Moses v Western Australia - [2007] FCAFC 78

FEDERAL COURT OF AUSTRALIA
Moses v State of Western Australia [2007] FCAFC 78
NATIVE TITLE – determination of native title rights and interests – Native Title Act 1993 (Cth) s 223(1) – whether connection to land and waters by traditional laws and customs – whether land-holding system “traditional”
NATIVE TITLE – determination of native title rights and interests – sufficiency of description of native title holders
NATIVE TITLE – prescribed bodies corporate – Native Title Act 1993 (Cth) ss 56(2) and 57(2) – where determination of native title rights and interests recognises two separate native title holding groups – whether ss 56(2) and 57(2) allow nomination of more than one prescribed body corporate in respect of determination area
NATIVE TITLE – Native Title Act 1993 (Cth) – extinguishment – extinguishing effect of grant of pastoral leases
NATIVE TITLE – Native Title Act 1993 (Cth) – determination of native title rights and interests – whether recognition of native title rights and interests should be limited to areas in which they are currently exercised
NATIVE TITLE – disregarding extinguishment – Native Title Act 1993 (Cth) s 47A(1)(b)(ii) – whether pastoral lease and freehold titles held expressly for the benefit of Aboriginal peoples – where land held by company incorporated under general companies legislation – where objects of major shareholder concerned with benefiting Aboriginal peoples
NATIVE TITLE – disregarding extinguishment – reservations - Native Title Act 1993 (Cth) s 47B(1)(b) – whether temporary reserves created under Mining Act 1904 (WA) “reservations” under s 47B(1)(b)(ii) – whether evidence sufficient to establish occupation of areas under s 47B(1)(c)
PRACTICE AND PROCEDURE – appeals – certain appeal grounds only to be allowed by consent – Federal Court of Australia Act 1976 (Cth) s 25(2B)(b) – whether s 25(2B)(b) permits disposal of some appeal grounds by consent prior to determination of balance of appeal
Native Title Act 1993 (Cth) ss 23B(9)(b), 47, 47A, 47B, 56(2), 57(2), 61, 68, 87, 94A, 223, 225, 228(3), 238, 251B
Racial Discrimination Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 24(1)(a), 25(2B)(b), 27, 28
Aboriginal Councils and Associations Act 1976 (Cth) s 58A
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 14, 191A
Aboriginal Development Commission Act 1980 (Cth)
Native Title Amendment Bill (No 2) 1997 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 5, 8, 9
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 12I
Country Areas Water Supply Act 1947 (WA)
Land Administration Act 1997 (WA) s 79
Mining Act 1904 (WA) ss 26, 275, 276, 276A, 277, 277A, 278
Land Act 1933 (WA) s 116
Companies Act 1961 (WA)
Associations Incorporation Act 1895-1969 (WA)
Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT)
Mining Act 1978 (WA)
Cossack-Roebourne Tramway Act 1886 (WA)
Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; [2004] FCA 472 cited
Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 referred to
Bodney v Bropho [2004] FCAFC 226 cited
Colbung v Western Australia [2003] FCA 774 cited
CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1 referred to
Dale v Moses [2007] FCAFC 82 cited
De Rose v State of South Australia (2003) 133 FCR 325 cited
De Rose v State of South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 discussed
Erubam Le (Darnley Islanders) No 1 v State of Queensland (2003) 134 FCR 155 cited
Griffiths v Northern Territory [2006] FCA 903 referred to
Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 cited
Hayes v Northern Territory (1999) 97 FCR 32 considered
Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 referred to
Mabo v Queensland (No 2) (1992) 175 CLR 1 referred to
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 discussed
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 considered
Munn v State of Queensland [2002] FCA 486 referred to
Neowarra v State of Western Australia [2003] FCA 1402 considered
Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 referred to
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 discussed
Risk v Northern Territory of Australia [2006] FCA 404 considered
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 considered
Rubibi Community v Western Australia (2001) 112 FCR 409 cited
Sampi v Western Australia (No 3) [2005] FCA 1716 referred to
Sampi v Western Australia [2005] FCA 777 referred to
State of Western Australia v Ward (2000) 99 FCR 316 followed, discussed
The Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 referred to
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 referred to
Transurban City Link Ltd v Allan (1999) 95 FCR 553 cited
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 referred to
Western Australia v Ward (2002) 213 CLR 1 followed, discussed
Wilson v Anderson (2002) 190 ALR 313 cited
DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (ON BEHALF OF THE YINDJIBARNDI PEOPLE) v STATE OF WESTERN AUSTRALIA, P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) AND COMMONWEALTH OF AUSTRALIA
STATE OF WESTERN AUSTRALIA AND COMMONWEALTH OF AUSTRALIA v DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (ON BEHALF OF THE YINDJIBARNDI PEOPLE); P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) AND MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441)
WAD 114 OF 2005
MOORE, NORTH & MANSFIELD JJ
7 JUNE 2007
sydney (via video link to PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 114 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

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

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

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

COMMONWEALTH OF AUSTRALIA
Third Respondent

BETWEEN:
AND:

STATE OF WESTERN AUSTRALIA
First Cross Appellant

COMMONWEALTH OF AUSTRALIA
Second Cross Appellant

DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People)

BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People)
First Cross Respondents

P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION)
Second Cross Respondents

MT WELCOME PASTORAL CO PTY LTD
(ACN 008 772 441)
Third Cross Respondents

JUDGES:

MOORE, NORTH & MANSFIELD JJ

DATE OF ORDER:

7 JUNE 2007

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO PERTH)

THE COURT ORDERS THAT:
1.Each party do within 28 days, or such further time as may be allowed, submit a final form of orders to give effect to these reasons for judgment.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 114 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

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

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

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

COMMONWEALTH OF AUSTRALIA
Third Respondent

BETWEEN:
AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALLIA
Second Cross Appellant

DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMONAND LES HICKS (on behalf of the Ngarluma People)

BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People)
First Cross Respondents

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

MT WELCOME PASTORAL CO PTY LTD
(ACN 008 772 441)
Third Cross Respondents

JUDGES:

MOORE, NORTH & MANSFIELD JJ

DATE:

7 JUNE 2007

PLACE:

SYDNEY (VIA VIDEO LINK TO PERTH)

REASONS FOR JUDGMENT
INDEX
INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [1]
The reasons of the primary judge........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [7]
The claim area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [10]
The proceeding at first instance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [15]
The Ngarluma and Yindjibarndi claim........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [23]
The Yaburara/Mardudhunera claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [28]
The Wong-Goo-TT-OO claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [30]

The July 2003 reasons (Daniel v State of Western Australia [2003] FCA 666)........ ........ [34]
Findings of the primary judge regarding the Ngarluma and Yindjibarndi peoples [35]
Findings of the primary judge regarding the Yaburara and Mardudhunera people [40]
Findings of the primary judge regarding the Wong-Goo-TT-OO........ ........ ... [44]
Findings of the primary judge regarding the Kariyarra people........ ........ .... [49]
Findings of the primary judge regarding extinguishment........ ........ ........ ...... [51]

The December 2003 reasons: (Daniel v State of Western Australia [2003] FCA 1425)... [61]
The July 2004 reasons: (Daniel v State of Western Australia (2004) 138 FCR 254)........ [64]
The October 2004 reasons: (Daniel v State of Western Australia [2004] FCA 1388)....... [72]
The March 2005 reasons: (Daniel v State of Western Australia (No 2) (2005) 141 FCR 426) [74]
The orders (Daniel v State of Western Australia [2005] FCA 536)........ ........ ........ ........ ... [76]
SUMMARY OF ORDERS AND ISSUES ON THE APPEALS........ ........ ........ ........ ...... [84]
The Ngarluma/Yindjibarndi claim (WAG 6017/1998)........ ........ ........ ........ ........ ........ ...... [85]
The issues on the appeal........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [87]
The Yaburara/Mardudhunera claim (WAG 127/1997)........ ........ ........ ........ ........ ........ ...... [92]
The Wong-Goo-TT-OO claim (WAG 6256/1998)........ ........ ........ ........ ........ ........ ........ .... [94]
The appeal in WAD 120/2005........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [95]
The Kariyarra claim (WAD 6169/1998)........ ........ ........ ........ ........ ........ ........ ........ ........ .... [98]
ISSUE A: EXTINGUISHMENT BY GRANT OF PASTORAL LEASES........ ........ ... [100]
Reasons for not making “interim” consent orders........ ........ ........ ........ ........ ........ ........ ... [104]
Whether consent orders should be made........ ........ ........ ........ ........ ........ ........ ........ ........ .. [110]
ISSUE B: SECTION 47A........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [115]
ISSUE C: SECTION 47B........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [157]
Section 47B - application........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [157]
The State’s alternative contention: s 47B - Occupation........ ........ ........ ........ ........ ........ ... [192]
The areas where the issue of whether s 47B applies arises........ ........ ........ ........ ........ .... [193]
Were the disputed areas “occupied” by the Ngarluma and Yindjibarndi peoples?....... [206]
Evidence of occupation in the vicinity of Point Samson........ ........ ........ ........ [219]
Evidence of occupation in the vicinity of Cossack........ ........ ........ ........ ........ . [224]
Evidence of occupation in the vicinity of Karratha Station........ ........ ....... [227]
Evidence of occupation in the vicinity of Karratha........ ........ ........ ........ ...... [229]
Evidence of occupation in the vicinity of the Burrup causeway........ ........ . [232]
Conclusions on occupation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [235]

ISSUE D: INTERNAL GEOGRAPHICAL LIMITATIONS........ ........ ........ ........ ........ [237]
issue E: The existence of native title in the Karratha area... [241]
The Reasons of the Primary Judge........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [242]
Claim areas........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [243]
The Law........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [245]
Historical evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [248]
Archaeological, linguistic and anthropological evidence........ ........ ........ ........ ........ ....... [264]
Observable behaviour in relation to rights and interests........ ........ ........ ........ ........ ........ [274]
Normative content of found present activity........ ........ ........ ........ ........ ........ [277]
Applicants as groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [278]
Continuity of applicant groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [281]
Traditionality of laws and customs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [285]
Aboriginal connection with the claim area from the acquisition of European sovereignty........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [292]
degree of connection issue........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [293]
proof of normative quality of rights and interests........ ........ ........ ........ ...... [296]

Consideration of the submissions of the State........ ........ ........ ........ ........ ........ ........ ........ . [301]
The First Proposition – Occupation of the Karratha area by Ngarluma people........ .... [304]
The Second Proposition – Connection by the traditional laws and customs concerning estate groups [314]
Reasoning backwards........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [322]
Estate Groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [332]
Society........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [345]
Too extensive an area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [350]
No findings in relation to the Karratha area separately........ ........ ........ ... [351]

