case_text: The reports, to which all the parties have had regard, recognise that traditional laws and customs are not ' fixed and unchanging . Rather, they evolve over time in response to new or changing social and economic exigencies to which all societies adapt as their social and historical contexts change ' ( Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria [2005] FCA 1795 at [11] per Merkel J). 16 I am satisfied that the Court can and should make an order in the terms sought by the parties. I make an order in accordance with the agreement. That includes an order that the Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Eastern Guruma people pursuant to s 56(2) of the Act. 17 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 Determination Area A. As has been emphasised by the Court on other occasions, the order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Eastern Gurama people and that the title is held by those people. The order does not grant native title; it recognises what has long been held. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 23 April 2007 Counsel for the Applicant: G McIntyre SC and C K Savas Solicitor for the Applicant: Corser & Corser Counsel for the State of Western Australia: G Ranson and E Ganderton Solicitor for the State of Western Australia: State Solicitors Office Counsel for the Coolwanyah Pastoral Co Pty Ltd and TR Richardson: J Steenhof Solicitor for the Coolwanyah Pastoral Co Pty Ltd and TR Richardson: Cornerstone Legal Solicitor for the Shire of Ashburton: Corrs Chambers Westgarth Counsel for Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Resources Ltd, Robe River Mining Co Pty Ltd and Rocklea Station Pty Ltd: G Gishubl Solicitor for Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Resources Ltd, Robe River Mining Co Pty Ltd, Rocklea Station Pty Ltd and Telstra Corporation Limited: Blake Dawson Waldron Counsel for Nicholas Cooke and Alice Smith on behalf of the Innawonga and Bunjima Peoples and the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation: C Tan Solicitor for Nicholas Cooke and Alice Smith on behalf of the Innawonga and Bunjima Peoples and the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation: Pilbara Native Title Service Date of Hearing: 1 March 2007 Date of Judgment: 1 March 2007 ANNEXURE 'A' DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: 1. The Eastern Guruma Determination Area A ("Determination Area A") is the land and waters within the external boundary described in the First Schedule and depicted on the maps at Attachment 1 to the First Schedule other than the exclusions from the area as described in the First Schedule. In the event of any inconsistency between the written description in Schedule 1 and the areas depicted on the maps at Attachment 1, the written description prevails. 2. Native title exists in relation to Determination Area A. 3. The native title rights and interests are held by the persons described in the Third Schedule ("native title holders"). 4. Subject to paragraphs 5 to 10: (1) the nature and extent of the native title rights and interests held by the native title holders are non-exclusive rights to: (a) enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters; (b) hunt, fish, gather or take and to use, share and exchange the resources of the land and waters such as food, water and medicinal plants and trees, timber, charcoal, ochre, stone and other traditional resources (excluding minerals); (c) engage in ritual and ceremony on and in relation to the land and waters; and (d) care for, maintain and protect from physical harm, particular objects, sites and areas of significance to the native title holders. (2) The native title rights and interests set out in sub-paragraph (1) are exercisable in accordance with the traditional laws and customs of the native title holders for personal, domestic and non-commercial communal purposes (including social, medicinal, cultural, religious, spiritual and ceremonial purposes). (3) The native title rights and interests set out in sub-paragraph (1) do not confer: (a) possession, occupation, use and enjoyment on the native title holders to the exclusion of all others; nor (b) a right to control the access of others to the land and waters of Determination Area A. 5. Notwithstanding anything in this determination the native title rights and interests include the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA), but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA). 6. Section 47B of the Native Title Act 1993 (Cth) applies with the effect that any prior extinguishment in relation to the areas described in the Fourth Schedule is to be disregarded. 7. 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. 8. The nature and extent of other rights and interests in relation to Determination Area A in existence at the date of this determination are those set out in the Second Schedule. 9. The relationship between the native title rights and interests described in sub-paragraph 4(1) and the other rights and interests referred to in paragraph 8 ("the other rights and interests") is that: (1) to the extent that any of the other rights and interests is inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency during the currency of the other rights and interests; and otherwise, (2) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them. 10. Nothing in paragraph 9 is intended to affect the operation of Part F of the Hamersley Iron Pty Ltd Eastern Guruma Indigenous Land Use Agreement (Area Agreement) ("ILUA") dated 27 November 2002 and registered on the Register of Indigenous Land Use Agreements on 5 March 2004 (Tribunal No. WI01/1). For the avoidance of doubt, to the extent that the native title rights and interests co-exist with the "Agreed Interests" in the "Agreement Area" (as those terms are defined in the ILUA), the native title rights and interests can only be exercised in a manner that is consistent with the ILUA. FIRST SCHEDULE DESCRIPTION OF DETERMINATION AREA A Determination Area A, shown on Attachment 1 to this Schedule, comprises all of the land and waters bounded by the following description of the External Boundaries, except those areas described in this Schedule under the headings "Internal Boundaries" and "Exclusions from Determination Area A". External Boundaries Commencing at the intersection of Latitude 22.705647 South and Longitude 117.334829 East and extending generally northwesterly, generally northeasterly and generally southeasterly passing through the following coordinate positions: LATITUDE (SOUTH) LONGITUDE (EAST) 22.700554 117.333330 22.696324 117.332070 22.691344 117.329640 22.684674 117.325919 22.678464 117.322629 22.673354 117.319819 22.667144 117.316349 22.662154 117.312669 22.657734 117.309169 22.652494 117.304369 22.644944 117.300039 22.638644 117.298309 22.628284 117.295499 22.621864 117.294208 22.616954 117.293578 22.610474 117.292718 22.605384 117.291408 22.600404 117.289228 22.596864 117.287528 22.591664 117.286838 22.587434 117.285828 22.581874 117.283088 22.574504 117.278878 22.566604 117.274298 22.560054 117.271268 22.550894 117.266888 22.544814 117.264778 22.536354 117.260958 22.528474 117.257377 22.522394 117.256137 22.516374 117.254397 22.513194 117.253757 22.509614 117.253167 22.507244 117.252767 22.504524 117.252237 22.502154 117.251767 22.499434 117.251487 22.496664 117.250897 22.493654 117.250677 22.490544 117.250777 22.487254 117.251007 22.482754 117.251807 22.479074 117.253658 22.475803 117.255998 22.472593 117.257658 22.466723 117.260279 22.462873 117.261879 22.457243 117.264999 22.453613 117.266229 22.449293 117.267649 22.446133 117.268429 22.442093 117.268730 22.437003 117.268290 22.432133 117.265920 22.428413 117.262599 22.425433 117.258589 22.422613 117.253199 22.420713 117.247179 22.418753 117.241159 22.416394 117.235208 22.413974 117.229638 22.412654 117.224048 22.410804 117.218147 22.408735 117.211947 22.408355 117.208146 22.407785 117.203296 22.407656 117.194576 22.406606 117.187426 22.405096 117.179476 22.403776 117.173886 22.402156 117.167916 22.400306 117.161096 22.398856 117.154065 22.397516 117.146046 22.396186 117.139026 22.394756 117.133686 22.392155 117.128056 22.389805 117.122656 22.388535 117.116756 22.389036 117.108155 22.389826 117.099425 22.391486 117.091555 22.392356 117.085315 22.392277 117.077035 22.392367 117.067315 22.392307 117.060905 22.390757 117.055445 22.388697 117.050735 22.386397 117.045405 22.383177 117.040515 22.380197 117.037005 22.377117 117.033925 22.372407 117.030995 22.366897 117.027695 22.363527 117.025745 22.359997 117.024225 22.357207 117.021895 22.354057 117.018505 22.350267 117.014995 22.346717 117.011305 22.341247 117.006696 22.332977 117.004546 22.325246 117.005446 22.319716 117.006576 22.316256 117.007056 22.310496 117.008486 22.306296 117.009976 22.302036 117.012017 22.297375 117.014127 22.291285 117.016317 22.286275 117.018307 22.281555 117.019607 22.277064 117.021157 22.270554 117.022727 22.265414 117.022977 22.261083 117.022587 22.255533 117.021537 22.248243 117.019317 22.243203 117.017877 22.238113 117.016876 22.235973 117.016596 22.231352 117.016086 22.227252 117.015696 22.222802 117.015006 22.221873 117.014791 22.220969 117.016828 22.219019 117.018327 22.216021 117.020127 22.215271 117.022826 22.215571 117.025075 22.215421 117.026425 22.214371 117.028974 22.213022 117.031973 22.213320 117.034222 22.214520 117.036171 22.216469 117.039920 22.216769 117.042619 22.216619 117.045318 22.213770 117.048317 22.209722 117.051166 22.206573 117.052216 22.203424 117.053715 22.202524 117.056265 22.202075 117.059414 22.202824 117.062113 22.204174 117.063762 22.205973 117.065711 22.208672 117.069460 22.210621 117.073058 22.211221 117.077857 22.211071 117.082655 22.212121 117.086704 22.213920 117.090003 22.214520 117.092852 22.216619 117.095701 22.218269 117.097050 22.220222 117.100937 22.209805 117.106227 22.202459 117.107707 22.194499 117.108363 22.184443 117.109553 22.174179 117.110857 22.166156 117.111048 22.156822 117.113840 22.150839 117.115724 22.146221 117.117609 22.141414 117.118906 22.136307 117.121729 22.129313 117.123675 22.121760 117.124385 22.113248 117.125660 22.108900 117.129344 22.105642 117.135853 22.104939 117.144671 22.103383 117.147342 22.100838 117.153263 22.097182 117.159694 22.092215 117.166353 22.088563 117.176706 22.086138 117.188310 22.084678 117.200028 22.084040 117.211778 22.082129 117.221886 22.077935 117.229913 22.072144 117.236299 22.064936 117.241509 22.057633 117.249382 22.052635 117.256706 22.047173 117.265259 22.042482 117.271821 22.041632 117.277535 22.040094 