner of the southern severance of Reserve 32318; Thence generally southwesterly along northwestern boundaries of that severance to a northern boundary of Pastoral Lease 3114/464 (Karratha Station); Thence generally southwesterly along boundaries of that pastoral lease to a eastern side of Karratha Road; Thence northerly along that side of that road to the southernmost corner of the southeastern severance of Lot 971; Thence southwesterly to the southeastern corner of the southwestern severance of Lot 971; Thence southwesterly and northerly along boundaries of that lot to the southwestern corner of Venn Road; Thence northerly and northeasterly along sides of that road to a western side of Karratha Road; Thence generally northerly along western sides of that road to the prolongation southwesterly of the northern side of Mooligunn Road; Thence northeasterly to and northeasterly, easterly and southeasterly along northern sides of that road to a western boundary of the southwestern severance of Reserve 35098; Thence generally northeasterly along boundaries of that severance to a western side of Keating Road; Thence generally northeasterly along sides of that road to a southwestern boundary of the northeastern severance of Reserve 35098; Thence northwesterly and northeasterly along boundaries of that severance back to the commencement point.

[53]

Wickham All that land comprising Reserves 35972, 35973 and 37370. All those lands and waters commencing at the northeastern corner of Wickham Lot 103 as shown on Department of Land Information Deposited Plan 175534 and extending southerly and southwesterly along boundaries of that lot to a eastern side of Mulga Way; Thence southerly along that side of that way to a northeastern corner of Lot 104 as shown on Department of Land Information Deposited Plan 175534; Thence southerly, westerly and northerly along boundaries of that lot to a southern side of Mulga Way, a point on a present boundary of portion of Special Lease 3116/4629; Thence southwesterly, generally northwesterly, northeasterly and southerly along boundaries of that special lease back to the commencement point. All those lands and waters commencing at the northwestern corner of Walcott Drive, a point on a present boundary of portion of Special Lease 3116/4629 and extending northeasterly, generally southeasterly and southwesterly along boundaries of that special lease to the southeastern corner of Walcott Drive road reserve; Thence southwesterly and northwesterly along sides of that drive back to the commencement point. All those lands and waters commencing at Latitude 20.662706 South and Longitude 117.141458 East, a point on a present boundary of portion of Special Lease 3116/4629 and extending southeasterly, generally southwesterly and northwesterly along boundaries of that special lease to a northern corner; Thence northeasterly back to the commencement point. All that land comprising Reserve 31274 and Unallocated Crown Land, being Wickham Town Lot 112. All those lands and waters commencing at Latitude 20.658647 South and Longitude 117.146449 East and extending easterly to the northernmost northwestern corner of Wilson Way; Thence easterly along the northern boundary of that way to the northwestern corner of Wickham Lot 44 as shown on Department of Land Information Deposited Plan 211961; Thence easterly along the northern boundary of that lot and continuing easterly along the northern boundaries of Lots 45 to 51 inclusive to a western side of the Point Samson Roebourne Road; Thence generally easterly and generally southwesterly along sides of that road to the northeastern corner of portion of Special Lease 3116/4629; Thence northwesterly and southwesterly along boundaries of that special lease to a southern boundary of Wickham Lot 97 as shown on Department of Land Information Deposited Plan 211961; Thence northwesterly along that boundary of that lot to its westernmost corner; Thence northwesterly to Latitude 20.663391 South, Longitude 117.144469 East; Thence northeasterly back to the commencement point. Note: Geographic Co-ordinates provided in Decimal Degrees Cadastral boundaries sourced from Department of Land Administration Spatial Cadastral Data dated December 1993. Datum: Geocentric Datum of Australia 1994 (GDA94)

[61]

