Moses v State of Western Australia [2007] FCAFC 78 (7 June 2007)

NATIVE TITLE – determination of native title rights and interests – Native Title Act 1993 (Cth) s 223(1) – whether connection to land and waters by traditional laws and customs – whether land-holding system "traditional"

NATIVE TITLE – determination of native title rights and interests – sufficiency of description of native title holders

NATIVE TITLE – prescribed bodies corporate – Native Title Act 1993 (Cth) ss 56(2) and 57(2) – where determination of native title rights and interests recognises two separate native title holding groups – whether ss 56(2) and 57(2) allow nomination of more than one prescribed body corporate in respect of determination area

NATIVE TITLE – Native Title Act 1993 (Cth) – extinguishment – extinguishing effect of grant of pastoral leases

NATIVE TITLE – Native Title Act 1993 (Cth) – determination of native title rights and interests – whether recognition of native title rights and interests should be limited to areas in which they are currently exercised

NATIVE TITLE – disregarding extinguishment – Native Title Act 1993 (Cth) s 47A(1)(b)(ii) – whether pastoral lease and freehold titles held expressly for the benefit of Aboriginal peoples – where land held by company incorporated under general companies legislation – where objects of major shareholder concerned with benefiting Aboriginal peoples

NATIVE TITLE – disregarding extinguishment – reservations - Native Title Act 1993 (Cth) s 47B(1)(b) – whether temporary reserves created under Mining Act 1904 (WA) "reservations" under s 47B(1)(b)(ii) – whether evidence sufficient to establish occupation of areas under s 47B(1)(c)

PRACTICE AND PROCEDURE – appeals – certain appeal grounds only to be allowed by consent – Federal Court of Australia Act 1976 (Cth) s 25(2B)(b) – whether s 25(2B)(b) permits disposal of some appeal grounds by consent prior to determination of balance of appeal

Native Title Act 1993 (Cth) ss 23B(9)(b), 47, 47A, 47B, 56(2), 57(2), 61, 68, 87, 94A, 223, 225, 228(3), 238, 251B
Racial Discrimination Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 24(1)(a), 25(2B)(b), 27, 28
Aboriginal Councils and Associations Act 1976 (Cth) s 58A
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 14, 191A
Aboriginal Development Commission Act 1980 (Cth)

Native Title Amendment Bill (No 2) 1997 (Cth)

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 5, 8, 9

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 12I
Country Areas Water Supply Act 1947 (WA)
Land Administration Act 1997 (WA) s 79
Mining Act 1904 (WA) ss 26, 275, 276, 276A, 277, 277A, 278
Land Act 1933 (WA) s 116
Companies Act 1961 (WA)
Associations Incorporation Act 1895-1969 (WA)
Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT)
Mining Act 1978 (WA)
Cossack-Roebourne Tramway Act 1886 (WA)

Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; [2004] FCA 472 cited
Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 referred to
Bodney v Bropho [2004] FCAFC 226 cited
Colbung v Western Australia [2003] FCA 774 cited
CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1 referred to
Dale v Moses [2007] FCAFC 82 cited
De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325 cited
De Rose v State of South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 discussed
Erubam Le (Darnley Islanders) No 1 v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155 cited
Griffiths v Northern Territory [2006] FCA 903 referred to
Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 cited
Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 considered
Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005) 143 FCR 544 referred to
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 referred to
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 discussed
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered
Munn v State of Queensland [2002] FCA 486 referred to
Neowarra v State of Western Australia [2003] FCA 1402 considered
Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; [1959] AC 248 referred to
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 discussed
Risk v Northern Territory of Australia [2006] FCA 404 considered
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 considered
Rubibi Community v Western Australia [2001] FCA 607; (2001) 112 FCR 409 cited
Sampi v Western Australia (No 3) [2005] FCA 1716 referred to
Sampi v Western Australia [2005] FCA 777 referred to
State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 followed, discussed
The Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 referred to
Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 referred to
Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 cited
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 referred to
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 followed, discussed
Wilson v Anderson [2002] HCA 29; (2002) 190 ALR 313 cited

DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (ON BEHALF OF THE YINDJIBARNDI PEOPLE) v STATE OF WESTERN AUSTRALIA, P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) AND COMMONWEALTH OF AUSTRALIA

STATE OF WESTERN AUSTRALIA AND COMMONWEALTH OF AUSTRALIA v DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (ON BEHALF OF THE YINDJIBARNDI PEOPLE); P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) AND MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441)

WAD 114 OF 2005

MOORE, NORTH & MANSFIELD JJ
7 JUNE 2007
SYDNEY (VIA VIDEO LINK TO PERTH)

BETWEEN:	DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) Appellant
AND:	STATE OF WESTERN AUSTRALIA First Respondent P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent
BETWEEN: AND:	STATE OF WESTERN AUSTRALIA First Cross Appellant COMMONWEALTH OF AUSTRALIA Second Cross Appellant DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People) BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) First Cross Respondents P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Cross Respondents MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441) Third Cross Respondents

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:	DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) Appellant
AND:	STATE OF WESTERN AUSTRALIA First Respondent P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent
BETWEEN: AND:	STATE OF WESTERN AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALLIA Second Cross Appellant DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMONAND LES HICKS (on behalf of the Ngarluma People) BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) First Cross Respondents P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Respondents MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441) Third Cross Respondents

1 On 2 May 2005 a judge of this Court made a determination of non-exclusive native title rights and interests in respect of a portion of land and waters in Western Australia under the Native Title Act 1993 (Cth) (the NTA). The holders of the native title rights and interests so determined were the Ngarluma people and the Yindjibarndi people. The learned primary judge dismissed, to the extent that they overlapped with the claim of the Ngarluma and Yindjibarndi peoples, three other native title claims over parts of the determination area.

2 Two appeals from the reasons and orders of the primary judge were subsequently instituted. The first appeal, proceeding WAD 114/2005, was lodged by the Ngarluma and Yindjibarndi peoples and concerns certain portions of the claim area in which his Honour found that native title had been wholly extinguished. The second appeal, WAD 120/2005, was lodged by the Wong-Goo-TT-OO people, whose competing claim of native title in respect of part of the claim area was unsuccessful. The appeals were heard together. These reasons are concerned with the appeal of the Ngarluma and Yindjibarndi peoples.

3 Native title rights and interests in the claim area were asserted by two other groups at first instance: the Yaburara and Mardudhunera people, and the Kariyarra people. Their claims were also unsuccessful. They are not the subject of any appeal.

4 The respondents to the first appeal are the State of Western Australia (the State), the Commonwealth of Australia (the Commonwealth) and certain pastoralists.

6 To properly identify the issues to be addressed on the appeal, it is necessary to set out in some detail the nature of the claims before the learned primary judge, and his findings and reasons with respect to those claims insofar as they are relevant to the appeal. The following is largely taken from the relevant portions of the reasons at first instance.

