FEDERAL COURT OF AUSTRALIA
Morich v State of Western Australia [2008] FCA 1567
NATIVE TITLE - notice on Court’s own motion to show cause why application should not be dismissed pursuant to s 190F(6) of the Native Title Act (Cth) - where application not likely to be amended in a way that would lead to a different outcome once considered by the Registrar of the Native Title Tribunal - where no other reason why the application should not be dismissed - application dismissed
Native Title Act 1993 (Cth) ss 190A, 190E, 190F(1) and (6)
Explanatory Memorandum to the Native Title Act Amendment Bill 2006
Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
PATRICIA MARGARET MORICH and ORS ON BEHALF OF THE KORENG, MINANG AND WUDJARI PEOPLE v STATE OF WESTERN AUSTRALIA and ORS
WAD 6130 OF 1998
GILMOUR J
13 OCTOBER 2008
PERTH
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 6130 of 1998 |
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BETWEEN: |
PATRICIA MARGARET MORICH AVERIL DEAN BERNARD NOEL MORICH LEONARD GEORGE WILLIAMS LANCEL WILLIAMS TREASY WOODS Applicants
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AND: |
STATE OF WESTERN AUSTRALIA ABERFOYLE RESOURCES LTD BRUCE MUNRO ALFORD ANDIAMO PTY LTD ATTGOLD PTY LTD AUSTRALASIAN CONFERENCE ASSOCIATION LTD AUSTRALIAN MARITIME SAFETY AUTHORITY AUSTRALIAN RED CROSS WA AZTEC MINING CO LTD KIM THOMAS BACK G N BARKER M A BARKER BRIAN WILFRED BARROWS BAY OF ISLES ABORIGINAL CORPORATION DERRICK R BEALE CHRISTOPHER BELTRAMA WAYNE BIRSS MICHAEL JAMES BLYTH IRIS MAUDE BONSHORE BRANCOTE AUSTRALIA NL ANTHONY JAMES BRIDGE CATHERINE HELEN BRYAN THOMAS EDWARD BRYAN MALCOLM JOHN BULLEN RWDV BUSWELL GA BUSWELL RAYMOND JOHN THOMAS BUTLER GREGORY ROBERT CAKE ROBERT LEONARD CAKE PAMELA GRACE CAKE CAMERON FARMS PTY LTD GRAY WILLIAM CARTER IRENE ELIZABETH CARTER BRIAN RICHARD CARTER CITY OF ALBANY J C CLAPIN J A B CLAPIN PETER S CLARKSON COMET RESOURCES NL COMMONWEALTH OF AUSTRALIA JEFFREY FRANK COOKE BARRY EDWARD CRITCHISON MELDA LORRAINE DANIELS STEPHEN ROSS DANIELS DAVICA PTY LTD WILLIAM GEORGE DAVISON CRAIG S DE LANDGRAFFT RACHEL MARY DEWAR KIMBERLEY NEIL DEWAR GARY HAROLD DIENHOFF JAMES EDWARD DIMER G F DREW M J DREW D A DREW ROBERT DESMOND DUNBAR DUSKWOOD PTY LTD MARIE EADES IAN B EDGAR DENISE A EDGAR M C EDSON GORDON KEITH EDSON EQUINOX RESOURCES NL ESPERANCE COMMUNITY NURSING HOME INC ESPERANCE PORT AUTHORITY FALX PTY LTD FORRESTANIA GOLD NL PETER JOHN FULLARTON GASCOYNE GOLD MINES NL HUGH COLIN GILBERT IAN M GOLDFINCH RICHENDA J GOLDFINCH J M GOODWIN C J GOODWIN L G GOODWIN M M GOODWIN P M GREEN A L GREEN K