FEDERAL COURT OF AUSTRALIA

Nangkiriny v State of Western Australia [2004] FCA 1156

JOHN DUDU NANGKIRINY & ORS ON BEHALF OF THE KARAJARRI PEOPLE v STATE OF WESTERN AUSTRALIA & ORS

WAG 6100 of 1998

NORTH J

8 SEPTEMBER 2004

BIDYADANGA

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6100 of 1998

BETWEEN:

JOHN DUDU NANGKIRINY, ALEC McKAY, EDNA HOPIGA, AMY KING, DONALD GREY, NORMAN MUNRO, MICHAEL EVERETT, CISSY EVERETT, STEVEN POSSUM, WITTIDONG MULARDY, NITA MARSHALL, MERVIN MULARDY SNR, BARNEY DEAN, ELSIE WHITE, FLORA DEAN AND DORIS EDGAR ON BEHALF OF THE KARAJARRI PEOPLE

APPLICANTS

AND:

THE STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, SHIRE OF BROOME, DARCY HUNTER, MISHA PETERS, WOODA DAVIES, ADA STEWART, WINNIE COPPIN AND ALMA GREY ON BEHALF OF THE NYANGUMARTA PEOPLE, ANNA PLAINS CATTLE CO PTY LTD, WESTERN AGRICULTURAL INDUSTRIES PTY LTD, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), TELSTRA CORPORATION LIMITED, SHELL DEVELOPMENT AUSTRALIA PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BROOME PEARLS PTY LTD AND THE ROMAN CATHOLIC BISHOP OF BROOME

RESPONDENTS

JUDGE:	NORTH J
DATE OF ORDER:	8 SEPTEMBER 2004
WHERE MADE:	BIDYADANGA

THE COURT ORDERS THAT:

[Refer to minute of consent orders attached]

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6100 of 1998

BETWEEN:

APPLICANTS

AND:

RESPONDENTS

JUDGE:	NORTH J
DATE:	8 SEPTEMBER 2004
PLACE:	BIDYADANGA

REASONS FOR JUDGMENT

1 On 12 February 2002 the Court sat here in Bidyadanga to hear an application under s 87 of Native Title Act 1993 (Cth) (the Act) for consent orders relating to part of the area subject to the claim for determination of native title by the Karajarri people. The Court made the orders sought. Those orders related to an area which was called Determination Area A, and comprised the Frazier Downs pastoral leases held by the Karajarri Traditional Lands Association, unallocated crown land and reserves for the use and benefit of Aboriginal people.

2 The remaining area has been called Determination Area B. Difficult issues were raised by this part of the application because it included the pastoral leases comprising Nita Downs, Shamrock and Anna Plains Stations. Further, the law was in a state of evolution, because the landmark case of Western Australia v Ward had been heard by the High Court of Australia in March 2001 but judgment had not yet been delivered.

3 These difficult issues were referred to the National Native Title Tribunal for further mediation. Deputy President Chaney conducted the mediation. The discussions between the parties in mediation are confidential and the Court was not told of the course which they took. However, as a result of that mediation the present agreement was reached.

4 Once the agreement was reached the parties advised the Court that they wished to apply for consent orders reflecting the agreement. The Court may make such orders under s 87 of the Act if satisfied that the orders are within the power of the Court and if it appears to the Court to be appropriate to make the orders. The parties were asked to file written submissions addressing these matters, which they have done. The purpose of the hearing today is to consider whether the orders sought by the parties should be made.

5 The orders would have the effect that a determination of native title under s 225 of the Act would be made in respect of Determination Area B. It is common ground that the proposed determination complies with the requirements of s 225 of the Act, and I agree with that submission. Consequently, the making of the order is within the power of the Court as required by s 87.

6 The remaining question under s 87 is whether it is appropriate to make the orders. The proposed determination recognises non-exclusive native title interests in most of Determination Area B including Nita Downs, Shamrock and Anna Plains Stations, and some reserves. In relation to several small areas of unallocated crown land and two optical regeneration sites there has been agreement that the native title rights and interests have wholly extinguished. The applicant’s submissions state:

‘…This aspect of the Minute of Consent Determination represents a compromise on a number of issues where, in the absence of judicial pronouncements directly on point, there remains a degree of uncertainty as to how they might be resolved by the Court. The compromise extends beyond these three particular parcels of land identified above, and includes the proposed disposition over that part of the Dragon Tree Soak (Kurriji Pa Yajula) Reserve, … and the State’s undertaking in Recital E of the Minute of Consent Orders regarding a future grant of tenure to the applicants over six parcels of unallocated Crown land (situated within the Frazier Downs Pastoral Leases), which previously were Crown Reserves 1519 to 1525 for the purpose of “watering places”.

