Brown (on behalf of the Ngarla People) v State of Western Australia

[2007] FCA 1025

FEDERAL COURT OF AUSTRALIA

Brown (on behalf of the Ngarla People) v State of Western Australia
[2007] FCA 1025

NATIVE TITLE – consent determination of native title – whether determination should be made pursuant to s 87 or s 87A of the Native Title Act 1993 (Cth) – statutory preconditions of s 87A and s 87 satisfied – appropriate to make the orders sought – orders made pursuant to s 87A or, in the alternative, s 87A

Native Title Act 1993 (Cth) ss 87, 87A

Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 cited
James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 cited
Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 cited
Munn (For and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 cited
Nangkiriny v State of Western Australia (2002) 117 FCR 6 cited
Nangkiriny v Western Australia [2004] FCA 1156 cited
Ward v State of Western Australia [2006] FCA 1848 cited

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA) v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION, BHP BILLITON MINERALS PTY LTD, BORAL CONTRACTING PTY LTD, BORAL RESOURCES (WA) LTD, DAMPIER SALT LIMITED, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD, ANTHONY BAPTIST BETTINI, DAVID FRANCIS BETTINI, ETHEL MARJORIE BETTINI, JOHN JOSEPH BETTINI, MARK JOHN BETTINI, MARY ELEANOR BETTINI, PAUL DOMINIC BETTINI, GRAEME EDWARD ROGERS, JUDITH ANNE ROGERS, WESTRALIAN SHELLS, MICHAEL CLAYDON, PETER JOHN FULLARTON, STEPHEN CHARLES McWHIRTER, ROBERT TUCKER, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), LESLEY P IGNOTI, PETER ALWYN IGNOTI, RUSSELL ADRIAN IGNOTI, PERTH SHELL DISTRIBUTORS, EXMOUTH PEARLS PTY LTD AND TELSTRA CORPORATION LIMITED

WAD 6185 OF 1998

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2) v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, BIDDY BUNWARRIE, FRANK FRENCH, YOUGARLA CROW, BHP BILLITON MINERALS PTY LTD, CI MINERALS AUSTRALIA PTY LTD, DAMPIER SALT LIMITED, MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD, NEWCREST MINING LIMITED, ANTHONY BAPTIST BETTINI, DAVID FRANCIS BETTINI, ETHEL MARJORIE BETTINI, JOHN JOSEPH BETTINI, MARK JOHN BETTINI, MARY ELEANOR BETTINI, PAUL DOMINIC BETTINI, STRELLEY PASTORAL PTY LTD AND TELSTRA CORPORATION LIMITED

WAD 0077 OF 2005

PETER COPPIN, TEDDY ALLEN, DORIS MONAGHAN, CLARA GEARY, ALICE MITCHELL AND DORIS EATON ON BEHALF OF THE NJAMAL PEOPLE (NJAMAL #10) v STATE OF WESTERN AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), COMMONWEALTH OF AUSTRALIA, TELSTRA CORPORATION LIMITED, DAMPIER SALT LIMITED AND YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION

WAD 6003 OF 2000

BENNETT J
30 MAY 2007
De GREY STATION, WESTERN AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6185 OF 1998

BETWEEN:

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA)
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Third Respondent

BHP BILLITON MINERALS PTY LTD
BORAL CONTRACTING PTY LTD
BORAL RESOURCES (WA) LTD
DAMPIER SALT LIMITED
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD
MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD
Fourth Respondent

ANTHONY BAPTIST BETTINI
DAVID FRANCIS BETTINI
ETHEL MARJORIE BETTINI
JOHN JOSEPH BETTINI
MARK JOHN BETTINI,
MARY ELEANOR BETTINI
PAUL DOMINIC BETTINI
GRAEME EDWARD ROGERS,
JUDITH ANNE ROGERS
Fifth Respondent

WESTRALIAN SHELLS
Sixth Respondent

MICHAEL CLAYDON
PETER JOHN FULLARTON
STEPHEN CHARLES MCWHIRTER
ROBERT TUCKER

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC)
Seventh Respondent

LESLEY P IGNOTI
PETER ALWYN IGNOTI
RUSSELL ADRIAN IGNOTI
PERTH SHELL DISTRIBUTORS
Eighth Respondent

EXMOUTH PEARLS PTY LTD
Ninth Respondent

TELSTRA CORPORATION LIMITED
Tenth Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	30 MAY 2007
WHERE MADE:	DE GREY station, WESTERN AUSTRALIA

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.The Applicants in proceedings WAD 6185 of 1998 (‘Ngarla Application’) and WAD 0077 of 2005 (‘Ngarla #2 Application’) have brought native title determination applications (‘the Ngarla Applications’) that relate to an area of land and waters the external boundaries of which are described in the First Schedule (‘Application Area’). Part of the Application Area comprises the subject of the attached Minute of Consent Determination of Native Title (‘the Determination’).

B.The Application Area includes land and waters also covered by the native title determination applications brought in proceedings WAD 0082 of 1998 (‘Warrarn Application’) and WAD 6003 of 2000 (‘Njamal #10 Application’).

C.The Applicants in the Ngarla Applications, the Applicant in the Njamal #10 Application, 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 is to be made in relation to most of the land and waters covered in the Application Area, which the parties have designated “Determination Area A”.

D.The parties have agreed that other land and waters contained within the Application Area have been the subject of extinguishing acts of the kind described in Attachment Bb to the Ngarla Application Form 1 (as amended) filed on 8 July 1999 and Schedule B to the Ngarla #2 Application Form 1 filed on 7 April 2005 and therefore are not the subject of the Ngarla Applications (‘Unclaimed Areas’).  The Unclaimed Areas are set out in the Third Schedule to the Determination.

E.The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas.  Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.

F.To the extent that any area of the Njamal #10 Application falls within the land and waters of Determination Area A the parties have agreed that it forms part of Determination Area A and will be subject to the Determination. On 27 March 2007 the Court made an order pursuant to section 67(1) of the Native Title Act 1993 (Cth) that, to the extent that the Njamal #10 Application geographically overlaps Determination Area A, it will be heard at the same time and in the same proceeding as Determination Area A.

G.The land and waters covered by the Application Area, Determination Area A, Determination Area B and the Unclaimed Areas are depicted on the maps at Attachment 1 to the First Schedule of the Determination attached to this Minute.

H.John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini and Paul D Bettini, the pastoral lessees of the De Grey pastoral station (3114/1142), and Graeme E Rogers and Judith A Rogers, the pastoral lessees of the Pardoo pastoral station (3114/446 and 398/0718) have agreed to the terms of the Determination on the basis of having reached an agreement with the Applicants in the Ngarla Applications in relation to those portions of the De Grey pastoral lease and the Pardoo pastoral lease that are situated within Determination Area A. Following the making of the Determination, the said agreement will be executed and application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as a body corporate agreement pursuant to section 24BG of the Native Title Act 1993 (Cth).

I.The consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is on the basis of an agreement between those parties and the Applicants in the Ngarla Applications, the Applicants in the Njamal #10 Application and the Applicants in proceedings WAD 6028 of 1998 (‘Njamal Application’) that the orders giving effect to the Determination and any finding of fact (if any) or conclusion in law implicit in making the Determination are confined in their application and effect to Determination Area A.  In particular, neither the order giving effect to the Determination nor any finding of fact (if any) or conclusion in law implicit in making the Determination has any effect on assertions or responses thereto, made in relation to Determination Area B; and that the consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is not to be construed as providing any admissions or concessions in relation to the undetermined balance of any native title applications that overlap with the Warrarn Application.

J.Pursuant to section 87A or alternatively section 87(1)(a)(ii), and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an Minute of Proposed Consent Determination of Native Title in writing setting out the terms of the agreement reached.

K.The terms of the agreement involve the making of consent orders for a determination pursuant to section 87A or alternatively section 87, and section 94A of the Native Title Act 1993 (Cth) that native title exists in relation to Determination Area A as set out in the attached Determination.

L.The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for Determination Area A as set out in the attached Determination.

M.The parties have requested that the Court hear and determine the Ngarla Applications as they relate to Determination Area A.

N.The Applicants in the Ngarla Applications have nominated the Wanparta Aboriginal Corporation pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.In relation to Determination Area A, there be a determination of native title in WAD 6185 of 1998, WAD 0077 of 2005 and part WAD 6003 of 2000 in terms of the Minute of Consent Determination of Native Title attached.*

2.The Wanparta 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).

