Oxenham on behalf of the Malgana People v State of Western Australia

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 51

Solicitor for the Applicant: Ms Louise Keepa and Ms Megan Highfold of Yamatji Marlpa Aboriginal Corporation

Solicitor for the State of Western Australia: Mr Daniel Gorman of State Solicitor's Office

Solicitor for Francine Brown, Richard McMillan Brown, Clausen Pty Ltd, Daleath Pty Ltd, Richard Edmund Fenny, Gabor Holdings Pty Ltd, Damien McKeough and Leane McKeough: Castledine Gregory Solicitor for the Commonwealth of Australia: Australian Government Solicitor

Representative for Shark Bay Resources Pty Ltd ACN 079 088 636: Mr Andrew Bohnen of Shark Bay Salt Solicitor for Telstra Corporation Limited: Herbert Smith Freehills

Solicitor for the Australian Wildlife Conservancy: Ms Kendra Fowler of Australian Wildlife Conservancy

BETWEEN: JOHN THOMAS OXENHAM, SARAH LOUISE BELLOTTIE, TERRENCE GORDON MCKIE, BIANCA ELISE MCNEAIR, DENISE CHARMAINE MITCHELL, LESLIE ANTHONY O'NEILL AND ALBERT DARBY WINDER Applicant

AND: STATE OF WESTERN AUSTRALIA, FRANCINE BROWN, RICHARD MCMILLAN BROWN, CLAUSEN PTY LTD, DALEATH PTY LTD, RICHARD EDMUND FENNY, GABOR HOLDINGS PTY LTD, DAMIEN MCKEOUGH, LEANE MCKEOUGH, COMMONWEALTH OF AUSTRALIA, SHARK BAY RESOURCES PTY LTD ACN 079 088 636, TELSTRA CORPORATION LIMITED AND AUSTRALIAN WILDLIFE CONSERVANCY Respondents JUDGE: Justice MURPHY DATE OF ORDER: 4 DECEMBER 2018

THE COURT NOTES THAT: A. The Applicant in proceeding WAD 6236 of 1998 has made a native title determination application (the Malgana Application). B. The Applicant in the Malgana Application, the State of Western Australia and the other Respondents to the proceeding (the parties) have reached an agreement as to the terms of a determination of native title in relation to part of the area covered by the Malgana Application (the Determination Area) which the parties have designated 'Malgana Part A'. C. The parties have agreed that, in respect of the land and waters of the Malgana Application covered by WAD 402 of 2018, which the parties have designated 'Malgana #3', no determination is to be made at present. D. Pursuant to subsections 87A(1) and (2) of the Native Title Act 1993 (Cth) (Native Title Act) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Determination Area. E. The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87A and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area. F. The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination. G. Pursuant to s 87A(4) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. H. The Applicant in the Malgana Application has nominated the Malgana Aboriginal Corporation pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders. BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to ss 87A and 94A of the Native Title Act and by the consent of the parties: THE COURT ORDERS THAT:

1. In relation to the Determination Area, there be a determination of native title in WAD 6236 of 1998 in the terms provided for in Attachment A.
2. Except to the extent that WAD 6236 of 1998 overlaps with WAD 402 of 2018, in so far as WAD 6236 of 1998 relates to land and waters outside the Determination Area, WAD 6236 of 1998 is dismissed. For the avoidance of doubt, to the extent that WAD 6236 of 1998 overlaps with WAD 402 of 2018 no determination is to be made at present.
3. The Malgana Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).
4. There be no order as to costs.

Existence of native title (s 225 Native Title Act)

1. Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraphs 4 and 5 of this determination.
2. Native title does not exist in those parts of the Determination Area that are identified in Schedule Four.

Native title holders (s 225(a) Native Title Act) 3. The native title in the Determination Area is held by the Malgana People. These are the people described in Schedule Seven.

The nature and extent of native title rights and interests and exclusiveness of native title (ss 225(b) and 225(e) Native Title Act) Exclusive rights and interests 4. Subject to paragraphs 2, 6, 7, 8 and 11, the nature and extent of the native title rights and interests in relation to the Exclusive Area identified in Schedule Three is: (a) except in relation to flowing and underground water, the right to possession, occupation, use and enjoyment to the exclusion of all others; and (b) in relation to flowing and underground water, the right to use and enjoy the flowing and underground water, including: (i) the right to hunt on, fish from, take and use the traditional resources of the flowing and underground water; and (ii) the right to take and use the flowing and underground water. Non-exclusive rights and interests 5. Subject to paragraphs 2, 6, 7, 8 and 11 the nature and extent of the native title rights and interests in relation to the Determination Area are that they confer the following non-exclusive rights on the Malgana People, including the right to conduct activities necessary to give effect to them: (a) the right to enter and remain on the Determination Area, camp, erect shelters and other structures for that purpose, 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, including burial rites; and (e) the right to be accompanied on the Non-Exclusive Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Determination Area, are: (i) spouses, parents or children of the native title holders; or (ii) people required by or entering in connection with traditional law and custom for the performance of ceremonies or cultural activities on the Non-Exclusive Area.

Qualifications on the native title rights and interests 6. The native title rights and interests are subject to and exercisable in accordance with: (a) the laws of the State and the Commonwealth, including the common law; and (b) the traditional laws and customs of the Malgana People for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes). 7. Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to: (a) 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); (b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); (c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (d) water lawfully captured by the holders of the Other Interests. 8. The native title rights and interests set out in paragraph 4(b) and 5 do not confer: (a) possession, occupation, use and enjoyment on the Malgana People to the exclusion of all others; or (b) a right to control the access to, or use of, the land and waters of the Determination Area or its resources.

Areas to which ss 47, 47A or 47B of the Native Title Act apply 9. Sections 47, 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to those parts of the Determination Area identified in Schedule Six.

The nature and extent of any Other Interests 10. The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and other interests 11. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that: (a) 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, (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 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, subject to s 24JB(2) of the Native Title Act, do not extinguish them.

