FEDERAL COURT OF AUSTRALIA Daniel v State of Western Australia [2004] FCA 849 NATIVE TITLE – determination - formulation of determination – whether separate and overlapping determinations – whether more than one prescribed body corporate permissible – how native title holders to be described – miscellaneous other issues Acts Interpretation Act 1901 (Cth) s 23(b) Native Title Act 1993 (Cth) ss 13, 13(1), 23B, 23I, 29(2), 47A, 47B, 55, 56, 56(2), 56(2)(a), 56(2)(b), 56(2)(c), 57, 57(2), 57(2)(a), 57(2)(b), 57(2)(c), 61, 61A, 61A(1), 61A(2), 61A(3), 67, 68, 68(a), 94A, 189A(2), 190(4)(d), 223, 225, 225(a), 225(b), 225(c), 225(d), 225(e) Native Title (Prescribed Bodies Corporate) Regulations, reg 4(2)(c), 5 Australasian Meat Industry Employees Union, Re; Ex parte Ferguson (1986) 67 ALR 491 applied Daniel v State of Western Australia [2003] FCA 1425 considered Daniel v State of Western Australia [2003] FCA 666 considered Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 cited Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12 cited James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 applied Kaurareg People v State of Queensland [2001] FCA 657 considered Mabo v Queensland (No 2) (1992) 175 CLR 1 considered Mabuiag People v State of Queensland [2000] FCA 1065 considered Masig People v State of Queensland [2000] FCA 1067 considered Nangkiriny v State of Western Australia (2002) 117 FCR 6 considered Ngalpil v State of Western Australia [2001] FCA 1140 considered Poruma People v State of Queensland [2000] FCA 1066 considered Smith v State of Western Australia (2000) 104 FCR 494 considered State of Western Australia v Ward [2000] FCA 611 considered Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 applied Western Australia v Ward (2002) 191 ALR 1 considered Wik Peoples v State of Queensland [2000] FCA 1443 considered DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE & MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE and HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE and DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 R D NICHOLSON J 2 JULY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 BETWEEN: DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE FIRST APPLICANTS AND: VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE SECOND APPLICANTS AND: BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS THIRD APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM FIRST RESPONDENTS AND: COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY RESPONDENTS 2A AND: TELSTRA CORPORATION LIMITED THIRD RESPONDENTS (FORMER RESPONDENTS 2B) AND: SHIRE OF ROEBOURNE FOURTH RESPONDENTS AND: P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL FIFTH RESPONDENTS AND: BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD SIXTH RESPONDENTS AND CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD EIGHTH RESPONDENTS AND: DAMPIER SALT LTD NINTH RESPONDENT AND: DAMPIER SALT LTD NINTH RESPONDENT AND: HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD TENTH RESPONDENTS AND: NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD ELEVENTH RESPONDENTS AND: MINERALOGY PTY LTD RESPONDENT 12A AND: BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP RESPONDENTS 12B AND: ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL THIRTEENTH RESPONDENTS AND: RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O'CONNOR, J & P ROCCA AND JAMES EDWARD TELFER RESPONDENTS 14A AND: MG CREASY RESPONDENT 14B AND: RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS RESPONDENTS 14C AND: GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O'BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc) FIFTEENTH RESPONDENTS AND: COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER SEVENTEENTH RESPONDENTS AND: YATHALLA ABORIGINAL CORP EIGHTEENTH RESPONDENT AND: MINGULLATHARNDO ASSOCIATION INC NINETEENTH RESPONDENT AND: HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES RESPONDENTS 19B AND: TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE RESPONDENTS 19D AND: GEOFFREY & MICHAEL TOZER TWENTIETH RESPONDENTS AND: GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER TWENTY-FIRST RESPONDENTS AND: AUSI IRON NL TWENTY-THIRD RESPONDENTS JUDGE: RD NICHOLSON J DATE OF ORDER: 2 JULY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Within 14 days of the publication of these reasons any party contending any further issues raised by the submissions on the form of the determination remain for decision is to give notice to the Court identifying any such issue or issues. 2. In relation to finalisation of issue (u) addressed in the reasons published on this date the first respondents, the eleventh respondents and the first applicants are to submit within 14 days a formulation of directions designed to bring the resolution of that issue to finality. 3(a). Within a time to be determined, the Ngarluma first applicants nominate in writing whether a prescribed body corporate is to be the trustee of the non-exclusive native title, and, if so, file and serve the written consent of that body to do so, failing which it will be determined that native title is held by the common law holders. (b). For the purposes of par 3(a), within 21 days the Ngarluma first applicants file and serve submissions on the time they request to nominate a body corporate. (c). Within a further 21 days other parties file and serve any submissions in reply. 4. Subject to orders 1 and 2 above, the parties are directed to settle a revised draft of the determination in accordance with these reasons as soon as practicable and not later than 12 August 2004. 