Daniel v State of Western Australia - [2003] FCA 666

FEDERAL COURT OF AUSTRALIA
Daniel v State of Western Australia [2003] FCA 666
Aboriginals – native title to land – whether claims made out - findings on present observable behaviour – whether applicants are ‘groups’ – whether continuity in applicant groups – whether connection with traditional laws and customs –findings of native title rights and interests – common law recognition – terms of proposed determination
Aboriginals – native title to land – extinguishment – effect of grants of interest – tenure validity – land tenure – mining and petroleum tenements – legislation – offshore areas – acquiescence – Native Title Act provisions – effect in areas of selected activity
Evidence Act 1995 (Cth) s 136
Native Title Act 1993 (Cth) ss 13, 22B(d), 22F, 23B(2), 23B(2)(c)(ii), 23B(3), 23B(2)(c)(i), 23B(2)(c)(ii), 23B(2)(c)(vii), 23B(2)(c)(viii), 23B(7), 23B(7)(b), 23B(9C), 23B(9C)(a), 23C, 23F, 47, 47(2)(b), 47A, 47A(1)(b), 47A(1)(b)(i), 47A(1)(b)(ii), 47A(1)(c), 47B, 47B(1)(b), 47B(1)(c), 61(1), 63, 70, 71, 73, 74, 211, 211(2)(b), 223, 223(1), 223(1)(a), 223(1)(b), 223(1)(c), 225, 225(a), 225(b), 225(c), 227, 228, 232A, 232C, 237A, 246(1), 248, 251, 251D, 253
Aboriginal Councils and Associations Act 1976 (Cth)
Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth)
Lands Acquisition Acts 1955 (Cth)
Lands Acquisition Acts 1906 (Cth)
Racial Discrimination Act 1975 (Cth) ss 9, 10
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 6, 12A, 12E(1), 12I, 12I(1)(a), 12I(1)(b), 12I(1a), 12J
Aborigines Act 1905 (WA)
Aborigines Protection Act 1886 (WA)
Constitution Act 1890 (WA)
Aborigines Act Amendment Act 1936 (WA)
Aborigines Act Amendment Act 1947 (WA)
Natives (Citizenship Rights) Act 1944 (WA)
Petroleum Act 1936 (WA)
Municipal Corporations Act 1906 (WA)
Public Works Act 1902 (WA) ss 17, 18, 32, 123
Land Acquisition and Public Works Act 1902 (WA) ss 10, 17, 18, 28
Transfer of Land Act 1893 (WA) s 4, 68
Land Act 1933 (WA) ss 7(4), 10, 13, 29(g), 32, 33, 43, 45A, 91(1)(2), 106, 114, 114(1), 114(2)(a), 114(2)(c), 116, 117, 134B,
Land Act 1898 (WA) ss 4, 16, 41, 42, 52, 152, 153
Local Government Act1960 (WA) ss 267, 288, 294A
Roads Act 1888 (WA)
Roads Act 1902 (WA)
Road Districts Act 1919 (WA)
Iron Ore (Cleveland Cliffs) Agreement Act 1964 (WA)
Millstream Station Acquisition Act (WA) s 4
Petroleum Pipelines Act 1969 (WA) ss 16, 20
Land Administration Act1997 (WA)
Pilbara Energy Project Agreement Act 1994 (WA) Sch 1 cl 11(1)(a), cl 11(1)(d)
Conservation and Land Management Act 1984 (WA) ss 17(2), 88, 101
Mining Act 1904 (WA) ss 26, 26(2), 26(10), 45, 47, 48, 48(2), 50(1)(b), 51, 53, 70, 79, 117, 174, 176, 183, 185, 186, 188, 269
Petroleum Act 1967 (WA) s 9
Goldfields Act 1886 (WA) ss 10(1), 10(3), 14
Goldfields Act Amendment Act 1894 (WA)
Goldfields Act 1895 (WA) ss 32, 47
Mining on Private Property Act 1898 (WA) ss 15, 18, 25
Mining Act 1978 (WA) ss 9(2), 48, 66, 86, 87, 88(2), 91
Rights in Water and Irrigation Act 1914 (WA)
Aboriginal Heritage Act 1972 (WA)
Dampier Solar Salt Agreement Act (WA)
Iron Ore (Hamersley Range) Agreement Act (WA)
Mining Act Amendment Act1920 (WA) ss 6, 8
Country Areas Water Supply Act1947 (WA) ss 9(1), 11, 105
Parks and Reserves Act1895 (WA) s 8
National Parks Authority Act 1976 (WA) ss 18, 22, 41
Rights in Water and Irrigation Act Amendment Act1962 (WA) ss 4, 6, 8, 18
Wildlife Conservation Act 1950 (WA) ss 12A, 14(1), 15, 16, 22, 23
Fauna Conservation Act Amendment Act1975 (WA) (No 67)
Wildlife Conservation Act Amendment Act 1979 (WA) (No 28)
The Cossack-Roebourne Tramway Act 1886 (WA) s 2
Marine and Harbours Act1981 (WA) ss 9(1), 12
Jetties Act1926 (WA) s 7
Marine Act 1982 (WA) s 65
Aboriginal Affairs Planning Authority Act 1972 (WA) s 25
Iron Ore (Hamersley Range) Agreement Act (WA)
Marine and Harbours Act1981 (WA) s 9
North West Gas Development (Woodside) Agreement Act1979 (WA)
Dampier Solar Salt Industry Agreement Act1967 (WA)
Iron Ore (Cleveland Cliffs) Agreement Act1964 (WA)
Iron Ore (Robe River) Agreement Act1964 (WA)
Dampier Port Authority Act 1985 (WA) ss 4, 6, 21
Ports (Functions) Act 1993 (WA) s 14
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Land Regulations 1873 (WA) regs 102, 137
Land Regulations 1882 (WA)regs 33, 82
Land Regulations 1887 (WA) regs 61, 36
Mining Regulations 1925 (WA) regs 5, 54, 55, 56 – 83, 84, 87(1), 87(2), 87(3), 87(5), 87(6), 111
Mining Regulations 1981 (WA) regs 37 – 42B
National Parks Authority Regulations 1977 (WA) regs 5, 6, 25, 27, 28, 29, 31, 32, 36, 38, 45, 52
Wildlife Conservation Regulations 1970 (WA) reg 42(2)
State of Western Australia v Ward (2000) 99 FCR 316 applied
The Commonwealth v Yarmirr (1999) 168 ALR 426 cited
The Commonwealth v Yarmirr (2001 - 2002) 208 CLR 1 applied
Western Australia v Ward (2002) 191 ALR 1 followed
Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 194 ALR 538 applied
Daniel v State of Western Australia [1999] FCA 686 cited
Daniel v State of Western Australia (1999) 94 FCR 537 cited
Daniel v State of Western Australia (2000) 173 ALR 51 cited
Daniel v State of Western Australia [2000] FCA 858 cited
Daniel v State of Western Australia [2000] FCA 1334 cited
Daniel v State of Western Australia [2000] FCA 1356 cited
Daniel v State of Western Australia [2001] FCA 223 cited
Daniel v State of Western Australia [2002] FCA 1147 cited
Holborow & Ors v Macdonald Rudder [2000] WASC 135 cited
Holborow & Ors v MacDonald Rudder [2000] WASC 160 cited
Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435 cited
Hicks v Aboriginal Legal Service of Western Australia (Inc) (2001) 108 FCR 589 cited
Yarmirr v Northern Territory (Croker Island Case) (1998) 82 FCR 533 applied
Mabo v Queensland (No 2) (1992) 175 CLR 1 applied
Wik Peoples v Queensland (1996) 187 CLR 1 considered
Wilson v Anderson (2002) 190 ALR 313 applied
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 considered
State of Western Australia v The Commonwealth (‘Second Native Title Act Case’) (1995) 183 CLR 373 cited
Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FLR 178 cited
The Queen v Toohey; Ex Parte Meneling (1982) 158 CLR 327 approved
National Provincial Bank Ltd v Ainsworth [1965] AC 1175 approved
Hayes v Northern Territory (1999) 97 FCR 32 approved
Bathurst CC v PWC Properties Pty Ltd (1997) 41 NSWLR 522 cited
Aboriginal Hostels v Darwin CC (1985) 75 FLR 197 cited
New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 cited
Fourmile v Selpam Pty Ltd (1997) 80 FCR 151 applied
Wandarang, Alawa, Marra and Ngalakan People v Northern Territory of Australia (2000) 104 FCR 380 cited
Yanner v Eaton (1999) 201 CLR 351 followed
Reilly v Booth (1890) 44 Ch D 12 (AC) approved
Auerbach v Beck (1985) 6 NSWLR 424 approved
Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118 cited
Mayor, Councillors and Citizens of Perth v Halle (1911) 13 CLR 393 cited
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 considered
Breskvar v Wall (1971) 126 CLR 376 cited
Cashman v North Golden Gate Mining Co (1897) 7 QLJ 152 cited
Glasson v Fuller [1922] SASR 148 cited
Orr v Ford (1989) 167 CLR 316 cited
Denniss v Minister for Land and Water Conservation (1999) 91 FCR 228 cited
Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 cited
De Rosa v State of South Australia [2002] FCA 1342 approved
JS Beard, ‘The Vegetation of the Pilbara Area’ University of Western Australia Press, 1975
J Withnell, The Customs and Traditions of North West Australia, Roebourne, 1901
P Hasluck, Black Australians: A Survey of Native Policy in Western Australia 1829 – 1897, Melbourne University Press, 1970
J Turner, ‘We Womans Really Knows a Lot’, Thesis for Master of Arts, University of Western Australia, Department of Anthropology 1990
E Russell, ‘A History of the Law in Western Australia’, University of Western Australia Press
A Rumsey, ‘Language Groups in Australian Aboriginal Land Claims’, Anthropological Forum vol VI(1), 1989
A Rumsey, ‘Language and Territoriality in Aboriginal Australia’ in Language and Culture in Aboriginal Australia (ed M Walsh and C Yallop) Aboriginal Studies Press, Canberra, 1993
D Daniel and R Reynolds, Thalu sites of the West Pilbara, Perth WA Museum, 1990
CG Brandenstein and AP Thomas, Taruru: Aboriginal Song Poetry from the Pilbara, Adelaide Rigby, 1974
Dr P Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles’, Oceania vol 67, no 7, 1996
The New Shorter Oxford English Dictionary, 1993
RP Meagher & WMC Gummow, Jacobs’ Law of Trusts in Australia, 6th edn, Butterworths, 1997
HAJ Ford & WA Lee, Principles of the Law of Trusts, 3^rd edn, LBC 1996
RP Meagher, WMC Gummow and Lehane JJ, Equity Doctrines and Remedies, 3^rd ed, 1992
Seaman Aboriginal Land Inquiry, 1984
Annual Report of the Native Welfare Department, Western Australia, 1953
R Stevens, ‘Preliminary Archaeology Report: Ngarluma – Yindjibarndi Native Title Claim’, 1998
The Yindjibarndi Language’, Canberra, Pacific Linguistics Series C, No 71
DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE & MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE and HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE and DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS
WAG 6017 of 1996
and part of WAG 127 of 1997
and part of WAG 6256 of 1998
R D NICHOLSON J
3 JULY 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6017 of 1996
and part of WAG 127 of 1997
and part of WAG 6256 of 1998

BETWEEN:
AND:
AND:

DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE
FIRST APPLICANTS

VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE
SECOND APPLICANTS

BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS
THIRD APPLICANTS

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM
FIRST RESPONDENTS

COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY
RESPONDENTS 2A

TELSTRA CORPORATION LIMITED
THIRD RESPONDENTS (FORMER RESPONDENTS 2B)
SHIRE OF ROEBOURNE
FOURTH RESPONDENTS

P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL
FIFTH RESPONDENTS

BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD
SIXTH RESPONDENTS

CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD
EIGHTH RESPONDENTS

DAMPIER SALT LTD
NINTH RESPONDENT

HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD
TENTH RESPONDENTS

NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD
ELEVENTH RESPONDENTS

MINERALOGY PTY LTD
RESPONDENT 12A

BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP
RESPONDENTS 12B

ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL
THIRTEENTH RESPONDENTS

RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O’CONNOR, J & P ROCCA AND JAMES EDWARD TELFER
RESPONDENTS 14A

MG CREASY
RESPONDENT 14B

RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS
RESPONDENTS 14C

GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O’BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc)
FIFTEENTH RESPONDENTS

COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER
SEVENTEENTH RESPONDENTS

YATHALLA ABORIGINAL CORP
EIGHTEENTH RESPONDENT

MINGULLATHARNDO ASSOCIATION INC
NINETEENTH RESPONDENT

HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES
RESPONDENTS 19B

TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE
RESPONDENTS 19D

GEOFFREY & MICHAEL TOZER
TWENTIETH RESPONDENTS

GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER
TWENTY-FIRST RESPONDENTS

AUSI IRON NL
TWENTY-THIRD RESPONDENTS

JUDGE:

R D NICHOLSON J

DATE OF ORDER:

3 JULY 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
‘
1.With respect to the limited opportunity to make further submissions referred to in the reasons for decision delivered today:
(a)Within 21 days the first respondents file and serve any 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.
(b)Within a further 14 days other parties file and serve any submissions in response.

2.With respect to settling the form of the Determination:
(a)Within 21 days of the Court publishing final reasons following consideration of submissions received pursuant to direction 1, the first respondents shall:
(i)prepare a map of the Determination Area in the form sufficient to satisfy the terms of proposed item 1 of the Determination (having regard to the definition of the Burrup and the Millstream-Fortescue area as those terms are defined in the reasons for decision).
(ii)prepare in draft a schedule of interests (other than those in Schedule 3 to the Determination) to which it is said the non-exclusive native title rights and interests are subject so that such schedule shall, as settled by the Court, be Schedule 2 to the proposed Determination.
(iii)revise their Schedule of Extinguishing Interests to reflect the reasons of the Court in respect of the extinguishing effect of tenements and other interests so that such revised Schedule shall, as settled by the Court, be Schedule 3 to the proposed Determination.
(iv)file and serve the draft Schedules 1, 2 and 3 to the proposed Determination on other parties.
(v)file and serve any submissions on the form of the proposed Determination on other parties.