L GREEN ROBIN RAY GREEN RODNEY B GRIFFITHS FRANCES E GRIFFITHS MARGARET W GRIFFITHS GUARDON PTY LTD GWALIA MINERALS NL CORINNE AUDREY HANDASYDE NORMAN ARTHUR HANDASYDE ANN HARTLEY REG HAYDEN RONALD GRAHAM HEBERLE R L HEBERLE CHARLES THOMAS HICK DAVID MARK HICK ANNE OLEVIA HICKS WALTER JOHN HICKS RUSSELL GUY HILDER GRAEME LESLIE HOCKLEY HORIZON MINING & RESOURCES NL HOUSEBOAT HOLIDAYS INTERNATIONAL MINERAL RESOURCES NL ANTONIO ITALIANO CHRISTINE ITALIANO SG IVEY CP IVEY DM IVEY RA IVEY HP IVEY GLEN KELLY J G KELLY GARY JOHN KENNEDY STEVEN CLAUDE KENNEDY COLIN JOHN KENNEDY JEAN MARY KENT GAIL MAREE KENT PETER JOHN KENT ARNOLD WILLIAM KENT KIANA PTY LTD JOAN PATRICIA ANN KING TONY WAYNE KINGDON RHONDA ANN KITSON EDWARD WILLIAM KNIGHT BEVAN CHARLES LAY ROLANDO RONALD LOPRESTI I C LORD ROBERT BRUCE LOWDEN A J LUKINS H M LUKINS P G LYALL B W LYALL MACKENZIE MARINE MAKABA PTY LTD MALLEE ABORIGINAL CORPORATION M R MANGAN IAN MANGAN MANJIMUP ABORIGINAL CORPORATION NEVILLE MANSTED YVETTE RITA MANSTED D K MARTIN R J MARTIN GEOFFREY DAVID MCDONALD MCKERROW HOLDINGS PTY LTD STEPHEN CHARLES MCWHIRTER MAXWELL HUBERT MEADE ENID MEADE JOHN D MOIR PHILLIP JAMES MOORE MPI GOLD PTY LTD MULATABA AQUACULTURE MARK RAYMOND NEAVE DOUG NELSON NOONGAR LAND COUNCIL JEREMY DANIEL NORTH WILLIAM DANIEL NORTH DAVID JOHN PALFREY LYNETTE J PALMER PAN AUSTRALIAN EXPLORATION PTY LTD PAN AUSTRALIAN RESOURCES NL ARNOLD PICCOLI PILBARA NICKEL PTY LTD LESLIE HAMILTON PINNIGER STANISLAV PODGORMY PR & LJ MCMAHON PTY LTD EDWARD ALEXANDER PYLE JOYCE MARY PYLE GRAEME DAVID PYLE M J RAMANAUSKAS F P RAMANAUSKAS B J RASMUSSEN M J RASMUSSEN E L RASMUSSEN RED VALLEY PTY LTD PETER ROBERT REEVES JEAN ELEANOR REID SALLY ANN REYNOLDS RUSSELL GRENELL ROBERTS KEVAN PETER ROBERTS DOUGLAS JAMES ROGERS ROSEBAY COURT PTY LTD ALAN RULE R S RYDING SARBA PTY LTD ALFRED NEWTON SHARP SHIRE OF CRANBROOK SHIRE OF DENMARK SHIRE OF ESPERANCE SHIRE OF JERRAMUNGUP SHIRE OF KATANNING SHIRE OF KENT SHIRE OF KOJONUP SHIRE OF KONDININ SHIRE OF LAKE GRACE SHIRE OF MANJIMUP SHIRE OF PLANTAGENET SHIRE OF RAVENSTHORPE TERRI ELLEN SMART KEITH ADRIAN SMART HELEN J SOULOS NICHOLAS E SOULOS SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION BARRY WALTER SPENCE WAYNE M SPENCER SPRING VALLEY PTY LTD ST ANDREW'S ANGLICAN CHURCH ST JOHN AMBULANCE ASSOCIATION IN WA INC MAURICE IAN STONE PHILLIP ANTHONY STONE M J SUMMERS K M SUMMERS N B SUMMERS J A SUMMERS M E SUMMERS D E SUMMERS SUNLAND PTY LTD SUPERSORB PTY LTD RICHARD NORMAN SWARBRICK D A SYMINGTON B A SYMINGTON TECTONIC RESOURCES LTD TELSTRA CORPORATION LIMITED TENTERDEN