Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia

1. In relation to the Determination Area, there be a determination of native title in WAD 127 of 1997 in the terms provided for in Attachment A.
2. The Wirrawandi Aboriginal Corporation ICN: 8870 shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Existence of native title: section 225 Native Title Act

1. Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraph 4 of this determination.
2. Native title does not exist in those parts of the Determination Area that are: (a) identified in Schedule Three; or (b) seaward of the mean low water mark of the mainland coast.

Native title holders: section 225(a) Native Title Act 3. The native title in the Determination Area is held by the Mardudhunera People.

The nature and extent of native title rights and interests: section 225(b) and (e) Native Title Act 4. Subject to paragraphs 5, 6, 7 and 10 the nature and extent of the native title rights and interests in relation to the Determination Area is that they confer the following non-exclusive rights on the Mardudhunera People: (a) the right to enter and remain on the Determination Area, camp, erect temporary shelters and to travel over and visit any part of the Determination Area; (b) the right to hunt, fish, gather and use the traditional resources of the Determination Area; (c) the right to take and use water; (d) the right to engage in cultural activities on the Determination Area, including: (i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and (ii) conducting ceremony and ritual; and (e) the right to invite those descendants (including by adoption in accordance with traditional laws and customs) of Tutparinya, Pantun, Eva, Mabel, Jessie and Toby who are not native title holders and who, for the avoidance of doubt, are not exercising native title rights or interests, to carry out activities of the kind referred to in paragraphs (a) - (d) above within the Determination Area.

Qualifications on the native title rights and interests 5. 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; and the traditional laws and customs of the Mardudhunera People for personal, domestic, and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) but not for commercial purposes. 6. Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to: minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA); petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or water lawfully captured by the holders of the Other Interests. 7. The native title rights and interests set out in paragraph 4 do not confer: possession, occupation, use and enjoyment on the Mardudhunera People to the exclusion of all others; or a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

No application of sections 47, 47A or 47B of the Native Title Act 8. For the avoidance of doubt, sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the land and waters of the Determination Area.

The nature and extent of any Other Interests 9. The nature and extent of the Other Interests are described in Schedule Four.

Relationship between native title rights and Other Interests 10. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 and the Other Interests is that: to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise, the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Definitions and Interpretation 11. In this determination, unless the contrary intention appears: Determination Area means the land and waters described in Schedule One and depicted on the maps at Schedule Two; Native Title Act means the Native Title Act 1993 (Cth); Mardudhunera People means the people described in Schedule Five and referred to in paragraph 3; mean low water mark means the line of the low water mark as depicted in Landgate's Spatial Cadastral Database dated 2 January 2018 and shown on the maps at Schedule Two; Other Interests means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 9; resources means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed)); Titles Validation Act means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); and use does not include use by way of trade. 12. In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the map at Schedule Two the written description prevails.