117.283998 22.039728 117.286431 22.037543 117.295748 22.034773 117.303681 22.032779 117.311913 22.032139 117.320558 22.031913 117.325380 22.028705 117.329889 22.023323 117.333139 22.015178 117.339913 22.009426 117.343064 22.004443 117.345337 22.003438 117.346277 22.005342 117.351166 22.008242 117.358606 22.010242 117.363066 22.013172 117.368136 22.016702 117.374947 22.020522 117.382877 22.023632 117.387947 22.025502 117.391167 22.027852 117.395497 22.031552 117.401927 22.035362 117.408867 22.039002 117.415047 22.041762 117.420247 22.044232 117.425947 22.045662 117.430727 22.046822 117.437127 22.047332 117.443357 22.047632 117.450137 22.047852 117.455677 22.047662 117.459797 22.046272 117.465667 22.044992 117.471228 22.043491 117.477658 22.042721 117.482768 22.041711 117.491509 22.041191 117.498429 22.040731 117.504720 22.041101 117.507710 22.041071 117.510140 22.042121 117.517790 22.043921 117.526170 22.046761 117.533050 22.049511 117.537510 22.052921 117.543820 22.055811 117.551451 22.059181 117.559571 22.062481 117.567380 22.066901 117.577290 22.070571 117.587460 22.074001 117.597010 22.075951 117.607580 22.078431 117.620440 22.080551 117.631320 22.082131 117.640451 22.082551 117.648361 22.082781 117.654521 22.083301 117.661121 22.084101 117.666281 22.085181 117.671000 22.086331 117.676780 22.087071 117.683000 22.087931 117.687970 22.088431 117.692140 22.089691 117.698170 22.090431 117.703020 22.091061 117.709240 22.091401 117.714840 22.091701 117.722119 22.091371 117.730219 22.090781 117.735769 22.089231 117.742329 22.088541 117.749009 22.088531 117.754739 22.089721 117.758329 22.092592 117.763159 22.098292 117.768009 22.103002 117.771689 22.105562 117.773719 22.107942 117.775439 22.111612 117.778759 22.118072 117.784719 22.121492 117.786919 22.124642 117.790439 22.128912 117.796549 22.130902 117.799579 22.133492 117.805159 22.137042 117.813899 22.140102 117.820589 22.142633 117.826599 22.144663 117.833799 22.146693 117.840999 22.149003 117.847889 22.151063 117.852349 22.152893 117.855879 22.153863 117.861409 22.154023 117.866389 22.153422 117.870759 22.153472 117.875799 22.156582 117.881618 22.159852 117.885318 22.163702 117.890258 22.167732 117.895248 22.170882 117.898887 22.173512 117.902597 22.177081 117.907657 22.179541 117.912057 22.182361 117.916626 22.185871 117.922066 22.190131 117.927126 22.193111 117.931136 22.196440 117.935705 22.200580 117.940585 22.203500 117.943905 22.206480 117.947795 Thence southeasterly to the intersection of a western boundary of pastoral lease 3114/465 (Mount Florance) with Latitude 22.210019 South. Thence southerly and easterly along the boundaries of that pastoral lease, to Longitude 117.966611 East. Thence generally southeasterly through the following coordinate points: LATITUDE (SOUTH) LONGITUDE (EAST) 22.224921 117.969875 22.229931 117.974365 Thence southeasterly to the intersection of a western boundary of reserve 30082 (Karijini National Park) with Latitude 22.230431 South. Thence generally southwesterly and easterly along the boundaries of that reserve to Longitude 118.016010 East. Thence generally southwesterly to Latitude 22.283661 South, Longitude 118.018147 East. Thence southeasterly to the intersection of a western boundary of reserve 30082 (Karijini National Park) with Latitude 22.288220 South. Thence southerly, westerly and again southerly along boundaries of that reserve to Latitude 22.347871 South. Thence generally southwesterly and generally southeasterly through the following coordinate points: LATITUDE (SOUTH) LONGITUDE (EAST) 22.347891 118.002685 22.348850 117.999755 22.350791 117.997545 22.354361 117.996015 22.357921 117.994535 22.361091 117.993505 22.364491 117.993275 22.367561 117.994486 22.370531 117.996946 22.373621 118.000266 Thence southeasterly to the intersection of a western boundary of reserve 30082 (Karijini National Park) with Latitude 22.375657 South. Thence southerly and easterly along boundaries of that reserve to Longitude 118.030827 East. Thence generally southeasterly and generally easterly through the following coordinate points: LATITUDE (SOUTH) LONGITUDE (EAST) 22.524335 118.036370 22.527665 118.041000 22.530885 118.045260 22.533405 118.049721 22.534596 118.053501 22.535056 118.059971 22.534706 118.066461 22.534256 118.073311 22.534026 118.079861 Thence easterly to the intersection of a western boundary of reserve 30082 (Karijini National Park) with Latitude 22.533953 South. Thence southerly, generally westerly and again southerly along the boundaries of that reserve to Latitude 22.874031 South. Thence generally northwesterly and generally southwesterly through the following coordinate points: LATITUDE (SOUTH) LONGITUDE (EAST) 22.872848 117.895783 22.872428 117.894094 22.872362 117.892391 22.869444 117.884162 22.867949 117.879101 22.865819 117.872927 22.863668 117.866186 22.861392 117.859259 22.858231 117.850849 22.855358 117.843755 22.853478 117.837951 22.850170 117.828789 22.847709 117.823195 22.845624 117.818156 22.843553 117.813495 22.839014 117.806083 22.834275 117.799625 22.832558 117.797982 22.829080 117.790531 22.824865 117.782349 22.822440 117.777701 22.819994 117.772485 22.815196 117.764514 22.811386 117.757643 22.808896 117.751293 22.806243 117.743812 22.804902 117.739693 22.803023 117.733888 22.802190 117.730698 22.802154 117.729752 22.800009 117.723200 22.798816 117.716802 22.796200 117.707235 22.795066 117.702352 22.792377 117.693925 22.789761 117.684359 22.788155 117.676459 22.786248 117.666867 22.784317 117.659738 22.782056 117.650159 22.780803 117.645279 22.778976 117.637768 22.777098 117.631964 22.774828 117.622196 22.773156 117.612595 22.770828 117.604344 22.769458 117.599469 22.767948 117.594030 22.765376 117.585598 22.763483 117.579416 22.760034 117.572721 22.756461 117.565842 22.754766 117.561736 22.750241 117.554702 22.745835 117.547664 22.743735 117.545279 22.742305 117.541921 22.738208 117.533733 22.735703 117.530036 22.732985 117.523883 22.730796 117.519227 22.727974 117.513457 22.724813 117.505047 22.721593 117.498155 22.720554 117.495730 22.718800 117.493142 22.716346 117.487737 22.714268 117.482887 22.711653 117.473321 22.709163 117.466971 22.707321 117.462112 22.703725 117.451634 22.701787 117.444316 22.700292 117.439256 22.697301 117.429134 22.696969 117.426684 22.695540 117.423326 22.694258 117.417689 22.690611 117.405887 22.688371 117.396875 22.686456 117.390125 22.685167 117.381268 22.684607 117.375984 22.684570 117.375038 22.685639 117.369126 22.687747 117.365639 22.693010 117.358248 22.698162 117.351051 22.701198 117.347151 22.702798 117.345766 22.703690 117.344408 22.704324 117.342490 22.705577 117.335245 And thence southwesterly back to the commencement point. Internal Boundaries (Tom Price townsite) Determination Area A does not include Tom Price townsite, being all that portion of land bounded by lines starting from the northwestern corner of the northwestern severance of Gregory Location 26 and extending easterly along the northern boundary of that severance and onwards to the westernmost, northwestern corner of the northeastern severance of location 26. Thence easterly, southeasterly and southwesterly along boundaries of that severance and onwards to the easternmost, northeastern corner of the southeastern severance of location 26. Thence southwesterly, southeasterly and northwesterly along boundaries of that severance and onwards to the southernmost corner of a southwestern severance of location 26. Thence northwesterly along the southwestern boundary of that severance to the southernmost corner of the western severance of lot 36, as shown on Department of Land Information Deposited Plan 51845. Thence northwesterly along the southwestern boundary of that severance and onwards to a western boundary of Gregory location 9, as shown on Department of Land Information Deposited Plan 216332. Thence generally northerly along boundaries of that location to the southernmost, southeastern corner of Gregory location 57, as shown on Department of Land Information Deposited Plan 216345. Thence generally northwesterly, westerly, northerly, again generally northwesterly and again northerly along boundaries of that location to the southwestern corner of a western severance of location 26. Thence northerly along the western boundary of that severance and onwards to and along the western boundary of the northwestern severance of that location back to the commencement point. Notes: 1. Geographic Coordinates provided in Decimal Degrees 2. Cadastral boundaries sourced from Landgate 3. Spatial cadastral data dated January 2007 4. Datum: Geocentric Datum of Australia (1994) 5. Prepared by Land Claims Mapping Unit (Landgate), 6 February 2007 EXCLUSIONS FROM DETERMINATION AREA A The following areas, having been excluded from the native title determination application, are excluded from Determination Area A in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23C of the Native Title Act 1993 (Cth), and section 12I and 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)) because they are areas where previous exclusive possession acts have occurred and native title has been completely extinguished in relation to the whole of these areas. With the exception of those public works which are captured by the definition at paragraph 6 of this Schedule, all of the following areas are hatched in red on the maps at Attachment 1 to the First Schedule: 1. Freehold (a) Gregory Location 29 (CT 145/772). 2. Vested Reserves (a) Reserve 39013 (Gregory Location 47) for the purpose of a repeater station site vested pursuant to section 33 of the Land Act 1933 (WA) in the Australian Telecommunications Commissions on 9 August 1991; (b) Reserve 39204 (Gregory Location 52) for the purpose of a pistol club and range vested pursuant to section 33 of the Land Act 1933 (WA) in the Shire of West Pilbara on 20 September 1985, and re-vested in the Shire of Ashburton for the purpose of "recreation archery" on 19 April 1991; and (c) Reserve 42406 (Gregory Location 93) for the purpose of soil extraction vested pursuant to section 33 of the Land Act 1933 (WA) in the Shire of Ashburton on 27 November 1992. 