FEDERAL COURT OF AUSTRALIA

James on behalf of the Martu People v State of Western Australia

[2002] FCA 1208

NATIVE TITLE – consent determination – within power and appropriate – Western Desert People – shared area – co-existing native title holders from different groups – order in terms of consent minute.

Native Title Act 1993 (Cth)

JEFFREY JAMES, TEDDY BILJABU, BILLY DUNN AND OTHERS ON BEHALF OF THE MARTU PEOPLE v THE STATE OF WESTERN AUSTRALIA AND OTHERS

WAG 6110 OF 1998

FRENCH J

27 SEPTEMBER 2002

PERTH

THE COURT ORDERS BY CONSENT:

 In terms of the orders attached to these reasons.

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

REASONS FOR JUDGMENT ON CONSENT DETERMINATION

1                     On 26 June 1996, an application for a native title determination was lodged with the National Native Title Tribunal on behalf of the Martu People.  The application originally covered over 219,000 sq kms of land in the western desert of the Pilbara region.  The land the subject of the application is mainly unallocated crown land. 

2                     A number of persons and organisations became respondents to the application.  A number have subsequently withdrawn.  The present respondents are the State of Western Australia, Newcrest Mining Limited, Rio Tinto Exploration Pty Limited, Straits Resources Limited, the Shire of Wiluna, Telstra Corporation Limited, Mount Burgess Mining NL, the Kimberley Land Council Aboriginal Corporation and Aboriginal persons claiming concurrent native title rights and interests in part of the Martu claim area on behalf of the Ngurrara People. 

3                     After lodgement of the application with the National Native Title Tribunal a lengthy negotiation and mediation process commenced.  In September 1998, by reason of amendments to the Native Title Act 1993 (Cth)the application to the Tribunal became a proceeding in the Federal Court.  Mediation and negotiation was however continued.  The Hon Fred Chaney AO was the mediator.  After a long process agreement has been reached and the Court is asked to make a determination of native title in favour of the Martu People over part of the area covered by the original application comprising some 136,000 sq kms.  In part of that area it is also asked to determine co-existing native title rights held by both the Martu and the Ngurrara Peoples. 

4                     The Court has the power, under s 87 of the Act, to make orders to give effect to agreements about native title determinations if it appears to the Court to be appropriate to do so.  In making a consent determination the Court must be satisfied that it has the power to do what it is asked to do and it must be satisfied that what it is asked to do is appropriate.  If for example the parties had reached an agreement where it appeared to the Court that there was nothing to support the claimed connection of the applicants to their country or if the determination appeared in some way to be obviously unfair or unjust the Court might conclude that such a determination was not appropriate.  In this case the parties have had the benefit of legal advice. Extensive anthropological research has been carried out to establish the connection of the People to their country, the extent of that country and the existence and content of their traditional laws and customs.  The anthropologists have also reported upon the way in which they have kept their connection with their country since colonisation.  That evidence has been considered by the State to support their claim.  The parties generally have been involved in the process of mediation.  The Court is entitled to and does give weight to the fact that agreement has been reached in the circumstances. 

5                     The connection of the Martu People to their country is shown in the report prepared by Professor Robert Tonkinson, Professor of Anthropology at the University of Western Australia, Mr Stephen Bennetts, an Anthropological Consultant at the Centre for Anthropological Research at the University and Ms Sarah Bell, a Research Officer at the University of Western Australia.  The report which was delivered in May 2001 was commissioned by the Ngaanyatjarra Council acting on behalf of the applicants.  In the report it is said:

“The claimants are among a number of Western Desert peoples who maintain a very strong cultural base in their traditional laws and customs, and have retained close connections to their lands despite many decades of change stemming from the advent of Whites and the powerful impacts of governmental policies and practices.  Because the frontier of contact between Whites and Aborigines continued in their lands until as recently as the 1960s, these groups are able to describe and demonstrate in great detail their laws and customs.  Their religiously based traditions are embedded in a wealth of cultural elements: mythology, story, song, ritual, the features of the landscape, and secret-sacred paraphernalia – all of which contribute to a vibrant religious life that connects them to their creators and their homelands.”

