FEDERAL COURT OF AUSTRALIA Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940 Citation: Chubby on behalf of the Puutu Kunti Kurrama People and the Pinikura People #1 and #2 [2015] FCA 940 Parties: JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY and DONNA MEYER v STATE OF WESTERN AUSTRALIA, SHIRE OF ASHBURTON, YAMATJI MARLPA ABORIGINAL CORPORATION, HAMERSLEY IRON PTY LTD, ROBE RIVER MINING CO PTY LTD, MARTIN LAWRENCE AVERY, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, ROCKLEA STATION PTY LTD and SAMCO BEEF PTY LTD JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY and DONNA MEYER v STATE OF WESTERN AUSTRALIA, API MANAGEMENT PTY LTD, DEBORAH ALICE AVERY, MARTIN LAWRENCE AVERY, BAMBI PTY LTD, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, LEANNE MARGARET CORKER, ANDREW NICHOLAS GLENN, JANETTE ANN GLENN, PETER ROBERT GREY, SUSAN JEAN GREY and RED SKY STATIONS PTY LTD File numbers: WAD 6007 of 2001 WAD 126 of 2005 Judge: MCKERRACHER J Date of judgment: 2 September 2015 Catchwords: NATIVE TITLE - consent determination of native title – requirements under s 87 of the Native Title Act 1993 (Cth) – whether native title claimant group must be described the same in determination - agreement of parties – role of mediation Legislation: Native Title Act 1993 (Cth) ss 13(1)(a), 55, 56, 57, 87, s 94A, 225, 251B Cases cited: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 Lander v State of South Australia [2012] FCA 427 Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 Ward v State of Western Australia [2006] FCA 1848 Watson v State of Western Australia (No 3) [2013] FCA 127 WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 Date of hearing: 2 September 2015 Place: House Creek, Western Australia Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 46 WAD 6007 of 2001: Counsel for the Applicants: Mr G O'Dell with Dr C Tan Solicitor for the Applicants: Pilbara Native Title Service Counsel for the First Respondent: Mr A Rorrison Solicitor for the First Respondent: State Solicitors Office Counsel for the Third Respondent: The Third Respondent did not appear Counsel for the Fourth Respondent: The Fourth Respondent did not appear Counsel for the Fifth Respondents: The Fifth Respondents did not appear Counsel for the Sixth Respondents: Ms M Watts Solicitor for the Sixth Respondents: Cornerstone Legal, M Watts Legal and Ashurst Australia WAD 126 of 2005: Counsel for the Applicants: Mr G O'Dell with Dr C Tan Solicitor for the Applicants: Pilbara Native Title Service Counsel for the First Respondent: Mr A Rorrison Solicitor for the First Respondent: State Solicitors Office Counsel for the Second Respondent: The Second Respondent did not appear Counsel for the Third Respondents: Ms M Watts Solicitor for the Third Respondents: Cornerstone Legal and M Watts Legal IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6007 of 2001 BETWEEN: JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY AND DONNA MEYER Applicants AND: STATE OF WESTERN AUSTRALIA First Respondent SHIRE OF ASHBURTON Third Respondent YAMATJI MARLPA ABORIGINAL CORPORATION Fourth Respondent HAMERSLEY IRON PTY LTD and ROBE RIVER MINING CO PTY LTD Fifth Respondents MARTIN LAWRENCE AVERY, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, ROCKLEA STATION PTY LTD and SAMCO BEEF PTY LTD Sixth Respondents IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 126 of 2005 BETWEEN: JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY and DONNA MEYER Applicants AND: STATE OF WESTERN AUSTRALIA First Respondent API MANAGEMENT PTY LTD Second Respondent DEBORAH ALICE AVERY, MARTIN LAWRENCE AVERY, BAMBI PTY LTD, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, LEANNE MARGARET CORKER, ANDREW NICHOLAS GLENN, JANETTE ANN GLENN, PETER ROBERT GREY, SUSAN JEAN GREY and RED SKY STATIONS PTY LTD Third Respondents JUDGE: MCKERRACHER J DATE OF ORDER: 2 SEPTEMBER 2015 WHERE MADE: house creek, WESTERN AUSTRALIA THE COURT NOTES THAT: A. The Applicants in proceedings WAD 6007 of 2001 and WAD 126 of 2005 have made native title determination applications (PKKP Applications) that relate to an area of land and waters the subject of the attached minute of proposed consent determination (Determination). B. The Applicants in the PKKP Applications, the State of Western Australia and the other Respondents to the proceedings (the parties) have reached an agreement as to the terms of the Determination which the parties submit should be made in relation to the land and waters covered by the PKKP Applications (Determination Area). The external boundaries of the Determination Area are described in Schedule One to the Determination. C. Pursuant to s 87(1) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached by the parties in relation to the PKKP Applications. D. The terms of the agreement involve the making of consent orders for a determination pursuant to s 87 and s 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area. E. The PKKP Applications are made on behalf of two separate but related language groups (Puutu Kunti Kurrama People and Pinikura People) who together claim rights and interests within the claim area. The applications are made on the basis that within the application area, as between the Puutu Kunti Kurrama People and Pinikura People, the Puutu Kunti Kurrama People speak for Puutu Kunti Kurrama country, Pinikura People speak for Pinikura country, and together they both speak for a shared area of country. While this delineation is not apparent in the terms of the Determination, it is reflected in the membership and decision making structure of the prescribed body corporate nominated by the Applicants to hold the determined native title on trust for the native title holders (see Recitals I and J below). On that basis, the parties have agreed that a single determination in favour of the Puutu Kunti Kurrama Pinikura People is appropriate in the circumstances. F. The parties acknowledge that, upon the Determination taking effect, the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the native title holders for the Determination Area as set out in the Determination. G. The parties have requested that the Court hear and determine the proceedings the subject of the PKKP Applications together and that, pursuant to s 87(2) of the Native Title Act 1993 (Cth), the Court determine those proceedings without holding a hearing. H. The pastoral respondents Cheela Plains Pastoral Co Pty Ltd, A N & J A Glenn, P R & S J Grey, Stamco Beef Pty Ltd and Red Sky Stations Pty Ltd have agreed to the terms of the Determination on the basis of having reached agreements with the Applicants in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the Determination taking effect, those agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act 1993 (Cth). I. The Applicants in the PKKP Applications intend that the PKKP Aboriginal Corporation (ICN 7630) be nominated pursuant to s 56(2)(a) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders. As at the date of these orders, the Applicants are not in a position to make that nomination, but expect to be able to do so within 6 months of the date of these orders. J. The parties have reached agreement the subject of these orders on the basis that, when the Determination takes effect: (i) the native title will be held in trust by the PKKP Aboriginal Corporation (ICN 7630), or such other corporation as the PKKP Applicants may, with the consent of the parties, nominate; (ii) the members of that corporation will have adopted either: (A) the rule book at Attachment B, being the rule book approved by a resolution passed by a duly convened meeting of members of the PKKP native title claim groups on 13 February 2015; or (B) the rule book at Attachment B as amended and approved in writing by the State of Western Australia in its capacity as First Respondent to the proceedings; (iii) if necessary, the Registrar of Indigenous Corporations will have approved and registered the rule book; and (iv) the corporation nominated to hold the native title will expeditiously execute the agreements as agreed between Cheela Plains Pastoral Co Pty Ltd, A N & J A Glenn, P R & S J Grey, Stamco Beef Pty Ltd and Red Sky Stations Pty Ltd. BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to s 87 and s 94A of the Native Title Act 1993 (Cth) and by the consent of the parties: THE COURT ORDERS THAT: 1. In relation to the Determination Area, there be a determination of native title in WAD 6007 of 2001 and WAD 126 of 2005 in terms of the Determination as provided for in Attachment A. The Determination is to take effect immediately upon the making of a determination under s 56(1) of the Native Title Act 1993 (Cth) provided that within 6 months of the date upon which these orders are made: (a) a representative of the common law holders of the native title rights and interests shall nominate in writing to the Federal Court (and copied to the parties) a prescribed body corporate to hold the native title rights and interests held in trust on behalf of the native title holders; and (b) the representative of the common law holders shall include within the nomination: (i) the written consent of the body corporate; and (ii) a statement that either: (i) the rule book at Attachment B; or (ii) the rule book at Attachment B as amended and approved in writing by the State of Western Australia in its capacity as First Respondent to the proceedings, has been adopted by the members of the corporation and, if necessary, approved by the Registrar of Indigenous Corporations. 