3.In relation to Determination Area B, no determination be made and the matters be listed for directions on a date to be fixed to consider the future conduct of the proceedings.

4.There be no order as to costs.

BY CONSENT OF THE PARTIES THE COURT DECLARES THAT:

5.The land and waters designated as “Unclaimed Areas” and described in the Third Schedule to the Ngarla and Ngarla 2 (Determination Area A) Minute of Consent Determination of Native Title, being land and waters the subject of valid acts which have wholly extinguished native title, are excluded from the First Applicants’ Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants’ Application for Determination of Native Title in WAD 0077 of 2007.

* THE DETERMINATION OF NATIVE TITLE IS ANNEXURE ‘A’ TO THESE REASONS

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 0077 OF 2005

BETWEEN:

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2)
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

BIDDY BUNWARRIE
FRANK FRENCH
YOUGARLA CROW
Third Respondent

BHP BILLITON MINERALS PTY LTD
CI MINERALS AUSTRALIA PTY LTD
DAMPIER SALT LIMITED
MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD
NEWCREST MINING LIMITED
Fourth Respondent

ANTHONY BAPTIST BETTINI
DAVID FRANCIS BETTINI
ETHEL MARJORIE BETTINI
JOHN JOSEPH BETTINI
MARK JOHN BETTINI
MARY ELEANOR BETTINI
PAUL DOMINIC BETTINI
STRELLEY PASTORAL PTY LTD
Fifth Respondent

TELSTRA CORPORATION LIMITED
Sixth Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	30 MAY 2007
WHERE MADE:	DE GREY station, WESTERN AUSTRALIA

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.The Applicants in proceedings WAD 6185 of 1998 (‘Ngarla Application’) and WAD 0077 of 2005 (‘Ngarla #2 Application’) have brought native title determination applications (‘the Ngarla Applications’) that relate to an area of land and waters the external boundaries of which are described in the First Schedule (‘Application Area’). Part of the Application Area comprises the subject of the attached Minute of Consent Determination of Native Title (‘the Determination’).

B.The Application Area includes land and waters also covered by the native title determination applications brought in proceedings WAD 0082 of 1998 (‘Warrarn Application’) and WAD 6003 of 2000 (‘Njamal #10 Application’).

C.The Applicants in the Ngarla Applications, the Applicant in the Njamal #10 Application, 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 is to be made in relation to most of the land and waters covered in the Application Area, which the parties have designated “Determination Area A”.

D.The parties have agreed that other land and waters contained within the Application Area have been the subject of extinguishing acts of the kind described in Attachment Bb to the Ngarla Application Form 1 (as amended) filed on 8 July 1999 and Schedule B to the Ngarla #2 Application Form 1 filed on 7 April 2005 and therefore are not the subject of the Ngarla Applications (‘Unclaimed Areas’).  The Unclaimed Areas are set out in the Third Schedule to the Determination.

E.The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas.  Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.

F.To the extent that any area of the Njamal #10 Application falls within the land and waters of Determination Area A the parties have agreed that it forms part of Determination Area A and will be subject to the Determination. On 27 March 2007 the Court made an order pursuant to section 67(1) of the Native Title Act 1993 (Cth) that, to the extent that the Njamal #10 Application geographically overlaps Determination Area A, it will be heard at the same time and in the same proceeding as Determination Area A.

G.The land and waters covered by the Application Area, Determination Area A, Determination Area B and the Unclaimed Areas are depicted on the maps at Attachment 1 to the First Schedule of the Determination attached to this Minute.

H.John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini and Paul D Bettini, the pastoral lessees of the De Grey pastoral station (3114/1142), and Graeme E Rogers and Judith A Rogers, the pastoral lessees of the Pardoo pastoral station (3114/446 and 398/0718) have agreed to the terms of the Determination on the basis of having reached an agreement with the Applicants in the Ngarla Applications in relation to those portions of the De Grey pastoral lease and the Pardoo pastoral lease that are situated within Determination Area A. Following the making of the Determination, the said agreement will be executed and application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as a body corporate agreement pursuant to section 24BG of the Native Title Act 1993 (Cth).

I.The consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is on the basis of an agreement between those parties and the Applicants in the Ngarla Applications, the Applicants in the Njamal #10 Application and the Applicants in proceedings WAD 6028 of 1998 (‘Njamal Application’) that the orders giving effect to the Determination and any finding of fact (if any) or conclusion in law implicit in making the Determination are confined in their application and effect to Determination Area A.  In particular, neither the order giving effect to the Determination nor any finding of fact (if any) or conclusion in law implicit in making the Determination has any effect on assertions or responses thereto, made in relation to Determination Area B; and that the consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is not to be construed as providing any admissions or concessions in relation to the undetermined balance of any native title applications that overlap with the Warrarn Application.

J.Pursuant to section 87A or alternatively section 87(1)(a)(ii), and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an Minute of Proposed Consent Determination of Native Title  in writing setting out the terms of the agreement reached.

K.The terms of the agreement involve the making of consent orders for a determination pursuant to section 87A or alternatively section 87, and section 94A of the Native Title Act 1993 (Cth) that native title exists in relation to Determination Area A as set out in the attached Determination.

L.The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for Determination Area A as set out in the attached Determination.

M.The parties have requested that the Court hear and determine the Ngarla Applications as they relate to Determination Area A.

N.The Applicants in the Ngarla Applications have nominated the Wanparta Aboriginal Corporation pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.In relation to Determination Area A, there be a determination of native title in WAD 6185 of 1998, WAD 0077 of 2005 and part WAD 6003 of 2000 in terms of the Minute of Consent Determination of Native Title attached.*

2.The Wanparta 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).

3.In relation to Determination Area B, no determination be made and the matters be listed for directions on a date to be fixed to consider the future conduct of the proceedings.

4.There be no order as to costs.

BY CONSENT OF THE PARTIES THE COURT DECLARES THAT:

5.The land and waters designated as “Unclaimed Areas” and described in the Third Schedule to the Ngarla and Ngarla 2 (Determination Area A) Minute of Consent Determination of Native Title, being land and waters the subject of valid acts which have wholly extinguished native title, are excluded from the First Applicants’ Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants’ Application for Determination of Native Title in WAD 0077 of 2007.

* THE DETERMINATION OF NATIVE TITLE IS ANNEXURE ‘A’ TO THESE REASONS

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6003 OF 2000

BETWEEN:

PETER COPPIN, TEDDY ALLEN, DORIS MONAGHAN, CLARA GEARY, ALICE MITCHELL AND DORIS EATON ON BEHALF OF THE NJAMAL PEOPLE (NJAMAL #10)
Applicant

AND:

THE STATE OF WESTERN AUSTRALIA
First Respondent

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC)
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

TELSTRA CORPORATION LIMITED
Fourth Respondent

DAMPIER SALT LIMITED
Fifth Respondent

YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Sixth Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	30 MAY 2007
WHERE MADE:	DE GREY STATION, WESTERN AUSTRALIA

BY CONSENT OF THE PARTIES THE COURT NOTES THAT:

A.The Applicants in proceedings WAD 6185 of 1998 (‘Ngarla Application’) and WAD 0077 of 2005 (‘Ngarla #2 Application’) have brought native title determination applications (‘the Ngarla Applications’) that relate to an area of land and waters the external boundaries of which are described in the First Schedule (‘Application Area’).  Part of the Application Area comprises the subject of the attached Minute of Consent Determination of Native Title (‘the Determination’).

B.The Application Area includes land and waters also covered by the native title determination applications brought in proceedings WAD 0082 of 1998 (‘Warrarn Application’) and WAD 6003 of 2000 (‘Njamal #10 Application’).

C.The Applicants in the Ngarla Applications, the Applicant in the Njamal #10 Application, 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 is to be made in relation to most of the land and waters covered in the Application Area, which the parties have designated “Determination Area A”.

D.The parties have agreed that other land and waters contained within the Application Area have been the subject of extinguishing acts of the kind described in Attachment Bb to the Ngarla Application Form 1 (as amended) filed on 8 July 1999 and Schedule B to the Ngarla #2 Application Form 1 filed on 7 April 2005 and therefore are not the subject of the Ngarla Applications (‘Unclaimed Areas’).  The Unclaimed Areas are set out in the Third Schedule to the Determination.

E.The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas. Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.

