FEDERAL COURT OF AUSTRALIA

Sampi v State of Western Australia (No 3) [2005] FCA 1716

ABORIGINES – native title determination – final determination following contested proceedings – determination covering mainland area, offshore intertidal zone and adjacent reefs and islets

Native Title Act 1993 (Cth)

Sampi v State of Western Australia [2005] FCA 777 cited

Sampi v State of Western Australia (No 2) [2005] FCA 1567 cited

PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA

WAD 49 OF 1998 AND WAD 6001 of 2004

FRENCH J

30 NOVEMBER 2005

ONE ARM POINT

THE COURT ORDERS THAT:

See Attachment 1 at the back of these reasons.

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

REASONS FOR JUDGMENT

ON DETERMINATION OF NATIVE TITLE

1                     On 10 June 2005 I published reasons for judgment on the application of the Bardi and Jawi People for a native title determination over their traditional lands on and around the Dampier Peninsula – Sampi v State of Western Australia [2005] FCA 777.  I found that native title existed and could be recognised on the mainland part of the areas covered by the application.  I also found that native title rights and interests existed in the intertidal zone and on reefs adjacent to it which were exposed  at least at low tide. Orders were made requiring the applicants to file and serve a draft determination to give effect to the reasons for judgment.  A related application, WAD 6001 of 2004, for a native title determination with respect to Brue Reef was dismissed.

2                     On 4 November 2005 I published a draft determination based on a draft submitted by the applicants and variations to it which were proposed by the other parties.  In accordance with the reasons for judgment then published, the hearing was adjourned to enable pronouncement of a formal determination on country in accordance with the terms of the determination which was annexed to the reasons – Sampi v State of Western Australia (No 2) [2005] FCA 1567.  The parties were given leave to propose drafting changes to the terms of the determination set out in that judgment. 

3                     Subsequently it was pointed out that, in light of the findings on the Brue Reef application, there should have been incorporated in the determination a determination that native title does not exist on Brue Reef.  On 21 November 2005 I made an order vacating the dismissal order in the Brue Reef proceedings, WAD 6001 of 2004, and foreshadowed, by order, that a determination that no native title existed in that area would be made. 

4                     On 25 November 2005 I made an order by consent consolidating the main native title determination application WAD 49 of 1998 and the Brue Reef application WAD 6001 of 2004, so that a single determination covering Brue Reef and the area the subject of the principal application could be made.  On the same day counsel for the applicants raised a last minute problem about the application of s 47A of the Native Title Act 1993 (Cth) (the NTA) to certain small areas covered by the determination.  This could not be resolved immediately without further consideration by the State and an opportunity for the State’s advisors to obtain instructions.  It was agreed that at the formal determination on country the application should be adjourned in so far as it related to these small areas.  The principal determination will proceed notwithstanding that adjournment. 

5                     The Bardi and Jawi People of the Dampier Peninsula have struggled long and hard for the recognition of their native title.  Their application under the NTA  was lodged with the National Native Title Tribunal (the Tribunal) in 1995.  It has been the subject of two trials in the Federal Court.  The second trial became necessary because the illness of the first trial judge meant that he was unable to continue hearing the case in 2003.

6                     The Bardi and Jawi People have established the existence of native title rights and interests on the mainland Dampier Peninsula south to the vicinity of Barrambar at Pender Bay in the west and Cunningham Point on the east.  They  have also established non-exclusive native title rights and interests in the intertidal zone and associated reefs and nearby reefs which are exposed at least at low tide.

7                     The Bardi and Jawi People hold their native title rights and interests as a group.  It is as a group that they have observed one set of traditional laws and customs under which their native title rights and interests have arisen.  Their existence as a society of Aboriginal people and their traditional laws and customs may be traced back to before the time at which Western Australia was colonised.  The rights recognised in the determination are rights to the possession and occupation of the land and ancillary rights. They have also established non-exclusive offshore native title rights and interests. 

8                     I congratulate the Bardi and Jawi People on their achievement in securing the recognition of their native title rights and interests.  I know that some will be disappointed that the native title determination did not extend to offshore islands in and around the Buccaneer Archipelago.  The proof of native title rights and interests is not an easy matter and the Court is only empowered to make determinations on the evidence before it.  The absence of any determination on the islands does not, of course, prevent Bardi and Jawi People from continuing their association with them or even from making arrangements with government about the use of some or all of them. 

9                     I thank the other parties for their efficiency and constructive conduct of the proceedings.  I will now formally pronounce the orders comprising the determination.