2. If a prescribed body corporate is nominated in accordance with order 1, it shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth). 3. If a prescribed body corporate is not nominated in accordance with order 1 within the time specified, or such later time as the Court may order, the Determination will not take effect and the matter is to be listed for further directions. 4. The parties have liberty to apply in relation to these orders at any time prior to the Determination taking effect. 5. There be no order as to costs. Date that entry is stamped: 2 September 2015 _______________________________ The Honourable Justice McKerracher Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT A DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225 Native Title Act) 1. Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination. 2. Native title does not exist in those parts of the Determination Area the subject of the interests identified in Schedule Three which are shown as generally shaded pink on the maps at Schedule Two. Native title holders (s 225(a) Native Title Act) 3. The native title in the Determination Area is held by the Puutu Kunti Kurrama and Pinikura People. The Puutu Kunti Kurrama and Pinikura People are the people referred to in Schedule Five. The nature and extent of native title rights and interests and exclusiveness of native title (s 225(b) and s 225(e) Native Title Act) 4. Subject to paragraphs 2, 5, 6 and 8 the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non-exclusive rights on the Puutu Kunti Kurrama and Pinikura People, including the right to conduct activities necessary to give effect to them: (a) the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Determination Area; (b) the right to hunt, fish, gather, take and use the traditional resources of the land; (c) the right to take and use water; (d) the right to engage in cultural activities on the Determination Area, including: (i) visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and (ii) conducting ceremony and ritual, and the transmission of cultural knowledge; and (e) the right to be accompanied onto the Determination Area by those people who, though not native title holders, and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are: (i) spouses, parents or children of the native title holders; or (ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area. Qualifications on the native title rights and interests 5. The native title rights and interests set out in paragraph 4: (a) are subject to and exercisable in accordance with: (i) the laws of the State and the Commonwealth, including the common law; and (ii) the traditional laws and customs of the Puutu Kunti Kurrama and Pinikura People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes; and (b) do not confer any rights in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA); (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iv) water captured by the holders of the Other Interests pursuant to those Other Interests. 6. The native title rights and interests set out in paragraph 4 do not confer: (a) possession, occupation, use and enjoyment on the Puutu Kunti Kurrama and Pinikura People to the exclusion of all others; or (b) a right to control the access to, or use of, the land and waters of the Determination Area or its resources. The nature and extent of any other interests (s 225(c) Native Title Act) 7. The nature and extent of the Other Interests are described in Schedule Four. Relationship between native title rights and other interests (s 225(d) Native Title Act) 8. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise, (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them. Liberty to Apply 9. The parties have liberty to apply to: (a) establish the precise location and boundaries of the public works and adjacent land and waters identified in relation to any part or parts of the Determination Area referred to in clause 4 of Schedule Three of this determination; and (b) clarify the relationship between the native title rights and interests set out in paragraph 4 and Easement F924685 referred to in clause 3(b) of Schedule Four of this determination if a court of competent jurisdiction should find that its creation did not affect native title. Definitions and Interpretation 10. In this determination, unless the contrary intention appears: "Determination Area" means the land and waters described in Schedule One and depicted on the maps at Schedule Two; "land" has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters"; "Native Title Act" means the Native Title Act 1993 (Cth); "native title holders" means the Puutu Kunti Kurrama and Pinikura People as described in Schedule Five and referred to in paragraph 3; "Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 7; "resources" means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin, sand, clay, gravel and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed)); "use" includes by way of share and exchange, but does not include use by way of trade; "waters" has the same meaning as in the Native Title Act. 11. In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the maps at Schedule Two the written description prevails. SCHEDULE ONE DETERMINATION AREA The Determination Area, generally shown as bordered in blue and green on the maps at Schedule Two, comprises all land and waters bounded by the following descriptions: PKKP #1 Determination Area All those lands and waters commencing at Latitude 22.250819 South, Longitude 115.995908 East and extending generally southeasterly, generally easterly and generally northeasterly through the following coordinate positions: Latitude (South) Longitude (East) 22.255911 115.999506 22.259391 116.001383 22.260436 116.002459 22.263411 116.004305 22.269842 116.007265 22.278861 116.012262 22.287918 116.017687 22.295883 116.023211 22.301614 116.028459 22.307646 116.035494 22.311196 116.040133 22.313799 116.045016 22.314881 116.049266 22.314649 116.051188 22.314580 116.053262 22.314447 116.053782 22.314358 116.054026 22.313921 116.057963 22.312858 116.061594 22.312061 116.065958 22.311716 116.070376 22.310989 116.074304 22.309531 116.080103 22.307907 116.085207 22.306521 116.091081 22.304302 116.096338 22.302609 116.102335 22.301652 116.108972 22.301111 116.115663 22.300796 116.122698 22.300637 116.131762 22.300133 116.143899 22.297825 116.167353 22.294995 116.184701 22.292656 116.201181 22.289502 116.217493 22.287070 116.232202 22.284150 116.249026 22.281251 116.263063 22.279965 116.270364 22.278982 116.276781 22.276739 116.280352 22.276043 116.282281 22.276976 116.284753 22.277924 116.290902 22.278498 116.300157 22.278571 116.306650 22.279373 116.312799 22.279854 116.321839 22.279543 116.327341 22.278822 116.334397 22.278283 116.344147 22.277249 116.352166 22.275164 116.361466 22.273711 116.368714 22.272143 116.376977 22.271291 116.383073 22.270329 116.394074 22.269482 116.404244 22.269213 116.406639 22.268624 116.411889 22.266899 116.424668 22.266515 116.433579 22.265414 116.439179 22.265313 116.446488 22.264492 116.457512 22.264483 116.465660 22.264442 116.475213 22.264385 116.482941 22.263802 116.489800 22.263098 116.492981 22.262299 116.497414 22.261873 116.499986 22.261290 116.501259 22.261003 116.501954 22.261424 116.534539 22.260819 116.544243 22.261070 116.553261 22.260339 116.563782 22.259357 116.571359 