FEDERAL COURT OF AUSTRALIA

 

Holborow v State of Western Australia [2009] FCA 1200

NATIVE TITLE - application under O 20 r 4 Federal Court Rules (FCR) for summary dismissal – issue estoppel – earlier determination by Court that native title claimants could not establish connection – whether ultimate ‘findings’ made in earlier determination – whether same issue had been decided – whether the parties to the determination were the same

PRACTICE AND PROCEDURE – principles applicable to an application under O 20 r 4 FCR for summary dismissal

 

 

Federal Court of Australia Act 1976 (Cth) s 31A

Native Title Act 1993 (Cth) ss 13(1), 61, 61A(2), 84C, 84(5), 86, 85A, 223, 223(1)

Federal Court Rules O 20 r 2, O 20 r 4 

Australian Building Industries Pty Ltd v Stramit Corporation Limited & Anor [1997] FCA 1318

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1

Blair v Currun (1939) 62 CLR 464

Bodney v Bropho (2004) 140 FCR 77

Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships Limited [1947] AC 46

Carl Zeiss Stiftung v Rayner & Keeler Ltd [No.2] [1967] 1 AC 853

Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322

Dale v Moses [2007] FCAFC 82

Daniel v State of Western Australia [2003] FCA 666

Daniel v Western Australia [2005] FCA 536

De Rose v South Australia (No 2) (2005) 145 FCR 290

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16

Egri v DRG Australia Ltd (1988) 19 NSWLR 600

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537

Kokatha Native Title Claim v South Australia (2005) 143 FCR 544

Kuligowski v Metrobus (2004) 220 CLR 363

Lancee v Willert [2008] WASCA 120

Lombardo v Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159

Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637

Moses v Western Australia (2007) 160 FCR 148

Munn v State of Queensland [2002] FCA 486

North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595

Phillips v State of Western Australia [2000] FCA 1274

Quall v Northern Territory of Australia [2009] FCA 18

Risk (on behalf of Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) (2007) 240 ALR 75

Risk v Northern Territory of Australia [2006] FCA 404

Rubibi Community v Western Australia (2002) 120 FCR 512

Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686

Squires Transport Pty Ltd v Turnor [2004] WASCA 245

Supreme Court of the United States in Cromwell v County of Sac (1876) 94 US 351

Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342

Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185

Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967

Webster v Lampard (1993) 177 CLR 598

Williams v Grant [2004] FCAFC 178

Wyatt v MR and RC Smith Pty Ltd [2008] WASCA 55

VALERIE HOLBOROW (NEE COSMOS), KEVIN KELVIN COSMOS and ROBERT BOONA v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, SHIRE OF ROEBOURNE, BHP PETROLEUM PTY LTD, EAST COAST MINERALS NL, MINERALOGY PTY LTD, DONALD KIMBERLEY NORTH, HAMERSLEY IRON PTY LTD, BORAL CONTRACTING PTY LTD, BORAL RESOURCES (WA) LTD, ROBE RIVER MINING CO PTY LTD, YALLEEN PASTORAL COMPANY PTY LTD, APACHE NORTHWEST PTY LTD, WOODSIDE OFFSHORE PETROLEUM PTY LTD, FLORENCE MERILYN ADAMS, TERENCE JOHN ADAMS, MG KAILIS GULF FISHERIES PTY LTD, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC), EXMOUTH PEARLS PTY LTD, JEAN LOCKYER & ORS FOR THE KURAMA/MARTHUDUNERA PEOPLE (WAD 6090/98) and TELSTRA CORPORATION LIMITED

WAD 127 of 1997

 

MCKERRACHER J

23 October 2009

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 127 of 1997

 

BETWEEN:

VALERIE HOLBOROW (NEE COSMOS) KEVIN KELVIN COSMOS ROBERT BOONA Applicants

AND:

STATE OF WESTERN AUSTRALIA First Respondent   COMMONWEALTH OF AUSTRALIA Second Respondent   SHIRE OF ROEBOURNE Third Respondent   BHP PETROLEUM PTY LTD Fifth Respondent   EAST COAST MINERALS NL, MINERALOGY PTY LTD, DONALD KIMBERLEY NORTH Sixth Respondents   HAMERSLEY IRON PTY LTD Respondent 6B   BORAL CONTRACTING PTY LTD BORAL RESOURCES (WA) LTD Respondents 6C   ROBE RIVER MINING CO PTY LTD YALLEEN PASTORAL COMPANY PTY LTD Respondents 6D   APACHE NORTHWEST PTY LTD Respondent 7A   WOODSIDE OFFSHORE PETROLEUM PTY LTD Eighth Respondent   FLORENCE MERILYN ADAMS, TERENCE JOHN ADAMS, MG KAILIS GULF FISHERIES PTY LTD, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) Ninth Respondents   EXMOUTH PEARLS PTY LTD Twelfth Respondent   JEAN LOCKYER & ORS FOR THE KURAMA/MARTHUDUNERA PEOPLE (WAD 6090/98) Fourteenth Respondents   TELSTRA CORPORATION LIMITED Nineteenth Respondent

 

JUDGE:	MCKERRACHER J
DATE OF ORDER:	23 October 2009
WHERE MADE:	PERTH

 

THE COURT ORDERS THAT:

 

1.         The State of Western Australia’s motion be allowed.

2.         The Ngarluma People’s motion for joinder of parties be adjourned, with liberty to apply.

3.         There will be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 127 of 1997

 

BETWEEN:

VALERIE HOLBOROW (NEE COSMOS) KEVIN KELVIN COSMOS ROBERT BOONA Applicants

AND:

STATE OF WESTERN AUSTRALIA First Respondent   COMMONWEALTH OF AUSTRALIA Second Respondent   SHIRE OF ROEBOURNE Third Respondent   BHP PETROLEUM PTY LTD Fifth Respondent   EAST COAST MINERALS NL, MINERALOGY PTY LTD, DONALD KIMBERLEY NORTH Sixth Respondents   HAMERSLEY IRON PTY LTD Respondent 6B   BORAL CONTRACTING PTY LTD BORAL RESOURCES (WA) LTD Respondents 6C   ROBE RIVER MINING CO PTY LTD YALLEEN PASTORAL COMPANY PTY LTD Respondents 6D   APACHE NORTHWEST PTY LTD Respondent 7A   WOODSIDE OFFSHORE PETROLEUM PTY LTD Eighth Respondent   FLORENCE MERILYN ADAMS, TERENCE JOHN ADAMS, MG KAILIS GULF FISHERIES PTY LTD, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) Ninth Respondents   EXMOUTH PEARLS PTY LTD Twelfth Respondent   JEAN LOCKYER & ORS FOR THE KURAMA/MARTHUDUNERA PEOPLE (WAD 6090/98) Fourteenth Respondents   TELSTRA CORPORATION LIMITED Nineteenth Respondent

 

JUDGE:	MCKERRACHER J
DATE:	23 october 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1                          The first respondent (the State) applies by motion for orders that the Yaburara/Mardudhunera native title determination application be dismissed over the townsites of Karratha and Dampier (the application).  The technical descriptions of these towns are annexed as ‘A’ and ‘B’ respectively to these reasons.  The application is pursued under O 20 r 4 of the Federal Court Rules (FCR) on the basis that no reasonable cause of action is disclosed.  The application regarding Dampier is also based on s 84C of the Native Title Act 1993 (Cth) (NTA) on the ground that the application does not comply with s 61A(2) NTA. 

2                          At the hearing of the application, counsel for the Yaburara/Mardudhunera made it clear that the Yaburara/Mardudhunera no longer pursue the determination of native title over the townsite of Dampier.  That leaves the townsite of Karratha for consideration.  It also raises the question of what should be done in respect of the presently existing application for native title over the townsite of Dampier. 

MOTION FOR JOINDER OF PARTIES

3                          In addition to the State’s motion for dismissal, there is a notice of motion for joinder of parties to these proceedings.  The motion is brought by Violet Samson, Pansy Hicks, Norman Smith, Jim Fredericks, Max Sambo, Kerry Churnside and John Wedge representing the Ngarluma People who are also the applicant in matter WAD 165 of 2008 (the Ngarluma Townsites Claim).

4                          The Court has power to join any person as a party to proceedings if it satisfied that the person has an interest that may be affected by a determination in the proceedings and that it is in the interests of justice to do so (s 84(5) NTA).  The assertion of native title rights may provide a sufficient basis for allowing respondent party status:  Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 (Kokatha).  Further, a member of a claimant community asserting a competing communal native title right and interest which is inconsistent with substantive native title rights and interests being asserted in the claim may be joined as a respondent under s 84(5) NTA:  Rubibi Community v Western Australia (2002) 120 FCR 512 (Rubibi).

5                          The Ngarluma People contend that their joinder will ensure that their interests would not be adversely affected by a determination in the proceedings without the Ngarluma People having the opportunity to be heard.  It would also enable all matters in dispute arising from competing native title claims to the area to be adjudicated upon within the same proceeding if required (Rubibi at [9]).  As there can be only one determination of native title over a particular area, those who claim to be entitled to such rights should be able to become a party to a claim in which the rights may be determined (Munn v State of Queensland [2002] FCA 486 per Emmett J.

6                          Of particular significance to the Yaburara/Mardudhunera claim is the fact that native title has already been determined in favour of the Ngarluma People in the surrounding area.  A claim lodged on behalf of the Ngarluma and Yindjibarndi Peoples was lodged with the National Native Title Tribunal (NNTT) on 27 July 1994 and transferred to this Court on 21 November 1996.  The Yaburara/Mardudhunera claim was subsequently lodged with the NNTT on 1 August 1996 and transferred to this Court on 7 November 1997.  There was a substantial overlap between the Yaburara/Mardudhunera claim and the Ngarluma/Yindjibarndi claim.  In the course of the Ngarluma/Yindjibarndi proceedings orders were made by Nicholson J that so much of the Yaburara/Mardudhunera claim that overlapped with the Ngarluma/Yindjibarndi application be heard as part of the same proceedings as the Ngarluma/Yindjibarndi application. 

7                          The underlying reasons supporting most aspects of the claim at first instance are to be found in the extensive decision of Daniel v Western Australia [2003] FCA 666, determined on 3 July 2003 (Daniel).

8                          The four townsites of Karratha, Dampier, Point Samson and Wickham were omitted from the original Ngarluma/Yindjibarndi claim and were therefore not included in the determination but native title in the area surrounding the townsites of Point Samson, Wickham and Karratha was determined as being held by the Ngarluma People.  When making a determination of native title in favour of the Ngarluma People and the Yindjibarndi People, Nicholson J also dismissed that part of the Yaburara/Mardudhunera claim that overlapped the Ngarluma/Yindjibarndi claim.  As there was no direct overlap between the two claimants in respect of the townsites’ area, there has been no specific determination at the precise location of Karratha. 

9                          The Yaburara/Mardudhunera claim (subject to amendment by deletion of Dampier), covers two of the four townsites (Karratha and Dampier) as well as a substantial further area which does not presently fall for consideration in the State’s application. 

10                        The Ngarluma People are entitled to be joined as respondents.  However, in light of my intended disposition of the summary judgment motion, I will make no order at this stage joining the Ngarluma People.  The position can be reviewed should their motion be maintained.  For the present, I will adjourn the motion with liberty to apply. 

The argument on the issue estoppel point

11                        It is important to appreciate the precise argument on the issue estoppel point.  The State argues that: 

·          the Yaburara/Mardudhunera People are estopped from raising the argument that they hold native title to Dampier as Yaburara People or descendents of the Yaburara People;

·          the Yaburara/Mardudhunera have no other basis for claiming in respect of Dampier other than as Yaburara People or descendants of the Yaburara People; and

·          an issue estoppel is raised because of key findings made by Nicholson J in Daniel concerning the Yaburara People.  (emphasis added)

12                        The alternative position of the State is that it is highly implausible that the Yaburara/Mardudhunera People could establish native title over Dampier given that Nicholson J found in Daniel and determined in Daniel v State of Western Australia [2005] FCA 536 (Daniel Determination) that native title does not exist on the Burrup peninsula which surrounds Dampier on all sides.

13                        Accordingly, the State argues that the Yaburara/Mardudhunera claim also discloses no reasonable cause of action over Karratha because of findings made by his Honour in Daniel and reflected in the DanielDetermination to the effect that native title to the Ngarluma area surrounding Karratha is held only by the Ngarluma People.  His Honour held that the Yaburara/Mardudhunera People do not hold native title to the area surrounding Karratha and dismissed their claim to this extent in the Daniel Determination (Order 24). 

THE CLAIM

14                        In Yaburara/Mardudhunera’s outline of case filed on 23 October 1998, the boundaries of the claim area were illustrated by reference to a map and a description of the boundaries within the longitude and latitude coordinates there described. 

15                        For present purposes it is not necessary to identify with precision the detail of the area of the claim.  It suffices to say that the claim included the Dampier townsite, the Karratha townsite, an area seaward to the west and the north of those townsites and substantially to the south.  In total, the area was some hundreds of square kilometres and very substantially more than the two townsites mentioned.  It was said that the land and waters claimed were part of the traditional homelands of the Yaburara and Mardudhunera Peoples; that the ancestors of the Yaburara and the Mardudhunera Peoples, both at the time of sovereignty and the time of contact with various Europeans in the 1800s occupied and resided on the land claimed; camped on it; travelled over it; travelled over the waters; hunted on the land; fished in the waters; foraged for food on the land claimed and for shellfish on the edge of the waters claimed; quarried and knapped stoned on the land claimed; dug for ochre on the land claimed; made tools and weapons with raw materials found on the land claimed; made shelters on the land claimed from raw materials found on the land claimed; educated and guided their children with regard to ownership of the land and other matters; placed etchings and paintings of cultural significance on the rocks and trees on the land claimed; conducted ceremonies and rituals with regard to the birth and death and different life stages of members of the society; enjoyed recreation on the land and waters claimed; created and maintained sites of spiritual and cultural importance; cared for and maintained the land the subject of the claim; prepared medicines and religious artefacts from materials found on the land; used the Yaburara and the Mardudhunera languages which belonged exclusively to the area; gave names to landmarks on the land claimed in the Yaburara and Mardudhunera languages; asserted ownership of the land and waters claimed as against members of other language groups; resisted invasion and settling of the claimed land and waters by Europeans; conducted trade and commerce with other language groups around the claimed land and waters; and burned the land claimed for hunting and other reasons.  In the following year certain amendments were made to the claim area and other features of the claim. 