F.To the extent that any area of the Njamal #10 Application falls within the land and waters of Determination Area A the parties have agreed that it forms part of Determination Area A and will be subject to the Determination. On 27 March 2007 the Court made an order pursuant to section 67(1) of the Native Title Act 1993 (Cth) that, to the extent that the Njamal #10 Application geographically overlaps Determination Area A, it will be heard at the same time and in the same proceeding as Determination Area A.

G.The land and waters covered by the Application Area, Determination Area A, Determination Area B and the Unclaimed Areas are depicted on the maps at Attachment 1 to the First Schedule of the Determination attached to this Minute.

H.John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini and Paul D Bettini, the pastoral lessees of the De Grey pastoral station (3114/1142), and Graeme E Rogers and Judith A Rogers, the pastoral lessees of the Pardoo pastoral station (3114/446 and 398/0718) have agreed to the terms of the Determination on the basis of having reached an agreement with the Applicants in the Ngarla Applications in relation to those portions of the De Grey pastoral lease and the Pardoo pastoral lease that are situated within Determination Area A. Following the making of the Determination, the said agreement will be executed and application will be made for the agreement to be registered as an Indigenous Land Use Agreement on the Register of Indigenous Land Use Agreements as a body corporate agreement pursuant to section 24BG of the Native Title Act 1993 (Cth).

I.The consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is on the basis of an agreement between those parties and the Applicants in the Ngarla Applications, the Applicants in the Njamal #10 Application and the Applicants in proceedings WAD 6028 of 1998 ("Njamal Application") that the orders giving effect to the Determination and any finding of fact (if any) or conclusion in law implicit in making the Determination are confined in their application and effect to Determination Area A.  In particular, neither the order giving effect to the Determination nor any finding of fact (if any) or conclusion in law implicit in making the Determination has any effect on assertions or responses thereto, made in relation to Determination Area B; and that the consent of Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Crow Yougarla to the making of the Determination is not to be construed as providing any admissions or concessions in relation to the undetermined balance of any native title applications that overlap with the Warrarn Application.

J.Pursuant to section 87A or alternatively section 87(1)(a)(ii), and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an Minute of Proposed Consent Determination of Native Title in writing setting out the terms of the agreement reached.

K.The terms of the agreement involve the making of consent orders for a determination pursuant to section 87A or alternatively section 87, and section 94A of the Native Title Act 1993 (Cth) that native title exists in relation to Determination Area A as set out in the attached Determination.

L.The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for Determination Area A as set out in the attached Determination.

M.The parties have requested that the Court hear and determine the Ngarla Applications as they relate to Determination Area A.

N.The Applicants in the Ngarla Applications have nominated the Wanparta Aboriginal Corporation pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the native title holders.

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.In relation to Determination Area A, there be a determination of native title in WAD 6185 of 1998, WAD 0077 of 2005 and part WAD 6003 of 2000 in terms of the Minute of Consent Determination of Native Title attached.*

2.The Wanparta 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).

3.In relation to Determination Area B, no determination be made and the matters be listed for directions on a date to be fixed to consider the future conduct of the proceedings.

4.There be no order as to costs.

BY CONSENT OF THE PARTIES THE COURT DECLARES THAT:

5.The land and waters designated as “Unclaimed Areas” and described in the Third Schedule to the Ngarla and Ngarla 2 (Determination Area A) Minute of Consent Determination of Native Title, being land and waters the subject of valid acts which have wholly extinguished native title, are excluded from the First Applicants’ Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants’ Application for Determination of Native Title in WAD 0077 of 2007.

* THE DETERMINATION OF NATIVE TITLE IS ANNEXURE ‘A’ TO THESE REASONS

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6185 OF 1998

BETWEEN:

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA)
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Third Respondent

BHP BILLITON MINERALS PTY LTD
BORAL CONTRACTING PTY LTD
BORAL RESOURCES (WA) LTD
DAMPIER SALT LIMITED
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD
MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD
Fourth Respondent

ANTHONY BAPTIST BETTINI
DAVID FRANCIS BETTINI
ETHEL MARJORIE BETTINI
JOHN JOSEPH BETTINI
MARK JOHN BETTINI
MARY ELEANOR BETTINI
PAUL DOMINIC BETTINI
GRAEME EDWARD ROGERS
JUDITH ANNE ROGERS
Fifth Respondent

WESTRALIAN SHELLS
Sixth Respondent

MICHAEL CLAYDON
PETER JOHN FULLARTON
STEPHEN CHARLES MCWHIRTER,
ROBERT TUCKER

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC)
Seventh Respondent

LESLEY P IGNOTI
PETER ALWYN IGNOTI
RUSSELL ADRIAN IGNOTI
PERTH SHELL DISTRIBUTORS
Eighth Respondent

EXMOUTH PEARLS PTY LTD
Ninth Respondent

TELSTRA CORPORATION LIMITED
Tenth Respondent

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 0077 OF 2005

BETWEEN:

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2)
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

BIDDY BUNWARRIE
FRANK FRENCH
YOUGARLA CROW
Third Respondent

BHP BILLITON MINERALS PTY LTD
CI MINERALS AUSTRALIA PTY LTD
DAMPIER SALT LIMITED
MITSUI IRON ORE DEVELOPMENT CORPORATION PTY LTD
NEWCREST MINING LIMITED
Fourth Respondent

ANTHONY BAPTIST BETTINI
DAVID FRANCIS BETTINI
ETHEL MARJORIE BETTINI
JOHN JOSEPH BETTINI
MARK JOHN BETTINI
MARY ELEANOR BETTINI
PAUL DOMINIC BETTINI
STRELLEY PASTORAL PTY LTD
Fifth Respondent

TELSTRA CORPORATION LIMITED
Sixth Respondent

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6003 OF 2000

BETWEEN:

PETER COPPIN, TEDDY ALLEN, DORIS MONAGHAN, CLARA GEARY, ALICE MITCHELL AND DORIS EATON ON BEHALF OF THE NJAMAL PEOPLE (NJAMAL #10)
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC)
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

TELSTRA CORPORATION LIMITED
Fourth Respondent

DAMPIER SALT LIMITED
Fifth Respondent

YAMATJI MARLPA BARNA BABA MAAJA ABORIGINAL CORPORATION
Sixth Respondent

JUDGE:	BENNETT J
DATE:	30 MAY 2007
PLACE:	DE GREY STATION, WESTERN AUSTRALIA

REASONS FOR JUDGMENT

1. Three proceedings are before the Court.  The first is the Ngarla application (WAD 6185 of 1998) which was filed by the Ngarla people on 28 July 1997 and comprises a geographic area of some 10,806 square kilometres.  The second is the Ngarla #2 application (WAD 77 of 2005) which was filed on 7 April 2005.  In that proceeding, the Ngarla people claimed native title over an area west of, and adjacent to, the land of the Ngarla application.  The third proceeding is the Njamal #10 application (WAD 6003 of 2000) brought by the Njamal people and filed on 25 May 2000.

2. This is an application for a consent determination of native title rights and interests held by the Ngarla people in respect of land and waters within the Pilbara region of Western Australia that has been designated “Determination Area A”.  The parties have signed a Minute of Proposed Consent Orders which recognises the native title rights and interests held by the Ngarla people in relation to Determination Area A.  They ask the Court to make a determination of native title according to the terms on which they have agreed and to do so without holding a further hearing.

3. Determination Area A comprises part of the land and waters covered by the two Ngarla applications.  It also includes areas of overlap with the Njamal #10 application.  The balance of the land and waters covered by the Ngarla application and the Ngarla #2 application include areas of geographical overlap with a further proceeding, the Warrarn application (WAD 0082 of 1998).  There are also areas the subject of mineral leases.  The parties have designated these lands as “Determination Area B”.  They agree that mediation should continue in relation to Determination Area B and that no determination of native title should presently be made in respect of that area.

4. The parties also agree that some areas within the Ngarla applications have been the subject of acts which have extinguished native title.  These areas are outside Determination Area A.  The parties ask the Court to declare that they be excluded from the Ngarla applications.

5. I congratulate the parties on the agreement they have reached and acknowledge the efforts of the National Native Title Tribunal in assisting the parties.  As this Court stated in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [5]:

   ‘[s]ettlement of native title claims by agreement is to be welcomed and encouraged.  It means that the parties can decide for themselves how best to institute an arrangement that satisfies their respective rights and interests in a way that, as appropriate, recognises the rights and interests of the other parties’.