Definitions and Interpretation 12. 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; "Exclusive Area" means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps in Schedule Two); "Flowing water" means the following water within the Determination Area: (a) water which flows, whether permanently, intermittently or occasionally, within any river, creek, stream or brook; and (b) any natural collection of water into, through, or out of which a river, creek, stream or brook flows; "land" has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters"; "Malgana People" means the people described in Schedule Seven and referred to in paragraph 3; "Non-Exclusive Area" means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two); "Native Title Act" means the Native Title Act 1993 (Cth); "Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Five and referred to in paragraph 10; "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 the Mining Act 1904 (WA) (repealed)); "Titles Validation Act" means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); "underground water" means water from and including an underground water source, including water that percolates from the ground; "use" does not include use by way of trade; and "waters" has the same meaning as in the Native Title Act. 13. In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six and the area as depicted on the maps at Schedule Two the written description prevails.

schedule one 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 lands and waters commencing at the intersection of a northwestern boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA) with a line joining coordinate positions Latitude 24.570188 South, Longitude 113.278723 East and Latitude 25.859000 South, Longitude 114.052259 East and extending southeasterly to Latitude 25.859000 South, Longitude 114.052259 East; Then southeasterly to the intersection of the High Water Mark with Latitude 25.907540 South also being the western boundary of a forty metre wide strip of Unallocated Crown Land between that high water mark and Pastoral Lease N050177 (Wooramel); Then generally northerly along that high water mark to the intersection with the right bank of the Wooramel River; Then generally northerly and generally easterly along that river bank to Longitude 115.362930 East; Then generally southerly through the following coordinate positions. Latitude (South) Longitude (East) 25.811568 115.362748 25.815249 115.362183 25.838990 115.367750 25.881988 115.382464 25.920289 115.401521 25.928935 115.405391 25.964797 115.421440 25.966357 115.421439 25.999123 115.433562 26.001073 115.433959 26.037329 115.441350 26.068518 115.450881 26.084111 115.451743 26.117636 115.452599 26.152726 115.443034 26.183750 115.437641 26.184454 115.437518 26.187809 115.436935 26.212778 115.425625 26.244003 115.414303

Then southwesterly to the westernmost northwestern corner of Lot 214 as shown on Deposited Plan 220375 being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002); Then southerly along the western boundary of that native title determination to Latitude 26.598612 South; Then westerly to Latitude 26.630981 South, Longitude 114.031482 East; Then westerly to the eastern boundary of Pastoral Lease N049576 (Tamala) at Latitude 26.635591 South; Then westerly to the intersection with the Lowest Astronomical Tide at Latitude 26.642210 South; Then generally northwesterly and generally northeasterly along that lowest astronomical tide to the intersection with a line due west of the northernmost point of Reserve 14918 (Cape Inscription on Dirk Hartog Island) at approximate Latitude 25.480472 South; Then east along that line to the northernmost point of Reserve 14918 (Cape Inscription on Dirk Hartog Island) at approximate Latitude 25.480472 South also being a point on the boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA); Then northeasterly along the boundary of that Carnarvon Port Area to the intersection with the southern boundary of Reserve 24869 (Dorre Island) at approximate Latitude 25.274189 South; Then generally northeasterly along the eastern boundaries of that reserve to the intersection with the boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA) at approximate Latitude 24.991214 South; Then northerly along the boundary of that Carnarvon Port Area to the intersection with the southern boundary of Reserve 24869 (Bernier Island) at approximate Latitude 24.986306 South; Then generally northeasterly along the eastern boundaries of that reserve to the intersection with the boundary of the Carnarvon Port Area (as Vested in the Minister for Transport by proclamation on 5 February 1982 under the Marine and Harbours Act 1981 WA) at approximate Latitude 24.754153 South; Then northeasterly along the boundary of that Carnarvon Port Area back to the commencement point. EXCLUSIONS All those lands and waters commencing at the intersection of a western boundary of Lot 3080 as shown on Deposited Plan 51350 with Latitude 26.065281 South (Approximate Longitude 113.363669 East) and extending generally northwesterly and generally northeasterly along the boundaries of that lot to Longitude 113.362498 East (Approximate Latitude 26.062110 South); Then southeasterly back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 29th June 2018. Lowest Astronomical Tide is based on and sourced from AMB data, 6th Edition released in February 2006. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination WAD6033/1998 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23rd April 2018. Native Title Determination Application WAD6161/1998 Gnulli (WC1997/028) as Registered in the Federal Court on the 13th May 2014. Native Title Determination Application WAD6136/1998 Nanda People (WC2000/013) as Registered in the Federal Court on the 17th August 2018. Native Title Determination Application WAD366/2018 Gnulli 2 (WC2018/015) as Filed in the Federal Court on the 17th August 2018. Native Title Determination Application WAD402/2018 Malgana #3 (WC2018/018) as Filed in the Federal Court on the 7th September 2018. Native Title Determination Application WAD339/2018 Malgana 2 (WC2018/014) as Filed in the Federal Court on the 30th July 2018. Native Title Determination Application WAD286/2018 Nanda 2 (WC2018/010) as Filed in the Federal Court on the 27th June 2018. Native Title Determination Application WAD278/2018 Wajarri Yamatji (Byro Plains) (WC2018/008) as Filed in the Federal Court on the 25th June 2018. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 25th October 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.

Native title comprises the rights and interests set out in paragraph 4 of the Determination in relation to the following land and waters (which area is shown as shaded in green on the maps in Schedule Two):

Magpie All that portion of Unallocated Crown Land commencing at the intersection of a eastern boundary of the eastern severance of Lot 72 as shown on Deposited Plan 220217 with Latitude 26.165112 South; Then westerly to the intersection of a line being the 200 metre buffer westerly from the eastern boundary of the eastern severance of Lot 72 as shown on Deposited Plan 220217 with Latitude 26.165174 South; Then generally southeasterly and generally southerly along that line to the intersection with Latitude 26.187434 South; Then southerly to the intersection with a southeastern boundary of the eastern severance of Lot 72 as shown on Deposited Plan 220217 at Longitude 113.725384 East; Then generally southerly, generally northerly and generally north westerly along the boundaries of the lot back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 29th June 2018. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 8th October 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.

areas where native title does not exist (paragraph 2)

1. 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 clause 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two:
2. Freehold Historical Certificate of Title CT00124500369 CT0042100145 CT0051400072 CT0051400097 CT0054500033 CT0063200128 GC0001200730

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Reserves Historical Reserve No Purpose Commonwealth Reserve 299 Commonwealth Reserve Commonwealth Reserve 303 Commonwealth Reserve RES 109901 Water RES 11667 Common (Lots 64 and 68 as shown on Plan Denham Regional 1:10,000 (Peron Road)) RES 29432 Aerial Landing Ground RES 36640 Use and Requirements of Shark Bay Shire