16                        It is to be noted that although the original claim relies upon connections to the claim area held by both the Yaburara People and the Mardudhunera People, the manner in which the case was presented in Daniel was somewhat different.  As will be seen from the summaries of evidence and findings appearing below, in Daniel essentially the claim in relation to the Burrup was pursued on behalf of the Mardudhunera People who claimed their link to the land through the Yaburara People.  That claim failed as Nicholson J found in Daniel that the Yaburara People or any other group were not in occupation of the Burrup beyond a period early in the Twentieth Century.  The State argues that no other basis has been advanced to support the Yaburara claim in Daniel.  

17                        It is unclear whether the balance of the overlap area was claimed by the Yaburara/Mardudhunera People as Yaburara or Mardudhunera or partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera.  Nevertheless, Nicholson J observed at [352] of Daniel that those of the Yaburara/Mardudhunera who claimed to be Yaburara had not established that to be the case and that evidence supported the view that the Yaburara/Mardudhunera claimed as Mardudhunera.  Nicholson J then went on to consider whether the Yaburara/Mardudhunera, being Mardudhunera, had continuity as a group since sovereignty.  At [375] and [501] Nicholson J found that although the Mardudhunera group had held the requisite continuity since sovereignty, the evidence did not establish that the Mardudhunera had exercised the remaining two rights found to be presently observable continuously back to sovereignty.  On that basis, Nicholson J found that no requisite connection was established and that even if they had connection at the time of sovereignty, it had not survived the passage of time.  The State contends that it would be inherently implausible that, within the relatively small area of the townsite of Karratha, the situation were somehow different from the entirety of the area surrounding Karratha and which was closely examined in Daniel.

CONCESSION CONCERNING DAMPIER

18                        Counsel for the Yaburara/Mardudhunera conceded that the Dampier townsite could not be claimed primarily on the second ground when, in the course of argument, he said:

We maintain the position that if it is true that the special leases over the townsite at [Dampier] alienate the land, then it brings within the exception that appears in our claim and it’s not claimed.  So we would invite your Honour, in the light of my friend’s evidence and in the absence of our opposition and subject to whatever else might be said to you, to find accordingly that that land is alienated, and that would then take it clearly out of our claim.

19                        While the concession of counsel was confined to the alternative basis raised by the State pursuant to s 84C NTA, for the reasons which follow and which are primarily directed to the Karratha townsite (although to some extent distinguishing between small locations on the European boundary bases is artificial), I would have reached the same conclusion in respect of Dampier, not only on the secondary argument of the State but also on the primary argument as I did in relation to Karratha.

PRINCIPLES GOVERNING DISMISSAL

20                        The application by the State is made pursuant to O 20 r 4 FCR which is in the following terms:

4          Stay or dismissal (proceedings commenced before 1 December 2005)

(1)        This rule applies to a proceeding commenced before 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:

(a)        no reasonable cause of action is disclosed; or

(b)        the proceeding or claim is frivolous or vexatious; or

(c)        the proceeding or claim is an abuse of the process of the Court.

(2)        The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.

(3)        The Court may receive evidence on the hearing of an application for an order under subrule (2).

21                        Those terms are substantially similar to O 20 r 2 FCR which was repealed in the amendments to the Rules made in 2007.  There is no reason to believe that the principles applicable to the current form of the Rule are any different from those applying to the Rule in its previous terms.  No party has suggested otherwise. 

22                        The amendment to the Rules occurred on the introduction of the provisions for summary judgment contained in s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA).  That section lowered the bar for summary dismissal but it is important to note in these proceedings that it is O 20 r 4 FCR which is the basis of the State’s motion.  That is the appropriate provision because the Yaburara/Mardudhunera claim was lodged with the Registrar of the NNTT on 1 August 1996.  It was transferred to this Court on 10 November 1997.  Such an application is a proceeding in the Federal Court (s 13(1) and s 61 NTA and Phillips v State of Western Australia [2000] FCA 1274 at [8]). 

APPROPRIATE PRINCIPLES FOR DETERMINING WHETHER ‘NO CAUSE OF ACTION’ IS DISCLOSED

23                        The principles are well established and warrant repetition only to reinforce the high level that is to be satisfied in a motion such as the present.  The principles are conveniently collected in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J (as his Honour then was) and in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 128-130.  From the principles there stated it is clear that no court proceeding should be summarily dismissed except in a very clear case.  The General Steel test as explained by Barwick CJ at 129 is that:

The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

24                        If there is a real question of fact or law to be determined and the rights of the parties depend upon it, a proceeding should not be summarily dismissed.  

25                        It does not follow from this collection of principles that it is only in blindingly obvious cases that summary dismissal should be ordered.  The fact that detailed argument may be necessary to highlight the basis of the contention should not be determinative of the issue. 

26                        The High Court reiterated over forty years later in Webster v Lampard (1993) 177 CLR 598 (Mason CJ, Deane and Dawson JJ) (at 602) that:

The power to order summary judgment must be exercised with "exceptional caution" … and “should never be exercised unless it is clear that there is no real question to be tried”.

27                        The Court should have regard to the version of facts most favourable to the applicant but this does not mean that every fact pleaded has to be accepted.  Were it otherwise, an issue estoppel argument could never be relied upon (and it has), to justify summary dismissal. 

28                        The summary judgment principles have been applied in the context of native title determinations on a number of occasions.  In Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 Wilcox J dismissed proceedings for lack of authorisation (at [44]-[48]).  In Williams v Grant [2004] FCAFC 178 the Full Court (North, Dowsett and Lander JJ) (at [48]-[49] also on an authorisation basis); Bodney v Bropho (2004) 140 FCR 77 (at 88-89, at [50]-[51] where Stone J examined the Senate debate on the topic of summary judgment); Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967 (at [17]-[18] again for lack of authorisation); and Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185 (at [8] and, again, for lack of authorisation). 

29                        Most recently in Quall v Northern Territory of Australia [2009] FCA 18 the claim was struck out for reasons which will be examined below in more detail but are presently pertinent. 

ISSUE ESTOPPEL

30                        The leading case remains Blair v Currun (1939) 62 CLR 464.  Dixon J at (531-532) said of issue estoppel that:

A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.  The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be constrained or that rights be declared. (emphasis added)

In other words, an issue estoppel is created in relation to any issue of fact or law that is legally indispensable to a prior decision involving the same parties. 

31                        In Carl Zeiss Stiftung v Rayner & Keeler Ltd [No.2] [1967] 1 AC 853, Lord Guest noted that the doctrine of issue estoppel had been accepted by Australian courts for a number of years and indicated that, for the doctrine to apply in a later set of proceedings, the requirements were:

(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

Quall

32                        Before considering the application of those principles in a number of cases, it is necessary to consider a recent similar case.  In the recent decision of Quall [2009] FCA 18, an order similar to that now sought was made by Reeves J.  In Risk v Northern Territory of Australia [2006] FCA 404 (Risk), parts of native title determination applications relating to a particular area near Darwin described as being ‘Area A’ had been consolidated into one set of proceedings.  The second native title applicant in those proceedings, Mr Quall (on behalf of the Danggalaba and Kulumbiringin People), alleged the existence of a particular Aboriginal society that held native title.  However, Mansfield J held, (as did Nicholson J in this case) that a different society to the one alleged by Mr Quall was the relevant society which held native title at sovereignty.  His Honour held that society had ceased to hold native title due to a ‘substantial interruption’ in the observance of traditional laws and customs in the Twentieth Century.  Claims over Area A were therefore dismissed. 

33                        On the motion before Reeves J the Northern Territory applied to dismiss the balance of the Quall native title application.  The balance of that application related to an area of land termed Area B.  It was not the land which had been the subject of dismissal in Risk. 

34                        Mr Quall argued the existence of the same society as asserted in Risk (as the Yaburara/Mardudhunera are arguing in this proceeding) and alternatively, the existence of another different society that he had not asserted in Risk but he had asserted unsuccessfully on appeal in Risk (on behalf of Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) (2007) 240 ALR 75. 

35                        It was held that to the extent the applicants relied on the same society they had asserted in Risk in relation to Area A, they were estopped from doing so because the continued existence of that society had been determined adversely and therefore there was an issue estoppel.  His Honour also held that to the extent that the applicants proposed to rely on a different society to that asserted in Risk, they were also estopped from doing so because the society ‘issue’ had been determined (adversely against them, in effect, in Risk) (Quall at [99]). 

36                        The Court took the view that it did not matter that a different area was involved (at [98] and [115]) nor that the alternative society argument had not been considered and determined in Risk (at [97]).  It was held that it was an abuse of process to argue that a different alternative society existed in relation to Area B.  At [115] his Honour said:

As I have already observed above, I consider the findings made by Mansfield J in Risk are in clear terms and they deal directly with the various components of the definition of native title in s 233 of the NT Act, as explained by the High Court in Yorta Yorta.  Those findings followed an exhaustive examination of a large body of evidence and they resulted in the final orders made by Mansfield J to the effect that native title does not exist for Larrakia lands in Area A (see [43] above).  In my view, the findings and orders of Mansfield J are final, in the sense that they foreclose on any other Aboriginal society being able to establish that the laws and customs under its normative system gave rise to rights and interests in Larrakia lands in Area A.  Indeed, they constitute a judgment in rem that no native title exists in those lands (see the cases set out in [63] above).  While the decision in Risk does not have the same status in relation to the lands in Area B, I do not consider that detracts from the final effect of the findings on the ultimate issues upon which that decision is founded.  Specifically, that the Larrakia peoples were the relevant Aboriginal society at sovereignty that possessed rights and interests in Larrakia lands.  I consider this constitutes a final finding as to the relevant Aboriginal society that possessed rights and interests in those lands whether they fell within Area A or B. 

37                        Nicholson J concluded in Daniel (at [370]-[371] and see also Moses v Western Australia (2007) 160 FCR 148 (Moses) at [281]-[284] and [349]) that the only society holding native title over the Ngarluma native title area at sovereignty and at present was and is the Ngarluma society.  That conclusion was reached following examination of extensive evidence. 

Was the determination of the status of the Yaburara/Mardudhunera essential to the determination of the native title question?

38                        After exhaustive analysis, Nicholson J in Daniel concluded that the Yaburara/Mardudhunera as Yaburara could not establish native title over the Burrup and that the Yaburara/Mardudhunera did not hold native title in the area surrounding Karratha as the Mardudhunera group did not have the requisite connection with the claim area.  To appreciate the significance of the conclusion (in order to determine whether the Yaburara/Mardudhunera is issue estopped), it is necessary to consider what it was that Nicholson J had to determine in Daniel. 

39                        Section 223 NTA relevantly provides that ‘native title’ or ‘native title rights and interests’ means:

… communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)        the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)        the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)        the rights and interests are recognised by the common law of Australia.

40                        The statutory definition in s 223(1) NTA is clearly the crucial question and the starting point.  In De Rose v South Australia (No 2) (2005) 145 FCR 290 (at [38]), the Full Court said:

It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as "communal", "group" or "individual". The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.

41                        In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ said after observing that native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title, that native title is neither an institution of the common law nor a form of common law tenure but is recognised by the common law. 

42                        Their Honours asked (at [31]):

…Is it a body of traditional law and custom as it existed at the time of sovereignty? Is it a body of law and custom as it exists today but which, in some way, is connected with a body of law and custom that existed at sovereignty? How, if at all, is account to be taken of the inescapable fact that since, and as a result of, European settlement, indigenous societies have seen very great change?

43                        And continued to note (at [33]) that:

..."Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. …

44                        Further, the Court said (at [34]) that:

…the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law.

45                        And, (at [35]) that the rights and interests in relation to land must be ‘recognised’ by the common law of Australia.

46                        Native title rights and interests to which the NTA refers, the Court reinforced, are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act.

47                        Then, coming to the current issue, the Court said:

51        What is the position if, as is said to be the case here, the content of the laws and customs is passed on from individual to individual, despite the dispersal of the society which once acknowledged and observed them, and the descendants of those who used to acknowledge and observe these laws and customs take them up again? Are the laws and customs which those descendants acknowledge and observe "traditional laws" and "traditional customs" as those expressions are used in the Native Title Act, and are the rights and interests in land to which those laws and customs give rise possessed under traditional laws acknowledged and traditional customs observed?

52        Again, it is necessary to consider the several elements of the issues that thus arise. Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment? These may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult. In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no.

53        When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.

AN ADVERSE FINDING TO THE YABURARA/MARDUDHUNERA WAS MADE IN DANIEL

48                        In addition to advancing some arguments of his own for the Yaburara/Mardudhunera, Counsel for the Yaburara/Mardudhunera has adopted the submissions of senior counsel for Wong-Goo-TT-OO to which I have referred in the reasons for decision in Wong-Goo-TT-OO (WAD 6256 of 1998).  An application in Wong-Goo-TT-OO in similar terms to the current application was argued concurrently with this application.  It is therefore necessary to consider an important aspect of that argument in which it was contended that no relevant ‘finding’ was made by Nicholson J in Daniel that is capable of operating as an issue estoppel. 

49                        The most important issue in the present debate is whether Nicholson J relevantly made a ‘finding’ in terms for which the State contends.  If there was no ultimate finding, there can be no issue estoppel.  Although issue estoppel can operate as to fact and to law, it must be an issue for the doctrine to arise.  Simply to discard one aspect of a claim would not raise an issue for the purposes of issue estoppel.  Frequently a party may fail or succeed on one aspect of a claim while having a different result on others. 

50                        On this issue, the Yaburara/Mardudhunera, like Wong-Goo-TT-OO in the related application relied heavily on Kuligowski v Metrobus (2004) 220 CLR 363 at [60] and particularly the passage reading:

A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings.

51                        However, this passage without amplification does not assist.

52                        In Kuligowski, Metrobus wished to contend that Mr Kuligowski was issue estopped from advancing a common law negligence claim in respect of an ankle injury sustained at work and in respect of which a second review officer had, for workers’ compensation purposes, recorded the following:

It is also necessary for the applicant to prove incapacity for work and in this regard I am of the view that Mr Kuligowski has not satisfied the onus upon him on this point.

53                        The ratio of the decision in Kuligowski appears before the heading ‘Immaterial Matters’ in which the passage on which the Yaburara/Mardudhunera wish to rely is to be found.  The ratio of the decision is at [45]-[46] in which the Court held that the second review officer had a different question to decide from the question which might confront the District Court on a common law claim.  Notwithstanding that difficulties may be encountered in the common law claim in light of the conclusions reached by the second review officer, the matters which that officer had to decide were different from those which would arise on the common law claim. 