Associate:

Dated:              30 November 2005

Attachment 1

BARDI AND JAWI NATIVE TITLE DETERMINATION

INDEX

ORDER A.................................................................................................................................... 1

ORDER B - DETERMINATION.................................................................................................. 1

Existence of Native Title (s 225)................................................................................................. 2

The Native Title Holders (s 225(a))............................................................................................. 2

The nature and extent of native title rights and interests (s 225(b) and s 225(e)).......................... 2-4

Nature and extent of other rights and interests in relation to the Determination Area (s 225(c))....... 4

Relationship between the native title rights and interests and other interests (s 225(d)).................... 4

Areas to which s 47A and s 47B apply........................................................................................ 4

Definitions and interpretation...................................................................................................... 5

ORDER C................................................................................................................................. 5-6

SCHEDULE 1 – DETERMINATION AREA PERIMETER.......................................................... 7

External Perimeter..................................................................................................................... 7

Area 1...................................................................................................................................... 7

Area 2...................................................................................................................................... 8

SCHEDULE 2 – DETERMINATION AREA EXCLUSIONS................................................... 9-10

SCHEDULE 3 – WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION................................ 11

SCHEDULE 4 – WHERE NATIVE TITLE IS NOT EXCLUSIVE POSSESSION........................ 12

SCHEDULE 5 – WHERE NATIVE TITLE DOES NOT EXIST.................................................. 13

SCHEDULE 6 – NATIVE TITLE HOLDERS............................................................................. 14

SCHEDULE 7 – OTHER INTERESTS........................................................................................ 15

Reserves................................................................................................................................. 15

Leases.................................................................................................................................... 15

Fishing and Aquaculture licences.......................................................................................... 15-16

Pearl Oyster Farm Leases........................................................................................................ 16

Telstra..................................................................................................................................... 16

Other.................................................................................................................................. 16-17

SCHEDULE 8 – THE MAPS................................................................................................. 18-19

SCHEDULE 9 – AREAS TO WHICH s 47A and s 47B APPLY.................................................. 20

JUDGE:                           FRENCH J

DATE OF ORDER:        30 NOVEMBER 2005

WHERE MADE:            ONE ARM POINT

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

ORDER A

The proceeding stands adjourned by Order of the Court made 25 November 2005 in relation to the following areas which are not included in the Determination Area:

(a)        those portions of Dampier Location 25 as were comprised in Certificate of Title Volume 1670 Folio 883 when the native title determination application the subject of proceeding WAD 49 of 1998 was made, including Dampier Locations 371, 372, 373, 374, 404 and 405; and

(b)        the areas comprised in Certificates of Title Volume 1744 Folio 116 (Portion of Dampier Location 19), Volume 1744 Folio 117 (Portion of Dampier Location 69) and Volume 1744 Folio 118 (Dampier Location 21),

generally shown on the Maps in Schedule 8.

ORDER B - DETERMINATION

Existence of Native Title (s 225)

1.         Native title rights and interests exist in relation to those parts of the Determination Area described in Schedule 3 and Schedule 4.

2.         Native title does not exist in relation to those parts of the Determination Area described in Schedule 5.

The Native Title Holders (s 225(a))

3.         The native title is held by the Bardi and Jawi people being the persons described in Schedule 6 (native title holders).

The nature and extent of native title rights and interests (s 225(b) and s 225(e))

4.         Subject to paragraphs 6 and 7 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 [being areas where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] is the right of possession and occupation of that part as against the whole world, including the following rights:

            (a)        the right to live on the land;

            (b)        the right to access, move about on and use the land and waters;

            (c)        the right to hunt and gather on the land and waters;

            (d)        the right to engage in spiritual and cultural activities on the land and waters;

            (e)        the right to access, use and take any of the resources of the land and waters (including ochre) for food, shelter, medicine, fishing and trapping fish, weapons for hunting, cultural, religious, spiritual, ceremonial, artistic and communal purposes;

            (f)         the right to refuse, regulate and control the use and enjoyment by others of the land and its resources;

            (g)        the right to have access to and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.

5.         Subject to paragraphs 6 and 7, the nature and extent of the native title rights and interests held in relation to each part of the Determination Area referred to in Schedule 4 [being certain intertidal areas and adjacent and offshore reefs and islets together with the waters in their immediate vicinity] are:

            (a)        the right to access, move about in and on and use and enjoy those areas;

            (b)        the right to hunt and gather including for dugong and turtle;

            (c)        the right to access, use and take any of the resources thereof (including water and ochre) for food, trapping fish, religious, spiritual, ceremonial and communal purposes.