Current Reserve No Current / Last Purpose RES 01686 Recreation RES 02593 School Site RES 05650 Recreation RES 13491 Community Centre RES 23789 Church Site Church of England RES 24426 Aged Persons Homes RES 24512 Aerodrome RES 24887 Water Supply Main Roads Department RES 26004 Conservation of Flora and Fauna RES 26400 Conservation, Navigation, Communication, Meteorology and Survey RES 28052 Storage of Research Equipment University of WA RES 28786 Water Supply RES 29363 Public Recreation Golf Course RES 29364 Club and Club Premises RES 30716 Recreation RES 30885 Preservation of Sedimentary Deposits RES 30899 Recreation RES 30926 Drainage RES 31039 Rubbish Disposal Site RES 32294 Police RES 32295 Recreation RES 32983 Use and Requirements of Shire of Shark Bay RES 33517 Administration, Community Centre and Recreation RES 33712 Maintenance Depot Main Roads Department RES 36017 Public Recreation RES 36162 Pedestrian Access Way RES 36163 Recreation RES 37429 Water Supply Purposes RES 37742 Navigation Beacon Site RES 37963 Quarry Coquinite RES 38444 Harbour Purposes RES 38883 Quarry Main Roads Department RES 38961 Power Generation and Associated Activities RES 39569 Recreation and Foreshore Protection RES 40344 Recreation (Bowling Club) RES 40381 Public Recreation RES 40492 Depot Site (Shire of Shark Bay) RES 40493 Fire Station Site RES 40498 Community Centre RES 40594 Pistol Club RES 40727 Tourism Development RES 40771 Speedway RES 40972 Natural Gas Pipeline Purposes RES 41076 Quarry (Shell Grit) RES 41289 Natural Gas Pipeline Purposes RES 41290 Natural Gas Pipeline Purposes RES 41321 Repeater Station Site RES 41362 Natural Gas Pipeline Purposes RES 41363 Natural Gas Pipeline Purposes RES 41364 Natural Gas Pipeline Purposes RES 41663 Radio Mast Site RES 42398 Repeater Station Site RES 42728 Recreation RES 43212 Natural Gas Pipeline Purposes RES 43213 Natural Gas Pipeline Purposes RES 43272 Radio Terminal Site RES 43297 Quarry RES 43387 Repeater Station Site RES 44336 Public Recreation RES 44988 Quarry RES 45498 Navigation, Communication, Meteorology and Survey RES 46632 Transformer Kiosk RES 46663 Heritage Precinct RES 47781 World Heritage Interpretive Centre RES 48540 Aerogeneration and Access RES 48541 Landfill Site RES 48973 Parking RES 49107 Tourism RES 49108 Power Generation, Effluent Treatment and Disposal, Water Treatment, Resort Infrastructure and Related Purposes RES 49144 Conservation Park RES 50041 Drainage RES 50042 Drainage RES 50101 Aquaculture and Associated Tourism Activities RES 50594 Government Offices and Operation Centre RES 51725 Emergency Services Site RES 51802 Public Utility Services RES 52019 Foreshore Protection RES 53278 Housing

Leases Historical Leases Lease No Comment 0606/422 Rifle Range

Licences to Occupy Town or Suburban Lands Tenure ID Comment CL1309/1914 Formerly Gladstone Lot 54

Special Leases Special Lease No Comment L3116/15713 Guano CL66/1981 Collection and Manufacture of Salt and Aerial Landing Ground

Current General Leases General Lease No Comment GE I126360 (formerly SL3116/9188) Aerial Landing Ground GE I126361 (formerly SL3116/9187) Workforce Accommodation and Amenity GE J214442 Health Care GE K289245 Access Road GE K387248 Light Industrial GE K774122 Caravan Park GE L721697 Windfarm GE N104740 Church Site GE N228950 Loading and Unloading Stock GE N83157 Holiday Resort, Accommodation and Caravan and Camping Facilities

Dedicated roads and roads set aside, taken or resumed Historical MapInfo No. Description Road 06 Denham-Hamelin Road old alignment as shown on DP 209005 Road 07 Nanga Road joining Denham-Hamelin Road as shown on DP 214257 Road 09 Widening portion of Hughes and Brockman Streets as shown on DP 173256 Road 14 Road 16487 as shown on Miscellaneous Diagram 26 and Miscellaneous Plan 1196. Road 15 Road 16848 as shown on Miscellaneous Plan 1196. Road 17 Road No. 16167 as shown on Miscellaneous Diagram 527 Road 18 Road No. 2160 as shown on Diagram 92310 Road 22 Closed Road as shown on DP 206731 Road 23 Portion of Road No. 7095