54                        The reasoning of the High Court makes it clear that the proper approach to determining what has been decided in a matter can only be assessed having regard to the pleaded and argued issues.  Plucking a sentence out here or there does not answer all the questions. 

55                        The comments made by the Court on which the Yaburara/Mardudhunera rely appear under the heading ‘Immaterial Matters’ as part of a collection of other issues which arose and on which, in the circumstances, it was unnecessary to decide. 

56                        The full paragraph in which the sentence on which the Yaburara/Mardudhunera relies reads as follows (footnotes omitted):

In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way:

"[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden."

A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings.

57                        As the Court explained at [61], in finding whether or not something has been solemnly found against a party, the form of the first proceeding, particularly the issues joined or admitted on the pleadings will be important.  In other words, as Dixon J observed in Blair v Curran 62 CLR 464 (at 532):

[J]udicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the ground work of the decision itself, though not then directly the point at issue.

58                        More importantly for present purposes, Dixon J went on to distinguish findings concerning only ‘evidentiary facts’ rather than the ‘ultimate facts’ which found the very title to rights in dispute.  In Kuligowski, however, the High Court observed that that important issue was not the subject of the primary submissions of the parties and was not necessary to decide in the present case so was put to one side. 

59                        In Kuligowski, the High Court referred to the decision in the Privy Council which upheld the dissenting judgment of Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537.  In Hoysted, Higgins J had referred to the use of the phrase ‘actually litigated and determined’ - in turn, an expression coined by the Supreme Court of the United States in Cromwell v County of Sac (1876) 94 US 351 at 353.  Higgins J observed in Hoysted that the particular point (in relation to joint ownership for the purposes of land tax) was by virtue of the formal objections and from the nature of the judgment ‘actually litigated and determined’ in the former proceedings and that whether the judgment in its actual form was due to the Commissioner’s consent or admission or to his neglect, he is bound by the finding of joint ownership which the judgment necessarily involves. 

60                        In Kuligowski, the High Court went on to say that in the proceedings under the Workers’ Compensation and Rehabilitation Act 1981 (WA), no findings were made which operated in the manner alleged as issue estoppels nor was the structure of the legislation in the nature of the proceedings such that there could be said that the necessary findings must be treated as having been actually litigated and determined. 

61                        Unlike Kuligowski, in the present case it is central to the issue estoppel argument to determine whether or not Nicholson J made findings on the topic of whether the Yaburara/Mardudhunera had the ability to hold native title as a group.

62                        A number of cases have considered the passage in the joint High Court judgment in Kuligowski where the Court says that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged (at [60]):  Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322; DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16; Lancee v Willert [2008] WASCA 120; Wyatt v MR and RC Smith Pty Ltd [2008] WASCA 55; Squires Transport Pty Ltd v Turnor [2004] WASCA 245.

63                        One of the decisions cited in Kuligowski was Egri v DRG Australia Ltd (1988) 19 NSWLR 600, a decision of the Court of Appeal of New South Wales in a Court constituted by Mahoney, McHugh and Clarke JJA.  (McHugh JA was also a member of the Court in Kuligowski).  In Egri, the Court of Appeal upheld a conclusion by the primary judge that there had been an issue estoppel by virtue of the primary judge having said ‘I am not satisfied that the theory of the disc lesion has been established…  I am not satisfied that the injury has resulted in disc lesion’.

64                        The approach taken by the Court of Appeal as is evident from the judgment of McHugh JA was that unlike the case of Lombardo v Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159 (and I might say, unlike Kuligowski), the finding relied upon for an issue estoppel in Lombardo as to an infarction was not an indispensable step in making the ultimate findings.  However, in the case of Egri, the finding that there was no disc lesion was fundamental in determining what was the nature of the injury and whether the worker was still incapacitated (at 605). 

65                        It was because of the fundamental nature of what was being decided as distinct from the language employed that an issue estoppel was created.  Even in Blair v Curran 62 CLR 464, Dixon J (as he then was) observed at (at 531-532) that the essential task is to distinguish between those matters fundamental to the decision or necessarily involved in its legal justification or foundation from matters which are not in point of law the essential ground work of the conclusion. 

66                        Indeed, in Egri, it was argued that because there had been no positive finding as to a failure to establish on balance of probabilities the existence of a disc lesion that the conclusion reached was insufficient to create an estoppel.  That submission was expressly rejected in Egri (at [601F], [604D], [608D]).  The Yaburara/Mardudhunera advance the same argument in this proceeding, that a negative conclusion such as not being satisfied, cannot constitute a finding.  The argument should be rejected as it was in Egri. 

67                        The High Court in Kuligowski saysthat in relation to ultimate facts which form the very title to rights in dispute would it require more than non-satisfaction.  I take this to be indicating that conclusions reached about ultimate facts as distinct from evidentiary facts must necessarily be findings.  That does not necessarily conflict with the observation that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged.  As all the cases indicate, it is a matter of examining the real issues in dispute, the task for the Court, and the basis on which the Court arrived at its conclusion in order to assess whether a determination is, for the purposes of an issue estoppel, in the nature of an ultimate finding, however it may have been expressed. 

68                        One example of the cases in point is Wyatt v MR and RC Smith Pty Ltd in which Buss JA with whom Wheeler JA and Pullin JA agreed, said:

42        It is essential, in examining reasons for decision which are alleged to create an issue estoppel, to understand with precision what the judicial officer was required to determine.  See Murphy v Abi-Saab (1995) 37 NSWLR 280, where Gleeson CJ (with whom Kirby P and Rolfe AJA agreed) said:

The difficulty is to distinguish between decisions of fact or law fundamental or cardinal to the judgment and other decisions.  One thing, however, is clear.  Only a decision about a matter which it was necessary to decide can create an issue estoppel.  It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide (288).

…

46        In Kuligowski, the High Court noted that in some cases it may not be possible for a court or tribunal to reach a conclusion either way in relation to a specific issue [60], and cited the following passage from the speech of Lord Brandon of Oakbrook in Resa Shipping Co SA v Edmunds [1985] 1 WLR 948:

[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties.  He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden (955).

The High Court then said that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged.  Their Honours added:

There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings [60].

WAS KARRATHA AFFECTED BY THE ISSUES DETERMINED IN DANIEL?

69                        The question is whether the findings reached in the Daniel litigation also mean that the Yaburara/Mardudhunera People are precluded from pursuing a claim in native title over the only remaining area relevant to the current application, namely, the townsite of Karratha.  To decide this question, it is necessary to trace not only the history of the claim but also its resolution. 

70                        The Yaburara/Mardudhunera native title determination application was first lodged with the NNTT on 1 August 1996.  It included land that was already under claim by the Ngarluma/Yindjibarndi People in WAD 6017 of 1996 and land which was later claimed by the Wong-Goo-TT-OO People in WAD 6256 of 1998. 

71                        The map which is annexed and marked ‘C’ depicts the Yaburara/Mardudhunera claim area vis a vis the Ngarluma/Yindjibarndi and Wong-Goo-TT-OO claim areas.  To the extent that the Yaburara/Mardudhunera and Wong-Goo-TT-OO applications overlap the Ngarluma/Yindjibarndi claim area, they were consolidated with the Ngarluma/Yindjibarndi application which was heard by Nicholson J, first, in 1999.  The Ngarluma/Yindjibarndi People were ultimately described as the first applicants in the proceeding, the Yaburara/Mardudhunera People became the second applicants and the Wong-Goo-TT-OO People became the third applicants.  The State was the first respondent and there were other respondents. 

72                        On 3 July 2003, Nicholson J handed down his reasons in Daniel.  Subsequently, on 2 July 2005, his Honour made a determination under the NTA of non-exclusive native title rights and interests in respect of the claim area (Daniel Determination). 

73                        The holders of the native title rights and interests so determined were the Ngarluma People and the Yindjibarndi People.  His Honour dismissed, to the extent that they overlap with the claim of the Ngarluma/Yindjibarndi People, any competing claims of the Yaburara/Mardudhunera and the Wong-Goo-TT-OO Peoples.

74                        There were two appeals pursued from the reasons and orders of Nicholson J.  They were heard together.  The first appeal was that lodged by Ngarluma/Yindjibarndi.  It concerned certain portions of the claim area in which his Honour had found that native title had been wholly extinguished.  The Full Court delivered judgment in Moses on 7 June 2007.  Then on 27 August 2007, the Full Court made final orders and a substituted determination of native title.  That determination is annexed and marked ‘D’.

75                        In a second appeal lodged by the Wong-Goo-TT-OO People, it was contended that the proceedings at first instance involved a wholly inadequate appraisal of the evidence of Wong-Goo-TT-OO and a misdirection of what was required to establish the elements of native title under s 223(1) NTA.  That appeal was dismissed by the Full Court on 7 June 2007 in Dale v Moses [2007] FCAFC 82 (Dale). 

76                        The townsites (of Dampier and Karratha) were not, however, claimed by the Ngarluma/Yindjibarndi and therefore were not the subject of the determination made by Nicholson J.  This is also reflected in the determination and orders made by his Honour on 2 May 2005 and was not disturbed on appeal.  Until further order, because the Yaburara/Mardudhunera’s claim was only dismissed to the extent that it overlapped with the claim of the Ngarluma/Yindjibarndi, the Yaburara/Mardudhunera claim over the townsites remains on foot.  It is that claim which is the subject of attack in the State’s application for summary dismissal.

SPECIFIC CONCLUSIONS IN DANIEL

77                        In relation to the Yaburara/Mardudhunera claim, the State contends that Nicholson J in Daniel made a number of key findings which operate against the Yaburara/Mardudhunera as an issue estoppel.  Specifically, it contends that the following are the applicable findings:

(1)        The second applicants [the Yaburara /Mardudhunera claimants] claim the lands said to have originally been occupied by the Yaburara people, being the Burrup and surrounding islands, and the country said to have traditionally been occupied by the Mardudhunera people.  (Daniel at [99])

(2)        I accept the submission for the first respondents that it is not clear on the pleadings whether the overlap area is said to be Yaburara or Mardudhunera or partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera.  The evidence from the second applicants on the point was inconsistent.  (Daniel at [103])

(3)        The second applicants have identified themselves in the title of their application as ‘Coastal Mardudhunera and Yaburara people’ … [and] [t]he claimant group is said to be a joint community of Yaburara and Mardudhunera people, composed of three inter-related family groups.  (Daniel at [340])

(4)        …I find those of the second applicants who claim to be Yaburara have not established that to be the case.  The evidence supports the view that the second applicants having a claim in the claim area claim as Mardudhunera.  (Daniel at [352]; Moses at 41]).

(5)        There remains the question whether the second applicants as Mardudhunera people are a community or group.  There is ample evidence of the Mardudhunera people as a tribe in the coastal zone of the claim areas.  It is not apparent, however, whether the second applicants comprise all presently living Mardudhunera people.  Nor is it apparent in the evidence whether the second applicants are recognised socially as a community of Mardudhunera people.  The relevant common purpose is that of being Mardudhunera.  While there is not evidence the second applicants are recognised by others as such apart from their role in these proceedings, I consider they fall within the broader connotation of the word ‘group’.  (Daniel at [353]; Moses at [29])

(6)        … In the case of the second applicants the issue arises as to whether the Yaburara tribe, of which some of the second applicants claim to be descendents, ceased to exist.  The nature of the issue, the submissions of the parties, the expert evidence and the lay evidence relating to that issue is set out in Appendix G.  In reliance upon the matters there set out, I find that there has been no discharge of the onus of proof by the second applicants or in the circumstances of all the evidence that the Burrup was inhabited by the Yaburara.  If, contrary to that finding, the evidence supports the finding that the Yaburara or a group by any other name inhabited the Burrup, the evidence establishes that that group disappeared as an identifiable group early in the Twentieth Century.  (Daniel at [373]; Moses at [43])

(7)        Further, there are a number of reasons why I consider that the claim for succession by either the first or second applicants from Iniarba as a Yaburara cannot succeed.  Firstly, there is the unsubstantiated character of the evidence of the two second applicants Colin Cosmos and Valerie Holborow on this issue.  Secondly, the evidence does not support a finding that Iniarba was Ngarluma.  Thirdly, the argument that Yaburara was a sub-set of Ngarluma is not supported by the evidence.  (Daniel at [374])

(8)        The question remains whether the second applicants being Mardudhunera are members of a group which has had continuity from sovereignty and so has not ceased to exist.  In reliance on the evidence set out in relation to the Mardudhunera as a Group in Part X, I find the group has had the requisite continuity.  (Daniel at [375])

(9)        The evidence does not establish that the Mardudhunera second applicants exercised the remaining two rights found to be presently observable continuously back to sovereignty.  If they had connection at the time of sovereignty it has not survived the passage of time.  I find no requisite connection is established in their case.  (Daniel at [501])

(10)      The trial judge dismissed the Yaburara/Mardudhunera application to the extent that it overlapped with the Ngarluma/Yindijibarndi claim.  (Order 24 of the Daniel Determination; Moses at [92]).  (emphasis added)

78                        The Yaburara/Mardudhunera are correct in saying that not all of the portions of the Daniel decision on which the State rely, constitute findings.  Some are comment but I have emphasised those that are findings.  The remaining matters are necessarily stated to put the findings in perspective. 

79                        Nicholson J found in Daniel (at [373]) that no society has inhabited the Burrup area since the beginning of the early Twentieth Century (see also Moses at [43]).  The Yaburara/Mardudhunera acknowledge that they are bound by that finding. 

80                        The State contends that it must follow that the applicants are estopped from asserting the continuity of any society since sovereignty over the area of the Burrup.  Once that is acknowledged, it is fatal to the applicants’ claim to Dampier which is geographically part of the Burrup and surrounded on all sides by the area in which Nicholson J found that there was no native title. 

81                        As to Karratha, Nicholson J held in Daniel (at [370]-[371]) that the society holding native title over the Ngarluma native title area at sovereignty and at present is the Ngarluma society.  That area fully surrounds the relatively small area of Karratha townsite.

