FEDERAL COURT OF AUSTRALIA The State of Western Australia v Ward [2000] FCA 611 NATIVE TITLE – form of determination. Matter No. WG 6293 of 1998 THE STATE OF WESTERN AUSTRALIA & ORS v BEN WARD & ORS Matter No. WG 6292 of 1998 CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD v BEN WARD & ORS Matter No. WG 6294 of 1998 ALLIGATOR AIRWAYS PTY LTD & ORS v BEN WARD & ORS Matter No. WG 6295 of 1998 ARGYLE DIAMOND MINES PTY LTD & ANOR v BEN WARD & ORS Matter No. WG 6296 of 1998 THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v BEN WARD & ORS Matter No. W 6020 of 1999 CECIL NINGARMARA & ORS v THE NORTHERN TERRITORY OF AUSTRALIA & ORS JUDGES: BEAUMONT, von DOUSSA & NORTH JJ PLACE: MELBOURNE DATE: 11 MAY 2000 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY On appeal from a single judge of the Federal Court of Australia No. WG 6293 of 1998 BETWEEN: THE STATE OF WESTERN AUSTRALIA & ORS Appellants and BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, and PETER NEWRY ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE First Respondents and CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, and DIANNE DINGAL Second Respondents and DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS, and ROY MARTIN ON BEHALF OF THE BALANGARRA PEOPLES Third Respondents and COMMONWEALTH OF AUSTRALIA Intervener and KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE Cross Appellant and THE STATE OF WESTERN AUSTRALIA Cross Respondent No. WG 6292 of 1998 BETWEEN: CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD Appellants and BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, and PETER NEWRY ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE First Respondents and CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, and DIANNE DINGAL Second Respondents No. WG 6294 of 1998 BETWEEN: ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C A & T BRADLEY, W R & A J BROGMUS, J A CARATI, L & M CONLEY, T & E CROOT, C W CURTIS, MAURICE DAVIDSON, DALENE N DAVIES, UTE & HANS DIEDRICKSON, C C & P M DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE SEEDS, J ELLETT, B M & J FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H G GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G HARDING T/AS GOLDEN FRUITS, DOUG G & E M GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A & AILEEN M HACKETT, ROY & ROSALIE HAMILTON T/AS R & R PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB'S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G JOHNSON T/AS ITCHY PALM PLANTATION, G T KING & D P GAEBLER, J & P KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J & J LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C R & S A LEAVER T/AS DELESTION RANGE ESTATE, B LERCH & D SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J L & D G NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANATION, IAN H & ALMA V PETHERICK, RONALD M PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R & J V SCHOEPPNER, S C & P M SHARPE, BETHEL INCORPORATED, KENNETH G SKERMAN & HILARY E BRETT, KERRY SLINGSBY, P J E & L A SMITH, ALAN J & JANET A STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R & JANICE A TREMBATH, GREG AND JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B & LYNETTE J WESTWOOD T/AS EMELS ORCHARD, G S TURNER & Y M WHITEHEAD T/AS GARVON PLANTATION, ALAN & SUE WILSON, ROD WILSON, WILLIAM R & J M WITHERS, J L & S WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W READ, STJEPAN VUK, HOWARD YOUNG, J L WOODHEAD, J S W HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB, and KUNUNURRA WATER-SKI CLUB Appellants and BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, and PETER NEWRY ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE First Respondents and CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, and DIANNE DINGAL Second Respondents No. WG 6295 of 1998 BETWEEN: ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE Appellants and BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, and PETER NEWRY ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE First Respondents and CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, and DIANNE DINGAL Second Respondents and DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS, and ROY MARTIN ON BEHALF OF THE BALANGARRA PEOPLES Third Respondents and THE STATE OF WESTERN AUSTRALIA Fourth Respondent No. WG 6296 of 1998 BETWEEN: THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY Appellant and BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, and PETER NEWRY ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE First Respondents and CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, and DIANNE DINGAL Second Respondents and DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS, and ROY MARTIN ON BEHALF OF THE BALANGARRA PEOPLES Third Respondents and COMMONWEALTH OF AUSTRALIA Intervener No. W 6020 of 1999 BETWEEN: CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD, and DIANNE DINGAL Appellants and THE NORTHERN TERRITORY OF AUSTRALIA First Respondent and STATE OF WESTERN AUSTRALIA Second Respondent JUDGES: BEAUMONT, von DOUSSA & NORTH JJ DATE OF ORDER: 11 MAY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. A determination of native title be made in the terms of the instrument annexed. 