Consideration of submissions of the Commonwealth........ ........ ........ ........ ........ ........ ...... [352]
Issue F: Description of native title holders........ ........ ........ ........ ........ [362]
issue G: prescribed bodies corporate........ ........ ........ ........ ........ ........ ....... [376]
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [387]
THE COURT
INTRODUCTION

On 2 May 2005 a judge of this Court made a determination of non-exclusive native title rights and interests in respect of a portion of land and waters in Western Australia under the Native Title Act 1993 (Cth) (the NTA). The holders of the native title rights and interests so determined were the Ngarluma people and the Yindjibarndi people. The learned primary judge dismissed, to the extent that they overlapped with the claim of the Ngarluma and Yindjibarndi peoples, three other native title claims over parts of the determination area.
Two appeals from the reasons and orders of the primary judge were subsequently instituted. The first appeal, proceeding WAD 114/2005, was lodged by the Ngarluma and Yindjibarndi peoples and concerns certain portions of the claim area in which his Honour found that native title had been wholly extinguished. The second appeal, WAD 120/2005, was lodged by the Wong-Goo-TT-OO people, whose competing claim of native title in respect of part of the claim area was unsuccessful. The appeals were heard together. These reasons are concerned with the appeal of the Ngarluma and Yindjibarndi peoples.
Native title rights and interests in the claim area were asserted by two other groups at first instance: the Yaburara and Mardudhunera people, and the Kariyarra people. Their claims were also unsuccessful. They are not the subject of any appeal.
The respondents to the first appeal are the State of Western Australia (the State), the Commonwealth of Australia (the Commonwealth) and certain pastoralists.
Cross appeals were filed by the State and the Commonwealth.
To properly identify the issues to be addressed on the appeal, it is necessary to set out in some detail the nature of the claims before the learned primary judge, and his findings and reasons with respect to those claims insofar as they are relevant to the appeal. The following is largely taken from the relevant portions of the reasons at first instance.
The reasons of the primary judge
The learned primary judge published reasons for several rulings prior to and during the trial: Daniel for Ngaluma People v Western Australia [1999] FCA 686; Daniel v State of Western Australia (1999) 94 FCR 537; Daniel v State of Western Australia [2000] FCA 413; Daniel v State of Western Australia (2000) 178 ALR 542; Daniel v State of Western Australia [2000] FCA 1334; Daniel v State of Western Australia [2000] FCA 1356; Daniel v State of Western Australia (2001) 186 ALR 369. A further interlocutory decision in relation to certain proposed replacement applicants was given by French J on 13 September 2002: Daniel v State of Western Australia (2002) 194 ALR 278.
The substantive decision of the learned primary judge on the native title claims was delivered on 3 July 2003: Daniel v State of Western Australia [2003] FCA 666 (the July 2003 reasons). The July 2003 reasons included a determination of native title in draft form. The parties were given a limited opportunity to make further submissions on various issues arising from the July 2003 reasons and the draft determination. His Honour’s subsequent rulings on those issues were delivered on 5 December 2003, 2 July 2004, 29 October 2004, 4 March 2005 and 21 March 2006. The nature of those further rulings is described below insofar as they are relevant to the issues on appeal.

Final orders were made on 2 May 2005.
The claim area
The claim area, roughly rectangular in shape, is situated in northwest Western Australia, slightly west of Port Hedland. The area can be described as “roughly rectangular” because that portion of the Western Australian coastline which forms the northern boundary of the claim area runs in an approximately east-west direction. The northern boundary of the claim area encompasses offshore islands, including the Dampier Archipelago (also known as the Burrup Peninsula). The western boundary of the claim area approximately corresponds with the Maitland River and its eastern boundary runs between the Balla Balla and Peawah Rivers. The claim area extends southwards to the Hamersley Ranges, which form the southern boundary of the claim area.
In relation to the northern portion of the claim area, the learned primary judge used the term “the Burrup” as encompassing the Burrup Peninsula and the islands in the claim area surrounding that Peninsula (to the north and west). The Burrup Peninsula extends northwards from the coast near the western boundary of the claim area.
The claim area rises in altitude southwards from the coast. The area between the sea and the Chichester Ranges is generally described as the “lowlands”. Some 60-80 kilometres south of the coast, beyond the Chichester Ranges and extending southwards to the foothills of the Hamersley Ranges is a plateau known locally as the “Tablelands”. In the circumstances referred to in [25] and [26], that part of the claim area known as the “lowlands” can also be called the Ngarluma claimed territory and that part of the claim area to the south of the Chichester Ranges can also be called the Yindjibarndi claimed territory.
The claim area overlaps in part the shires of Ashburton, East Pilbara and Roebourne. Its major population centres – Dampier, Karratha, Wickham, Point Samson, Roebourne and Cossack – are located in the northwest coastal portion. The remainder of the region is sparsely settled, although there are some people living in the small settlement of Whim Creek (in the east) and on pastoral stations or centres associated with Millstream National Park and Harding Dam (Ngurin). The major population centres within the claim area of Dampier, Karratha, Wickham and Point Samson were excluded from the claims. That is reflected in the final determination and orders on 2 May 2005.
As at 23 December 1996 (the date by which certain acts must have taken place in order to effect complete or partial extinguishment of native title pursuant to Div 2B of Pt 2 of the NTA), the Karratha, Mt Florance, Warambie, Pyramid, Sherlock, Mt Welcome, Hooley, Mallina and Coolawanyah pastoral leases were in existence within the claim area, as well as an unnamed pastoral lease, no. 398/824.
The proceeding at first instance
In the proceeding at first instance, three applicant groups and one respondent group sought determinations of native title over parts of the claim area.
The proceeding originated from an application for determination of native title by representatives of the Ngarluma people and representatives of the Yindjibarndi people lodged with the Registrar of the National Native Title Tribunal on 8 June 1994. That application, and a further application lodged by the same applicants on 22 December 1994 which extended the scope of the claim, was lodged with the Federal Court on 25 November 1996.
The Ngarluma people and the Yindjibarndi people were ultimately described as the first applicants in the proceeding, WAG 6017/1996. Overlapping parts of two other native title determination applications were subsequently consolidated with the Ngarluma/Yindjibarndi claim, so that the Yaburara and Mardudhunera people became the second applicants to the proceeding and the Wong-Goo-TT-OO people became the third applicants. The Yaburara/Mardudhunera claim (WAG 127/1997) covers an area west of the Ngarluma/Yindjibarndi claim area and overlapped the north-western portion of the latter claim area in the designated Ngarluma area, including the Burrup and surrounding islands. The Wong-Goo-TT-OO claim area in WAG 6256/1998 also lies west of the Ngarluma/Yindjibarndi claim area, overlapping much of the Yaburara/Mardudhunera claim area. It covers roughly half of the Ngarluma claimed territory (including the Burrup) and extends southwards into a portion of the Yindjibarndi claimed territory.
The application by the Kariyarra people in Federal Court proceeding WAG 6169/98 also overlapped to some extent with eastern part of the Ngarluma/Yindjibarndi claim area in two portions of the claim area. The Kariyarra claim area is east of, and almost entirely separate from, the Ngarluma/Yindjibarndi claim area. The overlap was limited to two small portions of land along the eastern boundary of the Ngarluma/Yindjibarndi claim area, in the north in the vicinity of Depuch Island (Ngarluma claimed territory) and in the south in the area of Mungaroona Range Nature Reserve (Yindjibarndi claimed territory). The Kariyarra people were joined as respondents 19D to the proceeding and were represented by solicitors, but apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward (2000) 99 FCR 316 at [192]-[193] (Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22]; Munn v State of Queensland [2002] FCA 486. Of course the obverse position, namely a decision that the Kariyarra people did not have native title rights and interest in those overlapping areas, was able to be made, because competing evidence that the Kariyarra people enjoyed native title rights and interests in these overlapping parts of the claim area was adduced. Such a conclusion did not have to address the issues arising under s 251B of the NTA.
The balance of the Kariyarra native title claim remains on foot and has recently been referred to a docket judge for case management.
Several other overlapping claims existed prior to the hearing of the matter, but it is not now necessary to refer to those applications.
Attached as Annexure A to these reasons is an extract from a map entitled “Native Title Claims – Gascoyne/Pilbara Region”, showing the boundaries of the Ngarluma/Yindjibarndi, Wong-Goo-TT-OO, Yaburara/Mardudhunera and Kariyarra claims as filed. The map was produced on 20 December 1999 by the Department of Land Administration, and was provided to the Court as an aide memoire after the hearing by the solicitors for the Wong-Goo-TT-OO people. It should be noted, however, that at the hearing before the primary judge the Ngarluma and Yindjibarndi peoples limited the geographical area of their claim to waters within a boundary 3 kilometres seaward of the low water mark from the mainland and the outermost islands within the existing claim boundary but including the waters between the islands and the mainland and between the islands themselves: July 2003 reasons at [86].
The trial commenced on 20 September 1999. It occupied a total of 81 hearing days. The primary judge heard evidence from 76 Aboriginal witnesses, eleven expert witnesses, three pastoralists and three retired pastoralists. Closing submissions were heard on 25 February 2003, following a substantial adjournment of the proceeding pending delivery of the High Court’s decisions in Western Australia v Ward (2002) 213 CLR 1 (Ward (HC)), The Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 (Yarmirr) and Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta).
The Ngarluma and Yindjibarndi claim