(b)Within a further 21 days following compliance with direction 2(a), any party may file and serve written submissions concerning any points of disagreement with the draft Schedules 1, 2 and 3 or the form of the proposed Determination.
(c)Within a further 21 days of the filing of any submission pursuant to direction 2(b), the respondents may file any submissions in response.
(d)Within two calendar months the first applicants nominate in writing to the District Registrar of the Federal Court at the Perth Registry whether a prescribed body corporate is to be the trustee of the non-exclusive native title and, if so, file and serve the written consent of that body corporate to do so, failing which it will be determined that native title is held by the common law holders.’

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

TABLE OF CONTENTS
INTRODUCTION
HEARING DATES
PRIOR REASONS
APPLICATIONS AND SUBMISSIONS
EXPERT EVIDENCE
OTHER EVIDENTIARY FEATURES
DEFINITION OF TERMS

DIVISION A: NATIVE TITLE

part i: the claims
THE APPLICATIONS
APPLICANTS
FIRST APPLICANTS
SECOND APPLICANTS
THIRD APPLICANTS
RESPONDENTS 19D
RESPONDENTS
NATURE OF CLAIMS
FIRST APPLICANTS
SECOND APPLICANTS
THIRD APPLICANTS
RESPONDENTS 19D
PART II: CLAIM AREAS
CLAIM AREAS
FIRST APPLICANTS’ CLAIM AREA
SECOND APPLICANTS’ CLAIM AREA
THIRD APPLICANTS’ CLAIM AREA
RESPONDENTS 19D CLAIM AREA
BOUNDARIES
REQUIREMENTS OF THE LAW
EASTERN BOUNDARIES
Ngarluma claim area
Depuch island
Yindjibarndi claim area

WESTERN BOUNDARIES
Ngarluma claim area
Yindjibarndi claim area

SOUTHERN BOUNDARIES
Ngarluma claim area
Yindjibarndi claim area

PART III: THE LAW
PROOF OF NATIVE TITLE
EXTINGUISHMENT
ONUS OF PROOF
PART IV: HISTORY: EXPERT EVIDENCE
PRE-SOVEREIGNTY CONTACT
POST-SOVEREIGNTY CONTACT
GOLD MINING
PEARLING BOOM
IMPACTS
PASTORAL INDUSTRY
DRIFT INTO ROEBOURNE
IRON ORE MINING
HARDING RIVER DAM
ABORIGINAL INITIATIVES
IMPACTS OF THE LAW
PART V: ARCHAEOLOGY, LINGUISTICS AND ANTHROPOLOGY: EXPERT EVIDENCE
ARCHAEOLOGICAL EVIDENCE
LINGUISTIC EVIDENCE
ANTHROPOLOGICAL EVIDENCE
PART VI: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY FIRST APPLICANTS: LAY EVIDENCE
(a)    ACCESS
(b)   RITUAL AND CEREMONY
(c)    CAMPING
(d)   HUNTING AND FORAGING
(e)    FISHING
(f)    BUSH MEDICINE AND TUCKER
(g)    TAKE FAUNA
(h)   TAKE FLORA
(i)     TAKE OCHRE
(j)    TAKE AND USE STONE
(k)   TAKE AND USE WATER
(l)     COOK AND LIGHT FIRES
(m) CONTROL ACCESS, ACTIVITIES, RESOURCES, IMPROVEMENTS, OTHER GROUPS
(n)   PROTECT AND CARE FOR SITES AND OBJECTS
(o)    MAINTAIN AND PROTECT SITES AND OBJECTS
(p)   MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
(q)   PROTECT PLACES AND OBJECTS FROM INAPPROPRIATE USE
(r)    NATIVE TITLE RIGHTS OF INDIVIDUAL CLAIMANTS ACKNOWLEDGED
(s)    IDENTIFY AND ACKNOWLEDGE INDIVIDUAL RIGHTS HOLDERS
NORMATIVE CONTENT OF FOUND PRESENT ACTIVITY
PART VII: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY SECOND APPLICANTS: LAY EVIDENCE
(a)    POSSESS, OCCUPY, USE AND ENJOY
(b)   MAKE DECISIONS ABOUT USE AND ENJOYMENT
(c)    ACCESS AND CONTROL
(d)   USE, ENJOY RESOURCES
(e)    MAINTAIN AND PROTECT PLACES OF IMPORTANCE
(f)    PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
PART VIII: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY THE THIRD APPLICANTS: LAY EVIDENCE
(a)    POSSESS, OCCUPY, USE, ENJOY
(b)   ACCESS AND CONTROL
(c)    USE, ENJOY RESOURCES
(d)   PROTECT PLACES OF IMPORTANCE
(e)    PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(f)    CEREMONY
(g)    CAMPING, HUNTING, FISHING, GATHERING
(h)   MATERIALS FOR WEAPONS, TOOLS, UTENSILS
(i)     MAINTAIN AND CARE FOR WATER RESOURCES
(j)    MANAGE AND PROTECT SACRED SITES
PART IX: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY RESPONDENTS 19D: LAY EVIDENCE
PART X: APPLICANTS AS GROUPS
COMMUNITIES OR GROUPS
FIRST APPLICANTS
SECOND APPLICANTS
THIRD APPLICANTS

IDENTIFICATION
GENEALOGICAL ISSUES
PART XI: CONTINUITY OF APPLICANT GROUPS
SIGNIFICANCE OF CONTINUITY
GENEALOGICAL EVIDENCE
FIRST APPLICANTS
SECOND APPLICANTS
THIRD APPLICANTS
CONTINUITY THROUGH TRANSMISSION IN LAW?
CONTINUITY THROUGH COGNATIC DESCENT GROUP?
PART XII: TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND INTERESTS
ABORIGINAL CONNECTION WITH CLAIM AREAS AT SOVEREIGNTY
ABORIGINAL CONNECTION WITH CLAIM AREAS FROM SOVEREIGNTY
HISTORICAL EVIDENCE
ANTHROPOLOGICAL EVIDENCE
GENEALOGICAL EVIDENCE
LAY EVIDENCE
DEGREE OF CONNECTION ISSUE
INFERENCE FROM EUROPEAN SETTLEMENT TO SOVEREIGNTY
PROOF OF NORMATIVE QUALITY OF RIGHTS AND INTERESTS
CONSIDERATION OF RIGHTS AND INTERESTS
FIRST APPLICANTS
(a)      Access
Yindjibarndi claim area
Ngarluma claim area
(b)      Ritual and ceremony
Yindjibarndi claim area
Ngarluma claim area
(c)      Camping
Yindjibarndi claim area
Ngarluma claim area
(d)     Hunting and foraging
Yindjibarndi claim area
Ngarluma claim area
(e)      Fishing
Yindjibarndi claim area
Ngarluma claim area
(f)      Bush medicine and tucker
Yindjibarndi claim area
Ngarluma claim area
(g)      Take fauna
Yindjibarndi claim area
Ngarluma claim area
(h)      Take flora
(i)       Take ochre
Yindjibarndi claim area
Ngarluma claim area
(j)       Take and use stone
Yindjibarndi claim area
Ngarluma claim area
(k)      Take and use water
Yindjibarndi and Ngarluma claim areas
(l)       Cook and light fires
Yindjibarndi and Ngarluma claim areas
(m)     Control, access, activities, resources, improvements, other groups
Yindjibarndi and Ngarluma claim areas
(n)      Protect and care for sites and objects
Yindjibarndi and Ngarluma claim areas
(o)      Maintain and protect sites and objects
Yindjibarndi and Ngarluma claim areas
(p)      Maintain and protect cultural knowledge
(q)      Protect places and objects from inappropriate use
(r)      Native title rights of individual claimants acknowledged
(s)      Identify and acknowledge individual rights holders

SECOND APPLICANTS
THIRD APPLICANTS
Connection through transmission in fact?
Connection in mainland claim areas
Rights and interests as Ngarluma and Yindjibarndi peoples

FINDINGS ON NATIVE TITLE RIGHTS AND INTERESTS CONCERNING FIRST APPLICANTS
(a)      Access
(b)      Ritual and ceremony
(c)      Camping
(d)     Hunting and foraging
(e)      Fishing
(f)      Bush medicine and tucker
(g)      Take fauna
(h)      Take flora
(i)       Take ochre
(j)       Take and use stone
(k)      Take and use water
(l)       Cook and light fires
(m)     Control, access, activities, resources, improvements, other groups
(n)      Protect and care for sites and objects
(o)      Maintain and protect sites and objects
(p)      Maintain and protect cultural knowledge
(q)      Protect places and objects from inappropriate use
(r)      Native title rights of individual claimants acknowledged
(s)      Identify and acknowledge individual rights holders
(t)      Refuse access to the sea
(u)      Make decisions about use of the sea

PART XIII: OFFSHORE WATERS AND ISLANDS
CLAIMS
FIRST APPLICANTS
(t) Refuse access to the sea
(u) Make decisions about use of the sea

SECOND APPLICANTS
THIRD APPLICANTS
FIRST RESPONDENTS
RESPONDENT 2A
ELEVENTH RESPONDENTS
FIFTEENTH AND SIXTEENTH RESPONDENTS
THE LAW
FINDINGS CONCERNING FIRST APPLICANTS CLAIMS
FINDINGS CONCERNING SECOND APPLICANTS CLAIMS
FINDINGS CONCERNING THIRD APPLICANTS CLAIMS
PART XIV: RECOGNITION BY THE COMMON LAW

DIVISION B: EXTINGUISHMENT

PART XV: EXTINGUISHMENT OF RIGHTS AND INTERESTS
SUBMISSIONS OF PARTIES
LIMITED OPPORTUNITY FOR FURTHER SUBMISSION
LAW OF EXTINGUISHMENT
TENURE VALIDITY
LAND TENURES
FREEHOLD
Freehold grants
Roebourne townsite
Crown to Crown grants

LICENCES TO OCCUPY
PASTORAL LEASES
Validity of pastoral leases
First applicants’ objection C1
First applicant’s objections C3 – C5
First applicants’ objections C6 – C31
First applicants’ objections C32, 33, 35, 36,40, 42, 43
First applicants’ objections C34, 37, 38, 39, 41, 43, 44, 46
First applicants’ objection C45
First applicants’ objection C47
First applicants’ objection C48
First applicants’ objection D1
First applicants’ objection E1
First applicants’ objections E2 – E5
First applicants’ objections E6 – E12
Pastoral leases generally
Window period pastoral leases
First applicants’ objections C32, 33, 35, 36, 40, 41, 42, 43, 46
Enclosures and improvements
Significant areas
Mt Welcome

SPECIAL LEASES
Land Act 1933 s 116
Land Act 1933 s 7(4)
Land Act (1898) s 152
Land Act (1898) s 153

LEASES OF RESERVES
Land Regulations 1882
Land Act 1898 s 42
Land Act 1933 s 32
Land Act 1933 s 33
Public Works Act s 32

ROADS
RESUMPTIONS
Public Works Act 1902
Exhibit R1/58(82)
Exhibit R1/64 Paragraph 29 (Millstream)
Exhibit R1/64 Paragraph 51(Cape Lambert Main Supply Extension)
Exhibit R1/58(31)tab 611 (Cleaverville road widening)
Country Areas Water Supply Act and Public Works Act
R1/64 par 27 (Millstream Supply Main)
R1/64 par 46 (Supply Main)
R1/64 pars 71 & 84 (Harding Dam Site)
R1/64 par 75 (freehold areas)
Iron Ore (Cleveland Cliffs) Agreement Act 1964 and the Public Works Act
Area 25 A, B, C & D Special Lease 3116/4621
Local Government Act and Public Works Act (Point Samson Road extension)
Land Act s 109 [1933 OR 1898]

RESERVES
Vested reserves
Non-vested Reserves
Reserves in which native title rights have not been wholly extinguished
Reserves in which rights asserted or works extinguished native title

EASEMENTS AND LICENCES
Easements
Licences

MINING AND PETROLEUM ISSUES AND TENURES
OWNERSHIP OF MINERALS AND PETROLEUM
MINING TENEMENTS
Goldfields Acts 1886, 1895
Land Regulations 1887
Mining on Private Property Act 1898
Mining Act 1904
Business areas
Dredging claims
Gold mining leases
Machinery areas
Market Garden areas
Mineral claims
Mineral leases
Miner’s homestead leases
Prospecting areas
Quarry areas
Residential areas
Reward areas
Tailings areas
Tramway lease
Water rights
Mining Act 1978
Mining leases
General purpose leases
Miscellaneous licences
Prospecting licences
Exploration licences
State Agreement mineral leases

PETROLEUM TENEMENTS
Mining Act 1904 – Licences to prospect for mineral oil

EXTINGUISHMENT BY LEGISLATION
COUNTRY AREAS WATER SUPPLY ACT 1947 AND BY-LAWS
National Parks Board By-laws
National Parks Authority Act 1976
Rights in Water and Irrigation Act
Wildlife Conservation Act
Transfer of Land Act 1893
The Cossack-Roebourne Tramway Act 1886

EXTINGUISHMENT IN THE SEA
FISHERIES INCLUDING PEARLING LEASES
PORT AREAS
SEABED LEASES
JETTY LICENCES
MOORING LICENCES
ACQUIESCENCE
APPLICATION OF NATIVE TITLE ACT
PAST ACTS
INTERMEDIATE PERIOD ACTS
NATIVE TITLE ACT s 47A
Freehold
Leases
Reserves

NATIVE TITLE ACT s 47B
Elements of s 47B
Particular areas and s 47B(1)(b)
Burrup
Karratha townsite
Particular areas and s 47B(1)(c)