AGRICULTURE INSTITUTE INC THE SHELL COMPANY OF AUSTRALIA LIMITED K C THOMAS DAVID JOHN THOMAS B L THOMAS GRAHAM LESLIE THOMPSON GLENYS H TINK MAXWELL E TINK TROTTER NOMINEES PTY LTD TT SAND PTY LTD ROBERT JOHN TUCKER LESLIE TUCKER UNITING CHURCH IN AUSTRALIA WA SYNOD UPESI NOMINEES VAN RIJN P & LA & SON K E WAITE DEXTER MICHAEL WARNE SHIRLEY MAY WARNE PETER WARRILON WEIRLAMUN ABORIGINAL CORPORATION LEONARD GEOFFORY NEIL WELLSTEAD G WELLSTEAD J J WELLSTEAD WESTERN AUSTRALIA FISHING INDUSTRY COUNCIL (INC) WESTRALIAN SHELLS RODERICK P WHEATCROFT WIESE NOMINEES PTY LTD MICHAEL ROSS WILLIAMS BARRY ARTHUR WILLIAMSON VILMA CHRISTINA WILLOUGHBY BRIAN GEORGE WILLOUGHBY LACHLIN SAMUEL KERR WILSON WILSON DIVING CO FAMILY TRUST WILSON DIVING CO PTY LTD WONGATHA-CAPS DEVELOPMENTS INC GRAHAM DAVID WORMUN EMILY MAY WORMUN SUSAN ROSE WYATT WALTER ZORZI ERIC ZORZI Respondents
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GILMOUR J |
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DATE OF ORDER: |
13 OCTOBER 2008 |
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WHERE MADE: |
PERTH |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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WESTERN AUSTRALIA DISTRICT REGISTRY |
WAD 6130 of 1998 |
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BETWEEN: |
PATRICIA MARGARET MORICH AVERIL DEAN BERNARD NOEL MORICH LEONARD GEORGE WILLIAMS LANCEL WILLIAMS TREASY WOODS Applicants
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AND: |
STATE OF WESTERN AUSTRALIA ABERFOYLE RESOURCES LTD BRUCE MUNRO ALFORD ANDIAMO PTY LTD ATTGOLD PTY LTD AUSTRALASIAN CONFERENCE ASSOCIATION LTD AUSTRALIAN MARITIME SAFETY AUTHORITY AUSTRALIAN RED CROSS WA AZTEC MINING CO LTD KIM THOMAS BACK G N BARKER M A BARKER BRIAN WILFRED BARROWS BAY OF ISLES ABORIGINAL CORPORATION DERRICK R BEALE CHRISTOPHER BELTRAMA WAYNE BIRSS MICHAEL JAMES BLYTH IRIS MAUDE BONSHORE BRANCOTE AUSTRALIA NL ANTHONY JAMES BRIDGE CATHERINE HELEN BRYAN THOMAS EDWARD BRYAN MALCOLM JOHN BULLEN RWDV BUSWELL GA BUSWELL RAYMOND JOHN THOMAS BUTLER GREGORY ROBERT CAKE ROBERT LEONARD CAKE PAMELA GRACE CAKE CAMERON FARMS PTY LTD GRAY WILLIAM CARTER IRENE ELIZABETH CARTER BRIAN RICHARD CARTER CITY OF ALBANY J C CLAPIN J A B CLAPIN PETER S CLARKSON COMET RESOURCES NL COMMONWEALTH OF AUSTRALIA JEFFREY FRANK COOKE BARRY EDWARD CRITCHISON MELDA LORRAINE DANIELS STEPHEN ROSS DANIELS DAVICA PTY LTD WILLIAM GEORGE DAVISON CRAIG S DE LANDGRAFFT RACHEL MARY DEWAR KIMBERLEY NEIL DEWAR GARY HAROLD DIENHOFF JAMES EDWARD DIMER G F DREW M J DREW D A DREW ROBERT DESMOND DUNBAR DUSKWOOD