2. There be no order for the costs of the issues arising on the form of the determination. 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 On appeal from a single judge of the Federal Court of Australia No. WG 6293 of 1998 BETWEEN: THE STATE OF WESTERN AUSTRALIA & ORS Appellants AND: BEN WARD & ORS Respondents No. WG 6292 of 1998 BETWEEN: CROSSWALK & ANOR Appellants AND: BEN WARD & ORS Respondents No. WG 6294 of 1998 BETWEEN: ALLIGATOR AIRWAYS PTY LTD & ORS Appellants AND: BEN WARD & ORS Respondents No. WG 6295 of 1998 BETWEEN: ARGYLE DIAMOND MINES PTY LTD & ANOR Appellants AND: BEN WARD & ORS Respondents No. WG 6296 of 1998 BETWEEN: THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY Appellant AND: BEN WARD & ORS Respondents No. W 6020 of 1999 BETWEEN: CECIL NINGARMARA & ORS Appellants AND: THE NORTHERN TERRITORY OF AUSTRALIA & ORS Respondents JUDGES: BEAUMONT, von DOUSSA & NORTH JJ DATE: 11 MAY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT (NO 2) (ON FORM OF DETERMINATION) BEAUMONT & von DOUSSA JJ: 1 By para 4 of the orders made by the Full Court on 3 March 2000, it was ordered, inter alia, that the determination of native title made at first instance be set aside, and that, in lieu thereof, there be a determination which reflects the reasons of the majority judgment (see Western Australia v Ward (2000) 170 ALR 159 at 377). By para 5 of the orders made on 3 March 2000, the parties were given liberty to make submissions on the draft determination then published. We have now had the benefit of these submissions. THE TERMS OF THE DETERMINATION 2 It will be convenient to consider each paragraph of the draft determination in turn. Draft Paragraph 1 "1. Native title exists in the 'determination area' save for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by red outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the National Native Title Tribunal referred to the Court by the Tribunal." 3 No party has submitted that the text of this paragraph should be altered. However, some amendments to the draft Second Schedule are proposed. It will be recalled that the Second Schedule of the draft Determination was as follows: Draft Second Schedule "SECOND SCHEDULE Native title has been wholly extinguished in the following parts of the determination area: 1. All the land identified in Exhibits 21A and 21B as: (i) Diversion Dam and Works Area (1960); (ii) First Farm Area (1960); (iii) Second Farm Area (1961); (iv) Kununurra Townsite (1961) except for the area now comprised in Reserve 37883 - Mirima (Hidden Valley) National Park; (v) Third Farm Area (1960-1962); (vi) Kimberley Research Station Extension (1963); (vii) Fourth Farm Area and Levy Bank (1967); (viii) Packsaddle Farm Area (1972 and 1975); (ix) The lands resumed from the Lissadell and Texas Downs Pastoral Leases in 1972, which now comprise part of Reserve 31165 (and include that part of Special Agreement Lease M259SA which is within the determination area). 2. The land formerly comprised in the Argyle Downs Pastoral Lease, and the freehold land surrounding the former Argyle Downs homestead (King Location 2) acquired by the Minister of Works under an Agreement for Sale signed on 23 November 1970. 3. Land in Reserves (being lands outside the areas already described in this Schedule). (i) The whole of former Reserve 16729 ('Use and Requirements of the Government of the State'). (ii) The whole of Reserve 34724 ('Preservation of Historic Relics'). (iii) The whole of Reserve 40978 ('Repeater Station Site'). (iv) The whole of Reserve 39016 ('Repeater Station Site'). (v) That part of Reserve 42710 ('Quarantine Checkpoint') on which ablution blocks, a parking lot, power generator, fuel and water tanks, a tourist information shelter, shed and facilities for the Quarantine Checkpoint have been constructed and a reasonable curtilage surrounding those constructions. 