OVERVIEW OF EXTINGUISHMENT IN PARTS OF THE CLAIM AREA
DAMPIER ARCHIPELAGO
WOODSIDE INTERESTS
HAMERSLEY’S INTERESTS
DAMPIER PORT AUTHORITY AREA
OTHER PARTS OF THE BURRUP
DAMPIER SALT’S INTERESTS
The Islands
Offshore areas
Hamersley’s special lease interests
Karratha townsite
Robe’s special lease interests
Extinguishment at common law
Previous exclusive possession acts
Special leases under s 116 Land Act
Harding Dam
Special lease 3116/6282 (area no 53)
Millstream Chichester National Park area
Millstream water reserve area
Ashburton locations 55, 58 and 59; De Witt locations 93, 182
North location 18
West Pilbara Water supply infrastructure
Other infrastructure

OVERVIEW OF RESPONDENTS’ SUBMISSIONS
RESPONDENT 2A’S (COMMONWEALTH) ONSHORE INTERESTS
De Witt Locations 46 and 219 (Rosemary Island) (WA Area 2)
De Witt Location 14, Certificate of Title Volume 1022 Folio 255 (Legendre Island) (WA Area 4)
De Witt Location 133, Special Lease 333/721 (Point Samson Rifle Range) (WA Area 172)
De Witt Location 148 (Dampier Rifle Range) (WA Area 229)
De Witt Location 319, Karratha (WA Area 367b, see also WA Area 367a)
De Witt Location 320 (Karratha DGPS Site) (WA Area 367c)
De Witt Location 213 (Reserve 40121) (WA Area 443)

RESPONDENT 2B’S (TELSTRA) INTERESTS
FOURTH RESPONDENT’S INTERESTS
FIFTH RESPONDENTS’ (PASTORAL) INTERESTS
Extinguishing effect of lease of reserve
Lease 332/1930 (part of Sherlock Station)
Extinguishing effect of reserves
Reserve 38991
Other reserves for public purposes

EIGHTH RESPONDENTS’ (ROBE) INTERESTS
Special leases
Exploration licences
Easements
Resumptions

NINTH AND TENTH RESPONDENTS (DAMPIER AND HAMERSLEY)
Special leases
Mineral leases
Mining leases
General purpose leases
Miscellaneous licences
Pastoral leases

ELEVENTH RESPONDENT’S (WOODSIDE’S) INTERESTS
Special leases
Jetty licences and seabed leases
Petroleum pipeline licence
Public roads, reserves and easements
Leases granted under ‘the right to negotiate’
Former pastoral leases

FIFTEENTH AND SIXTEENTH RESPONDENTS (WAFIC)

DIVISION C: DETERMINATION

PART XVI: DETERMINATION OF CLAIMS
Determination area
Exclusive native title rights and interests
The Burrup
First applicants’ offshore claim
Second applicants’ claim
Third applicants’ claim
Respondents 19D claim
First applicants’ on-shore claim
Qualification
Subject to law
Subject to interests
Subject to extinguishment
Holding of native title

DIVISION D: APPENDICES OF EVIDENCE

APPENDIX A: EVIDENCE REFERRABLE TO PART II CLAIM AREAS: BOUNDARIES
EASTERN BOUNDARIES
NGARLUMA CLAIM AREA
Primary evidence
Expert evidence
History
Linguistics
Anthropology
Tindale on boundaries
Palmer on boundaries
Mr Robinson (field work)
Mr Robinson on boundaries
Dr Trigger on boundaries
Mr O'Connor on boundaries
Professor Maddock on boundaries

DEPUCH ISLAND (WAMALA-NA)
YINDJIBARNDI CLAIM AREA
WESTERN BOUNDARIES
NGARLUMA CLAIM AREA
Evidence of the first applicants
Evidence of the second applicants
Evidence of the third applicants
Expert evidence

YINDJIBARNDI CLAIM AREA
Evidence of first applicants
Evidence of the third applicants

SOUTHERN BOUNDARIES
NGARLUMA CLAIM AREA
YINDJIBARNDI CLAIM AREA
Submissions
Evidence of the first applicants
Expert evidence

THE NGURIN
APPENDIX B: EVIDENCE REFERRABLE TO PART VI OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY FIRST APPLICANTS: LAY EVIDENCE
(a)    ACCESS
(b)   RITUAL AND CEREMONY
(c)    CAMPING
(d)   HUNTING AND FORAGING
(e)    FISHING
(f)    BUSH MEDICINE AND TUCKER
(g)    TAKE FAUNA
(h)   TAKE FLORA
(i)     TAKE OCHRE
(j)    TAKE AND USE STONE
(k)   TAKE AND USE WATER
(l)     COOK AND LIGHT FIRES
(m) CONTROL ACCESS, ACTIVITIES, RESOURCES, IMPROVEMENTS, OTHER GROUPS
(n)   PROTECT AND CARE FOR SITES AND OBJECTS
(o)    MAINTAIN AND PROTECT SITES AND OBJECTS
(p)   MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
(q)   PROTECT PLACES AND OBJECTS FROM INAPPROPRIATE USE
(r)    NATIVE TITLE RIGHTS OF INDIVIDUAL CLAIMANTS ACKNOWLEDGED
(s)    IDENTIFY AND ACKNOWLEDGE INDIVIDUAL RIGHTS HOLDERS
(t)    OFFSHORE WATERS AND ISLANDS
THE BURRUP
ACCESS
FISHING
PROTECT AND CARE FOR SITES AND OBJECTS
MAINTAIN AND PROTECT SITES AND OBJECTS
MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
APPENDIX C: EVIDENCE REFERRABLE TO PART VII OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY SECOND APPLICANTS: LAY EVIDENCE
(a)    POSSESS, OCCUPY, USE AND ENJOY
(b)   MAKE DECISIONS ABOUT USE AND ENJOYMENT
(c)    ACCESS AND CONTROL
(d)   USE, ENJOY RESOURCES
(e)    MAINTAIN AND PROTECT PLACES OF IMPORTANCE
(f)    PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
APPENDIX D: EVIDENCE REFERRABLE TO PART VIII OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY THIRD APPLICANTS: LAY EVIDENCE
(a)    POSSESS, OCCUPY, USE, ENJOY
(b)   ACCESS AND CONTROL
(c)    USE, ENJOY RESOURCES
(d)   PROTECT PLACES OF IMPORTANCE
(e)    PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(f)    CEREMONY
(g)    CAMPING, HUNTING, FISHING, GATHERING
(h)   MATERIALS FOR WEAPONS, TOOLS, UTENSILS
(i)     MAINTAIN AND CARE FOR WATER RESOURCES
(j)    MANAGE AND PROTECT SACRED SITES
APPENDIX E: EVIDENCE REFERRABLE TO PART IX OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY RESPONDENTS 19D (THE KARIYARRA): LAY EVIDENCE
(a)    ENTER, OCCUPY, USE AND ENJOY
(b)   MANAGE AND MAINTAIN FLORA, FAUNA, LAND AND WATERS
(c)    FORAGE FOR FOOD AND MEDICINES
(d)   CEREMONY
(e)    INTERMENT AND DISINTERMENT
(f)    CAMP, HUNT, FISH AND GATHER FOOD, MATERIALS, TOOLS AND WEAPONS
(g)    USE, MANAGE, MAINTAIN, CARE FOR WATER RESOURCES
(h)   EXTRACT FLINTS, SOILS, STONE OCHRE
(i)     USE OR BARTER RESOURCES
(j)    MANAGE AND PROTECT SITES
(k)   FREEDOM OF MOVEMENT
(l)     CONSTRUCT CAMPS, DWELLINGS, OTHER STRUCTURES
(m) LANGUAGE
APPENDIX F: EVIDENCE REFERRABLE TO PARTS XI AND XII: GENEALOGICAL EVIDENCE
FIRST APPLICANTS
WOODLEY KING’S GENEALOGY
Trevor Solomon’s genealogy

SECOND APPLICANTS
THIRD APPLICANTS
RESPONDENTS 19D
APPENDIX G: EVIDENCE REFERRABLE TO PART XI CONTINUITY OF APPLICANT GROUPS: SECOND APPLICANTS THE YABURARA AND THE BURRUP
DEFINING THE ISSUE
AREAS TO WHICH ISSUE RELATES
SUBMISSIONS OF THE PARTIES
SECOND APPLICANTS
THIRD APPLICANTS
FIRST APPLICANTS
FIRST RESPONDENTS
RESPONDENTS 2A
FIFTH RESPONDENTS
NINTH AND TENTH RESPONDENTS
ELEVENTH RESPONDENTS
RESPONDENTS 15 AND 16
EXPERT EVIDENCE
HISTORY
ARCHAEOLOGY
LINGUISTICS
ANTHROPOLOGY
Evidence from the literature and maps
Expert evidence

EVIDENCE OF THE APPLICANTS
FIRST APPLICANTS
SECOND APPLICANTS
THIRD APPLICANTS
SUCCESSION TO ‘ORPHAN COUNTRY’
INIARBA
APPENDIX H: EVIDENCE REFERRABLE TO PART XII TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND INTERESTS: THIRD APPLICANTS MAITLAND, ISLAND AND THE BURRUP
MAITLAND AND ISLAND AND SUCCESSION TO THE BURRUP
MAITLAND
ISLAND
THE HICKS FAMILY AND MAITLAND AND ISLAND
FURTHER EVIDENCE
APPENDIX I: EVIDENCE REFERABLE TO PART XII TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND CUSTOMS
FIRST APPLICANTS
(a)      Access
(b)      Ritual and ceremony
(c)      Camping
(d)     Hunting and foraging
(e)      Fishing
(f)      Bush medicine and tucker
(g)      Take fauna
(h)      Take flora
(i)       Take ochre
(j)       Take and use stone
(k)      Take and use water
(l)       Cook and light fires
(m)     Control access, activities, resources, improvements, other groups
(n)      Protect and care for sites and objects
(o)      Maintain and protect sites and objects
(p)      …
(q)      Protect places from inappropriate use
(r)      …
(s)      …

SECOND APPLICANTS
(a)      …
(b)      …
(c)      …
(d)     Use, enjoy resources
(e)      Maintain and protect places of importance

THIRD APPLICANTS
APPENDIX J: EVIDENCE REFERABLE TO PART XIII OFFSHORE WATERS AND ISLANDS: LAY AND EXPERT EVIDENCE
EVIDENCE OF APPLICANTS
FIRST APPLICANTS
(a)      Evidence as to the extent of boundaries
(b)      Evidence as to use of the sea
(c)      Evidence as to the sea as a significant spiritual area

SECOND APPLICANTS
(a) Evidence as to boundaries
(b) Evidence as to use of the sea

THIRD APPLICANTS
(a) Evidence as to the extent of boundaries
(b) Evidence as to use of the sea

EXPERT EVIDENCE
ARCHAEOLOGY
HISTORY
ANTHROPOLOGY

SCHEDULE REFERRABLE TO PART I: GROUPED RESPONDENTS

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6017 of 1996
and part of WAG 127 of 1997
and part of WAG 6256 of 1998

BETWEEN:
AND:
AND:

DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE
FIRST APPLICANTS

VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE
SECOND APPLICANTS

BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS
THIRD APPLICANTS

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

AND:

THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM
FIRST RESPONDENTS

COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY
RESPONDENTS 2A

TELSTRA CORPORATION LIMITED
THIRD RESPONDENTS (FORMER RESPONDENTS 2B)

SHIRE OF ROEBOURNE
FOURTH RESPONDENTS

P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL
FIFTH RESPONDENTS

BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD
SIXTH RESPONDENTS

CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD
EIGHTH RESPONDENTS

DAMPIER SALT LTD
NINTH RESPONDENT

HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD
TENTH RESPONDENTS

NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD
ELEVENTH RESPONDENTS

MINERALOGY PTY LTD
RESPONDENT 12A

BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP
RESPONDENTS 12B

ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL
THIRTEENTH RESPONDENTS

RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O’CONNOR, J & P ROCCA AND JAMES EDWARD TELFER
RESPONDENTS 14A

MG CREASY
RESPONDENT 14B

RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS
RESPONDENTS 14C

GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O’BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc)
FIFTEENTH RESPONDENTS

COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER
SEVENTEENTH RESPONDENTS

YATHALLA ABORIGINAL CORP
EIGHTEENTH RESPONDENT

MINGULLATHARNDO ASSOCIATION INC
NINETEENTH RESPONDENT

HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES
RESPONDENTS 19B

TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE
RESPONDENTS 19D

GEOFFREY & MICHAEL TOZER
TWENTIETH RESPONDENTS

GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER
TWENTY-FIRST RESPONDENTS

AUSI IRON NL
TWENTY-THIRD RESPONDENTS

JUDGE:

R D NICHOLSON J

DATE:

3 JULY 2003

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

The three applicants and respondents 19D seek determinations of native title in accordance with the Native Title Act 1993 (Cth) (‘the Act as amended from time to time being referred to as the ‘NTA’). The applications are more fully described in Part I of these reasons. The following is a description of features of the process by which the determinations now reach this point of decision.
HEARING DATES
The applications first came for directions on 6 February 1997. Preparation of the matter for trial after that date was controlled by detailed directions made at case management hearings. The trial commenced at Karratha on 20 September 1999. Evidence was heard at various sites in the claim areas. The parties exchanged written submissions prior to the Court sitting to hear final oral submissions from 11 to 15 December 2000.