The compromise is the result of intensive mediation undertaken by the parties in February 2002, and the parties acknowledge that the position arrived at is not necessarily the only position open on the law or the facts in this case. Likewise the compromise position is not necessarily consistent with any submissions the parties may otherwise have made to the Court, had the hearing continued. In that sense the Minute of Consent Determination represents a true and genuine compromise reached ‘without prejudice’ to the parties’ legal position. …’

7 When making the consent orders in relation to Determination Area A I said:

‘The second condition is that the Court is of the view that the agreement is appropriate. Ordinarily, this condition will be satisfied if the Court concludes that the agreement was freely entered into by the parties without duress, fraud or misrepresentation. Where the agreement occurs early in a case, the Court may not be in a position to assess whether the outcome is fair and reasonable. It will rely on the fact of the agreement alone. But in this case, the agreement comes at the end of the evidence. The Court is, in such a case, able to assess the appropriateness of the agreement with much fuller information.

Mr Irving, who appeared as counsel for the applicants, has prepared a lengthy submission in which he identifies each element necessary to be established in order to entitle the applicants to an order that the determination that native title exists. The submission then cited evidence which established each of those elements. He has done a very thorough job. I have no doubt that the agreement reached is appropriate. I rely primarily on the fact that the parties have freely agreed to the terms of the orders. The fact that there is evidence before the Court which justifies the order confirms the view that the agreement freely made is appropriate.’

8 Much of the material in the submissions filed by the applicants in relation to the Determination Area A orders is relevant to both Determination Area A and Determination Area B. For instance, the submissions concerning the evidence of connection addressed the applicants’ connection with the entire determination area without differentiation between Determination Area A and Determination Area B. Therefore although I again rely primarily on the fact that the parties have freely agreed to the terms of the orders, I also rely on the evidence which was before the Court to confirm that the agreement is appropriate. Further, each of the parties to the agreement has had the benefit of independent legal advice, and the State and Commonwealth have actively participated in the proceedings in the interests of the community.

9 One issue has caused me some concern. The proposed determination provides for the native title rights and interests to be held in trust by the Karajarri Traditional Lands Association (Aboriginal Corporation) which is a prescribed body corporate (PBC) for the purposes of s 56 of the Act. A PBC is required to perform functions specified by the Act and Regulations (s 57 and 58). For instance, Regulation 6 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 requires a PBC:

‘(a) to manage the native title rights and interests of the common law holders of those rights and interests;

(b) to hold money (including payments received as compensation or otherwise related to the native title rights and interests) in trust;

(d) to consult with the common law holders in accordance with regulation 8;

(e) to perform any other function relating to the native title rights and interests as directed by the common law holders.’

It seemed relevant to the question of the appropriateness of the agreement for the Court to know something about the capacity of the PBC to perform the required functions. Consequently, the parties were asked to provide written submissions to the Court on this issue. In response, the applicants filed a written submission which described the Karajarri Traditional Lands Association’s lack of resources and consequent inability to carry out its statutory functions. In part the submission stated:

‘The KTLA has no office, no telephone and no fax machine. As the Chairman has stated, “I may be the Chairman, but we can’t afford a chair.” The lack of basic equipment means that its capacity to hold meetings, respond to Future Act notices and otherwise carry out its functions in accordance with the Act and with the KTLA Rules is severely limited.’

10 Some have pointed to policy objections to the whole concept of PBCs. They have argued that it would be more appropriate to utilize the existing representative bodies for the purpose of administering land which is the subject of native title determinations. Whatever merit there is in that view is not reflected in the present statutory arrangement.