6                     The claimant group numbers about 1,600 people whose territories lie on the western side of the Western Desert surrounding Lake Disappointment and straddling the Tropic of Capricorn.  Most of them live at Parnngurr, Punmu, Kunawariji and at Jigalong.  Jigalong is just outside the claim boundary but it has been an important centre for many claimants at some stage over the past fifty years.  Two hundred of them still live there. 

7                     Over thirty of the Martu people travelled by road from the Western Desert and Eastern Pilbara in June 1996 to deliver their application to the main registry of the National Native Title Tribunal in Perth.  They also presented the Tribunal with sand from their country, on the understanding that it was to be returned when a determination of their native title claim was made.  As the report asserts:

“This symbolic gesture was a demonstration of the claimants’ strongly-held belief in their ownership of their traditional territories.”

After making the determination I propose to make today, and before adjourning, I will invite Mr Graeme Neate, the President of the National Native Title Tribunal to return the sand to the Martu People in a Piti or traditional wooden dish.

8                     The anthropological report shows there was a gradual migration of Western Desert People from the desert heartland to the fringes as a consequence of the spread of European settlement.  But this resulted in only a brief period of physical absence of the claimants from their traditional territories.  Through the cultural mechanism of dream-spirit journeys, they kept contact with and responsibility for their countries while physically elsewhere. That is what they had always done in the desert where such absences were sometimes forced by lack of water and/or food resources in their core territories.  Their hunter gathering activities continued and they went back into the desert from time to time so they did not lose contact.  There was no serious cultural break with their traditional roots. The return of people to live on the country has supported the maintenance of law and custom among them. They remain one of the most strongly “tradition-oriented” groups of Aboriginal people in Australia today partly because of the protection that their physical environment gave them against non-Aboriginal intruders.  It is not a welcoming environment for those who do not know how to locate and use its resources for survival.  Of great importance is the continuing strength of their belief in the Dreaming. 

9                     The term “Martu” is one of many dialect words used in the Western Desert by speakers of different dialects to refer to Aborigines, men or people.  This word has become the way in which different dialect speakers in the area identify themselves.  It is not tied to a particular place in the claim area.  It is used to express their shared kinship and culture across different dialects or languages.  The existence of two languages and many dialects does not detract from the unity of the group.  There is evidence also that neighbours of the claimant group recognise its members’ interests and legitimacy to speak about the claim area.

10                  Although the Court has to set boundaries in order to define the area of a native title determination, it is a fact that in the extremely arid region of the Western Desert boundaries between Aboriginal groups are rarely clear cut. They are very open to human movement across them.  Desert people define their connection to the land much more in terms of groups of sites, thinking of them as points in space not as areas with borders.  As the anthropological report says:

“Prior to the arrival of Europeans, the huge Western Desert region, in which this claim lies, would have had the lowest population densities and the highest levels of Aboriginal mobility in the continent.  These adaptations were necessary to live in this extremely marginal area, described by Gould  as ‘the harshest physical environment on earth ever inhabited by man before the Industrial Revolution’. There is also one key climatic factor – the patchiness and unreliability of rainfall – which makes it absolutely essential for human survival that, if the inhabitants recognise some form of territorial boundaries, these must allow people to cross them freely.”

Various conventions and practices have arisen to guarantee freedom of movement by Aborigines into the territories of their neighbours in areas of extreme variability of rainfall.  Despite this there is much evidence for the existence of ideas of territoriality.  People suffer home sickness when away from their heartlands for long periods and a sense of unease when entering or camping in or travelling through someone else’s country particularly for the first time. 

11                  In this case the determination recognises that in a part of the determination area called the Shared Area the native title holders are the Martu People and the Ngurrara People.  That is to say there are concurrent native title rights and interests recognised. As to that the anthropological report observes:

“The overlap between the Ngurrara and  Martu Native Title Claims reflects both the shared interest in this region and the different historical and contemporary orientation of the claimants.  The groups represented in the Martu and Ngurrara claims are related peoples who, as a result of post- contact historical processes, have come to self-identify in different ways.”