            Provided that, in respect of areas within that defined in Schedule 4 which are seaward of the mean low water mark, the preceding native title rights and interests are limited to reefs and islets within that area when they are exposed or covered by not more than 2 metres of water.

6.         The native title rights and interests are exercisable in accordance with and subject to the:

            (a)        traditional laws and customs of the native title holders; and

            (b)        laws of the State and the Commonwealth, including the common law.

7.         Notwithstanding anything in this determination there are no exclusive native title rights or interests in:

            (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.

Nature and extent of other rights and interests in relation to the Determination Area (s 225(c))

8.         The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 7.

Relationship between the native title rights and interests and other interests (s 225(d))

9.         The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests referred to in paragraph 8 (‘the other rights and interests’) is that:

            (a)        to the extent that any of the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other 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.

Areas to which s 47A and s 47B apply

10.       Sections 47A and 47B of the Native Title Act respectively apply to the areas described

            in Schedule 9.

Definitions and interpretation

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

            ‘Determination Area’ means the land and waters described in Schedule 1 and excluding those areas described in Schedule 2.  In the event of an inconsistency between the written descriptions of areas in the Schedules and the areas depicted on the Maps in Schedule 8, the written descriptions shall prevail;

            ‘land’ and ‘waters’ respectively have the same meanings as in the Native Title Act; and

            ‘Native Title Act’ means the Native Title Act 1993 (Cth).

ORDER C

12.       Within 6 months of the date of this order, the native title holders are to file and serve:

            (a)        a notice in accordance with section 56(2)(a) of the Native Title Act indicating whether the native title holders intend to have their native title held in trust by a prescribed body corporate; alternatively whether they intend to have a prescribed body corporate perform the functions in section 57(3) of the Native Title Act; and

            (b)        if the native title is to be held in trust - the name and the rules of the proposed prescribed body corporate and the written consent of the prescribed body corporate;

            (c)        if the native title is to be held by the common law holders with a prescribed body corporate to perform the functions in sub-section 57(2) of the Native Title Act - the name and the rules of the proposed prescribed body corporate.

13.       In the event that there is no nomination within the time specified in Order 12 or such later time as the Court may order, the applicant is to forthwith apply to the Court for further directions.

14.       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 or otherwise to be served on the native title holders, the native title claim group or the applicant may be served upon the solicitors for the applicant and the representative Aboriginal body for the Determination Area, and such service shall be deemed to be sufficient.

15.       In respect of land and waters other than that referred to in paragraph 2, application WAD 49 of 1998 is not “finalised” within the meaning of s 190(4)(e) of the Native Title Act until a prescribed body corporate has been determined, in accordance with s 56(1) or s 57(2) of the Native Title Act, to perform the functions mentioned in s 57(1) or s 57(3) of that Act as the case may be.

SCHEDULE 1 – DETERMINATION AREA PERIMETER

External Perimeter

The external perimeter of the Determination Area is described in this Schedule and generally shown on the Maps in Schedule 8.

Area 1

Commencing at the point of Latitude 16.130035°S, Longitude 123.122964°E, and extending generally southerly, passing through the following points:

Then west to a point on the northern boundary of Reserve 1834 (as it was at 1^st September 1995) at Longitude 123.140564°E, then generally westerly along the northern boundaries of that reserve to Longitude 122.663627°E.

Then north to a point in Pender Bay at Latitude 16.751355°S, then west to intersect the three nautical mile limit, then generally north-easterly along the three nautical mile limit to a southern boundary of Alarm Shoal at Latitude 16.322907°S, then generally westerly and generally north-easterly along the boundaries of Alarm Shoal to again intersect the three nautical mile limit, passing through the following points:

Again, generally north-easterly along the three nautical mile limit back to the commencement point.

Area 2

That part of Brue Reef that lies within the 12 nautical mile limit[1].

Note  Reference Data and Source:

Geographical coordinates have been provided by the NNTT Geospatial Unit and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

SCHEDULE 2 – DETERMINATION AREA EXCLUSIONS

Exclusions from the area described in Schedule 1

[Areas and things not covered by the native title determination application]

The following are not included in the Determination Area:

(a)        minerals, petroleum and gas wholly owned by the Crown;

(b)        Reserve 34257 for the purpose of ‘Conservation of Flora and Fauna’ vested in and held in trust by the National Parks and Nature Conservation Authority pursuant to s 33 of the Land Act 1933 on 5 May 1989 generally shown on the Maps in Schedule 8;

(c)        Reserve 39002 for the purpose of hospital and allied purposes vested in and held in trust by the Minister of Public Health pursuant to s 33 of the Land Act 1933 on 15 February 1985 generally shown on the Maps in Schedule 8;