A directions hearing on 15 June 2001 was, at the request of the parties, adjourned to a date to be fixed pending the High Court’s handing down of its reasons for decision in the appeals State of Western Australia v Ward (2000) 99 FCR 316 (‘Ward FC’); and The Commonwealth v Yarmirr (1999) 168 ALR 426. On 11 October 2001 the High Court handed down its reasons in The Commonwealth v Yarmirr (2001 - 2002) 208 CLR 1 and on 8 August 2002 the High Court handed down reasons in Western Australia v Ward (2002) 191 ALR 1 (‘Ward HC’).
At a directions hearing held on 2 December 2002, the parties were ordered to file submissions taking into account changes in the law brought about by these latter two decisions, and submissions arising as a result of the handing down of the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 194 ALR 538 (delivered on 12 December 2002). Such submissions were subsequently filed.
Closing submissions in this matter were heard on 25 February 2003 and the decision was reserved.
A total of 81 hearing days were occupied by the trial.
PRIOR REASONS
Prior to and during the trial it was necessary for rulings to be made and reasons published on the following matters:
Daniel for Ngaluma People v Western Australia [1999] FCA 686 regarding an application for leave to amend claimant application.
Daniel v State of Western Australia [1999] FCA 1541; (1999) 94 FCR 537 concerning claims for client legal privilege in respect of communication with anthropologist, where the communication was sought to be adduced in court.
Daniel v State of Western Australia [2000] FCA 413; (2000) 173 ALR 51 regarding admissibility of hearsay evidence.
Daniel v State of Western Australia [2000] FCA 858 concerning admissibility of expert opinion.
Daniel v State of Western Australia [2000] FCA 1334 relating to whether expert anthropological opinion based on specialised knowledge.
Daniel v State of Western Australia [2000] FCA 1356 concerning rulings as to admissibility of evidence in anthropological reports.
Daniel v State of Western Australia [2001] FCA 223 regarding admissibility of anthropological field notes.
Daniel v State of Western Australia [2002] FCA 1147 concerning variation to first applicants.
Additionally other rulings were made in the course of the trial and recorded in the transcript.
APPLICATIONS AND SUBMISSIONS
There were no formal pleadings. Each party filed a statement of facts, issues and contentions relied upon, although these ultimately took their shape in terms of the closing submissions.
EXPERT EVIDENCE
Eleven expert witnesses were called. The first applicants called two historians (Dr Choo and Mr Gara); one archaeologist (Dr Veth); two anthropologists (Mr Robinson and Ms Turner); and one linguist (Mr Thieberger). The third applicants called Mr O’Connor, an anthropologist. The first respondents called one historian (Dr Green); an anthropologist (Professor Maddock) and two linguists (Dr Sommer and Dr Dench). The first respondents also called the Acting Manager, North-West Region, Water Corporation of Western Australia (Mr Becu) and one cartographer (Mr Guthrie).
OTHER EVIDENTIARY FEATURES
On 28 October 1999 orders were made regarding restrictions on evidence to take account of the cultural and customary concerns of the Aboriginal claimants concerning gender-restricted evidence. Additional orders were made or variations approved in accordance with requirements during the development of the trial.
Seventy-six Aboriginal witnesses gave evidence during the trial on behalf of one or other of the claimant groups. In addition to experts, the first respondent called two retired pastoralists and the fifth respondent called three pastoralists and a retired pastoralist.
The applicants put in evidence and rely upon a variety of documents including published articles and commentaries which record observations made by explorers and others in the late 19^th and early 20^th century. The respondents put into evidence a large volume of exhibits relating in particular to historical, archaeological, linguists, genealogical and tenure issues. Exhibits include witness statements from some respondents.
No respondents other than respondents 1, 2A, 2B, 4, 5, 8, 9, 10, 11, 16 and 17 adduced evidence.
The trial was conducted with regard to the cultural and customary concerns of the Aboriginal claimants. Sittings were held at various sites in the claim areas considered to be of significance to the claim by the claimants. A number of witnesses were called on more than one occasion to give evidence at different sites and were, as was appropriate, subject to cross-examination. Views were taken or inspections made of places that were said to be significant landmarks or to have connection with ancestors or spiritual beliefs. The Court also viewed demonstrations of traditional activities, ceremonies, dances and songs and inspected rock art and artefacts in the claim areas. The hearings of the Court, even in informal settings, were conducted with proper regard to order but also with the appropriate informality to make the nature of the sitting encouraging to the giving of evidence.
Evidence was usually given in English, although sometimes in broken form using words of the Ngarluma or Yindjibarndi languages for names of people, places, objects, animals and for description of cultural matters. Appropriate spellings of Aboriginal words used in the evidence were compiled in an agreed orthography for use in the transcript of proceedings.
Objections on points of evidence of Aboriginal witnesses were limited. Objections were made to evidence of experts.
The evidence of the experts was heard after evidence had been adduced by the parties. The Court returned from the claim areas to Perth to hear expert evidence and closing submissions.
In the Appendices of evidence, transcript references are included. The evidence is organised having regard to the Ngarluma or Yindjibarndi claim areas, in the case of the first applicants. If a witness is not from the claim area being addressed, his or her origin is signified following their name.
DEFINITION OF TERMS
Except where the content otherwise requires, ‘the Burrup’ has the meaning given to it in [1467] of Appendix G.
The description the ‘Millstream-Fortescue area’ means that area bounded
-in the north by the southern escarpment of the Chichester Ranges
-in the south by the northern escarpment of the Hamersley Ranges
-in the west by Western Creek
-in the east by the eastern end of the first applicants’ claim area.
In the draft Determination it is intended references to the Burrup and to the Millstream-Fortescue area should have these meanings.
DIVISION A: NATIVE TITLE
PART I: THE CLAIMS
THE APPLICATIONS
These proceedings originated from an application for determination of native title WC 94/5 which was lodged with the Registrar of the National Native Title Tribunal (‘NNTT’) by Mr David Daniel (in many documents filed with the Court incorrectly shown as Daniels), Mr James Solomon, Mr Tim Kerr and Ms Daisy Moses ‘representing Ngarluma people’ and Mr Bruce Monadee, Ms Karrie Monadee, Mr Woodley King, Mr Yilbie Warrie and Mr Kenny Jerrold ‘representing Injibandi people’ on 8 June 1994 (‘the first applicants’). Ms Karrie Monadee and Mr Yilbie Warrie are now deceased. The spelling of the claimant peoples was subsequently settled by the first applicants as correctly reading Ngarluma and Yindjibarndi. The application was not accepted pursuant to s 63 of the Native Title Act 1993 (Cth) (‘NTA’) because it included special leases and pastoral leases granted without a reservation for Aboriginal access. On 13 December 1994 application WC94/5 was amended to exclude special leases and pastoral leases without reservation (except Mt Welcome pastoral lease) and the application as so amended was accepted by the Registrar on 20 December 1994.
A further application for determination of native title, WC 95/3, in respect of the special leasehold land and the pastoral leases without reservation (except Mt Welcome pastoral lease) was lodged with the Registrar by the same applicants on 22 December 1994 and accepted on 5 January 1996.
The Tribunal made no determination of the applications under ss 70, 71 or 73 of the NTA as it then stood. Following advice received from the President of the NNTT on 8 November 1996 that there was no likelihood of an agreement coming into existence which might lead to such a determination, the Registrar, pursuant to s 74 of the NTA, lodged both applications with the Federal Court on 25 November 1996. They were numbered WAG 6017 of 1996 and WAG 6018 of 1996.
The proceedings came for directions on 6 February 1997 and 24 March 1997. The actions were consolidated under the former number on 24 March 1997.
By affidavit sworn on 25 July 1997 the Manager, Land Claims Unit, Western Australian Land Information Services, Department of Land Administration, Western Australia, deposed that information provided by the NNTT revealed 5 native title determination applications lodged overlapped to some extent with the applicants' claim, namely applications by:
·     Kurama No 3
·     Bunjima Niapaili Innawonga
·     Yaburara Mardudhunera (‘the second applicants’)
·     Kariyarra
·     Williams
By affidavit dated 7 December 1998 the Manager of the Land Claims Mapping Unit provided an updated map of overlapping claims which also included a claim of the Wong-Goo-TT-OO (‘the third applicants’).
With respect to Kurama No 3, the application was withdrawn on 26 November 1997.
In relation to the Bunjima Niapaili Innawonga, the Gumala Aboriginal Corporation on behalf of the Bunjima Innawonga and Niapaili claimants indicated a wish to pursue negotiations to resolve the overlap and not to be joined as parties to the present claim. At directions on 27 February 1998 they were joined as respondents 19B but took no further part in the proceedings.
In relation to the Yaburara Mardudhunera claim, the Court consolidated the applications before it with such part of their claim as overlapped the claims of the first applicants and they became the second applicants.
The original application by the Kariyarra people, (WC 97/39) was filed with the NNTT on 11 July 1997. The claim, designated WAG 6169/98, is presently in the course of being dealt with. Areas of overlap with the first applicants’ claim area occurred in several portions of the eastern part of the first applicants’ claim area. The claim by the Kariyarra people was subject to unsuccessful negotiations to resolve the overlap and at the directions on 27 February 1998 the Kariyarra people were joined as respondents 19D. They were represented in these proceedings but did not seek to play a part in it after commencement of hearings.
In relation to the application by the Williams family, the Court was notified by Mr Williams on 19 February 1998 that the claim no longer overlapped any part of the claim areas in these proceedings.
As to the Wong-Goo-TT-OO claim, an order was made by the Court on 6 May 1999 consolidating that part of their application (WAG 6256 of 1998) as overlapped with these proceedings and for that purpose joined the Wong-Goo-TT-OO applicants as the third applicants. The application (numbered WC 98/40) was received by the NNTT on 10 July 1998. The applicants were said to be Cane Hicks, Wilfred Hicks, Betty Dale, Tim Douglas, Dallas Hicks, Bridget Warrie and Kenny Ramirez. By an amended application lodged with the NNTT on 6 August 1998 the applicants were amended so as to omit Bridget Warrie and add Barbara Wills, Myline Todd, Ernest Ramirez, Phyllis Harris, Doris Norman and Terence Todd. Bridget Warrie was a witness at the hearing but was called on behalf of the first applicants.
On 8 March 1999 applications WAG 6017 of 1996 and WAG 6018 of 1996 were deconsolidated. In lieu, it was ordered that application WAG 6017 of 1996 be amended so that henceforth it became combined with and included the applications previously made in application WAG 6018 of 1996 and the two applications continue under the number WAG 6017 of 1996.
On 1 April 1999 the first applicants sought leave to amend application WAG 6017 of 1996. The notice of motion to that effect was dismissed with reasons delivered on 21 May 1999 (Daniel v State of Western Australia [1999] FCA 686). By a further notice of motion dated 30 April 1999 the first applicants sought leave to amend the same application in a different respect.
On 2 June 1999 the Court amended application WAG 6017 of 1996 in the form set out in the amended application dated 30 April 1999 as further amended on 1 June 1999.
On 9 November 2000, shortly prior to closing addresses, notice was filed on behalf of the first applicants that they do not intend to seek a native title determination in relation to the sea portion of their claim area beyond the 3 kilometre mark.
The second applicants’ application was amended by orders of the Court on 27 January 1999 and 11 March 1999.
In initial final submissions the first applicants asserted for the first time that their claim group also included ‘members of the third applicant group and some members of the second applicant group – notably, the Cosmos family.’ In later final submissions this claim was maintained.
APPLICANTS
FIRST APPLICANTS
On 8 March 1999, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert and Trevor Solomon were added as registered native title claimants and applicants. In the application as amended David Walker, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks were treated as added as representatives of the Ngarluma people and the remainder of the added applicants were treated as representatives of the Yindjibarndi people. By order of French J on 13 September 2002 James Solomon, Tim Kerr and David Walker were removed from the title to the action. It was further ordered that:
‘David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrolf (sic), Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people, (“the Replacement Applicants”) do jointly replace all the current Applicants, (the current Applicants being all the aforementioned Replacement Applicants plus James Solomon, Tim Kerr and David Walker).’
SECOND APPLICANTS
The second applicants identify themselves as ‘Yaburara and Mardudhunera people’. In the amendment to their application on 27 January 1999 it was stated that the names of the persons comprising the native title claim group on whose behalf the application by the second applicants is made were Colin Cosmos, Janice Cosmos, Patricia Cooper, Audrey Cosmos, Susan Mowarin, Kevin Cosmos, Valerie Holborow, Mary Cosmos, Linda Delower, Dorene Wescombe, Barbara Sinclair, Gail Sinclair, Robert Boona, Margaret Boona, Dorrie Wally and Danny Cooper. They were assisted at the hearing by Mr Ron Parker, an anthropologist.
However, at the hearing on 23 March 2000 a letter from Mrs Cooper was read in which she stated she had not given permission for the people giving evidence to speak on behalf of her father’s traditional country at Mardi and Balmoral Stations. On 7 April 2000, Mrs Cooper was represented by her husband, Mr Ken Papertalk. The Court was also informed of difficulties being experienced with notification and legal representation by Mrs Cooper and the second applicants generally.
Mrs Cooper filed a written statement dated 7 June 2000 which was received into evidence subject to objections to point 3 and 8 on 12 June 2000.
In evidence on that day Mrs Cooper identified her father as ‘Coastal Mardudhunera’ whose traditional country lay between Balmoral station and the south side of the Maitland River and that he had been born on Yarraloola station, south of Mardi. Mrs Cooper gave her mother's birthplace as Yalleen station, and identified her as Yindjibarndi. Mrs Cooper herself spoke no Mardudhunera, and was learning Yindjibarndi. She identified as both Mardudhunera and Yindjibarndi.
In evidence, Mrs Cooper's sister Dorene Wescomb agreed that their father's traditional country was in the area of Mardi and Balmoral stations. These are outside the overlap area and not the subject of these proceedings.
The second applicants were represented by a firm of solicitors until 30 August 1999. On that date the second applicants appointed their present solicitors to act on their behalf. Continued appearance of the solicitors was dependent upon the second applicants obtaining funding. Issues arose as to whether funding previously made available to the second applicants had been properly applied in relation to legal costs rendered by the former solicitors. In Holborow & Ors v Macdonald Rudder [2000] WASC 135, it was held inter alia that the application by the plaintiffs, the second applicants in these proceedings, seeking orders that the defendant, the second applicants’ former solicitors in these proceedings, account to the plaintiffs for all trust property received by the defendant on behalf of the plaintiffs, and for discovery in aid of such account, should be dismissed, the plaintiffs to pay costs. In Holborow & Ors v MacDonald Rudder [2000] WASC 160, an application that the plaintiffs pay the defendant indemnity costs was upheld.
From the commencement of the hearing the second applicants other than Mrs Cooper were represented on limited occasions by their solicitors. Mrs Cooper was not represented. On 19 November 1999 a motion brought on behalf of the second applicants for adjournment to source additional funding was refused.
On 20 November 2002 French J ordered that Mrs Cooper’s name be removed from the title to the action and Valerie Holborow, Kevin Cosmos and Robert Boona replaced all of the then current second applicants.
THIRD APPLICANTS
The name ‘Wong-Goo-TT-OO’ is one adopted by the third applicants for the purpose of the proceedings. It is not the traditional name of any group of Aboriginal people.
The third applicants were involved with the first applicants’ native title claim group when the first applicants claim was lodged in 1994. However, in 1998 the third applicants lodged a separate application which was consolidated with the application of the first applicants to the extent of the overlap on 6 May 1999.
On 2 June 1999 the solicitors for the third applicants withdrew their representation, citing lack of funding. However, on 13 September 1999 the solicitors re-entered the record. On that date they sought an adjournment for hearing of evidence relevant to overlapping areas of the claim until April 2000. By order of the Court dated 19 November 1999 the third applicants’ notice of motion for adjournment was refused.
The third applicants were represented from the commencement of the hearing by senior counsel.
On 28 April 2000 Carr J remitted the issue of the decision on funding of the third applicants by the Aboriginal Legal Service (‘the ALS’) to it for consideration: Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435. On 13 October 2000 French J dismissed an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the ALS in respect of no further decision having been made by it. The basis of the dismissal was that the ALS no longer possessed the power to apply to ATSIC for funding in respect of the application. On 1 May 2001 the Full Court (Lee, Lindgren and Katz JJ) dismissed an appeal from the decision of French J: Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483, (2001) 108 FCR 589.
RESPONDENTS 19D
The submission of the first applicants that the Court should determine who holds native title on the basis of the evidence before the Court whether or not any party before the Court had obtained leave to be joined as an applicant is correct: Ward FC at 208 – 209, at [192] – [193]. The Court must therefore make a determination in relation to the application by respondents 19D.
RESPONDENTS