From September 2002, the named applicants in respect of the Ngarluma and Yindjibarndi application were a now deceased person DD, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people.
In their final submissions, the Ngarluma and Yindjibarndi peoples submitted that their claim group included members of the Wong-Goo-TT-OO group and some members of the Yaburara/Mardudhunera group (in particular, the Cosmos family).
It was claimed that the lands traditionally associated with the Ngarluma people are situated in the northern lowland areas of the claim area and those of the Yindjibarndi people are situated on the Tablelands. The learned primary judge identified an “indeterminate zone of mixed Ngarluma and Yindjibarndi” running more or less along the escarpment of the Chichester Ranges. In the course of his reasons, his Honour found that the Yaburara people were not a part of the Ngarluma tribal group at sovereignty, and observed that the consequence of that finding was that the claim of the Ngarluma and Yindjibarndi peoples to the Burrup would not succeed. This was apparently acknowledged by the Ngarluma and Yindjibarndi peoples: see July 2003 reasons at [372]. That was because the claim of the Ngarluma and Yindjibarndi peoples to the Burrup depended upon the membership of their claim group including certain members of the Yaburara people.
The Ngarluma and Yindjibarndi peoples asserted that in relation to the claim area (excluding the towns of Dampier, Karratha, Wickham and Point Samson) there are two groups who hold rights comprising native title rights – the Ngarluma people and the Yindjibarndi people. It was said that the Ngarluma and Yindjibarndi peoples each form, or are part of, a society with a body of traditional laws and customs on a range of matters, including ownership and management of land and waters. The primary submission was that the people holding the native title rights and interests are the Ngarluma and Yindjibarndi peoples; but it was submitted in the alternative that the people holding the native title rights and interests in the Ngarluma territory are the Ngarluma people and the people holding the rights and interests in the Yindjibarndi territory are the Yindjibarndi people. The latter formulation was ultimately favoured by the learned primary judge.
The content of the respective rights and interests claimed by the Ngarluma and Yindjibarndi peoples, the Yaburara and Mardudhunera people, the Wong-Goo-TT-OO people and the Kariyarra people are set out at [66], [73], [77] and [84] of the July 2003 reasons of the learned primary judge.
The Yaburara/Mardudhunera claim
The named applicants in respect of the Yaburara/Mardudhunera claim, from November 2002, were Valerie Holborow, Kevin Cosmos and Robert Boona, on behalf of the Yaburara and Mardudhunera people. They claim the lands said to have been originally occupied by the Yaburara people (the Burrup) and the country said to have traditionally been occupied by the Mardudhunera people, as briefly described above and depicted in the map attached to these reasons as Annexure A.
The Yaburara and Mardudhunera people’s claim extended to a range of specified native title rights and interests in respect of that portion of their claim area which overlaps with the claim of the Ngarluma and Yindjibarndi peoples – that is, a roughly triangular section of the north-west portion of the claim area extending southwards from the coast, with an inland extent of approximately 30 kilometres at its southern point. It included the Burrup and the surrounding islands and waters. They did not file any written submissions or call any expert or other evidence in support of that claim, but relied orally on the submissions for the Ngarluma and Yindjibarndi peoples. The primary judge observed that it was not clear on the pleadings whether the overlap area was said to be wholly Yaburara or wholly Mardudhunera, partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera.
The Wong-Goo-TT-OO claim
The Wong-Goo-TT-OO claim was brought by Betty Dale, Tim Douglas, Wilfred Hicks, Dallas Hicks, Ernie Ramirez and Cane Hicks. The name “Wong-Goo-TT-OO” was adopted by those claimants for the purpose of their native title claim. It is not the traditional name of any group of Aboriginal people.
The Wong-Goo-TT-OO people divided the area the subject of their claim into a “core area” and a “non-core area”. The core area of their claim was comprised of an area identified as “Pularra” (between the George and Nickol Rivers), the Thaluntha (Karratha) estate, and the Burrup. The core area overlaps with the Ngarluma portion of the Ngarluma/Yindjibarndi claim area. The Wong-Goo-TT-OO people asserted exclusive rights of possession, occupation, use and enjoyment of the land and waters in relation to that overlapping area. They submitted at first instance and on appeal that the claim of the Ngarluma peoples should be restricted to that part of the claimed Ngarluma territory lying east of the George River and identified in the evidence of Kenny Jerrold, Tim Douglas and Wilfred Hicks.
The Wong-Goo-TT-OO people claimed to hold native title rights and interests in the Pularra estate by “direct matrilineal descent” from Woodbrook Mary, an ancestor of the Hicks and Douglas families, and from Nyungurtu, an ancestor of the Ramirez family. Their claim to the Thaluntha estate was through cognatic descent from the families of Jack Hicks and his wife Charlotte (Wittingbung). In relation to the Burrup, the Wong-Goo-TT-OO claimed to be successors in title through the traditional interest and connection of the Hicks family to those lands, and by alleged transmission of interest to the Hicks family by the last known indigenous inhabitants of the archipelago, Maitland and Island.
In relation to the non-core area (which overlaps to some extent with the Yindjibarndi claimed territory, and being that part of the Wong-Goo-TT-OO claim area roughly south of the Chichester Ranges) the Wong-Goo-TT-OO people asserted that the native title rights and interests claimed were shared by the Wong-Goo-TT-OO people and the Yindjibarndi people but were otherwise held to the exclusion of all others (subject to certain exceptions, such as current use pursuant to a non-exclusive agricultural or pastoral lease).
The July 2003 reasons (Daniel v State of Western Australia [2003] FCA 666)
In relation to each of the claimant groups at first instance (including the Kariyarra people), the primary judge considered in the first place the evidence of presently observable behaviour in relation to the rights and interests claimed by those people. His Honour then considered, in respect of each party claiming native title, whether they could be described as a “group” for the purposes of the NTA; and whether they are sufficiently connected to the Aboriginal peoples who occupied the claim areas prior to European settlement so as to show that the community in occupation of the land at sovereignty was the predecessor of a community that now claims native title. Finally, his Honour considered whether each of the claimant parties had established the requisite continuity between the observable behaviour in relation to the rights and interests claimed, and the rights and interests existing at sovereignty, so as to satisfy the requirement in the NTA that those rights and interests are presently possessed under “traditional” laws and customs: see s 223 of the NTA.
Findings of the primary judge regarding the Ngarluma and Yindjibarndi peoples
The Ngarluma and Yindjibarndi peoples partly succeeded in their claim of native title.
The determination of their native title rights and interests extended (subject to the qualification referred to below) over the whole of the area claimed, excluding the Burrup. It included the inter-tidal zones, being the areas between the mean high water mark and the mean low water mark and areas of tidal waters inland of the mean high water mark. But, contrary to the claim of the Ngarluma people and the Yindjibarndi people to be treated as one claim group, they were treated as separate claim groups. The determination separately identified the native title rights and interests of the Ngarluma people in the Ngarluma claimed territory (excluding the Burrup) and the native title rights and interests of the Yindjibarndi people in the Yindjibarndi claimed territory. Consequently, the primary judge ordered that there be two separate prescribed bodies corporate in respect of those separate parts of the claim area.
A determination in draft form was attached to the July 2003 reasons, to reflect the findings of the primary judge as to the content of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples. The native title rights and interests as found were rights and interests in the nature of non-exclusive rights over the claim area (excluding the Burrup). In some cases the exercise of the rights was limited to specific geographical areas within the proposed determination area.
The precise content of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples as found by the primary judge (summarised below) was more limited than the rights as claimed. With one qualification, the content of those rights as determined is not challenged on appeal. Some of the recognised native title rights and interests were found to be confined to certain geographical areas within the claim area. The extent of the area in which the Ngarluma and Yindjibarndi peoples were determined to hold native title rights and interests was also more limited than the area claimed, to reflect his Honour’s findings on extinguishment. Some aspects of those findings are the subject of the Ngarluma/Yindjibarndi appeal.
To the extent necessary to address the matters raised on the appeal, the nature of the determination and the reasons for it are explained further when addressing the grounds of appeal or cross-appeal.
Findings of the primary judge regarding the Yaburara and Mardudhunera people
The claim of the Yaburara and Mardudhunera people failed.
His Honour found that those of the Yaburara/Mardudhunera people who claimed to be Yaburara had not established that to be the case. He concluded, on the evidence, that those persons having a claim in the claim area claimed as Mardudhunera.
Of the rights and interests claimed by the Yaburara/Mardudhunera people, his Honour considered that there was evidence of presently observable behaviour in relation to only two: use of, and enjoyment of resources of, the land and waters claimed; and maintenance and protection of places of importance on the land: July 2003 reasons at [308] and [310]. He was not satisfied that the Mardudhunera people exercised those rights continuously back to sovereignty. Therefore, the requisite continuity in respect of the laws and customs presently observed by those people had not been established.
His Honour was not satisfied that the Burrup was inhabited by the Yaburara; and that if (contrary to that conclusion) it was inhabited by the Yaburara or a group by any other name, that group disappeared as an identifiable group early in the 20^th century.
Findings of the primary judge regarding the Wong-Goo-TT-OO