(d)        Reserve 41904 for the purpose of camping vested in the Shire of Broome pursuant to s 33 of the Land Act 1933 on 18 October 1991 generally shown on the Maps in Schedule 8;

(e)        Reserve 45490 (formerly comprised in Certificate of Title Volume 1744 Folio 119) generally shown on the Maps in Schedule 8;

(f)         the Leveque Radio Site located on Dampier Location 297, being a square shaped area of four hectares (200 metres x 200 metres), the right side corner points of which are located 138.59 metres from a station mark located at Longitude 122054’52.6 Latitude 16032’25 and the left side corner points of which are located 141.42 metres from the same station mark, generally shown on the Maps in Schedule 8;

(g)        the areas comprised in Certificates of Title Volume 1711 Folio 767, Volume 1436 Folio 128, Volume 1436 Folio 176, Volume 1523 Folio 196 (Dampier Location 10) and Volume 2096 Folio 847 (Dampier Location 134), generally shown on the Maps in Schedule 8;

(h)        the areas comprised in Special Leases 3116/10384, 3116/11169 and 3116/11749, generally shown on the Maps in Schedule 8;

(i)         the following gazetted and dedicated roads as generally shown in the Maps in Schedule 8:

(i)         Road No. 6241, the Broome to Cape Levique (sic) road, gazetted pursuant to the Lands Act 1911 on 5 September 1919 (page 1566) and 12 September 1919 (page 1600);

(ii)        Road No. 15970, Cape Leveque Road, gazetted pursuant to the Local Government Act 1960 on 1 July 1988 (page 2138);

(iii)       Road No. 16387, within Reserve 20927, gazetted pursuant to the Local Government Act 1960 on 24 April 1980 (page 1197);

(iv)       Road No. 18047, Kinney Road, gazetted pursuant to the Local Government Act 1960-1979 on 2 June 1989 (page 1613);

(v)        Road No. 18048, Kinney Road, gazetted pursuant to the Local Government Act 1960-1979 on 2 June 1989 (page 1613);

(vi)       Crown Survey OP 16514, Pender Bay Road, dedicated pursuant to s 294A of the Local Government Act 1960-1979.

SCHEDULE 3 – WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

Areas where native title comprises the rights set out in Order 4

[No extinguishment or extinguishment disregarded]

The parts of the Determination Area where native title comprises the rights and interests set out in Order 4 are those parts that lie within the line described in this Schedule, and generally shown on the Maps in Schedule 8.

Commencing at the point of intersection between the southern boundary and the mean high water mark on the western side of the Dampier Peninsula and proceeding generally northerly, generally north-easterly generally south-easterly and generally southerly around the Dampier Peninsula following the mean high water mark to the point of intersection between the mean high watermark and the southern boundary on the eastern side of the Dampier Peninsula, then generally westerly by the southern boundary to the commencement point.

In this Schedule and in Schedule 4, ‘southern boundary’ means a line commencing at the commencement point then proceeding generally south-easterly along that line back to the mouth of Kelk Creek, then generally south easterly along the centre line of Kelk Creek to the point of intersection between that line and the northern boundary of Reserve 1834, then easterly following that boundary for approximately 10 kilometres to Longitude 122.935502 E° then north easterly to a point on the 2 metre bathometric contour at lowest astronomical tide of the mainland coast on the eastern side of the Dampier Peninsula at Latitude 16.714603 S°, as generally shown on the Maps in Schedule 8.

In the definition of the southern boundary ‘commencement point’ means a point on the western side of the Dampier Peninsula at which a line drawn from the mouth of Kelk Creek and bisecting Pender Bay intersects with the 2 metre bathometric contour at lowest astronomical tide of the mainland coast of the Dampier Peninsula as shown on the Australian Nautical Chart AUS 323.

SCHEDULE 4 – WHERE NATIVE TITLE IS NOT EXCLUSIVE POSSESSION

Areas where native title comprises the rights set out in Order 5

[Tidal and Offshore Areas]

The area bounded by a line commencing at the commencement point and proceeding generally northerly, generally north-easterly generally south-easterly and generally southerly generally following the 2 metre bathometric contour at lowest astronomical tide of the mainland coast of the Dampier Peninsula as shown on the Australian Nautical Charts AUS 733 (and, where AUS 733 does not cover the relevant area, AUS 323) to the eastern end of the southern boundary then generally westerly by the southern boundary to the mean high water mark on the eastern mainland coast of the Dampier Peninsula then generally northerly, generally north-westerly, generally south westerly and generally southerly following that mean high watermark of the mainland coast of the Dampier Peninsula to the point of intersection of the mean high watermark with the southern boundary on the western mainland coast of the Dampier Peninsula then westerly to the commencement point, as generally shown on the Maps in Schedule 8, but excepting from that area the feature known as Lalariny.