As a result of directions given on 6 February 1997 and 24 March 1997 the respondents were arranged in the groupings in which they presently appear in the Schedule to these reasons. Groups were the subject of amendment from time to time as appropriate, for example on withdrawal of a respondent.
The representation of respondents is shown at the conclusion of these reasons, not all respondents being represented or are seeking to play a part in the proceedings.
NATURE OF CLAIMS
FIRST APPLICANTS
Prior to the decision of the High Court in Ward HC the first applicants submitted that:
(1)the evidence should be understood as disclosing that native title rights and interests in the claim area are held by the members of the composite community known as the ‘Ngarluma and Yindjibarndi peoples’;
(2)the community of the Ngarluma and Yindjibarndi peoples comprises two groups, namely, (a) the Ngarluma people and (b) the Yindjibarndi people;
(3)the Ngarluma people and the Yindjibarndi people respectively have maintained their connection with their traditional homelands or territory under their traditionally based laws and customs, as currently acknowledged and observed;
(4)the native title of the Ngarluma and Yindjibarndi peoples enjoyed at sovereignty has survived, namely, the right to the possession, occupation, use and enjoyment of the claim area.
However, in the same submissions the first applicants submitted that the members of the first applicant native title claim group (together with members of the third applicant group and some members of the second applicant group – notably, the Cosmos family) hold the communal group and individual rights and interests in respect of the claim area, such rights and interests being possessed under the traditional laws and customs of the Ngarluma and Yindjibarndi peoples respectively, which laws and customs the community as a whole continues to acknowledge and observe and by which it has a ‘connection’ with the land and waters claimed. It was said such rights and interests are recognised by the common law of Australia.
Following the decision in Ward HC the case for the first applicants no longer maintained it was necessary for the Court to find that there is a single ‘composite community’ known as the ‘Ngarluma and Yindjibarndi peoples’. It is now said it is not necessary for the Court to find that there is a single native title comprising the right to the possession, occupation, use and enjoyment of the claim area as a whole.
The submission is that the true inquiry is as to the rights and interests which may comprise native title rights and interests, based upon the traditional laws acknowledged and traditional customs adhered to by the Aboriginal peoples who have a connection to the land and waters the subject of the application in accordance with those laws and customs: Ward HC at 16 – 17, at [17] – [18]. It is said the Court, on the evidence in this case, should hold, in accordance with the NTA s 225(a), that, in relation to the particular area the subject of this application, there are two groups, the Ngarluma peoples and the Yindjibarndi peoples who hold rights comprising native title rights.
In support it is said for the first applicants that ‘A traditional law or custom is one which has been passed from generation to generation of a society …’: Yorta Yorta at [46]. ‘Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observations of a body of law and customs: Yorta Yorta at [49].
The Ngarluma and the 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 claim also excludes the towns of Dampier, Karratha, Wickham and Point Samson.
The native title rights and interests initially claimed by the first applicants were as follows:
(a)the right to possess, occupy, use and enjoy the land and waters claimed;
(b)the right to be asked, and the enforceable right to say no, with respect to any proposed activity by any person not part of the native title claim group within or affecting the determination area;
(c)the right to make decisions about the use and enjoyment of the land and waters claimed;
(d)the right of free access to the land and waters claimed;
(e)the right to control the access of others to the land and waters claimed;
(f)the right to use and enjoy the resources of the land and waters claimed;
(g)the right to control the use and enjoyment of others of the resources of the land and waters claimed;
(h)the right to trade in the resources of the land and waters claimed;
(i)the right to receive a portion of any resources taken by others from the land and waters claimed;
(j)the right to maintain and protect places of importance under traditional laws, customs and practices on the land and waters claimed;
(k)the right to maintain, protect and prevent the misuse of cultural knowledge associated with the land and waters claimed;
(l)the right to decide on and regulate membership of the Ngarluma and Yindjibarndi Native Title Claim Group.
By their application, the first applicants’ claim excludes:
(a)category A past acts;
(b)category A intermediate period acts;
(c)previous exclusive possession acts attributable to the Commonwealth, and attributable to the State where those acts are covered by the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (‘TVA’);
(d)validly created existing public roads, or streets used by the public;
(e)any area that is subject to a valid grant of freehold;
(f)permanent public works; and
(g)any area in relation to which all native title rights and interests have otherwise been extinguished.
The first applicants’ initial submissions did not separately deal with the content of the rights claimed other than to maintain that the first applicants exercised the full range of their rights and interests in relation to the land and waters claimed in accordance with their rights and customs, such that they ‘possessed, occupied and used and enjoyed the whole of the claim area’. That is, it appeared the first applicants maintained a claim for title as the right to possession, occupation, use and enjoyment of the land and waters of the claim area from which native title rights and interests such as those set out in their application derived.
The first applicants’ amended native title submissions now contain a different list of rights to that in the application. That list is as follows:
In relation to onshore land and waters:
(a)A right to access (including to enter, to travel over and remain);
(b)A right to engage in ceremony and ritual (including to perform ritual at sites of cultural significance, to engrave and paint on rock surfaces, to arrange stones and other natural features for cultural purposes, to dispose of the dead, to carry out birth practices, to carry out and participate in initiation practices, to carry out practices acknowledging and reinforcing the relationship between persons and the land accorded by traditional laws and customs):
(c)A right to camp, build shelters (including boughsheds, mias and humpies) or a house or live on the area;
(d)A right to hunt and forage;
(e)A right to fish and take fauna from the waters;
(f)A right to collect and forage for bush medicine and food;
(g)A right to take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub, turkey, swan);
(h)A right to take flora (including timber logs, branches, roots, bark and leaves, gum, wax and spines, Aboriginal tobacco, fruit, peas, beans, pods, melons, bush cucumber, currants, seeds, nuts, grasses, potatoes, wild onion and other bulbs and tubers, honey);
(i)A right to take black, yellow, white and red ochre;
(j)A right to take, to quarry and to shape, stone;
(k)A right to take water for drinking and domestic use;
(l)A right to cook on the land including light a fire for this purpose;
(m)A right to control (i) access, (ii) activities, including rituals and ceremonial activities, (iii) the taking of resources and (iv) the creation or destruction of improvements (v) other people from different groups from making decisions about the area or use of the area or from imparting any traditional knowledge concerning the area (ie, in effect a right to speak for and about the area and make decisions about use of the country);
(n)A right to protect and care for sites and objects of significance in the 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);
(o)A right to maintain, conserve and/or protect sites and objects of significance, within the area, by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object;
(p)A right to maintain, conserve and/or protect from injury, desecration damage, destruction or alteration and prevent the misuse of ceremonies, artworks, song cycles, narratives, beliefs or practices which have social, cultural, religious, spiritual, ceremonial, ritual or cosmological importance or significant to the common law holders associated with the area, by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice;
(q)A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within places, within the area of cultural and spiritual (sic) social, cultural, religious, spiritual, ceremonial, ritual or cosmological significance to the common law native title holders under traditional laws, customs and practices from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders;
(r)The rights of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area;
(s)The right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.
The native title rights and interests which are claimed in relation to the area of the sea seaward of the high water mark comprise the rights set out at pars (a) to (s) above, excepting the right at par (m) but including instead:
(t)the right to refuse access to the seas to any person other than:
(i)a lease holder, or an employee, agent or invitee of a leaseholder (who has and is exercising a right of access to the land and waters for the purposes of the lease in accordance with the terms of the lease);
(ii)a person exercising a statutory right of access;
(iii)a person exercising the public right of fishing or navigation or the right of innocent passage; and
(u)the right to make decisions about the use and enjoyment of the seas, and the resources thereof, by persons other than:
(i)a lease holder exercising rights under that lease;
(ii)a person exercising a statutory right in relation to the use of the land and waters;
(iii)a person exercising the public right of fishing or navigation or the right of innocent passage.
The question therefore arises whether the first applicants should be taken to have abandoned their first formulation without amendment of their application. A related question is whether the Court is bound to consider the rights as claimed by the applicants or to decide for itself what native title rights (if any) exist in the claim areas.
For the first respondents it is submitted these questions do not require to be answered here. It is said it is sufficient if the Court both has regard to the concessions made by the applicants in their submissions and recognises it is not bound to adopt the formulation of native title rights and interests put forward by the applicants. The submission is that the Court should describe with specificity and by reference to the activity which may be conducted on the land and waters those matters in relation to which it finds native title to exist. The case for the fifth respondents raises the contention that the first applicants should amend their application.
In my opinion and in reliance on the final submissions for the first applicants, I infer they rely for their case on the second formulation as a substitution for the first formulation. I do not consider it is necessary that they either act to amend their application or be required by the Court to do so. The manner in which the application is now being pressed in the light of decisions of the High Court emerging during the long course of the hearing and conduct of these proceeding was apparent to all parties in the proceeding prior to closing submissions. Opportunity for final submissions provided the opportunity for any additional submissions occasioned by the different manner in which the first applicants chose finally to press their case. It is clear that s 225(b) of the NTA requires the Court to make a determination in rem as to ‘the nature and extent of the native title rights and interests in relation to the determination area’: s 225(b). I agree with the submission for the first respondents that this requires the Court to find make such a determination on the evidence ultimately unconfined by the formulation of the claim. In that context, to insist on formal amendment in the particular circumstances would be inappropriate.
For the first applicants it is submitted the Court should determine (subject to any findings of extinguishment) that:
(1) Native Title exists in the claim area.
(2)The people holding the native title rights and interests are the Ngarluma and Yindjibarndi people.
(Or alternatively, the people holding the native title rights and interests in the Ngarluma country are the Ngarluma people and the people holding the rights and interests in the Yindjibarndi country are the Yindjibarndi people).
(3) The nature and extent of the said native title rights and interests.
In view of par (g) in the exclusions listed in the first applicants amended native title submissions, it is submitted for the first respondents that the Court should first make a finding of fact about each of those matters before considering whether native title exists. This is because it is contended it is not possible to prove native title in respect of area ‘A’ by proving activities on area ‘B’. In particular it is aid in application of the submission that as Millstream has been the subject of a resumption and the vesting of a reserve, so that native title has been extinguished, all evidence concerning use of Millstream for the applicants’ case is irrelevant.
I do not accept this submission, for two reasons. Firstly, it involves a peculiarly harsh reading of the terms of the application. Exclusion of areas ‘in relation to which all native title rights and interests have otherwise been extinguished’ is no more than an acknowledgement of the effect of the proper application of the law. Secondly, it is at odds with the way in which the evidence of connection must be approached: Ward HC at 30, at [53] and at 32, at [68]. This is further set out in Part XII under the heading ‘Degree of connection issue’.
SECOND APPLICANTS
The second applicants express their claim, that is, as a claim to the right to possess, occupy, use and enjoy the whole of the land and waters claimed. A list of rights and interests said to be exercisable under the traditional laws and customs of the Yaburara and Mardudhunera peoples, of which the second applicants claim to be part, are said to include:
(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;
(d)the right to make decisions about the use and enjoyment of the land and waters claimed;
(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;
(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;
(k)the right to maintain and protect places of importance on the land and in the waters claimed;
(l)the right to maintain, protect and prevent misuse of cultural knowledge associated with the land and waters claimed.
These claimed rights and interests are subject to the following:
(a)to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the second applicants;
(b)to the extent that the native rights and interests claimed may relate to waters in an offshore place, those rights and interests are not claimed to the exclusion of other rights and interests in relation to the whole or part of the offshore place;
(c)the second applicants do not make a claim to native title rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in s 23F of the NTA was done in relation to an area, and either:
(i)the act was an act attributable to the Commonwealth; or
(ii)the act was attributable to the State of Western Australia and a law of that State has made provision as mention in s 23I in relation to the act,
but the foregoing is subject to such of the provisions of ss 47, 47A and 47B of the NTA as to apply to any part of the area contained within this application;
(d)to the extent that any native title rights and interests have been otherwise extinguished (except to the extent that the extinguishment is required to be disregarded pursuant to ss 47, 47A and 47B of the NTA, those rights and interests are not claimed by the second applicants; and
(e)the current and ongoing exercise of rights under valid past and future acts as defined under the NTA.
An essentially similar list of rights is claimed in their Statement of Issues, Facts and Contentions (undated but filed in or about June 1999), with an added qualification that ‘the native title rights held by the second applicants are limited by the current use of land or waters claimed within the overlap area pursuant to a lawful entitlement, including current use pursuant to non-exclusive agricultural or pastoral leases as defined in the Act’. The rights claimed have not been qualified in submissions.