It is particularly encouraging in this case that each of these groups, consistently with their traditional law and custom, is able to recognise the interests of the other in a common area of land. Other interests are also recognised including those of the Crown, a number of mining companies who are represented today by some of the executives and Telstra Corporation.

12                  There are certain areas that are excluded from the determination, in some cases because native title is thought to have been extinguished by operation of the Act or by operation of the common law.  It is on that basis that the Rudall River National Park is not included in the determination.  This simply means that native title in such cases cannot be recognised by the Courts.  There is a limitation on the recognition which can be granted under the Native Title Act.  The relationship of the people to their country in those areas is not changed by the limits that the Act or the common law place on recognition.  If it is their country under their traditional law and custom it remains so under their law and custom whatever the Act or the common law say about recognition.

13                  I congratulate all the parties on their achievement in reaching this agreement.  I am satisfied that this is a case in which it is appropriate that there should be a determination of native title in the form proposed.  I will now pronounce the determination accordingly.

Associate:

Dated:              27 September 2002

The Court notes:

A.        That pursuant to section 87(1)(a)(ii) and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court a Minute in terms of the attached Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to a part of these proceedings.

B.         That the terms of the agreement involve the making of a determination of native title in relation to part of the land, the waters and the flowing and subterranean waters the subject of these proceedings pursuant to section 87(3) and section 94A of the Native Title Act 1993 (Cth).

C.        The parties have agreed that in respect of the balance of the land, the waters and the flowing and subterranean waters the subject of these proceedings, being the areas of mining leases and general purpose leases granted prior to 1 January 1994, current unvested reserves, the area of Reserve 34607 for the purpose of a “National Park” known as the Rudall River National Park vested pursuant to section 33 of the Land Act 1933 (Cth) in the National Parks and Nature Conservation Authority on 22 April l977, including the area of unallocated Crown land which was excised from Reserve 34607 by notice published in the Government Gazette on 15 July 1994, and the area of the Telfer Telephone Exchange Longitude 122.224657 Latitude 21.694740, set out in, and hatched purple on the plan attached to, the First Schedule of the Determination of Native Title, no determination be made and a separate negotiation process in these proceedings take place.

D.        The parties have also agreed that the common law holders or the registered native title body corporate may seek a variation of the determination of native title in this matters (as it relates to flowing and subterranean waters) in accordance with subsections 13(1)(b) and (5) of the Native Title Act 1993 (Cth) in the event of a High Court decision (or a Full Federal Court decision in respect of which either special leave to appeal to the High Court is refused or is not sought) that the common law can recognise native title rights in relation to flowing and/or subterranean waters that are different from those set out in subparagraph 5(1)(c) of the Determination of Native Title.

E.         Subject to F below, if the common law holders or the registered native title body corporate makes an application to seek a variation of the determination in accordance with paragraph D above, the parties agree to orders being made that provide for the application for variation to be served on the parties to this consent determination, that any party wishing to respond to the application for variation shall, within 28 days of the service of the application, file a Notice of Address for Service, that any party who

does not file a Notice of Address for Service within the stated 28 days shall no longer be a party to the application for variation, and that any party who files a Notice of Address for Service will consent to the application for variation being argued on the merits.

F.         For the avoidance of doubt:

            (a)        nothing in E above or otherwise prevents any party from opposing a variation to the determination on the basis of the merits of such application; and

            (b)        nothing in paragraphs D and E above or otherwise is or will be an admission by any of the parties that if a Full Federal Court or High Court decision of the nature referred to in those paragraphs is made, the Applicants will necessarily be entitled to a variation of the determination.

G.        The Applicants have yet to nominate a prescribed body corporate which will perform the functions required by either section 56 or 57 of the Native Title Act 1993 (Cth).

H.        The parties have reached agreement about the matters set out in the Determination of Native Title attached to these orders. 

THE COURT MAKES THE FOLLOWING ORDERS:

1.         With respect to those areas comprising the areas of mining leases and general purpose leases granted prior to 1 January 1994, current unvested reserves, the area of Reserve 34607 for the purpose of a “National Park” vested pursuant to section 33 of the Land Act 1933 (WA) in the National Parks and Nature Conservation Authority on 22 April 1977, including the area of unallocated Crown land which was excised from Reserve 34607 by notice published in the Government Gazette on 15 July 1994, and the area of the Telfer Telephone Exchange Longitude 122.224657 Latitude 21.694740, set out in, and hatched purple on the plan attached to, the First Schedule of the Determination of Native Title, no determination is made.