4. Land in leases (being lands outside the areas already described in this Schedule). (1) Pastoral leases (a) Those parts of pastoral leases granted in the determination area under the Land Regulations 1882 (WA), the Land Regulations 1887 (WA) and the Land Act 1898 (WA) which were 'enclosed and improved' within the meaning of the reservations in favour of Aboriginal people contained in the said pastoral leases. (b) Those parts of pastoral leases granted in the determination area under the Land Act 1933 (WA) which were or are enclosed or improved within the meaning of s 106(2) of the Land Act 1933. Without limiting the generality of this subparagraph of the determination, it is declared that in land the subject of pastoral leases 3114/640 (Ivanhoe Station), 3114/1176 (Carlton Hill Station), 3114/1001 (Lissadell Station) and 3114/995 (Texas Downs Station) the areas agreed as 'enclosures' in Exhibit 55, Schedules 1A to 1F, are enclosed lands within the meaning of s 106(2). (ii) Other leases The whole of the land in Lease 152/140 (Wallace and Others); The whole of the land in lease 332/1175 (R G Skuthorp) being portion of Reserve 1059; The whole of the land in lease 332/2177 (G & J Harman) being portion of Reserve 1061. (iii) Mining Leases M80/012 in area 95C, 96; M80/014 in area 95C, 96; M80/339 in area 95C, 96 M80/347 in area 5; M80/401 in area 95C, 96 M80/402 in area 96; M80/360 in area 29, 95M M80/079 in area 29, 95M" 4 It has been submitted, and we accept, that there should be a statement added which excepts from this Schedule the Reserves specified in paras 3 and 4 of the draft Determination. 5 On behalf of the first applicants it is submitted that cl 1(viii), above, should be amended by deleting the reference to (the) 1975 (area of land). This is a reference to a resumption for the purposes of the Ord Scheme made in December 1975. The first applicants argue that because it occurred after the commencement of the Racial Discrimination Act 1975 (Cth) ("the RDA"), the resumption was a Category D "past act" as defined in s 232 of the Native Title Act 1993 ("the NTA"), so that the "non-extinguishment principle" will apply. 6 We cannot accept the submission which, in any event, has a substantive aspect that is not appropriate for consideration at this stage of the proceedings. We do, however, note that at p 297 (para 556) of the majority reasons it was observed that the RDA will not apply unless the action in question is "aimed at" native title, or otherwise makes a distinction based on race. The 1975 Packsaddle resumption could not, in our view, be so described. Nor, in our opinion, was the statute authorising the resumption for the Ord Project "a bare legislative extinguishment of native title" (the Native Title Act Case at 418). Moreover, it cannot be said that the resumption process itself amounts to "discrimination against the holders of native title which adversely affects their enjoyment of their title in comparison with the enjoyment of other title holders of their title" (the Native Title Act Case at 418). As Gleeson CJ, Gaudron, Gummow and Hayne JJ said in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 at para 21: "To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory." 7 It is further submitted by the first applicants that mining leases granted after the RDA referred to in cl 4(iii) of the Second Schedule, were "past acts" as defined in s 228 of the NTA and also Category C "past acts" as defined by s 231 of the NTA, and, by virtue of ss 15 and 19 of the NTA, the "non-extinguishment principle" will apply. Again, in our view, the submission cannot be accepted, in the absence of any racial discrimination in the mining legislation, or in the grant of the mining leases themselves. 8 The first applicants also submit that mining leases issued following the commencement of the NTA are "category C intermediate period acts" or "future acts" as defined in ss 232D and 233, and subject to the "non-extinguishment principle" by virtue of ss 22B and 22F of the NTA, or the future act regime. Since we have held, at paras 526 and 541, that native title rights in minerals and petroleum were otherwise extinguished before the commencement of the NTA, it is difficult to see the practical import of the submission. We do not think it is necessary to deal with it, given its hypothetical character. 9 An attempt was made on behalf of the third applicants to invoke s 44H of the NTA at this stage in respect of the pastoral leases mentioned in cl 4, above. In our view, it is too late to do so but in any event it seems that s 44H could have no practical application here. The purpose of s 44H, inserted in late 1998, is to avoid doubts that might arise by reason of the carrying on of certain activities on leased land. The primary Judge's judgment was given in November 1998. The point is, for our purposes, academic. 