82                        The Yaburara/Mardudhunera contend that the townsites present different issues from the surrounding areas under consideration in Daniel.  The State contends that the townsite of Dampier, in particular, presents the same issues as were considered by Nicholson J in Daniel in relation to the Burrup and secondly, that Karratha presents the same issues as were decided in relation to the Ngarluma native title area because:

(a)        Dampier and Karratha are surrounded on all sides by the Burrup and Ngarluma native title area respectively;

(b)        the claim does not distinguish between Dampier and Karratha and the surrounding areas;

(c)        Dampier and Karratha were not considered in Daniel only because the Ngarluma/Yindjibarndi claimants decided not to include those towns in their original claim.  It is now asserted (in WAD165/2008) that they do hold native title over each of those towns;

(d)        the judgment in Daniel indicates that extensive evidence was given of the nature of asserted native title rights in relation to the Burrup and the Ngarluma native title area including by the applicants (see the Summary in Daniel at [1374]-[1383]).  In the course of giving that evidence, no distinction was drawn between the areas and the towns;

(e)        because of the arbitrary distinction between the towns and the surrounding areas, it is reasonable to expect that any evidence capable of supporting the existence of native title within the towns would not have been limited to the towns and would have been led.  The fact that such evidence was not led by the applicants even though certain of their evidence was in fact led about areas not included in the proceedings (as evident from Daniel at [308]) and also referred to in the Daniel Summary at [1379]-[1380]) would indicate that the applicants do not distinguish between the towns and the surrounding areas.

83                        The State contends that if the issues relating to Karratha are not identical to the issues concerning the surrounding areas, they are so similar as to disclose no reasonable chance of success for the claim in relation to the towns. 

84                        Further, the State argues, it would be an abuse of process for the applicants to assert a different basis for their claim over Karratha to the one that was asserted in Daniel.  It is argued that there is no value whatsoever in the applicants leading evidence of native title over either of the towns. 

85                        The State also contends that in the interests of certainty, the strike out claim to the extent it includes Dampier, should be allowed in accordance with the State’s motion or, alternatively, there should be a declaration that the claim does not include Dampier or, alternatively, an order that the claim is amended such that it excludes Dampier. 

MOSES

86                        The Full Court summarised the findings of Nicholson J as to the boundaries of the Ngarluma country (in Moses at [243]) where the Full Court said:

243       In Part II of the July 2003 reasons, his Honour described the claim areas and made findings concerning the boundaries of those areas. The area claimed by the Ngarluma people was described as the lowlands between the Chichester Ranges and the sea found between Poverty Creek to the east of Whim Creek on the eastern side of the claim areas, to the vicinity of the Maitland River on the western side of the claim areas, as well as the adjacent portion of the sea. His Honour found that the boundaries as claimed were established on the evidence. The technique used by his Honour in this section, and followed in later sections, was to record the claims and findings in the body of his reasons for judgment and then to refer to the evidence on which the findings were based in appendices to the reasons for judgment. The evidence concerning boundaries is collated in Appendix A. It is a comprehensive review of the primary evidence of Aboriginal witnesses, as well as a review of the evidence of experts in history, linguistics and anthropology.

244       His Honour also pointed out that the major population centres of west Pilbara, namely Dampier, Karratha, Wickham, Point Sampson, Roebourne and Cossack are located in the north-west coastal portion of the claim area, and that the remainder of the region is sparsely settled.

…

305       Much evidence was given as to the boundaries of Ngarluma country. His Honour made findings that this evidence established that the Ngarluma country included the Karratha area. Such evidence supported an inference that the Ngarluma people have retained a continuous connection with the Karratha area.  (emphasis added)

87                        The Full Court also noted (at [313]) in Moses that the Ngarluma area had been treated as a whole for the reason that Nicholson J formed the view on the evidence that it was all part of Ngarluma lands. 

88                        Subject only to the important qualification that the specific townsite of Karratha was not part of the claim, the conclusion expressed (at [305]) in Moses, appears to fully and finally conclude any possibility of the Yaburara/Mardudhunera establishing a claim over the Karratha townsite. 

89                        The State and Ngarluma contend that these findings were all essential to the ratio of the conclusions that the Ngarluma People had native title throughout the area.  Those conclusions, it is contended, are all that is required for issue estoppel for the reason that the Yaburara/Mardudhunera will not be permitted to allege facts that contradict the relevant foundational facts established in the Daniel decision.  There is no doubt, it is contended, that it is open to look not only at the final judgment and order but also the reasons as well.  This submission is correct (Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1 at [1153]-[1154] per Goldberg J).

90                        The findings in Daniel were not only positive for the Ngarluma People but also, necessarily, negative to the claim of the Yaburara/Mardudhunera.  To the extent that the findings were based on the failure to be satisfied by the evidence of the Yaburara/Mardudhunera, the Yaburara/Mardudhunera are estopped by the finding that they do not hold native title in the area and by the finding that any use and enjoyment of resources and protection of important places that they engaged in did not have the required continuity back to sovereignty and thus not traditional.  Those negative findings can still constitute an estoppel:  see the analysis in Egri. 

FINDINGS AGAINST THE YABURARA/MARDUDHUNERA IN DANIEL

91                        The Yaburara/Mardudhunera claim brought in Daniel was brought on the basis that the areas claimed were the areas where the Yaburara and the Mardudhunera People held native title.  They claimed that the claim areas were traditionally occupied by them (Daniel at [99]).  Nicholson J rejected and dismissed the claims insofar as they overlapped the Ngarluma/Yindjibarndi claim and found that the areas were areas over which only the Ngarluma or Yindjibarndi People held native title.  Accordingly, his Honour’s finding was, in effect, that the areas surrounding the townsites were not Yaburara or Mardudhunera country and the Yaburara/Mardudhunera People did not hold any native title rights within it. 

92                        Evidence given by the Yaburara/Mardudhunera witnesses in Daniel as to boundaries of the Yaburara/Mardudhunera country or Yaburara country or Mardudhunera country included parts of the Ngarluma determination.  Such evidence did not draw a distinction between areas surrounding the townsites and the townsites themselves which had been excluded from the hearing.  This is apparent from the following passages in Daniel (at [1199]-[1200], [1374]-[1383], [1666]-[1667] (emphasis added):

1199     Robert Boona (Y) had been told by his father that the boundary of their land went from the mouth of the Nickol River, back into the Leopold Ranges, then went further down south to the Fortescue.  The boundary followed Princup Hill to the Leopold ranges (T 2966).  His father told him never to look at the Burrup (T 2970).  Valerie Holborow had no knowledge of the boundaries of her land (T2974) and relied upon the boundaries as presented in evidence by Robert Boona (Y), Colin Cosmos (Y) and Lawrence Kerr (N) (T 3063).  Colin Cosmos (Y) had been told nothing of the boundaries of Mardudhunera land but Algie Patterson (M) had told him that they were from the mouth of the Fortescue up to Leopold Hill and towards the Fortescue River (T 2974).  The following day he corrected this, saying that the boundaries were from the mouth of the Nickol River, to Mount Leopold and towards the Fortescue River  and that he had been told this by his grandfather (T 2999).  Lawrence Kerr (N) said that Algie Patterson (M) had told him that Mardudhunera country stretched from Fortescue, to Peters Creek and back to Nickol (T 3005).  In cross examination he said that the territory between Miaree Pool on the Maitland River and Karratha town, in other words the area of Karratha station, was Mardudhunera country.  He knew nothing of Yaburara country apart from the name (T 3036).  Robert Boona (Y) agreed that the boundaries claimed as Mardudhunera in the overlap claim area were those of Karratha station.  He denied that his father may have been referring to the station as the area for which they had responsibility when they were doing their mill run (T 3074).  Colin Cosmos (Y) said that the Yaburara people were different from the Mardudhunera, and had distinct territories.  He only knew the boundary from what he had recently read (T 3084).

1200     Robert Boona (Y), whom Mr Robinson identified as a Mardudhunera man, told Mr Robinson that the Maitland River was the boundary (T 5453).  Mr Robinson accepted the view that Yindjibarndi people regarded the Mardudhunera as the people who lived downstream from them on the lower Fortescue River (T 5519). Mr O'Connor agreed under cross-examination that he had earlier conducted ethnographic survey work for the second applicants and had formed a view that they were entitled to lodge a native title claim (T 6111).  In a site survey he conducted in 1997, he described the Yaburara as ‘coastal people whose territories were centred upon the Burrup Peninsula, the present towns of Dampier and Karratha and the surrounding coastal plain’.  He qualified that to mean ‘coastal flats’ and noted that Karratha town is built partly on the coastal flats.  He agreed that boundaries in Aboriginal Australia are not a matter of general agreement.(T 6114)

(a)        POSSESS, OCCUPY, USE AND ENJOY

(a)        ‘The right to possess the land and waters claimed.’

(b)        ‘The right to occupy the land and waters claimed.’

(c)        ‘The right to use and enjoy that land and waters claimed.’

1374     Dorrie Wally testified that Valerie Holborow’s and Colin Cosmos’ father had been Mardudhunera and had been initiated (T 3003).  Colin Cosmos considered his father Yaburara but had not been told anything about the law from him (T 2952).  To his knowledge his father had no connection to the Burrup (T 3095).  Colin Cosmos grew up on Karratha station.  It was like a little Aboriginal village then. He could remember some people who lived there including Kenny Jerrold  (T 3009).  He was told of his ancestors by Algie Paterson , but not which tribe they belonged to (T3020).  He lived separately from the other Aboriginal people on Karratha station (T 3065).  He was not taught anything about the Burrup (T 2991).  He felt his family’s claim to the land came from their descent from Inarba, his father’s step-father, who was a Yaburara man (T 2952; 3021).  He only concluded he was Yaburara from reading material published recently, not from his own knowledge of Aboriginal groups and culture which was poor (T 3020).  Even if Inarba were shown to be Ngarluma he would still consider himself most entitled to the Burrup through descent (T 3022).  He heard from an old man on Karratha station that his land stretched from the mouth of the Nickol River to Leopold Hill and towards the Fortescue River (T 2975; 2999).  His maternal grandmother’s brother was Fred Hicks, and he acknowledged being related to Wilfred and Cane Hicks (T 3012).

1375     Lawrence Kerr testified that he had been initiated the Ngarluma way because his father was Ngarluma.  His mother and step-father were Mardudhunera and he could have been initiated the Mardudhunera way.  He knew of only one other surviving Mardudhunera man, Algie Paterson (T 3004-3005).  Algie Paterson had told him of certain Mardudhunera places, from Fortescue River to Peters Creek and across to the Nickol River.  He did not mention the Burrup (T 3006).

1376     Robert Boona’s mother was related to the Hicks family but he did not know details (T 3044).  His mother was Yindjibarndi and his father was Mardudhunera which he equated with Yaburara.  His father had pointed out the boundaries of his country which roughly coincided with the boundaries of Karratha station (T 3073).  He knew no Aboriginal place names in that area (T 3074).  He said their traditional land extended to the small offshore islands (T 2969).  He had never been told by any of the old people of any fishing out among those islands (T 3033).

1377     Dorene Wescombe regarded herself as Mardudhunera after her father.  She was related through her father with the Cosmos and Boona family (T 2956).  She grew up on Mardi (not in the overlap area between the first and second applicants claims) and Karratha stations (T 2984).  Margaret Boona grew up on Mardi and later Karratha stations (T 2988-2989).  Valerie Holborow testified that her grandmother was Yaburara, from the Burrup, as was her father.  She had no knowledge of the boundaries of her country (T 2974).

(b)       MAKE DECISIONS ABOUT USE AND ENJOYMENT

(d)        ‘The right to make decisions about the use and enjoyment of the land and waters claimed.’

(c)        ACCESS AND CONTROL

(e)        ‘The right to free access to the land and waters claimed.’

(f)        The right to control the access of others to the land and waters claimed.’

 

1378     See ‘Possess, occupy, use and enjoy’

(d)       USE, ENJOY RESOURCES

(g)        ‘The right to use and enjoy the resources of the land and waters claimed.’

(h)        ‘The right to control the use and enjoyment of others of the resources of the land and waters claimed.’

(i)         ‘The right to trade in the resources of the land and waters claimed.’

(j)        ‘The right to receive a portion of any resources taken by others from the land and waters claimed.’

 

1379     Dorene Wescombe was shown how to hunt and cook goanna and gather witchetty grubs and sweet potato by her grandparents and parents on Mardi station (T 2979; 2982-2983).  She lived in Derby when her children were young and didn’t take them fishing or hunting there (T 2985).  Mardi station and Derby are outside the overlap area between the first and second applicants’ claims.  Dorene Wescombe still hunts kangaroo inland from Karratha (T 2984).  She fished in the Fortescue River.  She was taught by her grandmother (T 2979).  She fished in the sea at Karratha, gathered shellfish and watched her father catch turtles (T 2984).  She teaches her grandchildren to gather bush tucker (T 2986).

1380     Margaret Boona was taught hunting and gathering bush tucker by her parents.  She fished in the Fortescue River and around Roebourne (T 2988-2989).  Roebourne is outside the overlap area between the first and second applicants’ claims.

1381     Colin Cosmos takes his son hunting, and teaches him what he knows about skinning kangaroo and traditional methods of cooking of goanna (T 2991).  He fished with his father at Wajabi waterhole on the upper Fortescue River near Karratha station and in the ocean at the mouth of the Yanari River (T 2976).  He takes his family fishing on day trips to Nguria Point (‘ 40 Mile’), Withnell Bay and Hearson Cove on the Burrup, The Landing, the Yanari River (T 2990; 3085).  He fishes from the shore (T 3100).

(e)       MAINTAIN AND PROTECT PLACES OF IMPORTANCE

(k)        ‘The right to maintain and protect places of importance on the land and in the waters claimed.’

1382     Colin Cosmos has been on one heritage survey on the Burrup.  His brothers and sisters do not attend because they know nothing of the law for that area.  Robert Boona does any ‘heritage work’ (T 3057).  Robert Boona testified that his father warned them as children not to look at the Burrup or their spirit would be taken away (T 3029).  Colin Cosmos was told by his father the Maitland could be a dangerous place because of a snake that lived in a permanent waterhole there (T 2992), and a waterhole at Leopold Hills upon which one should never allow one’s shadow to cast (T 2975).

(f)        PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE

(l)         ‘The right to maintain, protect and prevent misuse of cultural knowledge associated with the land and waters claimed.’