2.         The Court, being satisfied that a determination of native title in the terms set out in the attached Determination of Native Title would be within the power of the Court and, it appearing to the Court, appropriate to do so, the Court, pursuant to section 87(3) of the Native Title Act 1993 (Cth) and by the consent of the parties, makes the Determination of Native Title accordingly.

3.         Within three months of the date these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and if so by whom, by:

            (a)        nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and

            (b)        including within the nomination the written consent of the prescribed body corporate.

4.         If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 2 in trust for the common law holders of the native title rights and interests.

5.         If a prescribed body corporate is not nominated in accordance with order 3, the native title rights and interests described in order 2 will be held by the common law holders (as defined in the determination) in respect of the determination area as the common law holders of the native title rights and interests.

6.         If a prescribed body corporate is not nominated in accordance with order 3, and native title is therefore held by the common law holders in accordance with order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act 1993 (Cth).

7.         Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the common law holders may be served upon the Ngaanyatjarra Council Aboriginal Corporation and the Kimberley Land Council Aboriginal Corporation, and such service shall be deemed to be sufficient.

8.         There be liberty to any party to apply on 7 days written notice.

9.         There be no order as to costs.

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

DETERMINATION OF NATIVE TITLE

THE COURT ORDERS, DECLARES AND DETERMINES, PURSUANT TO ORDER 29 OF THE FEDERAL COURT RULES, WITH THE CONSENT OF THE PARTIES THAT:

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

            “the land” means the land within the determination area;

            “the waters” means the waters within the determination area excluding flowing and subterranean waters;

            “flowing and subterranean waters” means those waters within the determination area which are:

            (a)        waters which flow, whether permanently intermittently or occasionally, within any river, creek, stream or brook;

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

            (c)        waters from and including an underground water source, including water that percolates from the ground;

            “the land and waters” means “the land” and “the waters” as defined collectively;

            “the Shared Area” means that part of the determination area described as the Shared Area in the Third Schedule and shaded green on the plan attached to the First Schedule;

            “mining operations” has the meaning given to that expression by the Mining Act 1978 (WA) and includes the construction of roads, tracks or other crossings.

2.         The determination area is the land, the waters and the flowing and subterranean waters, the external boundary of which is described and depicted in the First Schedule, and the area of which is hatched in orange on the plan attached to the First Schedule.

            For the avoidance of doubt, the determination area does not include the areas set out under the heading “Exclusions from the determination area” in the First Schedule and the areas set out under the heading “Areas where no determination of native title is made” in the First Schedule.

3.         Native title exists in relation to the determination area in the manner set out in paragraph 5 of this determination.

4.         The native title rights and interests are held by the persons described in the Third Schedule as the common law holders of the native title rights and interests (“the common law holders”).

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 in the determination area are:

                        (a)        the right to possess, occupy, use and enjoy the land and waters of the determination area to the exclusion of all others, including:

                                    (i)         the right to live on the determination area;

                                    (ii)         the right to make decisions about the use and enjoyment of the determination area;

                                    (iii)        the right to hunt and gather, and to take the waters for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs;

                                    (iv)        the right to control access to, and activities conducted by others on, the land and waters of the determination area;

                                    (v)        the right to maintain and protect sites and areas which are of significance to the common law holders under their traditional laws and customs; and

                                    (vi)        the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the determination area;

                        (b)       the right to use the following traditionally accessed resources:

                                    (i)         ochre;

                                    (ii)         soils;

                                    (iii)        rocks and stones; and

                                    (iv)        flora and fauna

                                    for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs; and

                        (c)        the right to take, use and enjoy the flowing and subterranean waters in accordance with their traditional laws and customs for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs, including the right to hunt on and gather and fish from the flowing and subterranean waters.

            (2)        The native title rights and interests are exercisable in accordance with the traditional laws and customs of the common law holders.