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 WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 BETWEEN: DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE FIRST APPLICANTS AND: VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE SECOND APPLICANTS AND: BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS THIRD APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM FIRST RESPONDENTS AND: COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY RESPONDENTS 2A AND: TELSTRA CORPORATION LIMITED THIRD RESPONDENTS (FORMER RESPONDENTS 2B) AND: SHIRE OF ROEBOURNE FOURTH RESPONDENTS AND: P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL FIFTH RESPONDENTS AND: BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD SIXTH RESPONDENTS AND CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD EIGHTH RESPONDENTS AND: DAMPIER SALT LTD NINTH RESPONDENT AND: DAMPIER SALT LTD NINTH RESPONDENT AND: HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD TENTH RESPONDENTS AND: NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD ELEVENTH RESPONDENTS AND: MINERALOGY PTY LTD RESPONDENT 12A AND: BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP RESPONDENTS 12B AND: ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL THIRTEENTH RESPONDENTS AND: RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O'CONNOR, J & P ROCCA AND JAMES EDWARD TELFER RESPONDENTS 14A AND: MG CREASY RESPONDENT 14B AND: RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS RESPONDENTS 14C AND: GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O'BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc) FIFTEENTH RESPONDENTS AND: COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER SEVENTEENTH RESPONDENTS AND: YATHALLA ABORIGINAL CORP EIGHTEENTH RESPONDENT AND: MINGULLATHARNDO ASSOCIATION INC NINETEENTH RESPONDENT AND: HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES RESPONDENTS 19B AND: TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE RESPONDENTS 19D AND: GEOFFREY & MICHAEL TOZER TWENTIETH RESPONDENTS AND: GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER TWENTY-FIRST RESPONDENTS AND: AUSI IRON NL TWENTY-THIRD RESPONDENTS JUDGE: RD NICHOLSON J DATE OF ORDER: 2 JULY 2004 WHERE MADE: PERTH REASONS FOR JUDGMENT 1 These reasons address matters arising as a consequence of written submissions directed to settling the form of the determination in the proceeding. The reasons address the issues listed in par 6 of the first respondents' written submissions in reply filed 23 April 2004. 2 It is understood from the submissions that no other issues remain unresolved but if the position is otherwise any party contending to the contrary should file with the Court a notice identifying any issue said to remain in contention. Such notice is to be filed within 14 days of publication of these reasons. ISSUES NOT OPEN FOR FURTHER SUBMISSION 3 I agree with the submissions for the first respondents that issues (i), (l), (m), (o) and (t) are not open for further submission. Those issues addressed: (i) Should the rights be subject to internal geographical limitations? (l) What rights exist in the inter-tidal zone? (m) what rights exist in offshore islands? (o) Is there a right to control access in the s 47A and s 47B Native Title Act areas? (t) Have certain pastoral leases wholly extinguished native title? Accordingly the Court will not consider the further submissions addressed to those issues. This follows from the reasons for decision in Daniel v State of Western Australia [2003] FCA 666 ('July reasons') at [535] and in Daniel v State of Western Australia [2003] FCA 1425 ('December reasons') at [2]. ISSUE (a) – CAN THE COURT MAKE SEPARATE AND OVERLAPPING DETERMINATIONS, OR DETERMINE SEPARATE PRESCRIBED BODIES CORPORATE FOR NGARLUMA AND YINDJIBARNDI? WHETHER NATIVE TITLE HELD SEVERALLY BY TWO GROUPS 4 In the draft determination attached to the July reasons it was proposed, as being consistent with the reasons, that the determination should provide as follows: '8. Non-exclusive native title rights and interests exist in relation to the Determination Area and are held by the Ngarluma and Yindjibarndi peoples as the common law holders of the native title rights and interests as follows: (a) Native title held by Ngarluma peoples is held in relation to the Ngarluma claim area (excluding the area of the sea beyond low water mark) or such lesser portion as may be referred to below in respect of any particular right and interest; (b) Native title held by Yindjibarndi peoples is held in relation to the Yindjibarndi claim area or such lesser portion as may be referred to below in respect of any particular right and interest.' The first respondents submit that, in respect of the overlap area, the preferable conclusion on the Court's reasoning is that two distinct native titles are held severally by the two groups rather than one native title held collectively by the two groups. 