Current MapInfo No. Description Road 001 Hoult, Mead, Millar, Talbot Streets and portions Brockman, Durlacher Streets and Francis Road as shown on DP 211539 Road 002 North West Coastal Highway shown on DP 206777 (in part old alignment) Road 003 Portions Durlacher and Talbot Street as shown on DP 210080 Road 005 Portion of Shark Bay Road (old alignment) as shown on CPP 503021 Road 006 Corner Durlacher Street and Barnard Street as shown on DP 171817 Road 008 Portion Vlamingh Crescent, Bates and Dampier Road as shown on DP 219625 Road 009 O'Dene Road as shown on DP 28788 Road 011 Hamelin Pool Road as shown on DP 219877 Road 015 Widening of Shark Bay Road near North West Coastal Highway as shown on DP 194369 Road 016 Portion of Vlamingh Crescent as shown on DP 193897 Road 017 Henry Road as shown on DP 193644 Road 018 Widening Durlacher Street as shown on DP 44617 Road 019 Bellottie Street as shown on DP 47157 Road 020 Widening Hughes Street as shown on DP 73234 Road 021 Road No. 19055 Shark Bay Airport Road as shown on Diagram 93821 Road 022 Road No. 13780 North West Coastal Highway crossing Wooramel River as shown on DP 211037 Road 023 Widening Barnard Street as shown on DP 193100 Road 024 Portions Dampier Road and Vlamingh Crescent as shown on DP 216733 Road 026 Portion of Edwards Street as shown on Diagram 79891 Road 027 Corner of Knight Terrace and Denham Road as shown on Diagram 35198 Road 028 Widening corner of Knight Terrace and Denham Road as shown on Diagram 52702 Road 029 Cross Street as shown on Diagram 74048 Road 030 Portion Capewell Drive as shown on Diagram 75023 Road 031 Portion Capewell Drive as shown on Diagram 76850 Road 032 Portion Edwards Street as shown on Diagram 76851 Road 033 Portion Poland Street as shown on Diagram 77423 Road 034 Portion Capewell Drive as shown on Diagram 79454 Road 035 Fletcher Court as shown on Diagram 80650 Road 036 Wear Place as shown on Diagram 82615 Road 037 Corner Capewell Drive and Edwards Street as shown on Diagram 83857 Road 038 Portion of Capewell Drive as shown on Diagram 86701 Road 039 Leeds Court as shown on Diagram 87836 Road 040 Hartog Crescent and portion of Hughes Street as shown on DP 12666 Road 041 Denham-Hamelin Road as shown on DP 209005 Road 042 Road No. 13977 to Golf Club as shown on DP 210581 Road 043 Vlamingh Crescent, Baudin Street and portion of Dampier Road as shown on DP 214487 Road 044 Road Ex Vacant Crown Land on DP 217692 Road 045 Lot 550 on DP 402356, Lot 551 on DP 402356 Road 046 Road No. 18541 Portion Dampier Road as shown on DP 218239 Road 047 Portion of Stella Rowley Drive as shown on DP 219635 Road 048 Portion of Stella Rowley Road as shown on DP 219636 Road 049 Road No. 4505 Knight Terrace Road 050 Portion of Spaven Way as shown on Plan 15435 Road 051 Portion of Spaven Way as shown on Plan 16053 Road 052 Portion of Capewell Drive and Sunter Place as shown on Plan 16606 Road 053 Fry Court as shown on Plan 17197 Road 054 Road No. 13146 as shown on Main Roads Department Plan 887 Road 055 Road No. 13780 as shown on DP 211037 Road 056 Road No. 13951 Hughes Street as shown on DP 173256 Road 057 Road No. 14762 - Meedo Road as shown on Miscellaneous Plan 470 Road 058 Road No. 15079 as shown on DP 212312 Road 059 Road No. 16167 - a strip of land 100 metres wide Road 060 Road No. 16180 Hughes Street as shown on DP 12666 Road 061 Road No. 17110 portion original Nanga Road as shown on DP 187399 Road 062 Road No. 17110 portion of Nanga Road as shown on DP 214257 Road 063 Road No. 17110 Widening of Nanga Road as shown on DP 219131 Road 064 Road No. 18659 North West Coastal Highway as shown on Diagram 85973 Road 065 Road No. 4505 Widening as shown on Diagram 86024 Road 066 Knight Terrace as shown on Plan 19928 Road 067 Road No. 5996 Widening Great Northern Highway as shown on DP 211037 Road 068 Portion of Dampier Road as shown on Plan 18238 Road 069 Road No. 7095 Denham-Hamelin Road Deviation as shown on Plan 1120 Road 070 Road No. 11333 Extension and Widening Denham-Hamelin Road as shown on Plans 18050 to 18056 Road 071 Road No 11333 Extension and Widening Denham-Hamelin Road as shown on Plans 18045 to 18050 and 18056 to 18062 Road 072 Road No. 16847 shown on Miscellaneous Diagram 26 and Miscellaneous Plan 1196 Road 073 Oxenham Chase, Terry Deschamps Way and portions Freycinet Drive, Mitchell Rise and Sellenger Heights as shown on DP 56063 Road 074 Road No 2160 portion Denham Road as shown on DP 226417 Road 075 Road No 5996 (a strip 1 chain wide) Road 076 Portions Barnard Road, Brockman Street and Hughes Street as shown on DP 202374 Road 077 Old alignment of the Hamelin-Denham Road as shown on DP 206670 Road 078 Mainland Street and portion of Fry Court as shown on DP 206731 Road 079 Road No 11333 portion of Dampier Road as shown on DP 206731 Road 080 Road No 11531 beside Worramel River as shown on DP 206777 Road 081 Road No. 9482 crossing the Wooramel River near Meedo Road Road 082 Portions of Brockman, Hughes and Paget Street as shown on DP 206732 Road 083 Rounding corner of Fry Court and Knight Terrace as shown on Diagram 78084 Road 084 Rounding corner Edwards Street and Capewell Drive as shown on Diagram 85135 Road 085 Road shown on Diagram 12666 Road 086 Portion on Capewell Drive as shown on DP 345333 Road 087 Widening Durlacher Street as shown on DP 44618 Road 088 Oakley Ridge and Adams Cove as shown on DP 61775 Road 089 Widening corners of Capewell Drive adjoining Spaven Way as shown on Plan 15617 Road 090 Widening corner of Shark Bay Road and Monkey Mia Road as shown on Diagram 76660 Road 091 Road No. 14763 Carbla Road on Miscellaneous Plan 470

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 being 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 10 E180193 (3134B/214) Easement 13 D819193 (3134B/110) Easement 14 E211393 (3134B/215) Easement 19 E437691 (3134B/213)

Taking Orders The land and waters subject to the following taking orders: Taking Order Purpose G853896 Tourism Development J961590 1. Parking; 2. Road K069223 Public Recreation Golf Course L055597 1. Grant of freehold title for lots 303, 304 and 305; 2. Grant of a lease under the Department of Environment and Conservation Act for the purpose of Ecotourism for lot 300; 3. Grant of an easement for Private Water Supply.

The land and waters subject to Notice of Resumption under the Land Acquisition and Public Works Act 1902 (WA): Notification Purpose Government Gazette WA 25 November 1997 page 6639 Road Government Gazette WA 23 December 1997 page 7432 1. Tourist development site; 2. Sale of lot. Government Gazette WA 30 April 1996 page 1877 Sale of Land for inclusion into existing Denham Lots 243 to 250 inclusive.

Port The land and waters subject to the following port vested in the Minister for Transport pursuant to s 9 of the Marine and Harbours Act 1981 (WA): Port Purpose Port of Carnarvon As described in the Proclamation at page 410 of the Government Gazette WA dated 5 February 1982

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 s 251D of the Native Title Act) and to which s 12J of the Titles Validation Act or s 23C(2) of the Native Title Act applies.

other interests (paragraph 11) The nature and extent of the Other Interests in relation to the Determination Area as at the date of this determination are:

1. Reserves (a) The following reserves: Tenure ID Purpose RES 00658 Common RES 01917 Government Requirements RES 08886 Cemetery RES 11076 Recreation RES 12715 Government Requirements Protection of Inscription Posts RES 31730 Grave RES 36160 Pedestrian Access Way RES 42443 Conservation Park RES 42471 National Park RES 49809 Common RES 50325 National Park RES 50326 Use and Benefit of Aboriginal People RES 50331 Use and Benefit of Aboriginal Inhabitants RES 50332 Use and Benefit of Aboriginal Inhabitants RES 50333 Use and Benefit of Aboriginal Inhabitants RES 50334 Access

(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. 2. Pastoral Leases The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: New Pastoral Lease No Station Name PL N049576 Tamala PL N049672 Carrarang PL N049693 Gilroyd PL N049704 Hamelin PL N049741 Faure PL N049939 Carey Downs PL N049949 Talisker PL N049969 Towrana PL N050177 Wooramel PL N050186 Yalardy PL N050530 Carbla PL N050531 Woodleigh PL N050646 Meedo PL N050662 Yaringa