3. Special Leases (a) Special Lease 3116/3466 granted on 4 November 1966 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1964 for the special purpose of the construction, operation and use of an aerodrome; (b) Special Lease 3116/3467 (GE I144501) granted on 4 November 1966 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1964 for the special purpose of boring for, conserving, reticulating and drawing water; (c) Special Lease 3116/4001 granted on 31 March 1969 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1964 for the special purpose of ballast stockpile sites; (d) Special Lease 3116/4011 granted on 18 September 1969 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1964 for the special purpose of radio communications and ancillary installations and facilities; (e) Special Lease 3116/4592 (GE I206646) granted on 15 November 1974 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1972 for the special purpose of a railway and associated works; (f) Special Lease 3116/4595 granted on 29 April 1974 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1972 for the special purpose of a quarry for the production of road metal and railway ballast; (g) Special Lease 3116/4892 granted on 11 February 1972 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1964 for the special purpose of permanent campsites for use in connection with the railway; (h) Special Lease 3116/4984 (GE I195323) granted on or about 21 October 1975 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1972 for the special purpose of a railway and associated works; (i) Special Lease 3116/6044 granted on 13 September 1977 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1968 for the special purpose of water pipes and power lines from bore to Tom Price townsite; (j) Special Lease 3116/6045 granted on 13 September 1977 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1968 for the special purpose of boring for, and conserving, reticulating and drawing water; (k) Special Lease 3116/6868 granted on 28 May 1981 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1979 for the special purpose of boring for, conserving, reticulating and drawing water; (l) Special Lease 3116/7842 (GE I123646) granted on 8 March 1984 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963-1982 for the special purpose of a power transmission line between Dampier, Tom Price and Paraburdoo and control equipment on an access track; (m) Special Lease 3116/11603 (GE I134647) granted on 18 September 1995 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of a bulk fuel depot and associated works and operations; (n) Special Lease 3116/11805 (GE G848907) granted on 15 February 1998 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of a railway spurline and railway and associated facilities; (o) Special Lease 3116/11806 (GE G848909) granted on 15 February 1998 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of a communications tower and railway and associated facilities; (p) Special Lease 3116/11807 (GE G848902) granted on 15 February 1998 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of access roads and railway and associated facilities; (q) Special Lease 3116/11808 (GE G848898) granted on 15 February 1998 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of a campsite and services corridor, railway and associated facilities; (r) Special Lease 3116/11869 (GE I134828) granted on 13 August 1997 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of the development, construction, provision, upgrading, operation and use of a railway power transmission line and communications system and associated facilities including borrow pits; and (s) Special Lease 3116/11913 (GE G848899) granted on 15 February 1998 pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Hamersley Range) Agreement Act 1963 for the special purpose of the construction, development, maintenance, use and operation of Communication Repeater Station 830 including access road thereto and ancillary installations and facilities. 4. Dedicated roads and roads set aside, taken or resumed (a) Road No.1644 (with a width of 20.12 metres) set aside, taken, or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 31 July 1903, p.1963; (b) Road No.1718 (with a width of 20.12 metres) set aside, taken, or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 18 December 1903, p.3310; (c) Road No.14619 (with a width of 100.6 metres) dedicated pursuant to section 288 of the Local Government Act 1960 (WA), gazetted on 3 March 1972, p.489; (d) Road No.15057 (with a width of 100.58 metres) dedicated pursuant to section 288 of the Local Government Act 1960 (WA), gazetted on 14 March 1975, p.875; (e) Public Road (Tom Price Paraburdoo Road) dedicated pursuant to section 56 of the Land Administration Act 1997 (WA), marked on Deposited Plans No.242848 and 242851; and (f) Road No.1644 (Nameless Valley Drive), (with a width of 20.12 metres) dedicated at common law and, marked on Miscellaneous Plan 470 sheet 2. 5. Telecommunications Facilities The following sites on which public works, as that expression is defined in the Native Title Act 1993 (Cth), have been constructed: (a) Barnett Telecommunications Site, being a rectangular area of 500m 2 (25m x 20m), the station mark of which is located approximately at Longitude 117deg.40'23.96" Latitude 22deg.20'28.99"; and (b) Mt Nameless Telecommunications Site, being a square shaped area of 8,361m 2 (91.44m x 91.44m), the station mark of which is located approximately at Longitude 117deg.45'37.51" Latitude 22deg.43'12.40". 6. Public Works Any public works as that expression is defined in the Native Title Act 1993 (Cth) and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) within the external boundary of Determination Area A including the land and waters defined in section 251D of the Native Title Act 1993 (Cth), are excluded from Determination Area A. FIRST SCHEDULE ATTACHMENT 1 MAPS SHOWING DETERMINATION AREA A, EXCLUSIONS FROM DETERMINATION AREA A, AND AREAS TO WHICH SECTION 47B OF THE NATIVE TITLE ACT 1993 (CTH) APPLIES SECOND SCHEDULE The nature and extent of other rights and interests in relation to Determination Area A are: 1. Reserves The interests of persons who have the care, control and management of the following reserves, and the interests of persons entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights: (a) Reserve 27915 (Gregory Location 3) for the purpose of a resting place for travellers and stock; and (b) Reserve 29879 (Gregory Location 18) for the purpose of a rifle range. 2. Pastoral Leases The rights and interests of the holders from time to time of the following pastoral leases: (a) pastoral lease 3114/1166 being Rocklea Station; (b) pastoral lease 3114/1228 being Coolawanyah Station; and (c) pastoral lease 3114/1277 being Hamersley Station. 3. Mining Tenements The interests of the holders of the following mining tenements granted under the Mining Act 1978 (WA): (a) Mining Leases Tenement ID Holder Date Granted M47/193 Aradon Pty Ltd 18.11.1988 M47/194 Barry Neil Kayes and National Gemstones Australia Pty Ltd 16.12.1988 M47/299 Rinker Australia Pty Ltd 24.12.1992 M47/369 Hamersley Iron Pty Ltd 29.09.1995 M47/370 Hamersley Iron Pty Ltd 29.09.1995 M47/371 Hamersley Iron Pty Ltd 29.09.1995 M47/372 Hamersley Iron Pty Ltd 29.09.1995 M47/459 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 09.06.2000 M47/460 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 09.06.2000 M47/461 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 09.06.2000 (b) General Purpose Leases Tenement Holder Date Granted G47/1226 Hamersley Iron Pty Ltd 16.08.2005 G47/1228 Hamersley Iron Pty Ltd 16.08.2005 (c) Miscellaneous Licences Tenement ID Holder Date Granted L47/18 Hamersley Iron Pty Ltd and Hamersley Resources Ltd 22.01.1992 L47/19 Hamersley Iron Pty Ltd and Hamersley Resources Ltd 22.01.1992 L47/48 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/49 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/64 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/65 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/66 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/79 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/82 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/83 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/84 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/86 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/89 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 05.09.2000 L47/100 Hamersley Iron Yandi Pty Ltd 08.10.2001 L47/121 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 20.05.2004 L47/122 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 20.05.2004 L47/127 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 07.05.2004 L47/128 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 07.05.2004 L47/129 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 20.05.2004 L47/136 Hamersley Iron Pty Ltd 11.03.2005 L47/137 Hamersley Iron Pty Ltd 09.06.2005 L47/139 Hamersley Iron Pty Ltd 25.05.2005 L47/140 Hamersley Iron Pty Ltd 25.05.2005 L47/141 Hamersley Iron Pty Ltd 27.09.2006 L47/143 Hamersley Iron Pty Ltd 25.05.2005 L47/144 Hamersley Iron Pty Ltd 25.05.2005 L47/151 Hamersley Iron Pty Ltd 25.05.2005 L47/152 Hamersley Iron Pty Ltd 25.05.2005 L47/153 Hamersley Iron Pty Ltd 27.09.2006 L47/159 Hamersley Iron Pty Ltd 27.01.2006 L47/160 Hamersley Iron Pty Ltd 27.01.2006 L47/161 Hamersley Iron Pty Ltd 13.04.2006 (d) Exploration Licences Tenement ID Holder Date Granted E47/31 Hamersley Exploration Pty Ltd 18.12.1982 E47/45 Hamersley Exploration Pty Ltd 18.12.1982 E47/47 Hamersley Exploration Pty Ltd 18.12.1982 E47/48 Hamersley Exploration Pty Ltd 18.12.1982 E47/53 Hamersley Exploration Pty Ltd 18.12.1982 E47/56 Hamersley Exploration Pty Ltd 18.12.1982 E47/473 Hamersley Exploration Pty Ltd 22.08.1989 E47/474 Hamersley Exploration Pty Ltd 22.08.1989 E47/475 Hamersley Exploration Pty Ltd 22.08.1989 E47/537 Hamersley Iron Pty Ltd and Hamersley Resources Ltd 16.10.1990 E47/538 Hamersley Iron Pty Ltd and Hamersley Resources Ltd 16.10.1990 E47/656 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 16.08.1993 E47/661 Hamersley Exploration Pty Ltd 24.11.1993 E47/707 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 25.08.1994 E47/731 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 24.04.1996 E47/733 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 24.04.1996 E47/882 Flinders Diamonds and Prenti Exploration Pty Ltd 31.10.1997 E47/892 Hamersley Iron Pty Ltd 13.07.1998 E47/1011 Flinders Diamonds and Prenti Exploration Pty Ltd 19.06.2001 E47/1022 Fortescue Resources Pty Ltd 06.10.2004 E47/1037 Hamersley Iron Pty Ltd 02.01.2001 E47/1054 Hamersley Iron Pty Ltd 04.10.2001 E47/1065 Hamersley Iron Pty Ltd 29.05.2003 E47/1106 Cape Lambert Iron Associates, Mitsui Iron Ore Development Pty Ltd, North Mining Ltd, Pannawonica Iron Associates and Robe River Mining Co Pty Ltd 14.02.2003 E47/1136 Talisman Mining Ltd 20.02.2003 E47/1142 Hamersley Iron Pty Ltd 30.11.2002 E47/1155 FMG Pilbara Pty Ltd 20.02.2003 E47/1206 