7 The learned primary judge published reasons for several rulings prior to and during the trial: Daniel for Ngaluma People v Western Australia [1999] FCA 686; Daniel v State of Western Australia [1999] FCA 1541; (1999) 94 FCR 537; Daniel v State of Western Australia [2000] FCA 413; Daniel v State of Western Australia [2000] FCA 858; (2000) 178 ALR 542; Daniel v State of Western Australia [2000] FCA 1334; Daniel v State of Western Australia [2000] FCA 1356; Daniel v State of Western Australia [2001] FCA 223; (2001) 186 ALR 369. A further interlocutory decision in relation to certain proposed replacement applicants was given by French J on 13 September 2002: Daniel v State of Western Australia [2002] FCA 1147; (2002) 194 ALR 278.

8 The substantive decision of the learned primary judge on the native title claims was delivered on 3 July 2003: Daniel v State of Western Australia [2003] FCA 666 (the July 2003 reasons). The July 2003 reasons included a determination of native title in draft form. The parties were given a limited opportunity to make further submissions on various issues arising from the July 2003 reasons and the draft determination. His Honour’s subsequent rulings on those issues were delivered on 5 December 2003, 2 July 2004, 29 October 2004, 4 March 2005 and 21 March 2006. The nature of those further rulings is described below insofar as they are relevant to the issues on appeal.

10 The claim area, roughly rectangular in shape, is situated in northwest Western Australia, slightly west of Port Hedland. The area can be described as "roughly rectangular" because that portion of the Western Australian coastline which forms the northern boundary of the claim area runs in an approximately east-west direction. The northern boundary of the claim area encompasses offshore islands, including the Dampier Archipelago (also known as the Burrup Peninsula). The western boundary of the claim area approximately corresponds with the Maitland River and its eastern boundary runs between the Balla Balla and Peawah Rivers. The claim area extends southwards to the Hamersley Ranges, which form the southern boundary of the claim area.

11 In relation to the northern portion of the claim area, the learned primary judge used the term "the Burrup" as encompassing the Burrup Peninsula and the islands in the claim area surrounding that Peninsula (to the north and west). The Burrup Peninsula extends northwards from the coast near the western boundary of the claim area.

12 The claim area rises in altitude southwards from the coast. The area between the sea and the Chichester Ranges is generally described as the "lowlands". Some 60-80 kilometres south of the coast, beyond the Chichester Ranges and extending southwards to the foothills of the Hamersley Ranges is a plateau known locally as the "Tablelands". In the circumstances referred to in [25] and [26], that part of the claim area known as the "lowlands" can also be called the Ngarluma claimed territory and that part of the claim area to the south of the Chichester Ranges can also be called the Yindjibarndi claimed territory.

13 The claim area overlaps in part the shires of Ashburton, East Pilbara and Roebourne. Its major population centres – Dampier, Karratha, Wickham, Point Samson, Roebourne and Cossack – are located in the northwest coastal portion. The remainder of the region is sparsely settled, although there are some people living in the small settlement of Whim Creek (in the east) and on pastoral stations or centres associated with Millstream National Park and Harding Dam (Ngurin). The major population centres within the claim area of Dampier, Karratha, Wickham and Point Samson were excluded from the claims. That is reflected in the final determination and orders on 2 May 2005.

14 As at 23 December 1996 (the date by which certain acts must have taken place in order to effect complete or partial extinguishment of native title pursuant to Div 2B of Pt 2 of the NTA), the Karratha, Mt Florance, Warambie, Pyramid, Sherlock, Mt Welcome, Hooley, Mallina and Coolawanyah pastoral leases were in existence within the claim area, as well as an unnamed pastoral lease, no. 398/824.

15 In the proceeding at first instance, three applicant groups and one respondent group sought determinations of native title over parts of the claim area.

16 The proceeding originated from an application for determination of native title by representatives of the Ngarluma people and representatives of the Yindjibarndi people lodged with the Registrar of the National Native Title Tribunal on 8 June 1994. That application, and a further application lodged by the same applicants on 22 December 1994 which extended the scope of the claim, was lodged with the Federal Court on 25 November 1996.

17 The Ngarluma people and the Yindjibarndi people were ultimately described as the first applicants in the proceeding, WAG 6017/1996. Overlapping parts of two other native title determination applications were subsequently consolidated with the Ngarluma/Yindjibarndi claim, so that the Yaburara and Mardudhunera people became the second applicants to the proceeding and the Wong-Goo-TT-OO people became the third applicants. The Yaburara/Mardudhunera claim (WAG 127/1997) covers an area west of the Ngarluma/Yindjibarndi claim area and overlapped the north-western portion of the latter claim area in the designated Ngarluma area, including the Burrup and surrounding islands. The Wong-Goo-TT-OO claim area in WAG 6256/1998 also lies west of the Ngarluma/Yindjibarndi claim area, overlapping much of the Yaburara/Mardudhunera claim area. It covers roughly half of the Ngarluma claimed territory (including the Burrup) and extends southwards into a portion of the Yindjibarndi claimed territory.

18 The application by the Kariyarra people in Federal Court proceeding WAG 6169/98 also overlapped to some extent with eastern part of the Ngarluma/Yindjibarndi claim area in two portions of the claim area. The Kariyarra claim area is east of, and almost entirely separate from, the Ngarluma/Yindjibarndi claim area. The overlap was limited to two small portions of land along the eastern boundary of the Ngarluma/Yindjibarndi claim area, in the north in the vicinity of Depuch Island (Ngarluma claimed territory) and in the south in the area of Mungaroona Range Nature Reserve (Yindjibarndi claimed territory). The Kariyarra people were joined as respondents 19D to the proceeding and were represented by solicitors, but apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [192]- [193] (Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005) 143 FCR 544 at [22]; Munn v State of Queensland [2002] FCA 486. Of course the obverse position, namely a decision that the Kariyarra people did not have native title rights and interest in those overlapping areas, was able to be made, because competing evidence that the Kariyarra people enjoyed native title rights and interests in these overlapping parts of the claim area was adduced. Such a conclusion did not have to address the issues arising under s 251B of the NTA.

19 The balance of the Kariyarra native title claim remains on foot and has recently been referred to a docket judge for case management.

20 Several other overlapping claims existed prior to the hearing of the matter, but it is not now necessary to refer to those applications.

21 Attached as Annexure A to these reasons is an extract from a map entitled "Native Title Claims – Gascoyne/Pilbara Region", showing the boundaries of the Ngarluma/Yindjibarndi, Wong-Goo-TT-OO, Yaburara/Mardudhunera and Kariyarra claims as filed. The map was produced on 20 December 1999 by the Department of Land Administration, and was provided to the Court as an aide memoire after the hearing by the solicitors for the Wong-Goo-TT-OO people. It should be noted, however, that at the hearing before the primary judge the Ngarluma and Yindjibarndi peoples limited the geographical area of their claim to waters within a boundary 3 kilometres seaward of the low water mark from the mainland and the outermost islands within the existing claim boundary but including the waters between the islands and the mainland and between the islands themselves: July 2003 reasons at [86].

22 The trial commenced on 20 September 1999. It occupied a total of 81 hearing days. The primary judge heard evidence from 76 Aboriginal witnesses, eleven expert witnesses, three pastoralists and three retired pastoralists. Closing submissions were heard on 25 February 2003, following a substantial adjournment of the proceeding pending delivery of the High Court’s decisions in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward (HC)), The Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 (Yarmirr) and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta).