6. The Ngarla applicants have nominated the Wanparta Aboriginal Corporation (‘the Corporation’) as the prescribed body corporate to hold the native title of the claimant group on trust following the determination of these proceedings pursuant to s 56(2) of the Native Title Act 1993 (Cth) (‘the Act’). The nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act and of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

7. The Court may make orders giving effect to an agreement reached between the parties where the agreement relates to the proceeding or part of the proceedings without holding a hearing ‘if it appears to [the Court] to be appropriate to do so’ (ss 87(2) and (3) of the Act). The Court may also, if agreement is reached on a proposed determination of native title in relation to an area included in the area covered by an application, make an order in, or consistent with, the proposed determination without holding a hearing if the Court considers it would be appropriate to do so (s 87A(4)(b)).

8. There are, however, certain pre-conditions where a consent determination is made under s 87 or s 87A. So far as s 87 is concerned:

   (1)the period specified in the notice given under s 66 of the Act must have expired (s 87(1));

   (2)an agreement must be reached between the parties as to the terms of the order (s 87(1)(a));

   (3)the terms of that agreement, in writing signed by or on behalf of the parties, must have been filed with the Court (s 87(1)(b)); and

   (4)the Court must be satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)).

9. The period of three months after the notification day referred to in subss 66(8) and 66(10)(c) of the Act (‘notification period’) ended on 1 November 1999 for the Ngarla application. The notification periods for the Ngarla #2 application and the Njamal #10 application ended on 9 November 2005 and 17 April 2001, respectively. It follows that the first precondition is satisfied.

10. The second and third preconditions are also satisfied.  The agreement is in writing and has been signed on behalf of the parties to the three proceedings in which the determination is to be made.  It was filed with the Court on 9 May 2007.

11. As to the fourth precondition, three matters should be noted.  The first is that the agreement relates to part of the land and waters the subject of the Ngarla applications. The making of a determination of native title in respect of those parts is a matter that falls within subs 87(3) of the Act. It follows that the Court may make orders determining that native title exists in relation to Determination Area A while leaving the issues outstanding in relation to Determination Area B for resolution at a later date (Munn (For and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [6]). This approach has been taken in a number of cases in northern Western Australia under s 87 (Nangkiriny v State of Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James on behalf of the Martu People v State of Western Australia [2002] FCA 1208; Hughes).

12. Secondly, as has been noted, the Njamal #10 application overlaps the land and waters of Determination Area A.  The Court may only make one determination of native title for any given area (s 68).  If two or more proceedings before the Court cover the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceedings (s 67(1)).  Orders of that nature were made on 27 March 2007 and the applicant in the Njamal #10 application consents to a determination of native title being made in favour of the Ngarla people in respect of Determination Area A.

13. Thirdly, the proposed orders must set out details of the matters mentioned in s 225 of the Act (s 94A). I am satisfied that they do so.

14. A question has arisen as to the section of the Act under which the power of the Court is to be exercised. Traditionally, the Court has exercised the power to make a consent determination under s 87 of the Act. However, by amendments commencing on 14 April 2007, s 87(1)(d) was inserted. That subsection provides, in effect, that an order cannot be made under s 87 unless the Court is satisfied that an order in, or consistent with, the terms of the agreement reached between the parties cannot be made under s 87A, which was introduced under the same amending Act (Native Title Amendment Act 2007 (Cth)). While it may not have been contemplated that s 87A should apply where there has been consent by all the parties to the proposed orders it does, in its terms, do so. 

15. The Native Title Amendment (Technical Amendments) Bill 2007 (Cth) (‘the Bill’) proposes that s 87(1)(d) be repealed. The purpose of repealing the subsection is apparently to avoid uncertainty as to when orders can be made pursuant to s 87 (Explanatory Memorandum to the Bill at [1.299]–[1.300]). However, this has not yet occurred.

16. Section 87A provides (subsection headings and notations omitted):

    ‘(1)     This section applies if:

    (a)there is a proceeding in relation to an application for a determination of native title; and

    (b)at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and

    (c)       all of the following persons are parties to the agreement:

    (i)        the applicant;

    (ii)each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

    (iv)each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

    (v)each person who holds a proprietary interest, in relation to any part of the determination area, at the time the agreement is made, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory and who is a party to the proceeding at the time the agreement is made;

    (vi)each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

    (vii)the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made;

    (viii)if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

    (ix)any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

    (d)the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

    (2)A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

    (3)The Registrar of the Federal Court must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

    (4)The Court may make an order in, or consistent with, the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

    (a)an order in, or consistent with, the proposed determination would be within its power; and

    (b)       it would be appropriate to do so.

    (5)In considering whether to make an order in, or consistent with, the proposed determination of native title, the Court must take into account any objections made by the other parties to the proceeding.’

1. Section 87A applies if, after expiry of the relevant notification period, there is agreement in relation to an area included in the area covered by the application for a determination of native title (s 87A(1)(b)). The agreement in respect of Determination Area A in these proceedings comes within that description.

2. Section 87A(1)(c) nominates the parties to such agreement for the section to apply. Parties specified in subss 87A(1)(c)(i) and (ii), (there is no subs (iii)) (iv), (v) and (vi) are all parties to the agreement. The State of Western Australia (‘the State’) and the Commonwealth of Australia are parties, but neither the Commonwealth Minister nor the State Minister individually are parties. No relevant local government body is a party to the proceedings. Therefore subss 87A(1)(c)(vii), (viii) and (ix) are not applicable.

3. The conditions of subss 87A(2) and (3) have been complied with. All parties within the category of s 87A(1)(c) consent to the orders sought, whether the power is exercised under s 87 or s 87A. All parties with a proprietary interest in Determination Area A have signed the proposed consent orders under s 87A. All parties have signed the proposed consent orders under s 87.

4. Two of the parties represented by Ms Sisto, namely Strelley Pastoral Pty Ltd (‘Strelley’) and the applicant in the Warrarn proceeding, have consented to the orders sought pursuant to s 87. By force of circumstance, because of the timing of the appreciation of the application of s 87A, Ms Sisto has been unable to obtain instructions in relation to orders made under s 87A from the Warrarn applicants. She informs the Court that the Warrarn applicants do not consent but nor do they oppose the orders being made under s 87A. Further, Ms Sisto has confirmed that neither the Warrarn applicants nor Strelley hold a proprietary interest in Determination Area A. The orders sought under s 87A are the same as those sought under s 87. Counsel for all of the other parties, including the Ngarla applicants and the State are satisfied that neither Strelley nor the applicant in the Warrarn proceeding are persons falling within s 87A(1)(c).

5. No objection has been made that must be considered under s 87A(5). Further, for reasons already given (see [12] and [13] above), the Court has power to make orders in the form proposed (s 87A(4)(a)). Accordingly, I am satisfied that orders may be made under s 87A, subject to consideration of whether it is appropriate to do so.

6. The exercise of the Court’s discretion pursuant to s 87A imports the same principles as those applying to the making of a consent determination of native title under s 87. The 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 (Hughes at [8] citing Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7]).

7. Justice North observed in Ward v State of Western Australia [2006] FCA 1848 at [6]–[9] that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. The Court’s power must be exercised flexibly and with this purpose in mind. Orders may be made where the Court is not provided with all of the evidence or 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 (Hughes at [9]).

8. If, of course, an agreement were reached where there was nothing to support the claimed connection of the applicants to their country, or the determination appeared to be unfair or unjust, the Court might conclude that a determination would be inappropriate and decline to make the orders sought (James at [4]). That is not the case here.

9. The continuous connection of the Ngarla people with Determination Area A is acknowledged by all of the parties.  There is also evidence to support that connection.  The Ngarla Native Title Claim Connection Report (‘the Report’), prepared by Dr Nicholas Smith, describes the traditional and enduring connection of the Ngarla people to their country within the claim area.  They share a distinctive Ngarla identity, a distinct language, and a distinct law and kinship system.  They have a contemporary attachment to the land and waters and continue to use the land and waters for subsistence practices.  Those practices have been somewhat modified over time in a way that can be traced to practices utilised by their ancestors.  However, as the authors of the Report note at 142, ‘[i]t stands to reason that claimants no longer live in exactly the same manner as their ancestors did prior to European settlement; and it would be unrealistic to expect them to do so’.  The Report concludes that the testimony and evidence indicate that, despite the impact of colonisation, Ngarla people maintain a physical and spiritual connection with their homelands and have continued to do so (at 247).