Ausquest Ltd 23.01.2006 E47/1294 Ausquest Ltd 30.03.2004 E47/1306 Flinders Diamonds Ltd 17.11.2005 E47/1373 FMG Pilbara Pty Ltd 21.08.2006 E47/1390 Poondano Exploration Pty Ltd 21.06.2006 E47/1391 Poondano Exploration Pty Ltd 21.06.2006 E47/1411 Aquila Steel Pty Ltd and Westiron Pty Ltd 23.03.2005 E47/1412 Aquila Steel Pty Ltd and Westiron Pty Ltd 23.03.2005 E47/1416 Aquila Steel Pty Ltd and Westiron Pty Ltd 23.03.2005 E47/1455 Poondano Exploration Pty Ltd 11.06.2006 E47/1479 Poondano Exploration Pty Ltd 23.05.2006 E47/1480 Poondano Exploration Pty Ltd 23.05.2006 E47/1485 Ausquest Ltd 20.03.2006 (e) Prospecting Licences Tenement ID Holder Date Granted P47/1067 David Edward Vaughan 22.01.1996 P47/1101 Barry Neil Kayes 31.07.2000 P47/1105 Tamas Kapitany and Johan Pieter Pas 31.07.2000 4. State Agreement Act The agreement as amended and ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 and rights and interests comprised in, conferred under or in accordance with or pursuant to that agreement, including the following: (a) Mineral Leases Tenement ID Section Holder Date Granted AML 70/4 [ML4SA] 1 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 2 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 3 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 4 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 5 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 6 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 7 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 8 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 9 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 10 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 11 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 12 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 13 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 14 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 15 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 53 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 55 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 66 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 67 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 69 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 70 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 72 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 75 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 78 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 105 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 106 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 107 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 108 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 109 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 110 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 112 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 113 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 115 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 116 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 117 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 118 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 119 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 120 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 121 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 122 Hamersley Iron Pty Ltd 25.03.1965 AML 70/4 [ML4SA] 232 Hamersley Iron Pty Ltd 08.12.1982 AML 70/4 [ML4SA] 233 Hamersley Iron Pty Ltd 08.12.1982 AML 70/4 [ML4SA] 234 Hamersley Iron Pty Ltd 08.12.1982 AML 70/4 [ML4SA] 235 Hamersley Iron Pty Ltd 08.12.1982 AML 70/4 [ML4SA] 239 Hamersley Iron Pty Ltd 13.04.1991 AML 70/4 [ML4SA] 240 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 241 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 242 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 243 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 257 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 258 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 264 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 265 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 266 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 267 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 268 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 269 Hamersley Iron Pty Ltd 11.12.2003 AML 70/4 [ML4SA] 270 Hamersley Iron Pty Ltd 11.12.2003 (b) Mining Leases Tenement ID Section Holder Date Granted AM 70/272 [M272SA] 2 Hamersley Iron Pty Ltd 23.11.1992 AM 70/272 [M272SA] 3 Hamersley Iron Pty Ltd 23.11.1992 (c) General Purposes Leases Tenement ID Holder Date Granted Part AG70/3 [G 3SA] Hamersley Iron Pty Ltd 03.08.1993 5. Indigenous Land Use Agreements The Hamersley Iron Pty Ltd Eastern Guruma Indigenous Land Use Agreement (Area Agreement) relating to part of Determination Area A, dated 27 November 2002, and registered on the Register of Indigenous Land Use Agreements on 5 March 2004 (Tribunal No.WI01/1), and the rights and interests comprised in, conferred under, or in accordance with, or pursuant to, that ILUA. 6. Intra-Indigenous Agreements (a) The Intra-Indigenous Deed of Agreement Between Eastern Guruma Native Title Claimants and Kuruma Marthudunera Native Title Claimants annexed as Attachment 1 to this Schedule; and (b) The Intra-Indigenous Deed of Agreement Between Eastern Guruma Native Title Claimants and Puutu Kunti Kurrama and Pinikura Native Title Claimants annexed as Attachment 2 to this Schedule. 7. Statutory Licences and Permits The holders of licences and permits issued under the: (a) Land Act 1933 (WA) and the Land Administration Act 1997 (WA); (b) Fish Resources Management Act 1994 (WA); (c) Mining Act 1978 (WA); (d) Wildlife Conservation Act 1950 (WA); (e) Conservation and Land Management Act 1984 (WA); (f) Rights in Water and Irrigation Act 1914 (WA); (g) Transport Co-ordination Act 1966 (WA); and (h) Water Services Coordination Act 1995 (WA). 8. Other Rights and Interests Other rights and interests: (a) Valid or validated rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power. (b) Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth. (c) Access to Determination Area A by any: (i) employee or agent of the State Government; (ii) employee or agent of the Commonwealth Government; (iii) employee or agent of any local government authority; as required in the performance of his or her statutory or common law duties where such access would be permitted to private land. (d) Existing rights of the public to access and enjoy: (i) waterways; or (ii) beds and banks or foreshores of waterways; or (iii) stock routes. (e) The rights and interests of Telstra Corporation Limited: (i) as the owner or operator of telecommunications facilities within Determination Area A; (ii) as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (iii) 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 A. the right to occupy the Marandoo Telecommunications Site, being a rectangular area of 700m 2 (50m x 14m), the station mark of which is located at Longitude 118004'39.82" Latitude 22036'35.61"; and B. the right to install cabling and customer terminal sites. (iv) for its employees, agents or contractors to enter Determination Area A in the performance of their duties, to access its facilities in, and in the vicinity of, Determination Area A. (f) Rights of any person to access and enjoy (subject to the laws of the State) any existing roads within Determination Area A where members of the public have access to such roads according to the common law. (g) Without limiting the operation of any other paragraph in the Second Schedule, but subject to paragraph (h) below, rights of the holders from time to time of mining tenements under the Mining Act 1978 (WA) to use (including by servants, agents and contractors) the existing roads and tracks in Determination Area A. (h) Nothing in paragraph (g) above allows any upgrade, extension, widening or other improvement to the road or track in reasonable repair or where a road or track is rehabilitated, the later reinstatement of the road or track to substantially the same condition as prior to the rehabilitation. (i) Nothing in paragraphs (f), (g) and (h) above will limit the rights of the holders from time to time of mining tenements, petroleum interests or other interests granted under a law of the State or Commonwealth, including without limitation any right to exclude members of the public from entering onto the land and waters the subject of any mining tenements, petroleum interests or other interests. SECOND SCHEDULE ATTACHMENT 1 INTRA-INDIGENOUS DEED OF AGREEMENT BETWEEN EASTERN GURUMA NATIVE TITLE CLAIMANTS AND KURUMA MARTHUDUNERA NATIVE TITLE CLAIMANTS Dated this day of 2006 NELSON HUGHES and EVA CONNORS EASTERN GURUMA APPLICANTS and MARK LOCKYER, NEIL FINLAY, JEAN LOCKYER, GLORIA LOCKYER, JACK ALEXANDER, KURUMA MARTHUDUNERA APPLICANTS INTRA-INDIGENOUS DEED OF AGREEMENT BETWEEN EASTERN GURUMA NATIVE TITLE CLAIMANTS, AND KURUMA MARTHUDUNERA NATIVE TITLE CLAIMANTS CONTENTS Clause Page Index 1 Parties 2 Background 2 1 Authority to enter into this Deed of Agreement 4 2 KM Claimants to have access to area 5 3 Area to remain subject to Eastern Guruma claim 6 4 Agreement on existing common boundary 6 5 Protection of Native Title rights and interests 8 6 Agreement is about land use, not benefits 9 7 Assignment and transfer 10 8 ILUA 10 9 Conditions Precedent 11 Schedule 1 Map of the area of special KM interest in Eastern Guruma Claim 13 DATED this day of 2006 BETWEEN NELSON HUGHES of 102 Wellard Way, Karratha Western Australia, registered native title applicant and EVA CONNORS of 61A Burrup Road, Roebourne Western Australia, registered native title applicant for themselves and for and on behalf of the members of the native title group for the Eastern Guruma native title determination application (WG 6208 of 1998) (referred to in this Deed as the Eastern Guruma claimants) AND MARK LOCKYER, NEIL FINLAY, JEAN LOCKYER, GLORIA LOCKYER, JACK ALEXANDER, care of Pilbara Native Title Service, of Unit 1, 24 De Grey Place Karratha WA 6714, registered native title applicant for themselves and for and on behalf of the members of the Kuruma Marthudunera native title determination application (WAD 6090 of 1998) (referred to in this Deed of Agreement as "the KM claimants"). BACKGROUND A. The Eastern Guruma claimants are the claimants in Native Title Determination Application number WG 6208 of 1998 which is registered on the Register of Native Title Claims (referred to in this Deed as the Eastern Guruma claim). The term Eastern Guruma claim shall also include