DETERMINATION AREA The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description: All those land and waters commencing at Latitude 20.563408 South, Longitude 116.275471 East being a point on the present boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) and extending generally southeasterly, generally southerly, easterly and again generally southerly along the boundaries of that native title determination to Latitude 21.309988 South; Then southwesterly to the intersection of the right bank of the Fortescue River with a line joining coordinate positions Latitude 21.616520 South, Longitude 116.171996 East and Latitude 21.338692 South, Longitude 116.741673 East being a point on the present boundary of Native Title Determination WAD6090/1998 Kuruma Marthudunera Part B (WCD2018/003); Then southwesterly and generally northwesterly along the boundaries of that native title determination to Latitude 21.603409 South, Longitude 116.136046 East; Then generally northwesterly, generally northeasterly and generally southeasterly through the following coordinate positions: Latitude (South) Longitude (East) 21.600333 116.132881 21.595840 116.128132 21.591978 116.124700 21.586779 116.120537 21.585127 116.119148 21.583287 116.117478 21.579109 116.113387 21.575550 116.110043 21.571826 116.104896 21.568950 116.100109 21.565360 116.095529 21.561162 116.090583 21.558831 116.088448 21.554974 116.085206 21.552660 116.083737 21.551982 116.082991 21.550161 116.082081 21.549179 116.081153 21.547480 116.080335 21.542665 116.077211 21.538158 116.074364 21.535136 116.070913 21.534451 116.069882 21.531922 116.066991 21.530939 116.066062 21.528004 116.061276 21.526690 116.059023 21.524100 116.053659 21.523408 116.052343 21.523244 116.045591 21.522761 116.040560 21.522616 116.039516 21.522055 116.038673 21.521915 116.037820 21.520845 116.035751 21.520524 116.034902 21.518416 116.029622 21.517918 116.028873 21.516752 116.027758 21.516251 116.026913 21.515219 116.026366 21.510562 116.022286 21.509886 116.021635 21.508851 116.020993 21.507562 116.019786 21.502585 116.017331 21.500388 116.015764 21.498542 116.013808 21.496821 116.009661 21.493777 116.005354 21.492592 116.003478 21.488223 115.998916 21.486193 115.996870 21.485147 115.995752 21.484323 115.993963 21.480628 115.989956 21.479768 115.989120 21.476719 115.984623 21.472839 115.980431 21.471975 115.979404 21.471465 115.978179 21.469789 115.975839 21.466998 115.969623 21.466668 115.968394 21.465073 115.964434 21.462459 115.958119 21.459088 115.952679 21.455374 115.947911 21.454694 115.947071 21.454493 115.946219 21.453114 115.943777 21.451005 115.938497 21.448291 115.932946 21.445525 115.927681 21.444148 115.925334 21.442758 115.922416 21.439857 115.916583 21.435764 115.911064 21.432050 115.906296 21.430874 115.904801 21.425841 115.900064 21.423812 115.898017 21.422147 115.896152 21.418484 115.893477 21.414162 115.890817 21.411663 115.889162 21.407806 115.885920 21.402312 115.881955 21.397321 115.878929 21.394049 115.877578 21.387964 115.876387 21.386106 115.876429 21.383695 115.875914 21.378229 115.875564 21.372295 115.873226 21.367772 115.869714 21.365135 115.867301 21.361554 115.863102 21.360749 115.862074 21.358720 115.860027 21.358225 115.859372 21.353857 115.854810 21.352688 115.853600 21.350472 115.851271 21.345646 115.847671 21.344007 115.846852 21.342864 115.846688 21.338020 115.844801 21.332375 115.841980 21.330717 115.840401 21.326842 115.836398 21.323619 115.832094 21.323123 115.831440 21.317986 115.827371 21.316951 115.826728 21.316274 115.825982 21.314634 115.825163 21.313774 115.824327 21.309825 115.822229 21.307513 115.820854 21.306365 115.820499 21.304180 115.819408 21.303336 115.819237 21.302064 115.818695 21.296444 115.816921 21.292152 115.815496 21.290128 115.813640 21.289251 115.812137 21.288553 115.810536 21.283741 115.807506 21.281621 115.806603 21.280947 115.806047 21.279258 115.805610 21.274343 115.803248 21.273135 115.802895 21.271494 115.801981 21.266240 115.800484 21.263398 115.799503 21.261450 115.798311 21.258554 115.795142 21.257561 115.793738 21.255310 115.789983 21.254810 115.789138 21.252802 115.787948 21.250676 115.786855 21.245685 115.783829 21.244351 115.783194 21.238542 115.781042 21.237574 115.780684 21.236414 115.779854 21.233446 115.778685 21.231932 115.778054 21.228131 115.777095 21.223054 115.775499 21.220217 115.774707 21.214288 115.772560 21.208848 115.770782 21.206849 115.769971 21.201725 115.768852 21.197138 115.767624 21.190365 115.765305 21.186536 115.763205 21.181713 115.759700 21.176881 115.755814 21.172139 115.750690 21.171519 115.749848 21.170666 115.749296 21.168160 115.747356 21.163160 115.743950 21.159522 115.742321 21.151908 115.739926 21.146650 115.738239 21.145679 115.737786 21.144840 115.737805 21.139412 115.736502 21.135440 115.735927 21.132688 115.736181 21.127599 115.736488 21.121712 115.736052 21.116765 115.734833 21.113588 115.732432 21.110400 115.729556 21.107894 115.727615 21.106916 115.726876 21.105277 115.726058 21.104606 115.725598 21.099277 115.723436 21.097942 115.722801 21.095831 115.722278 21.094865 115.722015 21.093528 115.721284 21.090674 115.719828 21.085430 115.718711 21.083136 115.718098 21.077161 115.716522 21.071742 115.715599 21.068301 115.714632 21.066668 115.714098 21.065827 115.714023 21.060698 115.712713 21.058884 115.712088 21.057745 115.712114 21.055634 115.711592 21.049663 115.710207 21.047729 115.709585 21.042137 115.708952 21.036861 115.708978 21.031467 115.709100 21.025199 115.707817 21.020603 115.706210 21.018125 115.705410 21.016977 115.705056 21.011867 115.704507 21.005994 115.704642 21.000899 115.704759 20.995685 115.704878 20.994726 115.704900 20.990955 115.705177 20.984431 115.705612 20.983232 115.705640 20.982278 115.705852 20.981319 115.705874 20.980485 115.706083 20.975762 115.706667 20.973323 115.707484 20.970703 115.708210 20.965694 115.709372 20.960937 115.711003 20.958022 115.711927 20.952850 115.713758 20.952020 115.714157 20.947145 115.715886 20.945363 115.716592 20.944715 115.717083 20.943577 115.717109 20.938881 115.718834 20.937390 115.719154 20.932697 115.720974 20.928006 115.722889 20.922495 115.725585 20.918646 115.727575 20.917164 115.728275 20.916329 115.728485 20.910717 115.731943 20.909710 115.732442 20.905245 115.736160 20.904606 115.737031 20.902168 115.737848 20.898803 115.740018 20.894427 115.742497 20.892954 115.743577 20.888461 115.746154 20.886036 