10. The Report describes how the Ngarla people, a compact claimant group, identify as belonging to the wider regional cluster of Pilbara Aboriginal peoples but are distinct (at 9).  There are criteria by which individuals identify and are identified as Ngarla (at 10-11).  The most recognisable feature of Ngarla membership is knowledge of Ngarla country and its resources (at 35).  Many of the claimants have an extraordinary detailed knowledge of Ngarla country.  The adults devote time in passing on this knowledge and in this way Ngarla traditions are reinforced and transmitted.  The claimants’ self-identification is grounded and perpetuated in a range of customary beliefs and practices, namely law, language and kinship (at 37).

11. The State has had regard to the Report in connection with other written and audiovisual material provided by the applicants. It commissioned an independent anthropologist to review that material. I am informed that the State, which represents the community generally, has had regard to the requirements of the Act and has satisfied itself ‘through a rigorous and detailed assessment process’ that the determination is justified in all the circumstances.

12. Apart from Ngarla and Njamal peoples, other indigenous interests are represented by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation and the Nomads Charitable and Educational Foundation.  Fishing, mining, pastoral, pearling, shell collecting and telecommunication interests are also represented and agree upon the orders sought.  The parties are all legally represented.

13. I am satisfied that it is appropriate to make the proposed orders and declaration in the terms sought by the parties. I do so pursuant to s 87A of the Act, or in the alternative pursuant to s 87 of the Act. I make orders in accordance with the agreement reached by the parties. That includes an order that the Corporation is to hold the determined native title in trust for the native title holders pursuant to s 56(2) of the Act.

14. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for Determination Area A.  The order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Ngarla people and that native title is held by those people.  The order does not grant native title; it recognises what has long been held.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       6 July 2007

Counsel for the Applicants:	C Tan
Solicitor for the Applicants:	Pilbara Native Title Service
Counsel for the State of Western Australia:	G Ranson and A Warren
Solicitor for the State of Western Australia:	State Solicitors for Western Australia
Counsel for the Commonwealth of Australia:	S Andersen
Solicitor for the Commonwealth of Australia:	Australian Government Solicitor
Solicitor for BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Dampier Salt Ltd, Mitsui Iron Ore Development Corporation Pty Ltd and CI Minerals Australia Pty Ltd:	Blake Dawson Waldron
Solicitor for Boral Contracting Pty Ltd and Boral Resources (WA) Ltd:	Minter Ellison
Counsel for John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini, Paul D Bettini, Graeme E Rogers and Judith A Rogers:	J Steenhof
Solicitor for John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini, Paul D Bettini, Graeme E Rogers and Judith A Rogers:	Cornerstone Legal
Counsel for the Western Australian Fishing Industry Council (Inc):	M Watts
Solicitor for Westralian Shells, Michael Claydon, Peter John Fullarton, Stephen Charles McWhirter, Robert Tucker, Western Australian Fishing Industry Council (Inc), Lesley P Ignoti, Peter A Ignoti, Russell A Ignoti and Perth Shell Distributors:	Hunt & Humphry
Solicitor for Exmouth Pearls Pty Ltd:	Freehills
Solicitor for Yamatji Marlpa Bama Baba Maaja Aboriginal Corporation:	Pilbara Native Title Service
Solicitor for Strelley Pastoral Pty Ltd, Biddy Bunwarrie, Frank French and Yougarla Crow:	H Sisto (Nomads Charitable and Educational Foundation)
Solicitor for Newcrest Mining Limited:	R Parkinson
Solicitor for Telstra Corporation Limited:	Blake Dawson Waldron
Date of Hearing:	30 May 2007
Date of Judgment:	30 May 2007

ANNEXURE ‘A’

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1.Determination Area A is the land and waters within the Application Area as described in the First Schedule, other than:

(a)Determination Area B as described in the Second Schedule; and

(b)the Unclaimed Areas as described in the Third Schedule.

2.Native title exists in relation to that part of Determination Area A which is landward of the lowest astronomical tide of the mainland coast in the manner set out in paragraph 5 of this determination.

3.Native title does not exist in relation to that part of Determination Area A which comprises land and waters seaward of the lowest astronomical tide of the mainland coast, as shown on the maps at Attachment 1 to the First Schedule.

4.The native title rights and interests are held in trust by the Wanparta Aboriginal Corporation, a prescribed body corporate for the purposes of section 56 of the Native Title Act 1993 (Cth), for the Ngarla people as common law holders of native title. The Ngarla people are described in the Fifth Schedule.

5.Subject to paragraphs 6, 7, 8 and 9:

(1)the nature and extent of the native title rights and interests held by the common law holders are non-exclusive rights to:

(a) access, and to camp on, the land and waters;

(b) take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters;

(c) engage in ritual and ceremony; and

(d) care for, maintain and protect from physical harm, particular sites and areas of significance to the common law holders.

(2)The native title rights and interests set out in sub-paragraph (1) are exercisable in accordance with the traditional laws and customs of the common law holders for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

(3)The native title rights and interests set out in sub-paragraph (1) do not confer:

(a)        possession, occupation, use and enjoyment on the common law holders to the exclusion of all others; nor

(b) a right to control the access of others to the land and waters of  Determination Area A.

6.Notwithstanding anything in this determination the native title rights and interests 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), Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA).

7.Sections 47A and 47B of the Native Title Act 1993 (Cth) apply to disregard any prior extinguishment in relation to the areas described in the Sixth Schedule.

8.The native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

9.The nature and extent of other rights and interests in relation to Determination Area A in existence at the date of this determination are those set out in the Fourth Schedule.

10.The relationship between the native title rights and interests described in sub-paragraph 5(1) and the other rights and interests referred to in paragraph 9 ("the other rights and interests") is that:

(a)to the extent that any of the other rights and interests 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 other rights and interests to the extent of the inconsistency during the currency of the other rights and 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 rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

11.In this determination, unless the contrary intention appears:

“Application Area” means the land and waters described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule,

“Determination Area A” means the land and waters within the Application Area, other than the land and waters within Determination Area B and the Unclaimed Areas, and depicted on the maps at Attachment 1 to the First Schedule.

“Determination Area B” means the land and waters described in the Second Schedule and depicted on the maps at Attachment 1 to the First Schedule.

“flowing waters” means the following water within Determination Area A:

(a)          water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and

(b)         any natural collection of water into, through, or out of which a river, creek, stream or brook flows;

“land” has the same meaning as in the Native Title Act 1993 (Cth);

“Unclaimed Areas” means the land and waters described in the Third Schedule and depicted on the maps at Attachment 1 to the First Schedule;

“underground water” means water from and including an underground water source, including water that percolates from the ground.

“waters” has the same meaning as in the Native Title Act 1993 (Cth); and “waters” includes flowing and underground water;

12.In the event of any inconsistency between the written description of an area in this determination and the area as depicted on the maps at Attachment 1 to the First Schedule, the written description prevails.

FIRST SCHEDULE

DESCRIPTION OF "APPLICATION AREA"

The Application Area, shown on Attachment 1 to this Schedule, comprises all of the land and waters bounded by the following description:

Commencing at Latitude 19.538238 South, Longitude 119.109466 East, being a point in the Indian Ocean, north of Bedout Island and extending generally easterly, southerly, generally south westerly, generally north westerly and generally northerly passing through the following co-ordinate positions.

LATITUDE

(SOUTH)

LONGITUDE

(EAST)

19.638431

119.564216

19.455295

120.040771

20.029775

120.053016

20.195848

119.859138

20.330621

119.671676

20.340141

119.642311

20.404909

119.442520

20.505449

119.332382

20.500799

119.188934

20.420333

118.972579

20.442693

118.964721

20.441333

118.887664

20.448278

118.871154

20.457666

118.848831

20.458250

118.823913

20.455583

118.782218

20.298471

118.738441

20.238721

118.750846

20.015390

118.797218

19.813247

118.806571

Thence north easterly back to the commencement point.