23 From September 2002, the named applicants in respect of the Ngarluma and Yindjibarndi application were a now deceased person DD, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people.

24 In their final submissions, the Ngarluma and Yindjibarndi peoples submitted that their claim group included members of the Wong-Goo-TT-OO group and some members of the Yaburara/Mardudhunera group (in particular, the Cosmos family).

25 It was claimed that the lands traditionally associated with the Ngarluma people are situated in the northern lowland areas of the claim area and those of the Yindjibarndi people are situated on the Tablelands. The learned primary judge identified an "indeterminate zone of mixed Ngarluma and Yindjibarndi" running more or less along the escarpment of the Chichester Ranges. In the course of his reasons, his Honour found that the Yaburara people were not a part of the Ngarluma tribal group at sovereignty, and observed that the consequence of that finding was that the claim of the Ngarluma and Yindjibarndi peoples to the Burrup would not succeed. This was apparently acknowledged by the Ngarluma and Yindjibarndi peoples: see July 2003 reasons at [372]. That was because the claim of the Ngarluma and Yindjibarndi peoples to the Burrup depended upon the membership of their claim group including certain members of the Yaburara people.

26 The Ngarluma and Yindjibarndi peoples asserted that in relation to the claim area (excluding the towns of Dampier, Karratha, Wickham and Point Samson) there are two groups who hold rights comprising native title rights – the Ngarluma people and the Yindjibarndi people. It was said that the Ngarluma and Yindjibarndi peoples each form, or are part of, a society with a body of traditional laws and customs on a range of matters, including ownership and management of land and waters. The primary submission was that the people holding the native title rights and interests are the Ngarluma and Yindjibarndi peoples; but it was submitted in the alternative that the people holding the native title rights and interests in the Ngarluma territory are the Ngarluma people and the people holding the rights and interests in the Yindjibarndi territory are the Yindjibarndi people. The latter formulation was ultimately favoured by the learned primary judge.

27 The content of the respective rights and interests claimed by the Ngarluma and Yindjibarndi peoples, the Yaburara and Mardudhunera people, the Wong-Goo-TT-OO people and the Kariyarra people are set out at [66], [73], [77] and [84] of the July 2003 reasons of the learned primary judge.

28 The named applicants in respect of the Yaburara/Mardudhunera claim, from November 2002, were Valerie Holborow, Kevin Cosmos and Robert Boona, on behalf of the Yaburara and Mardudhunera people. They claim the lands said to have been originally occupied by the Yaburara people (the Burrup) and the country said to have traditionally been occupied by the Mardudhunera people, as briefly described above and depicted in the map attached to these reasons as Annexure A.

29 The Yaburara and Mardudhunera people’s claim extended to a range of specified native title rights and interests in respect of that portion of their claim area which overlaps with the claim of the Ngarluma and Yindjibarndi peoples – that is, a roughly triangular section of the north-west portion of the claim area extending southwards from the coast, with an inland extent of approximately 30 kilometres at its southern point. It included the Burrup and the surrounding islands and waters. They did not file any written submissions or call any expert or other evidence in support of that claim, but relied orally on the submissions for the Ngarluma and Yindjibarndi peoples. The primary judge observed that it was not clear on the pleadings whether the overlap area was said to be wholly Yaburara or wholly Mardudhunera, partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera.

30 The Wong-Goo-TT-OO claim was brought by Betty Dale, Tim Douglas, Wilfred Hicks, Dallas Hicks, Ernie Ramirez and Cane Hicks. The name "Wong-Goo-TT-OO" was adopted by those claimants for the purpose of their native title claim. It is not the traditional name of any group of Aboriginal people.

31 The Wong-Goo-TT-OO people divided the area the subject of their claim into a "core area" and a "non-core area". The core area of their claim was comprised of an area identified as "Pularra" (between the George and Nickol Rivers), the Thaluntha (Karratha) estate, and the Burrup. The core area overlaps with the Ngarluma portion of the Ngarluma/Yindjibarndi claim area. The Wong-Goo-TT-OO people asserted exclusive rights of possession, occupation, use and enjoyment of the land and waters in relation to that overlapping area. They submitted at first instance and on appeal that the claim of the Ngarluma peoples should be restricted to that part of the claimed Ngarluma territory lying east of the George River and identified in the evidence of Kenny Jerrold, Tim Douglas and Wilfred Hicks.

32 The Wong-Goo-TT-OO people claimed to hold native title rights and interests in the Pularra estate by "direct matrilineal descent" from Woodbrook Mary, an ancestor of the Hicks and Douglas families, and from Nyungurtu, an ancestor of the Ramirez family. Their claim to the Thaluntha estate was through cognatic descent from the families of Jack Hicks and his wife Charlotte (Wittingbung). In relation to the Burrup, the Wong-Goo-TT-OO claimed to be successors in title through the traditional interest and connection of the Hicks family to those lands, and by alleged transmission of interest to the Hicks family by the last known indigenous inhabitants of the archipelago, Maitland and Island.

33 In relation to the non-core area (which overlaps to some extent with the Yindjibarndi claimed territory, and being that part of the Wong-Goo-TT-OO claim area roughly south of the Chichester Ranges) the Wong-Goo-TT-OO people asserted that the native title rights and interests claimed were shared by the Wong-Goo-TT-OO people and the Yindjibarndi people but were otherwise held to the exclusion of all others (subject to certain exceptions, such as current use pursuant to a non-exclusive agricultural or pastoral lease).

The July 2003 reasons (Daniel v State of Western Australia [2003] FCA 666)

34 In relation to each of the claimant groups at first instance (including the Kariyarra people), the primary judge considered in the first place the evidence of presently observable behaviour in relation to the rights and interests claimed by those people. His Honour then considered, in respect of each party claiming native title, whether they could be described as a "group" for the purposes of the NTA; and whether they are sufficiently connected to the Aboriginal peoples who occupied the claim areas prior to European settlement so as to show that the community in occupation of the land at sovereignty was the predecessor of a community that now claims native title. Finally, his Honour considered whether each of the claimant parties had established the requisite continuity between the observable behaviour in relation to the rights and interests claimed, and the rights and interests existing at sovereignty, so as to satisfy the requirement in the NTA that those rights and interests are presently possessed under "traditional" laws and customs: see s 223 of the NTA.

FINDINGS OF THE PRIMARY JUDGE REGARDING THE NGARLUMA AND YINDJIBARNDI PEOPLES

35 The Ngarluma and Yindjibarndi peoples partly succeeded in their claim of native title.

36 The determination of their native title rights and interests extended (subject to the qualification referred to below) over the whole of the area claimed, excluding the Burrup. It included the inter-tidal zones, being the areas between the mean high water mark and the mean low water mark and areas of tidal waters inland of the mean high water mark. But, contrary to the claim of the Ngarluma people and the Yindjibarndi people to be treated as one claim group, they were treated as separate claim groups. The determination separately identified the native title rights and interests of the Ngarluma people in the Ngarluma claimed territory (excluding the Burrup) and the native title rights and interests of the Yindjibarndi people in the Yindjibarndi claimed territory. Consequently, the primary judge ordered that there be two separate prescribed bodies corporate in respect of those separate parts of the claim area.