115.747541 20.882713 115.751424 20.882075 115.752294 20.879489 115.754447 20.875497 115.757964 20.873930 115.760093 20.870573 115.765022 20.866883 115.768627 20.861625 115.774267 20.860336 115.775533 20.857822 115.778160 20.855907 115.780773 20.855269 115.781645 20.854649 115.783276 20.852285 115.787136 20.849247 115.790346 20.845740 115.794042 20.842617 115.798776 20.839424 115.803035 20.838159 115.805253 20.834833 115.809040 20.831458 115.813208 20.828319 115.817276 20.824999 115.823728 20.824550 115.824975 20.821253 115.829903 20.820329 115.831352 20.819356 115.833278 20.816059 115.838206 20.811269 115.843453 20.810149 115.844240 20.809039 115.845407 20.808214 115.845997 20.804061 115.850279 20.799747 115.855325 20.794650 115.860199 20.790130 115.864204 20.788264 115.866340 20.785446 115.871257 20.781631 115.877053 20.779241 115.879867 20.774145 115.884836 20.771420 115.888609 20.768124 115.893632 20.764815 115.898085 20.762540 115.900706 20.761907 115.901767 20.761264 115.902448 20.758943 115.905641 20.757137 115.907776 20.756194 115.908463 20.750629 115.913824 20.744545 115.920053 20.741342 115.923932 20.737551 115.928301 20.732410 115.933842 20.728440 115.938215 20.724587 115.942490 20.720175 115.948489 20.716519 115.953425 20.712573 115.958844 20.709096 115.963776 20.708103 115.964845 20.704750 115.967491 20.699784 115.972838 20.696286 115.976915 20.691502 115.982353 20.689631 115.984299 20.684819 115.988595 20.681441 115.992669 20.678284 115.995976 20.677648 115.996942 20.674774 115.999577 20.671087 116.003277 20.669794 116.004354 20.664056 116.010004 20.660177 116.013232 20.656639 116.015692 20.655703 116.016665 20.650064 116.021456 20.645423 116.025368 20.642069 116.028014 20.640433 116.029764 20.638392 116.032094 20.634714 116.036175 20.630722 116.039692 20.629439 116.041148 20.625083 116.044483 20.620900 116.047529 20.616731 116.051144 20.615326 116.052509 20.612761 116.055517 20.608617 116.060179 20.603365 116.066104 20.600365 116.070930 20.599568 116.072661 20.598630 116.073539 20.595966 116.077406 20.593710 116.080788 20.592793 116.082521 20.589475 116.086593 20.584221 116.092423 20.580354 116.096127 20.575591 116.102421 20.570973 116.107284 20.565226 116.112554 20.560084 116.118095 20.557221 116.121205 20.553899 116.125087 20.549426 116.130994 20.546103 116.134877 20.544812 116.136048 20.541508 116.140692 20.538476 116.144189 20.533864 116.149339 20.529074 116.154495 20.525218 116.158677 20.521893 116.162466 20.518536 116.167397 20.516980 116.170003 20.513515 116.175411 20.510206 116.179865 20.505597 116.185111 20.502053 116.189759 20.498742 116.194117 20.495608 116.198375 20.492246 116.203112 20.489244 116.207841 20.485326 116.214398 20.484054 116.216329 20.482031 116.219419 20.481043 116.220679 20.477920 116.225410 20.474457 116.230912 20.471558 116.234975 20.467139 116.240594 20.466212 116.241947 20.465871 116.242716 20.465224 116.243207 20.461915 116.247659 20.459722 116.251135 20.456326 116.254541 20.455683 116.255222 20.451583 116.261690 20.447465 116.267398 20.444000 116.272805 20.442908 116.274733 20.439409 116.278810 20.436278 116.283163 20.431488 116.288317 20.428304 116.292957 20.424837 116.298363 20.420558 116.304836 20.417279 116.310525 20.413175 116.316803 20.412716 116.317670 20.411085 116.319610 20.409878 116.321731 20.406880 116.326652 20.403527 116.331772 20.400695 116.336118 20.398541 116.341211 20.395235 116.345758 20.392216 116.349824 20.388400 116.355620 20.385391 116.360066 20.381742 116.365382 20.379259 116.369245 20.375639 116.375703 20.373116 116.380423 20.370287 116.384865 20.367270 116.389026 20.363777 116.393293 20.361118 116.397350 20.356986 116.402487 20.356523 116.403164 20.354622 116.406347 20.353984 116.407217 20.353535 116.408465 20.352892 116.409146 20.352733 116.410006 20.352085 116.410496 20.349440 116.415125 20.346608 116.419470 20.344991 116.421981 20.341220 116.427206 20.338241 116.432889 20.336811 116.435681 20.333673 116.439749 20.332044 116.441784 20.329398 116.446412 20.327963 116.449014 20.325140 116.453741 20.322318 116.458468 20.319180 116.465010 20.315894 116.470412 20.312707 116.474958 20.309433 116.480837 20.306315 116.485761 20.305149 116.487120 20.303320 116.490777 20.302062 116.493280 20.299097 116.499533 20.297053 116.504242 20.296777 116.505199 20.295963 116.506264 20.294595 116.509149 20.292549 116.513764 20.290215 116.518860 20.286780 116.525503 20.283995 116.531751 20.283092 116.534055 20.282136 116.536646 20.279358 116.543180 20.276521 116.547336 20.275069 116.549273 20.272898 116.553699 20.269805 116.559669 20.268839 116.561880 20.268205 116.562941 20.266360 116.568406 20.264645 116.571871 20.263284 116.575041 20.261256 116.580417 20.259939 116.585301 20.259181 116.588648 20.258581 116.591040 20.257400 116.596681 20.255463 116.603291 20.254090 116.608460 20.253509 116.611613 20.252771 116.613343 20.252447 116.614777 20.250463 116.619485 20.249084 116.624369 20.248538 116.629044 20.247368 116.635159 20.246929 116.636882 20.246531 116.640221 20.245523 116.645573 20.244473 116.649212 20.242776 116.653438 20.241113 116.658994 20.239560 116.664073 20.238420 116.668951 20.237823 116.671534 20.237690 116.673440 20.236684 116.678886 20.235816 116.685090 20.234820 116.690917 20.233182 116.697519 20.231989 116.702684 20.231292 116.706031 20.230113 116.711766 20.229127 116.717975 20.228633 116.724649 20.227852 116.731899 20.227167 116.738195 20.225836 116.744983 20.225420 116.747561 20.224725 116.753477 20.224397 116.759669 20.223877 116.765390 20.223731 116.771673 20.223866 116.777189 20.224179 116.782604 20.224200 116.783460 20.222820 116.788344 20.222371 116.789591 20.222032 116.795403 20.221563 116.798268 20.221151 116.801036 20.221297 116.807027 20.221503 116.808069 20.223919 116.813723 20.225076 116.819310 20.226154 116.824232 20.228371 116.829033 20.228751 116.829881 20.229429 116.830626 20.230972 116.834873 20.232907 116.840442 20.234343 116.845261 20.236652 116.851392 20.237332 116.852233 20.240031 116.857213 20.241631 116.861362 20.242723 116.866853 20.244345 116.871953 20.245740 116.875060 20.246240 116.875905 20.248325 116.880234 20.249136 116.881548 20.249999 116.882479 20.251006 116.884454 20.254239 116.889138 20.255099 116.889974 20.255604 116.891009 20.257144 116.892687 20.259830 116.897097 20.262390 116.901225 20.264986 116.906874 20.267747 116.911854 20.271153 116.916247 20.274218 116.921410 20.277452 116.926188