3. 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: Tenure ID Description Road 05 and Road 004 The Byro-Woodleigh Road Road 007 Road No. 5996 North West Coastal Highway old alignment crossing Wooramel River as shown on CPP S025SG5005 Road 010 Portion Freycinet Drive and Logue and Skinner Roads as shown on DP 29410 Road 012 Poland Road as shown on DP 32762 Road 013 Road No. 11333 Widening Shark Bay Road as shown on DPs 388362, 388362, 388362 and 388362 Road 014 North West Coastal Highway as shown on DPs 219216, 219218, 219219, 219220, 219221, 219223, 219224, 219225, 219226, 219227 and 219228 Road 025 Widening North West Coastal Highway adjacent to Shark Bay Road intersection as shown on DP 216923

4. 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 ss 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: H950513 H951164, H951189, H951198, H951207, H951217. (b) For the avoidance of doubt, those interests include: Easement 09 (E003933 [3134B/224]) Access and Easement 20 (E233725 [3134B/261]) Access.
5. Mining Tenements and Petroleum Interests (a) The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements: (i) Mining Leases Tenure ID M 0900068 M 0900151

(ii) General Purpose Leases Tenure ID G 0900001 G 0900002

(iii) Exploration Licences Tenure ID E 0900939 E 0900940 E 0902254

(iv) Miscellaneous Licences Tenure ID L 0900002 L 0900003 L 0900004 L 0900005 L 0900006 L 0900077

(b) The agreement ratified by the Shark Bay Solar Salt Industry Agreement Act 1983 (WA) as varied pursuant to that agreement and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenement: Tenement ID Tenement Type AM 7000260 Mineral Lease (State Agreement)

(c) The following pipeline licences under the Petroleum and Geothermal Resources Energy Act 1967 (WA) and the rights and interests of the holders from time to time of those pipeline licences: Tenure ID PL 40 PL 89

6. Access to Mining Tenements and Petroleum Interests (a) Without limiting the operation of any other clause in Schedule Five, but subject to subclause (b) below, the rights of the holders from time to time of a mining tenement or petroleum interest, including those listed in clause 5 of this Schedule Five to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as 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 subclause (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 subclause (a). (c) Nothing in Schedule Five will limit the rights of the holders from time to time of mining tenements or petroleum interests, including those referred to in clause 5 of Schedule Five, 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.
7. 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.
8. Other The following rights and interests: (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 legislation; (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 force and operation of the Rights in Water and Irrigation Act 1914 (WA); (c) Rights and interests of members of the public arising under the common law, 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 of members of the public to access beaches, coastal waters and any tracks existing as at the date of this Determination within the area described in Schedule Three (Magpie); (e) 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; (f) So far as confirmed pursuant to s 212(2) of the Native Title Act and 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, the following places in the Determination Area: (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; (g) Any other: (i) legal or equitable estate or interest in the land or waters; or (ii) any other 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; or (B) an estate or interest in the land or waters; or (h) restriction on the use of the land or waters, whether or not annexed to other land or waters.

Areas to which sections 47, 47A or 47B of the native title act apply (paragraph 9)

section 47B areas: Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest is to be disregarded: Area Description / location Magpie - UCL 092 (Part) As described in Schedule Three UCL 012 (South Kangaroo Island) Whole of UCL 012 (being formerly subject to special lease 3116/01571) UCL 031 (North Kangaroo Island) Whole of UCL 031 (being formerly subject to special lease 3116/01571) UCL 049 (Lefebre Island) Whole of UCL 049 (being formerly subject to special lease 3116/01571) UCL 092 (Part) of former reserve 10990) Part of UCL 092 (being formerly subject of Reserve 10990 - Water) UCL 119 (Part) Part of UCL 119 (being formerly subject to Rifle Range lease 0606/42) Reserve 50331 (Part) Part of Reserve 50331 - Use and benefit of Aboriginal inhabitants (being formerly subject to Rifle Range lease 0606/42)

native title holders (paragraph 3) The Malgana People are those Aboriginal persons who: (a) are descended from one or more of the following ancestors: (i) Julia Sappie O'Dene (also known as Julia Thompson); (ii) Hookey (also known as Angelick); (iii) Withia; or (iv) Nellie Peters; where descent can be by birth or adoption under traditional laws acknowledged and traditional customs observed by the Malgana People, and (b) identify themselves as Malgana and are accepted as Malgana by other Malgana People in accordance with the traditional laws acknowledged and the traditional customs observed by the Malgana People; and (c) have a connection with the land and waters in the Determination Area in accordance with the traditional laws acknowledged and the traditional customs observed by the Malgana People.

MURPHY J: 1 The applicant in proceeding WAD 6236 of 1998 (the Malgana Applicant) lodged an application for a native title determination under the Native Title Act 1993 (Cth) (the Act) on 30 March 1998 (the Malgana Application). The parties in the proceeding have now reached an agreement as to the terms of a consent determination of native title which is to be made in relation to part of the land and waters covered by the Malgana Application (the Determination Area). The external boundaries of the Determination Area are fully described in Schedule One to the orders, but in summary it covers an area of approximately 28,800 square kilometres of the land and waters in the southern Gascoyne region of Western Australia, roughly around Shark Bay. 2 In respect of the land and waters the subject of the Malgana Application that lie seaward of the Determination Area, the parties have agreed that the application be dismissed with no order as to costs. In respect of that portion of the Malgana Application which is covered by native title determination application WAD 402 of 2018 (Malgana #3), which comprises the balance of the land and waters the subject of the application, the parties have agreed that no determination is to be made at present. 3 The application for a consent determination is supported by joint submissions filed by the Malgana Applicant and by the State of Western Australia, from which I have directly drawn in providing these reasons. Further, each of the parties has signed a minute of proposed orders and proposed determination of native title by consent to show their agreement to the consent determination.