10 With respect to cl 3(v), above, it is accepted that, in accordance with the majority opinion, the qualifying words "on which (etc.)" should be omitted. 11 With respect to cl 4(ii), the Court accepts the parties' submission that the numbers of the Wallace and Harman leases, as in the draft Schedule, should be changed. 12 It is submitted, and we also accept that the following leases should be added to the list: "The whole of the land in lease 152/745 (Ah Kim); The whole of the land in lease 152/836 (Favell); The whole of the land in 152/570 (Ah Ying) being portion of Reserve 1600;" 13 The first applicant opposed this amendment on the ground that these three leases should be treated as similar to the McCrann lease dealt with in the majority judgment at 309 (para 613) where it was held that the special lease did not extinguish native title. However there was no prescribed form for the McCrann lease, and the only evidence about the use of the land suggested McCrann ran pigs which was not one of the purposes for which a lease under reg 114 of the Land Regulations 1887 could be granted by the Governor in Council. The above three leases however were issued under the Land Act 1898 and there is in our opinion no reason to distinguish those grounds from the lease of Wallace & Others dealt with at p 309 (para 614). 14 On behalf of Argyle it is submitted that an additional paragraph should be added to the Second Schedule so as to refer to the "land comprising minerals as defined in the [mining legislation]". We are not persuaded that it is necessary or appropriate to seek to divide land in this way. We decline to make the addition proposed. Draft Paragraph 2 "2. Native title existing in the determination area is held by the Miriuwung and Gajerrong People, and in respect of that part of the determination area known as Booroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title." 15 It was submitted by counsel instructed by the Kimberley Land Council that reference should also be made here to other peoples who may be identified by language group labels, viz. "Gija", "Malngin", "Doolboong", "Wardenybeng" and "Goolawarreng". Having regard to our reasons, we are not persuaded that this course is necessary or appropriate. In particular, we held that native title had been wholly extinguished in the areas in which the Gija and Malngin communities asserted native title: see pp 229-230 (para 279) and pp 273-274 (para 443). Draft Paragraph 3 "3. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in: The whole of the land in the Glen Hill pastoral lease; The whole of Reserve 40260; Booroongoong (Lacrosse Island); Kanggurryu (Rocky Island); The north-west extremity of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Donnet, being the mainland lying outside the limits of the former Carlton Hill Station pastoral lease 3114/1058; The whole of NT portion 3541 (Policemans Hole); The whole of NT portion 3542 (Bucket Springs), and The whole of NT portion 3863 (Bubble Bubble) are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area." We accept that para 3 above should refer to "Cape Domett" and that the description of the relevant pastoral leases should read: "… the following former leases 3114/1058, 396/508 and 2163/98." 16 On behalf of the first applicants it is submitted that there should be added to this description of the north west extremity the words – "and extending eastward to the Northern Territory border known as 'tidal mud flats'." Having regard to our reasons, we cannot accept that such addition would serve any necessary purpose. Draft Paragraph 4 "4. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in Reserves 26600, 31221, 40536 and 41401, each for "Use and Benefit of Aboriginal Inhabitants", Reserve 31504 for "Arts and Historical — Aborigines" and Reserve 32446 "Native Paintings", being reserves within the Ord Project area to which s 47A of the Native Title Act 1993 (Cth) applies, are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area, save that their entitlement does not affect the public works comprising the Ord Project." 17 The first applicants submit that the qualification at the end of this paragraph – "save that (etc.)" should be omitted. We cannot accept the submission, which is contrary to the reasoning of the majority opinion at p 276 (paras 450 – 452): the natural gradients of these Reserves are, as the State has submitted, part and parcel of the drainage of the Ord Irrigation Project and, by virtue of s 47A, the use of the Reserves by the applicants under the Determination is not intended to interfere with these public works. Draft Paragraph 5 "5. Subject to paragraphs 7, 8, 9 and 10 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows: (a) a right to possess, occupy, use and enjoy the land; (b) a right to make decisions about the use and enjoyment of the land; (c) a right of access to the land; (d) a right to use and enjoy the traditional resources of the land; (e) a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area." 18 On behalf of the State it is contended that the verb "possess" should be omitted from sub-para (a). We do not agree. Again, the contention has a substantive dimension which is neither necessary nor appropriate to consider at this stage of the proceeding. In any event, it is clear that possession may be exclusive or non-exclusive. 