6.         Notwithstanding anything in this determination the native title rights and interests including ochre but do not include 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.         The nature and extent of other rights and interests in relation to the determination area are those set out in the Second 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 relationship between the native title rights and interests in the land and waters described in paragraph 5 and the other rights and interests referred to in paragraph 7 (“the other rights and interests”) is that:

            (a)        the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in which case the native title continues to exist in its 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; and

            (b)        for the avoidance of doubt, the existence and exercise of the native title rights and interests does 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.

FIRST SCHEDULE

All those Lands and Waters commencing at a point of Latitude 20.748626 South, Longitude 121.001321 East and extending easterly and generally southeasterly passing through the following co-ordinate positions:

Thence southerly to the westernmost northwestern corner of Special Lease 3116/10897; Thence southerly along the western boundary of that special lease to Latitude 23.498607 South; Thence southwesterly, westerly, northerly, again westerly, southerly, and again westerly passing through the following co-ordinate positions:

Thence northeasterly to a southern boundary of Pastoral Lease 3114/1255 (Weelarrana) at Longitude 120.568181;  Thence easterly and northerly along boundaries of that pastoral least to Latitude 23.751355 South;  Thence northeasterly to a southern boundary of Reserve 41265 at Longitude 120.696113 East;  Thence easterly, northerly and westerly along boundaries of that reserve to the southeastern corner of Pastoral Lease 3114/659 (Robinson Range);  Thence northerly along the eastern boundary of that pastoral lease to Latitude 23.497899 South;  Thence northeasterly to Latitude 23.405146 South, Longitude 120.971036 East;  thence northeasterly to a southern boundary of Pastoral Lease 3114/977 (Balfour Downs) at Longitude 121.145159 East; Thence easterly, northerly and westerly along boundaries of that pastoral lease to Longitude 121.221018 East;  Thence northeasterly to Latitude 22.843118 South, Longitude 121.229854 East;  Thence northeasterly to a southern boundary of Pastoral Lease 3114/977 (Balfour Downs) at Longitude 121.255422 East;  Thence easterly and northerly again along boundaries of that pastoral lease to Latitude 22.690004 South;  Thence northeasterly to a western boundary of Reserve 12297 at Lattitude 22.349350 South; Thence generally northeasterly and northerly along boundaries of that reserve to Latitude 22.267179 South;  thence northeasterly to Latitude 22.185703 South, Longitude 121.407723 East;  Thence northwesterly to a western boundary of Reserve 12297 at Latitude 22.176991 South;  Thence generally northerly again along boundaries of that reserve to Latitude 20.998625 South;  thence westerly to Latitude 20.998627 South, Longitude 121.001324 East;  thence northerly back to the commencement point.

Note:               Cadastral boundaries sourced from the

                        Department of Land Administration’s SCDB as at

                        August 2001.

Datum:Geocentric Datum of Australia 1994 (GDA94).

Prepared by:    Land Claims Mapping Unit

                        Department of Land Administration.

Exclusions from the determination area:

1.         The following areas, having been excluded from the native title determination application, are excluded from the determination area 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)) because they are areas where previous exclusive possession acts have occurred and native title has been completely extinguished in relation to the whole of these areas.

            Reserves

            (a)        Reserve 42099 (Wanman Location 12) for the purpose of “Communications Site” vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian Telecommunications Commission on 26 May 1992;

            (b)        Reserve 42440 (Wanman Location 15) for the purpose of “Repeater Station Site” vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian and Overseas Telecommunications Corporations Limited on 22 December 1992;

            (c)        Reserve 42456 (Wanman Location 14) for the purposes of “Repeater Station Site” vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian and Overseas Telecommunications Limited on 2 February 1993;

            (d)        Reserve 41372 for the purpose of “Geological Monument Management” vested pursuant to section 33 of the Land Act 1933 (WA) in the Minister for Mines on 05 February 1993;

            Public Works

            (e)        Rudall River DRCS Repeater Site, being a square shaped area of 7.84 hectares (280 metres by 280 metres), the corner points of which are located 197.99 metres from a central station mark located at Longitude 122° 39'10.08 Latitude 22°17' 40.39, on which a building was validly constructed with the authority of the Crown on or before 223 December 1996;