The primary judge accepted that the Wong-Goo-TT-OO people qualified as a group for the purposes of the application of the NTA. He did not accept that the Wong-Goo-TT-OO group has had continuity back to sovereignty.
The Wong-Goo-TT-OO people sought to establish that their group has had continuity back to sovereignty in one or all of four ways: through the Douglas family; through the Hicks family; through the Ramirez family; or through the alleged transfer of interest in the Burrup from Maitland and Island to Jack Hicks, referred to above.
The primary judge accepted that the Douglas family (which is related to the Hicks family) and the Ramirez family could each trace their ancestry back to sovereignty. He also found that the Hicks family could trace its ancestry back to sovereignty, albeit only “through the Douglas link or as part of the Ngarluma/Yindjibarndi group”: July 2003 reasons at [378]. However, his Honour rejected the Wong-Goo-TT-OO people’s claim that a genealogical connection between the Douglas and Ramirez families was established through the Hicks family. Thus, no continuity in the mutual or common relation based on family connection was established between all members of the Wong-Goo-TT-OO group.
Furthermore, as the primary judge was not satisfied that before the constitution of the Wong-Goo-TT-OO group its members had any common relation or purpose other than their claimed “familial commonality”, he was not prepared to infer that the actions of any one family were taken on behalf of the three families constituting the group: July 2003 reasons at [384].
His Honour also rejected the submission of the Wong-Goo-TT-OO people that their continuity as a group could be established through a transmission of rights in the Burrup from Maitland and Island to Jack Hicks. As to the balance of the Wong-Goo-TT-OO claim area (the Pularra and Thaluntha estates), his Honour found that certain presently observable behaviours had been established on the evidence. However, his Honour concluded that connection could not be made out in respect of the rights and interests reflected in presently observable behaviour, even though they appeared in traditional form, because of the discontinuity in the group as found. Thus, the claim of the Wong-Goo-TT-OO people failed.
Findings of the primary judge regarding the Kariyarra people
The assertion of the Kariyarra people to native title rights and interest in that part of their claim area which overlapped with the Ngarluma/Yindjibarndi claim area was rejected.
As noted above, no evidence was given at the hearing by the Kariyarra people. The primary judge observed that much of the evidence given by others relating to the Kariyarra did not relate to that part of the area of their claim which was presently under consideration. In those circumstances, his Honour found that the evidence was insufficient to establish that they presently exercised all or any of the rights claimed in respect of that part of their claim area.
Findings of the primary judge regarding extinguishment
The extensive findings of the primary judge on issues of extinguishment in the July 2003 reasons were expressed as “preliminary”. Those findings were further refined in the subsequent decisions referred to below, the parties having been given an opportunity to make further written submissions “in relation to the preliminary views expressed in the reasons on inconsistency between extinguishing interests and the non-exclusive native title rights and interests as found.”
The majority of the issues regarding extinguishment have not been re-agitated on appeal. However, certain of the findings at first instance on extinguishment by grant of pastoral leases, and on the application of ss 47, 47A and 47B of the NTA have been challenged by the Ngarluma and Yindjibarndi peoples.
(i) Extinguishment by grant of pastoral leases
The entire claim area, with certain limited exceptions, has been the subject of pastoral leases.
The primary judge noted that the grant of a pastoral lease is a “previous non-exclusive possession act” which has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the land the subject of the lease: July 2003 reasons at [586], citing Ward (HC) 213 CLR 1 at [192] and [422]. However, his Honour had not made any findings of native title rights involving exclusive possession or rights to control access or use of the land by others in any event.
The primary judge made specific findings regarding the validity and extinguishing effect of various pastoral leases in the July 2003, July 2004, and March 2005 reasons. In particular, despite his general observations on the extinguishing effect of pastoral leases, his Honour found that the grant of each of the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases, as well unnamed pastoral lease no 398/824 (adjacent to the Mallina pastoral lease) was a previous exclusive possession act within the meaning of s 12I of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the TVA), and therefore that any native title in relation to the land or waters covered by the leases was taken to have been extinguished. The effect of this finding is that the Ngarluma and Yindjibarndi peoples currently have no native title rights in respect of the land covered by the five pastoral leases. Nor do they currently have any procedural rights under Div 3 of Pt 2 of the NTA in relation to “future acts” that may affect those areas.
The findings of the primary judge in relation to the extinguishing effect of the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases and pastoral lease 398/824 have been challenged on appeal. The Mt Welcome pastoral lease covers a large area in the north-western portion of the claim area (Ngarluma claimed territory), extending north to the Roebourne area. Parts of the Hooley and Coolawanyah pastoral leases overlap with the south-eastern portion of the claim area, in Yindjibarndi claimed territory. The Mallina pastoral lease extends roughly along the eastern boundary of the claim area, covering part of the Ngarluma claimed territory, part of the Yindjibarndi claimed territory and part of the “indeterminate zone of mixed Ngarluma and Yindjibarndi”. The pastoral leases are marked on the map attached to these reasons as Annexure A (other than pastoral lease 398/824, which is that triangular pastoral lease area adjacent to the Mallina pastoral lease and north of the Millstream and Chichester Range National Park). It appears that his Honour identified those particular pastoral leases as having wholly extinguished native title, in contrast with the other pastoral leases in the claim area which were found to have extinguished native title rights only to the extent that they conferred exclusive possession, use, enjoyment and occupation of the land, because the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases (and pastoral lease 398/824) were all granted after the commencement of the Racial Discrimination Act 1975 (Cth) (the RDA). It is claimed that his Honour erred in making that distinction.
(ii) Disregarding extinguishment pursuant to ss 47 and 47A of the NTA
At first instance, the Ngarluma and Yindjibarndi peoples contended that any prior extinguishment of native title rights and interests in the area the subject of the Mt Welcome pastoral lease should be disregarded pursuant to s 47 of the NTA. Section 47 was said to be applicable to the area because at the time the native title application was made, the pastoral lease was held by the Mt Welcome Pastoral Co Pty Ltd on trust for the Ngarluma and Yindjibarndi peoples: s 47(1)(b)(ii). This argument was rejected.
On appeal, the Ngarluma and Yindjibarndi peoples have pursued their contention that any prior extinguishment in the area covered by the pastoral lease should be disregarded, but they now rely on s 47A of the NTA, not s 47, in support of that proposition. Neither the State nor the Commonwealth, nor any other party, objected to the new argument being raised on appeal.
In relation to the areas covered by certain freehold titles held by the Mt Welcome Pastoral Co Pty Ltd, the Ngarluma and Yindjibarndi peoples unsuccessfully contended at first instance that any prior extinguishment should be disregarded under s 47A of the NTA. This argument is also pursued on appeal, although under a different subparagraph of s 47A.
(iii) Disregarding extinguishment pursuant to s 47B of the NTA
Each of the groups claiming native title also claimed in their applications that s 47B of the NTA applies to all unallocated Crown land within their respective claim areas. That section provides for prior extinguishment over a certain area to be disregarded if the criteria in s 47B(1) are met. There are several pockets of unallocated Crown land within the claim area, the majority of which are located within its southern half. The applicability of s 47B to certain areas was contested by the State. In particular, the State contended that every reserve (including every temporary reserve) in the claim area is a “reservation” for the purpose of s 47B(1)(b)(ii) and therefore falls outside the operation of s 47B. The learned primary judge accepted the State’s contention regarding temporary reserves, and found in the alternative that temporary reserves also fall within the meaning of a “condition, permission or authority” under s 47B(1)(b)(ii) and should also be excluded from the operation of the section for that reason. His Honour’s findings on the application of s 47B to areas covered by certain temporary reserves have been appealed by the Ngarluma and Yindjibarndi peoples.
The December 2003 reasons: (Daniel v State of Western Australia [2003] FCA 1425)
The December 2003 reasons were concerned with the State’s contentions regarding alleged inconsistencies between the native title rights and interests as identified in the draft determination included within the July 2003 reasons, and the rights of the State and various other respondent parties in respect of pastoral leases, mining tenements, reserves for cemeteries, by-laws made under the Country Areas Water Supply Act 1947 (WA), nature reserves and jetty licences.
The specific content of some of those native title rights was refined by the primary judge, although on the whole he determined that if the exercise of native title rights is approached on the basis of “reasonable user”, the alleged inconsistencies between rights did not in fact exist.
The rulings in the December 2003 reasons are reflected in the final determination. They are not the subject of any appeal or cross-appeal.
The July 2004 reasons: (Daniel v State of Western Australia (2004) 138 FCR 254)
Several matters arising out of the parties’ submissions as to the form of the determination were addressed in the July 2004 reasons.
His Honour declined to hear further submissions on some issues raised by the Ngarluma and Yindjibarndi peoples after the handing down of the July 2003 reasons, including whether the native title rights as found should be subject to internal geographical limitations (that is, whether the exercise of the rights should be confined to those specific areas within the whole claim area in which the rights are presently exercised), and whether certain pastoral leases have wholly extinguished native title. As noted above, those particular matters are the subject of the Ngarluma and Yindjibarndi appeal.
Several further matters were canvassed in the July 2004 reasons in respect of which one or more of the parties seeks redress on appeal.
It was proposed in the draft determination that native title rights and interests were held by the Ngarluma people and the Yindjibarndi people in relation to their respective territories, with some overlap (the “indeterminate zone” referred to above) existing between those two claim areas. Upon consideration of the parties’ submissions, his Honour confirmed in the July 2004 reasons that there would be only one determination of native title over the entire area, but that two separate prescribed bodes corporate could be nominated as trustees of the native title. The latter ruling was contrary to the submissions of the Commonwealth, and has been challenged by the Commonwealth on its cross-appeal. The Commonwealth’s submission at first instance and on appeal was that the NTA permits the nomination of only one prescribed body corporate in relation to a particular determination area.
His Honour also considered the parties’ submissions in relation to the description of the native title holders in the determination, ultimately agreeing with the Ngarluma and Yindjibarndi peoples that they should be defined simply by language group and not by a number of criteria. The State’s submission was that the Court should provide some basis for deciding who is in the Ngarluma group and who is in the Yindjibarndi group as part of the making of the determination of native title. On appeal, the State has re-agitated its contention that a more specific description of the native title holders is required.
It was further determined in the July 2004 reasons that the Ngarluma/Yindjibarndi overlap area should include the area around the Ngurin (the Harding River); and that the determination should expressly state that native title does not exist within the “Ngarluma Total Extinguishment Area” and the “Yindjibarndi Total Extinguishment Area”. Those terms were used at first instance simply to signify the parts of the claim area where, his Honour found, any native title rights and interests had been totally extinguished. The primary judge also considered the appropriate process for nominating a prescribed body corporate. There is no challenge to these particular findings on appeal.
In relation to the Wong-Goo-TT-OO claim and the Yaburara/Mardudhunera claim (to the extent to which they overlapped with the Ngarluma/Yindjibarndi claim), his Honour determined that each of these should be dismissed in the final orders, but in the case of the Wong-Goo-TT-OO claim with the proviso that the dismissal is “without prejudice to any right the [Wong-Goo-TT-OO people] may have as Ngarluma or Yindjibarndi people (and not as members of the [Wong-Goo-TT-OO]) to hold native title rights and interests”. There is no challenge to these orders insofar as they relate to the Yaburara/Mardudhunera claim. The Wong-Goo-TT-OO people have separately appealed from the dismissal of their claim.
An additional appendix recording all unallocated Crown land as at the date of lodgement of the claim, and his Honour’s finding on whether s 47B of the NTA is applicable to those areas, was included at the conclusion of the July 2004 reasons. Some of those findings are challenged by the Ngarluma and Yindjibarndi peoples in the appeal proceedings. The findings and the issues are further explained when addressing the grounds of appeal.
The October 2004 reasons: (Daniel v State of Western Australia [2004] FCA 1388)
The October 2004 reasons addressed the State’s submissions that native title has been extinguished by certain acts in respect of which it had been given leave to reopen its case. In dispute between the parties was the extinguishing effect of three sections of road and an accommodation lease over land at Karratha, granted pursuant to s 79 of the Land Administration Act 1997 (WA).
His Honour found that the dedication of each of the three roads wholly extinguished any native title rights and interests, and that the accommodation lease, being a past act under s 228(3)(b)(i) of the NTA, also wholly extinguished native title rights and interests in the area of the lease. There is no appeal from the rulings in the October 2004 reasons.
The March 2005 reasons: (Daniel v State of Western Australia (No 2) (2005) 141 FCR 426)
In the March 2005 reasons his Honour accepted the State’s submission that it was appropriate to include pastoral lease 398/824 (adjacent to the Mallina pastoral lease) in the definition of the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area in the determination, that particular pastoral lease having been omitted from his previous judgments due to oversight. It was noted that the pastoral lease was legally indistinguishable from other pastoral leases found to have wholly extinguished native title (that is, the Mt Welcome, Hooley, Coolawanyah and Mallina pastoral leases). The issue as to the extent of the extinguishing effect of pastoral lease 398/824 is raised on the appeal: see [56] above.
The State’s notice of motion for leave to reopen its case in relation to certain additional extinguishing interests was also considered in the March 2005 reasons. The learned primary judge considered that it was appropriate to grant leave to reopen, and thus determined the extinguishing effect of the construction of Wickham High School on reserve 46193, the construction of a Roman Catholic Church on reserve 46888, and the construction of several roads or sections of roads. There is no appeal from these findings.
The orders (Daniel v State of Western Australia [2005] FCA 536)
The Ngarluma/Yindjibarndi Native Title Determination was made on 2 May 2005 at Roebourne. The determination stated that native title rights and interests (which do not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of others) exist in the Ngarluma Native Title Area and the Yindjibarndi Native Title Area, as defined in the first schedule to the determination.
The native title holders were identified in the determination as the “Ngarluma People” in relation to the Ngarluma Native Title Area, and the “Yindjibarndi People” in relation to the Yindjibarndi Native Title Area. The term “Ngarluma People” was defined in the third schedule to the determination as:
Aboriginal persons who recognise themselves as, and are recognised by other Ngarluma peoples as, members of the Ngarluma language group.
And the term “Yindjibarndi People” was defined as:
Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi peoples as, members of the Yindjibarndi language group.
On appeal, that description of the native title holders was challenged by the State as being incomplete and insufficient.
Native title was determined not to exist in the Burrup, Offshore Waters, Depuch Island, the Hamersley Ranges Area and the Total Extinguishment Area (as defined in the first schedule to the determination). The “Total Extinguishment Area” was defined in the first schedule as “the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area” and was visually depicted in the maps attached to the first schedule.
The following non-exclusive native title rights and interests were identified in relation to the Ngarluma Native Title Area:
(a)       a right to access (including to enter, to travel over and remain);
(b)a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
(c)a right to camp and to build shelters (including boughsheds, mias and humpies), limited to the proximity of river courses within the Ngarluma Native Title Area, and to live temporarily thereon as part of camping or for the purpose of building a shelter;
(d)a right to fish from the waters, limited to the coastal areas landward of the low water mark, and inland water courses;
(e)       a right to collect and forage for bush medicine;
(f)a right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan), limited in the case of water fauna to coastal waters landward of the low water mark and inland water courses;
(g)a right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);
(h)       a right to take black, yellow, white and red ochre;
(i)        a right to take water for drinking and domestic use;
(j)a right to cook on the land including to light a fire for this purpose, limited to the proximity of river courses;
(k)a right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