22.259171 116.583214 22.258744 116.593041 22.257804 116.603852 22.256922 116.613039 22.257012 116.624596 22.258152 116.636864 22.258276 116.643929 22.259142 116.647691 22.264694 116.654343 22.266637 116.658562 22.267483 116.659947 22.274413 116.671286 22.274578 116.671556 22.279738 116.681367 22.284017 116.689072 22.287652 116.699974 22.291326 116.708168 22.297722 116.718041 22.303061 116.728424 22.307103 116.741814 22.311213 116.752900 22.312586 116.763666 22.315106 116.775187 22.321909 116.787959 22.327664 116.802532 22.334851 116.816103 22.341143 116.828874 22.345868 116.839288 22.351184 116.853210 22.353531 116.860504 22.358247 116.872742 22.359970 116.881539 22.361673 116.888237 22.363386 116.896912 22.363527 116.905961 22.362547 116.913689 22.359643 116.923768 22.357270 116.930664 22.353687 116.938751 22.349886 116.945678 22.344179 116.953156 22.338498 116.959022 22.333440 116.965363 22.327641 116.972687 22.320965 116.978813 22.316060 116.984192 22.309980 116.989189 22.304903 116.992982 22.299157 116.996568 22.292390 116.999208 22.286625 117.000376 22.281846 117.001184 22.280301 117.001878 22.279841 117.002267 22.277563 117.006814 22.275692 117.015924 22.274951 117.020929 Then easterly to Latitude 22.274940 South, Longitude 117.021666 East, being a point on the present boundary of Native Title Determination WAD6208/1998 Eastern Guruma (WC1997/089); Then generally southerly, generally easterly and generally southeasterly along the boundaries of that native title determination to its southernmost southwestern corner at Latitude 22.705647 South, Longitude 117.334829 East; Then generally westerly and generally southerly through the following coordinate positions: Latitude (South) Longitude (East) 22.706919 117.327239 22.707428 117.325137 22.709573 117.319565 22.711563 117.313051 22.713797 117.306718 22.717667 117.296915 22.719694 117.291347 22.722414 117.285374 22.724463 117.280374 22.726844 117.274794 22.728546 117.269995 22.730559 117.264049 22.732557 117.257724 22.732881 117.256954 22.735306 117.252509 22.737252 117.244860 22.738071 117.241609 22.738741 117.240637 22.739567 117.237576 22.739722 117.235486 22.741167 117.230129 22.744395 117.222055 22.746762 117.216096 22.748634 117.206555 22.749084 117.199908 22.749461 117.194400 22.749874 117.186807 22.750221 117.180542 22.751209 117.172549 22.750495 117.163293 22.748734 117.157484 22.747946 117.155429 22.746936 117.153761 22.745006 117.146632 22.744211 117.141356 22.743917 117.133789 22.742915 117.126247 22.742480 117.121148 22.742812 117.114506 22.742518 117.106938 22.742224 117.099371 22.742365 117.093872 22.742085 117.086683 22.741828 117.080062 22.741762 117.078359 22.742624 117.076244 22.742662 117.068096 22.742684 117.062601 22.742817 117.056913 22.743592 117.052528 22.743703 117.046272 22.743880 117.041719 22.744182 117.040381 22.744478 117.032792 22.745222 117.027650 22.746587 117.020212 22.747073 117.017542 22.747714 117.015814 22.748614 117.014644 22.749469 117.012339 22.749373 117.009880 22.746271 117.002984 22.745771 116.999213 22.745057 116.989956 22.745175 116.983889 22.746385 116.975510 22.746672 116.973794 22.748707 116.968416 22.750712 116.962280 22.751037 116.961510 22.752474 116.955964 22.753765 116.949665 22.755187 116.943740 22.757487 116.936078 22.760258 116.925368 22.761703 116.920011 22.763060 116.912383 22.763178 116.909348 22.764903 116.902086 22.766112 116.893706 22.767793 116.885309 22.770595 116.875356 22.772106 116.865638 22.773382 116.855930 22.775063 116.850564 22.779420 116.838091 22.780563 116.824977 22.780195 116.815518 22.780756 116.805646 22.781796 116.798977 22.782828 116.792119 22.783330 116.786796 22.784502 116.777471 22.784253 116.771039 22.784674 116.763635 22.784902 116.754343 22.786517 116.744244 22.786894 116.738736 22.787204 116.731525 22.786946 116.724904 22.786880 116.723201 22.787875 116.721460 22.788606 116.715939 22.789033 116.711756 22.790471 116.706209 22.792159 116.701033 22.794576 116.696398 22.796478 116.693676 22.798623 116.691135 22.799500 116.689398 22.803480 116.685464 22.806318 116.682519 22.810696 116.679707 22.813813 116.677888 22.815066 116.676705 22.820159 116.674057 22.827087 116.670015 22.829261 116.668231 22.830204 116.668196 22.833440 116.666373 22.834354 116.665582 22.838223 116.664872 22.845792 116.662133 22.848703 116.661080 22.854112 116.660504 22.859846 116.659158 22.870201 116.658212 22.876568 116.657980 22.883068 116.658121 22.889826 116.658822 22.895405 116.659566 22.901264 116.661436 22.906754 116.662941 22.915038 116.666427 22.917941 116.668216 22.922274 116.670331 Then southeasterly to the southern bank of the Hardy River at Longitude 116.670555 East; Then extending generally northwesterly along that river bank to Longitude 116.123696 East; Then southwesterly, generally northerly and generally northwesterly through the following coordinate positions: Latitude (South) Longitude (East) 22.740495 116.120168 22.733292 116.128912 22.726502 116.132951 22.716921 116.136393 22.710166 116.138257 22.697357 116.140368 22.686222 116.142873 22.675211 116.144656 22.663881 116.145346 22.647626 116.145759 22.631685 116.147447 22.617316 116.148984 22.607570 116.148798 22.594351 116.148544 22.573877 116.146520 22.557778 116.144218 22.543379 116.140679 22.534568 116.138154 22.529666 116.136428 22.517517 116.132389 22.501362 116.126641 22.489892 116.122252 22.477654 116.116760 22.467979 116.112224 22.457092 116.106396 22.447114 116.099860 22.437698 116.093154 22.429282 116.087011 22.417764 116.078633 22.409242 116.072125 22.398771 116.061411 22.391496 116.054021 22.382216 116.045867 22.376120 116.041762 22.370672 116.039120 22.356106 116.032134 22.344529 116.027380 22.332950 116.022807 22.323257 116.019359 22.317452 116.017979 22.311323 116.015867 22.300958 116.012406 22.287014 116.008513 22.280886 116.006401 22.272422 116.003157 22.261379 116.000046 Then northwesterly back to the commencement point. PKKP #2 Determination Area PORTION 1 All those lands and waters commencing at Latitude 22.139378 South, Longitude 115.673793 East, being a point on the present boundary of Native Title Determination WAD6113/1998 Thalanyji (WC1999/045); Then generally southeasterly and generally easterly through the following coordinate positions: Latitude (South) Longitude (East) 22.141283 115.675632 22.153039 115.683108 22.157942 115.684833 22.163728 115.687300 22.169173 115.690123 22.175517 115.692783 22.182300 115.695994 22.187972 115.698640 22.194392 115.703476 22.200356 115.708847 22.206950 115.716768 22.211683 115.728823 22.213654 115.738468 22.213456 115.750609 22.210584 115.761793 22.207654 115.769713 22.205071 115.776914 22.201518 115.788629 22.197957 115.800887 22.195689 115.809363 22.191788 115.821796 22.190430 115.829383 22.189963 115.844238 22.188744 115.857085 22.185824 115.871167 22.183208 115.880361 22.180554 115.891911 22.179454 115.904397 22.179368 115.909652 Then easterly to Latitude 22.179325 South, Longitude 115.912264 East, being a point on a western boundary of Native Title Application WAD6090/1998 Kuruma Marthudunera (Combined) (WC1999/012); Then generally southeasterly along boundaries of that native title application to the intersection with northernmost northwestern corner of Native Title Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) at Latitude 22.250819 South, Longitude 115.995908 East; Then generally southerly along boundaries of that native title application to Latitude 22.740495 South, Longitude 116.120168 East; Then generally southwesterly through the following coordinate positions: Latitude (South) Longitude (East) 22.744626 116.114265 22.750818 116.105683 22.757343 116.097288 22.762093 116.087772 22.764988 116.082027 22.769732 116.072874 22.771280 116.069541 Then southwesterly to Latitude 22.774669 South, Longitude 116.062249 East, being a point on a eastern boundary of Native Title Determination WAD6212/1998 Thudgari People (WC1997/095); Then northerly and generally southwesterly along boundaries of that native title determination to the centreline of the Henry River at Latitude 22.904084 south; Then generally northerly along the centreline of that river to the intersection with the centreline of the Ashburton River, being a point on the present boundary of Native Title Determination WAD6113/1998 Thalanyji (WC1999/045); Then northerly along the boundary of that native title determination to Latitude 23.398692 South, Longitude 115.672633 East and then northerly back to the commencement point. PORTION 