Then southeasterly to the intersection with a northwestern boundary of Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) at Longitude 116.929062 East; Then southwesterly along the boundary of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 2 January 2018. Fortescue River sourced from Landgate's Medium-Scale Topographic Database. Petroleum Pipeline sourced from Department of Mines, Industry Regulation and Safety as at 13 March 2018. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination WAD 6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) as Determined in the Federal Court on 2 May 2005. Native Title Determination WAD 6090/1998 Kuruma Marthudunera (Part B) (WCD2018/003) as Determined in the Federal Court on 26 April 2018. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 18 May 2018 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE TWO MAPS OF THE DETERMINATION AREA

(Paragraph 2(a)) Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clauses 7 and 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:

Freehold The following grants of estates in fee simple: Certificate of Title CT0126000243 CT0162700311

Reserves The following reserves: Reserve No. Current / Last Purpose 33831 Conservation of Flora and Fauna 40748 Natural Gas Pipeline Purposes 41435 Natural Gas Pipeline Purposes 41436 Natural Gas Pipeline Purposes 41437 Natural Gas Pipeline Purposes 41651 Natural Gas Pipeline Purposes 41652 Natural Gas Pipeline Purposes 43163 Repeater Station Site 44742 Air Strip 46952 Government Requirements 46694 Construction And Launching Facility

Leases The following lease: Lease No. Current / Last Purpose GE N330882 (formerly GE I127605 (SL 3116/11282)) Transient Workforce Accommodation

Roads The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act): MapInfo No. Description Road 01 Lots 365, 431, 432, 433, 434 and 534 on DP 219913 (being 40 Mile Beach Road) Road 06 Portion of Road No. 15215 (being a portion of the North West Coastal Highway) Road 07 Road No. 17778 (being the Fortescue River Road) Road 08 Portion of Road No. 00388 Road 09 Portion of Road No. 04260 Historical Road 01 Portion of Road No. 00283 Historical Road 02 Portion of Road No. 00388 Historical Road 03 Portion of Road No. 04260 Historical Road 04 Portion of Road No. 07692 Historical Road 05 Portion of Road No. 07693 Historical Road 06 Portion of Road No. 04261 Historical Road 07 Portion of Road No. 07692 Historical Road 08 Portion of Road No. 15215 (being a portion of the North West Coastal Highway)

Dampier to Bunbury Natural Gas Pipeline The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 and the following easements (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas: MapInfo No. Easement No. Easement 02 E144713 (3134B/386) Easement 05 E229563 (3134B/211) Easement 06 E367403 (3134B/104) Easement 07 E421914 (3134B/487) Easement 11 H347160 Easement 28 E054781 (3134B/313) Easement 29 E388802 (E 3134B/565) Easement 30 E388803 (E 3134B/566) Easement 34 H347159 Easement 35 H347161 Easement 36 H347162

Taking Orders The land and waters subject to the following taking order: Taking Order Purpose H833123 Road and Construction and Launching Facility

Telstra That part of Lot 524 on Deposited Plan 75975 which is subject to the Peter's Creek Cellular Mobile Telephone Service Facility (CMTS).

Public Works Any other public work as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles Validation Act or section 23C(2) of the Native Title Act applies.

(Paragraph 9) The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

Reserves (a) The following reserves: Reserve No. Current / Last Purpose 00355 Watering Place For Travellers & Stock 00357 Watering Place For Travellers & Stock 00378 Watering Place For Travellers & Stock 00379 Watering Place For Travellers & Stock 00380 Public Purposes 00381 Water 09701 De Grey Mullewa Stock Route 46588 Recreation & Preservation Of Coastal Environment 52734 Port Purposes 52735 Port Purposes 52929 Port Purposes

(b) The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above; (c) The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and (d) The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

Pastoral Leases The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: Lease No. Station Name PL N049492 Yalleen Station PL N049500 Yarraloola Station PL N050076 Mardie Station PL N050300 Karratha Station

Leases The following leases and the rights and interests of the holders from time to time of those leases: Lease No. Purpose GE L022354 Construction and operation of a gas processing plant and associated infrastructure. GE L380579 Construction and operation of an accommodation area and accommodation area access road for housing workers connected with the construction and operation of a natural gas processing plant and associated on shore infrastructure. RO M378187 Installation, maintenance and operation of telecommunications network facility or radio communications facility.

Roads The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time: MapInfo ID. Description Road 02 Lots 257, 660 and 661 on DP 30489 (being a portion of the North West Coastal Highway) Road 03 Lot 662 on DP 30490 (being a portion of the North West Coastal Highway) Road 04 Lots 666 and 667 on DP 30491 (being a portion of the North West Coastal Highway) Road 05 Lot 524 on DP 75975 (being a portion of the North West Coastal Highway)

Easements The following easements and the rights and interests of the holders from time to time of those easements: No. Purpose Easement 01 Access Easement 25 (L528640) Access, Excavation, Laydown and Ancillary Pipeline Purposes and Pipeline Construction, Operation and Maintenance

Taking Orders The land and waters subject to the following taking order and the rights and interests arising from time to time in respect of that taking order: Taking Order Purpose YA DK623191 Gas processing plant and associated infrastructure

Port The land and waters subject to the following port declared pursuant to the Shipping and Pilotage Act 1967 (WA) and the rights and interests arising from time to time in respect of that port: Port Location Port of Cape Preston As described in Schedule 1A of the Shipping and Pilotage (Ports and Harbours) Regulations 1966 (WA)

Dampier to Bunbury Natural Gas Pipeline (a) The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land and waters the subject of the following taking orders: Taking Order H950513 H950669 H950807 I209489 I209494 I209598 I209605 I209606 I209613 I209621 I209632 I209637 I209638 I209640 I209644 I209646 I209652 I529856

(b) For the avoidance of doubt, those interests include: Interest Description / Purpose Easement 03 (E198379 [3134B/257]) Access Easement 04 (E198381 [3134B/258]) Access