Similar non-exclusive native title rights and interests were identified in respect of the Yindjibarndi Native Title Area:
(a)       a right to access (including to enter, to travel over and remain);
(b)a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
(c)a right to camp and to build shelters (including boughsheds, mias and humpies), limited to the Millstream-Fortescue Area, and to live temporarily thereon as part of camping or for the purpose of building a shelter;
(d)      a right to fish from the waters, limited to the Millstream-Fortescue Area;
(e)a right to collect and forage for bush medicine, limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
(f)a right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle), limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
(g)a right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey), limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
(h)a right to take black, yellow, white and red ochre, limited to the Millstream-Fortescue Area;
(i)        a right to take water for drinking and domestic use;
(j)a right to cook on the land including light a fire for this purpose, limited to the Millstream-Fortescue Area;
(k)a right to protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).
The determination also stated that the Yindjibarndi Aboriginal Corporation is to hold the native title rights and interest of the Yindjibarndi people in trust for the Yindjibarndi people, and stipulated a procedure for the nomination of a prescribed body corporate to hold in trust the native title rights and interests of the Ngarluma people. Subsequently, the Ngarluma Aboriginal Corporation was nominated to hold the native title rights and interest of the Ngarluma people in trust for the Ngarluma people: see Daniel v State of Western Australia [2006] FCA 271.
The Wong-Goo-TT-OO, Yaburara/Mardudhunera and Kariyarra applications were dismissed to the extent that they overlap with the Ngarluma/Yindjibarndi application, such dismissal being without prejudice to any rights of the members of the Wong-Goo-TT-OO claimant group as Ngarluma people or Yindjibarndi people to be native title holders.
Attached to these reasons as Annexure B is a copy of the map of the determination area which formed part of the first schedule to the determination, showing, inter alia, the Determination Area, the Ngarluma Area, the Yindjibarndi Area, the Total Extinguishment Area and the Burrup. It is not necessary to annex the various sub-maps referred to in Annexure B. They depict more clearly the areas identified in the legend.
SUMMARY OF ORDERS AND ISSUES ON THE APPEALS
The effect of the orders made by the learned primary judge on 2 May 2005 and the issues on this appeal, and the appeal by the Wong-Goo-TT-OO people in WAD 120/2005, is as follows.
The Ngarluma/Yindjibarndi claim (WAG 6017/1998)
The determination entirely disposed of the Ngarluma/Yindjibarndi native title claim in proceeding WAD 6017/1998. The claim failed insofar as it sought a determination of native title rights and interests over the claim area jointly in favour of the Ngarluma and Yindjibarndi peoples; but the claimants succeeded in their alternative claim that the Ngarluma people hold native title rights and interests in the Ngarluma claimed territory, and the Yindjibarndi people hold native title rights and interests in the Yindjibarndi claimed territory. It was determined that native title rights and interests had been wholly or partly extinguished in relation to some parts of the claim area. No native title was found to exist in the Burrup, originally claimed as part of the Ngarluma country, the claim to that land by the Ngarluma and Yindjibarndi peoples having failed because the learned primary judge did not accept that the relevant members of the Yaburara group were in fact members of the Ngarluma people.
The Ngarluma and Yindjibarndi peoples did not succeed in proving that they held all of the native title rights and interests claimed. Those rights and interests which were ultimately recognised by the learned primary judge are set out at [79] and [80] above.
The issues on the appeal
In this appeal, the Ngarluma and Yindjibarndi peoples appeal from the reasons and orders of the primary judge on four grounds. Certain issues regarding those grounds of appeal have been raised by Notice of Contention of the State and by the Commonwealth on its cross-appeal.
The issues to be determined on the Ngarluma/Yindjibarndi appeal and the State’s Notice of Contention are:
A.Extinguishment by grant of pastoral leases: Whether the primary judge erred in holding that native title was totally extinguished by the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases and pastoral lease 398/824 as discussed at [55] and [56] above. The Commonwealth by its cross appeal has also appealed against the orders in respect of those pastoral leases, also on the grounds that his Honour erred in failing to find that the grant of the pastoral leases had no additional extinguishing effect on any of the native title rights and interests which had not been extinguished prior to the date of grant or re-grant. All parties to the appeal are agreed that his Honour was in error in determining that the grant of each of the pastoral leases was a previous exclusive possession act and have accepted that they only partially extinguished the native title rights and interests over those areas. They sought orders by consent generally extending the non exclusive native title rights and interests to the areas of those pastoral leases;
B.Section 47A: Whether the extinguishing effect of the grant of the Mt Welcome pastoral lease and the freehold titles referred to at [57]-[59] above, and the creation of any other prior interest in relation to those areas should be disregarded pursuant to s 47A(2) of the NTA;
C.Section 47B: Whether certain specified areas which were, at the time the native title application was made, subject to temporary reserves made under s 276 of the Mining Act 1904 (WA) were areas to which s 47B of the NTA applied so that any extinguishment over those areas should be disregarded. The State, by its Notice of Contention raises the further issue of whether s 47B is inapplicable to some of these areas in any event either because there is no extinguishment to be disregarded, because they are covered by exploration licenses, or because they are not in fact occupied by the Ngarluma and Yindjibarndi peoples as required by s 47B(1)(c) of the NTA;
D.Internal geographical limitations: Whether his Honour erred in imposing internal geographical limitations on the exercise of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples, so that the rights were said to exist only in relation to areas in which they are currently exercised. The parties are also agreed that this ground should be upheld and have sought appropriate orders in relation to it by consent, to the effect that the native title rights and interests as found may be exercised over the whole of the lands and waters to which the Ngarluma and Yindjibarndi peoples have a traditional connection.
The State has cross-appealed on this appeal and in proceedings WAD 120/2005 on identical grounds. It contends that the primary judge fell into error in:
E.Existence of native title in the Karratha Area: Finding that non-exclusive native title rights and interests exist in an area in the north-western portion of the Ngarluma Native Title Area described as the “Karratha Area”. That area is located around the town of Karratha and extends to the western boundary of the claim area. Its northern boundary coincides with the commencement of the Burrup. The map produced by the State identifying the Karratha Area is attached to these reasons as Annexure C. The State’s submission is that the primary judge erroneously approached the issue of connection to the Karratha Area by focussing on occupation and use of the area, and “spiritual connection” to the area, and failed to focus on connection by traditional law and custom. The State claims that connection to the Karratha Area by traditional law and custom involves patrilineal estate groups. It is said that because the Ngarluma and Yindjibarndi peoples adduced no evidence of a contemporary patrilineal estate group system or some adaptation thereof, the primary judge should have found that there was no native title in the Karratha Area.
F.Description of native title holders: Determining that the holders of the non-exclusive native title rights and interests were the “Ngarluma People” and the “Yindjibarndi People” without further defining those expressions.
In addition to its appeal against the finding of total extinguishment by the Mt Welcome, Hooley, Coolawanyah and Mallina pastoral leases and pastoral lease 398/824 referred to above, the following issue arises on the Commonwealth’s cross-appeal:
G.Prescribed bodies corporate: Whether his Honour erred in finding that ss 56(2) and 57(2) of the NTA allow more than one prescribed body corporate to be nominated in respect of the Determination Area, and in subsequently making orders to reflect that finding. The Commonwealth contends that the NTA permits the nomination of only one prescribed body corporate in relation to the determination area.
The respondents to the appeal have agreed that the appeal grounds (A) and (D) above should succeed. The Ngarluma and Yindjibarndi peoples sought to have orders made by this Court in relation to those two grounds both prior to, and at the time of, the hearing. The reasons for not adopting that course are set out below; but the consent orders provided by the parties will be given effect for reasons which appear.
The Yaburara/Mardudhunera claim (WAG 127/1997)
To the extent to which it overlapped with the Ngarluma/Yindjibarndi claim (including the Burrup), the Yaburara/Mardudhunera native title claim was dismissed. The balance of that claim remains to be determined.
No matters concerning that part of the determination are the subject of the appeal.
The Wong-Goo-TT-OO claim (WAG 6256/1998)
The Wong-Goo-TT-OO claim was also dismissed to the extent that it overlapped with the Ngarluma/Yindjibarndi claim (including the Burrup), although the primary judge acknowledged that the Wong-Goo-TT-OO people may have native title rights and interests in the determination area as Ngarluma people or as Yindjibarndi people. The balance of the Wong-Goo-TT-OO claim is yet to be determined.
The appeal in WAD 120/2005
The Wong-Goo-TT-OO people have appealed from the reasons and orders of the primary judge to the extent to which those orders and reasons support the dismissal of their overlap claim. The appeal grounds and submissions of the Wong-Goo-TT-OO were, to a large extent, concerned with the rejection of certain evidence regarding connection and continuity given by Tim Douglas, a Wong-Goo-TT-OO claimant, and Kenny Jerrold, a Yindjibarndi man. The grounds of appeal are extensive but can be briefly summarised as follows:
·whether his Honour erred in not accepting that the Wong-Goo-TT-OO group was a cognatic kin group of continuous existence which has maintained connection with their “core area” since sovereignty;
·whether his Honour erred in failing to find that the Wong-Goo-TT-OO people were separate and distinct from the Ngarluma and Yindjibarndi peoples;
·whether the Wong-Goo-TT-OO people hold native title rights and interests in the Burrup.
The issues arising on the Wong-Goo-TT-OO appeal are the subject of our reasons in Dale v Moses [2007] FCAFC 82.
As noted above, the State has cross-appealed in this appeal also, raising the two issues described in [89] above, that is issues (E) and (F).
The Kariyarra claim (WAD 6169/1998)
The assertion by the Kariyarra people of native title rights and interests over their claim area, to the extent to which it overlapped with the Ngarluma and Yindjibarndi claim area, was also unsuccessful. The areas of overlap were quite small; thus a large area of the Kariyarra claim remains to be resolved in other proceedings.
No issue as to that part of the decision at first instance arises on the appeal.
ISSUE A: EXTINGUISHMENT BY GRANT OF PASTORAL LEASES
The parties to the appeal agree that the primary judge erred in finding that the grant of pastoral leases 3114/716 (Mt Welcome), 3114/1228 (Coolawanyah), 3114/1173 (Hooley), 3114/1209 (Mallina) and 398/824 (adjacent to Mallina) (together, “the five pastoral leases”) had wholly extinguished native title over the land covered by them.
The Ngarluma and Yindjibarndi peoples filed a proposed consent order (signed by all parties to the appeal) seeking to have the Ngarluma/Yindjibarndi appeal and the Commonwealth cross-appeal in relation to those five pastoral leases (and the appeal in relation to the internal geographical limitations on the exercise of certain native title rights – Issue D below) allowed prior to the hearing and determination of the balance of the appeal. The Ngarluma and Yindjibarndi peoples also filed submissions in support of the proposed consent orders, urging the Court to make the orders sought immediately. Those submissions were endorsed by the State, the Commonwealth, and the pastoral respondents. We declined to make the orders prior to the hearing.
At the commencement of the hearing an issue arose regarding the Court’s power to partially dispose of an appeal pending determination of the balance of the appeal grounds. We expressed some concern that the pronouncement of orders on some grounds of appeal, having the effect of varying the determination made by the primary judge on 2 May 2005, may render the Court functus officio with respect to the balance of the appeal. Further submissions addressing that issue and supporting the making of the consent orders before final disposition of the appeal were filed by the Ngarluma and Yindjibarndi peoples after the hearing of the appeal. The State and the Commonwealth also filed further submissions following the hearing of the appeal. In those further submissions, the State and the Commonwealth both opposed the making of the consent orders prior to the determination of the balance of the appeal.
It is convenient to set out here the reasons why, contrary to the submissions of the Ngarluma and Yindjibarndi peoples, we did not regard it as appropriate to make the consent orders before determining the balance of the appeal.
Reasons for not making “interim” consent orders
In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J said at 211
There was ‘an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise’: Halsbury's Laws of England, (1st ed), vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed ‘from time to time as occasion requires’. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.
Having regard to the powers conferred upon this Court in the exercise of its appellate jurisdiction by the Federal Court of Australia Act 1976 (Cth) (the FCA Act), it is far from clear that the Court has power to partially dispose of an appeal before reaching a final conclusion on all aspects of the appeal. The Ngarluma and Yindjibarndi peoples contend that such power has been conferred upon the Court by s 25(2B)(b) of the that Act. That section provides:
(2B) A single Judge or a Full Court may:
…
(b) make an order by consent disposing of an appeal to the Court (including an order for costs);
…
Reliance was also placed upon s 28 of the FCA Act. That section states that the Court may, in the exercise of its appellate jurisdiction, “affirm, reverse or vary the judgment appealed from” and may “give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order”: see s 28(1)(a) and (b). Counsel were not able to identify any authority on s 25(2B)(b) applicable to the present context.
Additionally, the Ngarluma and Yindjibarndi peoples relied upon s 87 of the NTA, which reads:
(1)If, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a)agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i)        the proceedings; or
(ii)       a part of the proceedings; or
(iii)      a matter arising out of the proceedings; and
(b)the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c)the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court;
the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
Subsections 2 and 3 permit the Court to give effect to the relevant order or agreement. However, as is evident from the terms of s 87(1)(c), that section does not provide an additional source of power. It is not enlivened unless the Court is satisfied that the orders are otherwise within its power. It cannot shed any light on the Court’s general power to hear and determine appeals. Nor do we think that s 68 of the NTA can provide a source of power for the Court to partially dispose of this appeal in the way the Ngarluma and Yindjibarndi peoples sought. It relevantly prevents any other determination of native title in relation to a particular area once there is an approved determination of native title over that area. There are two exceptions to that statutory direction, but the only one which might possibly apply is the case of a review or appeal of the first determination. That exception does not extend the Court’s powers on appeal, but simply recognises that on an appeal the finality of a determination of native title may be displaced.
The Commonwealth submitted that it is not possible to read into s 25(2B)(b) of the FCA Act a conferral of power to dispose of an appeal in stages. The State did not consider it necessary to address that question because, it said, there was no reason to partially dispose of the present appeal in any event, as the Ngarluma and Yindjibarndi peoples had not established that they would suffer any prejudice were the consent orders not made forthwith. The Ngarluma and Yindjibarndi peoples had claimed that they may be prejudiced by any delay in allowing the grounds of appeal in relation to the five pastoral leases because as the determination stood, they had no procedural rights in relation to acts which should be, but would not be, treated as a “future act” under the NTA. The State considered that the interests of the Ngarluma and Yindjibarndi peoples regarding “future acts” had been protected by a written undertaking provided by the State.