37 A determination in draft form was attached to the July 2003 reasons, to reflect the findings of the primary judge as to the content of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples. The native title rights and interests as found were rights and interests in the nature of non-exclusive rights over the claim area (excluding the Burrup). In some cases the exercise of the rights was limited to specific geographical areas within the proposed determination area.

38 The precise content of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples as found by the primary judge (summarised below) was more limited than the rights as claimed. With one qualification, the content of those rights as determined is not challenged on appeal. Some of the recognised native title rights and interests were found to be confined to certain geographical areas within the claim area. The extent of the area in which the Ngarluma and Yindjibarndi peoples were determined to hold native title rights and interests was also more limited than the area claimed, to reflect his Honour’s findings on extinguishment. Some aspects of those findings are the subject of the Ngarluma/Yindjibarndi appeal.

39 To the extent necessary to address the matters raised on the appeal, the nature of the determination and the reasons for it are explained further when addressing the grounds of appeal or cross-appeal.

FINDINGS OF THE PRIMARY JUDGE REGARDING THE YABURARA AND MARDUDHUNERA PEOPLE

41 His Honour found that those of the Yaburara/Mardudhunera people who claimed to be Yaburara had not established that to be the case. He concluded, on the evidence, that those persons having a claim in the claim area claimed as Mardudhunera.

42 Of the rights and interests claimed by the Yaburara/Mardudhunera people, his Honour considered that there was evidence of presently observable behaviour in relation to only two: use of, and enjoyment of resources of, the land and waters claimed; and maintenance and protection of places of importance on the land: July 2003 reasons at [308] and [310]. He was not satisfied that the Mardudhunera people exercised those rights continuously back to sovereignty. Therefore, the requisite continuity in respect of the laws and customs presently observed by those people had not been established.

43 His Honour was not satisfied that the Burrup was inhabited by the Yaburara; and that if (contrary to that conclusion) it was inhabited by the Yaburara or a group by any other name, that group disappeared as an identifiable group early in the 20^th century.

44 The primary judge accepted that the Wong-Goo-TT-OO people qualified as a group for the purposes of the application of the NTA. He did not accept that the Wong-Goo-TT-OO group has had continuity back to sovereignty.

45 The Wong-Goo-TT-OO people sought to establish that their group has had continuity back to sovereignty in one or all of four ways: through the Douglas family; through the Hicks family; through the Ramirez family; or through the alleged transfer of interest in the Burrup from Maitland and Island to Jack Hicks, referred to above.

46 The primary judge accepted that the Douglas family (which is related to the Hicks family) and the Ramirez family could each trace their ancestry back to sovereignty. He also found that the Hicks family could trace its ancestry back to sovereignty, albeit only "through the Douglas link or as part of the Ngarluma/Yindjibarndi group": July 2003 reasons at [378]. However, his Honour rejected the Wong-Goo-TT-OO people’s claim that a genealogical connection between the Douglas and Ramirez families was established through the Hicks family. Thus, no continuity in the mutual or common relation based on family connection was established between all members of the Wong-Goo-TT-OO group.

47 Furthermore, as the primary judge was not satisfied that before the constitution of the Wong-Goo-TT-OO group its members had any common relation or purpose other than their claimed "familial commonality", he was not prepared to infer that the actions of any one family were taken on behalf of the three families constituting the group: July 2003 reasons at [384].

48 His Honour also rejected the submission of the Wong-Goo-TT-OO people that their continuity as a group could be established through a transmission of rights in the Burrup from Maitland and Island to Jack Hicks. As to the balance of the Wong-Goo-TT-OO claim area (the Pularra and Thaluntha estates), his Honour found that certain presently observable behaviours had been established on the evidence. However, his Honour concluded that connection could not be made out in respect of the rights and interests reflected in presently observable behaviour, even though they appeared in traditional form, because of the discontinuity in the group as found. Thus, the claim of the Wong-Goo-TT-OO people failed.

49 The assertion of the Kariyarra people to native title rights and interest in that part of their claim area which overlapped with the Ngarluma/Yindjibarndi claim area was rejected.

50 As noted above, no evidence was given at the hearing by the Kariyarra people. The primary judge observed that much of the evidence given by others relating to the Kariyarra did not relate to that part of the area of their claim which was presently under consideration. In those circumstances, his Honour found that the evidence was insufficient to establish that they presently exercised all or any of the rights claimed in respect of that part of their claim area.

51 The extensive findings of the primary judge on issues of extinguishment in the July 2003 reasons were expressed as "preliminary". Those findings were further refined in the subsequent decisions referred to below, the parties having been given an opportunity to make further written submissions "in relation to the preliminary views expressed in the reasons on inconsistency between extinguishing interests and the non-exclusive native title rights and interests as found."

52 The majority of the issues regarding extinguishment have not been re-agitated on appeal. However, certain of the findings at first instance on extinguishment by grant of pastoral leases, and on the application of ss 47, 47A and 47B of the NTA have been challenged by the Ngarluma and Yindjibarndi peoples.

53 The entire claim area, with certain limited exceptions, has been the subject of pastoral leases.

54 The primary judge noted that the grant of a pastoral lease is a "previous non-exclusive possession act" which has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the land the subject of the lease: July 2003 reasons at [586], citing Ward (HC) [2002] HCA 28; 213 CLR 1 at [192] and [422]. However, his Honour had not made any findings of native title rights involving exclusive possession or rights to control access or use of the land by others in any event.

55 The primary judge made specific findings regarding the validity and extinguishing effect of various pastoral leases in the July 2003, July 2004, and March 2005 reasons. In particular, despite his general observations on the extinguishing effect of pastoral leases, his Honour found that the grant of each of the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases, as well unnamed pastoral lease no 398/824 (adjacent to the Mallina pastoral lease) was a previous exclusive possession act within the meaning of s 12I of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the TVA), and therefore that any native title in relation to the land or waters covered by the leases was taken to have been extinguished. The effect of this finding is that the Ngarluma and Yindjibarndi peoples currently have no native title rights in respect of the land covered by the five pastoral leases. Nor do they currently have any procedural rights under Div 3 of Pt 2 of the NTA in relation to "future acts" that may affect those areas.

56 The findings of the primary judge in relation to the extinguishing effect of the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases and pastoral lease 398/824 have been challenged on appeal. The Mt Welcome pastoral lease covers a large area in the north-western portion of the claim area (Ngarluma claimed territory), extending north to the Roebourne area. Parts of the Hooley and Coolawanyah pastoral leases overlap with the south-eastern portion of the claim area, in Yindjibarndi claimed territory. The Mallina pastoral lease extends roughly along the eastern boundary of the claim area, covering part of the Ngarluma claimed territory, part of the Yindjibarndi claimed territory and part of the "indeterminate zone of mixed Ngarluma and Yindjibarndi". The pastoral leases are marked on the map attached to these reasons as Annexure A (other than pastoral lease 398/824, which is that triangular pastoral lease area adjacent to the Mallina pastoral lease and north of the Millstream and Chichester Range National Park). It appears that his Honour identified those particular pastoral leases as having wholly extinguished native title, in contrast with the other pastoral leases in the claim area which were found to have extinguished native title rights only to the extent that they conferred exclusive possession, use, enjoyment and occupation of the land, because the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases (and pastoral lease 398/824) were all granted after the commencement of the Racial Discrimination Act 1975 (Cth) (the RDA). It is claimed that his Honour erred in making that distinction.