2 All those lands and waters commencing at Latitude 22.705647 South, Longitude 117.334829 East, being a point on the present boundary of Native Title Determination WAD6208/1998 Eastern Guruma (WC1997/089); Then southwesterly to the centreline of the Beasley River at Latitude 22.710860 South; Then generally southwesterly along the centreline of that river to Latitude 22.881360 South; Then generally southeasterly, generally westerly, generally southerly and again generally southeasterly through the following coordinate positions: Latitude (South) Longitude (East) 22.884053 117.101678 22.891610 117.117115 22.897399 117.127085 22.901901 117.136089 22.905761 117.142682 22.909620 117.150400 22.912514 117.155868 22.914926 117.161013 22.916534 117.163747 22.917981 117.167927 22.919267 117.170018 22.921358 117.174681 22.925217 117.180148 22.926503 117.184650 22.929237 117.190118 22.931810 117.194942 22.932774 117.199122 22.934383 117.203303 22.934543 117.206037 22.935805 117.208112 22.936142 117.207871 22.935516 117.206524 22.936431 117.204359 22.936430 117.202820 22.936473 117.201374 22.937277 117.193816 22.937152 117.191852 22.938018 117.190121 22.938355 117.189014 22.937920 117.187384 22.936743 117.185241 22.937325 117.183283 22.936002 117.181801 22.936849 117.180055 22.935026 117.179505 22.935738 117.177250 22.934362 117.179155 22.932669 117.179843 22.931330 117.174511 22.931769 117.169895 22.931822 117.164816 22.931488 117.161335 22.930552 117.154550 22.929812 117.147883 22.929559 117.143326 22.930202 117.139949 22.942854 117.151960 22.941931 117.143942 22.943806 117.139032 22.947555 117.137604 22.953625 117.138943 22.959348 117.140342 22.964327 117.144284 22.971796 117.148641 22.976924 117.155993 22.980048 117.158046 22.987547 117.159653 22.990986 117.161815 22.992903 117.164920 22.993341 117.168778 23.000851 117.160061 23.000449 117.158854 23.001120 117.156843 23.000315 117.155100 23.001656 117.154563 23.002729 117.154026 23.002729 117.151881 23.004204 117.150405 23.006216 117.150272 23.008362 117.150808 23.009971 117.152685 23.009971 117.148528 23.011849 117.148797 23.013324 117.148796 23.013324 117.147053 23.015605 117.147589 23.015067 117.143968 23.016945 117.142493 23.018957 117.142359 23.020298 117.143566 23.020834 117.142359 23.020968 117.140750 23.020968 117.140347 23.022175 117.140213 23.023248 117.141822 23.024187 117.141554 23.026199 117.141555 23.026601 117.140347 23.026601 117.139140 23.026735 117.137799 23.028076 117.137397 23.029015 117.138336 23.029820 117.140079 23.030356 117.139677 23.030356 117.138470 23.029820 117.137665 23.029552 117.137129 23.029954 117.136726 23.031698 117.138470 23.033843 117.137933 23.035587 117.137129 23.033977 117.135653 23.033307 117.134581 23.033575 117.133240 23.035587 117.135519 23.036794 117.133776 23.035587 117.133240 23.034514 117.131630 23.036794 117.130825 23.035721 117.130155 23.035319 117.128680 23.034246 117.129618 23.033843 117.127338 23.035319 117.127338 23.035319 117.125863 23.036660 117.125729 23.036392 117.124254 23.037330 117.123718 23.038403 117.126132 23.039744 117.127205 23.040415 117.128814 23.039878 117.131228 23.040683 117.132435 23.042158 117.131899 23.042963 117.131094 23.044438 117.132569 23.045243 117.131630 23.044572 117.127071 23.044572 117.125461 23.045243 117.124388 23.046584 117.125461 23.048194 117.127071 23.049266 117.128009 23.050607 117.129484 23.050473 117.132033 23.049132 117.133106 23.047657 117.132167 23.047121 117.134581 23.047657 117.136190 23.049266 117.137665 23.048998 117.139945 23.049400 117.142091 23.052083 117.140616 23.051144 117.143834 23.052753 117.144773 23.054363 117.142091 23.055570 117.138738 23.057715 117.140214 23.058654 117.142896 23.058922 117.144103 23.056106 117.146249 23.055435 117.148663 23.059191 117.145310 23.060398 117.147724 23.062677 117.150674 23.063225 117.152298 23.063482 117.153669 23.062455 117.155125 23.061684 117.155810 23.060313 117.156238 23.060056 117.159236 23.061341 117.160778 23.063996 117.161634 Then southerly to the northernmost northwestern corner of Native Title Application WAD6173/98 Gobawarrah Minduarra Yinhawanga (WC1997/043) at Latitude 23.067401 South, Longitude 117.161884 East; Then southerly along a western boundary of that native title application to the intersection with the boundary of Native Title Application WAD6007/2000 Jurruru (WC2000/008) at Longitude 117.169463 East; Then generally northwesterly along the boundaries of that native title application to the intersection with a southeastern corner of Native Title Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) at Longitude 116.670555 East; Then generally northerly, generally easterly and generally northeasterly along boundaries of that native title application back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. Ashburton River, Beasley Creek and Henry River based on topographic 1:250 000 vector data is © Commonwealth of Australia and is from Geoscience Australia (2003). For the avoidance of doubt the PKKP #2 Determination Area excludes any land and waters covered by: Native Title Application WAD6173/1998 Gobawarrah Minduarra Yinhawanga (WC1997/043) as accepted for registration on the 25th June 1997. Native Title Application WAD6007/2000 Jurruru People (WC2000/008) as accepted for registration on the 1st March 2001. Native Title Application WAD6090/1998 Kuruma Marthudunera (Combined Application) (WC1999/012) as accepted for registration on the 24th June 1999. Native Title Application WAD6007/2001 Puutu Kunti Kurrama and Pinikura (WC2001/005) as accepted for registration on the 29th November 2001. Native Title Determination WAD6113/1998 Thalanyji (WC1999/045) as determined in the Federal Court on the 18th September 2008. Native Title Determination WAD6212/1998 Thudgari People (WC1997/095) as determined in the Federal Court on the 18th November 2009. Native Title Application WAD340/2010 Yinhawangka Part A (WC2010/016) as accepted for registration on the 10th December 2010. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Native Title Spatial Services (Landgate) 15th July 2015 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. SCHEDULE TWO MAPS OF THE DETERMINATION AREA 1. Attachment 1 Overview of PKKP #1 & PKKP #2 Determination Area 2. Attachment 2 PKKP #1 Determination Area 3. Attachment 2 – Enlargement 1 PKKP #1 Determination Area (northwestern portion) 4. Attachment 3 PKKP #2 Determination Area 5. Attachment 3 – Enlargement 1 PKKP #2 Determination Area (western portion) 6. Attachment 3 – Enlargement 2 PKKP #2 Determination Area (eastern portion) SCHEDULE THREE AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2) Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 4 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two: 1. Freehold Lot 2 on Deposited Plan 130398 being the whole of the land currently the subject of certificate of title volume 959 folio 23. Lot 1 on Deposited Plan 253489 being the whole of the land currently the subject of certificate of title volume 2209 folio 879. 2. Dedicated roads and roads set aside, taken or resumed Dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following: Road No 14619 (Nanutarra-Wittenoom Road) dedicated by notice published in the Government Gazette on 3 March 1972; Road No 8385 dedicated by notice published in the Government Gazette on 17 January 1930; Road No 8477 dedicated by notice published in the Government Gazette on 4 April 1930; Road No 8476 dedicated by notice published in the Government Gazette on 4 April 1930; Road No 8474 dedicated by notice published in the Government Gazette on 4 April 1930; Road No 8469 dedicated by notice published in the Government Gazette on 4 April 1930; Road No 7911 dedicated by notice published in the Government Gazette on 17 January 14 September 1928; Road No 440 dedicated by notice published in the Government Gazette on 7 September 1894; Road No 258 dedicated by notice published in the Government Gazette on 8 September 1887; and Road No 257 dedicated by notice published in the Government Gazette on 8 September 1887. 3. Reserves Reserve 37596 (Quarry) vested under section 33 of the Land Act 1933 (WA) (repealed). 