In the present case his Honour analysed the entirety of the evidence relating to the groups which held the native title rights and interests and rejected that they were held at the estate group level. The approach was consistent with the authorities referred to and there was no error in his approach.
Society
At the end of the submissions concerning the alleged errors in consideration of the issue of connection to the Karratha area, counsel for the State argued that his Honour had erred in failing to make a finding or a correct finding as to the society whose laws and customs were in issue. He outlined the argument as follows:
So not only does his Honour fail to accord recognition under traditional law of the estates, his Honour has now, in our respectful submission, changed the practice from one in which at sovereignty particular peoples have general rights in particular areas to one in which every Ngarluma has undifferentiated rights throughout the territory. That, we say, is an impermissible use of concept of society which in any event his Honour didn’t find.
All of that is relevant only to point up our submission that one of the ways by which his Honour was led to the error of finding connection with the Karratha area was that his Honour did not go down the route I’ve just described at all. His Honour did not identify a society, did not identify its rules of tenure from Radcliffe-Brown and from all the experts, therefore did not look at any point in those areas which might have corresponded to the original estate groups or to some emanation of them or to some evolution of them. All of that, we say – that’s not an error we now rely on. We don’t appeal the error that his Honour failed to find the right society or any society, but we do call that error in aid of our submission about connection.
It may be that the State sought to link this argument with the general complaint about how his Honour dealt with connection in order to overcome the deficiency in articulation of the argument in the notice of appeal or in the written submissions.
Although the contention on its face challenged his Honour’s approach to the society question, upon careful analysis, the argument was another attempt to reagitate the estate groups argument. We have rejected that submission at [332]–[337] and incorporate those reasons again at this point.
However, as the submission purported to challenge the way in which his Honour approached the question of society, we should deal with the contention directly in those terms.
It was explained in Yorta Yorta 214 CLR 422 that the group rights referred to in s 223(1) are creatures of the laws and customs of a particular society, that is to say, a group united in and by its acknowledgement and observance of a body of laws and customs. Applicants must demonstrate that the society has continued to exist from the acquisition of European sovereignty to the time of hearing, and between those dates, has continuously acknowledged and observed the laws and customs of that particular society. His Honour referred to these requirements in the passages set out at [246] of these reasons for judgment. The society originally proposed by the Ngarluma and Yindjibarndi peoples was a composite society. But after the Yorta Yorta judgment they sought group rights and interests for the Ngarluma people and Yindjibarndi people separately. His Honour explained in Part X of his reasons for judgment, which is referred to in [278]–[280] of these reasons for judgment, that following Yorta Yorta the applicants were not obliged to show the Ngarluma and Yindjibarndi peoples were a composite group. Then, in Part XI of his reasons for judgment, which is referred to in [281]–[284] of these reasons for judgment, his Honour made findings on the evidence that the Ngarluma people and Yindjibarndi people were each groups of people which existed at the acquisition of European sovereignty and at the date of hearing. Finally, in Part XII of his reasons for judgment, which is referred to in [285]–[300] of these reasons for judgment, his Honour found, after an analysis of all the evidence, that the laws and customs relating to land were acknowledged and observed by the Ngarluma people and Yindjibarndi people continuously since the acquisition of European sovereignty. Thus, his Honour identified the Ngarluma people and Yindjibarndi people as groups which were united in their acknowledgement and observance of laws and customs, and he found that the acknowledgement and observance had been continuous since the acquisition of European sovereignty. There was no error in his Honour’s approach to the identification of society as defined in Yorta Yorta 214 CLR 422.
Too extensive an area
This argument has been dealt with in [310]–[312] of these reasons for judgment in relation to the first proposition and the same reasoning applies here.
No findings in relation to the Karratha area separately
This argument has been dealt with in [313] of these reasons for judgment in relation to the first proposition and the same reasoning applies here.
Consideration of submissions of the Commonwealth
The Commonwealth adopted the arguments put by the State in relation to the Karratha area. It also relied on a further argument. Senior counsel for the Commonwealth contended that Gaudron and Kirby JJ had taken a different approach than that taken in the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta 214 CLR 422, and that his Honour erroneously adopted the former approach in this case rather than the approach required by the joint judgment.
It was argued that the difference in approach could best be seen by comparing [82] in the joint judgment with [114] in the judgment of Gaudron and Kirby JJ. The joint judgment at [82] reads:
It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.
Gaudron and Kirby JJ said at [114]:
What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.
Counsel for the Commonwealth described the suggested difference as follows:
… nor in the approach of Gaudron and Kirby JJ is it necessary to demonstrate the content of pre-sovereignty laws and customs in order to ascertain whether the present law is traditional. Rather, the inquiry is whether the present law or custom has its origins in the past, with evolution or adaptation to be assumed if there are differences with past practices. Now, this approach contrasts with the approach of the joint judgment in Yorta Yorta High Court. That approach does require that the content of pre-sovereignty laws and customs be established on the evidence…
A comparison of the two paragraphs in the two judgments does not establish the suggested difference in approach. Both judgments define the concept of traditionality in section 223 of the NTA as meaning that the laws or customs must have been continuously acknowledged and observed. Thus Gaudron and Kirby JJ said at [111]:
Continuity, including continuity of community, is a matter that bears directly on the question whether present day belief and practices can be said to constitute acknowledgment of traditional laws and observance of traditional customs.
and at [116]:
Continuity of community is also a matter that bears directly on the question whether laws and customs are properly described as traditional.
In both cases this continuity must be established. There is no suggestion in the judgment of Gaudron and Kirby JJ that this factor is to be assumed.
The difference between the two judgments does not lie in the statements of principle, but in the application of the principle to the facts of the case. Thus, Gaudron and Kirby JJ would have allowed the appeal because the primary judge had not considered a number of factors relevant to the establishment of continuity such as whether there were Yorta Yorta people who had identified themselves as a group bound together by laws and custom continuously over the period. If Gaudron and Kirby JJ had held that the primary judge was entitled to assume continuity from present observance of laws and customs they would not have remitted the case to the primary judge, but would have determined that native title existed.
Thus, even though the Commonwealth argument does not reflect the effect of the judgment of Gaudron and Kirby JJ, nevertheless by reference to both judgments, his Honour was not entitled to assume continuity of acknowledgment and observance of laws and customs, but was required to determine if the Ngarluma and Yindjibarndi peoples had established that continuity on the evidence.
The Commonwealth contended that his Honour made findings about the present acknowledgment and observance of laws and customs but erred by assuming that the acknowledgment and observance had been continuous and did not investigate or determine on the evidence whether the acknowledgment and observance had been continuous. If he had done so, it was submitted in reliance on the contention of the State, he could only have concluded that land was held by estate groups of patrikin at the time of the acquisition of European sovereignty. As there was no evidence of acknowledgment and observance of such laws or customs in the Karratha area at the time of the hearing, the application for a determination of native title in the Karratha area must have failed.
In other words, the argument attempted to raise, in another way, the State’s case based on patrikin estate groups. However, as has been explained earlier in these reasons, his Honour rejected that case after a full examination of all the evidence including anthropological, archaeological, historical, linguistic and lay evidence. Contrary to the submissions of the Commonwealth, his Honour did not assume that the acknowledgement and observance of laws and customs had been continuous. The conclusion was arrived at by an assessment of all the evidence. This challenge must also fail.
Issue F: Description of native title holders
In the third schedule of the determination of native title the native title holders are described thus:
‘Ngarluma People’ are Aboriginal persons who recognise themselves as, and are recognised by other Ngarluma People as, members of the Ngarluma language group.
‘Yindjibarndi People’ are Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi People as, members of the Yindjibarndi language group.
His Honour arrived at these descriptions after considering a proposed formulation of the description of the native title holders proffered by the State in the following terms in relation to the Ngarluma People.
“Ngarluma People” means the living Aboriginal persons who regard themselves as, and who are generally recognised by other Ngarluma People as, Ngarluma, and who from time to time come within the following description:
(1)David Daniel, James Solomon, Tim Kerr, Daisy Moses, Jill Churnside, Les Hicks, David Walker, Roger Barker, Trevor Solomon, Pansy Hicks, Dora Solomon, Alma Tumbler, Eric Churnside, Keith Churnside, Sally Walker, Betty Dale, Doris Norman, Time Douglas, Ernie Ramirez.
(2)The male ancestors in the male line of the persons in (1) above and the siblings of those male ancestors.
(3)The descendants in the male line of the male persons in (1) and (2) above.
(4)A person whose mother was Ngarluma in accordance with paragraphs (1), (2) or (3) above, and who was born or grew up in the Ngarluma Determination Area.
(5)A person who is a descendent of a person in paragraph (4) above and who was born or grew up in the Ngarluma Determination Area.
BUT in each case excluding:
(i)Valerie Holborow, Kevin Cosmos, Colin Cosmos, Janice Cosmos, Audrey Cosmos, Susan Mowarin, Mary Cosmos, Linda Delower, Dorene Wescombe, Barbara Sinclair, Gail Sinclair, Robert Boona, Margaret Boona, Dorrie Wally, Patricia Cooper or Danny Cooper; and
(ii)any of their descendents who identifies himself or herself as a Yaburara or Mardudhunera person.
A generally similar formulation defined the Yindjibarndi People. It is not necessary to set out this formulation for the purpose of the discussion.
His Honour referred to the description of native title holders which had been adopted in a number of cases in the July 2004 reasons as follows at [49]:
·     Mabo v Queensland (No 2) (1992) 175 CLR 1 – the Meriam people.
·     The Full Court in Western Australia v Ward [2000] FCA 611 had proposed at [14] – [15] a determination that ‘native title existing in the determination area is held by the Miriuwong and Gajerrong People and in respect of that part of the determination area known as Booroongoong (Lacrosse Island), native title is also held by the Balangarra Peoples’.
·     Mabuiag People v Queensland [2000] FCA 1065 at Order 2 – ‘The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Gumulgal (the Mabuiag people)’.
·     Poruma People v Queensland [2000] FCA 1066 at Order 2 – ‘The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Warraberalgal (the Warraber people)’.
·     Masig People v Queensland [2000] FCA 1067 at Order 2 - ‘The persons holding the communal and groups rights comprising the native title (“the common law holders”) are the Masigalgal (the Masig people)’.
·     Smith v Western Australia (2000) 104 FCR 494 at Order 2.2 – ‘Native title existing in the determination area is held by the community of Nharnuwangga, Wajarri and Ngarlawangga people …’.
·     Wik Peoples v Queensland [2000] FCA 1443 at Order 2 – ‘The native title is held by the Wik and Wik Way peoples for their respective communal, group and individual rights and interests in the determination are in accordance with the traditional laws acknowledged and traditional customs observed by them …’.
·     Kaurareg People v Queensland [2001] FCA 657 at Order 3 – ‘The native title is held by the Kaurareg People who are the descendents of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders’.
·     Ngalpil v State of Western Australia [2001] FCA 1140 – In the third schedule it is said:
‘the common law holders known as the “Tjurabalan People” are those people who hold in common the body of traditional law and culture governing the Determination Area and who:
(a)are members of the Walmajarri, Jaru or Nyininy language groups; and
(b)have common and inclusive cultural and geographic association with the determination area which includes: … .’
·     James on behalf of the Martu People v Western Australia [2002] FCA 1208 – In the third schedule, it is said:
‘the common law holders are those people known as the Martu people. The Martu people are those Aboriginal people who hold in common the body of traditional law and culture governing the determination area and who identify as Martu and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups: …’
·     In Nangkiriny v Western Australia (2002) 117 FCR 6, the Karajarri people were described in the fourth schedule as:
‘those people who refer to themselves as Karajarri, being persons who:
(a)are of Karrijarri descent;
(b)identify as Karajarri and are accepted as such by Karajarri;
(c)adhere to Karajarri customs and traditions; and
(d)are by Karajarri laws and customs entitled to the use or occupation of the Karajarri lands irrespective of whether or not the traditional entitlement is qualified as to place, time, circumstances, purpose or permission and includes those persons having native title thereto under common law.’
His Honour then considered the argument of the State that the description should provide a basis for deciding who is in the Ngarluma or Yindjibarndi group, and he determined to follow the practice exemplified in the cases referred to.
On appeal the State argued, and the Commonwealth adopted the arguments, that s 225(a) of the NTA requires a more precise description of the native title holding group than the description adopted by his Honour. They contended that s 225(a) must be read with s 61(4) of the NTA which requires a native title determination application to name the members of the native title claim group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is a member of the group.
In Ward (1997) 159 ALR 453 the determination made by the trial judge was in favour of the Miriuwong and Gajerrong people. In the Full Court, Beaumont and von Doussa JJ said at [212]–[213]:
212The State also contended that the determination fails to comply with s 225, as it does not provide a means of determining from time to time who are the people who constitute the community or group comprising the common law holders of native title. In our opinion the NTA imposes no such obligation on the Court. Section 225(a) requires the Court to determine "who the persons or each group of persons, holding the common or group rights comprising the native title are". That is a requirement that the persons or group of persons (which includes a community) holding the title, at the time of the determination, be identified. That is necessary for the purposes of enabling an appropriate prescribed body corporate to be nominated and appointed in compliance with ss 56 and 57 of the NTA and the Regulations.
213However, once the determination is made, and a registered native title body corporate has been appointed to hold the native title in trust, or as representative of the common law holders, the ascertainment of who is a common law holder is a matter to be determined, if necessary, in a Court of competent jurisdiction, by reference to the traditionally based laws and customs of the common law holders named in the determination, as those laws and customs are at the time currently acknowledged and observed (see Mabo (No 2) at 59). The occasion for a dispute requiring curial determination should be rare. The need should not arise in dealings between third parties and the registered native title body corporate as that body has the capacity and standing to represent the common law holders from time to time. Such a dispute is more likely to arise between the registered native title body corporate and people claiming to be entitled to be recognised as common law holders. That would be a dispute between people with a close knowledge of the relevant traditional laws and customs.
The State submitted that Ward (FC) 99 FCR 316 was wrong and should not be followed insofar as it decided that a determination does not have to describe native title holders sufficiently clearly so that it can be ascertained whether any particular person is a native title holder. The State also argued that the cases relied on by his Honour, apart from Mabo (No 2) and Ward, were consent determinations in which the adequacy of the description of the native title holders was not argued. The State then referred to some cases in which the Court had held that the description of applicants failed to comply with s 61(3) of the NTA (Bodney v Bropho [2004] FCAFC 226 and Colbung v Western Australia [2003] FCA 774) and to other cases in which more detailed descriptions of the native title holders had been included in the determinations, namely, Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; [2004] FCA 472 (Alyawarr): order 2; Sampi v State of Western Australia (No 3) [2005] FCA 1716 (Sampi (No 3)): Order B, clause 3 and Schedule 6; De Rose (No 2) (FC) 133 FCR 325: order 2; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (Gumana (No 2)): clause 3.