57 At first instance, the Ngarluma and Yindjibarndi peoples contended that any prior extinguishment of native title rights and interests in the area the subject of the Mt Welcome pastoral lease should be disregarded pursuant to s 47 of the NTA. Section 47 was said to be applicable to the area because at the time the native title application was made, the pastoral lease was held by the Mt Welcome Pastoral Co Pty Ltd on trust for the Ngarluma and Yindjibarndi peoples: s 47(1)(b)(ii). This argument was rejected.

58 On appeal, the Ngarluma and Yindjibarndi peoples have pursued their contention that any prior extinguishment in the area covered by the pastoral lease should be disregarded, but they now rely on s 47A of the NTA, not s 47, in support of that proposition. Neither the State nor the Commonwealth, nor any other party, objected to the new argument being raised on appeal.

59 In relation to the areas covered by certain freehold titles held by the Mt Welcome Pastoral Co Pty Ltd, the Ngarluma and Yindjibarndi peoples unsuccessfully contended at first instance that any prior extinguishment should be disregarded under s 47A of the NTA. This argument is also pursued on appeal, although under a different subparagraph of s 47A.

60 Each of the groups claiming native title also claimed in their applications that s 47B of the NTA applies to all unallocated Crown land within their respective claim areas. That section provides for prior extinguishment over a certain area to be disregarded if the criteria in s 47B(1) are met. There are several pockets of unallocated Crown land within the claim area, the majority of which are located within its southern half. The applicability of s 47B to certain areas was contested by the State. In particular, the State contended that every reserve (including every temporary reserve) in the claim area is a "reservation" for the purpose of s 47B(1)(b)(ii) and therefore falls outside the operation of s 47B. The learned primary judge accepted the State’s contention regarding temporary reserves, and found in the alternative that temporary reserves also fall within the meaning of a "condition, permission or authority" under s 47B(1)(b)(ii) and should also be excluded from the operation of the section for that reason. His Honour’s findings on the application of s 47B to areas covered by certain temporary reserves have been appealed by the Ngarluma and Yindjibarndi peoples.

The December 2003 reasons: (Daniel v State of Western Australia [2003] FCA 1425)

61 The December 2003 reasons were concerned with the State’s contentions regarding alleged inconsistencies between the native title rights and interests as identified in the draft determination included within the July 2003 reasons, and the rights of the State and various other respondent parties in respect of pastoral leases, mining tenements, reserves for cemeteries, by-laws made under the Country Areas Water Supply Act 1947 (WA), nature reserves and jetty licences.

62 The specific content of some of those native title rights was refined by the primary judge, although on the whole he determined that if the exercise of native title rights is approached on the basis of "reasonable user", the alleged inconsistencies between rights did not in fact exist.

63 The rulings in the December 2003 reasons are reflected in the final determination. They are not the subject of any appeal or cross-appeal.

The July 2004 reasons: (Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254)

64 Several matters arising out of the parties’ submissions as to the form of the determination were addressed in the July 2004 reasons.

65 His Honour declined to hear further submissions on some issues raised by the Ngarluma and Yindjibarndi peoples after the handing down of the July 2003 reasons, including whether the native title rights as found should be subject to internal geographical limitations (that is, whether the exercise of the rights should be confined to those specific areas within the whole claim area in which the rights are presently exercised), and whether certain pastoral leases have wholly extinguished native title. As noted above, those particular matters are the subject of the Ngarluma and Yindjibarndi appeal.

66 Several further matters were canvassed in the July 2004 reasons in respect of which one or more of the parties seeks redress on appeal.

67 It was proposed in the draft determination that native title rights and interests were held by the Ngarluma people and the Yindjibarndi people in relation to their respective territories, with some overlap (the "indeterminate zone" referred to above) existing between those two claim areas. Upon consideration of the parties’ submissions, his Honour confirmed in the July 2004 reasons that there would be only one determination of native title over the entire area, but that two separate prescribed bodes corporate could be nominated as trustees of the native title. The latter ruling was contrary to the submissions of the Commonwealth, and has been challenged by the Commonwealth on its cross-appeal. The Commonwealth’s submission at first instance and on appeal was that the NTA permits the nomination of only one prescribed body corporate in relation to a particular determination area.

68 His Honour also considered the parties’ submissions in relation to the description of the native title holders in the determination, ultimately agreeing with the Ngarluma and Yindjibarndi peoples that they should be defined simply by language group and not by a number of criteria. The State’s submission was that the Court should provide some basis for deciding who is in the Ngarluma group and who is in the Yindjibarndi group as part of the making of the determination of native title. On appeal, the State has re-agitated its contention that a more specific description of the native title holders is required.

69 It was further determined in the July 2004 reasons that the Ngarluma/Yindjibarndi overlap area should include the area around the Ngurin (the Harding River); and that the determination should expressly state that native title does not exist within the "Ngarluma Total Extinguishment Area" and the "Yindjibarndi Total Extinguishment Area". Those terms were used at first instance simply to signify the parts of the claim area where, his Honour found, any native title rights and interests had been totally extinguished. The primary judge also considered the appropriate process for nominating a prescribed body corporate. There is no challenge to these particular findings on appeal.

70 In relation to the Wong-Goo-TT-OO claim and the Yaburara/Mardudhunera claim (to the extent to which they overlapped with the Ngarluma/Yindjibarndi claim), his Honour determined that each of these should be dismissed in the final orders, but in the case of the Wong-Goo-TT-OO claim with the proviso that the dismissal is "without prejudice to any right the [Wong-Goo-TT-OO people] may have as Ngarluma or Yindjibarndi people (and not as members of the [Wong-Goo-TT-OO]) to hold native title rights and interests". There is no challenge to these orders insofar as they relate to the Yaburara/Mardudhunera claim. The Wong-Goo-TT-OO people have separately appealed from the dismissal of their claim.

71 An additional appendix recording all unallocated Crown land as at the date of lodgement of the claim, and his Honour’s finding on whether s 47B of the NTA is applicable to those areas, was included at the conclusion of the July 2004 reasons. Some of those findings are challenged by the Ngarluma and Yindjibarndi peoples in the appeal proceedings. The findings and the issues are further explained when addressing the grounds of appeal.

The October 2004 reasons: (Daniel v State of Western Australia [2004] FCA 1388)

72 The October 2004 reasons addressed the State’s submissions that native title has been extinguished by certain acts in respect of which it had been given leave to reopen its case. In dispute between the parties was the extinguishing effect of three sections of road and an accommodation lease over land at Karratha, granted pursuant to s 79 of the Land Administration Act 1997 (WA).

73 His Honour found that the dedication of each of the three roads wholly extinguished any native title rights and interests, and that the accommodation lease, being a past act under s 228(3)(b)(i) of the NTA, also wholly extinguished native title rights and interests in the area of the lease. There is no appeal from the rulings in the October 2004 reasons.