The claim, the parties and the procedural history 4 The parties to the Malgana Application are: (a) the Malgana Applicant; (b) the State of Western Australia; (c) the Commonwealth of Australia; (d) Telstra Corporation Limited; (e) Australian Wildlife Conservancy; (f) Shark Bay Resources Pty Ltd; and (g) the following pastoralists: (i) Francine Brown; (ii) Richard McMillan Brown; (iii) Clausen Pty Ltd; (iv) Daleath Pty Ltd; (v) Richard Edmund Fenny; (vi) Gabor Holdings Pty Ltd; (vii) Damien McKeough; and (viii) Leane McKeough. 5 The application was lodged with the National Native Title Tribunal on 30 March 1998 pursuant to s 61 of the Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act). It was notified by the Registrar of the National Native Title Tribunal pursuant to s 66 of the old Act. By operation of the Native Title Amendment Act 1998 the application was taken to have been made to the Federal Court, the notification was taken to be for that application and the same people were to be parties: see table at Schedule 5, Pt 3, Item 6 of the Native Title Amendment Act 1998. 6 The application was amended by orders of the Federal Court on 21 April 1999 and 5 August 1999. Amongst other things, those amendments clarified the applicant group and area claimed. The Native Title Registrar subsequently considered the claim pursuant to s 190A of the Act. The Registrar was satisfied that the application addressed the criteria of the registration test and it was entered on the register on 17 August 1999. 7 The application was further amended by order of the Federal Court on 2 June 2017, which reduced the area of the application including by removing that portion of the application which was seaward of the 12 nautical mile territorial sea limit and withdrawing the eastern boundary. A copy of the amended application was provided to the Registrar pursuant to s 64(4) of the Act. The Registrar was satisfied that the amended application fell within the scope of s 190A(6A) and accepted the amended application for registration. 8 The application was most recently amended by order of the Federal Court on 26 September 2018. The amendment amended the claim group description and updated the basis in traditional laws and customs for the claimed rights and interests. The amendment also replaced the persons comprising the Malgana Applicant pursuant to s 66B of the Act. 9 Prior to 26 September 2018 the Malgana Applicant was comprised of 38 people, nine of whom had died since the application was first lodged and others of whom were elderly and infirm. In the amendment application members of the claim group applied to remove the 38 named persons and replace them with seven named members of the claim group including one person who was part of the existing applicant. The evidence was that: (a) the persons comprising the replacement applicant were all members of the native title claim group; (b) the persons then comprising the applicant were no longer authorised by the claim group to make the application or to deal with matters arising in relation to it, whereas the persons comprising the replacement applicant were; and (c) the proposal to replace the persons comprising the applicant had been discussed at various Malgana community meetings and was approved at a Malgana community meeting on 21 July 2018 which had been properly notified and which was fairly representative of the claim group. No opposition was voiced at that meeting to the resolutions to replace the applicant. The Court exercised the discretion under s 66B of the Act and made orders to replace the applicant.

The material before the Court 10 The Court has the following material before it: (a) the original application pursuant to s 61 of the old Act; (b) the amended application filed on 1 October 2018; (c) a Minute of Proposed Consent Determination of Native Title (the Minute) signed by each of the parties; (d) an affidavit in support of the application by Louise Ngahia Keepa, a lawyer employed by Yamatji Marlpa Aboriginal Corporation (YMAC) affirmed 12 November 2018; and (e) joint submissions by the Malgana Applicant and the State of Western Australia (the State) in support of the proposed consent determination.

The preconditions under s 87A of the Act 11 Section 87A of the Act sets out a number of preconditions to the power of the Court to make a consent determination of native title over part of an area covered by an application for native title, without holding a hearing: (a) there is a proceeding in relation to an application for determination of native title (s 87A(1)(a)); (b) the parties have reached agreement as to the proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b)); (c) the specified notice period under s 66 has lapsed (s 87A(1)(b)); (d) the parties have reduced their agreement to writing, the agreement has been signed by or on behalf of all of the persons required to be parties to the agreement, and has been filed with the Court (s 87A(1)(c) and (d), s 87A(2)); (e) the Chief Executive Officer of the Court has given notice to any other parties to the proceeding who have not become, or are not required to be, parties to the agreement, that the proposed determination of native title has been filed with the Court (s 87A(3)); (f) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8)); (g) the Court is satisfied that an order in, or consistent with, the terms of the proposed determination would be within the power of the Court (s 87A(4)(a)); and (h) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)); 12 I am satisfied that all of these requirements are met in the present application. 13 The Malgana Application is a valid application for a determination of native title, and the parties have reached agreement in relation to part of an area covered by a native title application. The proposed orders relate to the area in the Malgana Application except for that portion of the area which geographically overlaps with native title determination application WAD 402 of 2018. The notification period of three months ended many years ago. 14 The Minute is an agreement in writing, filed in the Court and signed by all persons required to be parties: (a) the agreement is signed by the Malgana Applicant through the Principal Legal Officer of YMAC and, based on the affidavit of Ms Keepa, I am satisfied that YMAC's signature on the agreement is properly authorised by the Malgana claim group; (b) there are no other registered native title claimants in relation to any part of the Determination Area (s 87A(1)(c)(ii)); (c) the representative Aboriginal and Torres Strait Islander body for the region (YMAC) is a party to the application and has signed the agreement (s 87A(1)(c)(iv)); (d) the Commonwealth of Australia and State are parties to the proceeding and have signed the agreement. The relevant Federal and State Ministers are not parties to the agreement and are not required to sign it (s 87A(1)(c)(vii) and (viii)); (e) no local government body for the Determination Area is a party to the proceeding (s 87A(1)(c)(ix)); and (f) all other respondents to the Malgana Application are parties to the agreement and have signed it. 15 As all respondent parties to the Malgana Application are parties to the agreement and have signed it there was no requirement for the CEO of the Court to give notice to any other parties to the proceeding who have not become, or are not required to be, parties to the agreement ( s 87A(3)). As notice to other parties was not required under s 87A(3) there are no objections by such persons and there is no requirement for the Court to address such objections (s 87A(8)). 16 Having regard to other requirements in the Act I am also satisfied that: (a) upon the exclusion from the Determination Area of the overlapping geographical area in Malgana #3, the area covered by the orders does not overlap with any other application for determination of native title (s 67(1)); (b) the area covered by the orders is not the subject of a previously approved determination of native title (s 68); (c) the form of the proposed determination complies with s 94A of the Act by setting out the details of the matters required under s 225; and (d) the proposed determination concerns rights and interests which the Australian common law is able to recognise (s 223(1)(c)). 17 I am therefore satisfied that the proposed orders are within the power of the Court. I now turn to consider whether it is appropriate to make the proposed orders pursuant to s 87A(4)(b).