5 To consider this aspect it is necessary first to turn to the relevant provisions in the NTA. Section 94A of the NTA requires a determination to set out the details of the matters mentioned in s 225. Section 225 provides that a determination of native title 'is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters'. It further provides that if it does exist there has to be a determination of, among other things, 'who the persons, or each group of persons, holding the common or group rights comprising the native title are'. This supports the view that there should be a determination in relation to the determination area, which will include within it a determination of who holds common or group rights. There are thus two levels of determination: the principal determination being a determination of whether native title exists in relation to the particular area, and the subsidiary determinations being a determination of the matters set out in pars (a) – (e) of s 225. Where different groups are found to hold different native titles, necessarily there is a requirement for more than one subsidiary determination. Those paragraphs require determination of who holds native title and the nature and extent of the native title rights and interests. This statutory language accommodates variations in entitlement to rights between applicants and groups of applicants. 6 This is supported by reference to s 61 which provides that persons who may make application for native title are authorised persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Therefore, the application is directed to 'the particular native title claimed' even though not all the claimants claim the same rights. As the July reasons state at [60], the first applicants initially brought a claim that there was a single composite community known as the Ngarluma and Yindjibarndi peoples but subsequently abandoned that claim in favour of one that there were two groups, namely, the Ngarluma peoples and Yindjibarndi peoples holding rights comprising native title rights. The findings in the July reasons accepted that position subject to exclusions and issues of extinguishment and any other qualifications set out in the text of each finding. 7 A plain reading of ss 61, 223 and 225 supports the view that the determination should be approached on the basis that the Court should make a single principal determination in which subsidiary determinations are made on the issues raised in pars (a) – (e) of s 225. That approach may, in appropriate evidentiary circumstances, lead to a finding that different persons or groups of persons hold common or group rights comprising the native title. The statute requires the subsidiary determinations to be made in relation to each group: the focus is to be on the holder group rather than a geographical area (such as an overlap area). Importantly s 225 directs attention, in respect of a particular determination area, to who holds native title and to the nature and extent of the rights and interests so held. Looked at from the perspective of each group, the fact of overlap in a geographical area is relevant only to the extent of rights of each group and does not support the making of a determination in respect of a so-called overlap area of a determination of one native title held by two groups. WHETHER TWO DETERMINATIONS IN RESPECT OF TWO DETERMINATION AREAS 8 As has been already stated, that, however, does not mean that there should be two principal determinations. What the Court is required by s 225 is to make 'a determination of native title'. That determination is required in subsidiary determinations to identify the persons or group of persons holding common or group rights comprising the native title. Each subsidiary determination may vary as to its terms depending on the findings of fact concerning the native title rights and interests held by each claimant group. Nevertheless, there will still be one principal determination in respect of the determination area. 9 This view is supported by the use of the description 'the determination area' as it appears in s 225(b) and s 225(c). That description is a reference to the particular area of land and waters in relation to which the claim was made and a determination is required; it does not require a focus only on the area where any native title is found to exist. Furthermore, the underlying rationale of ss 13, 67 and 68 of the NTA is that the issue of whether native title exists in any particular area is to be determined once only in respect of a determination area (i.e. in the one proceedings; subject to any revision application or appeal). For that reason the principal determination must relate to the determination area. Variations in native title holding by groups within the area are matters to be addressed in subsidiary determinations. whether only one pbc for a determination 10 The submissions of the parties present the Court with the following options: (a) one determination and one PBC; (b) two overlapping determinations each with its own PBC; (c) three determinations (one for Ngarluma, one for Yindjibarndi and one for the overlap area) with two PBCs (one for Ngarluma and one for Yindjibarndi, with both PBCs for the overlap determination); (d) three determinations (one for Ngarluma, one for Yindjibarndi and one for the overlap area) with three PBCs. 11 Submissions supporting option (a) are found in the submissions for the Commonwealth and the fifth respondent. Submissions supporting option (b) are found in the submissions for the first respondents and first applicants. Submissions supporting option (c) are found in alternative submissions for the first applicants and with the qualification that it is 'an unnecessary complication'. Option (d) is favoured in the submissions for the fifth respondent (pastoral interests) and the Commonwealth. Relevant statutory provisions 12 Section 55 of the NTA provides that at the same time as making a determination, the Court must make the determination provided for in s 56 and s 57. The former requires a determination of whether the native title is to be held in trust and, if so, by whom. The latter specifies the authorised functions of a PBC in particular circumstances. 