any determination in favour of the Eastern Guruma claimants over the area of the Eastern Guruma claim; B. The KM claimants are the claimants in Native Title Determination Applications number WAD 6090 of 1998which are registered on the Register of Native Title Claims (referred to in this Deed as the KM claim). The term KM claim shall also include any determination in favour of the KM claimants over the area of the KM claim; C. The Eastern Guruma claim and the KM claim currently overlap each other, which overlap area is shown in the map contained in Schedule 1 to this Deed; D. The Eastern Guruma claim and the KM claim have agreed to remove overlap between the claims and create a common boundary which is shown in the map contained in Schedule 1 to this Deed; E. For the purposes of the Deed, the terms "Eastern Guruma Claim area" and the "KM claim area" shall mean the claim areas as they would appear with the common boundary and the overlaps removed; F. The members of the Eastern Guruma claimant group and the members of the KM claimant group have a relationship of mutual friendship, trust and respect for each other and both groups wish to preserve that good relationship; G. There are members of the KM claimant group who throughout their lives have visited, exercised the Traditional Rights (as defined in clause 2.1 of this Deed) and maintained a traditional relationship with an area of country that is now within the Eastern Guruma claim area, and which includes a place known as Palm Springs. That area is referred to in this Deed as "the area of special KM interest". H. It is important that the members of the KM claimant group be able to keep visiting the area of special KM interest; I. The Eastern Guruma claimants are willing for KM people to maintain their traditional relationship with the area of special KM interest and for KM claimants to exercise their Traditional Rights in the said area ; J. The KM claimants are willing for the Eastern Guruma claimants to maintain and continue with their Native Title claim to the area of special KM interest; K. The Eastern Guruma claimants and the KM claimants have agreed on the terms in this Deed for the purposes of a. enabling the Eastern Guruma claim and the KM claim to each continue towards determination of Native Title and b. enabling the KM people to maintain their traditional relationship with the area of special KM interest and for KM claimants to visit that area and engage in ceremonies and other traditional cultural practices there. L. This Deed is about land use, not about benefits under the Native Title Act . AGREEMENT 1. AUTHORITY TO ENTER INTO THIS DEED OF AGREEMENT 1.1 Each of the Eastern Guruma applicants and each of the KM applicants signs this Deed for themselves and in their capacities as their claimant group's registered applicants, with the authority and on behalf of all the members of their claimant group. 1.2 The Eastern Guruma applicants warrant that they have consulted with the Eastern Guruma claimants and that they have the authority to act for and legally bind all the Eastern Guruma claimants to the obligations set out in this agreement and that all the Eastern Guruma claimants will be bound by the terms of this agreement. 1.3 The term "Eastern Guruma claimants" shall include any persons who are included as native title holders in the Third Schedule of any determination of native title in the Eastern Guruma claim. 2. KM CLAIMANTS TO HAVE ACCESS TO AREA 2.1 The KM claimants have the right to access the area of special KM interest including for the purposes of hunting, fishing, camping, collecting bush medicines and bush tucker and to practice traditional law and culture there ("the Traditional Rights") and the Eastern Guruma claimants acknowledge and agree to respect the exercise of Traditional Rights of the KM people in the area of special KM interest. 2.2 The Eastern Guruma claimants will not do anything or agree to anything with anyone else which could lessen the KM people's Traditional Rights in the area of special KM interest without first consulting and providing all available information to the KM people about anything which could have that effect and giving consideration to what the KM people say, including, giving to KM people the reasonable opportunity to address the Eastern Guruma claimants at meetings of the Eastern Guruma claimants at which decisions may be made about matters which will lessen the KM's Traditional Rights in the area of special KM interest 2.3 The KM Traditional Rights in the area of special KM interest will continue in full force and effect if the Eastern Guruma claimants are determined by the Federal Court of Australia to hold native title rights and interests in the area of special KM interest of any part of it. 3. AREA TO REMAIN SUBJECT TO EASTERN GURUMA CLAIM 3.1 The area of special KM interest will continue to be part of the country claimed by the Eastern Guruma claimants. 3.2 The KM claimants will consent to a determination of native title in favour of the Eastern Guruma claimants and will not seek to maintain nor make any further Native Title claim under the Native Title Act over any part of the area of special KM interest. 3.3 The KM claimants agree to the Eastern Guruma claimants being recognised as native title holders over the area of special KM interest. 4 AGREEMENT ON EXISTING COMMON BOUNDARY 4.1 The Eastern Guruma claimants and the KM claimants have agreed to create and not to dispute the common boundary between their claims, which is depicted in the map contained in Schedule 1 to this Deed. 4.2 The Eastern Guruma claimants will agree to the dismissal or removal of any part of the Eastern Guruma claim which is on the KM claim side of the common boundary and take any additional action which may be necessary to effect such a removal; 4.3 Neither the Eastern Guruma claimants nor the KM claimants will take any action to change that common boundary in any way that would bring about an overlapping of any portion of the Eastern Guruma claim by the KM claim or an overlapping of any portion of the KM claim by the Eastern Guruma claim; 4.4 Neither the Eastern Guruma claimants nor the KM claimants will make any new or additional Native Title claim which would have the practical effect of changing the position of that common boundary without the prior consent of the other claimants; 4.5 The Eastern Guruma claimants and the KM claimants will each support the other claimant group by confirming the agreement as to that boundary, if requested to do so by the other claimant group. 5 PROTECTION OF NATIVE TITLE RIGHTS AND INTERESTS 5.1 The KM claimants agree that nothing mentioned in this Deed, and nothing which any of the KM claimants is able to do as a result of the signing of this agreement can have the effect of altering or taking anything away from the Eastern Guruma claimants' traditional rights and interests in the area of special KM interest or from the Eastern Guruma claim over that area; 5.2 The Eastern Guruma claimants agree that nothing mentioned in this Deed, and nothing which any of the Eastern Guruma claimants is able to do as a result of the signing of this Deed can have the effect of altering or taking anything away from the KM claimants' Traditional Rights and interests in the area of the KM claim or, subject to clause 2.2, the area of special KM interest. 5.3 The Eastern Guruma claimants will not do anything to inhibit or prevent the KM claimants from exercising or protecting their right to exercise their Traditional Rights in the area of special KM interest or from protecting any of the rights granted to them by this Deed in respect of their Traditional Rights in the area of special KM interest. 5.4 The KM claimants will not, without the consent of the Eastern Guruma claimants, get involved in or seek membership in the Eastern Guruma claim nor lodge a native title claim that overlaps with the area of the Eastern Guruma determination, nor seek to establish or have any recognition of native title rights within the Eastern Guruma determination area. 5.5 The Eastern Guruma claimants will not, without the consent of the KM claimants, get involved in the KM claim nor lodge a native title claim that overlaps with the area of the KM claim nor seek to establish or have any recognition of native title rights within the KM claim area and hereby waive any rights under and for the purposes of the Native Title Act within the area of the KM claim. 5.6 The Eastern Guruma claimants agree to not seek membership of the KM claim group without the consent of the KM claimants. 5.7 If for any reason the Eastern Guruma claimants are included or are recognised as members of the KM claim group or native title holders in the area of the KM claim, the Eastern Guruma claimants agree that they will not, without the consent of the KM claimants seek to: (a) become members of any prescribed body corporate for the KM claim area; (b) receive any benefits in relation to future act agreements or compensation in relation to any activities in the KM claim area; or (c) participate in any decision-making process of the KM claimants in relation to any matters relating to native title of future acts in relation to the KM claim area. 6 AGREEMENT ABOUT LAND USE, NOT BENEFITS 6.1 The KM claimants and the Eastern Guruma claimants agree that this Deed of Agreement: (a) shall enable both KM people and Eastern Guruma people to maintain their traditional relationship to land; (b) does not mean that the KM claimants or the Eastern Guruma claimants may obtain benefits payable by mining companies or other developers for projects carried out on any part of the other claimant group's Native Title claim area; and (c) does not enable the KM claimants or the Eastern Guruma claimants to become members of each other's claimant group or Prescribed bodies corporate or to seek to have a share of benefits from future acts in each others claim or determination areas. 