(i) the public right to fish in tidal waters; (j) the public right to navigate in tidal waters; (k) the interests of persons to whom valid and validated rights and interests have been granted by the Crown pursuant to statute or otherwise in the exercise of its executive power; (l) the right to access land by an employee or agent or instrumentality of the State, Commonwealth or any local government or other statutory authority as required in the performance of his or her statutory or common law duties; (m) so far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at 5 May 1999, public access to and enjoyment of: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) coastal waters; (iv) beaches; (v) areas that were public places at the end of 31 December 1993; (n) the interests of Telstra Corporation Limited, being: (i) rights and interests as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and overhead and underground cabling; (ii) rights and interests 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); (iii) rights of access by employees, agents or contractors of Telstra Corporation Limited to its facilities in and in the vicinity of the Determination Area in the performance of their duties; (iv) the right to occupy the Mount Fraser Optical Fibre Regenerator site (Peawah location 63); and (v) interests as the holders of easements 3134B/622, 3134B/625 and 3134B/627; (o) any interests of the Crown in any capacity, or of any statutory authority, in any public works within the Determination Area which were constructed or commenced to be constructed or used after 23 December 1996; (p) the interests of holders of licenses issued under the: (i) Land Act 1933 (WA) and the Land Administration Act 1997 (WA); (ii) Fish Resources Management Act 1994 (WA); (iii) Mining Act 1978 (WA); (iv) Jetties Act 1926 (WA); (v) Wildlife Conservation Act 1950 (WA); (vi) Conservation and Land Management Act 1984 (WA); (vii) Rights in Water and Irrigation Act 1914 (WA); (viii) Transport Co-ordination Act 1966 (WA); and (ix) Water Services Coordination Act 1995 (WA); (q) the interests of holders of permits issued under the: (i) Land Act 1933 (WA); (ii) Land Administration Act 1997 (WA); and (iii) Country Areas Water Supply Act By-laws under the Country Areas Water Supply Act 1947 (WA); (r) the interests of the Crown, Water Corporation and the local government in the enforcement of, and the exercise of rights and responsibilities under, the following by-laws: (i) Country Areas Water Supply Act By-laws under the Country Areas Water Supply Act 1947 (WA); (ii) The Municipality of the Shire of Roebourne By-laws Relating to Parks, Public Reserves, Sports Grounds, Recreation Grounds or Open Space Areas vested in the Council under the Local Government Act 1960 (WA); (s) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth; (t) the agreement as amended and ratified by the Iron Ore (Robe River) Agreement Act 1964 and rights and interests comprised in, conferred under or in accordance with or pursuant to that agreement; (u) the agreement as amended and ratified by the Dampier Solar Salt Industry Agreement Act 1967 and rights and interests comprised in, conferred under or in accordance with or pursuant to that agreement; and (v) the agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 and rights and interests comprised in, conferred under or in accordance with or pursuant to that agreement.

[65]

Extinguishment of native title is disregarded, in accordance with section 47B of the Native Title Act 1993 (Cth), in the following areas as depicted in pink on the maps marked 'Map 1' which are Attachment 2 to the First Schedule ('Section 47B Area'): Area No. Location (general) Extinguishing act(s) disregarded But not including the following areas: 82 West of Mallina Creation of any prior interest Not part which falls within the Ngarluma Area 99 South of Mt Welcome Creation of any prior interest Not part which falls within the Ngarluma Area 110A Coolawanyah Creation of any prior interest 110B Coolawanyah Creation of any prior interest 110C South of Coolawanyah Creation of any prior interest Not part which falls within the Hamersley Ranges Area 114 East of Res 30071 Creation of any prior interest Not part which falls within the Ngarluma Area 132 Point Samson Part vested reserve 35813 and vested reserve 37932 133 Point Samson Special lease 3116/04371 148 Cossack Part vested reserve 25981 Not part covered by E47/650 183 Roebourne Part vested reserve 31768, part De Witt Location 15, part De Witt Location 11, part North Location 36 Not part within townsite, part covered by easements 3134B/604, 3134B/55(1) and 3134B/43, road 42 and Cape Lambert Supply Main Extension 241B Karratha Station Part special lease 3116/03470 Not part covered by ML253SA 241C Karratha Station Part special lease 3116/03470 Not part covered by E47/635, E47/645, easement 3134B/211 322 Roebourne Town grant 5/1324, part town grants 6/258 and 6/357 342 Roebourne Part special lease 3116/00798; part vested reserve 21807 Part 502 Cossack Town grants 11/92 and 11/94 512 Cossack Town grants 5/1320 and 6/82, part town grants 5/1321 and 5/1322 Not part covered by E47/512 515 Cossack Town grant 8/479 532 Cossack Town enrolments 2915, 2925, 3085 and 3093; Town grants 2/231, 2/482, 2/484, 2/499, 3/500, 3/630, 5/1211, 5/1319, 7/245 533 Cossack Certificates of title 3/231 and 7/397; Town enrolments 2918, 3089, 3091; Town grant 5/1212 Not part covered by Cossack Radio Transmitter 535 Cossack Town grants 2/468, 2/483, 3/535, 5/1265, 5/1272, 5/1282, 5/1317 and 9/656 Part 538 Cossack Town grants 9/550, 9/551, 9/552, 9/553 and 9/544 542 Cossack Lease 1138/152