The Court's function under s 87A 18 The same principles that apply to the making of a consent determination of native title under s 87 of the Act apply to the exercise of the Court's discretion under s 87A(4)(b): Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]. 19 Section 87A(4) requires the Court to be satisfied that it is appropriate to make the consent determination sought by the parties. The discretion is broad but it must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act, including the resolution of native title disputes by mediation and agreement: Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62; [2005] FCA 1117 at [7]. 20 The Court's function under ss 87 and 87A is quite different from its function in a contested application for a determination of native title. Its focus is on the making of an agreement by the parties, and the power in ss 87 and 87A must be understood in the context of the Act's emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. Sections 87 and 87A provide a power which is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed. They should not be construed so as to require parties an agreement to produce evidence as if in a trial, and the Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: see Ward v Western Australia [2006] FCA 1848 at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). 21 Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State's agreement that there is a credible and rational basis for the determination proposed: Freddie (at [18]). 22 In its assessment of the State's consent, the Court may take into account that the State or Territory may reach an agreement under ss 87 or 87A without the level of proof required in a contested application. It is inherent in the parties' agreement that they are willing to abide by the proposed outcome without the exhaustive and detailed investigation that may accompany a contested issue of fact and law. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

The claim group and their country 23 Although, as I have said, the Court's task in dealing with an application under s 87A is not to assess and make findings about the matters set out in s 223 of the Act, this determination and the reasons for judgement which accompany it will stand as the permanent record for the Malgana people of the judicial recognition of their native title rights. In those circumstances it is appropriate to say something about the claimants and their country. I do so by relying directly on the joint submissions, which submissions draw on the written material in support of the Malgana people's connection to and occupation of the Determination Area (connection material). 24 As set out in the parties' joint submissions, a substantial body of connection material supporting the application was provided to the State, namely three reports titled: (a) Malgana Anthropology Report dated 2 December 2015 prepared by Anna Kenny, which included genealogies, a site register and a site map; (b) Malgana Supplementary Report #1 dated 1 August 2017 prepared by AnnMarie Volpe; and (c) Malgana Supplementary Report #2 dated 16 August 2017 prepared by AnnMarie Volpe; together with affidavits or statements from the following Malgana claimants: (a) Mathew Cross dated 21 July 2018; (b) Dennis Hoult dated 21 July 2018; (c) Marika Oakley dated 26 July 2018; and (d) Reg Winder (deceased) dated 24 June 1999.

The description of the Native Title Holders 25 The Malgana Application is brought on behalf of the biological descendants of four apical ancestors, namely Julia Sappie O'Dene (also known as Julia Thompson), Hookey (also known as Angelick), Withia and Nellie Peters. 26 During the course of negotiations, the parties settled on the description of the Native Title Holders in Schedule 7 of the proposed consent determination, having satisfied themselves that the description reflects the position as described in the materials relating to connection to country and captures all the native title holders, being members of the Malgana people. 27 The description in Schedule 7 lists the apical ancestors contained in Schedule A of the Malgana Application but also includes a requirement for a person to identify themselves as Malgana, be accepted by other Malgana people as Malgana and to have a connection to the land and waters of the Determination Area in accordance with traditional law and custom. This description was approved by a meeting of the Malgana claim group on 21 July 2018, and again at a meeting on 27 and 28 October 2018 at which the Malgana Applicant was authorised to consent to the Court making a determination in favour of those persons.

The proposed Determination Area 28 The proposed Determination Area covers an area of approximately 28,800 square kilometres, located along the coast in the southern Gascoyne region of Western Australia, roughly around Shark Bay. It encompasses three local government regions: the Shire of Carnarvon; the Shire of Shark Bay; and the Shire of Upper Gascoyne, and it includes the townsite of Denham. It covers southern parts of the catchment area of the Wooramel River and includes much of the World Heritage Area of Shark Bay. Shark Bay itself is defined by Dirk Hartog Island, Dorre and Bernier Islands, and Edel Land Peninsula, and divided into two by Peron Peninsula. 29 The majority of the Determination Area is under, or has historically been under, pastoral lease or subject to national parks or nature reserves. It includes all, or part of, the Tamala, Carrarang, Gilroyd, Hamelin, Faure, Carey Downs, Talisker, Towrana, Wooramel, Yalardy, Carbla, Woodleigh, Meedo and Yaringa Stations. It also includes the Francois Peron National Park, the Dirk Hartog Island National Park, the Shark Bay Marine Park and the Hamelin Pool Marine Nature Reserve. The remainder of the Determination Area comprises reserves, freeholds and leases (predominantly within the town of Denham), roads and unallocated Crown land.

The Malgana people and rights to Malgana country 30 As the joint submissions observe, the Malgana people are a unique socio-territorial language group, comprising a single society who identify as Malgana and who acknowledge and observe the same body of traditional laws and customs relating to rights and interests in land and waters. 31 Under Malgana traditional laws and customs, the Determination Area is, and has been since prior to sovereignty, the traditional country of the Malgana people. Contemporary Malgana people say that Malgana country is owned by all Malgana people. Membership of the Malgana people, and rights to Malgana country, are acquired by cognatic descent from recognised Malgana ancestors who are the reference points that confer rights and interests in Malgana country. The Malgana people generally see themselves as a community composed of particular families. 32 The exercise by a Malgana person of rights and interests in Malgana country is influenced by a number of factors including: (a) knowledge about country and traditional laws and customs, which earns the bearer influence, status and prestige; (b) active participation in the networks of relatedness and group affairs of the Malgana community; (c) long-term residence near or on Malgana country and recognised, active engagement with the Malgana community; and (d) being born or having a Malgana ancestor who was born on Malgana country. Without a descent based claim from a Malgana ancestor, other relevant criteria such as birthplace, knowledge or long-term residence are not sufficient. While descent is an essential prerequisite, however, it does not automatically confer rights and interest unless they are activated and recognised by social participation in the Malgana group.

Malgana spiritual beliefs 33 Spirit beings were and are believed by Malgana people to be omnipresent in the Determination Area. Many of the spirits are said to be the spirits of deceased ancestors, called the 'old people' by the Malgana people today. The earliest written record of such beliefs associated with Malgana country, by Augustus Oldfield in 1865, observed that practices relating to death were performed by women on account of the number of spirits haunting graves and that men avoided such localities. Other spirits were associated with watering places and their power was particularly feared at night. Also bulia, magic, was feared and stories involving incidents with magic have been passed down to the Malgana people today. 34 The knowledge of spirits and their continuing presence on country has been maintained into the present. According to many Malgana people, spirits still populate their country and Malgana people are wary of places associated with some of these beings. Concerns about burial places are widespread amongst the Malgana, because they are associated with the spirits of the old people. There is thus a strong sense that the spirits of the ancestors are present at many of the places in the Determination Area, in particular around burial sites and old camps, as well as other spirits called jinagabi, wudajis or 'little people'; many of these are mischievous. Children are taught about them and at times threatened with them. Claimants spoke about the debbil-debbil, minmin or little people that could take them. Those without permission could be caught by those spiritual beings. 35 Beliefs about food restrictions relating to rays, logger head turtles and snakes are part of traditional beliefs, which continue to be relevant in the lives of the Malgana people and induces them to also pay special attention to sites and spirits who are believed to dwell at these places.