4. Public Works Any other public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act applies. SCHEDULE FOUR OTHER INTERESTS (Paragraph 7) The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are: 1. Reserves (a) The following reserves: Reserve No. Current Purpose 1108 Watering Place 1111 Watering Place 1235 Watering Place for Travellers & Stock 1236 Watering Place for Travellers & Stock 4700 Water 9701 De Grey Mullewa Stock Route 17673 Addition to De Grey Mullewa Stock Route 40902 Geodetic Station 40903 Geodetic Station 40904 Geodetic Station 40905 Geodetic Station 40906 Geodetic Station 40907 Geodetic Station 40908 Geodetic Station 46122 Conservation Park (b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above; (c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and (d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above. 2. Pastoral Leases The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: Pastoral Lease Station Name 3114/0647 (PL N050360) Wyloo 3114/1014 (PL N050594) Glenflorrie 3114/1096 (PL N049833) Nanutarra 3114/1166 (PL N050372) Rocklea 3114/1218 (PL N050036) Ashburton Downs 3114/1236 (PL N049418) Kooline 3114/1262 (PL N049852) Red Hill 3114/1267 (PL N050169) Mount Stuart 3114/1277 (PL N050438) Hamersley 398/782 (PL N050545) Cheela Plains 3. Mining Tenements and Petroleum Interests (a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements: (i) Mining Leases Tenement ID Tenement ID Tenement ID M 08/7 M 08/315 M 08/477 M 08/99 M 08/455 M 08/495 M 08/149 M 08/456 M 47/1430 M 08/196 M 08/468 M 47/1488 M 08/222 M 08/469 M 47/1489 (ii) Exploration Licences Tenement ID Tenement ID Tenement ID Tenement ID E 08/691 E 08/2131 E 47/468 E 47/1783 E 08/1166 E 08/2132 E 47/469 E 47/1784 E 08/1187 E 08/2145 E 47/470 E 47/1785 E 08/1189 E 08/2146 E 47/472 E 47/1786 E 08/1283 E 08/2157 E 47/662 E 47/1787 E 08/1292 E 08/2199 E 47/778 E 47/1788 E 08/1330 E 08/2200 E 47/780 E 47/1832 E 08/1393 E 08/2251 E 47/781 E 47/1846 E 08/1408 E 08/2252 E 47/783 E 47/1850 E 08/1516 E 08/2258 E 47/892 E 47/1861 E 08/1627 E 08/2271 E 47/942 E 47/1863 E 08/1628 E 08/2293 E 47/1038 E 47/1869 E 08/1629 E 08/2294 E 47/1134 E 47/1879 E 08/1631 E 08/2295 E 47/1141 E 47/1914 E 08/1649 E 08/2296 E 47/1154 E 47/1988 E 08/1650 E 08/2332 E 47/1194 E 47/2035 E 08/1712 E 08/2364 E 47/1195 E 47/2037 E 08/1741 E 08/2393 E 47/1196 E 47/2143 E 08/1744 E 08/2395 E 47/1218 E 47/2160 E 08/1745 E 08/2416 E 47/1277 E 47/2171 E 08/1763 E 08/2418 E 47/1299 E 47/2215 E 08/1842 E 08/2420 E 47/1300 E 47/2236 E 08/1843 E 08/2482 E 47/1301 E 47/2268 E 08/1844 E 08/2485 E 47/1302 E 47/2292 E 08/1845 E 08/2490 E 47/1351 E 47/2327 E 08/1878 E 08/2496 E 47/1373 E 47/2333 E 08/1915 E 08/2498 E 47/1395 E 47/2378 E 08/1916 E 08/2499 E 47/1396 E 47/2442 E 08/1933 E 08/2512 E 47/1415 E 47/2587 E 08/1949 E 08/2542 E 47/1448 E 47/2636 E 08/1950 E 08/2555 E 47/1500 E 47/2729 E 08/1961 E 08/2556 E 47/1533 E 47/2759 E 08/1964 E 08/2558 E 47/1535 E 47/2834 E 08/1985 E 08/2559 E 47/1549 E 47/2909 E 08/1986 E 08/2560 E 47/1553 E 47/2910 E 08/1997 E 08/2565 E 47/1649 E 47/2911 E 08/2000 E 08/2566 E 47/1650 E 47/2912 E 08/2003 E 08/2567 E 47/1677 E 47/2987 E 08/2034 E 08/2568 E 47/1679 E 47/3057 E 08/2040 E 08/2570 E 47/1682 E 47/3080 E 08/2055 E 08/2627 E 47/1693 E 47/3081 E 08/2056 E 08/2652 E 47/1703 E 47/3117 E 08/2065 E 08/2653 E 47/1725 E 47/3133 E 08/2067 E 08/2658 E 47/1728 E 47/3150 E 08/2114 E 47/16 E 47/1773 E 47/3151 E 08/2130 E 47/45 E 47/1779 E 47/3152 (iii) Prospecting Licences Tenement ID Tenement ID Tenement ID P 08/516 P 47/1340 P 47/1639 P 08/531 P 47/1342 P 47/1645 P 08/532 P 47/1390 P 47/1647 P 08/543 P 47/1391 P 47/1649 P 08/546 P 47/1392 P 47/1650 P 08/556 P 47/1393 P 47/1663 P 08/565 P 47/1394 P 47/1664 P 08/646 P 47/1395 P 47/1665 P 08/653 P 47/1396 P 47/1666 P 47/1237 P 47/1397 P 47/1667 P 47/1270 P 47/1398 P 47/1668 P 47/1278 P 47/1399 P 47/1669 P 47/1313 P 47/1400 P 47/1670 P 47/1316 P 47/1401 P 47/1671 P 47/1317 P 47/1402 P 47/1672 P 47/1318 P 47/1403 P 47/1673 P 47/1328 P 47/1404 P 47/1674 P 47/1330 P 47/1423 P 47/1675 P 47/1332 P 47/1427 P 47/1693 P 47/1333 P 47/1474 P 47/1694 P 47/1334 P 47/1545 P 47/1336 P 47/1554 P 47/1338 P 47/1637 P 47/1339 P 47/1638 (iv) Miscellaneous Licences Tenement ID Tenement ID Tenement ID L 08/12 L 08/56 L 08/107 L 08/13 L 08/63 L 08/113 L 08/14 L 08/69 L 08/124 L 08/15 L 08/81 L 47/141 L 08/26 L 08/85 L 47/153 L 08/31 L 08/91 L 47/184 L 08/44 L 08/92 L 47/185 L 08/46 L 08/103 L 47/232 (v) Retention Licences Tenement ID R 47/7 (vi) General Purpose Lease Tenement ID G 47/1227 (b) The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests: Tenement ID Tenement Type PL24 Pipeline Licence F924685 Easement (c) The agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement: Tenement ID Tenement Type AML 7000004 Mining lease 4. Access to Mining and Petroleum Areas (a) Without limiting the operation of any other clause in Schedule Four, but subject to clause (4)(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest including those referred to in clause 3 of Schedule Four to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest. (b) Nothing in clause 4(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 4(a). (c) Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clause 3 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest. 5. Indigenous Land Use Agreements (a) The RTIO and PKKP People Indigenous Land Use Agreement (Area Agreement) dated 15 November 2012, and registered on the Register of Indigenous Land Use Agreements on 24 April 2013 (Tribunal No. WI2012/011), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that ILUA. 6. Other The following rights and interests: (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation; (b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA); (c) Rights and interests of members of the public arising under the common law, including but not limited to: (i) the public right to fish; (ii) the public right to navigate; and (iii) the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law; (d) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; and (iii) an employee, agent or instrumentality of any local government authority, as required in the performance of his or her statutory or common law duty; (e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (i) waterways; (ii) beds and banks or foreshores of waterways; (iii) coastal waters; (iv) beaches; (v) stock routes; and (vi) areas that were public places at the end of 31 December 1993; (f) Any other: (i) legal or equitable estate or interest in the land or waters; or (ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (A) the land or waters; or (B) an estate or interest in the land or waters; or (iii) restriction on the use of the land or waters, whether or not annexed to other land or waters. SCHEDULE FIVE NATIVE TITLE HOLDERS (Paragraph 3) The Puutu Kunti Kurrama and Pinikura People means the Puutu Kunti Kurrama people and the Pinikura people as described below. The Puutu Kunti Kurrama people are those persons who: (a) descended from one or more of the following ancestors: Ngarupunga [Ngarupungu], Kitty, Jukaan Tommy Ashburton, Ina Winnie Ashburton, Punch Ashburton, Katarra Dick Ashburton, and Kalkardi Dinah; and (b) identify themselves as Puutu Kunti Kurrama in accordance with the traditional laws acknowledged and the traditional customs observed by Puutu Kunti Kurrama people; and (c) are accepted in accordance with the traditional laws acknowledged and the traditional customs observed as Puutu Kunti Kurrama people. The Pinikura people are those persons who: (a) descended from one or more of the following ancestors: Kaita, Markakurru Topsy Williams, Bonnie, Winnie Hayes (Hicks) and Punch Hughes [Kalpanthalu]; (b) identify themselves as Pinikura in accordance with the traditional laws acknowledged and the traditional customs observed by Pinikura people; and (c) are accepted in accordance with the traditional laws acknowledged and the traditional customs observed as Pinikura people. ATTACHMENT B PRESCRIBED BODY CORPORATE RULE BOOK IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6007 of 2001 BETWEEN: JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY AND DONNA MEYER Applicants AND: STATE OF WESTERN AUSTRALIA First Respondent SHIRE OF ASHBURTON Third Respondent YAMATJI MARLPA ABORIGINAL CORPORATION Fourth Respondent HAMERSLEY IRON PTY LTD and ROBE RIVER MINING CO PTY LTD Fifth Respondents MARTIN LAWRENCE AVERY, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, ROCKLEA STATION PTY LTD and SAMCO BEEF PTY LTD Sixth Respondents IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 126 of 2005 BETWEEN: JOHN ASHBURTON, DIANNE CHUBBY, MAURICE DAUBLIN, SUZETTE JILBA, ROBERT MCKAY and DONNA MEYER Applicants AND: STATE OF WESTERN AUSTRALIA First Respondent API MANAGEMENT PTY LTD Second Respondent DEBORAH ALICE AVERY, MARTIN LAWRENCE AVERY, BAMBI PTY LTD, CHEELA PLAINS PASTORAL CO PTY LTD, JOHN DIGBY CORKER, LEANNE MARGARET CORKER, ANDREW NICHOLAS GLENN, JANETTE ANN GLENN, PETER ROBERT GREY, SUSAN JEAN GREY and RED SKY STATIONS PTY LTD Third Respondents JUDGE: MCKERRACHER J DATE: 2 SEPTEMBER 2015 PLACE: house creek, WESTERN AUSTRALIA REASONS FOR JUDGMENT INTRODUCTION 1 The Puutu Kunti Kurrama and Pinikura #1 (PKKP 1) and Puutu Kunti Kurrama and Pinikura # 2 (PKKP 2) applications are before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (Native Title Act). The applications cover an area of approximately 10,888 square kilometres of land and waters which lie between Exmouth and Tom Price in the Pilbara region of Western Australia. 