Note:             Geographic Co-ordinates provided in Decimal Degrees
Datum:  Geocentric Datum of Australia 1994 (GDA94)
Prepared By:  Land Claims Mapping Unit, Landgate on 16 February 2007

FIRST SCHEDULE – ATTACHMENT 1

MAPS SHOWING
APPLICATION AREA, DETERMINATION AREA A, DETERMINATION AREA B, UNCLAIMED AREAS AND AREAS TO WHICH SECTIONS 47A AND 47B OF THE NATIVE TITLE ACT 1993 (CTH) APPLY

SECOND SCHEDULE

"DETERMINATION AREA B"

Determination Area B, shown generally as shaded green on the maps at Attachment 1 to the First Schedule, comprises all of the land and waters bounded by the following description:

1.Land and waters the subject of Mineral Lease (Special Agreement) ML235SA and sections 1, 2, 7, 8 and 9 of Mineral Lease (Special Agreement) ML249SA; and

2.Land and waters within the Application Area also the subject of WAD 0082 of 1998, being:

All those lands and waters commencing at a point on a western boundary of pastoral lease 3114/1281 (Strelley) at Latitude 20.448278 South, Longitude 118.871155 East, and extending generally northerly, generally easterly and generally southerly along boundaries of that pastoral lease to a point on an eastern boundary at Latitude 20.499104 South, Longitude 119.184376 East. Thence generally westerly passing through the following co-ordinate positions:

LATITUDE (SOUTH)	LONGITUDE (EAST)
20.420334	118.972580
20.442694	118.964722
20.441334	118.887665

Thence south westerly back to the commencement point.

Exclusion – Excludes any land and waters covered by Reserve 38564 that fall within the external boundary.

Note:             Geographic Co-ordinates provided in Decimal Degrees
Datum:  Geocentric Datum of Australia 1994 (GDA94)
Prepared By:  Land Claims Mapping Unit, Landgate on 16 February 2007

THIRD SCHEDULE

"UNCLAIMED AREAS"

The following areas, being land and waters where previous exclusive possession acts have occurred and native title has been completely extinguished, have been excluded from the First Applicants' Amended Application for Native Title in WAD 6185 of 1998 and the First Applicants' Application for Determination of Native Title in WAD 0077 of 2007 and are excluded from Determination Area A in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23C of the Native Title Act 1993 (Cth), and sections 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) .

With the exception of those public works which are captured by the definition at paragraph 6 of this Schedule, all of the following areas are shown generally as shaded orange on the maps at Attachment 1 to the First Schedule:

1.Freehold

(a)North Location 1 (CT 537/27, subsequently CT 2119/210);

(b)North Locations 21 and 22 (CT 537/28, subsequently CT 2119/213);

(c)De Grey Location 2 (CT 1245/276);

(d)Forrest Location 98 (CT 1383/305, subsequently CT 1834/710);

(e)Pardu Location 18 (CT 1815/752, subsequently CT 1839/820);

(f)Shellborough Lot 27 (CT 1208/753);

(g)Shellborough Lot 28 (CT 1208/810, subsequently CT 2119/212);

(h)Shellborough Lot 29 (CT 1208/795, subsequently CT 2119/211);

(i)Shellborough Lot 107 (CT 1009/199, subsequently CT 1011/475);

(j)Shellborough Town Lot 1 (CT 52/27);

(k)Shellborough Town Lot 2 (CT 52/28);

(l)Shellborough Town Lot 3 (CT 244/148);

(m)Shellborough Town Lot 4 (CT 43/277);

(n)Shellborough Town Lot 5 (CT 43/278);

(o)Shellborough Town Lot 6 (CT 39/14);

(p)Shellborough Town Lot 9 (CT 31/140);

(q)Shellborough Town Lot 10 (CT 31/270);

(r) Shellborough Town Lot 12 (CT 28/172);

(s)Shellborough Town Lot 13 (GT 1/50);

(t)Shellborough Town Lot 15 (CT 43/344);

(u)Shellborough Town Lot 16 (CT 43/345);

(v)Shellborough Town Lot 25 (CT 43/279);

(w)Shellborough Town Lot 26 (CT 43/280);

(x)Shellborough Town Lot 63 (CT 118/129);

(y)Shellborough Town Lot 64 (CT 81/180);

(z)Shellborough Town Lot 65 (CT 182/106);

(aa)Shellborough Town Lot 66 (CT 182/107);

(bb)Shellborough Town Lot 67 (CT 610/171);

(cc)Shellborough Town Lot 72 (CT 121/33); and

(dd)Shellborough Town Lot 83 (GT 10/327, subsequently CT 2119/209)

2.Vested Reserves

(a)Reserve 29266 (Forrest Locations 64 and 117) for the purpose of gravel vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 14 May 1976;

(b)Reserve 33811 (De Grey) for the purposes of conservation of flora and fauna vested pursuant to section 33 of the Land Act 1933 (WA) in the Western Australian Wildlife Authority on 31 December 1975;

(c)Reserve 34002 (Forrest Location 133) for the purposes of gravel vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 14 May 1976;

(d)Reserve 34578 (De Grey, North Turtle Is) for the purposes of conservation of flora and fauna vested pursuant to section 33 of the Land Act 1933 (WA) in the Western Australian Wildlife Authority on 1 April 1977;

(e)Reserve 35696 (Forrest Location 151) for the purpose of quarry vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 1 December 1978.

(f)Reserve 37818 (De Grey Location 56) for the purposes of quarry site (Main Roads Department) vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 2 July 1982;

(g)Reserve 37898 (De Grey Location 54) for the purposes of water supply vested pursuant to section 33 of the Land Act 1933 (WA) in the Minister for Water Resources on 3 September 1982;

(h)Reserve 37899 (Forrest Location 160) for the purposes of water supply vested pursuant to section 33 of the Land Act 1933 (WA) in the Minister for Water Resources on 3 September 1982;

(i)Reserve 37900 (Forrest Location 162) for the purposes of radio mast site vested pursuant to section 33 of the Land Act 1933 (WA) in the Minister for Water Resources on 3 September 1982;

(j)Reserve 38564 (Forrest Location 171) for the purpose of repeater station site vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian Telecommunications Commission on 19 October 1984;

(k)Reserve 38768 (De Grey Location 57- limited depth 15m below surface) for the purposes of microwave translater site vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian Telecommunications Commission on 9 August 1991;

(l)Reserve 38769 (Pardu Location 12- limited depth 15m below surface) for the purposes of microwave translater site vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian Telecommunications Commission on 9 August 1991;

(m)Reserve 39135 (De Grey Location 64 and Pardu Location 19) for the purposes of recreation vested pursuant to section 33 of the Land Act 1933 (WA) in the Shire of East Pilbara on 12 July 1985;

(n)Reserve 41094 (Forrest Location 195) for the purposes of gravel (Main Roads Department) vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 15 September 1989;

(o)Reserve 41533 (Forrest Location 194) for the purposes of transmitter site vested pursuant to section 33 of the Land Act 1933 (WA) in the Minister for Police and Emergency Services on 28 December 1990;

(p)Reserve 42131 (Pardu Location 21) for the purposes of water bore and campsite vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 13 November 1992;

(q)Reserve 42526 (De Grey Location 58) for the purposes of repeater station site vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian and Overseas Telecommunications Corporation Ltd on 12 March 1993;

(r)Reserve 12297 for the purposes of Rabbit Proof Fence No.1 (including the Rabbit Proof Fence); and

(s)Port Hedland Port (as described in the First Schedule to the Port Hedland Port Authority Act 1970 (WA)) and vested pursuant to section 19 of the Port Hedland Port Authority Act 1970 (WA) in the Port Hedland Port Authority [currently Lot 372 on Deposited Plan 35620 vested in the Port Hedland Port Authority pursuant to the Port Authorities Act 1999 (WA)].