            (f)         Panaka DRCS Repeater Site, being a square shaped area of 1.96 hectares (140 metres by 140 metres), the corner points of which are located 98.99 metres from a central station mark located at Longitude 123°06'03.48 Latitude

                        22°05' 05.59, on which a building was validly constructed with the authority of the Crown on or before 23 December 1996;

            (g)        Connaughton Hills DRCS Repeater Site, being a square shaped area of 1 hectare (100 metres by 100 metres), the corner points of which are located 70.71 metres from a central station mark located at Longitude 122° 32' 05.82 Latitude 22°44'13.25, on which a building was validly constructed with the authority of the Crown on or before 23 December 1996;

            (h)        Big Tree DRCS Repeater Site, being a square shaped area of 4 hectares (200 metres by 200 metres), the corner points of which are located 141.42 metres from a central station mark located at Longitude 122°23'07.56 Latitude 21°51'46.72, on which a building was validly constructed with the authority of the Crown on or before 23 December 1996;

            (i)         Triwhite DRCS Repeater Site, being a square shaped area of 1.44 hectares (120 metres by 120 metres), the corner points of which are located 84.85 metres from a central station mark located at Longitude 123°27'51.91 Latitude 22°12'22.13, on which a building was validly constructed with the authority of the Crown on or before 23 December 1996; and

            (j)         Lake Auld DRCS Repeater Site, being a square shaped area of 1.44 hectares (120 metres by 120 metres), the corner points of which are located 84.85 metres from a central station mark located at Longitude 123°58' 15.64 Latitude 22° 12' 22.13, on which a building was validly constructed with the authority of the Crown on or before 23 December 1996; and

            (k)        Pikey DRCS Repeater Site, being a square shaped area of 3.24 hectares (180 metres by 180 metres), the corner points of which are located 127.28 metres form a central station mark located at Longitude 124° 23' 19.27 Latitude       22° 17' 19.36, on which a building was validly constructed with the authority of the Crown on or before 23 December 1996.

2.         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) 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.

Areas where no determination of native title is made:

3.         The areas of the following mining leases and general purposes leases granted prior to 1 January 1994, which are hatched purple on the plan attached to this Schedule are excluded from the determination area and no determination is made in relation to them:

4.         The areas of the following current unvested reserves which are hatched purple on the plan attached to this Schedule are excluded from the determination area and no determination is made in relation to them:

            (a)        Reserve 11474 for the purpose of “Water (Rabbit Department)”;

            (b)        Reserve 11541 for the purpose of “Water (Water Act 57 Vic No 20)”;

            (c)        Reserve 12297 for the purpose of “Protection of Rabbit Proof Fence No 1”;

            (d)        Reserve 13638 for the purpose of “Timber”; and

            (e)        Reserve 5279 for the purpose of “Camping”.

5.         The area of Reserve 34607 for the purpose of a “National Park” known as the Rudall River National Park vested pursuant to section 33 of the Land Act 1933 (WA) in the National Parks and Nature Conservation Authority on 22 April 1977, including the area of unallocated Crown land which was excised from Reserve 34607 by notice published in the Government Gazette on 15 July 1994, the above area being hatched purple on the plan attached to this Schedule, is excluded from the determination area and no determination is made in relation to it.

6.         The area of the Telfer Telephone Exchange, Longitude 122.224657 Latitude 21.694740 is excluded from the determination area and no determination is made in relation to it.

FIRST SCHEDULE

Map of Determination Area and Enlargement 1

Original on Court file

SECOND SCHEDULE

The nature and extent of other interests in relation to the determination area are:

1.         Existing mining tenements under the Mining Act 1978 (WA)

            (a)        Mining Leases

For the avoidance of doubt, in respect of the relationship between the native title rights and interests described in paragraph 5 and the rights of the holders of the mining leases set out above, the rights conferred by the mining leases are exclusive rights to conduct mining operations on the areas the subject of the mining leases.

The latter rights prevail over the native title rights and interests and their exercise is wholly inconsistent with the continued exercise by the common law holders of their native title rights and interests on those areas of the mining leases where mining operations are conducted, while the mining leases are or any renewal of them are in force.