13 Section 56 relevantly reads: '56 (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) …' 14 Section 57 provides: '57 (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).' 15 In addition, reg 4(2)(c) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 ('the PBC regulations') provides that at all time after a determination is made, the membership of the PBC must comprise only persons who have native title rights and interests in the land or waters to which the native title determination relates. Regulation 5 provides that a PBC may be a trustee or agent for more than one group of common law holders in relation to a native title determination if the determination applies to each group. One PBC 16 The case for the Commonwealth relies on the requirement in s 56(2)(a) whereby the Court is required to request 'a representative of the persons it proposes to include in the determination of native title as the native title holders' to indicate whether the common law holders intend to have the native title held in trust by nominating a prescribed body corporate. A similar provision appears in s 57(2)(a). It is submitted that these provisions contemplate the representative coming from those persons referred to in s 225(a), that is all the common law holders. It is further submitted that once a PBC is nominated by a representative of the common law owners, there is no scope for another PBC to hold the same native title rights and interests in the particular area. The Commonwealth also refers to s 29(2) and s 68 in support. 17 The fifth respondents' submissions refer to the possibility that there could be a Ngarluma determination and a Yindjibarndi determination made at different times. However that cannot be the case where, as held above, the NTA provides there can only be one principal determination in relation to the claim area addressing all the issues in s 225. The submissions for the fifth respondents contend that even if both determinations take place at the one time, there remains the prospect of one or both being later revoked (s 13(1)) or appealed successfully. That, however, would be limited by the fact there is only one principal determination even though it includes two subsidiary determinations. As I read s 225, both the principal determination and all subsidiary determinations must be made at the same time. 18 Submissions for the fifth respondents also point to the possibility of difficulties in managing two bodies corporate each of which will have functions and powers over the same area of land, namely, the overlap area. Strictly, each PBC would have functions and powers in relation to the native title by different groups in relation to some portion of the determination area. So expressed, the possibility of management difficulties may be seen to be minimised because the focus of management is not upon the same piece of land but upon the native title rights of different groups of common law holders in that area. So far as the exercise of the rights of each group may require management as between two or more PBCs in a particular portion of the determination area, there is no a priori reason why the existence of multiple bodies would make that less attainable than as between the members of the two or more groups as members of the same PBC. Two PBCs 19 For the first respondents it is submitted that in a case where the Court finds there are two distinct groups each holding its own native title, the Court is obliged under s 56(2) to request each group of common law holders to nominate a PBC. For the first applicants it is submitted there is nothing in either s 56 or s 57 to prevent two or more PBCs being nominated for the same area if they each represent a different group of common law native title holders. At a practical level, it is submitted that the existence of one PBC for the interests of different groups could give rise to management difficulties and that reg 5 of the PBC regulations is in any event permissive and not mandatory. Three determinations, two or three PBCs 20 There is no foundation for making more than one principal determination. Furthermore there is no basis in the evidence to make a determination of the existence of native title rights in relation to more than the two successful claimant groups. Therefore there is no foundation for three PBCs. Reasoning 21 Turning 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). 22 I 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. 23 I therefore agree with the submissions for the first applicants and the first respondents that there is nothing in the statutory provisions to inhibit nomination of more than one PBC in respect of native title rights in the determination area where that is supported by and follows from the findings of fact made with respect to the holding of such rights in that area by different groups and accords with the intention of each of them. In my opinion this follows from the provisions so that no ambiguity arises. If that is not the case and regard is had to the expression of ministerial view in the second reading speech relevant to these provisions that there can be only one PBC for any one principal determination, that cannot occasion me to reach a contrary view to that which I consider is open from the provisions themselves. Regulation 5 of the PBC regulations is no inhibition to this view because it is permissive. In any event, it must yield to a proper understanding and application of the NTA. However, it would permit the nomination of the same PBC by each of the groups of common law holders referred to in the principal determination. I do not consider it necessitates that such should be the case. ISSUE (b) – DOES THE Yindjibarndi DETERMINATION INCLUDE THE NGURIN? 