Mining Tenements (a) The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements: (i) Exploration Licences Tenement ID E 0800117 E 0800118 E 0800636 E 0800660 E 0800698 E 0801331 E 0801414 E 0801451 E 0801684 E 0801685 E 0801686 E 0801825 E 0801849 E 0802361 E 0802401 E 0802740 E 0802741 E 0802943 E 4701537 E 4702372 E 4702505 E 4702677 E 4702734 E 4703072 E 4703160 E 4703301 E 4703348 E 4703391 E 4703607 E 4703707 E 4703708 E 4703709

(ii) General Purpose Leases Tenement ID G 0800051 G 0800052 G 0800053 G 0800054 G 0800063 G 0800074 G 0800075

(iii) Mining Leases Tenement ID M 0800118 M 0800119 M 0800120 M 0800121 M 0800122 M 0800123 M 0800124 M 0800125 M 0800126 M 0800127 M 0800128 M 0800129 M 0800130 M 0800264 M 0800265 M 0800266 M 4701415 M 4701420

(iv) Miscellaneous Licences Tenement ID L 0800020 L 0800045 L 0800093 L 0800104 L 0800105 L 0800126 L 0800131 L 0800149 L 4700344 L 4700345

(v) Prospecting Licences Tenement ID P 0800594 P 0800596 P 0800597 P 0800599 P 0800600 P 0800601 P 0800602 P 0800604 P 0800608

(b) The agreement as amended and ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement.

Petroleum Interests (a) The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum (Submerged Lands) Act 1982 (WA) or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those interests: (i) Exploration Permits No. EP 491

(ii) Pipeline Licences No. Name PL 17 Varanus Island to DBNGP Onshore PL 40 Dampier to Bunbury Natural Gas Pipeline PL 42 Varanus Island to DBNGP Onshore PL 77 Sino Iron Gas Pipeline PL 81 Devil Creek (DCDP Onshore Gas Supply Pipeline) PL 86 DCDP Sales Gas Pipeline PL 91 Fortescue River Crossing Pipeline PL 92 Gorgon DomGas Onshore Pipeline PL 105 Fortescue River Gas Pipeline TPL 08 Varanus Gas Sales Pipeline (Terr Sea) TPL 13 Varanus Island Gas Sales and Gas Plant (Terr Sea) TPL 20 Devil Creek Development Project (Territorial) TPL 24 Gorgon DomGas Offshore Pipeline

(iii) Easements: No. Purpose Easement 10 Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 (G875450 / EA 282) Easement 26 (L717418) Construction, operation, inspection, maintenance and repair of a pipeline, being PL 81 and PL 86 Easement 27 (L790223) Construction, operation, inspection, maintenance and repair of a pipeline, being PL 92 Easement 31 G875454 (EA 283) Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 Easement 32 G875457 (EA 284) Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17 Easement 33 G875459 (EA 285) Construction, operation, inspection, maintenance and repair of a pipeline, being PL 17

(b) The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and the rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following interests: Tenure ID Description / Tenure Type PL 24 Pipeline Licence (Goldfields Gas Transmission Pipeline) Easement 8 (F924685) Easement Easement 9 (G279072) Easement

Access to Mining Tenements and Petroleum Interests (a) Without limiting the operation of any other clause in Schedule Four, but subject to clause 11(b) below, any rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clauses 9 and 10 of this Schedule Four, to use (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area (existing as at the date of this determination) as are necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest. (b) Nothing in clause 11(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 11(a). (c) Nothing in Schedule Four will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clauses 9 and 10 of Schedule Four, including, without limitation, any right to exclude members of the public from entering onto the land and waters the subject of any mining tenement or petroleum interest.

Telstra Corporation Limited The rights and interests of Telstra Corporation Limited (ACN 051 775 556): (a) as the owner or operator of telecommunications facilities within the Determination Area; (b) 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), including rights: (i) to inspect land; (ii) to install, occupy and operate telecommunications facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and (d) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.

KM / YM Indigenous Land Use Agreement The rights and interests of the Robe River Kuruma People under the Indigenous Land Use Agreement (as amended or replaced from time to time) made pursuant to Part 2, Division 3, Subdivision C of the Native Title Act between the Applicants in the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) and the Applicants in the Yaburara Mardudhunera native title determination application (WAD 127 of 1997), which agreement was registered as an Indigenous Land Use Agreement on 4 July 2014, to the extent that those rights and interests are consistent with Recital F, clause 4(e) and Schedule Five of this determination.

Cape Preston Indigenous Land Use Agreement The Cape Preston Project Deed (YM Mardie ILUA), an Indigenous Land Use Agreement made pursuant to Part 2, Division 3, Subdivision C of the Native Title Act dated 4 June 2015 and registered on the Register of Indigenous Land Use Agreements on 6 November 2015 (Tribunal No. WI2015/003), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that Indigenous Land Use Agreement.

Other The following rights and interests in the Determination Area: (a) Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes; (b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including, but not limited to, the Rights in Water and Irrigation Act 1914 (WA); (c) Rights and interests of members of the public arising under common law, including but not limited to: (i) the public right to fish; (ii) the public right to navigate; and (iii) the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law; (d) The right to access the Determination Area by: (i) an employee, agent or instrumentality of the State; (ii) an employee, agent or instrumentality of the Commonwealth; (iii) an employee, 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; (e) So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles Validation Act 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; (v) stock routes; and (vi) areas that were public places at the end of 31 December 1993; (f) Any other: (i) legal or equitable estate or interest in the land or waters of the Determination Area; or (ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (A) the land or waters of the Determination Area; or (B) an estate or interest in the land or waters of the Determination Area; or (iii) restriction on the use of the land or waters of the Determination Area, whether or not annexed to other land or waters.

(Paragraph 3) The Mardudhunera People are those Aboriginal persons who: (1) are descended from Willy Cooper, Alf Boona, Mirbin Lowe, Woggi, Eva, Mabel, Pantun or Jessie (including through adoption in accordance with traditional Mardudhunera laws and customs); (2) identify themselves as Mardudhunera under Mardudhunera traditional law and custom and are so identified by other Mardudhunera People as Mardudhunera; and (3) have a connection with the land and waters in the Determination Area in accordance with traditional Mardudhunera laws and customs.