7. ASSIGNMENT OR TRANSFER 7.1 This Deed will be binding upon the KM and Eastern Guruma claimants, and any prescribed body corporate appointed by the KM and Eastern Guruma claimants as agent or trustee of native title rights held by them and the KM and Eastern Guruma claimants shall each ensure and procure that any such prescribed body corporate appointed by them will first agree to be bound by all the obligations of the respective claimants under this Deed. 7.2 The KM and the Eastern Guruma claimants shall not assign or transfer any of their native title rights or their rights and obligations under this Deed without first procuring the transferee or assignee to enter into a Deed with the KM or Eastern Guruma claimants agreeing to be bound by all the obligations of the transferor and assignor under this Deed. 8. ILUA 8.1 Eastern Guruma claimants agree that within a reasonable time of the request of the KM claimants to do so and the presentation of the form of an Indigenous Land Use Agreement containing the terms of clause 2 of this Deed, that they and any PBC appointed for the Eastern Guruma claim area will enter into the said agreement and agree that it may, at the option of the KM claimants, be registered as an Indigenous Land Use Agreement under the Native Title Act ("the ILUA agreement") 8.2 The Eastern Guruma claimants agree that they and any PBC appointed for the Eastern Guruma claim area shall, on the request of the PPKP claimants, do all things and sign all documents reasonably necessary in order to enable the ILUA agreement to be registered as an Indigenous Land Use Agreement under the Native Title Act . 8.3 The Eastern Guruma claimants and their members shall not take any steps to challenge or object to the registration of the ILUA agreement as an Indigenous Land Use Agreement under the Native Title Act . 9. Conditions Precedent 9.1 The provisions and obligations in Clauses 3 and 4 of this Deed are subject to the conditions precedent set out in clauses 9.2 and 9.3. 9.2 The Eastern Guruma claimants must ensure and procure that any corporation to be nominated by the Eastern Guruma claimants as the prescribed body corporate or registered native title body corporate for the Eastern Guruma claim area shall, prior to the making of any consent determination and prior to any removal of the KM claim over the area of special KM interest, execute and deliver to the KM claimants a deed agreeing to also be bound by all of the obligations of the Eastern Guruma claimants under this Deed. 9.3 The parties to the Eastern Guruma claim agreeing to request the Federal Court to attach a copy of this Deed to the determination of native title in favour of the Eastern Guruma people, or alternatively, if agreed to by the KM claimants through their representatives, to request the Federal Court to attach or annex a copy of this Deed to an alternative official and public Court document. SCHEDULE 1 TO THE DEED OF AGREEMENT BETWEEN EASTERN GURUMA NATIVE TITLE APPLICANTS AND KM NATIVE TITLE APPLICANTS MAP OF EASTERN GURUMA CLAIM EXECUTED BY THESE EASTERN GURUMA ELDERS : NELSON HUGHES ) ________________________________ Nelson Hughes in the presence of: Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness EVA CONNORS ) ________________________________ Eva Connors in the presence of: Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness EXECUTED BY THESE KM ELDERS: MARK LOCKYER )________________________________ in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness NEILFINLAY ) ________________________________ in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness JEAN LOCKYER ) ________________________________ in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness GLORIA LOCKYER ) ________________________________ in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness JACK ALEXANDER ) ________________________________ in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness \\ SECOND SCHEDULE ATTACHMENT 2 INTRA-INDIGENOUS DEED OF AGREEMENT BETWEEN EASTERN GURUMA NATIVE TITLE CLAIMANTS AND PUUTU KUNTI KURRAMA AND PINIKURA NATIVE TITLE CLAIMANTS Dated this day of 2006 NELSON HUGHES and EVA CONNORS EASTERN GURUMA APPLICANTS and ANGELINA COX, ANGIE COX, ANNABELLE STEWART, ARNESS JAMES, CHARLESTON COX, CHLOE HAYES, DARRYL HUGHES, GARY HUGHES, HAROLD ASHBURTON. LILY MACKAY, MAUDIE DOWTON, MITCHELL DRAGE and MAURICE DAUBLIN PKKP APPLICANTS INTRA-INDIGENOUS DEED OF AGREEMENT BETWEEN EASTERN GURUMA NATIVE TITLE CLAIMANTS AND PUUTU KUNTI KURRAMA AND PINIKURA NATIVE TITLE CLAIMANTS CONTENTS Clause Page Index 1 Parties 2 Background 2 1 Authority to enter into this Deed of Agreement 4 2 PKKP Claimants to have access to area 5 3 Area to remain subject to Eastern Guruma claim 6 4 Agreement on existing common boundary 6 5 Protection of Native Title rights and interests 7 6 Agreement is about land use, not benefits 9 7 Assignment and transfer 10 8 ILUA 10 9 Conditions Precedent 11 Schedule 1 Map of the area of special PKKP interest in Eastern Guruma Claim 13 Execution clauses DATED this day of 2006 BETWEEN NELSON HUGHES of 102 Wellard Way, Karratha Western Australia, registered native title applicant and EVA CONNORS of 61A Burrup Road, Roebourne Western Australia, native title applicant for themselves and for and on behalf of the members of the native title group for the Eastern Guruma native title determination application (WG 6208 of 1998) (referred to in this Deed as the Eastern Guruma claimants) AND ANGELINA COX, ANGIE COX, ANNABELLE STEWART, ARNESS JAMES, CHARLESTON COX, CHLOE HAYES, DARRYL HUGHES, GARY HUGHES, HAROLD ASHBURTON, LILY MACKAY, MAUDIE DOWTON, MITCHELL DRAGE and MAURICE DAULBIN all care of Pilbara Native Title Service, Unit 1, 24 De Grey Place Karrratha WA 6714 native title applicant, for themselves and for and on behalf of the members of the Puutu Kunti Kurrama & Pinikura native title determination application (WAD6007/2001 and WAD 126/2005) (referred to in this Deed of Agreement as "the PKKP claimants"). BACKGROUND A. The Eastern Guruma claimants are the claimants in Native Title Determination Application number WG 6208 of 1998 which is registered on the Register of Native Title Claims (referred to in this Deed as the Eastern Guruma claim). The term Eastern Guruma claim shall also include any determination in favour of the Eastern Guruma claimants over the area of the Eastern Guruma claim; B. The country within the Eastern Guruma claim is shown in the map contained in Schedule 1 to this Deed; C. The PKKP claimants are the claimants in Native Title Determination Applications number WAD6007/01 and WAD 126/05 which are registered on the Register of Native Title Claims (referred to in this Deed as the PKKP claim). The term PKKP claim shall also include any determination in favour of the PKKP claimants over the area of the PKKP claim; D. The Eastern Guruma claim and the PKKP claim share a common boundary, a portion of which is shown in the map contained in Schedule 1 to this Deed; E. The members of the Eastern Guruma claimant group and the members of the PKKP claimant group have a relationship of mutual friendship, trust and respect for each other and both groups wish to preserve that good relationship; F. There are members of the PKKP claimant group who throughout their lives have visited, exercised the Traditional Rights (as defined in clause 2.1 of this Deed) and maintained a traditional relationship with an area of country that is now within the Eastern Guruma claim, and which includes the places known as Palm Springs, Duck Creek, Johnny Cake Springs and Mt Brockman. That area is referred to in this Deed as "the area of special PKKP interest". G. It is important that the members of the PKKP claimant group be able to keep visiting the area of special PKKP interest; H. The Eastern Guruma claimants are willing for PKKP people to maintain their traditional relationship with the area of special PKKP interest and for PKKP claimants to exercise their Traditional Rights in the said area; I. The PKKP claimants are willing for the Eastern Guruma claimants to maintain and continue with their Native Title claim to the area of special PKKP interest; J. The Eastern Guruma claimants and the PKKP claimants have agreed on the terms in this Deed for the purposes of a. enabling the Eastern Guruma claim and the PKKP claim to each continue towards determination of Native Title and b. enabling the PKKP people to maintain their traditional relationship with the area of special PKKP interest and for PKKP claimants to visit that area and engage in ceremonies and other traditional cultural practices there. L. This Deed is about land use, not about benefits under the Native Title Act . AGREEMENT 1. AUTHORITY TO ENTER INTO THIS DEED OF AGREEMENT 1.1 Each of the Eastern Guruma applicants and each of the PKKP applicants signs this Deed for themselves and in their capacities as their claimant group's registered applicants, with the authority and on behalf of all the members of their claimant group. 1.2 The Eastern Guruma applicants warrant that they have consulted with the Eastern Guruma claimants and that they have the authority to act for and legally bind all the Eastern Guruma claimants to the obligations set out in this agreement and that all the Eastern Guruma claimants will be bound by the terms of this agreement. 1.3 The term "Eastern Guruma claimants" shall include any persons who are included as native title holders in the Third Schedule of any determination of native title in the Eastern Guruma claim. 2. PKKP CLAIMANTS TO HAVE ACCESS TO AREA 2.1 The PKKP claimants have the right to access the area of special PKKP interest including for the purposes of hunting, fishing, camping, collecting bush medicines and bush tucker and to practice traditional law and culture there ("the Traditional Rights") and the Eastern Guruma claimants acknowledge and agree to respect the exercise of Traditional Rights of the PKKP people in the area of special PKKP interest. 2.2 The Eastern Guruma claimants will not do anything or agree to anything with anyone else which could lessen the PKKP people's Traditional Rights in the area of special PKKP interest without first consulting and providing all available information to the PKKP people about anything which could have that effect and giving consideration to what the PKKP people say, including, giving to PKKP people the reasonable opportunity to address the Eastern Guruma claimants at meetings of the Eastern Guruma claimants at which decisions may be made about matters which will lessen the PKKP's Traditional Rights in the area of special PKKP interest 2.3 The PKKP Traditional Rights in the area of special PKKP interest will continue in full force and effect if the Eastern Guruma claimants are determined by the Federal Court of Australia to hold native title rights and interests in the area of special PKKP interest of any part of it. 3. AREA TO REMAIN SUBJECT TO EASTERN GURUMA CLAIM 3.1 The area of special PKKP interest will continue to be part of the country claimed by the Eastern Guruma claimants. 3.2 The PKKP claimants will not make a Native Title claim under the Native Title Act over any part of the area of special PKKP interest. 