19 The State further contends for the omission of sub-paras (b), (c), (d) and (e) above as also ambiguous. We cannot accept the submission. 20 On behalf of the State it is also submitted that two additional sub-paragraphs be added here (see for the details the composite document "MFI 1" at p 5 – 3, sub-paras (e) and (f)). The first suggestion, essentially a matter of drafting, we think is not necessary. But the second ((f)) does in our view have merit as reflecting the majority's reasoning, although we propose to add it to para 7 as a more appropriate location (see below). Draft Paragraph 6 "6. The nature and extent of other interests in relation to the determination area are the interests created by the Crown as set out in the Third Schedule." 21 It is submitted, and we agree, that it should be made clear that interests created otherwise than by the Crown are picked up. Accordingly, after the words "the Crown" we will add the words "or created otherwise,". Draft Third Schedule 22 The draft Third Schedule is as follows: "THIRD SCHEDULE Other interests in the determination area are of the following kind: (a) Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or Land Act 1933 (WA) or under a lease made for the purpose of the reserve. (b) Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease made for the purpose of the reserve. (c) Interests of lessees under: (i) Leases granted under the Land Act 1933 (WA); (ii) Leases granted under the Crown Lands Act 1978 (NT); (iii) Leases granted under the Special Purposes Leases Act 1953 (NT); (iv) Leases granted under the Mining Act 1978 (WA); (v) Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth). (d) Interests of licensees under: (i) Licences issued under the Land Act 1933 (WA); (ii) Licences issued under the Fish Resources Management Act 1994 (WA); (iii) Licences issued under the Jetties Act 1926 (WA); (iv) Licences issued under the Mining Act 1978 (WA); (v) Licences issued under the Wildlife Conservation Act 1950 (WA); (vi) Licences issued under the Rights in Water and Irrigation Act 1914 (WA); (vii) Licences issued under the Transport Co-ordination Act 1966 (WA); (e) Interests of holders of permits issued under: (i) The Land Act 1933 (WA); (ii) The Ord Irrigation District By-Laws under the Rights in Water and Irrigation Act 1914 (WA); (f) Interests of holders of tenements under the Mining Act 1904 (WA). (g) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA). (h) Interests of grantees under the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT) and the Crown Lands Act 1978 (NT). (i) Other interests obtained by reason of provisions of legislation of the State, Territory or Commonwealth. (j) Other interests held by members of the public arising under the common law." 23 The State submits, and we agree, that the words "made for the purpose" should be omitted from sub-paras (a) and (b), above. 24 On behalf of the Territory (second) applicants it is submitted, and we agree, that the reference to the Territory legislation in sub-para (h) should be to s 46(1A) of the Lands Acquisition Act (NT); and that sub-para (i) should be omitted. 25 Although some contentions to the contrary were advanced, we think that sub-para (j) is both necessary and appropriate. Draft Paragraph 7 "7. There is no native title right or interest in minerals and petroleum in the State as defined in the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA), or in the Territory as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT)." 26 The State submits and we agree that, for completeness, reference should also be made to the 1904 Mining Act and to the 1936 Petroleum Act. 27 Earlier, we referred to a proposal by the State to add a sub-para (f) to para 5 as follows: "(f) in all nature reserves or wildlife sanctuaries created in Western Australia in the determination before the Racial Discrimination Act 1975 (Cth) came into operation, native title to take fauna has been wholly extinguished." 28 As mentioned, this accords with the majority reasoning and should be added to para 7. Draft Paragraph 8 "8. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights." 29 The Territory contends that the words "must yield" should be omitted, and instead reference be made to "extinguishment to the extent of any inconsistency". However, when the words we use are read in the context of our reasons, we see no reason for any amendment. Draft Paragraph 9 "9. The native title rights and interests referred to in paragraph 5 hereof do not confer on the common law holders possession, occupation, use and enjoyment of land and waters to the exclusion of all others." 30 The State proposes, and we agree with, the following drafting amendment: "9. The native title rights and interests referred to in paragraph 5 hereof are not exclusive of the rights and interests of others." Draft Paragraph 10 "10. The native title rights and interests described in paragraphs 3, 4 and 5 are subject to regulation, control, curtailment or restriction by valid laws of Australia." 31 Although the Territory applicants submitted otherwise, we see no need to remove this provision. Draft Paragraph 11 "11. Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by the common law holders." 32 The first applicants submit, and we agree, that this provision should be varied. It will read as follows: "11 (a) Declare that the rights and interests from time to time comprising the native title area are held by the common law holders. (b) Direct that, within 3 months of the date of this determination, a representative of the common law holders nominate in writing to the Federal Court a prescribed body corporate to perform the functions mentioned in s 57(3) of the NTA. Reserve liberty to apply to a single Judge of the Court in that connection." 33 The first applicants further proposed that an explicit reference be made to the retrospective operation of the determination (i.e. back to the date of the determination made by the primary Judge on 24 November 1998), but we think that this is already clear. COSTS OF THE ISSUES ARISING ON THE FORM OF THE DETERMINATION 34 Since each side of the record has experienced some measure of success in this connection, there should be no order for the costs of the present issues. ORDERS 35 The Court orders that: 1. A determination of native title be made in the terms of the instrument annexed. 2. There be no order for the costs of the issues arising on the form of the determination. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 11 May 2000 DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: 1. Native title exists in the "determination area" save for the areas of land or waters described in the Second Schedule. The determination area is that part of the land or waters within the area depicted by red outline on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the National Native Title Tribunal referred to the Court by the Tribunal. 2. Native title existing in the determination area is held by the Miriuwung and Gajerrong People, and in respect of that part of the determination area known as Booroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title. 3. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in: The whole of the land in the Glen Hill pastoral lease; The whole of Reserve 40260; Booroongoong (Lacrosse Island); Kanggurryu (Rocky Island); The north-west extremity of the mainland portion of the determination area encompassing Shakespeare Hill and Cape Domett, being the mainland lying outside the limits of the following former leases 3114/1058, 396/508 and 2163/98; The whole of NT portion 3541 (Policemans Hole); The whole of NT portion 3542 (Bucket Springs), and The whole of NT portion 3863 (Bubble Bubble) are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area. 4. Subject to paragraph 7 hereof the nature and extent of the native title rights and interests in Reserves 26600, 31221, 40536 and 41401, each for "Use and Benefit of Aboriginal Inhabitants", Reserve 31504 for "Arts and Historical — Aborigines" and Reserve 32446 "Native Paintings", being reserves within the Ord Project area to which s 47A of the Native Title Act 1993 (Cth) ("NTA") applies, are an entitlement as against the whole world to possession, occupation, use and enjoyment of these parts of the determination area, save that their entitlement does not affect the public works comprising the Ord Project. 5. Subject to paragraphs 7, 8, 9 and 10 hereof the nature and extent of the native title rights and interests existing in the balance of the determination area are as follows: (a) a right to possess, occupy, use and enjoy the land; (b) a right to make decisions about the use and enjoyment of the land; (c) a right of access to the land; (d) a right to use and enjoy the traditional resources of the land; (e) a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area. 6. The nature and extent of other interests in relation to the determination area are the interests created by the Crown or created otherwise, as set out in the Third Schedule. 