3.Leases

(a)Special Lease 114/0027 granted pursuant to clause 114 of the Land Regulations 1887 on 18 February 1895;

(b)Special Lease 3116/3449 granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of the construction upgrading re-alignment operation and use of a railway on 26 April 1966 [subsequently the subject of Special Lease 3116/6235; currently the subject of Lease GE J/998591];

(c)Special Lease 3116/3462 granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of boring for conserving reticulation and drawing water on 28 April 1966 [subsequently the subject of Special Lease 3116/6140; currently unallocated Crown land];

(d)Special Lease 3116/4253 granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of the re-alignment of portion of railway and the construction re-alignment operation and use of the railway so re-aligned on 6 January 1970 [subsequently the subject of Special Lease 3116/6164; currently the subject of Lease GE J/998593 ];

(e)Special Lease 3116/4543 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of mining operations (railway re-alignment) on 8 April 1971 [subsequently the subject of Special Lease 3116/5872; currently the subject of Lease GE J/998590];

(f)Special Lease 3116/6387 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of railway on 15 August 1977 [subsequently the subject of Special Lease 3116/6935 (GE I/123591); currently the subject of Lease GE J/998594];

(g)Special Lease 3116/7356 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of service station/road house and caravan park on 15 November 1979;

(h)Special Lease 3116/8652 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of horticulture on 1 July 1983 [currently the subject of lease GE J/120996];

(i)Special Lease 3116/9217 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of housing, agriculture and grazing on 1 April 1985;

(j)Special Lease 3116/11259 (GE I/150259) granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of agriculture on 18 April 1994;

(k)Special Lease 3116/4849 (GE I/123388) granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the purpose of construction development maintenance operation and use of radio communications and ancillary installations on 15 July 1974;

(l)Special Lease 3116/5104 (GE I/123406) granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the purpose of construction erection development maintenance use and operation of a power transmission line on 19 August 1977;

(m)Special Lease 3116/11558 (GE I/131351) granted pursuant to section 116 of the Land Act 1933 (WA) for the purposes of tourism and associated activities on 1 July 1995;

(n)General Lease H/257345 granted pursuant to section 116 of the Land Act 1933 (WA) for the purpose of market gardening on 12 October 1999;

(o)Mining Lease AM7000269 granted pursuant to the Mining Act 1904 (WA) and the Leslie Solar Salt Industry Agreement Act 1966 (WA) for the purpose of salt on 9 July 1991;

(p)Mineral Lease AML7000242 granted pursuant to the Mining Act 1904 (WA) and the Leslie Solar Salt Industry Agreement Act 1966 (WA) for the purposes of salt on 18 October 1966; and

(q)Lease 332/1455 (of Reserve 16473) granted pursuant to section 116 of the Land Act 1933 (WA) for the purpose of grazing on 1 January 1965 [currently the subject of Lease GE J/245076 and Lease 301/DP42630].

4.Dedicated roads and roads set aside, taken or resumed

(a)Road No. 222 (with a width of 20.12 metres), described as a Main Road from Yeeda Station to the boundary of Kimberley District on the route to Roebourne, gazetted on 17 September 1885, p442;

(b)Road No. 432 (with a width of 20.12 metres), known as the Condon and Roebourne Road, dedicated pursuant to the Roads Act 1888 (WA), gazetted on 22 June 1894, p587;

(c)Public Roads (Shellborough Townsite) (with a width of 20.12 metres), dedicated pursuant to the Roads Districts Act Amendment Act 1932 (WA) and marked on the plan of Shellborough Townsite;

(d)Road No. 2856 (with a width of 20.12 metres) dedicated pursuant to the Roads Act 1902 (WA), gazetted on 6 September 1907, p3065;

(e)Road No. 4274 (with a width of 20.12 metres) dedicated pursuant to the Roads Districts Act Amendment Act 1932 (WA) and marked on Plan No. 12485;

(f)Roads No. 6436 and 6437 (each with a width of 20.12 metres) dedicated pursuant to the Roads Districts Act 1919 (WA), gazetted on 6 May 1921, p755;

(g)Road No. 6441 (with a width of 20.12 metres) set aside, taken or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 29 April 1921, p699;

(h)Road No. 6940 (with a width of 20.12 metres) set aside, taken or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 18 May 1923, p895;

(i)Road No. 14821 (with a width of 125.29 metres) dedicated pursuant to section 288 of the Local Government Act 1960 (WA), gazetted on 17 November 1972, p4383;

(j)Roads No. 14969 and 14970 (each with a width of 40.23 metres) dedicated pursuant to section 288 of the Local Government Act 1960 (WA), gazetted on 24 August 1973, p3146;

(k)Roads No. 105/106, 106/106, 107/106, 108/106, 109/106 and 110/106 (each with a width of 20.12 metres) dedicated pursuant to section 106 of the Land Act 1933 (WA), gazetted on 1 November 1968, p3267;

(l)Roads No. 16289, 16290, 16291, 16292 and 16293 (each with a width of 20.12 metres) set aside, taken or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 11 January 1980, p50;

(m)Public Road (Cape Keraudren Road) (with a width of 40 metres) dedicated pursuant to section 294(a) of the Local Government Act 1960 (WA) marked on Plan No. 16173;

(n)Dedicated Road shown on Land Administration Miscellaneous Diagram 93579 (with a width of 40 metres) dedicated pursuant to section 56 of the Land Administration Act 1997 (WA);

(o)Dedicated Road shown shaded brown on Deposited Plan 213482 (with a width of 20 metres) dedicated pursuant to section 294A of the Local Government Act 1960 (WA) (inserted by Act 65 of 1975); and

(p)Public Road (Ngarla-Njamal-Jinparinya Road) (with a width of 40 metres) dedicated pursuant to section 294A of the Local Government Act 1960 (WA) (inserted by Act 65 of 1975) marked on Deposited Plan No. 18421.

5.Telecommunications facilities

(a)the Tabba Tabba Optic Fibre Regenerator Site, having an area of 722 square metres, with a station mark located at the south east corner of the Site at Longitude 119'01'08.05" Latitude 20'21'42.62". The boundaries of the Site, by reference to the station mark, are 30 metres north by 20 metres west by 42.19 metres south by 23.42 metres north east;

(b)the Merrimerica Optic Fibre Regenerator Site, having an area of 738 square metres, with a station mark located at the north-west corner of the Site at Longitude 119'48'58.09" Latitude 20'03'37.14". The boundaries of the Site, by reference to the station mark, are 24.25 metres north east by 41.45 metres south by 20.95 metres west by 29.17 metres north; and

(c)the Mt Goldsworthy Optic Fibre Regenerator Site, having an area of 739 square metres, with a station mark located at the north-west corner of the Site at Longitude 119'27'45.67" Latitude 20'18'51.86". The boundaries of the Site, by reference to the station mark, are 24.10 metres north east by 41.24 metres south by 20.97 metres west by 29.35 metres north.

6.Public Works

Any public works as that expression is defined in the Native Title Act 1993 (Cth) and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which section 12J Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or section 23C(2) of the Native Title Act 1993 (Cth) applies, within the external boundary of the Determination Area including the land and waters defined in section 251D of the Native Title Act 1993 (Cth), are excluded from the Determination Area.

FOURTH SCHEDULE

The nature and extent of other rights and interests in relation to Determination Area A are:

1.Reserves

The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

(a)Reserve 376 for public purposes;

(b)Reserves 377, 768, 4979, 3091 and 12786 for the purposes of water;

(c)Reserve 541 for the purpose of water and stopping place for travellers and stock;

(d)Reserves 1502, 1503, 1535, 1536, 1537, 1542 for the purposes of watering places;

(e)Reserves 2301, 9697, 9700 and 9701 for the purposes of stock routes;

(f)Reserves 2422 to 2427 and 2559 for the purposes of public utility;

(g)Reserve 12567 for the purpose of camping;

(h)Reserves 13636, 13637, 13639, 13641, 13642 and 13643 for the purposes of timber;

(i)Reserve 30559 for the purpose of government requirements of Ridley River division; and

(j)Reserve 39134 for the purpose of geodetic station;

2.
Pastoral Leases

The rights and interests of the holders from time to time of the following pastoral leases:

(a)Pastoral Leases 3114/446 (De Grey Location 86 and Pardu Location 43) and 398/0718 (De Grey Location 98 and Pardu Location 48), being Pardoo Station;

(b)Pastoral Lease 3114/860 being Pippingarra Station (Forrest Location 202); and

(c)Pastoral Lease 3114/1142 being De Grey Station (De Grey Location 104 and Forrest Locations 200, 204 and 205);

3.Other Leases

The rights and interests of the holders of the following leases:

(a)Lease H/879753 between the Minister for Lands (Lessor) and the Pananykarra Aboriginal Corporation (Lessee) granted for the purpose of advancing the interests of any Aboriginal person pursuant to section 83 of the Land Administration Act 1997 (WA) on 1 September 2001;

(b)Lease of Reserve 41863 between the Aboriginal Lands Trust (Lessor) and the Ngarla-Coastal Njamal (Aboriginal Corporation) (Lessee) on 20 July 1992;

(c)Sub-lease of pastoral lease 3114/860 (Pippingarra) between the Aboriginal Lands Trust (Lessor) and the Mugarinya Community Association Inc. (Lessee) on 1 September 1988;

(d)Lease 39/3 (GE I/154275) between the Minister for Lands (Lessor) and the Jinparinya Aboriginal Corporation (Lessee) granted pursuant to section 9 of the Land Act 1933 (WA) for the purpose of residential and economic development associated with Aboriginal heritage and cultural use on 9 August 1996; and

(e)Lease 39/4 (GE I/150265) between the Minister for Lands (Lessor) and the Jinparinya Aboriginal Corporation (Lessee) granted pursuant to section 9 of the Land Act 1933 (WA) for the purpose of residential and economic development associated with Aboriginal heritage and cultural use on 9 August 1996.