3.3 The PKKP claimants agree to the Eastern Guruma claimants being recognised as native title holders over the area of special PKKP interest. 4. AGREEMENT ON EXISTING COMMON BOUNDARY 4.1 The Eastern Guruma claimants and the PKKP claimants have agreed not to dispute the common boundary between their claims, which is depicted in the map contained in Schedule 1 to this Deed. 4.2 Neither the Eastern Guruma claimants nor the PKKP claimants will take any action to change that common boundary in any way that would bring about an overlapping of any portion of the Eastern Guruma claim by the PKKP claim or an overlapping of any portion of the PKKP claim by the Eastern Guruma claim; 4.3 Neither the Eastern Guruma claimants nor the PKKP claimants will make any new or additional Native Title claim which would have the practical effect of changing the position of that common boundary without the prior consent of the other claimants; 4.4 The Eastern Guruma claimants and the PKKP claimants will each support the other claimant group by confirming the agreement as to that boundary, if requested to do so by the other claimant group. 5. PROTECTION OF NATIVE TITLE RIGHTS AND INTERESTS and TRADITIONAL RIGHTS AND INTERESTS 5.1 The PKKP claimants agree that nothing mentioned in this Deed, and nothing which any of the PKKP claimants is able to do as a result of the signing of this Deed can have the effect of altering or taking anything away from the Eastern Guruma claimants' traditional rights and interests in the area of special PKKP interest or from the Eastern Guruma claim over that area; 5.2 The Eastern Guruma claimants agree that nothing mentioned in this Deed, and nothing which any of the Eastern Guruma claimants is able to do as a result of the signing of this Deed can have the effect of altering or taking anything away from the PKKP claimants' Traditional Rights and interests in the area of the PKKP claim or, subject to clause 2.2, the area of special PKKP interest. 5.3 Subject to this Deed, the Eastern Guruma claimants will not do anything to inhibit or prevent the PKKP claimants from exercising or protecting their right to exercise their Traditional Rights in the area of special PKKP interest or from protecting any of the rights granted to them by this Deed in respect of their Traditional Rights and interests in the area of special PKKP interest. 5.4 The PKKP claimants will not, without the consent of the Eastern Guruma claimants, get involved in or seek membership in the Eastern Guruma claim nor lodge a native title claim that overlaps with the area of the Eastern Guruma determination, nor seek to establish or have any recognition of native title rights within the Eastern Guruma determination area. 5.5 The Eastern Guruma claimants will not, without the consent of the PKKP claimants, get involved in the PKKP claim nor lodge a native title claim that overlaps with the area of the PKKP claim nor seek to establish or have any recognition of native title rights within the PKKP claim area and hereby waive any rights under and for the purposes of the Native Title Act within the area of the PKKP claim. 5.6 The Eastern Guruma claimants agree to not seek membership of the PKKP claim group without the consent of the PKKP claimants. 5.7 If for any reason the Eastern Guruma claimants are included or are recognised as members of the PKKP claim group or native title holders in the area of the PKKP claim, the Eastern Guruma claimants agree that they will not, without the consent of the PKKP claimants seek to: (a) become members of any prescribed body corporate for the PKKP claim area; (b) receive any benefits in relation to future act agreements or compensation in relation to any activities in the PKKP claim area; or (c) participate in any decision-making process of the PKKP claimants in relation to any matters relating to native title of future acts in relation to the PKKP claim area. 5.8 If for any reason the PKKP claimants are included or are recognised as members of the Eastern Guruma claim group or native title holders in the area of the Eastern Guruma claim, the PKKP claimants agree that they will not, without the consent of the Eastern Guruma claimants seek to: (a) become members of any prescribed body corporate for the Eastern Guruma claim area; (b) receive any benefits in relation to future act agreements or compensation in relation to any activities in the Eastern Guruma claim area; or (c) participate in any decision-making process of the Eastern Guruma claimants in relation to any matters relating to native title of future acts in relation to the Eastern Guruma claim area. 6 AGREEMENT ABOUT LAND USE, NOT BENEFITS 6.1 The PKKP claimants and the Eastern Guruma claimants agree that this Deed of Agreement: (a) shall enable both PKKP people and Eastern Guruma people to maintain their traditional relationship to land; (b) does not mean that the PKKP claimants or the Eastern Guruma claimants may obtain benefits payable by mining companies or other developers for projects carried out on any part of the other claimant group's Native Title claim area; and (c) does not enable the PKKP claimants or the Eastern Guruma claimants to become members of each other's claimant group or Prescribed bodies corporate or to seek to have a share of benefits from future acts in each others claim or determination areas. 7. ASSIGNMENT OR TRANSFER 7.1 This Deed will be binding upon the PKKP and Eastern Guruma claimants and any prescribed body corporate appointed by the PKKP and Eastern Guruma claimants as agent or trustee of native title rights held by them and the PKKP and Eastern Guruma claimants shall each ensure and procure that any such prescribed body corporate appointed by them will first agree to be bound by all the obligations of the respective claimants under this Deed. 7.2 The PKKP and the Eastern Guruma claimants shall not assign or transfer any of their native title rights or their rights and obligations under this Deed without first procuring the transferee or assignee to enter into a Deed with the PKKP or Eastern Guruma claimants agreeing to be bound by all the obligations of the transferor and assignor under this Deed. 8. ILUA 8.1 Eastern Guruma claimants agree that within a reasonable time of the request of the PKKP claimants to do so and the presentation of the form of an Indigenous Land Use Agreement containing the terms of clause 2 of this Deed, that they and any PBC appointed for the Eastern Guruma claim area will enter into the said agreement and agree that it may, at the option of the PKKP claimants, be registered as an Indigenous Land Use Agreement under the Native Title Act ("the ILUA agreement") 8.2 The Eastern Guruma claimants agree that they and any PBC appointed for the Eastern Guruma claim area shall, on the request of the PPKP claimants, do all things and sign all documents reasonably necessary in order to enable the ILUA agreement to be registered as an Indigenous Land Use Agreement under the Native Title Act . 8.3 The Eastern Guruma claimants and their members shall not take any steps to challenge or object to the registration of the ILUA agreement as an Indigenous Land Use Agreement under the Native Title Act . 9. Conditions Precedent 9.1 The provisions and obligations in Clauses 3 and 4 of this Deed are subject to the conditions precedent set out in clauses 9.2 and 9.3. 9.2 The Eastern Guruma claimants must ensure and procure that any corporation to be nominated by the Eastern Guruma claimants as the prescribed body corporate or registered native title body corporate for the Eastern Guruma claim area shall, prior to the making of any consent determination, execute and deliver to the PKKP claimants a deed agreeing to also be bound by all of the obligations of the Eastern Guruma claimants under this Deed. 9.3 The parties to the Eastern Guruma claim agreeing to request the Federal Court to attach a copy of this Deed to the determination of native title in favour of the Eastern Guruma people, or alternatively, if agreed to by the PKKP claimants through their representatives, to request the Federal Court to attach or annex a copy of this Deed to an alternative official and public Court document. SCHEDULE 1 TO THE DEED OF AGREEMENT BETWEEN EASTERN GURUMA NATIVE TITLE APPLICANTS AND PKKP NATIVE TITLE APPLICANTS MAP OF EASTERN GURUMA CLAIM EXECUTED FOR AND ON BEHALF OF THE EASTERN GURUMA CLAIMANTS BY: NELSON HUGHES ) ________________________________ Nelson Hughes in the presence of: Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness EVA CONNORS ) ________________________________ Eva Connors in the presence of: Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness EXECUTED FOR AND ON BEHALF OF THE PKKP CLAIMANTS BY: ANGELINA COX ) _______________________________ Angelina Cox in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness ANGIE COX ) _______________________________ Angie Cox in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness ANNABELLE STUART ) ________________________________ Annabelle Stuart in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness ARNESS JAMES ) _______________________________ Arness James in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness CHARLESTON COX ) ___________________________________ Charleston Cox in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness CHLOE HAYES ) ___________________________________ Chloe Hayes in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness DARRYL HUGHES ) ________________________________ Darryl Hughes in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness GARY HUGHES ) ________________________________ Gary Hughes in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness HAROLD ASHBURTON ) ___________________________________ Harold Ashburton in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness LILY MACKAY ) ___________________________________ Lily Mackay in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness MAUDIE DOWTON ) ___________________________________ Maudie Dowton in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness MITCHELL DRAGE ) ___________________________________ Mitchell Drage in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness MAURICE DAUBLIN ) ___________________________________ Maurice Daublin in the presence of Signature of Witness Name of Witness (BLOCK LETTERS) Address of Witness _______________________________ Occupation of Witness THIRD SCHEDULE The native title holders are: (1) the descendants of Wirntawari who: (a) identify and are identified by other members of the native title holding group as Muntulgura Guruma ; and (b) have a connection with the land and waters in Determination Area A, in accordance with the traditional laws acknowledged and the traditional customs observed by the Muntulgura Guruma ; and (2) the descendants of Jack Smith to whom the Muntulgura Guruma accord the right to exercise rights and interests in Determination Area A in accordance with the traditional laws acknowledged and traditional customs observed by the Muntulgura Guruma . FOURTH SCHEDULE Section 47B of the Native Title Act 1993 (Cth) applies to the following areas of unallocated Crown land in Determination Area A: (a) UCL 23 (being the area formerly the subject of pastoral lease 3114/788 which was resumed and vested in the Crown pursuant to section 18 of the Public Works Act 1902 (WA)); (b) UCL 85 (part Gregory Location 26 and being the area formerly the subject of special leases 3116/3465 and 3114/5156); (c) UCL 90 (being the area formerly the subject of pastoral lease 3114/788 which was resumed and vested in the Crown pursuant to section 18 of the Public Works Act 1902 (WA)). Those areas of unallocated Crown land are hatched in blue on the maps attached to the First Schedule. AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/365.html