2 The PKKP 1 application was filed on 30 October 2001 and the PKKP 2 application was filed on 1 June 2005. The PKKP 1 application has not been amended since it was filed. The PKKP 2 application was amended twice pursuant to orders of the Court on 28 September 2005 and 10 November 2005. 3 I heard preservation evidence on 12 and 13 August 2008 at various on-country locations in the claim area from the following witnesses: Chloe Hayes, Maudie Downton and Maggie Drage. Agreement to resolve the application 4 The parties have reached an agreement as to the terms of the determination of native title pursuant to s 87 and s 94A of the Native Title Act in relation to the land and waters covered by the PKKP 1 and PKKP 2 applications (proposed Determination Area). 5 The PKKP applications are made on behalf of two separate but related language groups (Puutu Kunti Kurrama People and Pinikura People) who together claim rights and interests within the claim area. The applications are made on the basis that within the application area, as between the Puutu Kunti Kurrama People and Pinikura People, the Puutu Kunti Kurrama People speak for Puutu Kunti Kurrama country, Pinikura People speak for Pinikura country, and together they both speak for a shared area of country. While this delineation is not apparent in the terms of the determination, it is reflected in the membership and decision making structure of the prescribed body corporate to be nominated by the applicants to hold the determined native title on trust for the native title holders. On that basis, the parties have agreed that a single determination in favour of the Puutu Kunti Kurrama Pinikura People is appropriate in the circumstances. 6 The pastoral respondents Cheela Plains Pastoral Co Pty Ltd, A N & J A Glenn, P R &S J Grey, Stamco Beef Pty Ltd and Red Sky Stations Pty Ltd have agreed to the terms of the determination on the basis of having reached agreements with the applicants in relation to those portions of their respective pastoral leases that are situated within the Determination Area. Following the determination taking effect, those agreements will be executed and an application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act. 7 In support of the agreement reached, the State of Western Australia has filed a Minute of Proposed Consent Determination of Native Title (Minute) which has been signed by each of the parties. 8 The applicants have filed two affidavits of Mr Graham O'Dell affirmed 7 August 2015 and 14 August 2015. The affidavits set out the process undertaken by the applicants to authorise the agreement reached and the status of the nomination of a prescribed body corporate, and the description of the proposed native title holding group, respectively. 9 In addition the applicants and the State have filed joint submissions in support of the Minute (joint submissions). 10 The parties agree that the Puutu Kunti Kurrama and Pinikura people means the Puutu Kunti Kurrama people and the Pinikura people as described below: The Puutu Kunti Kurrama people are those persons who: (a) descended from one or more of the following ancestors: Ngarupunga [Ngarupungu], Kitty, Jukaan Tommy Ashburton, Ina Winnie Ashburton, Punch Ashburton, Katarra Dick Ashburton, and Kalkardi Dinah; and (b) identify themselves as Puutu Kunti Kurrama in accordance with the traditional laws acknowledged and the traditional customs observed by Puutu Kunti Kurrama people; and (c) are accepted in accordance with the traditional laws acknowledged and the traditional customs observed as Puutu Kunti Kurrama people. The Pinikura people are those persons who: (a) descended from one or more of the following ancestors: Kaita, Markakurru Topsy Williams, Bonnie, Winnie Hayes (Hicks) and Punch Hughes [Kalpanthalu]; (b) identify themselves as Pinikura in accordance with the traditional laws acknowledged and the traditional customs observed by Pinikura people; and (c) are accepted in accordance with the traditional laws acknowledged and the traditional customs observed as Pinikura people. 11 The external boundaries of the proposed Determination Area are described in Schedule One to the Minute and shown on the maps in Schedule 2 (being within the areas delineated in blue (PKKP 1 application) and green (PKKP 2 application)). 12 The internal boundaries of the proposed PKKP Determination Area are those areas described in Schedule Two of the Minute (being areas where native title does not exist) and shown as shaded pink on the maps in Schedule 2. 13 Regarding determination of a prescribed body corporate pursuant to ss 55, 56 and 57 of the Native Title Act, the Minute includes agreement that within six months of the date the determination is made, the common law holders of the native title rights and interests will nominate a prescribed body corporate pursuant to s 56 of the Native Title Act on the terms provided in the Minute. Until the nomination is made the determination of native title will not take effect and in the event that no nomination is made within six months of the date the determination is made, or such time as the Court may order, the matter is to be listed for further directions. Assessment of connection material 14 It is apparent from the joint submissions, that the PKKP applicants provided the State with various written material (connection material) in support of the PKKP People's connection with the claim areas: (a) an anthropological report by Dr Pamela McGrath titled 'Puutu Kunti Kurrama and Pinikura Peoples Native Title Claims No.1 (WAD 6007/01) and No.2 (WAD 126/05) Connection Report (August 2009)'; (b) a supplementary document authored by Dr McGrath titled 'Clarification of Issues Arising from State Review of Connection Evidence for Puutu Kunti Kurrama Pinikura #1 and #2 (WAD 6007/01 and 125/05)' and dated May 2010; (c) a further supplementary document authored by Dr McGrath titled 'Further Material Addressing State Review of Connection Evidence for Puutu Kunti Kurrama Pinikura #1 and #2 (WAD 6007/01 and 125/05)' and dated July 2010; and (d) an historical report by Dr Neville Green titled 'History Connection Report on behalf of WC01/5 Puutu Kunti Kurrama and Pinikura; WC05/4 Puutu Kunti Kurrama and Pinikura 2' (14 July 2007). 15 The connection material, and the transcript of preservation evidence of Maggie Drage, Maudie Dowton and Chloe Hayes, referred to above, was assessed by the State in accordance with its Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title dated October 2004. The State's response to the material was informed by independent anthropological advice from Dr Michael Robinson and legal advice from the State Solicitor's Office. Connection to Country 16 The joint submissions provide the following information regarding the Puutu Kunti Kurrama and Pinikura People's connection to country: (a) The PKKP People comprise two socio-territorial language groups who have come together for the purpose of jointly pursuing recognition of their native title rights and interests. The two groups share many laws and customs in common but are two separate peoples who hold discrete rights and interests in different areas of country within the one native title claim, as well as a shared area of country. The PKKP claim area includes the country of the Pinikura, and part of the country of the Kurrama historically occupied by the Puutu Kunti Kurrama. (b) The PKKP applications straddle two distinct geographic areas of the Pilbara commonly referred to as the 'Ashburton Plains' and the 'Hamersley Plateau'. The broader region in which the claim is located is often referred to as the 'West Pilbara'. The western boundary of the