11 There is a good argument that the inability of a PBC to fulfil its statutory functions is a relevant factor in the Court’s consideration of whether an agreement providing for such a PBC is appropriate for the purposes of s 87. In the end, I accept the respondents’ arguments that, in this case, that consideration is not determinative because no party wishes the Court to refuse to make the orders on that ground. It can only be hoped that the goodwill which has led to the successful mediation of the application will be harnessed in an effort to ensure the proper functioning of the Karajarri Traditional Lands Association. It would be an absurd outcome if, after the expenditure of such large sums to reach a determination of native title, the proper utilisation of the land was hampered because of lack of a relatively small expenditure for the administration of the PBC.

12 It follows from these reasons that I am satisfied that the requirements of s 87 have been met, and that the orders and determination sought should be made.

13 Before signing the orders it is appropriate to make some observations as to the significance of this event. Whilst the making of the orders is the end of a very long legal saga, it is the beginning of a new set of challenges for the Karajarri people in utilising the legal recognition which comes with the making of the determination.

14 The signing of the orders is the legal act which brings to a close this part of legal and Karajarri history. In closing, I repeat what I said on 12 February 2002 concerning the deep significance of this day.

15 The people of Australia, through laws made by our elected representatives in parliament, have recognised that indigenous people have rights and interests in land. The law sets out the circumstances in which the rights of those people are recognised and gives the Federal Court the power to determine when those circumstances exist. This law does not grant land rights to Aboriginal people. It creates nothing new with respect to the land. It recognises long standing traditional rights and interests under Aboriginal law.

16 Today is the day of formal recognition under the laws of Australia by all the people of Australia of the ancient rights and interests of the Karajarri people in their land. It is a moment of celebration and joy for all Australians. This act of recognition is a foundation upon which reconciliation is being built. I am immensely proud that my signature on these orders will carry the message of the Australian people to the Karajarri people that justice is now being done.

17 I now sign the formal orders of the Court which give rise to a determination of native title in favour of the Karajarri people in respect of the Determination Area B.

18 All the parties are to be congratulated on reaching agreement in this case. As a mark of the Court’s recognition of the efforts of all the parties, I will leave the bench and present a copy of the signed orders and determination to each of the parties - indigenous parties, government parties, pastoralist parties and commercial parties.

19 As this hearing concludes, I wish to express the hope that the events of today will be seen in due course as part of the tide of history which washed away the past injustices which, according to the evidence, were visited upon the Karajarri people.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 8 September 2004

Counsel for the Applicant:	Mr George Irving

Solicitor for the Applicant:	Mr Ian Irving Ms K Dunn

Counsel for the Commonwealth	Mr A Rorrison
Counsel for the State of Western Australia:	Mr J O’Halloran

Solicitor for the fishing interests:	Ms K Barrett

Date of Hearing:	8 September 2004

Date of Judgment:	8 September 2004

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION No. WAG 6100 of 1998

B E T W E E N :

JOHN DUDU NANGKIRINY, ALEC McKAY, EDNA HOPIGA, AMY KING, DONALD GREY, NORMAN MUNRO, MICHAEL EVERETT, CISSY EVERETT, STEVEN POSSUM, WITTIDONG MULARDY, NITA MARSHALL, MERVIN MULARDY Snr, BARNEY DEAN, ELSIE WHITE, FLORA DEAN AND DORIS EDGAR ON BEHALF OF THE KARAJARRI PEOPLE Applicants

and

THE STATE OF WESTERN AUSTRALIA & OTHERS Respondents

JUDGE MAKING ORDER: NORTH J

DATE OF ORDER: 8 SEPTEMBER 2004

WHERE MADE: BIDYADANGA

NATIVE TITLE DETERMINATION

THE KARAJARRI PEOPLE

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

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

“Determination Area B” means those parts of the claim area which comprise:

(a) pastoral leases 398/770, 3114/789 and 398/682 together comprising Nita Downs Station; 3114/604 being Shamrock Station and portion of 3114/1154 being Anna Plains Station;

(b) that part of reserve 39139 for the purpose of the foreshore which was not covered by the grant of special lease 3116/5247, reserve 9697 for the purpose of the Kimberley De Grey Stock Route, reserves 32602 to

32608 for the purposes of geodetic stations and reserve 36473 for the purpose of school site;

(c) that part of reserve 35918 for the purpose of conservation of flora and fauna which was included in reserve 35918 by Government Gazette notice on 20 December 1994 pursuant to the Reserves Act (No. 2) 1994 (WA) and which is hatched in red on the plan attached to the First Schedule;

(d) the area of the land and waters between the mean high water mark and the lowest astronomical tide, and any other tidal waters;

(e) the strip of unallocated Crown land between the north western corner of pastoral lease 398/770 and the eastern boundary of pastoral lease 3114/1154 and the areas of unallocated Crown land previously the subject of reserves 1519 to 1527 for the purposes of watering places, being described in the First Schedule and which are hatched in red on the plan attached to the First Schedule; and

(f) the Nita Optical Fibre Regenerator Site (Pardu Location 65) and the Injudinah Optical Regenerator Site (Dampier Location 319).