The March 2005 reasons: (Daniel v State of Western Australia (No 2) [2005] FCA 178; (2005) 141 FCR 426)

74 In the March 2005 reasons his Honour accepted the State’s submission that it was appropriate to include pastoral lease 398/824 (adjacent to the Mallina pastoral lease) in the definition of the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area in the determination, that particular pastoral lease having been omitted from his previous judgments due to oversight. It was noted that the pastoral lease was legally indistinguishable from other pastoral leases found to have wholly extinguished native title (that is, the Mt Welcome, Hooley, Coolawanyah and Mallina pastoral leases). The issue as to the extent of the extinguishing effect of pastoral lease 398/824 is raised on the appeal: see [56] above.

75 The State’s notice of motion for leave to reopen its case in relation to certain additional extinguishing interests was also considered in the March 2005 reasons. The learned primary judge considered that it was appropriate to grant leave to reopen, and thus determined the extinguishing effect of the construction of Wickham High School on reserve 46193, the construction of a Roman Catholic Church on reserve 46888, and the construction of several roads or sections of roads. There is no appeal from these findings.

76 The Ngarluma/Yindjibarndi Native Title Determination was made on 2 May 2005 at Roebourne. The determination stated that native title rights and interests (which do not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of others) exist in the Ngarluma Native Title Area and the Yindjibarndi Native Title Area, as defined in the first schedule to the determination.

77 The native title holders were identified in the determination as the "Ngarluma People" in relation to the Ngarluma Native Title Area, and the "Yindjibarndi People" in relation to the Yindjibarndi Native Title Area. The term "Ngarluma People" was defined in the third schedule to the determination as:

On appeal, that description of the native title holders was challenged by the State as being incomplete and insufficient.

78 Native title was determined not to exist in the Burrup, Offshore Waters, Depuch Island, the Hamersley Ranges Area and the Total Extinguishment Area (as defined in the first schedule to the determination). The "Total Extinguishment Area" was defined in the first schedule as "the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area" and was visually depicted in the maps attached to the first schedule.

79 The following non-exclusive native title rights and interests were identified in relation to the Ngarluma Native Title Area:
(a) a right to access (including to enter, to travel over and remain);

80 Similar non-exclusive native title rights and interests were identified in respect of the Yindjibarndi Native Title Area:

81 The determination also stated that the Yindjibarndi Aboriginal Corporation is to hold the native title rights and interest of the Yindjibarndi people in trust for the Yindjibarndi people, and stipulated a procedure for the nomination of a prescribed body corporate to hold in trust the native title rights and interests of the Ngarluma people. Subsequently, the Ngarluma Aboriginal Corporation was nominated to hold the native title rights and interest of the Ngarluma people in trust for the Ngarluma people: see Daniel v State of Western Australia [2006] FCA 271.

82 The Wong-Goo-TT-OO, Yaburara/Mardudhunera and Kariyarra applications were dismissed to the extent that they overlap with the Ngarluma/Yindjibarndi application, such dismissal being without prejudice to any rights of the members of the Wong-Goo-TT-OO claimant group as Ngarluma people or Yindjibarndi people to be native title holders.

83 Attached to these reasons as Annexure B is a copy of the map of the determination area which formed part of the first schedule to the determination, showing, inter alia, the Determination Area, the Ngarluma Area, the Yindjibarndi Area, the Total Extinguishment Area and the Burrup. It is not necessary to annex the various sub-maps referred to in Annexure B. They depict more clearly the areas identified in the legend.

84 The effect of the orders made by the learned primary judge on 2 May 2005 and the issues on this appeal, and the appeal by the Wong-Goo-TT-OO people in WAD 120/2005, is as follows.

85 The determination entirely disposed of the Ngarluma/Yindjibarndi native title claim in proceeding WAD 6017/1998. The claim failed insofar as it sought a determination of native title rights and interests over the claim area jointly in favour of the Ngarluma and Yindjibarndi peoples; but the claimants succeeded in their alternative claim that the Ngarluma people hold native title rights and interests in the Ngarluma claimed territory, and the Yindjibarndi people hold native title rights and interests in the Yindjibarndi claimed territory. It was determined that native title rights and interests had been wholly or partly extinguished in relation to some parts of the claim area. No native title was found to exist in the Burrup, originally claimed as part of the Ngarluma country, the claim to that land by the Ngarluma and Yindjibarndi peoples having failed because the learned primary judge did not accept that the relevant members of the Yaburara group were in fact members of the Ngarluma people.

86 The Ngarluma and Yindjibarndi peoples did not succeed in proving that they held all of the native title rights and interests claimed. Those rights and interests which were ultimately recognised by the learned primary judge are set out at [79] and [80] above.

87 In this appeal, the Ngarluma and Yindjibarndi peoples appeal from the reasons and orders of the primary judge on four grounds. Certain issues regarding those grounds of appeal have been raised by Notice of Contention of the State and by the Commonwealth on its cross-appeal.

88 The issues to be determined on the Ngarluma/Yindjibarndi appeal and the State’s Notice of Contention are:

89 The State has cross-appealed on this appeal and in proceedings WAD 120/2005 on identical grounds. It contends that the primary judge fell into error in:

90 In addition to its appeal against the finding of total extinguishment by the Mt Welcome, Hooley, Coolawanyah and Mallina pastoral leases and pastoral lease 398/824 referred to above, the following issue arises on the Commonwealth’s cross-appeal:

91 The respondents to the appeal have agreed that the appeal grounds (A) and (D) above should succeed. The Ngarluma and Yindjibarndi peoples sought to have orders made by this Court in relation to those two grounds both prior to, and at the time of, the hearing. The reasons for not adopting that course are set out below; but the consent orders provided by the parties will be given effect for reasons which appear.

92 To the extent to which it overlapped with the Ngarluma/Yindjibarndi claim (including the Burrup), the Yaburara/Mardudhunera native title claim was dismissed. The balance of that claim remains to be determined.

93 No matters concerning that part of the determination are the subject of the appeal.

94 The Wong-Goo-TT-OO claim was also dismissed to the extent that it overlapped with the Ngarluma/Yindjibarndi claim (including the Burrup), although the primary judge acknowledged that the Wong-Goo-TT-OO people may have native title rights and interests in the determination area as Ngarluma people or as Yindjibarndi people. The balance of the Wong-Goo-TT-OO claim is yet to be determined.

95 The Wong-Goo-TT-OO people have appealed from the reasons and orders of the primary judge to the extent to which those orders and reasons support the dismissal of their overlap claim. The appeal grounds and submissions of the Wong-Goo-TT-OO were, to a large extent, concerned with the rejection of certain evidence regarding connection and continuity given by Tim Douglas, a Wong-Goo-TT-OO claimant, and Kenny Jerrold, a Yindjibarndi man. The grounds of appeal are extensive but can be briefly summarised as follows:

96 The issues arising on the Wong-Goo-TT-OO appeal are the subject of our reasons in Dale v Moses [2007] FCAFC 82.

97 As noted above, the State has cross-appealed in this appeal also, raising the two issues described in [89] above, that is issues (E) and (F).

98 The assertion by the Kariyarra people of native title rights and interests over their claim area, to the extent to which it overlapped with the Ngarluma and Yindjibarndi claim area, was also unsuccessful. The areas of overlap were quite small; thus a large area of the Kariyarra claim remains to be resolved in other proceedings.