claim is approximately 120 km east of the town of Onslow; the eastern boundary is approximately 90 km from Paraburdoo. (c) Membership of the Pinikura and the Puutu Kunti Kurrama groups is determined via serial parental filiation from known ancestors associated with their respective languages, and the country of these languages. The groups' ancestors and their descendants are considered to have maintained a common spiritual affiliation with, and share primary spiritual responsibility for, ancestral country since time immemorial 'when the land was soft'. (d) Over time since colonisation there has been considerable attenuation of some elements of the structure and function of social organisation for both the Pinikura and Kurrama peoples, such as the existence of residential local groups and totemic clans. These changes have not, however, resulted in the extinction of the native title rights and interests traditionally derived through these smaller groups' relationships to land. Both Kurrama and Pinikura remain viable socio-territorial language groups whose unique identity and territorial associations are recognised by other such groups throughout the region. (e) Pinikura is a unique socio-territorial language identity that is consistently located in the ethno-historical record, and which demonstratively existed prior to European settlement of the Ashburton Plains region. (f) Puutu Kunti Kurrama is a unique socio-territorial identity within a broader Kurrama society, being one of three sub-groups associated with the Kurrama language and Kurrama law and custom. (g) Land-related laws and customs of the Pinikura and Kurrama people are many, and instances of their practice innumerable. Pinikura and Kurrama people observe many common laws and customs both with each other and with neighbouring groups. (h) This body of interconnected laws and customs facilitates ongoing spiritual connection to country and allows for the use, protection and sharing of the resources of country. These laws and customs have been normatively acknowledged and observed through time, albeit with attenuation or alteration where traditional practices are technologically redundant or no longer socially feasible. (i) Both Kurrama and Pinikura people refer to their traditional lands as their 'country', or ngurrara. At its broadest the term 'country' describes the entire area associated with the socio-territorial language group of an individual. The term is sometimes used more narrowly to refer to the area of an individual's birth. Importantly, it is the broadest definition of the term 'country' that applies when core native title rights and interests are conceptualised. (j) Pinikura and Puutu Kunti Kurrama country is believed to have retained an active spiritual potency despite the many social and economic upheavals that resulted from non-Aboriginal occupation of the area. (k) In contemporary Pinikura and Kurrama society, core rights and interests in land are determined by serial parental filiation from known ancestors associated with each socio-territorial group. These core rights and interests are inalienably tied to an individual's primary language group identity. As well as descent, membership of both the Pinikura and Kurrama language groups requires self-identification with the language group, and acceptance of that identity by other members of the group. (l) Core rights and interests can be exercised without discussion or permission from other members of the group. Any act or event that will significantly impact on the landscape or its resources, or on the core rights of others, involves a process of collective consultation and decision making. (m) The histories of both Pinikura and Puutu Kunti Kurrama people demonstrate the ongoing occupation and use of their traditional country, with occupation of country by known ancestors evidenced in oral history as far back as circa 1885. Documentary evidence of occupation of country by known ancestors can be dated back to 1903 (in the case of Pinikura ancestor Topsy Ashburton) and the 1920s (in the case of her husband Tommy Ashburton, who was born before circa 1900 but whom does not appear in documentary sources until the birth of his children). (n) The significant social and economic impacts of European settlement in other areas of the Pilbara were not fully felt by the Aboriginal occupants of the Ashburton Plains and Hamersley Plateau until circa 1880s when the first pastoral stations were established. In 1893 most Aboriginal residents on pastoral stations in the area of the PKKP applications can confidently be said to have been living on or close to their ancestral country or that of their spouse. At this time many Aboriginal people still lived independent, mobile lives on country. Description of the proposed native title holders 17 An issue identified in the joint submissions is that the description of the proposed native title holding group in Schedule Five of the Minute differs slightly from the description of the native title claim groups in the PKKP applications. 18 Mr Graham O'Dell in his affidavit of 14 August 2015 affirms that the ancestors in both native title applications and the consent determination description of native title holders are the same. 19 The consent determination description of native title holders only adds two additional qualifiers in requiring someone to 'identify' as being part of a particular language group and that they are 'accepted' by others as being part of that particular language group. 20 The additional qualifiers provide a more accurate way of describing claim group membership and are consistent with the traditional laws and customs of the PKKP People and the anthropological evidence outlined in the Connection Report. 21 Further, as indicated above the PKKP 1 application has never been amended and the PKKP 2 application has not been amended since 2005. The applicants have provided evidence that an authorisation meeting was held on 11 June 2015 in Karratha for the purpose of authorising the agreement reached including the terms of the Minute. The authorisation decision was made by the claim group in accordance with the decision-making process agreed and adopted by the PKKP People who resolved: To authorise the PKKP native title consent determination as outlined at today's meeting by YMAC lawyers and authorise YMAC to negotiate any minor or technical changes that ensure consent of all parties. 22 The affidavit of Mr Graham O'Dell affirmed 7 August 2015 states that the meeting on 11 June 2015 was a properly notified and convened meeting of the PKKP People and that the PKKP People who attended the meeting were broadly representative of the Kurrama and Pinikura language groups of the PKKP People. The attendees were also representative of the broader Kurrama and Pinikura language groups within the PKKP community in a manner consistent with those who regularly participate in community meetings concerning the PKKP Claims and related matters. 23 The joint submission in respect of the proposed native title holders in Schedule Five of the Minute confirms that during the course of negotiations, the parties settled on that description having satisfied themselves that: (a) the description accurately reflects the position as described in the connection materials; and (b) captures all native title holders. 24 The Court is not limited to making a determination in the form sought in the application and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 (at [18]). Having considered the material it appears appropriate for the Court to make the determination sought in the Minute for the following reasons: (a) the group of proposed native title holders is, in substance, the same group as the native title claimant group described in the PKKP applications and the ancestors in both native title applications and the consent determination description of native title holders are the same; (b) the description accurately reflects the position as described in the connection materials; (c) the description captures all proposed native title holders; (d) the claimant group authorised the terms of the Minute including the proposed native title holders in Schedule Five at an authorisation meeting which was sufficiently notified and representative of the PKKP People; and (e) the State is satisfied that the proposed native title holders are the persons described in Schedule Five of the Minute. Nomination of Prescribed Body Corporate 25 The joint submissions indicate that despite their best efforts, the PKKP applicants are not in a position to seek a determination that their native title be held in trust by a prescribed body corporate when the determination of native title is made. Accordingly, the Court is not requested to make a determination in accordance with ss 55, 56 and 57 of the Native Title Act at this time. Rather, the Minute provides that the determination of native title will not take effect until a prescribed body corporate is nominated under s 56 of the Native Title Act on the terms provided in the Minute. The PKKP applicants expect to be able to make that determination within 6 months of the determination of native title. 