7. There is no native title right or interest in minerals and petroleum in the State as defined in the Mining Act 1904 (WA),the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA), or in the Territory as defined in the Minerals (Acquisition) Act (NT) and the Petroleum Act 1984 (NT). In all nature reserves or wildlife sanctuaries created in Western Australia in the determination area before the Racial Discrimination Act 1975 (Cth) came into operation, native title to take fauna has been wholly extinguished. 8. To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph 5 hereof and the rights conferred by other interests referred to in paragraph 6 hereof the native title rights and interests must yield to such other rights. 9. The native title rights and interests referred to in paragraph 5 hereof are not exclusive of the rights and interests of others. 10. The native title rights and interests described in paragraphs 3, 4 and 5 are subject to regulation, control, curtailment or restriction by valid laws of Australia. 11 (a) Declare that the rights and interests from time to time comprising the native title area are held by the common law holders. (b) Direct that, within 3 months of the date of this determination, a representative of the common law holders nominate in writing to the Federal Court a prescribed body corporate to perform the functions mentioned in s 57(3) of the NTA. Reserve liberty to apply to a single Judge of the Court in that connection. FIRST SCHEDULE SECOND SCHEDULE Native title has been wholly extinguished in the following parts of the determination area (with the exception of the Reserves specified in paras 3 and 4 of the Determination): 1. All the land identified in Exhibits 21A and 21B as: (i) Diversion Dam and Works Area (1960); (ii) First Farm Area (1960); (iii) Second Farm Area (1961); (iv) Kununurra Townsite (1961) except for the area now comprised in Reserve 37883 - Mirima (Hidden Valley) National Park; (v) Third Farm Area (1960-1962); (vi) Kimberley Research Station Extension (1963); (vii) Fourth Farm Area and Levy Bank (1967); (viii) Packsaddle Farm Area (1972 and 1975); (ix) The lands resumed from the Lissadell and Texas Downs Pastoral Leases in 1972, which now comprise part of Reserve 31165 (and include that part of Special Agreement Lease M259SA which is within the determination area). 2. The land formerly comprised in the Argyle Downs Pastoral Lease, and the freehold land surrounding the former Argyle Downs homestead (King Location 2) acquired by the Minister of Works under an Agreement for Sale signed on 23 November 1970. 3. Land in Reserves (being lands outside the areas already described in this Schedule). (i) The whole of former Reserve 16729 ("Use and Requirements of the Government of the State"). (ii) The whole of Reserve 34724 ("Preservation of Historic Relics"). (iii) The whole of Reserve 40978 ("Repeater Station Site"). (iv) The whole of Reserve 39016 ("Repeater Station Site"). (v) That part of Reserve 42710 ("Quarantine Checkpoint). 4. Land in leases (being lands outside the areas already described in this Schedule). (i) Pastoral leases (a) Those parts of pastoral leases granted in the determination area under the Land Regulations 1882 (WA), the Land Regulations 1887 (WA) and the Land Act 1898 (WA) which were "enclosed and improved" within the meaning of the reservations in favour of Aboriginal people contained in the said pastoral leases. (b) Those parts of pastoral leases granted in the determination area under the Land Act 1933 (WA) which were or are enclosed or improved within the meaning of s 106(2) of the Land Act 1933. Without limiting the generality of this subparagraph of the determination, it is declared that in land the subject of pastoral leases 3114/640 (Ivanhoe Station), 3114/1176 (Carlton Hill Station), 3114/1001 (Lissadell Station) and 3114/995 (Texas Downs Station) the areas agreed as "enclosures" in Exhibit 55, Schedules 1A to 1F, are enclosed lands within the meaning of s 106(2). (ii) Other leases The whole of the land in Lease 152/420 (Wallace and Others); The whole of the land in lease 332/1175 (R G Skuthorp) being portion of Reserve 1059; The whole of the land in lease 332/2141 (G & J Harman) being portion of Reserve 1061. The whole of the land in lease 152/745 (Ah Kim); The whole of the land in lease 152/836 (Favell); The whole of the land in 152/570 (Ah Ying) being portion of Reserve 