PTY LTD MARIE EADES IAN B EDGAR DENISE A EDGAR M C EDSON GORDON KEITH EDSON EQUINOX RESOURCES NL ESPERANCE COMMUNITY NURSING HOME INC ESPERANCE PORT AUTHORITY FALX PTY LTD FORRESTANIA GOLD NL PETER JOHN FULLARTON GASCOYNE GOLD MINES NL HUGH COLIN GILBERT IAN M GOLDFINCH RICHENDA J GOLDFINCH J M GOODWIN C J GOODWIN L G GOODWIN M M GOODWIN P M GREEN A L GREEN K L GREEN ROBIN RAY GREEN RODNEY B GRIFFITHS FRANCES E GRIFFITHS MARGARET W GRIFFITHS GUARDON PTY LTD GWALIA MINERALS NL CORINNE AUDREY HANDASYDE NORMAN ARTHUR HANDASYDE ANN HARTLEY REG HAYDEN RONALD GRAHAM HEBERLE R L HEBERLE CHARLES THOMAS HICK DAVID MARK HICK ANNE OLEVIA HICKS WALTER JOHN HICKS RUSSELL GUY HILDER GRAEME LESLIE HOCKLEY HORIZON MINING & RESOURCES NL HOUSEBOAT HOLIDAYS INTERNATIONAL MINERAL RESOURCES NL ANTONIO ITALIANO CHRISTINE ITALIANO SG IVEY CP IVEY DM IVEY RA IVEY HP IVEY GLEN KELLY J G KELLY GARY JOHN KENNEDY STEVEN CLAUDE KENNEDY COLIN JOHN KENNEDY JEAN MARY KENT GAIL MAREE KENT PETER JOHN KENT ARNOLD WILLIAM KENT KIANA PTY LTD JOAN PATRICIA ANN KING TONY WAYNE KINGDON RHONDA ANN KITSON EDWARD WILLIAM KNIGHT BEVAN CHARLES LAY ROLANDO RONALD LOPRESTI I C LORD ROBERT BRUCE LOWDEN A J LUKINS H M LUKINS P G LYALL B W LYALL MACKENZIE MARINE MAKABA PTY LTD MALLEE ABORIGINAL CORPORATION M R MANGAN IAN MANGAN MANJIMUP ABORIGINAL CORPORATION NEVILLE MANSTED YVETTE RITA MANSTED D K MARTIN R J MARTIN GEOFFREY DAVID MCDONALD MCKERROW HOLDINGS PTY LTD STEPHEN CHARLES MCWHIRTER MAXWELL HUBERT MEADE ENID MEADE JOHN D MOIR PHILLIP JAMES MOORE MPI GOLD PTY LTD MULATABA AQUACULTURE MARK RAYMOND NEAVE DOUG NELSON NOONGAR LAND COUNCIL JEREMY DANIEL NORTH WILLIAM DANIEL NORTH DAVID JOHN PALFREY LYNETTE J PALMER PAN AUSTRALIAN EXPLORATION PTY LTD PAN AUSTRALIAN RESOURCES NL ARNOLD PICCOLI PILBARA NICKEL PTY LTD LESLIE HAMILTON PINNIGER STANISLAV PODGORMY PR & LJ MCMAHON PTY LTD EDWARD ALEXANDER PYLE JOYCE MARY PYLE GRAEME DAVID PYLE M J RAMANAUSKAS F P RAMANAUSKAS B J RASMUSSEN M J RASMUSSEN E L RASMUSSEN RED VALLEY PTY LTD PETER ROBERT REEVES JEAN ELEANOR REID SALLY ANN REYNOLDS RUSSELL GRENELL ROBERTS KEVAN PETER ROBERTS DOUGLAS JAMES ROGERS ROSEBAY COURT PTY LTD ALAN RULE R S RYDING SARBA PTY LTD ALFRED NEWTON SHARP SHIRE OF CRANBROOK SHIRE OF DENMARK SHIRE OF ESPERANCE SHIRE OF JERRAMUNGUP SHIRE OF KATANNING SHIRE OF KENT SHIRE OF KOJONUP SHIRE OF KONDININ SHIRE OF LAKE GRACE SHIRE OF MANJIMUP SHIRE OF PLANTAGENET SHIRE OF RAVENSTHORPE TERRI ELLEN SMART KEITH ADRIAN SMART HELEN J SOULOS NICHOLAS E SOULOS SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION BARRY WALTER SPENCE WAYNE M