1383     Valerie Holborow and Colin Cosmos testified that their father had scarification on his body.  He had never discussed it with them (T 2972; 2978).  Colin Cosmos did not know if they were ‘sorry scars’ (T 3051).  Valerie Holborow testified she did not know their meaning because she was a woman (T 3090).  Her father took his law and culture seriously and would not divulge it to his daughter.  Nor did he speak of it to his son Colin (T 2952).  He would engage in ritual such as spraying water at water holes (T 2973).  Lawrence Kerr had been initiated.  He testified that scarification indicated a person had been initiated and was a senior lawman.  The practice was no longer continued.  He did not know why (T 3006-3007).  Robert Boona’s father had not been initiated (T 3043).  Robert Boona testified that he was not an initiated tribal person, because all traditional Mardudhunera law, songs, dance had been extinguished (T 2953).  He had been prevented from undergoing initiation at Woodbrook for that reason (T 3046).  His and Colin Cosmos’ fathers conversed in Mardudhunera.  Very few could (T 2955).  Dorene Wescombe testified her father and the older men on Mardi and Karratha stations would talk in a language she assumed was Mardudhunera.  They did not teach any of it to her.  Her father forbade her going anywhere near men’s meetings by the river (T 2980).  She only speaks her mother’s language, Yindjibarndi, which she teaches to her grandchildren (T 2985).  Colin Cosmos acknowledged that when he was growing up there were men on his country who knew and practiced the law of that country, including Mibbin Lowe and Tim Kerr (T 3025).  He did not know the law himself (T 3026), but expressed a desire to learn it, if necessary from Ngarluma men who knew it (T 3028).  His father had never taught him anything about it (T 2975). Dorene Wescombe (T 2981), Margaret Boona (T 2988), Colin Cosmos (T 2991) all recounted that their family was only permitted to kill and eat the yellow goanna.  The black goanna would harm them.   Margaret Boona was taught to placate the yellow goanna’s spirit by cutting off its tail. 

Mardudhunera’s rights not exercised continuously back to sovereignty

93                        Further and more fundamentally to the current assertion of issue estoppel, his Honour (crucially) found that the rights claimed were not exercised continuously back to the time of sovereignty.  That finding was expressed in Daniel (at [501]) where the following appears:

501       The evidence does not establish that the Mardudhunera second applicants exercised the remaining two rights found to be presently observable continuously back to sovereignty.  If they had connection at the time of sovereignty it has not survived the passage of time.  I find no requisite connection is established in their case.  (emphasis added)

94                        There is a summary of some of the evidence leading to the conclusion set out in Daniel (at [1656]-[1658]) where the following appears:

1656     Radcliffe-Brown writing in 1913 relevantly described the Mardudhunera people’s country as bordering that of the Ngarluma people at the Maitland River. He said they probably did not number a hundred, and they mostly lived on sheep stations. The tribe was divided into a number of local groups each with its own defined country. He identified important camping places in each of these groups’ areas. He did not indicate the existence of such a group within the relevant overlap claim area. He was able to establish genealogical links between the Mardudhunera he met and those living before the European occupation of their country.

…

…

…

(e)       Maintain and protect places of importance

‘The right to maintain and protect places of importance on the land…claimed’

 

1657     A report in 1893 remarked the Aboriginal people on Mardi station were much stricter in their observance of tribal law than those nearer Roebourne, and that they held regular corroborees.

1658     Radcliffe-Brown, writing in 1913 observed that some of the customs of the Mardudhunera resembled those of the ‘Fortescue tribes’ (which includes the Yindjibarndi). The Mardudhunera had a system of totems resembling those of the Kariyarra (which in turn he found resembled the Ngarluma system), and performed ceremonies, called talu for the purpose of increasing these totems.

95                        Those rights, such as they were, were not found to be rights and interests satisfying the Yorta Yorta tests of continuity (Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422). 

96                        The State, supported by the Ngarluma People, now submit that no valid distinction could be made between the townsites and the rest of the Ngarluma determined area as there is, not only, no distinction made in the course of the evidence given but, more importantly, that the Yaburara/Mardudhunera People were found not to have exercised rights continuously back to the time of sovereignty. 

97                        In the proposed determination reflecting the findings of Nicholson J on this topic, it was originally intended to record that the Yaburara/Mardudhunera People do not hold native title in the determination area (see Daniel at [1163] - Daniel Determination at [5]).  Subsequently that finding was not included.  It was unnecessary in the final determination because the determination could only mean that the Ngarluma People were the only people found to be native title holders in the area.

SAME PARTIES OR PRIVIES

98                        The Yaburara/Mardudhunera, the State and the Ngarluma People were all parties to the previous proceedings.  The Ngarluma People as part of a Ngarluma/Yindjibarndi claim received their own determination.  Even if not parties, they were clearly ‘privies’ as that expression has been used.  They had the key interest in that decision and a benefit from it.  ‘Privies’ refer to people with such a community of interest (see Carl Zeiss Stiftung [1967] 1 AC 853).  The existence of (or addition of) any different respondents makes no difference to the issue estoppel.  In Quall (at [78]) the Court held that the existence of a different respondent in the form of a Shire Council made no difference to the question of issue estoppel nor did the fact that there are other parties to the earlier proceedings who are not parties to the current action.  It was the same party seeking to agitate the same issues.  See also Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 per Fisher J at 356-358, with whom Ryan J agreed at 365. 

CONCLUSION ON ISSUE ESTOPPEL

99                        The conclusion at [501] in Daniel to the effect that the evidence did not establish that the Mardudhunera second applicants exercised the remaining two rights found to be presently observed or continuously back to sovereignty and that if they had connection at the time of sovereignty, it did not survive the passage of time, is sufficient to establish an issue estoppel as against the Yaburara/Mardudhunera.  That conclusion, taken with the conclusion of the Full Court in Moses ([at 305]) and the analysis by his Honour collected in the summary appearing in [77] above make it clear that his Honour reached a finding which it is no longer open for the Yaburara/Mardudhunera to challenge.  It would be wholly artificial, in my view, to suggest that those findings in a circumstance where no distinction was made in any of the evidence led between the townsite of Karratha and the surrounding area, that a different conclusion might be reached as to the status of the Yaburara/Mardudhunera within the townsite of Karratha as distinct from the entirety of the surrounding claim area. 

100                      Such a conclusion would be inconceivable. 

101                      I conclude, therefore, that the Yaburara/Mardudhunera are estopped from advancing a claim for native title in respect of the townsite of Karratha. 

Are there policy considerations which militate against issue estoppel?

102                      Although elements of flexibility and discretion can be found in the NTA, the concept of issue estoppel is more than a rule of evidence.  It is more correctly viewed as a substantive rule of law:  Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships Limited [1947] AC 46, 56 per Lord Wright for the Privy Council.  An issue estoppel is not lightly found but if found, there does not appear to be any discretionary basis to ignore it. 

103                      It is strongly contended by the State and the Ngarluma People that all factors point in any event in favour of the estoppel being applied.  It is contended that the Yaburara/Mardudhunera simply wish to relitigate their whole claim to native title in the remainder of the claim area on the same grounds on which they had previously failed.  As in Quall, even if the two issues were not identical for the purposes of an issue estoppel, they were sufficiently similar for the purposes of an abuse of process.  The same logic applies in the present circumstances:  see Quall at 116.

104                      The underlying philosophy is compelling.  In Quall (at [119]) the view expressed by Reeves J was that it was in the interests of justice to ensure that Court resources are devoted to the resolution of real and genuine native title determination applications which have not been provided with a determination on their merits.  Further, it would not be in the interests of justice to create a situation of conflicting determinations. 

105                      The Yaburara/Mardudhunera stress that the submissions of the State of Western Australia (the State) assume that any future trial court will have no ‘discretion’ about the application of issue estoppel.  However, this assumes there is a discretion when it comes to issue estoppel. 

106                      The Yaburara/Mardudhunera also fortify their submission with the flexibility with which it is said that s 86 NTA is cast.  Section 86 relevantly provides as follows:

86        Evidence and findings in other proceedings

(1)        Subject to subsection 82(1), the Federal Court may:

(a)        receive into evidence the transcript of evidence in any other proceedings before:

(i)         the Court; or

(ii)        another court; or

(iii)       the NNTT; or

(iv)       a recognised State/Territory body; or

(v)        any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b)        receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c)        adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

(2)        Subject to subsection 82(1), the Federal Court:

(a)        must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and

(b)        may draw any conclusions of fact from that transcript that it thinks proper; and

(c)        may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry.  (emphasis added)

107                      The Yaburara/Mardudhunera contend that the word ‘may’ in the opening passage of s 86(1) makes it clear that any future trial court will have a discretion as to whether or not to adopt or not adopt a recommendation, finding, decision or judgment falling within s 86(1)(c).  The respondents contend that the findings and judgment on which the State seeks to rely are all caught by s 86(1)(c) such that there is a discretion in the future trial court to adopt or not adopt the findings on which the State seeks to rely. 

108                      However if the State is correct as to the issue estoppel argument, the Yaburara/Mardudhunera claim over the townsites should be dismissed.  Section 86 NTA will not be engaged.  Nor is there any other discretion.

109                      It is doubtful whether there is room for any discretionary factor.  The threshold for establishing an issue estoppel is high.  The requirements are exact and have been clearly prescribed.  None of those requirements appears to invoke any overriding discretionary aspect.  Nevertheless, the underlying doctrine as it has been explained in the cases behind the doctrine of issue estoppel can be seen to have relevance to the present case.  The Yaburara/Mardudhunera assertion that the Yaburara/Mardudhunera People form a society that has existed continuously since sovereignty and the assertion that they have maintained their traditional lifestyle and connection with the land has been exhaustively and extensively ventilated in previous hearings.  The duration of the Daniel hearing and appeal and the extensive analysis in the respective judgments would all have been wasted if the Yaburara/Mardudhunera were permitted to progress the present claim in respect of Karratha townsite.  There is a real interest in achieving finality of litigation.  It would also be an undesirable conflict if a Judge hearing future proceedings reached a different conclusion than that reached by Nicholson J on the same point in relation to the issue.

110                      By its adoption of Wong-Goo-TT-OO’s arguments, Yaburara/Mardudhunera complains that the State is failing in its model litigant obligation by refusing to negotiate with the Yaburara/Mardudhunera.  This submission misconceives any statutory obligation under the NTA.  There is certainly an obligation to negotiate in good faith for a period of six months in relation to future acts but there is no reason to believe that in circumstances where there is a proper foundation for a view that a claim has no basis, the State should continue to negotiate for resolution of it.  That would clearly produce an impractical outcome (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615). 

Is the fact that Yaburara/Mardudhunera’s claim has been registered relevant to issue estoppel?

111                      Also by adoption of Wong-Goo-TT-OO’s arguments, Yaburara/Mardudhunera contend that the fact that the claim has been registered adds support to the Yaburara/Mardudhunera position giving rise to a presumption that the claimed rights and interests exist.  This presumption, it is contended, adds to the burden on behalf of the State in establishing that no reasonable cause of action is disclosed. 

112                      In my view, registration does not fortify the presumption that the asserted native title rights exist, at least for the purposes of this motion.  Registration is an administrative act.  It involves no real assessment of the actual merits of the claim.  Registration itself may be conducted on the basis of an assumption that the facts asserted in the relevant native title application are true but it does not follow that in the context of an issue estoppel challenge the Court must operate on the same presumption.  If it did, there would never be a successful challenge on the basis of issue estoppel.  Further, there was such registration prior to the decisions in Daniel and Dale which judgement’s plainly rebutted any presumption which may have previously existed.  There is no longer any presumption. 

ALTERNATIVE ARGUMENT

113                      The State has advanced the following alternative argument.  Technically, none of the findings identified relate specifically to the townsite of Karratha because it and other towns were excluded from the original Ngarluma/Yindjibarndi claim.  However, it is submitted that these findings apply equally to Karratha in substance because Karratha is surrounded by the area to which the orders apply.  It is not plausible, it is said, that different orders could be made in relation to Karratha.

114                      The submission is supported by the fact that the holders of native title in the area surrounding Karratha, the Ngarluma People, assert native title over Karratha as well.  Given two competing claims over the town (as opposed to a single claim by two claim groups asserting overlapping rights, as was the case with Ngarluma and Yindjibarndi Peoples in relation to part of the Ngarluma/Yindjibarndi claim), it is implausible that any claim other than the Ngarluma claim to the townsite of Karratha could succeed. 

115                      Having reached a conclusion on the basis of issue estoppel, it is unnecessary to rule on this argument.  As an aside, however, were that the only argument, I would be less inclined to allow it as a basis for dismissal of the claim, notwithstanding that it has a logical appeal.  I would not be prepared to conclude that the present Yaburara/Mardudhunera claim should be dismissed as disclosing no reasonable cause of action on the basis that it is ‘seriously implausible’ that a claim could succeed in respect of Karratha despite having failed all around the townsite.  It may be highly unlikely that such a claim could succeed because there is little doubt that the evidence in Daniel was relevant to the entirety of the area.  The real basis for dismissal is the conclusion at [501] in Daniel and at [352], [353], [373], [374] and 375]. 

116                      Barwick CJ adopted a number of expressions from earlier decisions encapsulating the extent to which the Court would have to be satisfied that a case should be dismissed for showing no reasonable cause of action.  I do not consider that any of those expressions descends into the arena of implausibility whether it be at the high end of the implausibility scale or the low end.  The degree of certainty that a court must have as to the absence of a reasonable cause of action is at a level above implausibility:  see Australian Building Industries Pty Ltd v Stramit Corporation Limited & Anor [1997] FCA 1318, Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 at [14] and Millet J in Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch 9) at 5. 

117                      Of course the new lower threshold introduced by legislation in s 31A FCA sets a different test.  The very need for that legislative amendment fortifies the view that under the former Rules applicable to this motion, serious implausibility or serious improbability fall a little short of the mark. 

IMPLAUSIBILITY COMPARED WITH INCONCEIVABILITY

118                      Although the State contends that summary judgment may be given on the basis of a claim being implausible, for my part, this lowers the bar under the old General Steel test a little too far.  Implausibility would be more in line with the new test under s 31A FCA.  However, in a circumstance in which the prospect of a claim succeeding is inconceivable (that is, beyond any rational as distinct from theoretical possibility), in my view, the position is different.  In my view, it is inconceivable that in the circumstances described, particularly where no distinction is drawn between the small area now occupied by a modern mining town which did not exist until a century or more after sovereignty, that connection evidence would be any different from evidence as to the entire surrounding areas.  As has been pointed out, evidence was not given in the context of conventional European boundaries by reference to longitude, latitude etcetera but rather by reference to primary physical geographical features such as mountain ranges, rivers, the ocean and such like. 