In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed that ‘in the camp, each family had its own hut or shelter with its own fire’ (R1/16 p 147).
(d) Hunting and foraging
‘A right to hunt and forage’
There are records of Aborigines in the area netting birds (1861, 1866); spearing (1889, 1900) and shooting (1866, 1892, 1911, and 1940) kangaroos; using spears, spear-throwers, clubs and boomerangs to ‘kill animals, kangaroos, emu and turkey’ (pre-1900); catching wild game (1902, 1911); making a living kangaroo shooting (1906) and dingo hunting (1939, 1940). This is reflected in recorded concerns of stations owners concerning hunting on station properties (1911, 1925, 1940, 1942) including the use of kangaroo dogs (1910 – 20). There is a record in 1944 of Tableland Natives at Millstream Station living off kangaroos and fish. Native Welfare Station reports show until 1971 use of vehicles for hunting purposes. The ability to make a living selling kangaroo skins and hunting dingo, strengthened the independence of some Aborigines from dependence on stations.
Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral in common. Any member has the right to hunt over the country of his group at all times. He may not, however, hunt over the country of any other local group without the permission of the owners’(R1/16 p 146). In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed that ‘the man provided the flesh food and his wife provided the vegetable food and such things as small mammals or lizards’ (R1/16 p 147).
Tindale observed in 1974 that ‘all people may hunt over the whole of Yindjibarndi country…There is only one…boundary, the one that separates their territory from those of other tribes’ (R1/15(1) pp 80-81).
Yindjibarndi claim area
The evidence from historical documents from 1889 shows Yindjibarndi first applicants hunted on Tambrey station, Tableland Ration Camp and the Tableland generally, Mt Florance station, Pump Well, Coolawanyah station, Millstream station, Mulga Downs station.
Ngarluma claim area
The evidence from historical documents from 1861 shows Ngarluma first applicants hunted in the vicinity of Roebourne and the Harding River, Cossack, Red Hill, Nickol Bay, Croydon station, Woodbrook station, Pyramid station, Sherlock station, Mallina station, Middle Creek Reserve.
(e) Fishing
‘A right to fish and take fauna from the waters’
See above (d).
Observations are recorded of use by Aborigines of fishing lines (1818) and nets and their involvement in spearing of turtles and catching of fish, crabs, dugong and turtle (1860 – 80).
Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108).
In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed ‘the inland natives visited those on the coast when the fish were plentiful’ at the invitation of their neighbours (R1/16 p 147).
Yindjibarndi claim area
The evidence from historical documents shows Yindjibarndi first applicants fished near Millstream Ration Camp and Millstream station generally,
Ngarluma claim area
The evidence from historical documents from 1861 shows Ngarluma first applicants fished on Nickol Bay, in the vicinity of the Sherlock River, in the vicinity of the Harding River and Roebourne, Cossack, Karratha station, Mallina station, Mardi station.
(f) Bush medicine and tucker
‘A right to collect and forage for bush medicine and food’
Records show use of bush medicines at Pyramid and Millstream in 1893.
Records from 1818 to almost 1900 record Aboriginal consumption and preparation of bush tucker. Particularly notable is the description by A R Richardson in E M Curr, The Australian Race: Its Origins, Languages and Customs, Government Printer Melbourne: 1886, Vol I, pp 296
Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108).
Yindjibarndi claim area
The evidence from historical documents shows Yindjibarndi first applicants gathered bush medicine and tucker on Millstream station.
Ngarluma claim area
The evidence from historical documents shows Ngarluma first applicants gathered bush medicine and tucker around Roebourne, Nickol Bay, Whim Creek, Balla Balla, Croydon station, along the Harding River, along the Sherlock River, Kangan Pool, on Pyramid station.
(g) Take fauna
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’
See above (d) ‘Hunting’ and (e) ‘Fishing’
In relation to Ngarluma ceremonies, Radcliffe-Brown in 1913 described the use of emu fat, eagle-hawk feathers, fur (R1/16 p 174).
Yindjibarndi claim area
The evidence from historical documents shows Yindjibarndi first applicants took and used kangaroo skins at Millstream.
Ngarluma claim area
The evidence from historical documents shows Ngarluma first applicants took and used pearl shell, cockatoo feathers and animal skins in the Roebourne and Nickol Bay areas, and Andover (later Woodbrook) station.
(h) Take flora
‘A right to 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…, honey)’
See above (f) ‘Bush medicine and tucker’
In relation to Ngarluma ceremonies, Radcliffe-Brown in 1913 described the use of windbreaks made of boughs and grass (R1/16 p 174).
The evidence from historical documents in 1861 shows Ngarluma first applicants in the Nickol Bay and Roebourne areas used logs to travel across water, took and used green leaf girdles as clothing, made baskets of spinifex, made string and nets from numerous vegetable substances, made throwing sticks and spear shafts from local timber (1886). Used seeds, bark, grasses and spinifex (1864-1890s). Used gum from trees in ceremonies (c 1915-1930).
(i) Take ochre
‘A right to take black, yellow, white and red ochre’
Richardson in 1886 reported use of red ochre as body paint in corroborees.
Radcliffe-Brown in 1913 observed the Aboriginal people of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108). He described the use of ‘white clay’ in ceremony. Initiates were painted with ‘red paint’ (R1/16 p 174).
(j) Take and use stone
‘A right to take,…and to shape stone’
Reports in 1864 from the Roebourne area and 1890s from the Balla Balla area referred to grinding seeds between flat stones for flour. Richardson in 1886 reported flints sharpened by chipping used for knives and tomahawks to cut through logs.
There is an interview dated 1983 relating to the period between 1915-1930, where reference is made to use of stones for ritual scarification in Ngarluma territory.
Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108). In relation to Ngarluma ceremonies, Radcliffe-Brown in 1913 described the grinding of seeds into flour (R1/16 p 174).
(k) Take and use water
‘A right to take water for drinking and domestic use’
A nineteenth century observer noted the Aborigines’ ability to find and store water, by building small dams and hiding rock-holes with grass.
See ‘Right to camp’ (c) for reference to camping by waterholes.
(l) Cook and light fires
‘A right to cook on the land including light a fire for this purpose’
Observations of fires surmised to be lit by the ‘natives’ recorded by Dampier (1699) and Baudin (1801). Early settlers referred to Aborigines sitting around their camp fires (1860s, 1870s, 1880s). See ‘Right to Camp’: (c)
(m) Control access, activities, resources, improvements, other groups
‘A right to control … (ii) activities, including rituals and ceremonial activities, … (iv) the creation … of improvements …’
Settler reminiscences from the early twentieth century indicated that it was a common attitude among station owners not to interfere with the traditional laws and practices of the local Aboriginal people. ‘It was their life and they were entitled to it’ (1/R(2) at p 23).
(n) Protect and care for sites and objects
‘A right to protect and care for sites and objects of significance in the 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)’
Some early observations (1865) of Aboriginal rock art are recorded together with the fact ‘the natives’ showed drawings to observers. Nineteenth century observers referred to the Ngarluma people possessing a ‘wide range and quantity of highly secret sacred objects’.
Withnell in 1901 described ‘tarlow’ in the Roebourne area as ‘a stone or pile of stones set apart as a hallowed spot, dedicated to the ceremony of willing that certain things such as children, birds, animals, insects, frogs, reptiles, fishes, and grass seeds etc, be made to multiply and increase, each living thing having a separate tarlow, all of which belong to the head of each family, as master of the craft, descending (sic) from father to son’. Clement in 1903 wrote similarly of ‘tarlow’ as being associated with increase ceremonies in both the Yindjibarndi and Ngarluma claim areas (1/Y(1) p 99).
Radcliffe-Brown in 1913 described ‘talu’ or ‘totemic’ ceremonies for the Ngarluma. He observed that such ceremonies had been discontinued (R1/16 p 174). However caution is needed in regarding his work as authority for the whole of Ngarluma and Yindjibarndi society because he focussed on Kariyarra and Mardudhunera – (see Robinson 1/Y(2) p 14).
Radcliffe-Brown was told by the Ngarluma group on the Sherlock River it was associated with black beetle thalus. The Ngarluma first applicants contain people referred to as the ‘Croydon Mob’ or Murrumparrijirri, who associate with that area (1/Y(1) p 60) and gave evidence of the existence of a beetle thalu. He described a ‘vomiting’ thalu. Ngarluma lay applicants gave evidence of a ‘sickness’ thalu in that area.
In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed ‘in a large proportion of cases the place where the ceremony is performed is called by a name formed by adding the prefix ‘na’ to the name of the totem’ (R1/16 p 167).
Mrs Bates in 1913 reported that ‘thalu ceremonies’ were performed by tribes on the ‘West Pilbara type’, to which Ngarluma belonged (R1/15(1) p 118).
(o) Maintain and protect sites and objects
‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object’
See above ‘Right to protect and care for sites and objects’
(p)      …
(q)      Protect places from inappropriate use
‘A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within the area of social, cultural, religious, spiritual, ceremonial, ritual or cosmological significance to the native title holders from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders’
(r)       …
(s)       …
SECOND APPLICANTS
(a)       …
…
…
…
(b)      …
…
(c)       …
…
…
(d)      Use, enjoy resources
‘The right to use and enjoy the resources of the land and waters claimed’
Straker, in 1893, reported Aborigines on Mardi station going on ‘pinkeye’ into the bush for periods of two months. Aborigines belonging to the Fortescue country were reported ‘loafing about’ the Mardi station paddocks (1893). Olivey in 1900 reported that the ‘natives’ on Mardi station ‘could not be driven from the place’ even though they were not drawing rations.
Mardi station vehicles were allowed for hunting and fishing trips by station Aboriginals (1966).
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’
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.
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.
THIRD APPLICANTS
There is no specific evidence to be referred save that referrable to the first applicants so far as it applies to the third applicants as Ngarluma or Yindjibarndi people.
APPENDIX J: EVIDENCE REFERABLE TO PART XIII OFFSHORE WATERS AND ISLANDS: LAY AND EXPERT EVIDENCE
EVIDENCE OF APPLICANTS
FIRST APPLICANTS
(a) Evidence as to the extent of boundaries
As to the extent of Ngarluma interests in the sea, the furthest Michael Walker travelled to sea while fishing was about two kilometres (T 1494-5). Trevor Solomon said the Ngarluma sea boundary was ‘way out to sea’, maybe to the north west shelf, but he was unsure as to where he had heard this (T 2131). The old people told David Daniel that the northward Ngarluma boundary was wanguda (‘seawater’) but they did not indicate how far (T 2824-5). He asserted that Ngarluma country included the islands north of the coast (T 2899) and described the seaward boundary of Ngarluma country as ‘a couple of kilometres or a kilometre from the islands’ (T 2726-32).
(b) Evidence as to use of the sea
Bridget Warrie's mother caught catfish in the sea (T 1015). Michael Walker gave evidence of fishing in the vicinity of Balla Balla, Depuch Island (Wamala-na) and the mouth of the Sherlock River (T 1482-3, 1494-5). Jack Wedge also gave evidence of net fishing in the Sherlock estuary (T 1584), as did Rex Churnside (T 1700). Frank Smith fished for salmon in the sea at the mouth of the Sherlock, but never used a boat (T 1855-6). Marjorie Jenkins visited Wamala-na with her grandfather fishing with nets, catching turtles and pearling. She was aware of water on Wamala-na (T 1557-60, 1594-5). Keith and Rex Churnside have fished in the vicinity of Cossack, Samson, Wickham on the beaches and shoreline, in creeks, around Jarmon and Dixon Islands and occasionally off Cape Lambert (T 1693-4, 1767-9, 1747, 1755). David Walker fishes in creeks from a boat near Cossack and the mouth of the Nickol River and at King Bay, Nickol Bay and Flying Foam Passage generally (T 2648-51, 2677). He learnt about fishing places around the Burrup from old people like Solomon James (T 2683-4). Ken Walker fished in the sea off the mouth of the Sherlock River, and told of the old people fishing the Sherlock all the way down to the sea (T 1823-4, 1826-7, 1880-1). Trevor Solomon told of fishing and crabbing at Tonimaya near Wickham, getting oysters at Samson and Wickham, and catching a shovel nose shark in the shallows with a spear. He has fished around one of the Dampier islands, and knew of Jack Fishook fishing at Nickol Fork and Barlows. The fishing he described was tidal estuary and river fishing (T 2075-80, 2130-7). Josie Samson also fished from the beach at Dawsons, Cleaverville and the mouth of the Sherlock (T 2195-6). David Daniel remembered collecting fish at Tonimaya as a child (T 2753) and has fished along the coast near Dampier Port, West Intercourse Island, mouth of the Nickol River, Cleaverville and Cape Lambert. He has caught turtles in the past (T 2766-70, 2894-5). He acknowledged a submission from the Ierumugadu group to the Seaman Royal Commission in 1983 which stated that the waters in the area bear no special significance to Aboriginal people, but denied its relevance (T 2863). Trevor Solomon told of the use of traditional plants to stun and catch fish in tidal estuaries and rivers but not the ocean (T 2137), and Keith Churnside said that the old people made fishing nets from tree branches and leaves for use along the shore (T 1773-4).
Evidence of knowledge of Ngarluma terms for the sea and sea creatures was displayed by Ken Walker (T 1484-6, 1826-7), Jeanie Churnside (T 1676-8), Max Sambo (T 1976-7), Trevor Solomon (T 2075-80), Pansy Hicks (T 2215-6), David Daniel (T 2863).
(c) Evidence as to the sea as a significant spiritual area
The Court was told Dreaming stories associated by the applicants with the sea. Woodley King told of the barrimirndi walu coming from the sea at the mouth of the Fortescue (T 234-6). Kenny Jerrold told of the walu's subsequent eating of two wamulu (young initiates going through the law) (T 1082). When singing in language for Yartanyirra (Fortescue around Millstream), Woodley King referred to sea water (T 1082). The story of the Pungkaliyarra sisters, two dugongs, coming from the sea near the Burrup was related or sung by Bridget Warrie (T 931-2), and Kenny Jerrold (T 1051-4, 2675-6). A fight between the seaside /wangudu warlu and the freshwater walu in the sky over Roebourne was related by Dora Solomon (T 983-4, 2372-3), and Nita Fishook (T 2376). Kenny Jerrold told of jirri jirri taking the fire stick from kalamana and attempting to put it out in the sea, only to be stopped near the Burrup. He had been taught this story when he was young by Yilbi Warrie (T 2695-6, 2873-4). Kenny Jerrold also told of the origins of a whale thalu when a bird with a long tail forced the sea to recede, leaving the mark of a whale on a hillside (T 2661-2, 2873-4). David Daniel spoke of the flying fox originating in the sea (T 2543), and Kenny Jerrold of a wanyja (dog) emerging from the sea (T 2700).
David Daniel spoke of pearl shell pendant known as birda birda, from the wanguda being worn by boys during initiation (T 2295). He was aware of carvings on the islands and use canoes in the past, but indicated that much of this knowledge was obtained while participating in Department of Conservation and Land Management and Museum of Western Australia surveys (T 2679, 2726-32, 2877-84).
Allery Sandy takes schoolchildren to the seaside to teach them about sea creatures and objects, accompanied by elders such as Trevor Solomon (T 2516-7).
SECOND APPLICANTS
(a) Evidence as to boundaries
Robert Boona suggested that the boundary would not go much further than the islands close to the shore and the fishing areas just off the islands (T 2968-9). He didn't know how far out people in the old days went to fish (T 3032-3). Valerie Holborow said that the claim boundaries went in without her knowledge. They had been drawn up by the anthropologist. (T 3104).
(b) Evidence as to use of the sea