INTRODUCTION 1 Before the Court for determination pursuant to s 225 of the Native Title Act 1993 (Cth) (NTA) is the Yaburara & Mardudhunera native title claimant application (YM application) which covers an area of approximately 9530 square kilometres of land and waters in the Pilbara region of Western Australia. It is proposed by the parties that the Court should determine that the holders of native title in this area are the Mardudhunera People.

PROCEDURAL HISTORY 2 Application WAD 127 of 1997 was initially lodged with the National Native Title Tribunal pursuant to s 61 of the NTA on 1 August 1996. It was made under the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act), and was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the NTA ended on 7 March 1997. 3 As a result of the Native Title Amendment Act 1998 (Cth), the application was taken to have been made to the Federal Court. Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the Native Title Amendment Act 1998). 4 The application was first entered on to the Register of Native Title Claims on 1 August 1996. 5 The application was referred to the Court by the Native Title Registrar of the National Native Title Tribunal on 7 November 1997. 6 On 8 January 1999, the applicant moved for amendment of the YM Application to satisfy the requirements of the Native Title Amendment Act 1998 that all applications lodged on or after 27 June 1996 be considered for registration by the Native Title Registrar under a new registration test. On 27 January 1999, a Deputy District Registrar of the Court made orders amending the YM Application in accordance with an amended application dated 8 January 1999. This amendment altered the description of the native title holders. 7 A Deputy District Registrar of the Court made orders further amending the YM Application on 11 March 1999. 8 The YM Application was subsequently considered by the Native Title Registrar pursuant to s 190A of the NTA (commonly known as the registration test). The Native Title Registrar was satisfied that the YM Application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 9 April 1999. 9 The YM Application, as originally lodged, included land that was already under claim in WAD 6017 of 1996 (Ngarluma Yindjibarndi Application) and later claimed in WAD 6256 of 1998. Relevantly, the overlap included the Burrup and nearby islands and waters. To the extent that the YM Application overlapped the Ngarluma Yindjibarndi Application it was consolidated with that application and was the subject of a litigated determination of native title: Daniel v State of Western Australia [2003] FCA 666; Daniel v State of Western Australia [2005] FCA 536; and on appeal Moses and Others v Western Australia and Others (2007) 160 FCR 148; [2007] FCAFC 78, and orders made by the Full Court on 27 August 2007 in WAD 114 of 2005. The Court dismissed that portion of the YM Application which overlapped the Ngarluma Yindjibarndi Application on the basis that the claim group on whose behalf the YM Application was brought did not hold native title rights and interests in that area: Daniel at [1163(5)]. That dismissal was not challenged on appeal. 10 On 14 June 2013, the applicant filed an interlocutory application seeking to amend the YM Application. The amendments sought included changes to the description of the claim group, following meetings between the claimants for the YM Application and claimants for the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) (KM Application) in September 2012 and May 2013. 11 In Holborow v State of Western Australia (No 2) [2013] FCA 1040, I made orders permitting the amendment of that application. The amended application was subsequently filed on 30 October 2013. In particular, the membership of the claim group was widened from a list of named individuals to include the descendants of 10 apical ancestors who recognised themselves, and were recognised by others, as a member of the Mardudhunera community or group. 12 A copy of the amended YM Application was subsequently given to the Native Title Registrar pursuant to s 64(4) of the NTA. This triggered the Native Title Registrar's duty to consider the claim made under s 190A of the NTA. The Native Title Registrar was satisfied that the amended YM Application addressed the criteria of the registration test and the application remained on the Register of Native Title Claims. 13 On 13 June 2013, an interlocutory application was filed in the Court seeking leave to amend the KM Application. On 28 June 2013, orders were made by the Court which, amongst other things, reduced the area of the KM Application by moving the northern boundary of the KM Application to the south-west. The practical effect of the amendment was to remove an overlap between the YM Application and the KM Application, such that the KM Application no longer extended into traditional Mardudhunera country: Finlay on behalf of the Kuruma Marthudunera People v State of Western Australia (No 2) [2016] FCA 1260 at [32]. 14 On 11 December 2013, following an interlocutory application by the applicant in the YM Application (YM Applicant) filed 6 December 2013, the Court made orders allowing an amendment to Sch R to the YM Application and requiring the filing of the application, as amended. The amended application was subsequently filed on 16 January 2014. 15 The Court has actively monitored the progress of the proceedings and negotiations in relation to the proceedings, including through case management hearings and confidential case management conferences before Registrars of the Court.