DECLARATION IN RELATION TO DAMPIER

119                      I fully accept that counsel, properly instructed, has made very clear in open Court in a manner which is intended to be a binding concession, that the townsite of Dampier is not pursued in this claim.  Notwithstanding this, having regard to the very substantial resources which have been devoted to litigation in this area in relation to native title, it seems to me desirable to put beyond doubt the question of whether or not the Yaburara/Mardudhunera People have any entitlement to pursue a claim in respect of the Dampier townsite.  In that regard, I propose to order that the claim for native title in respect of the townsite of Dampier as defined in Annexure ‘B’ to these reasons be dismissed. 

CONCLUSION

120                      I do not underestimate the exceptional caution required to exercise the power to dismiss on a summary basis.  Nor do I underestimate the demanding standards required of a dismissal on the basis of issue estoppel.  However, that said, I have no doubt that the Yaburara/Mardudhunera are estopped in the manner asserted by the State.  It follows that the State’s motion is to be allowed.  Pursuant to s 85A NTA, there will be no order as to costs. 

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:         23 October 2009

Counsel for the Yaburara Applicant:	P Marsh
Solicitor for the Yaburara Applicant:	Corser & Corser
Counsel for the State of Western Australia:	G Ranson
Solicitor for the State of Western Australia:	State Solicitors Office
Counsel for the Pastoralists:	J Steenhof
Solicitor for the Pastoralists:	Cornerstone Legal
Counsel for Jean Lockyer & Ors (Kuruma Marthudunera People):	R Webb QC with S Burnside
Solicitor for Jean Lockyer & Ors (Kuruma Marthudunera People):	Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation
Counsel for the Ngarluma People:	C Tan
Solicitor for the Ngarluma People:	Pilbara Native Title Service

Date of Hearing:	10 June 2009
Date of Judgment:	23 October 2009

 

Annexure ‘A’

 

Annexure ‘B’

Annexure ‘C’

 

Annexure ‘D’

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY                                                     

                                                                                                     No:  (P)WAD114/2005

 

DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON & LES HICKS (on behalf of the Ngarluma People) and BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER & JUDY ALBERT (on behalf of the Yindjibarndi People)

Appellants

THE STATE OF WESTERN AUSTRALIA

First Respondent/First Cross Appellant

P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION)

Second Respondent

 COMMONWEALTH OF AUSTRALIA

Third Respondent/Second Cross Appellant

 

ORDER

 

JUDGE:	Justice Moore
DATE OF ORDER:	27 August 2007
WHERE MADE:	Perth

 

THE COURT ORDERS THAT:

 

1.     In respect of the amended appeal filed 28 July 2005:

(a)   paragraphs 2 and 5 are allowed;

(b)   paragraph 4 is allowed in part;

(c)   the appeal is otherwise dismissed.

2.     The determination of native title made by the trial judge, being orders 1 to 17 (inclusive) on 2 May 2005, is set aside and a new determination is substituted in the terms of the Schedule to these orders.

3.     The State of Western Australia's cross appeal filed on 10 June 2005 is dismissed;

4.     In respect of the Commonwealth of Australia's cross appeal filed on 21 June 2005;

(a)   paragraphs 8 to 12 are allowed; and

(b)   the cross appeal is otherwise dismissed.

5.     No order as to costs

SCHEDULE – SUBSTITUTED DETERMINATION OF NATIVE TITLE

 

THE COURT ORDERS AND DETERMINES THAT:

Determination Area

1.         The ‘Determination Area’ is the land and waters described and depicted in the First Schedule.

Existence of native title

2.         Native title does not exist in relation to the following parts of the Determination Area:

(a)        the ‘Burrup’ (as described and depicted in the First Schedule);

(b)        ‘Offshore Waters’ (as described and depicted in the First Schedule);

(c)        ‘Depuch Island’ (as described and depicted in the First Schedule);

(d)        the ‘Hamersley Ranges Area’ (as described and depicted in the First Schedule);

(e)        the ‘Total Extinguishment Area’ (as described and depicted in the First Schedule).

3.         Subject to paragraph 2 above, native title rights and interests exist in the following parts of the Determination Area:

(a)        ‘Ngarluma Native Title Area’ (as defined in the First Schedule); and

(b)        ‘Yindjibarndi Native Title Area’ (as defined in the First Schedule),

including the ‘Section 47A Area’ and the ‘Section 47B Area’ (as described in the Fifth Schedule) in respect of which extinguishment is disregarded in accordance with sections 47A and 47B of the Native Title Act 1993 (Cth). 

4.         The native title rights and interests:

(a)        do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and

(b)        are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

Native title holders

5.         The non-exclusive native title rights and interests which exist in the Determination Area are held by:

(a)        ‘Ngarluma People’ (as defined in the Third Schedule) in relation to the Ngarluma Native Title Area; and

(b)        ‘Yindjibarndi People’ (as defined in the Third Schedule) in relation to the Yindjibarndi Native Title Area.

Native title rights and interests

6.         Subject to paragraphs 4 and 8 to 15 inclusive, the Ngarluma People have the following non-exclusive native title rights and interests in relation to the Ngarluma Native Title Area:

(a)        A right to access (including to enter, to travel over and remain);

(b)        A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

(c)        A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

(d)        A right to fish from the waters;

(e)        A right to collect and forage for bush medicine;

(f)         A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan);

(g)        A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);

(h)        A right to take black, yellow, white and red ochre;

(i)         A right to take water for drinking and domestic use;

(j)         A right to cook on the land including light a fire for this purpose;

(k)        A right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

7.         Subject to paragraphs 4 and 8 to 15 inclusive, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to the Yindjibarndi Native Title Area:

(a)        A right to access (including to enter, to travel over and remain);

(b)        A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

(c)        A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

(d)        A right to fish from the waters;

(e)        A right to collect and forage for bush medicine;

(f)         A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle);

(g)        A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);

(h)        A right to take black, yellow, white and red ochre;

(i)         A right to take water for drinking and domestic use;

(j)         A right to cook on the land including light a fire for this purpose;

(k)        A right to protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

8.         The non-exclusive native title rights and interests in relation to the ‘Inter-tidal Zone’ (defined in the First Schedule) do not include the rights in subparagraphs (b), (c), (e), (g), (h), (i), (j) or (k) of paragraph 6 above.

9.         The non-exclusive native title rights and interests in relation to the ‘Offshore Islands’ (defined in the First Schedule) do not include any of the native title rights and interests in subparagraphs (a)-(j) of paragraph 6 above.

10.       The non-exclusive native title rights and interests in relation to the ‘Cemetery Reserve Area’ (defined in the First Schedule) do not include:

(a)        the right to engage in ritual and ceremony referred to in subparagraph (b) of paragraph 6 above, save to the extent it relates to ritual and ceremony for the dead; or

(b)        any of the rights in subparagraphs (c), (d), (h), (j) and (k) of paragraph 6 above.

11.       The non-exclusive native title rights and interests in relation to the ‘Telstra Area’ (defined in the First Schedule) do not include:

(a)        a right to remain (part of right (a) in paragraphs 6 and 7 above); and

(b)        right (c) in paragraphs 6 and 7 above.

12.       The non-exclusive native title rights and interests in relation to the ‘Telstra Cable Routes’ (defined in the First Schedule) do not include right (h) in paragraphs 6 and 7 above, to the extent that the right involves digging beneath the surface of that land.

Qualifications

13.       Notwithstanding anything in this determination, there are no native title rights and interests in or in relation to:

(a)        minerals (including ochres to the extent they are minerals) as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA) before the date of this determination; or

(b)        petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA) before the date of this determination.

14.       There are no native title rights and interests in respect of ‘Subterranean Waters’ (as defined in the First Schedule) in the Determination Area.

15.       The non-exclusive 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.

Other interests

16.       The nature and extent of other interests in those parts of the Determination Area where native title exists are set out in the Second Schedule.

17.       The relationship between the non-exclusive native title rights and interests and the other interests referred to in paragraph 16 is that:

(a)        to the extent that any other interest is a category D past act, a category D intermediate period act or a future act under the Native Title Act 1993 (Cth), or is an act to which sections 47A or 47B Native Title Act 1993 (Cth) applies, and is inconsistent with the continued existence, enjoyment or exercise of the native title rights or interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of those other interests;

(b)        in the case of mining leases, pastoral leases, easements and licences granted prior to 1 January 1994, the construction or erection of an improvement required or permitted under such a lease or easement or licence will prevent the exercise of the non-exclusive native title rights and interests at the location of that improvement to the extent that the exercise of those rights are inconsistent with the improvement for so long as the holder of the lease, easement or licence retains the improvement; and

(c)       otherwise, the existence and exercise of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and may prevent any exercise of the native title rights and interests, but does not extinguish them.

 

FIRST SCHEDULE

DEFINITIONS

‘Burrup’ means the land and waters shaded in green on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Cemetery Reserve Area’ means the land and waters the subject of reserves 5698, 30904 and 41146, as shaded in orange on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Depuch Island’ means Depuch Island and Sandy Island, West Moore Island and East Moore Island landward of the low water mark, as shaded in dark green on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Determination Area’ means the land and waters described in Attachment 1 to this First Schedule, being the land and waters bordered in light blue on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Hamersley Ranges Area’ means the land and waters shaded light brown on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Inter-tidal Zone’ means that part of the Ngarluma Native Title Area which is between mean high water mark and mean low water mark, as shaded in orange on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

 

‘Ngarluma Area’ means the land and waters bordered and hatched in dark blue on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Ngarluma Native Title Area’ means the Ngarluma Area but not including the Ngarluma Total Extinguishment Area.

‘Ngarluma Total Extinguishment Area’ means the land and waters the subject of the following interests:

(1)       Certificates of Title

CT Number	Parcel Identification
3/239	Roebourne Town Lot 124
10/118	Roebourne Town Lot 174
11/48	Roebourne Town Lot 130
11/60	Roebourne Town Lot 166
11/91	Cossack Town Lot 164
14/174	Roebourne Town Lot 150
15/341	Roebourne Suburban Lot 3
15/345	Cossack Town Lot 165
18/329	North Location 39
18/330	North Location 38
18/331	North Location 37
20/36	Roebourne Town Lot 271
21/329A	Cossack Lot 151
31/373	Cossack Town Lot 170
33/39	Cossack Town Lot 160
35/14	Roebourne Town Lot 152
35/15	Roebourne Town Lot 153
35/16	Roebourne Town Lot 154
35/17	Roebourne Town Lot 155
35/18	Roebourne Town Lot 156
35/177	Cossack Town Lot 135
35/178	Cossack Town Lot 136
35/283	Roebourne Town Lot 57
35/284	Roebourne Town Lot 58
38/44A	North Location 6
39/380A	Roebourne Town Lot 190
79/189A	Roebourne Town Lots 144 and 145
124/188A	Roebourne Town Lot 114
186/197	Roebourne Town Lots 380 and 381
136/2	Roebourne Town Lots 174 and 175
156/22	Cossack Town Lot 116
193/174	Balla Balla Town Lot 45
221/143	Lot 1 on Deposited Plan 528
228/9	Roebourne Lot 385
265/56	Cossack Town Lot 152
267/54	Cossack Town Lot 424
319/143	Roebourne Lot 115
354/50	Cossack Town Lot 176
390/172A	Roebourne Lot 394
405/11A	Roebourne Lot 396
416/2	Roebourne Suburban Lot 4
416/3	Roebourne Suburban Lot 5
421/143	Balla Balla Lot 73
424/127	Balla Balla Lot 68
445/76	Roebourne Town Lots 134, 135, 146 and 147
451/184A	Roebourne Town Lots 99, 100, 101, 102, 103, 106, 107 and 108
451/185A	North Location 4
451/186A	North Location 9
451/187A	North Location 54
451/190A	North Location 72
451/192A	North Location 23
451/193A	North Location 70
451/194A	North Location 26
456/131	Roebourne Town Lot 1
464/35A	Portion Roebourne Town Lot 53
466/103A	Roebourne Town Lot 21
475/37A	Lot 1 on Diagram 41164
475/38A	Lot 2 on Diagram 41164
486/44A	Portion Roebourne Lots 49 and 50
481/143	Cossack Town Lot 153
488/164	North Location 34
506/197A	Lot 13 on Diagram 41455
508/149A	Roebourne Lot 438
508/165A	Roebourne Lot 436
523/114	Cossack Town Lot 121
541/78A	Lot 2 on Plan 528
541/82A	Lot 4 on Plan 528
550/87	Cossack Town Lot 145
570/65	Roebourne Town Lots 266, 267, 268, 269, 270, 272, 273, 274, 275, 276, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288 and 289
583/51	Roebourne Townsite 149
610/193A	Roebourne Lot 471
762/156	Roebourne Town Lot 123
839/108	De Witt Location 11 (but not insofar as it covers the Section 47B Area)
1002/353	Cossack Town Lot 125
1020/864	Roebourne Town Lots 128, 145, 151, 265 and 271
1022/225	De Witt Location 14
1024/426	Part Lots 5 and 7 on Plan 528
1031/75	North Location 71
1031/76	Balla Balla Town Lots 43 and 44
1040/615	Peawah Location 6
1046/512	Roebourne Town Lot 27
1093/705	Roebourne Suburban Lot 16 (but not insofar as it covers the Section 47A Area)
1093/889	De Witt Location 15, Roebourne Suburban Lot 9, North Location 36 (part) and Roebourne Suburban Lot 16 (part) (but not insofar as it covers the Section 47B Area)
1107/653	Roebourne Lots 162 and 163
1113/927	Cossack Town Lot 124
1130/580	Cossack Town Lot 141
1156/380	North Location 3
1160/901	Roebourne Lot 19
1188/398	Roebourne Lot 105
1188/526	Roebourne Lot 176
1188/965	Roebourne Lot 169
1200/267	Roebourne Lot 54 and Portion Roebourne Town Lot 53
1203/514	Roebourne Lot 121
1203/515	Roebourne Lot 28
1222/113	Roebourne Part Lot 18, Lots 116, 117
1225/674	Roebourne Town Lot 29
1238/195	Roebourne Lot 119
1238/229	Roebourne Lot 6
1238/230	Roebourne Lot 10
1238/231	Roebourne Lot 259
1238/595	Roebourne Lot 127
1245/348	De Witt Location 12
1247/338	Roebourne Lot 188, 189
1249/383	Lot 11 on Plan 528
1252/43	Roebourne Lots 399, 400
1259/853	Roebourne Lot 416
1266/926	Balla Balla Lot 97
1316/148	Roebourne Lots 428, 437, 439, 440, 441, 442, 443, 445
1316/347	Roebourne Lot 196
1318/889	Roebourne Lot 434
1320/11	Roebourne Lot 59
1320/12	Roebourne Lot 60
1320/17	Roebourne Lot 146
1322/526	Lot 1 on Diagram 42823
1322/0527	Lot 2 on diagram 42823
1322/528	Roebourne Lot 397
1323/681	Roebourne Lot 111
1328/400	Roebourne Lot 435
1329/912	Roebourne Lot 421
1329/913	Roebourne Lot 422
1335/179	Portion Roebourne Lot 9
1336/708	Roebourne Lot 428
1346/865	Roebourne Lot 113
1348/518	Roebourne Town Lot 167
1349/725	Roebourne Lot 194
1349/726	Roebourne Lot 195
1352/369	Roebourne Lot 188
1363/796	Cossack Town Lot 170
1363/797	Balla Balla Town Lots 65, 66 & 67
1363/798	Roebourne Town Lot 168
1364/592	Roebourne Lot 415
1364/593	Roebourne Lot 479
1364/594	Roebourne Lot 484
1364/595	Roebourne Lot 485
1364/596	Roebourne Lot 508
1364/597	Roebourne Lot 509
1364/598	Roebourne Lot 515
1364/599	Roebourne Lot 521
1364/600	Roebourne Lot 527
1365/847	North Location 42, 43, 51, 36 (part), 55 (part), 56 (part) & 65 (part)
1368/185	Roebourne Lot 492
1368/186	Roebourne Lot 496
1368/187	Roebourne Lot 499
1369/444	Roebourne Lot 519
1369/461	Roebourne Lot 522
1376/584	Roebourne Lot 440
1376/585	Roebourne Lot 441
1381/810	De Witt Location 17
1381/811	De Witt Location 70 & 71
1382/158	Roebourne Lot 413
1382/159	Roebourne Lot 401
1382/160	Roebourne Lot 412
1382/161	Roebourne Lot 408
1382/162	Roebourne Lot 403
1384/491	Karratha Lot 1143
1387/780	Roebourne Lot 143
1387/781	Roebourne Lot 482
1387/782	Roebourne Lot 477
1387/783	Roebourne Lot 483
1387/784	Roebourne Lot 497
1387/785	Roebourne Lot 498
1390/918	Lot 3 on Plan 528
1390/952	North Location 47
1390/953	North Location 2
1391/354	Roebourne Lot 474
1396/5	Roebourne Lot 545
1397/994	Lot 1 of North Location 67
1397/995	North Location 67
1401/992	De Witt Location 83
1405/827	Roebourne Lot 443
1435/582	North Location 16
1437/701	Roebourne Town Lot 30
1442/176	North Locations 10 & 11
1443/601	Karratha Lot 1485
1445/635	Roebourne Lot 534
1453/191	Roebourne Lot 669
1453/192	Roebourne Lot 667
1453/193	Roebourne Lot 665
1453/194	Roebourne Lot 661
1453/195	Roebourne Lot 660
1453/196	Roebourne Lot 658
1453/197	Roebourne Lot 651
1453/198	Roebourne Lot 645
1453/199	Roebourne Lot 642
1453/200	Roebourne Lot 640
1455/603	Roebourne Lot 630
1455/604	Roebourne Lot 629
1462/999	North Location 32
1484/784	Part of Lot 15 on Diagram 42138
1490/126	Roebourne Lot 140, 141, 142
1500/542	Roebourne Town Lot 14
1500/543	Roebourne Town Lot 16
1517/780	Lot 1 on Diagram 53119
1517/781	Lot 2 on Diagram 53119
1518/440	Roebourne Town Lot 31
1519/118	Roebourne Lot 571
1519/119	Roebourne Lot 574
1519/120	Roebourne Lot 575
1519/121	Roebourne Lot 576
1519/122	Roebourne Lot 577
1519/123	Roebourne Lot 578
1519/125	Roebourne Lot 581
1519/126	Roebourne Lot 582
1519/127	Roebourne Lot 583
1519/128	Roebourne Lot 584
1519/129	Roebourne Lot 585
1519/130	Roebourne Lot 586
1519/131	Roebourne Lot 587
1519/132	Roebourne Lot 588
1519/133	Roebourne Lot 589
1519/134	Roebourne Lot 590
1519/135	Roebourne Lot 591
1519/136	Roebourne Lot 592
1519/137	Roebourne Lot 593
1519/138	Roebourne Lot 594
1519/139	Roebourne Lot 596
1519/140	Roebourne Lot 597
1519/141	Roebourne Lot 598
1519/142	Roebourne Lot 599
1519/143	Roebourne Lot 602
1519/144	Roebourne Lot 603
1519/145	Roebourne Lot 604
1519/146	Roebourne Lot 605
1519/147	Roebourne Lot 606
1519/148	Roebourne Lot 607
1519/149	Roebourne Lot 608
1519/150	Roebourne Lot 609
1519/151	Roebourne Lot 610
1519/152	Roebourne Lot 612
1519/153	Roebourne Lot 613
1519/154	Roebourne Lot 614
1519/155	Roebourne Lot 615
1519/156	Roebourne Lot 616
1519/157	Roebourne Lot 617
1519/158	Roebourne Lot 618
1519/159	Roebourne Lot 619
1519/160	Roebourne Lot 621
1519/161	Roebourne Lot 622
1519/162	Roebourne Lot 623
1519/163	Roebourne Lot 624
1519/164	Roebourne Lot 625
1519/165	Roebourne Lot 626
1519/166	Roebourne Lot 627
1519/167	Roebourne Lot 688
1519/168	Roebourne Lot 570
1519/169	Roebourne Lot 569
1519/994	Cossack Lot 117
1523/780	Roebourne Lot 649
1523/781	Roebourne Lot 650
1525/178	Roebourne Lot 407
1526/90	Roebourne Lot 400
1526/946	North Location 48 and portion North Location 64
1527/151	Roebourne Lot 546
1531/382	Roebourne Lot 489
1531/439	Roebourne Lot 480
1532/262	Roebourne Lot 33
1546/495	Roebourne Town Lot 112
1550/99	Roebourne Town Lot 23
1563/652	Roebourne Lot 487
1564/269	Roebourne Lot 644
1566/568	Roebourne Lot 659
1566/569	Roebourne Lot 704
1566/570	Roebourne Lot 705
1567/519	Karratha Lot 1996
1567/578	Roebourne Lot 662
1581/605	Roebourne Lot 409
1581/606	Roebourne Lot 410
1581/607	Roebourne Lot 411
1585/796	Roebourne Lot 531
1590/377	Roebourne Lot 631
1590/378	Roebourne Lot 524
1590/379	Roebourne Lot 420
1598/311	Roebourne Lot 32
1598/312	Roebourne Lot 34
1599/430	Roebourne Lot 507
1602/758	Roebourne Lot 494
1604/987	Roebourne Lot 513
1608/922	Roebourne Lot 643
1610/761	Roebourne Town Lot 264
1613/0306	Roebourne Lot 634
1617/564	Roebourne Lot 635
1617/565	Roebourne Lot 637
1619/336	Roebourne Lot 517
1624/832	Roebourne Lot 469
1624/833	Roebourne Town Lot 193
1624/0834	Roebourne Lot 552
1626/166	Roebourne Lot 264
1628/574	Roebourne Lot 512
1632/643	Roebourne Lot 675
1634/0234	Roebourne Lot 652
1634/0235	Roebourne Lot 653
1642/0893	Roebourne Lot 488
1644/525	Roebourne Lot 126
1644/526	Cossack Town Lot 167
1646/278	Roebourne Lot 495
1654/988	Roebourne Lot 525
1654/989	Roebourne Lot 526
1659/66	Roebourne Lot 429
1659/67	Roebourne Lot 486
1659/68	Roebourne Lot 490
1659/69	Roebourne Lot 503
1659/71	Roebourne Lot 514
1659/72	Roebourne Lot 516
1659/73	Roebourne Lot 523
1659/74	Roebourne Lot 657
1659/75	Roebourne Lot 668
1659/869	Roebourne Suburban Lot 1 (Part Lot 12 on Plan 528)
1667/5	Roebourne Lot 417
1677/989	Roebourne Lot 424
1683/785	Cossack Town Lot 149
1683/787	Cossack Town Lot 150
1685/729	Roebourne Lot 423
1685/866	Roebourne Lot 418
1687/59	Roebourne Lot 520
1691/19	Roebourne Lot 405
1692/99	Roebourne Lot 454
1694/689	Roebourne Lot 504
1694/857	Lot 100 on Diagram 67860
1694/858	Portion Roebourne Lot 448
1697/31	Roebourne Lot 753
1705/771	Roebourne Lot 424
1708/691	Roebourne Lot 426
1713/478	Roebourne Lot 459
1713/554	Roebourne Lot 461
1714/861	Roebourne Lot 666
1719/18	Roebourne Lot 547
1722/82	Roebourne Lot 427
1723/39	Roebourne Lot 752
1724/734	Roebourne Lot 432
1726/177	Roebourne Lot 452
1728/883	Roebourne Lot 431
1728/884	Roebourne Lot 437
1738/703	Roebourne Lot 110
1738/766	Roebourne Lot 120
1740/598	Roebourne Lot 656
1748/823	Lot 1 on Diagram 70971
1751/134	Roebourne Lot 447
1751/0412	Roebourne Lot 512
1751/413	Roebourne Lot 749
1753/164	Roebourne Lot 151
1773/240	Roebourne Lot 632
1773/241	Roebourne Lot 636
1773/242	Roebourne Lot 648
1773/243	Roebourne Lot 663
1773/867	Roebourne Lot 638
1778/353	Lot 6 on Plan 528
1783/174	Roebourne Lot 466
1785/795	Lot 12 on Diagram 72573
1785/796	Lot 11 on Diagram 72573
1789/434	Lot 14 on Diagram 41455
1792/87	Karratha Lot 4202
1792/687	Lot 12 on Diagram 72573
1795/967	Roebourne Lot 655
1800/365	Roebourne Lot 501
1802/855	Roebourne Lot 548
1810/175	Roebourne Lot 755
1812/355	Roebourne Lot 564
1814/928	Roebourne Lot 475
1817/551	Roebourne Lot 558
1821/191	Roebourne Lot 419
1827/408	Roebourne Lot 147
1827/409	Roebourne Lot 148
1837/802	Roebourne Lot 529
1838/757	Roebourne Lot 530
1845/991	Roebourne Lot 491
1845/992	Roebourne Lot 481
1849/424	Roebourne Lot 476
1857/926	Roebourne Lot 701
1861/571	Lot 1 on Diagram 41696
1861/572	Lot 2 on Diagram 41696
1861/573	Lot 3 on Diagram 41696
1866/336	Roebourne Lot 478
1872/17	Lot 100 on Diagram 77649
1881/279	Lot 710 on Diagram 78197
1881/325	Roebourne Lot 518
1892/697	Lot 1 on Diagram 78763
1903/131	Roebourne Lot 533
1940/136	Roebourne Lot 464
1940/559	Roebourne Lot 664
1946/77	Lot 1 on Diagram 80812
1948/185	Lot 17 on Diagram 52876
1958/220	Roebourne Town Lot 25
1972/692	Peawah Location 58
1977/98	De Witt Location 153
1986/554	Roebourne Lot 414
1991/48	Karratha Lot 1090
1991/423	Roebourne Lot 537
1994/185	Roebourne Lot 678
2009/631	Roebourne Town Lot 49
2023/664	Roebourne Lot 563
2032/535	Karratha Lot  2637
2052/356	Lot 10 on Diagram 89258
2073/140	Roebourne Lot 460
2073/141	Roebourne Lot 540
2081/501	Roebourne Lot 511
2084/921	Roebourne Lot 500
0029/1996 CL

(2)        Town Enrolments:

ET Number	Parcel Identification
2351	Roebourne Town Lot 26
2354	Roebourne Town Lot 40
2356	Roebourne Town Lot 39
2359	Roebourne Town Lots 23 and 24
2360	Roebourne Lots 2, 3
2366	Roebourne Lot 5
2368	Roebourne Town Lot 41
2500	Roebourne Suburban Lot 1
2919	Roebourne Suburban Lot 123
3047	Roebourne Suburban Lot 122
3087	Cossack Town Lot 129
3088	Roebourne Town Lot 22
3092	Cossack Town Lot 121
4125	Roebourne Lot 4
4386	Cossack Town Lot 142
4387	Cossack Town Lot 143
4388	Cossack Town Lot 144
4466	Roebourne Town Lot 20
4470	Roebourne Town Lot 47
4495	Roebourne Town Lot 38

(3)        Town Grants:

GT Number	Parcel Identification
2/481	Cossack Town Lot 10
3/536	Cossack Town Lot 110
3/629	Cossack Town Lot 112
3/748	Roebourne Town Lot 122
3/778	Roebourne Town Lot 12
3/793	Cossack Town Lot 154
4/980	Roebourne Town Lot 48
4/1031	Cossack Town Lot 139
4/1032	Cossack Town Lot 140
5/1177	Roebourne Town Lot 109
5/1310	Roebourne Town Lot 55
5/1313	Roebourne Town Lot 157
5/1314	Roebourne Town Lot 158
5/1321	Cossack Town Lot 174 (but not insofar as it covers the Section 47B Area)
5/1322	Cossack Town Lot 175 (but not insofar as it covers the Section 47B Area)
5/1327	Roebourne Town Lot 173
5/1403	Cossack Town Lot 162
5/1407	Roebourne Town Lot 104
6/257	Roebourne Town Lot 208
6/258	Roebourne Town Lot 177 (but not insofar as it covers the Section 47B Area)
6/260	Roebourne Town Lot 199
6/263	Cossack Town Lot 163
6/291	Roebourne Town Lot 164
6/292	Roebourne Town Lot 165
6/357	Roebourne Town Lot 178 (but not insofar as it covers the Section 47B Area)
7/28	Roebourne Town Lot 207
7/71	Roebourne Suburban Lot 2
7/198	Roebourne Town Lot 220
8/209	Roebourne Suburban Lot 7
8/389	Cossack Town Lot 166
8/395	Roebourne Town Lot 180
8/447	Roebourne Town Lot 179
8/450	Roebourne Town Lot 183
8/458	Roebourne Town Lot 181
8/459	Roebourne Town Lot 182
8/449	Roebourne Suburban Lot 15
8/478	Cossack Town Lot 169
8/484	Roebourne Town Lot 206
8/485	Roebourne Town Lot 210
8/584	Roebourne Suburban Lot 16 (but not insofar as it covers the Section 47A Area)
8/588	Roebourne Town Lot 56
8/635	Cossack Town Lot 106
8/636	Cossack Town Lot 107
8/639	Cossack Town Lot 156
9/89	Roebourne Town Lot 160
9/98	Roebourne Town Lot 159
9/657	Cossack Town Lot 206
10/434	Roebourne Suburban Lot 9
15/111	Roebourne Town Lot 382