24 For the first applicants it is submitted that the overlap area in which the Yindjibarndi people hold native title rights and interests along with the Ngarluma people should be defined to include the area around the Ngurin (the Harding River) in addition to the area proposed by the first respondents. The third applicants support this view. 25 For the first respondents it is contended it is unnecessary for the Court to find whether there ever was Yindjibarndi native title in the Ngurin because any native title in Ngurin has been extinguished. 26 Consistently with earlier reasoning above concerning the requirements of s 225 and the following response to issue (c), I consider that as principal determination claim area includes the Ngurin, the subsidiary determination in respect of the Yindjibarndi claimants should include the Ngurin. The subsidiary determination in accordance with ss 225(b) – (e) will also record the extent of extinguishment. ISSUE (c) – ARE THE Ngarluma TOTAL EXTINGUISHMENT AREA AND THE Yindjibarndi TOTAL EXTINGUISHMENT AREA TO BE INCLUDED IN THE DETERMINATIONS? 27 For the first applicants it is submitted that areas where native title has been wholly extinguished are not part of the claim area so that there should be no determination relating to those areas as they have not been the subject of any application before the Court. It is said this includes the areas listed in Sch B(1) – (3) of the application as areas affected by extinguishing tenures. The first applicants' case states that the significance of the issue lies in whether they would be able to bring a native title claim over the presently extinguishing claims in the event future changes to the law deprive those tenures of their extinguishing effect. 28 For the first respondents reference is made to the terms of the first applicants' amended native title determination application dated 30 April 1999. There it was accepted that the areas in Sch B(1) – (3) were not included in the claim area. However, apart from those areas, it was not accepted for the first respondents that the instruments said to effect extinguishment in fact validly created or granted the relevant interests, so that it could not be said the areas were excluded by application of s 61A of the NTA. 29 Section 61A(2) provides in relation to previous exclusive possession acts (see s 23B) done in relation to an area and otherwise satisfying the sections, 'a claimant application must not be made that covers any of the area'. Section 61A(3) provides that in relation to a previous non-exclusive possession act (see s 23I) done in relation to an area and otherwise satisfying the requirements of the section 'a claimant application must not be made to which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others'. In the case of both s 61A(2) and s 61A(3) one of the other qualifying conditions is that the act was attributable to a State or Territory and a law of the State or Territory has made provision for confirmation of extinguishment of native title by previous such acts wholly or partially. 30 For the first respondents it is contended that s 61A does not deprive the Court of jurisdiction to make a determination that native title does not exist. It is said that to hold otherwise, in circumstances where there has been a real dispute as to whether an area is covered by a previous exclusive possession act, would be circular; the Court would have jurisdiction to hear and determine the claim that native title existed in the area which the applicant contended was not covered by a previous exclusive possession act but the very act of making a declaration that native title has been extinguished by a previous exclusive possession act would deprive the Court of jurisdiction to make that determination. 31 The practical difficulty with an application in terms relied on by the first applicants is that whether particular interests fall within s 61A(2) or s 61A(3) is an issue which must await the time at which the Court is in a position to make a principal determination. However, having found there is a previous exclusive possession act or a non-exclusive possession act within the terms of s 61A(2) or s 61A(3), the Court would be required by s 225(c) to include them in the principal determination as other interests in the determination area. By s 225(d) it would be required to explain the relationship of that interest to any native title rights and interests subject to the subsidiary determinations in s 225(b). The relationship would be such as to be explicable only in terms of s 61A(2) and s 61A(3) as requiring the application to be dealt with as required by those subsections. That is, I do not see the effect of s 61A(2) or s 61A(3) as bringing about a situation where the determination pursuant to s 225 is not required to address the interests other than native title as they arise under s 61A(2) or s 61A(3) in the determination area. Furthermore by s 225(d) the Court would be required to address the issues of exclusion there identified in terms identical to those used in s 61A(3). 