[66]

RARES J: 1 Today marks what is likely to be the end of a legal journey that the Yindjibarndi people commenced on 8 June 1994 (the first application). That is when they first sought a determination under the Native Title Act 1993 (Cth) that would confirm what has been the case since time immemorial, namely that they possess and have possessed native title rights and interests under their traditional laws and customs since Minkala (God) sent the Marrga, in the creation times, to give form to everything that is Yindjibarndi. In their beliefs the Marrga gave Yindjibarndi country to the Yindjibarndi people. 2 The law of Australia has recognised, through two determinations that this Court has made in 2007 and 2017, that the Yindjibarndi people have native title rights and interests in two large areas in the Pilbara under their traditional laws and customs, including the Bidarra law, that the Yindjibarndi people still acknowledge and observe today. As I said in my judgment in Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v Western Australia (2017) 365 ALR 624 at 628 [1] and 641 [37], the Yindjibarndi people have inhabited those areas since before British sovereignty or European settlement and, as a society, have continuously acknowledged, observed and been united by those laws and customs. 3 The Court today will vary the earlier of those determinations so as to expand the Yindjibarndi people's rights and interests. This will recognise that the Yindjibarndi have the right, under both their laws and customs and the law of Australia, to exclude all manjangu (strangers) from coming onto a significant area of Yindjibarndi country unless the Yindjibarndi give permission for that to occur. 4 I explained the deep importance to the Yindjibarndi people of this traditional law and custom in my judgment in Warrie 365 ALR at 646-659 [46]-[107]. I will set out below a brief history of the legal journey to today before turning to the basis for the orders that I will make.

[67]

Litigation background 5 After a long trial, on 3 July 2003 RD Nicholson J published his reasons for finding that the Yindjibarndi people had non-exclusive, but not exclusive, native title rights and interests over a large area of land and waters in the Pilbara (the Moses land): Daniel v State of Western Australia [2003] FCA 666. 6 Six days later, on 9 July 2003 the Yindjibarndi people filed a second application relating to land and waters immediately to the south of the Moses land. 7 On 2 May 2005, Nicholson J made a determination of native title under s 225 of the Act in the first application (the 2005 determination) giving effect to his earlier findings that the Yindjibarndi had only non-exclusive native title rights and interests in the Moses land: Daniel v State of Western Australia [2005] FCA 536. As part of the 2005 determination, Nicholson J determined that Yindjibarndi Aboriginal Corporation (YAC), as a prescribed body corporate, pursuant to s 56(2)(b) of the Act, would hold on trust the non-exclusive rights and interests in the Moses land from time to time comprising the native title of the common law holders, being the Yindjibarndi people. 8 On 27 August 2007 the Full Court of this Court allowed, in part, an appeal from that determination and made an amended determination of native title (the 2007 determination): cf Moses v Western Australia (2007) 160 FCR 148. The 2007 determination did not disturb the 2005 determination in respect of the Yindjibarndi holding only non-exclusive native title rights and interests in the land and waters now in issue. 9 I heard the trial of the second application in 2015 and 2016. On 20 July 2017 I published my reasons for finding that the Yindjibarndi people held native title rights and interests in another large area of land and waters (the Warrie land) immediately to the south of the Moses land: Warrie 365 ALR 624. I found that the Yindjibarndi people held exclusive native title rights and interests that conferred the right to possession, occupation, use and enjoyment of four significant parcels of unallocated Crown land (UCL) and a reserve: Warrie 365 ALR at 668 [149]-[151], 701-704 [289]-[302]. I also held that Nicholson J's finding (in Daniel [2003] at [421]-[422]) that the Yindjibarndi people had had "remarkably maintained a strong sense of connection to their lands", that remained unbroken, continued to apply (365 ALR at 643 [42]). 10 On 13 November 2017, I made final orders and a determination of native title giving effect to my earlier reasons (the 2017 determination) in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) (2017) 366 ALR 467. As part of the 2017 determination, I determined, pursuant to s 56(2)(b) of the Act, that Yindjibarndi Ngurra Aboriginal Corporation would hold on trust the rights and interests in the Warrie land from time to time comprising the Yindjibarndi people's native title. 11 On 15 May 2017, while my decision was reserved, YAC filed a revised native title determination application, that it subsequently amended (the revised application) in respect of the Moses land pursuant to ss 13(1)(b) and 61(1) of the Act. The revised application seeks to vary the 2007 determination. It asks that the Court now, in effect, makes orders that would give the Yindjibarndi people exclusive, rather than non-exclusive, native title rights and interests over areas on the Moses land on the same basis that I had found them to have over the Warrie land. 12 In Warrie 365 ALR at 724 [389]-[390], I found that the Yindjibarndi people had not engaged in an abuse of process, in the second application, by seeking a determination that they had exclusive native title rights and interests in the Warrie land even though the 2007 determination had held that they only had non-exclusive native title rights and interests. I held that the pending revised application, if granted, could cure any potential inconsistency resulting from a finding that, since before sovereignty, the Yindjibarndi had continuously acknowledged and observed their traditional laws and customs that required a manjangu to seek permission to enter, or conduct activity on, Yindjibarndi country. 13 Nicholson J in Daniel [2003] FCA 666 at [292] had characterised that law or custom as only "a matter of respect rather than a recognition of a right to control". However, about four years after his Honour's decision and after the 2007 determination, a Full Court of this Court decided that such a traditional law or custom could amount to a normative requirement that would ensure that native title holders could protect their land and waters from strangers and manage its spiritual dangers as a "gatekeeper": Griffiths v Northern Territory (2007) 165 FCR 391 at 428-429 [127]. I found that, had the law been decided in this way when Nicholson J determined Daniel [2003] FCA 666, it was probable that his Honour would have characterised his finding about the character of the need to seek permission to enter Yindjibarndi country in the same way as I did (Warrie 365 ALR at 722 [382]). I will return to this finding later. 14 On 18 October 2019 Jagot, Robertson, Griffiths, Mortimer and White JJ dismissed an appeal from my decision: Fortescue Metals Group v Warrie (2019) 273 FCR 350. By then, the State had accepted my decision and argued (contrary to its stance at the trial) in support of the Yindjibarndi people's case. 15 On 29 May 2020 the High Court refused Fortescue Metals Group Ltd's (FMG) application for special leave to appeal from the Full Court's decision: Fortescue Metals Group Ltd v Warrie [2020] HCA Trans 65 (Keane and Edelman JJ) on the basis that it was concerned with the application of settled principle. 16 Once the High Court had refused FMG special leave, it withdrew its defence and ceased to take an active part in this proceeding. That effectively left YAC and the State as the only active parties.