AGREEMENT TO RESOLVE THE APPLICATION 16 The parties to the YM Application have now reached an agreement as to the terms of a determination and the form of orders (YM Determination) that are appropriate to provide recognition of the native title rights and interests held by members of the Mardudhunera People in relation to part of the land and waters covered by the YM Application. 17 As I have said, the Determination Area amounts to approximately 9530 square kilometres of land and waters. It largely relates to four pastoral leases, being Yalleen, Yarraloola, Mardie and Karratha Stations. There are also several leases, roads, numerous small reserves and unallocated Crown land within the Determination Area. 18 Pursuant to s 87 of the NTA, and having regard to the agreement they have reached, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. In support of the agreement reached, the first respondent (State of Western Australia) has filed a Minute of Proposed Consent Determination of Native Title which has been signed by each of the parties with an interest in the Determination Area. 19 In support of the agreement reached and the nomination of a prescribed body corporate (PBC), the applicant has filed an affidavit of Ms Chau Kim Huynh sworn on 11 July 2018 deposing to the process undertaken by the applicant to authorise the agreement reached and regarding the description of the native title holders. The affidavit attaches, among other things: (a) the notice of nomination of the Wirrawandi Aboriginal Corporation ICN: 8870 (WAC) to be the PBC for the proposed YM Determination pursuant to s 56(2)(a) of the NTA; and (b) the written consent of WAC to be the PBC for the YM Determination pursuant to s 56(2)(a) of the NTA. 20 In addition, the applicant and the State have filed joint submissions in support of the Minute. 21 The parties agree that the Mardudhunera People are those Aboriginal persons who: (a) are descended from Willy Cooper, Alf Boona, Mirbin Lowe, Woggi, Eva, Mabel, Pantun or Jessie (including through adoption in accordance with traditional Mardudhunera laws and customs); (b) identify themselves as Mardudhunera under Mardudhunera traditional law and custom and are so identified by other Mardudhunera People as Mardudhunera; and (c) have a connection with the land and waters in the Determination Area in accordance with traditional Mardudhunera laws and customs. 22 The external boundary of the Determination Area is described in Sch One to the YM Determination and depicted on the maps contained in Sch Two. The parties agree that native title should be recognised in relation to the Determination Area, except in those parts identified in Sch Three of the YM Determination - which are shown as generally shaded pink on the maps in Sch Two - and those parts seaward of the mean low water mark of the mainland coast. 23 The YM Application claimed native title rights and interests over the sea and a cluster of islands, comprising the Great Sandy Island Nature Reserve. However, the parties have agreed that native title does not exist in respect of any land and waters seaward of the mean low water mark of the mainland coast. 24 The YM Determination provides that the applicant in the YM Determination has nominated WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders.

ASSESSMENT OF CONNECTION MATERIAL 25 It is apparent from the joint submissions, that the applicant provided the State with an anthropological report by Dr Michael O'Kane entitled Yaburara and Mardudhunera People Final Connection Report (dated 17 September 2015) (connection material) in support of the Mardudhunera People's connection with the claim area. 26 The State assessed the connection material in accordance with its Guidelines for the Provision of Connection Material (dated February 2012), with the State's response being informed by legal advice from the State Solicitor's Office. 27 In November 2016, representatives of the State met directly with representatives of the YM Applicant and members of the claim group, in Karratha. The joint submissions explain that this meeting provided an opportunity for direct and detailed discussions between the Mardudhunera People and the State about the nature and extent of the Mardudhunera People's ongoing connection to country and their acknowledgment and observance of traditional law and custom.

The Mardudhunera People's connection to country 28 The joint submissions provide the following information regarding the connection to country of the Mardudhunera People: (a) The Mardudhunera People are a unique socio-territorial language group located in the Pilbara region of Western Australia. They comprise a single society who identify as Mardudhunera, who speak (or spoke) Mardudhunera language and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters. (b) Under Mardudhunera traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Mardudhunera People. Mardudhunera traditional laws and customs connect the Mardudhunera People to their country and the traditional spiritual beliefs of the Mardudhunera People are firmly embedded within the physical landscape. (c) Contemporary members of the Mardudhunera People are those persons who can trace their lineage to a Mardudhunera ancestor who had a traditional connection to Mardudhunera country. As well as descent, contemporary membership of the Mardudhunera People requires self-identification as a Mardudhunera person, acceptance of that identity by other members of the Mardudhunera People and a connection with Mardudhunera country in accordance with Mardudhunera traditional law and custom.

DESCRIPTION OF THE PROPOSED NATIVE TITLE HOLDERS 29 An issue identified in the joint submissions is that the description of the proposed native title holding group in Sch Five of the proposed YM Determination differs from the description of the native title claim group in Sch A of the YM Application. 30 On 1 December 2017, the Court ordered further case management before a Registrar of the Court, to be conducted on a confidential basis, if so required, in relation to an issue arising between the YM Applicant, the State, and the applicant in the KM Application (KM Applicant) in its capacity as a respondent to the YM Application, in relation to the description of native title holders to be included in the Minute. 31 The Minute records that the parties have been unable to reach agreement as to the inclusion of two ancestors referred to in the YM Application, being Tutparinya and Toby, as Mardudhunera ancestors in Sch Five to the YM Determination. In particular, as detailed in the joint submissions, the State did not agree that the evidence supported a finding that Tutparinya and Toby were of Mardudhunera ancestry. 32 However, the Minute includes an agreement by the parties that the descendants of Tutparinya and Toby, and any Aboriginal persons who are descendants of Pantun, Eva, Mabel and Jessie but who are not native title holders in accordance with Sch Five to the proposed YM Determination, may conduct activities in the Determination Area. Such activities are, the parties have agreed, conducted pursuant to the native title rights recognised in para 4(e) of the YM Determination, and pursuant to an Indigenous Land Use Agreement (ILUA) entered into by the KM Applicant and the YM Applicant (as described in cl 13 of Sch Four). 33 This agreement was arrived at by negotiation between the YM Applicant, the State, and the KM Applicant, including in confidential case management before a Registrar. The joint submissions say that the parties have satisfied themselves that the description set out in Sch Five of the Minute accurately reflects the position as described in the connection and other ethnographic materials, and captures all the native title holders, being members of the Mardudhunera People. 34 The YM Applicant has provided evidence in the affidavit of Ms Huynh sworn 11 July 2018 as to the process of authorisation undertaken by the YM Applicant in relation to the Minute. Ms Huynh deposes to the holding of a meeting of the Mardudhunera People in Roebourne on 22 June 2018 at which a decision was made, in accordance with a process agreed and adopted by the Mardudhunera People present, adopting the description of native title holders contained in the Minute. Ms Huynh's evidence is that it was agreed by the Mardudhunera People present at the meeting that the description contained in the proposed consent determination fully and accurately described the proposed native title holders. Ms Huynh deposes that she regards the Mardudhunera People present at the 22 June 2018 meeting as being broadly representative of the Mardudhunera People in a manner consistent with those who regularly participate in community meetings concerning the YM Application and matters concerning the (no longer extant) overlap with the KM Application. 35 The Court is not limited to making a determination in the form sought in the YM Application. Provided that the application is valid, and in accordance with the law, the Court can proceed to make a determination in such form as it sees fit based on the evidence before it: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18]; Sharpe v State of Western Australia [2013] FCA 599 at [19]. 36 Having considered the material filed by the parties, it appears appropriate for the Court to make the determination sought in the Minute for the following reasons: (a) the description accurately reflects the position as described in the connection materials; (b) the description captures all proposed native title holders; (c) the claimant group authorised the terms of the Minute, including the proposed native title holders in Sch Five of the YM Determination at an authorisation meeting which was sufficiently notified and broadly representative of the Mardudhunera People; and (d) the State is satisfied that the proposed native title holders are the persons described in Sch Five of the YM Determination.