32 It follows that I consider the determination under s 225 must address the totality of the Yindjibarndi and the Ngarluma extinguishment areas. This is so even if, where s 61A(2) and s 61A(3) apply, the effect is to exclude the area from the claim. However, the claim area would include any areas expressly excluded by the terms of the claims themselves. 33 Whether or not the effect of that approach attracts the application of s 61A(1) so far as to prevent an application in the future if the extinguishing effect of in s 61A(2) and s 61A(3) is changed, is an issue to be decided on such a future occasion. I note, however, that the approach I consider follows from s 225 would provide an arguable foundation for an argument that a determination had been made in relation to the areas the subject of extinguishment in the determination. 34 Because of the view which I have so reached, I do not give any consideration to the alternative approach contended for on behalf of the first respondent Premier based on the programming of hearing a non-claimant application. issue (d) – What is the appropriate process for nominating a pbc? 35 In the case of the Yindjibarndi applicants a PBC has been nominated and the draft orders should reflect that fact in terms of the draft order proposed for the first respondents. 36 In the case of the Ngarluma applicants a PBC is yet to be nominated. I do not agree with proposed orders 3 or 13 of the draft Ngarluma determination submitted on behalf of the first respondents. The determination should only be made when it can take effect unconditionally and not contingently upon determinations under s 56(2) or s 57(2) of the NTA. The draft orders should provide that, if no nomination is made by a further extended date, the determinations shall vest the Ngarluma native title in the Ngarluma common law holders. That is, a further opportunity should be given to the Ngarluma holders to take advantage of s 56 or s 57. The orders already provide for the determination to be finalised within the stated time in the event no nomination of a PBC is made for those holders. This approach is required by s 56(2)(b) and s 56(2)(c), and s 57(2)(b) and s 57(2)(c). 37 For the first applicants it is submitted that the native title holders should be able to nominate a PBC without any opportunity arising for other parties to object or otherwise make submissions. A number of cases are cited where no directions were made to provide parties an opportunity to make submissions concerning the nomination of a PBC. This approach finds support in s 56(2)(b) and s 57(2)(b) which respectively provide that if a PBC is nominated the Court 'must' determine that it is to hold the rights and interests or is to perform the relevant functions. 38 However, in James v State of Western Australia (No 2) [2003] FCA 731 French J made a determination that a particular PBC was to hold native title rights and interests after hearing from parties other than the applicants. He made the determination being 'satisfied that the requirements of the Act and the regulations had been met'. Such compliance must necessarily precondition the application of the requirement in s 56(2)(b) and s 57(2)(b) that the Court must determine that a nominated PBC is to hold the relevant native title rights and interests. I therefore cannot accept the submission on this point made for the first applicants. issue (e) – what orders should be made with respect to the second and third applicants' claims? third applicants' claim 39 The third applicants submit their claim should not be dismissed because the Court found that while they did not make out a claim as Wong-a-Too they may do so as Ngarluma or Yindjibarndi people. It is submitted that a dismissal of their application as proposed for the first applicants and the third respondents would imply the third applicants are not common law holders of native title either as individuals or as a group in respect of the Ngarluma determination or the Yindjibarndi determination and would lead to their exclusion from membership of any PBC in respect of each determination. 40 For the first respondents it is submitted that the third applicants' application for a separate native title has been rejected and should therefore be dismissed. It is said unless that step is taken the third applicants will be recognised as separate registered claimants with a separate 'right to negotiate'. Once their claim has been dismissed the Native Title Registrar is required to remove the entry on the Register that relates to the third respondents' claim: s 189A(2)(b) and s 190(4)(d) of the NTA. 41 The application by the third applicants was made as Wong-a-Too and has not been made out. It requires dismissal. 42 However dismissal of the third applicants' application does not preclude inclusion of a statement that the dismissal is 'without prejudice to any right the third applicants may have as Ngarluma or Yindjibarndi people (and not as members of the Wong-a-Too) to hold native title rights and interests'. No reference should be made to them as being a subgroup of either the Ngarluma or Yindjibarndi (as the draft orders for the third applicants propose) as that would go beyond the reasons previously delivered. second applicants' claim 43 It is apparent this should be dismissed simpliciter. overlap areas in second and third applicants' claims 44 No point would be served by requiring either or both the second or third applicants to remove their overlap areas as each of their applications will be dismissed. issue (f) – should the Court declare that native title does not confer possession, occupation, use and enjoyment to the exclusion of all others? 