[69]

Consideration 22 Importantly, the Court has a discretion to make an order in, or consistent with, the terms of a consent determination without holding a hearing if it considers that, first, such an order would be within its powers and, secondly, it would be appropriate to do so (s 87A(4)). 23 There are no statutory requirements governing the negotiation of agreements under ss 87 and 87A of the Act. Nor does s 87A(4) impose any precondition beyond that any orders for a consent determination of native title, be ones that the Court considers are within its power to make and that it would be "appropriate" for the Court to exercise its power to do so. The Court must make such an evaluation of the s 87A agreement having regard to the subject-matter, scope and purpose of the Act: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ. 24 A relevant consideration in assessing the appropriateness of making a consent determination under s 87A is the overarching purpose of the civil practice and procedure provisions contained in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Relevantly, s 37N(1) imposes a duty on the parties to conduct the proceeding, including negotiations for settlement, such as the present, that has culminated in an agreement under s 87A of the Act, in a way that is consistent with that overarching purpose: Oil Basins Ltd v Watson [2014] FCAFC 154 at [145] per Siopis, McKerracher and Barker JJ. I am satisfied that the parties have acted in accordance with s 37N in arriving at the consent determination. 25 Negotiations that lead to consent orders, such as the ones I am making today, resolve significant parts of litigation and have a very important place in our court system. They enable the parties to achieve results that are acceptable to all of them but that may not have been available if the Court had to decide the dispute. And, of course, such agreements also enable the Court to deal more quickly with other people's cases. 26 Here, the parties have cooperated with appropriate and commendable effort to bring about the terms of the consent determination. YAC and the State filed joint submissions in support of its being made. Those submissions outlined the basis on which the State, on behalf of the community, agreed to the changes they seek to the 2007 determination. No party led any evidence on this application. I have considered the matters discussed in the joint submissions for the purpose of deciding whether to make the consent determination. 27 In proceedings of this kind the Court must consider the public interest as to whether the agreement under s 87A should be given the force of law. This is because a determination of native title does not affect only the parties in the proceeding. Rather, a determination of native title is a legally binding decision that applies to everyone in Australia and can only be changed by another court order. It has effects on the rights and interests of not only the holders of the native title rights and interests, but those of the State and the members of the community, including in respect of the use of public land and waters covered by a reserve or unallocated Crown land. 28 Because of this, the State has a particular responsibility, as an institution of Government, to inform the Court of all relevant considerations for and against the making of the particular consent determination that may affect the public interest. The State has a duty to look after and act in the interests of the whole community: cf Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [29]-[30] per Emmett J. 29 Here, the consent determination reflects a resolution of the claims of the Yindjibarndi people that the parties considered appropriate. It also reflects the unusual circumstances of there having been two trials about the laws and customs of the Yindjibarndi people that led to the 2007 and 2017 determinations. 30 Both Nicholson J and I heard many witnesses give evidence to support the findings that led to these two determinations. However, as I have explained, after the 2007 determination was made, the understanding of the law changed about the significance of the need for a person such as a manjangu to ask permission before entering Yindjibarndi country: Griffiths 165 FCR 391. As a result, YAC and the State have re-evaluated the evidence before Nicholson J and his Honour's findings. They have made careful submissions about why the reserve and six UCLs should now be included in a revised determination of native title as areas over which the Yindjibarndi people hold exclusive native title rights and interests. 31 I will first consider whether an order in, or consistent with, the terms of the consent determination would be within the power of the Court in respect of each of the seven areas of land and waters. I will then consider whether it is appropriate to make the consent determination.