“the land” means the land within Determination Area B;

“flowing and subterranean waters” means those waters within Determination Area B 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

“the waters” means the waters within Determination Area B excluding flowing and subterranean waters;

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

2. Native title exists in Determination Area B to the extent and in the nature of the interests set out in paragraph 5 of this determination.

3. Native title has been wholly extinguished in relation to Determination Area B in the areas set out in paragraph 6 of this determination.

4. The communal or group rights and interests comprising the native title in Determination Area B are held in trust by the Karajarri Traditional Lands Association (Aboriginal Corporation), a prescribed body corporate for the purposes of section 56 of the Native Title Act 1993 (Cth), for the Karajarri people as common law holders of native title. The Karajarri people are those people described in the Third Schedule.

5. Subject to paragraphs 6, 7, 8, 9 and 10:

(1) the nature and extent of the native title rights and interests in Determination Area B held by the Karajarri people are:

(a) with respect to pastoral leases398/770, 3114/789 and 398/682 together comprising Nita Downs Station, pastoral lease 3114/604 being Shamrock Station, and portion of pastoral lease 3114/1154 being Anna Plains Station, non-exclusive rights to use and enjoy the land and waters as follows:

(i) the right to enter and remain on the land and waters;

(ii) the right to camp and erect temporary shelters;

(iii) the right to take fauna and flora from the land and waters;

(iv) the right to take other natural resources of the land such as ochre, stones, soils, wood and resin;

(v) the right to take the waters including flowing and subterranean waters;

(vi) the right to engage in ritual and ceremony; and

(vii) the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the Karajarri people.

(b) with respect to reserve 9697 for the purpose of the Kimberley De Grey Stock Route, reserves 32602 to 32608 for the purposes of geodetic stations, reserve 36473 for the purpose of school site, that part of reserve 39139 for the purpose of the foreshore which was not covered by the grant of special lease 3116/5247, that part of reserve 35918 for the purpose of conservation of flora and fauna which was included in reserve 35918 by Government Gazette notice on 20 December 1994 pursuant to the Reserves Act (No.2) 1994 (WA), and the areas of unallocated Crown land previously the subject of reserves 1519 to 1527 for the purposes of watering places, all of which areas are hatched in red on the plan attached to the First Schedule, non-exclusive rights to use and enjoy the land and waters as follows:

(i) the right to enter and remain on the land and waters;

(ii) the right to camp and erect temporary shelters;

(iii) the right to take fauna and flora from the land and waters;

(iv) the right to take other natural resources of the land such as ochre, stones, soils, wood and resin;

(v) the right to take the waters including flowing and subterranean waters;

(vi) the right to engage in ritual and ceremony; and

(vii) the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the Karajarri people.

(c) with respect to the area of the land and waters between the mean high water mark and the lowest astronomical tide, and any other tidal waters, non-exclusive rights to use and enjoy the land and waters as follows:

(i) the right of access to the land and waters;

(ii) the right to take fauna, flora, fish and other traditional resources;

(iii) the right to take the waters including flowing and subterranean waters;

(iv) the right to engage in ritual and ceremony; and

(v) the right to care for, maintain and protect from physical harm, particular sites and areas of significance to the Karajarri people.

(2) The native title rights and interests set out in sub-paragraphs (1)(a), (b) and (c) are exercisable in accordance with the traditional laws and customs of the Karajarri people 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-paragraphs (1)(a), (b) and (c) do not confer possession, occupation, use and enjoyment on the Karajarri people to the exclusion of all others.