45 For the first applicants it is submitted that the determinations should not include statements that rights do not confer possession, occupation, use and enjoyment to the exclusion of all others. While it is accepted for the first applicants that in practical terms (because of the extinguishing effect of pastoral leases) this is the case for most of the claim areas, it is said the issue is still relevant to the nature of the rights that were possessed under the traditional laws and customs. That in turn is relevant to areas covered by s 47A and s 47B of the NTA where past extinguishment, such as through pastoral leases, can be ignored. 46 So far as these submissions seek to re-argue findings based on whether a right of possession, occupation, use and enjoyment exists under traditional law and customs to the extent they are presently acknowledged and observed, it has been decided and is not open for re-argument. In any event, s 225(e) requires the Court to specify in areas the subject of previous non-exclusive possession acts (pastoral leases), whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others. I therefore agree with the submission for the first respondents that the submission for the first applicants on this issue cannot be accepted. issue (g) – are the native title rights exercisable in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial purposes (including social, cultural, religious, spiritual and ceremonial purposes)? 47 For the first applicants it is submitted that there is no basis for the first respondents to propose (at par 3(b) of their draft determinations) a limitation in the above terms. It is said such a limitation was neither the subject of any finding nor supported by the evidence. For the first respondents it is submitted that the evidence did not positively establish that under traditional laws and customs the claim areas could be exploited for commercial purposes, and that it is necessary for the description of the nature and extent of the native title rights required by s 225(b) to reflect this. It is also submitted it is necessary and appropriate that the determination specify that the native title rights and interests are exercisable in accordance with and subject to traditional laws and customs. The case for the first respondents accepts the submissions for the Commonwealth that the words in parenthesis in the description of this issue above should be added. 48 I agree with the submissions for the first respondents on this issue. The additional words proposed more accurately reflect what the evidence established and the true nature of the findings made. issue (h) – how should the native title holders be described? 49 For the first applicants it is contended the Court should not accept the descriptions of the Ngarluma and Yindjibarndi peoples as proposed by the first respondents. In particular it is said those peoples should be defined simply by their language group and not by a number of criteria. Support is sought in the approach taken in a number of authorities, namely: * Mabo v Queensland (No 2) (1992) 175 CLR 1 – the Meriam people * The Full Court in State of 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 State of 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 State of 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 State of 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 State of 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 State of 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 State of 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 State of 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 State of 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.' Additionally, the first applicants point to inaccuracies of fact in the descriptions drafted for the first respondents. 50 For the first respondents reliance is placed on the argument that at sovereignty the traditional associations with the land were through estates and patrilineal descent was the means of recruitment to the group. It is accepted for them, however, that the reasons for judgment were to the effect that estates and patrilineal estate groups are not today the means by which the holders of native title are to be defined. 51 For the third applicants objection is taken to the inclusion in the first respondents' draft of the requirement that a person must not only regard themselves as Ngarluma or Yindjibarndi but also be generally recognised as such by others of their people. It is asserted that membership is a question of fact not to be qualified or restricted in this way. Further it is contended that the Ngarluma or Yindjibarndi peoples should not be defined by genealogical particularity but should be defined by the capacity of an individual to prove his or her lawful entitlement in the event the entitlement is disputed. For the third applicants it is proposed the definitions should take the form of the Mabo, Ward, Mabuiag, Poruma, Masig, Wik and Kaurareg and other like definitions which identify the common law holders by reference to the group to which the holders belong. The third applicants expressed a preference for the Wik formulation. 52 The case for the first respondents criticises such an approach on the basis that the Court should provide some basis for deciding who is in the Ngarluma or Yindjibarndi group as part of the making of the determination of native title. Alternatively it proposes for them that a description be based upon those contained in the relevant applications. 