Colin Cosmos recounted recreational fishing day trips to Hearson Cove and Withnell Bay around the Burrup and at the mouth of the Yanari River, outside the overlap claim area. He did not fish offshore, only from the rocks (T 2976, 2990, 3085, 3099). Dorene Wescombe and Margaret Boona recounted childhood memories of fishing from the mouth of the Fortescue River and around Cossack, outside the claim area. Dorene Wescombe also remembered gathering turtle eggs and turtles as well as crabs, clamshells and mussels from the shore near the Fortescue mouth (T 2983-4, 2989).
THIRD APPLICANTS
(a) Evidence as to the extent of boundaries
Wilfred Hicks said he was claiming ‘out to sea and around the islands’ within their claim area because ‘my people used to go out onto those islands and still today they go to those islands’ (T 3828).
(b) Evidence as to use of the sea
Wilfred Hicks gave evidence of wading across to the Burrup at low tide and pearl shelling in Hearson Cove in his childhood (T 3145-6). Ernie Ramirez understood from what he had been told that his ancestors were ‘coastal nomads’ who wandered to the mouth of the Harding River to fish and collect shellfish (T 3513). Cane and Dallas Hicks, as children, accompanied his father camping on Nickol Bay, where they waded out onto the reef to collect pearl shells (T 3265, 3558-9). Wilfred Hicks and his family still go out to ‘the islands’ by boat to fish and caught turtle and dugong. They caught fish on the reef, gather turtle eggs, shellfish and crabs. His father and uncles, Alf Boona and Willy Cooper had taught him how to catch and prepare the seafood. He had been taught such Aboriginal names for the sea life as his father had known, but he had forgotten them (T 3828-30). Neither he nor his father or grandfather Jack Hicks had owned a boat (T 3903). They only fished in the sea from the rocks with a hand line (T 3987). He had only ever done pearl shelling by wading out at low tide (T 3980). Wifred Hicks was ten when he first saw his uncle spear a small dugong from a boat in about four feet of water in Nickol Bay. It had only been used for food. He knew of no other uses to which by-products would be put, nor of its habitat and locations, nor of any traditional customs and rules as to permission to hunt dugong. He had recently accompanied his nephew and a Torres Strait Islander, hunting dugong near Cape Lambert (T 3987-95). He had never heard a Ngarluma name for dugong but thought he could remember that for turtle (T 4000). He had not been taught traditional customs relating to the sea (T 4004). He did not think there were any applying to Aboriginal people (T 4001). His recent experiences of dugong hunting had been with Torres Strait Islanders (T 4006).
EXPERT EVIDENCE
ARCHAEOLOGY
Dr Veth noted that many engravings in the Burrup depicted species of documented economic significance such as pelagic fish, dugong, macropods, lizards and crustacean and the same species have been recovered through archaeological techniques in the middens which can be dated to the recent modern period, namely the nineteenth century and before (T 4601-2). Turtles and fish are the most frequently represented fauna (T 4603). The engravings on Depuch Island had accumulated over hundreds or perhaps thousands of years and were entirely consistent with infrequent visitation of the island rather than permanent habitation. Some engravings depict pelagic fish species. (T 4639-40)
HISTORY
The crew of the Mermaid, Captain PP King's ship, intercepted three Aboriginal men paddling on logs from Intercourse Island towards East Lewis Island in 1818. In 1861, F Gregory's ship, the Dolphin, was visited by Aboriginal people who had paddled out on logs from a shore at least ten kilometres distant (R1/15(1) p 66). AK Richardson in 1886 noted that the Nickol Bay tribe sat astride logs of wood which they paddled with their hands and from which they fished with nets and spears. E Clement in 1903 noted various fishing techniques and gathering of oysters from the rocks near the shore (R1/15(1) p 64).
When Aboriginal people lived on Karratha and Mardi stations they frequently visited the islands to hunt and fish, with Ngarluma predominating at Karratha and Mardudhunera at Mardi.
Ms Turner found in the 1980's that the Ngarluma ‘no longer lived along the littoral zone and have long since ceased their dependence on marine resources’ (R1/26 p 90).
ANTHROPOLOGY
Tindale noted the absence of buoyant natural timber between Roebourne and Broome limited access to the offshore islands. Only the Mardudhunera, ‘west of Nickol Bay’ possessed rafts and were able to visit the islands of the Dampier Archipelago (Tindale 1974 p 58). K Palmer in 1974 found one informant, a Ngarluma Mardudhunera man, who told him that the islands were visited regularly by his parents and grandparents who used canoes made from cork trees, caught fish with nets and spears, speared turtles and ate their eggs. His informant had also accompanied Europeans on fishing trips to the islands before the industrial development of the area. (R1/15(1) p 65)
Mr Robinson's view on the seaward extent of traditional Ngarluma country was that the evidence must be considered in two ways. Firstly, the evidence about use of the sea, and secondly, in relation to the sea as a significant area, and its position in Aboriginal religion and mythology.
As to the former, it was clear to him that the boundary of the claim on the seaward side was too ambitious. The extent of usage of the sea is a more limited area, which extends out to the low water mark and to the area immediately around and between the islands, and at most no more than about two kilometres from the land.
As to the latter, the evidence about religious and mythological significance in his opinion went further. An examination of evidence about the various Dreamings that were said to originate in the sea and the story about the origin of fire, for example, made it clear that the sea is of great significance and importance, both in terms of its being the source and origin of a number of beliefs and also for its power and its dangerous nature. Mr Robinson concluded that the sea has a cultural significance that goes beyond the economic boundary that he described (T 4968; 1/Y(2) p 29).
Coppin Dale had told Mr O'Connor that Aboriginal people visited Wamala-na (Depuch Island) as part of fishing carried out cooperatively by Ngarluma and Kariyarra people in the Balla Balla area (T 6082-3).
Professor Maddock agreed under cross examination that there was evidence from the first applicants of catching pelagic fish species such as shark, mullaway, mullet and bony bream, and sea water turtles, as well as visiting Depuch Island (T 6963-4).

I certify that the preceding one thousand six hundred and seventy-nine (1679) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
R D Nicholson.
Associate:
Dated:            3 July 2003

Counsel for the First Applicants:

Mr M Barker QC with Mr W de Mars and Ms A Murphy
Mr G McIntyre SC with Ms CL Tan
Mr M Dell

Solicitor for the First Applicants: Yamatji Land & Sea Council (from 14 August 2002)
Aboriginal Legal Service of Western Australia (Inc) (from 9 December 1997 until 14 August 2002)
Dwyer Durack (until 20 November 1997)

Counsel for the Second Applicants:
Mr E Ng
Mr PT Williams

Solicitor for the Second Applicants
McDonald Rudder (until 3 September 1999)
Williams & Co (limited appearance from 3 September 1999)

Counsel for the Third Applicants:
Mr RI Viner AO QC
Mr J Kitto

Solicitor for the Third Applicants:
Kitto & Kitto

Counsel for the First Respondents:
Mr KM Pettit SC with Mr S Wright

Solicitor for the First Respondents:
Crown Solicitor’s Office

Counsel for the Respondent Group 2A:
Mr JB Allanson with Ms S Nash

Solicitor for the Respondent Group 2A:
Australian Government Solicitor

Counsel for the Respondent Group 2B later became Third Respondent:
Mr A Beech

Solicitor for the Respondent Group 2B later became Third Respondent:
Holding Redlich
Blake Dawson Waldron

Counsel for the Fourth Respondents:
Mr M Gregory

Solicitor for the Fourth Respondents:
Minter Ellison

Counsel for the Fifth Respondents:
Mr D Martino
Mr G Hiley QC
Mr E Fethers

Solicitor for the Fifth Respondents:
Jackson McDonald

Counsel for the Sixth and part Seventh Respondents:
Mr M McKenna
Ms K White

Solicitor for the Sixth and part Seventh Respondents:
Hunt & Humphry

Counsel for the Eighth and Twelfth Respondents:
Mr CP Stevenson

Solicitor for the Eighth and Twelfth Respondents:
Mallesons Stephen Jaques

Counsel for the Ninth and Tenth Respondents:
Mr G Gishubl
Ms S King

Solicitors for the Ninth and Tenth Respondents:
Blake Dawson Waldron (from 18 September 2001)
Jackson McDonald (until 18 September 2001)

Counsel for the Eleventh Respondents
and the West Australian Fishing Industry Council:

Mr C Pullin QC
Mr MT McKenna

Solicitor for the Eleventh respondents and the West Australian Fishing Industry Council:

Hunt & Humphry

Counsel for the part Fourteenth Respondent:
Mr R Butler

Counsel for the Eleventh, part Sixteenth and part Seventeenth Respondents:
Mr M McKenna
Ms K White

Solicitors for the Eleventh, part Sixteenth and part Seventeenth Respondents:
Hunt & Humphry

No appearance for the Thirteenth and Fifteenth Respondents

No appearance for the Respondents 19B

No appearance for Respondents 19D

Counsel for Twenty-Second Respondent: Mr R Chappell (withdrew on
2 December 2002)

Dates of Hearing: 20, 21, 22, 23, 24, 28, 29, 30 September 1999
1, 4, 5, 6, 8, 11, 12, 13, 14, 25, 26, 27, 28, 29 October 1999
27, 28, 29, 30, 31 March 2000
3, 4, 5, 6, 7 April 2000
12, 13, 14, 15, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 June 2000
3, 4, 5, 6, 7 July 2000
28, 29, 30, 31 August 2000
1, 4, 5, 6, 7 September 2000
16, 17, 18, 19, 20 October 2000
11, 12, 13, 14 December 2000
3 October 2002 and 25 February 2003

Date of last written submissions 25 February 2003

Date of Judgment: 3 July 2003

SCHEDULE REFERRABLE TO PART I: GROUPED RESPONDENTS

Group Name

Government interests

1 State of Western Australia
Premier of Western Australia
Aboriginal Land Trust
Commissioner of Main Roads
Dampier Port Authority
Electricity Corporation
Gas Corporation
Heritage Council of Western Australia
Minister for Aboriginal Affairs
Minister for Environment
Minister for Fisheries
Minister for Health
Minister for Housing
Minister for Justice
Minister for Lands
Minister for Mines
Minister for Primary Industry
Minister for Resources Development
Minister for Transport
Minister for Water Resources
Minister for Works
National Parks and Nature Conservation Authority
Water Corporation
Waters and Rivers Commission
Western Australian Museum

2A
Commonwealth of Australia
Australian Maritime Safety Authority-from 24 February 1998

2B Telstra Corporation limited

3 Shire of Ashburton-withdrew 21 April 1997

4 Shire of Roebourne

Pastoral interests

5 Coolawanyah Pastoral Co Pty Ltd
Mallina Station
P & D Cook
Warambie Station
Mount Florance Station
DM, JA, WJ & NL Sambell
Peter Cook
Pedo Pty Ltd
Tony Richardson

Mining interests

6 BHP Minerals Pty Ltd
BHP Petroleum Pty Ltd
Pilbara Energy Pty Ltd

7 Broken Hill Metals NL
Bulong Nickel Pty Ltd
Resolute Limited- joined 12 June 1998
Resolute Resources Limited- joined 12 June 1998

8 Cape Lambert Iron Associates
Mitsui Iron Ore Development Pty Ltd
North Mining Limited
Pannawonica Iron Association
Robe River Mining Co Pty Ltd

9 Dampier Salt limited

10 Hamersley Exploration Pty Ltd
Hamersley Iron Pty Ltd

11 North West Shelf Joint Venturers & Woodside Offshore Petroleum Pty Ltd

12A Mineralogy Pty Ltd

12B CSR Limited
Boral Contracting Pty Ltd-removed from Group 13 and placed in Group 12B 27 February 1998
Pioneer Concrete (WA) Pty Ltd-removed from Group 13 and placed in Group 12B 27 February 1998
The Readymix Group-removed from Group 13 and placed in Group 12B 27 February 1998

13 Anvil Mining NL
(Boral Contracting Pty Ltd, Pioneer Concrete (WA) Pty Ltd, The Readymix Group-removed from Group 13 and placed in Group 12B 27 February 1998)
Australian Nickel Mines Pty Ltd- joined 25 September 1998
as result of consolidation of part WAG 127/97,
BGC Contracting Pty Ltd- joined 25 September 1998
as result of consolidation of part WAG 127/97
Dalrymple Resources NL
Dominium Mining Ltd
Dragon Mining NL
East Coast Minerals NL- joined 25 September 1998 as result of consolidation of part WAG 127/97
Everton Nominees Pty Ltd
Goldrim Mining Australia Ltd
Hunter Resources Ltd
Karratha Property Services
Karratha Stone Pty Ltd
Legend Mining NL
Mt Keith Gold Mines Pty Ltd
Optimum Resources Pty Ltd
Pilbara Mines NL
Plutonic Resources Limited
Santos Offshore Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 (1^st appearance 12 June 1998)
Starmoss Holdings Pty Ltd
Tap Oil NL- joined 25 September 1998 as result of consolidation of part WAG 127/97