SPENCER SPRING VALLEY PTY LTD ST ANDREW'S ANGLICAN CHURCH ST JOHN AMBULANCE ASSOCIATION IN WA INC MAURICE IAN STONE PHILLIP ANTHONY STONE M J SUMMERS K M SUMMERS N B SUMMERS J A SUMMERS M E SUMMERS D E SUMMERS SUNLAND PTY LTD SUPERSORB PTY LTD RICHARD NORMAN SWARBRICK D A SYMINGTON B A SYMINGTON TECTONIC RESOURCES LTD TELSTRA CORPORATION LIMITED TENTERDEN AGRICULTURE INSTITUTE INC THE SHELL COMPANY OF AUSTRALIA LIMITED K C THOMAS DAVID JOHN THOMAS B L THOMAS GRAHAM LESLIE THOMPSON GLENYS H TINK MAXWELL E TINK TROTTER NOMINEES PTY LTD TT SAND PTY LTD ROBERT JOHN TUCKER LESLIE TUCKER UNITING CHURCH IN AUSTRALIA WA SYNOD UPESI NOMINEES VAN RIJN P & LA & SON K E WAITE DEXTER MICHAEL WARNE SHIRLEY MAY WARNE PETER WARRILON WEIRLAMUN ABORIGINAL CORPORATION LEONARD GEOFFORY NEIL WELLSTEAD G WELLSTEAD J J WELLSTEAD WESTERN AUSTRALIA FISHING INDUSTRY COUNCIL (INC) WESTRALIAN SHELLS RODERICK P WHEATCROFT WIESE NOMINEES PTY LTD MICHAEL ROSS WILLIAMS BARRY ARTHUR WILLIAMSON VILMA CHRISTINA WILLOUGHBY BRIAN GEORGE WILLOUGHBY LACHLIN SAMUEL KERR WILSON WILSON DIVING CO FAMILY TRUST WILSON DIVING CO PTY LTD WONGATHA-CAPS DEVELOPMENTS INC GRAHAM DAVID WORMUN EMILY MAY WORMUN SUSAN ROSE WYATT WALTER ZORZI ERIC ZORZI Respondents
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JUDGE: |
GILMOUR J |
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DATE: |
13 OCTOBER 2008 |
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PLACE: |
PERTH |
REASONS FOR JUDGMENT
1 On 13 October 2008 ex tempore reasons were given for dismissing the application. The following are edited reasons.
BACKGROUND
2 On 10 September 2007 a delegate of the Native Title Registrar decided pursuant to s 190A of the Native Title Act 1993 (Cth) (Native Title Act) not to accept the application for registration.
3 It was not submitted nor was there any evidence to suggest that since failing the registration test the Applicant has either applied to the National Native Tribunal pursuant to s 190E(1) of the Native Title Act for reconsideration of the Delegates decision or applied to the Court pursuant to s 190F(1) of the Native Title Act for the review of that decision.
4 In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court’s decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application.
SECTION 190F(6) - Should the application be dismissed?
5 In this matter, the criteria under s 190F(6)(a) of the Native Title Act have been satisfied and the question is whether or not, in the opinion of the Court, there is no other reason why the application in issue should not be dismissed (s 190F(6)(b)).