26 The Minute recites that the parties have agreed to the orders sought on the basis that the native title will be held in trust by a prescribed body corporate which is known to the parties and which has an approved rule book. This reflects that part of the negotiation of the agreement the subject of the PKKP Determination involved the PKKP applicants engaging with the State on the provisions of a prescribed body corporate rule book which, ultimately, was approved by the PKKP native title claim groups and endorsed by the State. That rule book is annexed to the Minute at Attachment B. Those parties are satisfied that the rule book reflects the PKKP People's connection to country and provides a sound basis for the native title rights and interests to be held and managed. 27 The PKKP applicants will remain as registered native title claimants in advance of the determination taking effect. 28 As observed in WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (at [20]), the delay in giving effect to a determination of native title because of the delay in determining the prescribed body corporate is not an ideal situation. Notwithstanding this, based on the agreement reached as reflected in the Minute and the joint submissions, the Court will make the orders accordingly. Requirements pursuant to s 87 Native Title Act 29 The joint submissions seek that a determination of native title should be made pursuant to s 87 of the Native Title Act. Section 87 of the Native Title Act provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where: (a) the period specified in the notice given under s 66 of the Native Title Act has ended and an agreement has been reached regarding the proceeding or part of the proceeding (s 87(1)(a)); (b) the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b)); (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and (d) it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)). 30 Regarding these requirements, pursuant to s 87(1) of the Native Title Act, the notification period for the PKKP 1 application ended on 14 August 2002 and for the PKKP 2 application on 12 December 2006. 31 The Minute reflecting the agreement reached for the proposed determination has been filed in the Court, is in writing and is signed on behalf of all the parties to the applications (s 87(1)(b) of the Native Title Act). The agreement for a proposed determination is in relation to the land and waters claimed in the PKKP 1 and PKKP 2 applications (s 87(1)(a)). 32 The orders sought in the Minute are consistent with the terms of the agreement pursuant to s 87(1)(c) of the Native Title Act for the following reasons: (a) the form of the proposed determination complies with s 94A and s 225 of the Native Title Act; (b) the PKKP applications are validly made, having been authorised by the claim group members according to an agreed and adopted decision-making process that authorised the applicants to make the native title determination applications (as required by s 251B of the Native Title Act); (c) the PKKP People have authorised the form of the proposed determination according to an agreed and adopted decision making process; (d) the PKKP applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Native Title Act) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the Native Title Act). 33 The focus of the Court in considering whether the orders sought are appropriate is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 (at [11]). 34 As to the principles governing the exercise of the Court's discretion pursuant to s 87 of the Native Title Act, Bennett J noted in Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (at [22]) [t]he discretion conferred by s 87A and by s 87 must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. This includes the resolution of native title disputes by mediation and agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 (at [8]) and Black CJ in Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (both cited by Bennett J in Brown (at [22]). 35 As the terms of s 87(2) of the Native Title Act suggest, this does not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Indeed, it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes per Bennett J (at [9]) and Ward v State of Western Australia [2006] FCA 1848 per North J (at [8]) in respect of s 87 (and, similarly, Brown per Bennett J (at [23]–[24]) in respect of s 87A). 36 The requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a government respondent (here the State), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government party is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 per Emmett J (at [29]-[30]) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 per North J (at [37]). 37 In relation to this proceeding, the PKKP applicants and the State have been legally represented throughout the negotiation process. All other respondent parties have also had the benefit of legal representation. 38 Further, the State has played an active role in the negotiation of the proposed consent determination (Watson v State of Western Australia (No 3) [2013] FCA 127 (at [54] and [60]), an important factor referred to by Emmett J in Munn (at [29]). In doing so, the State (acting on behalf of the community generally), having regard to the requirements of the Native Title Act and through a rigorous and detailed assessment process, has satisfied itself that the determination is justified in all the circumstances. 39 The connection material assessed by the State together with the preservation evidence of three of the PKKP claimants demonstrates that the PKKP applications have a credible basis and that the PKKP People have maintained some physical presence in the PKKP Determination Area since the acquisition of British sovereignty. In addition, it appears that evidence of their continuing physical or spiritual involvement in the PKKP Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the PKKP Determination Area. 40 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of 'other interests' within the PKKP Determination Area, and those interests are included in the proposed determination, as outlined in Schedule Four to the Minute. 41 Finally, there are no other proceedings before the Court relating to native title determination applications that cover any part of the PKKP Determination Area which would otherwise require orders to be made under s 67(1) of the Native Title Act. 42 The Court is satisfied that pursuant to s 87 of the Native Title Act, it is appropriate to make the orders sought by the parties in the Minute. The Court is satisfied that the agreement reached by the parties as reflected in the Minute has been freely entered into on an informed basis. CONCLUSION 43 By signing the Minute all of the parties to the proceeding have indicated their agreement and the applicant, the State, the non-State respondent parties, the legal representatives and all those involved are to be congratulated. 44 There are two important points to make before concluding. The first is that in making a determination of native title, the Court is not creating it as such but rather recognising what has always existed. Secondly, the nature of the determination recognises not just the rights of the applicants but also how the applicant's rights operate in relation to other interests, including those of the respondents. 45 In the circumstances the Court considers it appropriate to make the determination of native title in the terms proposed. 46 For these reasons I make the orders in the terms of the Minute submitted to the Court being satisfied that the proposed determination is both within power and appropriate. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 2 September 2015