4.Mining Tenements

(a)The interests of the holders of the following mining tenements granted under the Mining Act 1978 (WA):

(i)Mining Leases

Tenement ID	Holder	Date Granted
M4500097	BHP Billiton Minerals Pty Ltd Itochu Minerals & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd	21/01/1986
M4500099	BHP Billiton Minerals Pty Ltd Itochu Minerals & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd	21/01/1986
M4500100	BHP Billiton Minerals Pty Ltd Itochu Minerals & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd	21/01/1986
M4500101	BHP Billiton Minerals Pty Ltd Itochu Minerals & Energy of Australia Pty Ltd Mitsui Iron Ore Corporation Pty Ltd	21/01/1986

(ii)Exploration Licences

Tenement ID	Holder	Date Granted
E4501866	Westralian Nickel  Ltd	09/02/2004
E4502146	Westralian Nickel Ltd	05/10/2004
E4502278	Westover Holdings Pty Ltd	18/06/2002
E4502285	Western Australian Resources Ltd	08/05/2002
E4502286	Western Australian Resources Ltd	08/05/2002
E4502330	Atlas Iron Ltd	01/06/2005
E4502358	Leviathan Resources Ltd	25/10/2005
E4502380	Independence Group NL	24/10/2003
E4502381	Independence Group NL	24/10/2003
E4502537	Independence Group NL	24/11/2005
E4502538	Independence Group NL	24/11/2005
E4502539	Independence Group NL	24/11/2005
E4502540	Independence Group NL	24/11/2005
E4502557	Faustus Nominees Pty Ltd	14/10/2005
E4502558	Faustus Nominees Pty Ltd	14/10/2005
E4502569	Atlas Iron Ltd	27/07/2005
E4502576	Faustus Nominees Pty Ltd	14/10/2005
E4502603	Aquila Steel Pty Ltd	02/10/2005
E4502667	Atlas Iron Ltd	01/11/2005
E4502723	Ochre Resources Ltd	30/06/2006
E4502736	Ochre Resources Ltd	30/06/2006
E4502747	Baracus Ptd Ltd	27/10/2006
E4502813	Eclipse Minerals Pty Ltd	14/12/2006
E4502814	Eclipse Minerals Pty Ltd	14/12/2006

(iii)Miscellaneous Licences

Tenement ID	Holder	Date Granted
L4500110	Newcrest Mining Ltd	23/10/2003
L4500154	Atlas Iron Ltd	24/11/2006

(iv)Prospecting Licences

Tenement ID	Holder	Date Granted
P4502572	Westralian Nickel Pty Ltd	04/11/2005
P4502573	Westralian Nickel Pty Ltd	04/11/2005

(v)   Pipeline Licences

Tenement ID	Holder	Date Granted
PL60	Gas Transmission Services (WA) Operations Pty Ltd.	17/10/2003

(b)The agreement as amended and ratified by the Iron Ore (Mt Goldsworthy) Agreement Act 1964 (WA) and rights and interests comprised in, conferred under or in accordance with or pursuant to that agreement.

(c)The agreement as amended and ratified by the Leslie Solar Salt Industry Agreement Act 1966 (WA) and rights and interests comprised in, conferred under or in accordance with or pursuant to that agreement.

5.Statutory fishing and pearling interests

The interests of the holders of statutory fishing and pearling interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to such legislation.

6.Licences

The holders of licences issued under the:

(a)Land Act 1933 (WA) and the Land Administration Act 1997 (WA);

(b)Mining Act 1978 (WA);

(c)Jetties Act 1926 (WA);

(d)Wildlife Conservation Act 1950 (WA);

(e)Conservation and Land Management Act 1984 (WA);

(f)Rights in Water and Irrigation Act 1914 (WA);

(g)Transport Co-ordination Act 1966 (WA); and

(h)Water Services Coordination Act 1995 (WA).

7.Permits

The holders of permits issued under the:

(a)Land Act 1933 (WA); and

(b)Land Administration Act 1997 (WA)

8.Other rights and interests:

Other rights and interests:

(a)Valid or validated rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power.

(b)Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth.

(c)Rights and interests of members of the public arising under the common law, including:

(i)     the public right to fish in tidal waters; and

(ii)     the public right to navigate in tidal waters.

(d)Access to areas of previously unallocated Crown land by any:

(i)     employee or agent of the State Government;

(ii)     employee or agent of the Commonwealth Government;

(iii)    employee or agent of any local government authority;

as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.

(e)Existing rights of the public to access and enjoy:

(i)  waterways; or

(ii) beds and banks or foreshores of waterways; or

(iii)           coastal waters; or

(iv)           beaches; or

(v) stock routes.

(f)The rights and interests of Telstra Corporation Limited:

(i)     as the owner or operator of telecommunications facilities within  Determination Area A, including customer radio terminals and cabling;

(ii)     as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(iii)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and

(iv)    for its employees, agents or contractors to enter Determination Area A to access its facilities in and in the vicinity of Determination Area A.

(g)Rights of any person to access and enjoy (subject to the laws of the State) any existing roads within  Determination Area A where members of the public have access to such roads according to the common law.

(h)Without limiting the operation of any other paragraph in the Fourth Schedule, but subject to paragraph (h)(ii):

(i)     rights of the holders from time to time of mining tenements under the Mining Act 1978 (WA) to use (including by servants, agents and contractors) the existing roads and tracks in the Determination Area.

(ii)     Nothing in paragraph (h)(i) above allows any upgrade, extension, widening or other improvement to the road or track in reasonable repair or where a road or track is rehabilitated, the later reinstatement of the road or track to substantially the same condition as prior to the rehabilitation.

(i)Nothing in paragraphs (g) and (h) will limit the rights of the holders from time to time of mining tenements, petroleum interests or other interests granted under a law of the State or Commonwealth, including without limitation any right to exclude members of the public from entering onto the land and waters the subject of any mining tenements, petroleum interests or other interests. 

FIFTH SCHEDULE

"Ngarla" means those people who refer to themselves as Ngarla, being persons who:

1.Are the cognatic descendants of persons recognised under traditional laws and customs to be members of the Ngarla language group (including persons who have been adopted into the group according to those laws and customs), in particular the descendants of the following individuals:

(a)Paparumarra (Alec);

(b)Miriny-Mirinymarra (Horse-boy Jimmy);

(c)Yintilypirna (Shaw River Smiler);

(d)Jarnpa (the father of Warrjirungu);

(e)Wangkunuru (Cissie);

(f)Makanykarra (Willy);

(g)Jurrayingki (Frank);

(h)Kurlijirri (De Grey Smiler); and

(i)Yilpiwarna (Arthur Kitil); and

2.Persons who have been incorporated into the Ngarla group under traditional laws and customs, in particular:

(a)Wiparu (Stephen Stewart) and his children, Stephen Stewart Jnr and Margaret Stewart.

SIXTH SCHEDULE

Areas within Determination Area A to which sections 47A or 47B of the Native Title Act 1993 (Cth) apply, generally shown as hatched in pink on the maps at Attachment 1 to the First Schedule:

1.Section 47A

Section 47A of the Native Title Act 1993 (Cth) applies to the following areas within Determination Area A:

(a)Reserve 41863 (Forrest Location 225) for the purposes of use and benefit of Aboriginal inhabitants vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 6 September 1991;

(b)Lease 39/3 (GE I/154275) granted pursuant to section 9 of the Land Act 1933 (WA) for the purpose of residential and economic development associated with Aboriginal heritage and cultural use on 9 August 1996; and

(c)Lease 39/4 (GE I/150265) granted pursuant to section 9 of the Land Act 1933 (WA) for the purpose of residential and economic development associated with Aboriginal heritage and cultural use on 9 August 1996.

2.Section 47B

Section 47B of the Native Title Act 1993 (Cth) applies to the following areas of unallocated Crown land within Determination Area A:

(a)UCL A (being the area formerly the subject of Shellborough Town Lot 17 (Certificate of Title 52/30);

(b)UCL B (being the area formerly the subject of Special Lease 114/0040); and

(c)UCL C (being the area formerly the subject of Special lease 114/0057).