The State argued that the Court should remit this matter to the trial judge for further consideration of the formulation of the description of the native title holders.
Section 225(a) requires that persons who hold individual rights and interests be specified in the determination and groups of persons holding group rights be specified in the determination. In the case of group claims, s 225(a) will ordinarily be satisfied if the name of the group is provided. There is no automatic requirement that the determination set out in detail how the group membership is constituted or the criteria by which membership is attained. That is all Ward (FC) 99 FCR 316 meant on the subject. Whether the group of persons is sufficiently described will depend on the facts of the particular case. Often a statement of the group name will identify the group of persons sufficiently for the purposes of s 225(a). This explains the many determinations which have adopted that formulation. In other cases, for instance, where the constitution of the membership of the group is unclear, the determination will need to clarify by supplying some definition of the way membership of the group is attained so that s 225(a) can be satisfied.
Section 61(4) of the NTA deals with the requirements for authorisation for the bringing of an application. It provides:
A native title determination application, or a compensation application, that persons in a native title group or a compensation claim group authorised the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
The wording of s 61(4) is different from s 225(a), and the subject matter is also different. Nevertheless, it is likely that the considerations to which we have just referred apply in much the same way to this section.
In the present case, the argument on appeal was essentially confined to establishing that s 225(a) is not satisfied by the naming of the native title holding group but must go further and stipulate a method by which individual group members can be ascertained. This proposition cannot be accepted as a general statement. It is only where the group description leaves in doubt who are members of the group that such a description would need to be supplemented by further detail. The State attempted to distinguish the cases that his Honour referred to on the basis that they were consent determinations and therefore the issue of the legal requirements for the description of the native title holders was not argued. However, ss 87 and 94A of the NTA, require that the Court must be satisfied that each of the elements of s 225 is fulfilled before making a consent determination. To the extent that the State’s argument has force, it applies equally to the cases on which it relied because there was no argument in those cases as to the description of the native title holders in the determination.
Further, the descriptions of native title holders in the cases referred to by the State, do not provide the level of specificity contended for by the State. In Alyawarr 207 ALR 539, the native title holders are described as members of landholding groups; or recognised as members of landholding groups through adoption or birthplace affiliation; or spouses who are recognised as members of the landholding groups. In De Rose (No 2) (FC) 145 FCR 290, the native title holders are described as people who are nguraritja according to the relevant traditional laws and customs of the Western Desert Bloc people through country of birth, long term physical association, ancestral connection or by geographical and religious knowledge. The native title holders in Gumana (No 2) [2005] FCA 1425 are described as members of the relevant clans by virtue of descent; or who are guardians or successors to the rights of a clan in relation to its estate; or who have kinship connections; are spouses or have non-descent based connections. It is only in Sampi (No 3) [2005] FCA 1716 that the native title holders are described as descendants of apical ancestors. In each case except Sampi (No 3), membership of the native title group is a matter to be determined by the holders of native title according to their traditional laws and customs.
The State has not demonstrated that the group descriptions in the present case fail to identify the group of persons who hold native title as is required by s 225(a). Indeed, the descriptions used go beyond mere nomination of the group and define membership by reference to two criteria, namely, self recognition and recognition by others in the group. The State did not seek to show that this formulation differed in result from the proposed formulation proffered by it. There is nothing on the face of the description of the native title holders chosen by his Honour which suggests a failure to comply with s 225(a), and there is no argument on the facts which persuades us that the description fails to comply with that section.
issue G: prescribed bodies corporate
His Honour made one determination of native title which set out the separate rights and interests of each of the Ngarluma and Yindjibarndi groups of native title holders. Save for a small area of overlap in the vicinity of the Chichester Ranges, the rights and interests related to separate Ngarluma and Yindjibarndi areas.
His Honour was then required by s 55 to make determinations under s 56 and s 57 that the rights and interests were held and particular functions were to be performed by a prescribed body corporate (PBC). Section 56 relevantly provided:
(1)One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.
(2)The Federal Court is to take the following steps in making the determination:
(a)    first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:
(i)nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and
(ii)including with the nomination the written consent of the body corporate; and
(b)   secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and
(c)    thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.
(3)On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.
(4)…
(5)…
(6)…’
Section 57 provided:
(1)If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform:
(a)     any other functions given to it as a registered native title body corporate under particular provisions of this Act; and
(b)     any functions given to it as a registered native title body corporate under the regulations (see section 58).
(2)If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):
(a)    first, it must request a representative of the common law holders to nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose;
(b)   secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;
(c)    thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body is to perform the functions.
(3)After becoming a registered native title body corporate, the body must perform:
(a)     any functions given to it as a registered native title body corporate under particular provisions of this Act; and
(b)     any functions given to it under the regulations (see section 58).
The Commonwealth argued before his Honour that the determination could only nominate one PBC for the one determination area notwithstanding that the rights and interests were held by two separate groups over two largely separate areas within the determination area. It contended that the reference to “the common law holders” in s 56(2)(a) and s 57(2)(a) was a reference to all the native title holders referred to in the determination and not to the members of each group of native title holders.
His Honour rejected this argument at [21]–[22] of the July 2004 reasons:
21Turning first to the provisions of s 56(2), the reference to ‘common law holder’ which appears there is prima facie a reference to all the common law holders under a principal determination. However, those words must be understood in relation to an ‘intention’ relating to the native title held by the common law holders. Where the common law holders do not all hold the same native title, it is possible for the intention of each group of common law holders to be different from each other. The possibility of different groups holding native title under the one principal determination flows from the provisions of s 225(a).
22I agree with the submission for the Commonwealth that the reference in s 56(2)(a) and s 57(2)(a) to the representative there described is a reference to the representative from the persons referred to in s 225(a). Attention to that paragraph discloses that the common law holders may be a plurality – that is, ‘each group of persons’ holding the common law or group rights. The presence of s 225(a) negates the possibility of any contrary intention appearing to prevent the application of the rule that words in the singular number include the plural: s 23(b) of the Acts Interpretation Act 1901 (Cth). The consequence is that the proper application of s 56(2)(a) and s 57(2)(a) read in the context of s 225(a) necessitates the Court extending an invitation to nominate a PBC to a representative of each of the persons comprising the groups it proposes to include in the determination. That being the case, it becomes possible that two PBCs could be nominated, one for each group of common law holders.
In accordance with this approach his Honour made orders which had the effect that one PBC would hold the native title rights and interests of the Yindjibarndi people in trust for the Yindjibarndi people, and a separate PBC would hold the rights and interests of the Ngarluma people in trust for the Ngarluma people.
On the appeal, the Commonwealth argued that the words of s 56(2)(a) and (b) and s 57(2)(a) and (b) are clear. The Commonwealth contended that, whether there is one group of native title holders or more than one group of native title holders, under s 56(2)(a) a single representative of the native of the native title holders is invited to nominate one PBC to hold the rights and interests on trust and the Court must then determine that only that PBC hold the rights and interests (s 56(2)(b)). The position was similar where a representative is invited under s 57(2)(a) to nominate a PBC for the purpose of performing non-trust functions after it becomes registered and the Court determines under s 57(2)(b) that the PBC is to perform the functions. His Honour erred in determining that two PBCs would hold the rights and interests in the one determination area.
On the appeal, both the State and the Ngarluma and Yindjibarndi peoples contended that his Honour’s interpretation of ss 56(2)(a) and 57(2)(a) was correct. We agree with his Honour’s approach and his reliance on the significance of the reference to the intention of the native title holders in s 56(2) and with his further reliance with the linkage between the concept of native title holders in s 225(a) and the sections under consideration.
The Commonwealth contended that the scheme of the NTA demonstrated that Parliament intended that there would be only one PBC for each determination area. Whilst other provisions demonstrate that there may be only one native title claim group for each area (s 61(1) and (2)), and one determination for each area (s 68), the construction of the provisions which govern the determination of PBCs is not assisted by s 61 and s 68 which deal with a separate subject matter.
The Commonwealth also referred to reg 5 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the PBC Regulations) which provides:
A prescribed body corporate may be a trustee for, or act as an agent or representative of, more than 1 group of common law holders in relation to a native title determination if the determination applies to each group.
We agree with his Honour that this regulation is permissive only and does not require that there be one PBC only for each determination.
Then, the Commonwealth contended that the rationale for having one PBC per determination area was to facilitate communication with third parties. Finally, whilst there was no mechanism for resolving disputes between two or more PBCs in an area, regs 8 and 9 of the PBC Regulations and s 58A of the ACA Act provide for procedures to resolve disputes within one PBC. In our view, these considerations do not suggest that the plain meaning of the sections in the context in which they appear should not apply. His Honour made no error in making a determination which provided for two PBCs in the one determination area in the circumstances of this application.
CONCLUSION
For the above reasons, the appeal of the Ngarluma and Yindjibarndi peoples has been successful to the extent that it has been consented to by the respondents and in relation to the primary judge’s conclusion that s 47B did not apply to the areas of temporary reserves established under the Mining Act.
We will therefore make orders in the terms proposed by the parties on what we have called the “Extinguishment by Grant of Pastoral Leases” and “Internal Geographical Limitations” issues.
The terms of the determination of native title, as set out in Sch 5 to the 2 May 2005 determination will also need to be further altered to give effect to our conclusion concerning the application of s 47B to the areas of temporary reserves established under the Mining Act. We have however, on the State’s Notice of Contention, found at [237] that certain parts of those areas do not attract the application of s 47B because they were not occupied by one or more members of the native title claim group at the time of the application. As we have also discussed in [189]-[191] above, it will also be necessary to identify those parts of the determination area which are relevantly affected by the application of s 47B having regard to changes in the area of temporary reserves 5461H and 8117H, and having regard to the extinguishing effect of the grant of leases or occupation rights over certain parts of those areas and of the public works identified by the State over certain parts of those areas. We have expressed our general conclusions on those matters also at [200] and [235] above.
As those matters will require further consideration by the parties, so that they may be expressed in a form appropriate to be included in the final orders of the Court on this appeal, we will give the parties 28 days (or such further time as may be agreed and then approved by the Court) to submit the final form of orders which give effect to our reasons. If the parties cannot agree on those matters, we will give directions as to how they may be addressed.
As appears above, for the reasons we have given, the cross appeals of the State and of the Commonwealth will also be dismissed when final orders are made.
In the light of s 85A of the Act, and as no party in submissions contended that there should be any departure from the direction it provides, there will be no order as to the costs of the appeal or of the cross appeals.

