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Extract from the National Native Title Register

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Extract from the National Native Title Register Extract from the National Native Title Register Determination Information: Determination Reference: Federal Court Number(s): WAD6113/1998 NNTT Number: WCD2008/003 Determination Name: Leslie Hayes & Ors on behalf of the Thalanyji People v The State of Western Australia and Others Date(s) of Effect: 18/09/2008 Determination Outcome: Native title exists in parts of the determination area Register Extract (pursuant to s. 193 of the Native Title Act 1993) Determination Date: 18/09/2008 Determining Body: Federal Court of Australia ADDITIONAL INFORMATION: Not Applicable REGISTERED NATIVE TITLE BODY CORPORATE: Buurabalayji Thalanyji Aboriginal Corporation RNTBC Trustee Body Corporate PO Box 810 West Perth Western Australia 6872 Note: current contact details for the Registered Native Title Body Corporate are available from the Office of the Registrar of Indigenous Corporations www.oric.gov.au COMMON LAW HOLDER(S) OF NATIVE TITLE: 4. The native title in the Determination Area comprises of group and communal rights and interests held by the Thalanyji people. The Thalanyji people are the persons described in the Fourth Schedule [as:] The Native Title Holders are those persons who: (a) are descended from Jack Hayes, Mick Fazeldene, Old Barn (Baron Tadpole) or Polly Hughes or are adopted by such biological descendants in accordance with traditional laws acknowledged and the traditional customs observed by the Thalanyji; (b) identify themselves as Thalanyji under traditional law and custom and are so identified by other Native Title Holders as Thalanyji; and National Native Title Tribunal Page 1 of 13 Extract from the National Native Title Register WCD2008/003 (c) have a connection with the land and waters in the Determination Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Thalanyji. MATTERS DETERMINED: BY CONSENT OF THE PARTIES THE COURT ORDERS THAT: 1. In relation to the Determination Area, there be a determination of native title in WAD 6113 of 1998 in terms of the Minute of Proposed Consent Determination of Native Title attached. 2. In so far as WAD 6113 of 1998 relates to land and waters outside the Determination Area, WAD 6113 of 1998 is dismissed and no determination is made in relation to the land and waters comprised in that area. 3. The Buurabalayji Thalanyji Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to section 56(2) of the Native Title Act 1993 (Cth). 5. The parties have liberty to apply for the following purposes: (a) to establish the precise location of the boundaries of land on which the pastoral lease improvements referred to in paragraph 5 of the Second Schedule of this Determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements; and (b) to establish whether any of the pastoral lease improvements referred to in paragraph 5 of the Second Schedule of this Determination have been constructed unlawfully. THE COURT ORDERS, DECLARES AND DETERMINES THAT: EXISTENCE OF NATIVE TITLE (S225) 1. The Determination Area is the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule. 2. Subject to paragraph 3, native title exists in the Determination Area in the manner set out in paragraph 5 of this Determination. 3. Native title does not exist in relation to those land and waters of the Determination Area identified in the Second Schedule and shaded green on the maps at Attachment 1 to the First Schedule. NATIVE TITLE HOLDERS (S225(A)) 4. The native title in the Determination Area comprises of group and communal rights and interests held by the Thalanyji people. The Thalanyji people are the persons described in the Fourth Schedule. THE NATURE AND EXTENT OF NATIVE TITLE RIGHTS AND INTERESTS (s225(b)) AND EXCLUSIVENESS OF NATIVE TITLE (s225(e)) 5. Subject to paragraphs 6, 7 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 Native Title Holders, including the right to conduct activities necessary to give effect to them: (a) 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) hunt, fish, gather and use the traditional resources of the land and waters of the Determination Area; (c) take and use water, and for the sake of clarity and the avoidance of doubt this right does not include the right to take or use water captured by the holders of the Pastoral Leases; (d) engage in ritual and ceremony on, and in relation to, the land and waters of the Determination Area; and (e) care for, maintain and protect from physical harm, particular sites, areas and ceremonial or other sacred objects connected with the land and waters of the Determination Area, which are of significance to the Native Title Holders. 6. The native title rights and interests set out in paragraph 5 are subject to and exercisable in accordance with: National Native Title Tribunal Page 2 of 13 Extract from the National Native Title Register WCD2008/003 (a) the laws of the State and the Commonwealth, including the common law; and (b) the traditional laws and customs of the Native Title Holders for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes). 7. The native title rights and interests set out in paragraph 5 do not confer: (a) possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; or (b) a right to control the access to, or use of, the land and waters of the Determination Area or their resources. 8. Notwithstanding anything in this determination, the native title rights and interests set out in paragraph 5 include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but not other minerals and petroleum as defined in the Mining Act 1904 (WA) (repealed), the Mining Act 1978 (WA) as in force at the date of this determination, the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA) as in force at the date of this determination. NO APPLICATION OF SS.47A AND 47B OF THE NATIVE TITLE ACT 9. For the avoidance of doubt, sections 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the land and waters of the Determination Area. THE NATURE AND EXTENT OF ANY OTHER INTERESTS 10. The nature and extent of the Other Interests in relation to the Determination Area are those set out in the Third Schedule. RELATIONSHIP BETWEEN NATIVE TITLE RIGHTS AND OTHER INTERESTS 11. The relationship between the native title rights and interests described in paragraph 5 and the Other Interests (except reserves which are dealt with in paragraph 12) 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. 12. The relationship between the native title rights and interests described in paragraph 5 and the Other Interests which are reserves is that: (a) to the extent that: (i) any of the reserves; or (ii) any act (not being the construction, establishment or operation of a public work) done after this Determination, and done under or in accordance with a reserve; or (iii) any act (not being the construction, establishment or operation of a public work) done after this Determination is made, and done in the area covered by a reserve, so long as the act's impact on the native title rights and interests is no greater than the impact that any act that could have been done under or in accordance with the reserve would have had, is 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 reserve or the act (as the case may be) to the extent of the inconsistency during the currency of the reserve or the act; and otherwise, (b) the construction, establishment or operation of any public work under or in accordance with a reserve, or in the area covered by a reserve (so long as the impact of the public work on the native title rights and interests is no greater than the impact that any act that could have been done under or in accordance with the reserve would have had), extinguishes the native title rights and interests in accordance with Part 2 Division 3 Subdivision J and section National Native Title Tribunal Page 3 of 13 Extract from the National Native Title Register WCD2008/003 251D of the Native Title Act.
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