[70]

The basis for making a revised determination 32 The power of the Court to vary or revoke a previous approved determination of native title that the Court has made is conferred and conditioned in s 13(1)(b) and (5) of the Act. It is an exceptional power. A fundamental principle of our system of justice is that, ordinarily, a judicial decision based on the evidence and arguments after a hearing of a proceeding should be final and binding. The usual position is that the Court's decision not only finalises all disputes about what happened as matters of fact but also determines what the law is as it applies to those facts. Ordinarily, none of the parties to that decision can ever dispute what the Court found except by an appeal. That is because in such a decision the Court decides the rights of the parties in the litigation once for all, putting a complete end to the dispute. That gives effect to the principle of finality in the law: cf Warrie 365 ALR at 720 [375]-[376]. 33 But, when the Parliament enacted the Native Title Act, it recognised that decisions about native title rights and interests involved questions that affected, or could affect, large areas of land and waters and many persons including, of course, one or more indigenous peoples, some of whom might cease over time to acknowledge and observe some or all of their traditional laws and customs (see s 223 of the Act). Alternatively, new evidence or circumstances may emerge that require a variation or revocation of an earlier determination or the interests of justice might require that to be done. In my judgment in Warrie 365 ALR at 720 [373]-[376] I discussed how s 13(1)(b) and (5) operated: cf Warrie 273 FCR at 384-392 [99]-[129] esp at 390-391 [123]-[124] per Jagot and Mortimer JJ, 457-461 [384]-[395] per Robertson and Griffiths JJ, cf too 501-502 [571]-[576] where White J took a different view to that I had expressed. 34 That is why s 13(5) provides two grounds on which the Court can vary or revoke a previous judicial determination of native title. These are, first, where events have taken place since the determination was made that have caused it no longer to be correct, or, secondly, the interests of justice require the variation or revocation to be made. 35 In Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [2451], McKerracher J said that s 13(5) contemplated that the native title holders or the native title rights might change or that the original determination contained an error or omission. Indeed, here, as I will explain, there was a mapping error in the 2007 determination that caused a small reserve to be depicted on a map as part of Yindjibarndi country, when Nicholson J had held that it was not. The power under s 13(5) is clearly available to correct such mistakes. 36 However, up to now, the research of the lawyers for YAC and the State have only found two cases where the Court has exercised the power under s 13(5): Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40 and Wakamurru (Aboriginal Corporation) RNTBC v Western Australia (in which the Court made orders on 24 April 2020, but gave no published reasons). In both of those cases, the variations came about because of a recent decision of the High Court that changed the law that this Court had applied in making the original determination (Tarlka [2017] FCA 40 varied the earlier determination in WF (deceased) on behalf of the Wiluna People v Western Australia [2013] FCA 755 as a consequence of Western Australia v Brown (2014) 253 CLR 507. Wakamurru varied an earlier determination as a consequence of Helicopter Tjungarrayi v Western Australia (2019) 366 ALR 603).