I certify that the preceding three hundred and ninety-two (392) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, North & Mansfield.
Associate:
Dated: 4 June 2007

Counsel for the Appellants: Mr G M McIntyre SC with Ms C Tan

Solicitor for the Appellants: Pilbara Native Title Service

Counsel for the First Respondent First/Cross Appellant: Mr K Pettit SC with Mr S Wright

Solicitor for the First Respondent/First Cross-Appellant: State Solicitor for Western Australia

Counsel for the Second Respondents: Mr T Houweling with Mr J Steenhof

Solicitor for the Second Respondents: Cornerstone Legal

Counsel for the Third Respondent/Second Cross-Appellant: Ms R Webb QC

Solicitor for the Third Respondent/Second Cross-Appellant: Australian Government Solicitor

Date of last submissions: 7 June 2006

Date of Hearing: 15, 16, 17 May 2006

Date of Judgment: 7 June 2007

ANNEXURE A

ANNEXURE B
ANNEXURE C
ANNEXURE D

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

BETWEEN:	DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) Appellant
AND:	STATE OF WESTERN AUSTRALIA First Respondent P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent
BETWEEN: AND:	STATE OF WESTERN AUSTRALIA First Cross Appellant COMMONWEALTH OF AUSTRALIA Second Cross Appellant DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People) BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) First Cross Respondents P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Cross Respondents MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441) Third Cross Respondents
JUDGES:	MOORE, NORTH & MANSFIELD JJ
DATE OF ORDER:	7 JUNE 2007
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO PERTH)

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

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

Counsel for the Appellants:	Mr G M McIntyre SC with Ms C Tan
Solicitor for the Appellants:	Pilbara Native Title Service
Counsel for the First Respondent First/Cross Appellant:	Mr K Pettit SC with Mr S Wright
Solicitor for the First Respondent/First Cross-Appellant:	State Solicitor for Western Australia
Counsel for the Second Respondents:	Mr T Houweling with Mr J Steenhof
Solicitor for the Second Respondents:	Cornerstone Legal
Counsel for the Third Respondent/Second Cross-Appellant:	Ms R Webb QC
Solicitor for the Third Respondent/Second Cross-Appellant:	Australian Government Solicitor
Date of last submissions:	7 June 2006
Date of Hearing:	15, 16, 17 May 2006
Date of Judgment:	7 June 2007