6 No affidavits have been filed by the Applicant, although the Court has the benefit of written submissions and I have proceeded on the basis that those written submissions were either affirmed or deposed to in order to attest, at least in a preliminary way, whether or not there is another reason or reasons why the application should not be dismissed. The submissions refer to a number of matters and I will deal with them separately.
7 First it is said that a combination of Aboriginal politics and discrimination within the Aboriginal community has limited the provision of legal assistance and the progress of the claim. Second, ongoing changes to the Native Title Act over the years and the lack of legal representation have made it almost impossible to progress the claim. Third, the Applicants are concerned about the late meeting arranged by the Tribunal and held by the South-West Aboriginal Land and Sea Council on 5 May 2008 in Albany, which left them with one day to provide submissions to the Court in compliance with the orders of the Court. Fourth, the applicants know, they say, that their ancestors have never given away their rights to the land and waters within their traditional lands, along with the fact that their lands were taken by forcible means or genocide. Fifth, they have recorded 15 massacre sites within the claim area that were sanctioned, they say, by the government of the day. Sixth, the collection of research data to substantiate the claim has been, it is submitted, marred by the explicit details of atrocities committed against their ancestors. Seventh, representatives of the Wom‑ber claimant group have expressed their willingness to continue mediation with the South West Aboriginal Land and Sea Council in order to progress the amalgamation of all three overlapping claims if agreed to by all other claimant groups. Eighth, the Applicants have discussed the prospect of an amendment to the original claim in the major area along with the preference of becoming a party to the other claims which the original Wom-ber land claim covers.
8 Lastly, in a statement by the Applicants they state, amongst other things, that recent research conducted on the Wom-ber group demonstrates a connection to 12 families of the biological descendants of named persons on which thenative description of the Wagyl Kaip/Southern Noongar claim group is formulated and they reserve the right to seek the assistance of the worldwide press if their claim is rejected by the Federal Court process. The Applicants also state that no one person or government official or organisation has the right to remove their claim to land and waters against their wishes and that they wish to have the right to claim their heritage.
9 The Wom-ber applicants’ submissions purport to raise a number of matters for consideration pursuant to s 190F(6)(b) of the Native Title Act as to whether, in the opinion of the Court, there is no other reason why the application should not be dismissed. The Explanatory Memorandum to the NTA Amendment Bill 2006 states that the criterion set out in paragraph 190F(6)
... will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered.
10 By way of example, the Explanatory Memorandum suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (para 4.331).
11 The Wom-ber claim overlaps various other underlying claims. The Wom-ber applicants have proposed to remedy those overlaps by combining with the underlying claims or merging with the unregistered Single Noongar claim #1 application. On the materials before me, it appears, that proposals of that kind have been mooted from time to time over many years without coming to fruition.
12 Even if the remaining matters raised in the Wom-ber applicants’ submissions were addressed within a reasonable timeframe, and there does not appear to be anything in the materials to suggest that that is the case, it is unlikely that the application will be quickly resolved. In this regard, I am mindful of the long procedural history of this matter which is usefully summarised at page 6 by the Delegate in the Native Title Registrar’s reasons for decision.
13 In these circumstances, the submissions, even assuming that they had been put in the form of affidavit evidence, do not constitute a good reason why this application should not be dismissed. It should also be borne in mind that a dismissal of this application will not prejudice the rights of the claim group to be part of another native title claim or to lodge a further application when the connection research process has been completed. In my opinion, the application should therefore be dismissed and I so order.
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I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. |
Associate:
Dated: 21 October 2008
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Solicitor for the Applicants: |
No appearance |
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Solicitor for the State of Western Australia: |
Mr G J Ranson |
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Goldfields Land and Sea Council |
Ms S Phillips |
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West Australian Fishing Industry Council |
Ms M Watts |
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Commonwealth of Australia |
Ms S Oliver |
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Date of Hearing: |
13 October 2008 |
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Date of Judgment: |
13 October 2008 |