99 No issue as to that part of the decision at first instance arises on the appeal.

100 The parties to the appeal agree that the primary judge erred in finding that the grant of pastoral leases 3114/716 (Mt Welcome), 3114/1228 (Coolawanyah), 3114/1173 (Hooley), 3114/1209 (Mallina) and 398/824 (adjacent to Mallina) (together, "the five pastoral leases") had wholly extinguished native title over the land covered by them.

101 The Ngarluma and Yindjibarndi peoples filed a proposed consent order (signed by all parties to the appeal) seeking to have the Ngarluma/Yindjibarndi appeal and the Commonwealth cross-appeal in relation to those five pastoral leases (and the appeal in relation to the internal geographical limitations on the exercise of certain native title rights – Issue D below) allowed prior to the hearing and determination of the balance of the appeal. The Ngarluma and Yindjibarndi peoples also filed submissions in support of the proposed consent orders, urging the Court to make the orders sought immediately. Those submissions were endorsed by the State, the Commonwealth, and the pastoral respondents. We declined to make the orders prior to the hearing.

102 At the commencement of the hearing an issue arose regarding the Court’s power to partially dispose of an appeal pending determination of the balance of the appeal grounds. We expressed some concern that the pronouncement of orders on some grounds of appeal, having the effect of varying the determination made by the primary judge on 2 May 2005, may render the Court functus officio with respect to the balance of the appeal. Further submissions addressing that issue and supporting the making of the consent orders before final disposition of the appeal were filed by the Ngarluma and Yindjibarndi peoples after the hearing of the appeal. The State and the Commonwealth also filed further submissions following the hearing of the appeal. In those further submissions, the State and the Commonwealth both opposed the making of the consent orders prior to the determination of the balance of the appeal.

103 It is convenient to set out here the reasons why, contrary to the submissions of the Ngarluma and Yindjibarndi peoples, we did not regard it as appropriate to make the consent orders before determining the balance of the appeal.

104 In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J said at 211

105 Having regard to the powers conferred upon this Court in the exercise of its appellate jurisdiction by the Federal Court of Australia Act 1976 (Cth) (the FCA Act), it is far from clear that the Court has power to partially dispose of an appeal before reaching a final conclusion on all aspects of the appeal. The Ngarluma and Yindjibarndi peoples contend that such power has been conferred upon the Court by s 25(2B)(b) of the that Act. That section provides:

Reliance was also placed upon s 28 of the FCA Act. That section states that the Court may, in the exercise of its appellate jurisdiction, "affirm, reverse or vary the judgment appealed from" and may "give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order": see s 28(1)(a) and (b). Counsel were not able to identify any authority on s 25(2B)(b) applicable to the present context.

106 Additionally, the Ngarluma and Yindjibarndi peoples relied upon s 87 of the NTA, which reads:

Subsections 2 and 3 permit the Court to give effect to the relevant order or agreement. However, as is evident from the terms of s 87(1)(c), that section does not provide an additional source of power. It is not enlivened unless the Court is satisfied that the orders are otherwise within its power. It cannot shed any light on the Court’s general power to hear and determine appeals. Nor do we think that s 68 of the NTA can provide a source of power for the Court to partially dispose of this appeal in the way the Ngarluma and Yindjibarndi peoples sought. It relevantly prevents any other determination of native title in relation to a particular area once there is an approved determination of native title over that area. There are two exceptions to that statutory direction, but the only one which might possibly apply is the case of a review or appeal of the first determination. That exception does not extend the Court’s powers on appeal, but simply recognises that on an appeal the finality of a determination of native title may be displaced.

107 The Commonwealth submitted that it is not possible to read into s 25(2B)(b) of the FCA Act a conferral of power to dispose of an appeal in stages. The State did not consider it necessary to address that question because, it said, there was no reason to partially dispose of the present appeal in any event, as the Ngarluma and Yindjibarndi peoples had not established that they would suffer any prejudice were the consent orders not made forthwith. The Ngarluma and Yindjibarndi peoples had claimed that they may be prejudiced by any delay in allowing the grounds of appeal in relation to the five pastoral leases because as the determination stood, they had no procedural rights in relation to acts which should be, but would not be, treated as a "future act" under the NTA. The State considered that the interests of the Ngarluma and Yindjibarndi peoples regarding "future acts" had been protected by a written undertaking provided by the State.

108 We were not satisfied that this Court had power to dispose of the consent grounds under ss 25(2B)(b) and 28(1) of the FCA Act prior to the final determination of the appeal. The apparent intent of s 25(2B)(b) is to facilitate the efficient resolution of appeal proceedings in circumstances where there is no dispute between the parties as to the orders which should be made. In appropriate cases it can substantially reduce the time and expense that would otherwise attend the resolution of the appeal. There is no reason to restrict the operation of the section to circumstances in which the parties seek to have the whole of the appeal allowed or dismissed by consent. The objectives of the section may equally be achieved in cases such as the present, where the agreement between the parties extends to only some of the appeal grounds. The wording of s 25(2B)(b) suggests, however, that any consent orders should be made in the course of the "disposal" of the appeal. There is nothing in either s 25(2B)(b) or s 28(1) to suggest that an appellate Court may exercise the powers conferred by those provisions on an ongoing or interim basis. Counsel did not point to any other statutory provisions which may justify taking that course. Section 25(2B)(b) provides for a consent order which disposes of an appeal. It is part of the provision dealing with how the appellate jurisdiction may be exercised, and in context it contemplates the final disposition of the appeal: subclauses (aa), (ba) and (bb) clearly contemplate that the orders made will finally determine the appeal. The other subclauses of s 25(2B) concern procedural matters leading up to the hearing and determination of an appeal.

109 The appellate jurisdiction of the Court relevant to this matter is s 24(1)(a) of the FCA Act, as it establishes the right of appeal from judgments of the Court constituted by a single judge. Section 4 defines "judgment" to mean a judgment, decree or order, whether final or interlocutory. This appeal is from the judgment which finally determined what native title rights and interests existed on the area the subject of the claims. It is therefore the appeal from that judgment which s 25(2B)(b) empowers the Court to dispose of by consent. The proposed consent orders do not dispose of the appeal from that judgment, but only of certain parts of the judgment. Moreover, s 28 of the FCA Act provides ways in which a duly constituted Full Court may dispose of an appeal. It does not contemplate that an appeal may be partially determined by the Full Court as then constituted, and that other issues on the appeal may be later determined by a differently constituted Full Court. Accordingly, it accords with the conclusion we have reached about the limit of our powers.

110 A related issue arose in the post-hearing submissions regarding the extent to which the Court should consider the merits of a ground of appeal where the parties are agreed that the appeal (or part of the appeal) should be allowed on that ground.