case_outcome: cited

case_text: The next question is whether it appears to be appropriate to make the orders consented to by the parties. As noted by Black CJ in Lota Warria ( on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 at [7], the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. That includes the resolution of native title disputes by mediation and agreement. 9 As in the Poruma and Masig Peoples case, the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area A is common ground and there is evidence to support that connection. Orders may be made under s 87 where the Court is not provided with all of the evidence of the primary facts substantiating native title 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] ).


case_text: As in the Poruma and Masig Peoples case, the requisite continuous physical, spiritual and cultural connection of the Eastern Guruma people with Determination Area A is common ground and there is evidence to support that connection. Orders may be made under s 87 where the Court is not provided with all of the evidence of the primary facts substantiating native title 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] ).


case_outcome: referred to

case_text: In Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491, French J indicated (at [20] [21]) that the expression "unconscionable", in the context of s 51AA , might extend to include, at least, duress and undue influence. However, in GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2001] FCA 1761 ; (2001) 117 FCR 23, Gyles J expressed the more narrow view that the provision did not extend to encompass all equitable grounds of relief in which unconscionable or unconscientious conduct was an element. His Honour considered that the section was instead limited in its reference to the recognised "unconscionable dealing" ground of relief. In the High Court Berbatis decision, Gummow and Hayne JJ noted that they were not required to resolve the conflict between these two views. Accordingly, the issue remains unresolved. See the discussion in Paul Vout (ed), Unconscionable Conduct: The Laws of Australia (2006), [35.9:35]; and Russell V Miller, Miller's Annotated Trade Practices Act : Australian Competition and Consumer Law (2007, 28 th ed), 486.


case_outcome: applied

case_title: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51

case_text: Mr Parncutt's argument was quite simple. He submitted that the conduct alleged against his clients amounted to nothing more than various breaches of contract. He submitted that in order to amount to unconscionable conduct there had to be something more than a mere breach of contract. He referred to a number of authorities, including, in particular, Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447; Australian Competition & Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301; and Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51.


case_title: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301

case_text: Mr Parncutt's argument was quite simple. He submitted that the conduct alleged against his clients amounted to nothing more than various breaches of contract. He submitted that in order to amount to unconscionable conduct there had to be something more than a mere breach of contract. He referred to a number of authorities, including, in particular, Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447; Australian Competition & Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301; and Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. 17 Mr Marantelli's response was equally straightforward. He submitted that the categories of unconscionability were not closed. He argued that the Court should not apply strike out procedures in a way that might stultify the development of the law. He contended that this was a case in which, on the facts as pleaded, not only had the ninth to fifteenth respondents been involved in deliberately causing the first to fifth respondents to breach their contractual obligations, they had also facilitated putting the assets of those first five respondents out of the reach of the applicant. He relied in particular upon HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 , where he submitted Einfeld J had accepted the proposition that a breach of contract alone could give rise to unconscionable conduct. He also placed some reliance upon the decision of the Full Court of the Federal Court in Samton . 19 Following Amadio , there were a number of cases that discussed the doctrine of unconscionability. However, it was not until Samton that the Full Court of the Federal Court held that unconscionability in the context of s 51AA requires conduct to be identified that supports the grant of relief on principles set out in specific equitable doctrines, rather than requiring unconscionability at large.


case_text: Mr Parncutt's argument was quite simple. He submitted that the conduct alleged against his clients amounted to nothing more than various breaches of contract. He submitted that in order to amount to unconscionable conduct there had to be something more than a mere breach of contract. He referred to a number of authorities, including, in particular, Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447; Australian Competition & Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301; and Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. 18 As is well-known, the High Court confirmed the doctrine of unconscionability in Amadio . In that case, Mason J (as his Honour then was) stated (at 461): "But relief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position." 19 Following Amadio , there were a number of cases that discussed the doctrine of unconscionability. However, it was not until Samton that the Full Court of the Federal Court held that unconscionability in the context of s 51AA requires conduct to be identified that supports the grant of relief on principles set out in specific equitable doctrines, rather than requiring unconscionability at large. 22 In Berbatis , the High Court upheld a decision of the Full Court of this Court. It did so on the basis that the facts found fell short of what would attract the operation of the principles expounded in Amadio and therefore a breach of s 51AA could not be established.


case_title: GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Ltd [2001] FCA 1761 ; (2001) 117 FCR 23


case_outcome: discussed

case_text: Mr Marantelli's response was equally straightforward. He submitted that the categories of unconscionability were not closed. He argued that the Court should not apply strike out procedures in a way that might stultify the development of the law. He contended that this was a case in which, on the facts as pleaded, not only had the ninth to fifteenth respondents been involved in deliberately causing the first to fifth respondents to breach their contractual obligations, they had also facilitated putting the assets of those first five respondents out of the reach of the applicant. He relied in particular upon HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 , where he submitted Einfeld J had accepted the proposition that a breach of contract alone could give rise to unconscionable conduct. He also placed some reliance upon the decision of the Full Court of the Federal Court in Samton . 29 Further, I reject the contention that Einfeld J in HECEC held that a breach of contract alone could give rise to unconscionable conduct. The case is replete with references to the economic disadvantage of the applicant as against the respondents who were various government ministers, and State instrumentalities. Mr Marantelli could point to no case in which a mere breach of contract had been held to give rise to unconscionable conduct. That is not surprising. The High Court has made it abundantly clear that there are limits upon the doctrine of unconscionability, and that the term is not to be used simply as a synonym for general unfairness. 30 It was for these reasons that I concluded that the mere allegation that the ninth to fifteenth respondents had caused the first to fifth respondents to breach their contractual obligations to the applicant, and facilitated the sixth to eighth respondents in gaining the benefits of those breaches, could not of itself amount to unconscionable conduct. In effect, all that was alleged against the ninth to fifteenth respondents is that they were responsible, in various ways, for the failure of the first to fifth respondents to comply with the terms of the various licence agreements. 31 There was no suggestion in the further amended statement of claim of any inequality of position, or bargaining power, between the applicant and the ninth to fifteenth respondents. It was also not suggested that the applicant was in a position of special vulnerability. Although it was pleaded that those respondents had been in business with the applicant, it was not suggested that that fact alone gave rise to a fiduciary relationship. Nor was it suggested that the conduct of those respondents amounted to a breach of fiduciary duty. Although it was pleaded that the respondents had extensive knowledge of the business from their involvement in it, it was not suggested that they misused that information when they facilitated the transfer of the business from the first to fifth respondents to the sixth to eighth respondents.