(4)        Country Grants:

GC Number	Parcel Identification
2/394	North Location 5
2/397	North Location 7
5/77	North Location 12
5/78	North Location 13
7/7	North Location 38
7/127	North Location 49
7/128	North Location 50

 

(5)        Land Grant:

LG Number	Parcel Identification
1/135	Roebourne Town Lot 36

 

(6)        Memorial of Conveyance:

Number	Parcel Identification
19/270	Part Lot 8 on Plan 528

 

(7)        Special leases:

3116/00798 (but not insofar as it covers the Section 47B Area)	3116/04629	3116/07616	3116/10363
3116/01173	3116/04659	3116/07842	3116/10364
3116/01310	3116/04826	3116/07936	3116/10424
3116/01815	3116/04837	3116/08193	3116/10640
3116/02482	3116/04866	3116/08252	3116/10702
3116/03211	3116/04873	3116/08303	3116/10707
3116/03354	3116/04878	3116/08543	3116/10865
3116/03469	3116/04896	3116/08861	3116/10889
3116/03470 (but not insofar as it covers the Section 47B Area)	3116/04907	3116/08870	3116/11041
3116/03471	3116/04976	3116/09123	3116/11084
3116/03725	3116/04977	3116/09124	3116/11104
3116/03806	3116/04984	3116/09125	3116/11217
3116/03807	3116/05154	3116/09126	3116/11281
3116/04002	3116/05503	3116/09127	3116/11311
3116/04011	3116/05552	3116/09128	3116/11346
3116/04358	3116/05603	3116/09129	3116/11465
	3116/05828	3116/09130	3116/11543
3116/04384	3116/05947	3116/09131	3116/11567
3116/04538	3116/05969	3116/09132	3116/11580
3116/04596	3116/06037	3116/09133	3116/11588
3116/04597	3116/06221	3116/09435	3116/11611
3116/04598	3116/06282	3116/09503	3116/11623
3116/04599	3116/06499	3116/09578	3116/11668
3116/04600	3116/06691	3116/09678	3116/11671
3116/04621	3116/06702	3116/09914	3116/11780
3116/04622	3116/06806	3116/10115	3116/4892
3116/04623	3116/06829	3116/10135	3116/10694
3116/04624	3116/06940	3116/10136
3116/04625	3116/06967	3116/10179
3116/04628	3116/07615	3116/10252

(8)        Other leases:

1444/152	332/1842	333a/2190
1508/152	332/1930	Lease of Reserve 35798
1509/152	332/2096	Lease of Reserve 39161
494/153	333/721	I88601
519/153	333/722
524/153	333/726
525/153	333/734

(9)        Roads:

Road ID	Road No	Road Name
1	155
2	156
3	279
4	371
5	388	North West Coastal Highway
6	390	Roebourne Wittenoom Road
7	391
8	392
9	393
10	407
11	432	North West Coastal Highway
12	656
13	657
14	658
15	1206
16	1644
18	7694
19	7695
20	7696
21	14625
22	14780
25	15215
26	15389
27	16088
28	18651
29		Road
30		Sams Creek Road
31		Point Samson Roebourne Road
32		Point Samson Roebourne Road
33		Point Samson Roebourne Road
34		Point Samson Roebourne Road
35		Road
36		Point Samson Roebourne Road
37		Point Samson Roebourne Road
39		North West Coastal Highway
40	15863	North West Coastal Highway
41		Croul Road
42		Road
43	15863	North West Coastal Highway
44	432	North West Coastal Highway
45	15863	North West Coastal Highway
46		Burrup Road
47	18785	Mof Road
48		Burrup, Village and Bay Roads
49	18741	Griffin Road
50		Hearson Cove and Burrup Roads
51		Burrup Road
52	16312
53		Cinders Road
54		Cinders Road
55	16211	Cinders Road
56	16211	Cinders Road
57	15444	Dampier Road
58	15444	Dampier Road
59	15444
60	15444	Dampier Road
61		Road
62	17821	Madigan Road
63		Rosemary Road
64		Gwen Road
65		Karratha Road
66		Corral Road
67		Mystery Road
68		Robins Road
69	18673	Kennels Road
70	388
71		Karratha Road
72	14530
73	17922	Madigan Road
74		Rankin Road
75		Roads
76		Roads
77		Roads
78		Roads
79		Jager Street
80		Jager Street, Samson Road and Murray Road
81	15861	Watson Street
82	14273	Samson Road
83	14274	Nairn Street
84	14272	Cleaverville Road
85	14275
86		Burrup Road and Lockyer Way
87		Roads
88		Cleaver Court
89		Roads
90		Roads
91		Roads
92		Roads
93	390	Scholl Street
94	390	Scholl Street
95	15597	Fisher Drive
96	13979	De Grey Street
97	13979	De Grey Street
98	15864	Jiwuna Way
99		Jiwuna Way
100	15863	North West Coastal Highway
101		Road
102	15863	North West Coastal Highway
103	15863	North West Coastal Highway
104	15863	North West Coastal Highway
105		Roads
106	13959	North West Coastal Highway
		Section of road 390 shown in Government Gazette 31 August 1893 page 869
	3705	Portion of Point Samson - Roebourne Road
		Road on Deposited Plan 217003
		Portion of Point Samson-Roebourne Road (shown on Deposited Plans 214781 and 214782)
		Hakea Place (shown on Deposited Plan 214782)
		Portion of Spinifex Road (shown on Deposited Plan 214782) as shown on Map 1
		Tamarind Place (shown on Deposited Plan 214782)

 

(10)      Resumptions:

Parcel No (Whole or part of)	Parcel Type	Government Gazette Details (containing extent of resumption)
3116/4629	Special Lease	21.02.1995 pp 576, 577
394/439	Pastoral Lease	09.08.1974 p 2966
3114/439	Pastoral Lease	09.08.1974 p 2966
3114/464	Pastoral Lease	18.05.1979 p 1329
3114/466	Pastoral Lease	09.08.1974 p 2966
3114/716	Pastoral Lease	18.05.1979 p 1329
		28.01.1983 p 356
1240/869	Freehold	23.08.1985 p 3005
1240/868	Freehold	23.08.1985 p 3005
1240/867	Freehold	23.08.1985 p 3005
1067/369	Freehold	23.08.1985 p 3005
R 611	Reserve	21.02.1995 pp 576, 577
R 613	Reserve	21.02.1995 pp 576, 577
part R 9701	Reserve	18.05.1979 p 1330
R 30948	Reserve	28.10.1997 p 5977
part R 31113	Reserve	18.05.1979 p 1330
part R 31114	Reserve	18.05.1979 p 1330
R 41012	Reserve	28.10.1997 p 5977
Land marked off and more particularly described on Plan PWD WA 48208-1-3-4-5-6-7-8		18.05.1979 p 1329
Karratha Lot 4631, Crown land volume 3113 folio 465	Unallocated Crown land	Taking order dated 20.11.2001
Land shown on Deposited plans 194628 & 28085	Unallocated Crown land	Taking order dated 05.01.04

 

(11)      Vested reserves:

492	30717	33666	36424	37967	40877
715	30871	33812	36633	38009	40879
1186	30872	33861	36708	38193	40896
1564	30948	33864	36778	38287	41012
1721	31289	33945	36800	38387	41049
1724	31429	34034	36813	38616	41092
1729	31446	34129	36889	38773	41275
4562	31624	34254	36907	38962	41594
12346	31815	34403	36908	39095	41636
12464	31950	34588	36909	39140	41666
12654	31999	34631	36910	39141	41739
15645	32059	34687	36911	39161	41764
17500	32209	34922	36912	39202	42039
18301	32318	34944	36913	39775	42080
24006	32465	35053	36915	39776	42311
24116	32980	35140	36991	39777	42337
24573	32981	35385	37120	39778	42399
25208	32987	35452	37121	39973	42820
25981 (but not insofar as it covers the Section 47B Area)	33023	35776	37140	40071	42850
27211	33134	35798	37294	40121	43195
28352	33135	35813 (but not insofar as it covers the Section 47B Area	37314	40146	43302
29092	33250	35823	37315	40174	43303
29304	33354	35892	37349	40206	43734
30071	33360	36408	37526	40457	44103
30450	33361	36409	37669	40599	44292
30617	33577	36416	37835	40718	44452
30649	33643	36423		40858

(12)      Part of vested reserves

21807	Not insofar as it covers the same land as Reserve 35802 or insofar as it covers the Section 47B Area
31768	Not insofar as it covers the Section 47B Area

(13)      Reserves containing public works:

187	1732	12253	33876	37780
188	1766	12254	34034	38492
268	3357	12255	34255	40877
347	3619	17074	34403	41012
898	3841	18301	35053	44452
1190	3950	25592	35360	46193
1449	5908	30506	36633
1468	5923	31191	36800
1718	5933	31446	37120
1722	7319	32058	37121
1723	8532	32059	37349
1725	9355	32181	37543
1728	12246	33354	37680

(14)      Easements containing public works:

Number	Vestee/Owner
3134B/211	State Energy Commission of WA
3134B/327	State Energy Commission of WA
3134B/342	State Energy Commission of WA
3134B/350	State Energy Commission of WA
3134B/351	State Energy Commission of WA
3134B/353	State Energy Commission of WA
3134B/372	State Energy Commission of WA
3134B/373	State Energy Commission of WA
3134B/389	State Energy Commission of WA
3134B/39	State Energy Commission of WA
3134B/40	State Energy Commission of WA
3134B/41	State Energy Commission of WA
3134B/42	State Energy Commission of WA
3134B/43	State Energy Commission of WA
3134B/44	State Energy Commission of WA
3134B/45	State Energy Commission of WA
3134B/46	State Energy Commission of WA
3134B/47	State Energy Commission of WA
3134B/48	State Energy Commission of WA
3134B/55(1)	State Energy Commission of WA
3134B/55(2)	State Energy Commission of WA
3134B/56	State Energy Commission of WA

 

(15)      Other public works:

Description	Area no.
Harding Dam Supply Main (De Witt loc 187)	554
Cape Lambert Supply Main extension (including Wickham, Cape Lambert, Roebourne and Point Samson tanks)	130, 308 and land described in Government Gazette 9 August 1974 page 2966
Cossack Radio Transmitter and the land on which it is constructed within the meaning of section 251D of the Native Title Act 1993 (Cth), being a square area of no greater than 100m2 (10m x 10m) within Roebourne Suburban Lot 127	Part of 533

(16)      Mining tenements:

Tenement no.

BA 47/035

BA 47/093

BA 47/101

RA 47/102

TL 11

ML 253SA

(17)      Port areas:

Dampier Port Area

Port Walcott Port Area

Balla Balla Port Area

Point Samson Boat Harbour

(18)      Legislation:

	Area extinguished
Cossack-Roebourne Tramway Act 1886	All of Area no.568

 

(19)      Seabed lease:

Seabed Lease (Product Loading Jetty) to Woodside Joint Venturers

‘Offshore Islands’ means the land landward of the mean low water mark of islands in the Offshore Waters, excluding the Burrup and Depuch Island and the Ngarluma Total Extinguishment Area, as shaded in red on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

 

‘Offshore Waters’ means the waters within the Determination Area seaward of the mean low water mark of the coastline, as shaded in light blue on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Subterranean Waters’ means waters which are for the time being contained in aquifers underneath the natural surface of the Determination Area; but does not include such waters to the extent they have percolated to the natural surface of the Determination Area.

‘Telstra Area’ means the land comprising Telstra Corporation Limited's:

(1)     customer terminal sites; and

(2)     Mount Fraser Optical Fibre Regenerator site, being Peawah Location 63, as shown on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Telstra Cable Routes’ means the land and waters through which Telstra Corporation Limited's underground cabling is installed.

‘Total Extinguishment Area’ means the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area, as shaded in olive on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.  In the event of an inconsistency between the written description of the Ngarluma Total Extinguishment Area or the Yindjibarndi Total Extinguishment Area and the Total Extinguishment Area as depicted on the Maps in Attachment 2, the written description prevails.

‘Yindjibarndi Area’ means the land and waters bordered and hatched in orange on the maps marked ‘Map 1’ which are Attachment 2 to this First Schedule.

‘Yindjibarndi Native Title Area’ means the Yindjibarndi Area but not including the Yindjibarndi Total Extinguishment Area.

‘Yindjibarndi Total Extinguishment Area’ means the land and waters the subject of the following interests:

(1)        Certificates of Title

CT Number	Parcel Identification
582/121	North Location 18
1193/65	North Location 15

(2)        Country Grants:

GC Number	Parcel Identification
2/720	North Location 8
9/209	North Location 24

 

(3)        Special leases:

3116/04001	3116/04621	3116/06431	3116/08475
3116/04002	3116/04622	3116/07842	3116/08476
3116/04011	3116/04892	3116/08474	3116/4984

(4)        Other leases:

Lease of Reserve 35798

(5)        Roads:

Road ID	Road No	Road Name
1	155
6	390	Roebourne Wittenoom Road
16	1644
17	1645
23	14832
24	14833

 

(6)        Resumptions:

Parcel No. (Whole or part of)	Parcel Type	Government Gazette Details (containing extent of resumption)
394/475	Pastoral Lease	21.09.1973 p 3534
394/978	Pastoral Lease	15.06.1973 p 2274
		21.09.1973 p 3534
394/1468	Pastoral Lease	15.06.1973 p 2274
3114/788	Pastoral Lease	12.03.1982 p 823 (but not including the area of Reserve 41013)
North Location 8	Freehold	12.03.1982 p 823

(7)        Vested reserves:

382	14687	31429	38333	40091
1780	24392	35798	38790	40743
3305	30071	36991	38991

(8)        Reserves containing public works:

365	5514	12252	38492
3305	12251	12260

 

(9)        Other public works:

Description	Area no.
Asburton location 55	72
Ashburton location 58	95
Ashburton location 59	94
De witt location 93	90
De witt location 182	181
North location 18	100