111 The right of appeal from the judgment of the primary judge lies under s 24(1)(a) of the FCA Act. Section 28 sets out the Court’s powers in the exercise of its appellate jurisdiction, and s 25(2B)(b) empowers a single judge or a Full Court to exercise that jurisdiction to make an order by consent disposing of an appeal. Subsections 28(1)(b) and (c) refer to the Court making such orders on appeal as it thinks fit, and subs 28(1)(f) permits an order for a new trial "on any ground upon which it is appropriate" to do so. Those references may suggest that the Court should not make a consent order on an appeal without being satisfied that it is appropriate to do so. It is at least clear that the parties by consent cannot confer on the Court power to make orders which the Court lacks power to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 163. On the other hand, it is common ground that, in making orders by consent, the Court is not called upon to consider the substantive merits of the matter to the same extent that it would do so in the normal course. In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 the Full Court (Heerey, Finkelstein and Lander JJ) said at [23] that an order allowing an appeal is "a formal statement to the world by the Court that the primary judge fell into error", but their Honours went on to say in that case at [26] that, in the making of a consent order, usually "the Court does not enquire into the merits of the order proposed".

112 In this matter, the parties have assumed the burden of satisfying the Court that it is appropriate to make the consent orders sought, so we do not have to consider whether it was necessary for them to have done so.

113 It is not apparent from the reasons below why his Honour considered that the five pastoral leases had wholly extinguished native title, whereas the other pastoral leases in the determination area had not. The proposed consent orders seek to give effect to the principle established by the High Court in Ward (HC) [2002] HCA 28; 213 CLR 1 at [192] and [422] that the grant of a pastoral lease is a previous non-exclusive possession act which has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the land the subject of the lease. The learned primary judge referred to the relevant passage in Ward (HC) at [586] of the July 2003 reasons. Other than the possible reason referred to in [56] above, it is not clear why his Honour nevertheless considered that the grant of each of the five pastoral leases was a previous exclusive possession act. As noted above, the parties are agreed that the leases did not in fact have any further extinguishing effect than any pre-existing pastoral leases, and that, contrary to his Honour’s findings, the grants of each of the leases were not past acts nor previous exclusive possession acts. In accordance with the principle established in Ward (HC), we consider that the parties’ position in that regard is appropriate. Nothing has been identified to us which might indicate that those five pastoral leases should have any greater extinguishing affect than the other pastoral leases which affected parts of the claim area.

114 We agree that the appeal in relation to pastoral leases 3114/716, 3114/1228, 3114/1173, 3114/1209 and 398/824 should be allowed. The determination should be altered in the manner indicated by the proposed consent orders.

115 The effect of the consent orders which will be made in relation to the five pastoral leases (the Mt Welcome pastoral lease (no. 3114/716) being one of them) is that non-exclusive native title rights and interests will be recognised in those areas.

116 The practical significance of the contention of the Ngarluma and Yindjibarndi peoples that s 47A of the NTA applies to the Mt Welcome pastoral lease is confined to other prior interests within the area of the lease which had an extinguishing effect. The only such prior interest is special lease 3116/4002, which is located within the area of the Mt Welcome pastoral lease. The special lease was granted to Hamersley Iron Pty Ltd in 1969 under s 116 of the Land Act 1933 (WA). It is no longer in force. It was found at first instance that special lease 3116/4002 wholly extinguished native title within the area of the lease. The Ngarluma and Yindjibarndi peoples accepted that, should their argument in relation to s 47A be unsuccessful, his Honour’s finding of total extinguishment over the area covered by special lease 3116/4002 should be upheld. That is consistent with Ward (HC) [2002] HCA 28; 213 CLR 1, where a majority of the High Court held that the grant of a special lease under s 116 of the Land Act 1933 (WA) is a previous exclusive possession act. Their Honours noted at [2002] HCA 28; 213 CLR 1, [356] that some of the purposes for which special leases could be granted under s 116 were "uses in which it might ordinarily be expected that the user would wish to control access to the land".

117 The Ngarluma and Yindjibarndi peoples contended at first instance that s 47 of the NTA was applicable to the area covered by the Mt Welcome pastoral lease and therefore that any prior extinguishment within that area should be disregarded. They argued that, at the time the native title application was made, the pastoral lease was held over the area on trust for the Ngarluma and Yindjibarndi peoples, so as to satisfy the terms of s 47(1)(b)(ii). His Honour rejected that argument. He concluded that the pastoral lease was not, at the time of the application for determination of native title, held by a trustee on trust for any of the applicants or for any of the claimant group.

118 On appeal, the Ngarluma and Yindjibarndi peoples accepted his Honour’s findings in relation to s 47 but contend that prior extinguishment over the area covered by the pastoral lease should nevertheless be disregarded pursuant to s 47A. The specific argument put to this Court was that s 47A(1)(b)(ii) was satisfied in respect of the area because "the area is held expressly for the benefit of...Aboriginal peoples".

119 The Ngarluma and Yindjibarndi peoples also submitted at first instance that s 47A(1)(b)(i) of the NTA was applicable to freehold titles 1390/952, 1390/953, 1397/995, 1462/999, 451/184A, 451/186A, 451/190A, 451/192A, 451/193A, 451/194A, 1365/847 and 1526/946 (the Mt Welcome freehold titles) because at the time of making the application, the relevant areas of freehold existed and were granted under legislation that makes provision for the granting of such areas only to Aboriginal peoples or Torres Strait Islanders. As noted at [59] above, this argument was also rejected by the learned primary judge.

120 On appeal, the Ngarluma and Yindjibarndi peoples have accepted his Honour’s finding in relation to s 47A(1)(b)(i), but submit that s 47A(1)(b)(ii) was satisfied in respect of the areas covered by each of the Mt Welcome freehold titles because "the area is held expressly for the benefit of...Aboriginal peoples". His Honour did not specifically consider the application of s 47A(1)(b)(ii) to the Mt Welcome freehold titles but did reject a similar submission by the Ngarluma and Yindjibarndi peoples in relation to another freehold title held by the Roebourne Workers Aboriginal Corporation (which was incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) (ACA Act). His Honour said in relation to that freehold title that "s 47A(1)(b)(ii) requires relevantly the area is held ‘expressly’ for the benefit of Aboriginal peoples and there is no evidence of such an express provision": July 2003 reasons at [943]. There is no appeal from his Honour’s decision that s 47A(1)(b)(ii) did not apply to the freehold title held by the Roebourne Workers Aboriginal Corporation.

121 The State submitted that leave may need to be obtained to raise the new argument based on s 47A(1)(b)(ii) on appeal. However, it did not oppose the grant of such leave. Nor did it advance any submission that s 47A is inapplicable to pastoral leases on the basis that s 47 is an exhaustive statement of the circumstances in which extinguishment of native title over pastoral leases may be disregarded. In Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) at [701]-[703], Sundberg J held that Parliament did not intend to exclude pastoral leases from the s 47A regime. No contention was made that his Honour erred in that regard. We would in the circumstances give leave to raise the argument seeking to enliven s 47A(1)(b)(ii) in relation to the Mt Welcome pastoral lease and the Mt Welcome freehold titles, if leave were necessary.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 114 OF 2005

JUDGES:	MOORE, NORTH & MANSFIELD JJ
DATE OF ORDER:	7 JUNE 2007
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO PERTH)

JUDGES:	MOORE, NORTH & MANSFIELD JJ
DATE:	7 JUNE 2007
PLACE:	SYDNEY (VIA VIDEO LINK TO PERTH)

Federal Court of Australia - Full Court Decisions

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