Ongoing connection to Malgana Country 36 The Malgana people have maintained their connection to Malgana country since the assertion of sovereignty. As the submissions state, it is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the Determination Area since well before first contact. 37 Pastoral settlement in the region of the Determination Area began around 1860. By the beginning of the 20th century frontier violence and disease had reduced the size of the Malgana community. However surviving Malgana families and their descendants continued to occupy Malgana country and were incorporated into the pearling or fishing industry or in the pastoral industry as station workers or dependants of workers living on pastoral stations. 38 Malgana people's participation in the guano, sandalwood, pearling and fishing industries and on stations in Shark Bay involved multigenerational employment within their country throughout the early part of the 20th century. For example, many Malgana families were involved in the pearling industry in 1930s and then transitioned to commercial fishing after the collapse of the pearling industry post-WWII. Malgana men spent decades of shearing seasons on Faure Island or on other stations such as Tamala, Carrarang and Peron in the Determination Area, and fished for the remainder of the year. Other Malgana people resided in Denham within the Determination Area or in nearby regional towns, such as Carnarvon and Geraldton. Through this work and residence in Shark Bay and on stations within the Determination Area and nearby townships, Malgana people were able to continue to visit, hunt and gather on their country and transmit knowledge about the land to their children, thereby maintaining a continued connection to their land. 39 A significant number of Malgana people still live permanently in the application area in Denham (circa 70-100 people), while the majority of Malgana people live in Geraldton (circa 300 people) and Carnarvon (circa 400 people), some 300-400 kilometres from the application area. Living within an accessible distance from Malgana country enables those Malgana people who do not live in the Bay to visit, camp, fish, hunt and gather regularly within the application area, particularly during holiday periods. 40 Accordingly, both native game and plant foods continue to be important to Malgana people. Malgana people know of, and collect, numerous edible or useful native plants. Other foods that Malgana people hunt and collect include bobtail, long-tail (a type of lizard), kangaroo, emu, pink-grey galah, mull-hawk (big grey bird), bird eggs (shags [cormorants], seagull, divers), turtle eggs, dugongs, turtle, mullet, bluebone, whiting, snapper, oysters, mussels, crabs, prawns, scallops, cockles, little 'redies' and black snapper - and mallee fowl. 41 Fishing in Shark Bay is another traditional activity among Malgana people. Traditionally, nets, hooks and spears were used. Today Malgana people use nets, spears and fishing lines. The most common fish caught and named by Malgana people are Mulgarda (mullet); Bulhamarda (black snapper); Kuramata (Spanish bream); Nungs (yellowtail/spine tail); Ngulu (black trevally); Mulhagadara (whiting); Kerung (trumpeter); Irrumarri (bream); Ngagiya (flathead); Mardirra (pink snapper) and Wudgagarri (tailor). When fishing with nets, fish that are caught are individually plucked and picked out, after their gills have been carefully untangled and checked. The fishermen have to touch each fish as this was what they were taught by their old people. This type of net fishing allows the harvesting of their fishing grounds without overuse of fish stock and minimal by-catch.

Conclusion 42 As I have said, I am satisfied that in the circumstances of the present case the Court has power under s 87A(4)(a) of the Act to make the proposed orders and consent determination. Having regard to the joint submissions I am also satisfied that it is appropriate to make the orders and consent determination pursuant to s 87A(4)(b). 43 First, the Malgana Applicant and the State have been legally represented throughout the negotiation process and all respondent parties who are parties to the proposed determination have had the benefit of legal representation. The negotiations were supervised by a Judicial Native Title Registrar of the Court. The Court is satisfied that the parties have freely and on an informed basis come to the agreement reflected in the Minute. 44 Second, the State is obliged to subject claims for native title over land and waters owned and occupied by the State and State agencies to such scrutiny as the community would expect: Clarrie Smith v State of Western Australia (2000) 104 FCR 494 and [38] (Madgwick J). On the basis of the joint submissions the Court is satisfied that the State played an active role in the negotiation of the proposed consent determination and has satisfied itself that the determination is justified. 45 The State agrees that the Malgana Application has a credible or cogent basis in relation to the Determination Area, including that the Malgana people are bound together by a normative system of traditional laws and customs which has continued to be observed by its members in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia. Malgana people have maintained a physical presence and continuing spiritual involvement in the Determination Area since the acquisition of British sovereignty, and this connection has not been severed. The Court is entitled to proceed on the basis that the State has made a reasonable and rational assessment of the connection material, and I am satisfied that the State is acting rationally and in good faith in agreeing to the consent determination. 46 Third, the State has conducted searches of land tenure, mining and petroleum registers to determine the nature and extent of "other interests" within the Determination Area and those interests are included in Schedule 5 in the proposed determination, in compliance with s 225 of the Act. 47 I am therefore satisfied that the proposed orders under s 87A are appropriate to be made.

Nomination of a prescribed body corporate 48 Pursuant to s 55 of the Act the Court must, at the same time as, or as soon as practicable after making a determination of native title, make such determinations as are required by s 56 (which deals with holding the native title on trust) and s 57 (which deals with non-trust functions of prescribed bodies corporate). 49 In the present case the affidavit of Ms Keepa shows that: (a) at the meeting of the Malgana claim group on 27 and 28 October 2018, the claim group approved the incorporation and rules of the Malgana Aboriginal Corporation and resolved to nominate it to act as the prescribed body corporate to hold native title on trust in the proposed Determination Area; (b) on 5 November 2018 the Malgana Aboriginal Corporation ICN 8935 was incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); (c) on 12 November 2018 the Malgana common law holders of native title nominated the Malgana Aboriginal Corporation to be the prescribed body corporate and to be the trustee of the native title rights and interests of the Malgana common law holders to be determined in this application; and (d) on 12 November 2018, two directors of the Malgana Aboriginal Corporation signed a consent to its nomination as the prescribed body corporate to hold the determined native title in trust for the Malgana common law holders. 50 Accordingly I will order that the Malgana Aboriginal Corporation shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Act. 51 The parties are to be congratulated on reaching agreement and I will make orders in the terms they propose. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate: Dated: 4 December 2018

1. To the extent not subject to the application of s 47B of the Native Title Act: see Schedule Six.
2. To the extent not subject to the application of s 47B of the Native Title Act: see Schedule Six.
3. To the extent not subject to the application of s 47B of the Native Title Act: see Schedule Six.