1600. (iii) Mining Leases M80/012 in area 95C, 96; M80/014 in area 95C, 96; M80/339 in area 95C, 96 M80/347 in area 5; M80/401 in area 95C, 96 M80/402 in area 96; M80/360 in area 29, 95M M80/079 in area 29, 95M THIRD SCHEDULE Other interests in the determination area are of the following kind: (a) Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or Land Act 1933 (WA) or under a lease of the reserve. (b) Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease of the reserve. (c) Interests of lessees under: (i) Leases granted under the Land Act 1933 (WA); (ii) Leases granted under the Crown Lands Act 1978 (NT); (iii) Leases granted under the Special Purposes Leases Act 1953 (NT); (iv) Leases granted under the Mining Act 1978 (WA); (v) Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth). (d) Interests of licensees under: (i) Licences issued under the Land Act 1933 (WA); (ii) Licences issued under the Fish Resources Management Act 1994 (WA); (iii) Licences issued under the Jetties Act 1926 (WA); (iv) Licences issued under the Mining Act 1978 (WA); (v) Licences issued under the Wildlife Conservation Act 1950 (WA); (vi) Licences issued under the Rights in Water and Irrigation Act 1914 (WA); (vii) Licences issued under the Transport Co-ordination Act 1966 (WA); (e) Interests of holders of permits issued under: (i) The Land Act 1933 (WA); (ii) The Ord Irrigation District By-Laws under the Rights in Water and Irrigation Act 1914 (WA); (f) Interests of holders of tenements under the Mining Act 1904 (WA). (g) Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA). (h) Interests of grantees under s 46(1A) of the Lands Acquisition Act 1979 (NT). (i) Other interests held by members of the public arising under the common law. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. WG 6293 of 1998 BETWEEN: THE STATE OF WESTERN AUSTRALIA & ORS Appellants AND: BEN WARD & ORS Respondents No. WG 6292 of 1998 BETWEEN: CROSSWALK & ANOR Appellants AND: BEN WARD & ORS Respondents No. WG 6294 of 1998 BETWEEN: ALLIGATOR AIRWAYS PTY LTD & ORS Appellants AND: BEN WARD & ORS Respondents No. 6295 of 1998 BETWEEN: ARGYLE DIAMOND MINES PTY LTD & ANOR Appellants AND: BEN WARD & ORS Respondents No. WG 6296 of 1998 BETWEEN: THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY Appellant AND: BEN WARD & ORS Respondents No. W73 of 1999 BETWEEN: CECIL NINGARMARA & ORS Appellants AND: THE NORTHERN TERRITORY OF AUSTRALIA & ORS Respondent JUDGES: BEAUMONT, VON DOUSSA & NORTH JJ DATE: 11 MAY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT (NO 2) (ON FORM OF DETERMINATION) NORTH J: 36 The reasons for judgment (No 2) in these appeals relate to the terms of the determination and flow from the reasons for judgment of the majority (Beaumont and von Doussa JJ). Insofar as the reasons for judgment (No 2) relate to those aspects of my judgment in which I agreed with the reasons for decision of the majority, I have nothing to add to the reasons for judgment (No 2). I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 11 May 2000 Counsel for the appellants and cross respondents in WG 6293 and the 2nd respondent in W 6020 : Mr K M Pettit Solicitors for the appellants and cross respondents in WG 6293 and the 2nd respondent in W 6020 : Crown Solicitor's Office Counsel for the 1st respondents in WG 6293, WG 6292, WG 6294, WG 6295 and WG 6296 : Ms A M Sheehan Solicitors for the 1st respondents in WG 6293, WG 6292, WG 6294, WG 6295 and WG 6296 : Aboriginal Legal Service of Western Australia Counsel for the 2nd respondents in WG 6293, WG 6292, WG 6294, WG 6295, WG 6296 and appellants in W 6020 : Mr S Beckett Solicitor for the 2nd respondents in WG 6293, WG 6292, WG 6294, WG 6295, WG 6296 and appellants in W 6020 : Principal Legal Officer Northern Land Council Counsel for the 3rd respondents and cross appellants in WG 6293 and the 3rd respondents in WG 6295 and WG 6296 : Mr G M G McIntyre Solicitor for the 3rd respondents and cross appellants in WG 6293 and the 3rd respondents in WG 6295 and WG 6296 : Principal Legal Officer Kimberley Land Council Solicitors for the intervener in WG 6293 and WG 6296 : Australian Government Solicitor Counsel for the appellants in WG 6292 : Mr M T McKenna Solicitors for the appellants in WG 6292 : Hunt & Humphry Counsel for the appellants in WG 6294 : Mr P L Wittkuhn Solicitors for the appellants in WG 6294 : McLeod & Co. Counsel for the appellants in WG 6295 : Mr K R Jagger Solicitors for the appellants in WG 6295 : Freehill Hollingdale & Page Solicitors for the appellants in WG 6296 and the 1st respondents in W 6020 : Solicitor for the Northern Territory Dates of hearing : 11 April 2000 Place of hearing : Perth Date of judgment : 11 May 2000