Subject to the Aboriginal Heritage Act 1972 (WA) the holders of the mining leases set out above may conduct on the areas the subject of the mining leases lawful mining operations without any interference, disruption, or disturbance of whatever nature by the common law holders.

            (b)        Miscellaneous Licences

            (c)        Exploration Licences

            (d)        Prospecting Licences

2.         Existing petroleum interests under the Petroleum Act 1967 (WA)

3.         The interests of Telstra Corporation Limited

            (a)        Rights and interests as the owner and operator of the telecommunications facilities installed within the determination area, including:

                        (i)         customer radio terminals; and

                        (ii)        local distribution cabling.

            (b)        Rights and interests created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth).

            (c)        Rights of access by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in, and in the vicinity of the determination area, in the performance of their duties.

4.         State Agreement Act interests

            The rights of Straits (Nifty) Pty Ltd including the rights of any assignee under the Western Mining Corporation (Throssell Range) Agreement Act 1985 (WA).

5.         Other rights and interests

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

            (b)        Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

            (c)        Rights and interests of members of the public arising under the common law.

            (d)        The right to access land by:

                        (i)         an employee or agent or instrumentality of the State;

                        (ii)        an employee or agent or instrumentality of the Commonwealth;

                        (iii)        an employee or agent or instrumentality of any local Government authority

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

            (e)        Rights of any person to access and enjoy (subject to the laws of the State):

                        (i)         any existing roads within the determination area where members of the public have access to such roads according to the common law, including but not limited to those roads marked in red on the plan attached to this Schedule; and

                        (ii)        the Canning Stock route.

            (f)         (i)         Without limiting the operation of any other paragraph in the Second Schedule, but subject to paragraph (f)(ii), rights of the holders from time to time of mining tenements under the Mining Act 1978 (WA) and petroleum interests under the Petroleum Act 1967  (WA) to use (including by servants, agents and contractors) the existing roads and tracks in the determination area, including but not limited to those roads and tracks marked in green on the plan attached to this Schedule, in order to have access to such mining tenements and petroleum interests.

                        (ii)        Nothing in paragraph (f)(i) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such 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.

            (g)        Nothing in paragraphs (e) and (f) 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 the Commonwealth, including without limitation any right to exclude members of the public from entering onto the land and waters, the subject of any such mining tenements, petroleum interests or other interest.

SECOND SCHEDULE

CLAUSES 5(e) and 5(f)

Original Plan on Court File

CLAUSES 5(e) and (f)

Enlargement 1 on Court File

THIRD SCHEDULE

1.         In respect of the determination area, the common law holders are those people known as the Martu people.  The Martu people are those Aboriginal people who hold in common the body of traditional law and culture governing the determination area and who identify as Martu and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups:

            (a)        Manyjilyjarra;

            (b)        Kartujarra;

            (c)        Kiyajarra;

            (d)        Putijarra;

            (e)        Nyiyaparli;

            (f)         Warnman;

            (g)        Ngulipartu;

            (h)        Pitjikala;

            (i)         Kurajarra;

            (j)         Jiwaliny;

            (k)        Mangala; and

            (l)         Nangajarra.

2.         In respect of that part of the determination area within the following boundary (“the Shared Area”):

            commencing at a point of Latitude 21.498617 South, Longitude 123.926319 East and extending easterly, northeasterly, generally southeasterly, westerly, southerly, northwesterly and southwesterly passing through the following co-ordinate positions:

            thence northwesterly back to the commencement point,

            the common law holders are:

            (a)        the Martu people as defined in (1) above; and

            (b)        the Ngurrara people as defined in (3) below.

3.         The Ngurrara people are those Aboriginal people who, in accordance with their traditional laws and customs:

            (a)        identify themselves and their forebears as:

                        (i)         Jiwaliny;

                        (ii)        Mangala;

                        (iii)        Manyjilyjarra;

                        (iv)       Walmajarri;

                        (v)        Wangkajungka; or

                        (vi)       any combination of (i), (ii), (iii), (iv) and (v) above; and

            (b)        acknowledge the beliefs, practices, and protocols associated with the jila-kalpuaratu rainmaking ritual complex.