[73]

The issue about whether s 47B applies to the six UCLs 46 The Act enables exclusive and non-exclusive native title rights and interests to be recognised over public land and waters if certain conditions under s 47B are met, even though at some time in the past those areas had been freehold or leased. The conditions relevant here are in broad outline that: (1) when the first application was made in 1994, the particular areas in that claim were not covered by a freehold estate, lease, a Government permission, licence or authority to use the land and waters for public purposes or a particular purpose or subject to a resumption process; and (2) one or more of the Yindjibarndi people occupied the relevant area. 47 After the commencement of the revised application, I ordered that the parties file pleadings to identify the issues that the Court would need to decide. Those pleadings identified only one dispute between YAC and the State in relation to whether s 47B(2) operated to enable the Court to disregard any prior acts that may have extinguished the Yindjibarndi people's exclusive native title rights and interests in each of the six UCL areas. That dispute concerned whether one or more of the Yindjibarndi people occupied each of the six UCLs in 1994. 48 In their joint submissions YAC and the State explained in some detail how they arrived at their resolution of the occupation issue. I have considered those submissions on the basis of what Jagot J held in Western Bundjalung People v Attorney-General of New South Wales [2017] FCA 992 at [20]-[21], to see whether they supply a credible or cogent basis for a conclusion that the requirements of s 223(1) exist for the Court to make the consent determination of native title now. Jagot J said there: It is also apparent from the authorities that the Court recognises that the State party is effectively the guardian of all of the interests of its people in a native title claim. It should go without saying that the people to whom the State owes a duty include the Aboriginal people who are the claimants. Thus it would be wrong for the State to conceive of its role as merely a gatekeeper through which cogent claims may ultimately be permitted to pass if the claim is one that comes to be supported by so much material that, in all probability, the claim would succeed before the Court if litigated; in particular, ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups, is an important part of the public interest the State is intended to protect and promote. In reconciling its multiple duties the orthodox position which has emerged and been settled for many years is that the State should not require an applicant to prove to it on the balance of probabilities that each of the requirements of s 223 is satisfied. For the State party to discharge its duties not only to the public at large but also to the claim group and to the Court, and to fulfil its fundamental obligations of fidelity to the objects of the NTA and the requirements of the Court Act, it looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474: 36 The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37 In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case. (emphasis added)

[80]

Is it appropriate to make the consent determination? 57 There is a credible and cogent basis to conclude that the Yindjibarndi people have the same rights and interests in the Moses land as I explained that they had in the Warrie land in my reasons in Warrie 365 ALR 624. That is because I was satisfied, in accordance with s 223(1) of the Act, that those are the same rights and interests, possessed under the traditional laws acknowledged, and the traditional customs observed, by the Yindjibarndi people, that by those laws and customs they have a connection with all of those lands and waters and that the common law of Australia recognises those rights and interests. 58 Indeed, I found in Warrie 365 ALR at 722 [382] (which Jagot and Mortimer JJ affirmed in Warrie 273 FCR at 398 [155]-[157] with the agreement of Robertson and Griffiths JJ at 461 [397] and White J at 491 [528]): Nicholson J saw the surviving practice as "a matter of respect rather than in recognition of a right to control" (Daniel [2003] FCA 666 at [292]) and found that there was no present "exercise … of this aspect of the right claimed". The "exercise" of a right to control access based on the Yindjibarndi's role, under their traditional laws and customs, to act as gatekeepers to their country is conceptually different to the concept underpinning the "respect" that his Honour found. Yet, had his Honour been invited, as Griffiths 165 FCR 391 subsequently established, to consider that, what he termed, the "surviving practice" of "respect" reflected the importance that those indigenous people who showed that "respect" attached to the ability of the Yindjibarndi to open the spiritual gates, it is possible, indeed probable, that his Honour would have come to the same findings as I have. (emphasis added) 59 In light of the Full Court's finding that there was no error in that conclusion, the 2007 determination should be varied so as to apply s 47B(2) to the reserve and the six UCLs. That will ensure that the Yindjibarndi people's rights and interests in those lands and waters are exclusive.

At a glance

Court

Decision date

Before

Source

Judgment (81 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (25)

Cited By (5)