6. Native title rights and interests have been wholly extinguished:

(a) in the strip of unallocated Crown land between the north western corner of pastoral lease 398/770 and the eastern boundary of pastoral lease 3114/1154, being described in the First Schedule, and which is hatched in red on the plan attached to the First Schedule; and

(b)in respect of the Nita Optical Fibre Regenerator Site (Pardu Location 65) and the Injudinah Optical Fibre Regenerator Site (Dampier Location 319).

7. 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 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).

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 B in existence at the date of this determination are those set out in the Second Schedule.

10. The relationship between the native title rights and interests in the land and waters and the flowing and subterranean waters described in paragraph 5 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 :

(i) a category D past act (s.232 Native Title Act 1993 (Cth));

(ii) a category D intermediate period act (s.232E Native Title Act 1993 (Cth)); or

(iii) a future act (s.233 Native Title Act 1993 (Cth)),

and 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;

otherwise,

(b)save in relation to the other rights and interests referred to in paragraphs 5(c) and 5(e) of the Second Schedule (as to which see paragraph (c) below):

(i) the other rights and interests prevail over the native title rights and interests but do not extinguish them, and

(ii) the doing of any activity required or permitted to be done by or under the other rights and interests prevails over the native title rights and interests and the exercise of them, but does not extinguish them, and the existence, enjoyment 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;

(c) the other rights and interests referred to in paragraphs 5(c) and 5(e) of the Second Schedule co-exist with the native title rights and interests.

FIRST SCHEDULE

DESCRIPTION OF KARAJARRI DETERMINATION AREA B

All those portions of land being:

The whole of Pastoral Leases 398/682, 398/770, 3114/604 (Shamrock), 3114/789 (Nita Downs).

All that portion of Pastoral Lease 3114/1154 (Anna Plains) commencing at the intersection of the southernmost southern boundary of Pastoral Lease 398/770 with a eastern boundary of Pastoral Lease 3114/1154 (Anna Plains) and extending southerly along boundaries of that pastoral lease to Latitude 19.732093 South; Thence westerly to Latitude 19.730458 South, Longitude 121.461824 East; Thence northeasterly to Latitude 19.197809 South, Longitude 121.625577 East; Thence westerly to a eastern boundary of Reserve 9697 at Longitude 121.481358 East; Thence generally northeasterly along boundaries of that reserve to a northern boundary of Pastoral Lease 3114/1154 (Anna Plains); Thence easterly, generally southerly, again easterly, southerly, again easterly and again southerly along boundaries of that pastoral lease back to the commencement point.

All that portion of Pastoral Lease 3114/1154 (Anna Plains) bound in the east by Reserve 9697 (Kimberley De Grey Stock Route) and in the south by the line extending between Latitude 19.196344 South, Longitude 121.442371 East and Latitude 19.197809 South, Longitude 121.625577 East.

All that portion of Reserve 39139 which was not previously covered by the grant of Special Lease 3116/5247.

All those portions of Reserve 9697 (Kimberley De Grey Stock Route) south of the line extending between Latitude 18.458671 South, Longitude 121.922071 East and Latitude 18.458677 South, Longitude 121.957191 East and north of the line extending between Latitude 19.196344 South, Longitude 121.442371 East and Latitude 19.197809 South, Longitude 121.625577 East.

The whole of Reserve 36473 and Reserves 32602 to 32608 inclusive.

All that portion of Reserve 35918 which was included in Reserve 35918 by Government Gazette notice on 20 December 1994 pursuant to the Reserves Act (No. 2) 1994 (WA).

The whole of the areas of former reserves 1519 to 1527 inclusive.

All those lands and waters, below High Water Mark, commencing from the intersection of the Lowest Astronomical Tide with Latitude 18.456532 South and extending southeasterly to the High Water Mark at Latitude 18.458264 South; Thence generally southwesterly along that water mark to Latitude 19.196349 South; Thence westerly to the Lowest Astronomical Tide at Latitude 19.196054 South; Thence generally northeasterly along the lowest astronomical tide back to the commencement point.

All that portion of Unallocated Crown Land bounded in the north by Pastoral Lease 3114/789 (Nita Downs), in the east by Pastoral Lease 398/770 and in the west and south by Pastoral Lease 3114/1154 (Anna Plains).

The Whole of Pardu Location 65 (Nita Optical Fibre Regenerator Site) and Dampier Location 319 (Injudinah Optical Regenerator Site).