NOMINATION OF PRESCRIBED BODY CORPORATE 37 As noted above, the YM Determination provides that the applicant in the YM Application has nominated WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders. That nomination is in writing and WAC has given its consent to the nomination. I am satisfied that the requirements of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met.

REQUIREMENTS OF Section 87 OF THE NTA 38 The joint submissions seek that a determination of native title should be made pursuant to s 87 of the NTA. Section 87 of the NTA provides, in effect, that the Court may make a determination of native title by consent over an area covered by a native title application without holding a hearing where: (a) the period specified in the notice given under s 66 of the NTA has ended and an agreement has been reached regarding the proceeding or part of the proceeding (s 87(1)(a)); (b) the terms of an agreement, in writing signed by or on behalf of the parties, are filed with the Court (s 87(1)(b)); (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and (d) it appears appropriate to the Court to make the orders sought (s 87(1A) and s 87(2)). 39 Pursuant to s 87(1) of the NTA, the notification period referred to in s 66(8) and s 66(10)(c) of the NTA has ended. 40 The requirements of s 87(1)(a) and (b) of the NTA are established. There is an agreement in writing for a proposed determination of native title which has been filed with the Court. The agreement is reflected in the Minute which has been signed by (or on behalf of) all parties to the proceeding. 41 In accordance with s 87(1)(c) of the NTA, the orders sought in the Minute are consistent with the terms of the agreement and are within the power of the Court to make for the following reasons: (a) the YM Application is validly made, having been authorised by the native title claim group according to a decision making process agreed to and adopted by the claim group members that authorised the applicant for the YM Application to bring the application; (b) the YM Application is for a determination of native title in relation to areas of land and waters for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed determination (s 61A(1) and s 68 of the NTA); (c) there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the NTA; (d) the form of the determination proposed, as outlined in the Minute, complies with s 94A and s 225 of the NTA; and (e) the requirements of s 87 of the NTA are otherwise satisfied. 42 Section 87(1A) of the NTA requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J). 43 Section 87(2) of the NTA does not require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application, or even to form a final view as to whether the legal requirements for proving native title have been met. It may be appropriate to make orders under s 87 of the NTA where the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Ward v State of Western Australia [2006] FCA 1848 at [8]. The primary focus of the Court is on the making of the agreement by the parties: Lander v State of South Australia [2012] FCA 427 at [11]. 44 In particular, s 87 of the NTA is designed to encourage the parties to take responsibility for resolving proceedings without the need for litigation and must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J). In the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding was contested: Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J). 45 The requirements of s 87(2) of the NTA will often be met where the Court is satisfied that a relevant government respondent - such as the State - has, through competent legal representation, satisfied itself as to the cogency of the evidence upon which an applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, although the Court might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: Lovett at [37]; Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]; [2001] FCA 129 (Emmett J). 46 The joint submissions outline that the State has played an active role in the negotiation of the proposed consent determination contained in the Minute and it is apparent that the State has taken a real interest in the proceeding in the interests of the community generally. In so doing, the State has, acting on behalf of the community generally, had regard to the requirements of the NTA. 47 Through a rigorous and detailed assessment process, and after a considerable period of negotiations, the State has satisfied itself that the YM Determination is justified in all the circumstances. The information and connection material provided regarding the connection of the Mardudhunera People is, in the view of the State, sufficient to demonstrate that the YM Application has a credible basis. The State is satisfied that the material presented was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Determination Area. 48 The State has also conducted searches of land tenure, mining and petroleum registries to determine the extent of "other interests" within the Determination Area, and the determination includes those other interests at Sch Four such that the determination complies with s 225 of the NTA. 49 In relation to this proceeding, the YM Applicant and the State have been legally represented throughout the negotiation process. All other respondent parties with an interest in the YM Determination have also had the benefit of legal representation. 50 In the circumstances, based on the material filed, which indicates that the agreement reached by the parties is freely entered into on an informed basis, and the active role in negotiations by the State, I am satisfied that it is appropriate and within the power of the Court under s 87 and s 94A of the NTA to make the determination.

CONCLUSION 51 By signing the Minute, the parties have indicated their agreement to the determination I am about to make. The Court congratulates the applicant, the State, non-State respondent parties, and their legal and other representatives for negotiating and agreeing to consent orders being made in these terms. 52 I am satisfied that it is appropriate and within power to make the determination of native title in the terms proposed pursuant to s 87 and s 94A of the NTA. The determination constitutes recognition by Australian law of the enduring traditional laws and customs of the Mardudhunera People over the Determination Area. It includes an order that WAC is to hold the rights and interests from time to time comprising the native title in trust for the native title holders pursuant to s 56(2) of the NTA. 53 The effect is that the Mardudhunera People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are to be recognised as the native title holders for the Determination Area. 54 I now make the determination as proposed by the parties. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

SCHEDULE OF PARTIES WAD 127 of 1997 Respondents Fourth Respondent: YALLEEN PASTORAL COMPANY PTY LTD Fifth Respondent: QUADRANT NORTHWEST PTY LTD Sixth Respondent: MG KAILIS GULF FISHERIES PTY LTD Seventh Respondent: EXMOUTH PEARLS PTY LTD Eighth Respondent: NEIL FINLAY & ORS FOR THE KURUMA MARTHUDUNERA Ninth Respondent: TELSTRA CORPORATION LIMITED