14A Ron Brand
Allan J Clark
RW & DM Godlonton
Michele & Peter Heymans
John Phillip Kirkwood
Donald Edward North
Donald Kimberley North
VP O'Connor
J & P Rocca
James Edward Telfer

14B MG Creasy

14C Raymond Butler
Vincent T & Patricia A Roberts

Fishing interests

15 & 16 Directions Fisheries Pty Ltd
Higgins Power & Marine Services
MG Kailis Gulf Fisheries Pty Ltd
Kraos Fishing Company
McBoats
Redland Bay Pty Ltd
GH Alexander
RL Alexander
DG Baker
Dzintra Braun
John Braun
Ivan J Dawe
P J Fullarton- joined 25 September 1998 as result of consolidation of part WAG 127/97
Hugh Colin Gilbert
Stanley Richard Glass
RJ Goodlad
Louis Miles Hayler
James Lawrence Henry
Barry Holman
KR Hodges & K Pfiefre
E Morrison & S Bransby
PL Nash
Michael Nicholas & Lyne Janene Manifis
MF O'Byrne
WH Ott
DA Rettay
J Rinkens
Nell Rinkens
GE & BJ Sell
W Titko & C Russell- withdrew 4 December 1998
AB Tousaint
WAFIC- joined 2 June 1999

Pearling interests

17 Dampier Pearling Company
Exmouth Pearls Pty Ltd
Norwest Pearls Pty Ltd
Pilbara Pearls/Dampier
Cossack Pearls- joined 25 September 1998 as result of consolidation of part WAG 127/97

Indigenous interests

18 Yathalla Aboriginal Group Inc

19 Mingullatharndo Association Inc

19B Horace Parker, Wobby Parker, Naydene Robinson, David Stock, Gordon Yuline, Brian Tucker, Alice Smith, Joyce Inji, Listen James, Mebel Paterson, Chubby Jones, David Cox and Dulcie Condon on behalf of the Bunjima, Niapaili and Innawonga People- joined 27 February 1998

19D Teddy Roberts, Cyril Gordon, Donny Wilson and Bridie Alec on behalf of themselves and 89 Kariyarra People- joined 27 February 1998

Other

20 Geoffrey & Michael Tozer

21
Karen Downes (as a representative of AMSA)- withdrew as a personal respondent 24 February 1998
Grayson Holdings Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97
WR Jeffries
Karunda Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97
Vilma Rose Parker

22 The North West Game Fishing Club Inc

23 AUSI Iron NL- joined 25 September 1998 as result of consolidation of part WAG 127/97

Goldfields Gas Transmission Pty Ltd}
Westminco Oil Pty Ltd  }
Normandy Pipelines Pty Ltd            } 1^st appearance 12 June
  1998
Pilbara Energy Pty Ltd  }

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998

BETWEEN: AND: AND:	DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE FIRST APPLICANTS VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE SECOND APPLICANTS BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS THIRD APPLICANTS
AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND: AND:	THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM FIRST RESPONDENTS COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY RESPONDENTS 2A TELSTRA CORPORATION LIMITED THIRD RESPONDENTS (FORMER RESPONDENTS 2B) SHIRE OF ROEBOURNE FOURTH RESPONDENTS P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL FIFTH RESPONDENTS BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD SIXTH RESPONDENTS CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD EIGHTH RESPONDENTS DAMPIER SALT LTD NINTH RESPONDENT HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD TENTH RESPONDENTS NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD ELEVENTH RESPONDENTS MINERALOGY PTY LTD RESPONDENT 12A BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP RESPONDENTS 12B ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL THIRTEENTH RESPONDENTS RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O’CONNOR, J & P ROCCA AND JAMES EDWARD TELFER RESPONDENTS 14A MG CREASY RESPONDENT 14B RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS RESPONDENTS 14C GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O’BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc) FIFTEENTH RESPONDENTS COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER SEVENTEENTH RESPONDENTS YATHALLA ABORIGINAL CORP EIGHTEENTH RESPONDENT MINGULLATHARNDO ASSOCIATION INC NINETEENTH RESPONDENT HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES RESPONDENTS 19B TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE RESPONDENTS 19D GEOFFREY & MICHAEL TOZER TWENTIETH RESPONDENTS GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER TWENTY-FIRST RESPONDENTS AUSI IRON NL TWENTY-THIRD RESPONDENTS
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	3 JULY 2003
WHERE MADE:	PERTH

JUDGE:	R D NICHOLSON J
DATE:	3 JULY 2003
PLACE:	PERTH

Counsel for the First Applicants:	Mr M Barker QC with Mr W de Mars and Ms A Murphy Mr G McIntyre SC with Ms CL Tan Mr M Dell
Solicitor for the First Applicants:	Yamatji Land & Sea Council (from 14 August 2002) Aboriginal Legal Service of Western Australia (Inc) (from 9 December 1997 until 14 August 2002) Dwyer Durack (until 20 November 1997)
Counsel for the Second Applicants:	Mr E Ng Mr PT Williams
Solicitor for the Second Applicants	McDonald Rudder (until 3 September 1999) Williams & Co (limited appearance from 3 September 1999)
Counsel for the Third Applicants:	Mr RI Viner AO QC Mr J Kitto
Solicitor for the Third Applicants:	Kitto & Kitto
Counsel for the First Respondents:	Mr KM Pettit SC with Mr S Wright
Solicitor for the First Respondents:	Crown Solicitor’s Office
Counsel for the Respondent Group 2A:	Mr JB Allanson with Ms S Nash
Solicitor for the Respondent Group 2A:	Australian Government Solicitor
Counsel for the Respondent Group 2B later became Third Respondent:	Mr A Beech
Solicitor for the Respondent Group 2B later became Third Respondent:	Holding Redlich Blake Dawson Waldron
Counsel for the Fourth Respondents:	Mr M Gregory
Solicitor for the Fourth Respondents:	Minter Ellison
Counsel for the Fifth Respondents:	Mr D Martino Mr G Hiley QC Mr E Fethers
Solicitor for the Fifth Respondents:	Jackson McDonald
Counsel for the Sixth and part Seventh Respondents:	Mr M McKenna Ms K White
Solicitor for the Sixth and part Seventh Respondents:	Hunt & Humphry
Counsel for the Eighth and Twelfth Respondents:	Mr CP Stevenson
Solicitor for the Eighth and Twelfth Respondents:	Mallesons Stephen Jaques
Counsel for the Ninth and Tenth Respondents:	Mr G Gishubl Ms S King
Solicitors for the Ninth and Tenth Respondents:	Blake Dawson Waldron (from 18 September 2001) Jackson McDonald (until 18 September 2001)
Counsel for the Eleventh Respondents and the West Australian Fishing Industry Council:	Mr C Pullin QC Mr MT McKenna
Solicitor for the Eleventh respondents and the West Australian Fishing Industry Council:	Hunt & Humphry
Counsel for the part Fourteenth Respondent:	Mr R Butler
Counsel for the Eleventh, part Sixteenth and part Seventeenth Respondents:	Mr M McKenna Ms K White
Solicitors for the Eleventh, part Sixteenth and part Seventeenth Respondents:	Hunt & Humphry
No appearance for the Thirteenth and Fifteenth Respondents
No appearance for the Respondents 19B
No appearance for Respondents 19D
Counsel for Twenty-Second Respondent:	Mr R Chappell (withdrew on 2 December 2002)
Dates of Hearing:	20, 21, 22, 23, 24, 28, 29, 30 September 1999 1, 4, 5, 6, 8, 11, 12, 13, 14, 25, 26, 27, 28, 29 October 1999 27, 28, 29, 30, 31 March 2000 3, 4, 5, 6, 7 April 2000 12, 13, 14, 15, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 June 2000 3, 4, 5, 6, 7 July 2000 28, 29, 30, 31 August 2000 1, 4, 5, 6, 7 September 2000 16, 17, 18, 19, 20 October 2000 11, 12, 13, 14 December 2000 3 October 2002 and 25 February 2003
Date of last written submissions	25 February 2003
Date of Judgment:	3 July 2003

Group	Name
Government interests
1	State of Western Australia Premier of Western Australia Aboriginal Land Trust Commissioner of Main Roads Dampier Port Authority Electricity Corporation Gas Corporation Heritage Council of Western Australia Minister for Aboriginal Affairs Minister for Environment Minister for Fisheries Minister for Health Minister for Housing Minister for Justice Minister for Lands Minister for Mines Minister for Primary Industry Minister for Resources Development Minister for Transport Minister for Water Resources Minister for Works National Parks and Nature Conservation Authority Water Corporation Waters and Rivers Commission Western Australian Museum
2A	Commonwealth of Australia Australian Maritime Safety Authority-from 24 February 1998
2B	Telstra Corporation limited
3	Shire of Ashburton-withdrew 21 April 1997
4	Shire of Roebourne
Pastoral interests
5	Coolawanyah Pastoral Co Pty Ltd Mallina Station P & D Cook Warambie Station Mount Florance Station DM, JA, WJ & NL Sambell Peter Cook Pedo Pty Ltd Tony Richardson
Mining interests
6	BHP Minerals Pty Ltd BHP Petroleum Pty Ltd Pilbara Energy Pty Ltd
7	Broken Hill Metals NL Bulong Nickel Pty Ltd Resolute Limited- joined 12 June 1998 Resolute Resources Limited- joined 12 June 1998
8	Cape Lambert Iron Associates Mitsui Iron Ore Development Pty Ltd North Mining Limited Pannawonica Iron Association Robe River Mining Co Pty Ltd
9	Dampier Salt limited
10	Hamersley Exploration Pty Ltd Hamersley Iron Pty Ltd
11	North West Shelf Joint Venturers & Woodside Offshore Petroleum Pty Ltd
12A	Mineralogy Pty Ltd
12B	CSR Limited Boral Contracting Pty Ltd-removed from Group 13 and placed in Group 12B 27 February 1998 Pioneer Concrete (WA) Pty Ltd-removed from Group 13 and placed in Group 12B 27 February 1998 The Readymix Group-removed from Group 13 and placed in Group 12B 27 February 1998
13	Anvil Mining NL (Boral Contracting Pty Ltd, Pioneer Concrete (WA) Pty Ltd, The Readymix Group-removed from Group 13 and placed in Group 12B 27 February 1998) Australian Nickel Mines Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97, BGC Contracting Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 Dalrymple Resources NL Dominium Mining Ltd Dragon Mining NL East Coast Minerals NL- joined 25 September 1998 as result of consolidation of part WAG 127/97 Everton Nominees Pty Ltd Goldrim Mining Australia Ltd Hunter Resources Ltd Karratha Property Services Karratha Stone Pty Ltd Legend Mining NL Mt Keith Gold Mines Pty Ltd Optimum Resources Pty Ltd Pilbara Mines NL Plutonic Resources Limited Santos Offshore Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 (1^st appearance 12 June 1998) Starmoss Holdings Pty Ltd Tap Oil NL- joined 25 September 1998 as result of consolidation of part WAG 127/97
14A	Ron Brand Allan J Clark RW & DM Godlonton Michele & Peter Heymans John Phillip Kirkwood Donald Edward North Donald Kimberley North VP O'Connor J & P Rocca James Edward Telfer
14B	MG Creasy
14C	Raymond Butler Vincent T & Patricia A Roberts
Fishing interests
15 & 16	Directions Fisheries Pty Ltd Higgins Power & Marine Services MG Kailis Gulf Fisheries Pty Ltd Kraos Fishing Company McBoats Redland Bay Pty Ltd GH Alexander RL Alexander DG Baker Dzintra Braun John Braun Ivan J Dawe P J Fullarton- joined 25 September 1998 as result of consolidation of part WAG 127/97 Hugh Colin Gilbert Stanley Richard Glass RJ Goodlad Louis Miles Hayler James Lawrence Henry Barry Holman KR Hodges & K Pfiefre E Morrison & S Bransby PL Nash Michael Nicholas & Lyne Janene Manifis MF O'Byrne WH Ott DA Rettay J Rinkens Nell Rinkens GE & BJ Sell W Titko & C Russell- withdrew 4 December 1998 AB Tousaint WAFIC- joined 2 June 1999
Pearling interests
17	Dampier Pearling Company Exmouth Pearls Pty Ltd Norwest Pearls Pty Ltd Pilbara Pearls/Dampier Cossack Pearls- joined 25 September 1998 as result of consolidation of part WAG 127/97
Indigenous interests
18	Yathalla Aboriginal Group Inc
19	Mingullatharndo Association Inc
19B	Horace Parker, Wobby Parker, Naydene Robinson, David Stock, Gordon Yuline, Brian Tucker, Alice Smith, Joyce Inji, Listen James, Mebel Paterson, Chubby Jones, David Cox and Dulcie Condon on behalf of the Bunjima, Niapaili and Innawonga People- joined 27 February 1998
19D	Teddy Roberts, Cyril Gordon, Donny Wilson and Bridie Alec on behalf of themselves and 89 Kariyarra People- joined 27 February 1998
Other
20	Geoffrey & Michael Tozer
21	Karen Downes (as a representative of AMSA)- withdrew as a personal respondent 24 February 1998 Grayson Holdings Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 WR Jeffries Karunda Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 Vilma Rose Parker
22	The North West Game Fishing Club Inc
23	AUSI Iron NL- joined 25 September 1998 as result of consolidation of part WAG 127/97
Goldfields Gas Transmission Pty Ltd} Westminco Oil Pty Ltd } Normandy Pipelines Pty Ltd } 1^st appearance 12 June 1998 Pilbara Energy Pty Ltd }