Note: Geographic Co-ordinates provided in Decimal Degrees

Cadastral boundaries sourced from Department of Land Administration Spatial Cadastral Data dated August 2001.

Lowest Astronomical Tide sourced from the Australian Maritime Boundary Information System (AMBIS) Data. January 2001.

Datum: Geocentric Datum of Australia 1994 (GDA94)

Prepared By: Land Claims Mapping Unit, Department of Land Information

Exclusions from the determination area:

The following areas, hatched in orange on the plan attached to the First Schedule, having been excluded from the native title determination application, are excluded from Determination Area B 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:

1. Reserves:

(a) Reserve 16721 (Dampier Location 383) for the purpose of water vested pursuant to section 42 of the Land Act 1898 (WA) in the Minister for Water Supply, Sewerage, and Drainage on 13 July 1917;

(b) Reserve 16722 (Dampier Location 385) for the purpose of water vested pursuant to section 42 of the Land Act 1898 (WA) in the Minister for Water Supply, Sewerage, and Drainage on 13 July 1917;

(c) Reserve 16723 (Pardu Location 73) for the purpose of water vested pursuant to section 42 of the Land Act 1898 (WA) in the Minister for Water Supply, Sewerage, and Drainage on 13 July 1917;

(d) That part of reserve 35918 (Jamura Location 1, Dragon Tree Soak) for the purpose of conservation of flora and fauna vested pursuant to section 33 of the Land Act 1933 (WA) in the Western Australian Wildlife Authority on 30 March 1979 (but not that part of the reserve that was included by Government Gazette notice on 20 December 1994 pursuant to the Reserves Act (No. 2) 1994 (WA));

(e) Reserve 36472 (Dampier Location 137) for the purposes of a health clinic and associated staff housing vested pursuant to section 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 10 August 1990;

(f) Reserve 42063 (Dampier Location 231) for the purpose of gravel vested pursuant to section 33 of the Land Act 1933 (WA) in the Commissioner of Main Roads on 5 June 1992; and

(g) Part of Reserve 38936 (Pardu Location 15) for the purpose of a microwave translator site vested pursuant to section 33 of the Land Act 1933 (WA) in the Commonwealth of Australia on 16 November 1984.

2. Special Lease:

Special lease 3116/5247 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of cultured pearl industry.

3. Public Roads or Streets used by the public, including:

(a) Great Northern Highway; and

(b) Road number 3658.

SECOND SCHEDULE

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

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

(a) pastoral lease 398/770, 3114/789 and 398/682 together comprising Nita Downs Station;

(b) pastoral lease 3114/604 being Shamrock Station; and

including the right to use and enjoy:

(d) the waters; and

(e) the flowing and subterranean waters which have their source in, or pass through, Determination Area B.

2. 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 9697 for the purpose of the Kimberley De Grey Stock Route;

(b) reserves 32602 to 32608 for the purposes of geodetic stations;

(d) that part of reserve 39139 for the purpose of foreshore not covered by the grant of special lease 3116/5247.

3. The interests of the holder of the following mining tenement under the Mining Act 1978 (WA), including the right to use (including by servants, agents and contractors) the existing roads and tracks in Determination Area B in order to have access to the mining tenement.

Nothing in this paragraph 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.

Exploration Licence E 0401344 granted to Resource Development Company Ltd on 20 October 2003.

4. The interests of the holders of statutory fishing 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.

5. 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, including any right or interest created by or in relation to the proclamation of the Canning-Kimberley Groundwater Area on 22 April 1997 pursuant to section 26B(1) of the Rights in Water and Irrigation Act 1914 (WA).

(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 interests of Telstra Corporation Limited, being:

(i) rights and interests as the owner or operator of telecommunications facilities within Determination Area B, including customer radio terminals and overhead and underground cabling;

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

(iii) rights of access by employees, agents or contractors of Telstra Corporation Limited to its facilities in or surrounded by Determination Area B in the performance of their duties.

THIRD SCHEDULE

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

(a) are of Karajarri descent;

(b) identify as Karajarri and are accepted as such by the Karajarri;

(d) are by Karajarri laws and customs entitled to the use or occupation of the Karajarri lands irrespective of whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission and includes those persons having native title thereto under common law.

DEPUTY DISTRICT REGISTRAR

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