Note – the native title rights and interests set out in Order 5 are qualified in respect of areas seaward of mean low water mark.

SCHEDULE 5 – WHERE NATIVE TITLE DOES NOT EXIST

[Areas not excluded but where native title does not exist]

The parts of the Determination Area where native title does not exist are the lands and waters of the Determination Area other than those described in Schedules 3 and 4.

SCHEDULE 6 – NATIVE TITLE HOLDERS

The Native Title Holders referred to in Order 3

The persons referred to in Order 3 are:

(a)        the descendants of the following people:

                        Agimo, Albert Balib, Banalm, Bayid, Bidnid, Bulam also called 'Plum', Daygan; Dibi, Dilay, Dingga or Tinker also known as Jungurinjan, Emilie Amilij Williams, Ernest Ralph Anij, Gagi, Gardad also known as Gardada, Gawrri, Gregory Girrigwarr also known as Ngalgun, Igab also known as Igabo, Irene Nyunggu, Irrigul, Jambu, Jarni also known as Johnny Wangal, Jinerrb, Jurni, Malumbo Jack Junduwarra, Mandirr aka Judunbur, Mandirr, Marraliny, Miyardi, Nayp, Nayard, Ngunya, Nubul also known as Mardinganbur, Nyamwa, Panj also known as Ngarlgarrman, Peter Wambalag, Raphael Phillips, Willie Gunggunbur and Benedict Dilay; and

(b)        those persons adopted by those descendants, in accordance with the traditional laws and customs of the native title holders.

SCHEDULE 7 – OTHER INTERESTS

Other interests referred to in Paragraph 8

The nature and extent of other interests in relation to those parts of the Determination Area described in Schedules 3 and 4 are the following as they exist as at the date of this determination:

Reserves

1.         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 20927 for the ‘Use and Benefit of Aborigines’ vested pursuant to s 33 of the Land Act 1933 (WA), in the Aboriginal Lands Trust on 29 June 1973, for the designated purpose of ‘Use and Benefit of Aborigines’; and 

(b)        Reserve 38931 for the ‘Use and Benefit of Aboriginal Inhabitants’ vested pursuant to s 33 of the Land Act 1933 (WA) in the Aboriginal Lands Trust on 30 November 1984.

Leases

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

(a)        Special Lease 3116/10633 in Dampier Location 297 for the special purpose of ‘Use and Benefit of Aboriginal Inhabitants’ granted pursuant to s 116 of the Land Act 1933 for a term commencing on 1 July 1991; and

(b)        Special Lease 3116/10656 in Dampier Location 290 for the special purpose of ‘Use and Benefit of Aboriginal Inhabitants’ granted pursuant to s 116 of the Land Act 1933 for a term commencing on 1 July 1991.

Fishing and Aquaculture licences

3.         The interests of the holders of statutory interests and exemptions granted under the Fisheries Management Act 1991 (Cth), the Fish Resources Management Act 1994 (WA) and the Pearling Act 1990 (WA), including the following aquaculture licences granted under the Fish Resources Management Act 1994 (WA):

Pearl Oyster Farm Leases

4.         The rights and interests of the holders of Pearl Oyster Farm Leases granted under the Pearling Act 1990 (WA), including (to the extent that they are wholly or partly within either of the area described in Schedule 3 or the area described in Schedule 4):

Telstra

5.         The interests of Telstra Corporation Limited:

(a)        rights and interests as the owner and operator of telecommunications facilities installed within the Determination Area, including customer radio terminals and telecommunications 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); and

(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.

Other

6.         The following rights and interests:

(a)        rights and interests held under valid and validated grants from the Crown pursuant to statute or in the exercise of its executive power or otherwise conferred by statute;

(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) and the Aboriginal Communities Act 1979 (WA); and

(c)        the right to access the Determination Area 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 duty where such access would be permitted to private land; 

(d)        the rights of members of the public under the following

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

(ii)        the public right to navigate over tidal waters;

(e)        the rights under the international right of innocent passage;

(f)         so far as confirmed pursuant to s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:

(i)         waterways;

(ii)        beds and banks or foreshores of waterways

(iii)       coastal waters;

(iv)       beaches.

SCHEDULE 8 – THE MAPS

The Maps referred to in Schedules 1, 2, 3, 4, 5 and 7

SCHEDULE 9 – AREAS TO WHICH s 47A and s 47B APPLY