53 I agree with the submission for the first applicants. The more usual practice exemplified by the above decision should be followed here. ISSUE (j) – SHOULD THE RIGHT TO 'LIVE' IN RIGHT (c) BE QUALIFIED? 54 The fifth respondents, supported by the first respondents, seek the deletion of the words 'or to live'. Those words were considered in par [15] of the December reasons. In my view the purport of those reasons is best given effect to by adoption of the alternative formulation proposed by the fifth respondents, namely, by replacing the words 'or to live' with the words 'and to live temporarily thereon as part of camping or for the purpose of building a shelter.' Issue (k) – should rights (g) and (h) include a right to forage, and what is the geographical limitations on the right to forage? 55 I accept the concurring submissions for the first applicants and the first respondents that the word 'forage' should be included in rights (g) and (h) and that the geographical limitations in rights (f) and (h) in relation to the Ngarluma should be removed. issue (n) – should the determinations list the s 47A and s 47B NATIVE TITLE AREAS? 56 I accept the submissions for the Commonwealth, supported by the first respondents, that a fourth schedule should be included listing the areas where s 47A and s 47B of the NTA apply. issue (p) – where do s 47A and s 47B of the nta apply? s 47a: reserves 43195 and 25208 57 The second sentence at [955] of the July reasons incorrectly refers to 'items 6 and 9' whereas it should refer to 'items 6 and 19'. The reference to item 9 at [956] should be deleted. These may be addressed in orders, supported by the slip rule. 58 I agree with the first respondents that the finding on item 6 is not open for further argument. s 47B: 59 For the first applicants it is submitted that there were no findings made as to whether various resumptions claimed were in fact resumptions for the purposes of excluding the area from s 47B. In the case of exploration licences and prospecting licences it is submitted that not only were there no findings that these took the area out of s 47B but no submissions to that effect were made for the first respondents. I agree with these submissions but not with the added corollary that the first respondents should not be entitled to now submit on the outstanding issues. To some degree, submissions were made earlier. I agree with the submission for the first respondents that the outstanding matters must now be decided for the purposes of the final determination. The submissions for the first respondents on what findings should now be made are unanswered by the first applicants. 60 I agree with the tables in par 96 and par 97 of the submissions for the first respondents. For completeness I find in accordance with those tables, a copy of each of which with the minor variations is annexed to these reasons as an appendix. issue (q) – should the determination record that there are no native title rights in minerals and petroleum? 61 I accept the submission for the first respondents that there is no confusion or contradiction in the proposed declarations concerning non-existence of native title in relation to minerals (including ochres to the extent they are minerals) and petroleum. issue (r) – are there native title rights in subterranean waters? 62 I do not consider that the evidence established that rights (e) and (j) extended to subterranean waters. Neither right in its formulation raised that issue. Accordingly I accept the submission for the first respondents that the proposed qualification in that respect is appropriate. 63 I also agree that it would be appropriate to insert a definition of 'subterranean waters' but in the terms proposed for the first respondents rather than in the terms proposed for the Commonwealth. issue (s) – should the first respondents' proposed Ngarluma Determination par 16/Yindjibarndi Determination par 13 (relationship between the native title and other interests) be amended? 64 I agree with the appropriateness of the amendments as accepted in the written submissions in reply for the first respondents (pars 70, 71 and 74). I also agree any temporal limitation is inappropriate and that the use of the word 'otherwise' is appropriate. issue (t) – have certain pastoral leases wholly extinguished native title? 65 I agree that the determination should refer to the replacement pastoral lease 3114/1228. issue (u) – has native title been extinguished in the additional areas referred to in the first respondents' supplementary determinations and affidavits of MR godden 66 For the first applicants' objection is taken to inclusion of tenures (a list of additional freehold and roads) said to have been omitted from papers before the Court at the hearing. For the first respondents leave is sought to reopen their case to contend a lease referred to in Mr Godden's April affidavit wholly extinguished native title in Area No. 416. 67 The guiding principle in deciding whether to give leave to reopen is whether or not the interests of justice are served by allowing or refusing leave: Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12; and see Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 at 455 - 456. In general, new evidence may be admitted where: (a) the evidence is so material that the interests of justice require it – in this case the evidence relates to possible extinguishment of native title in the area in question. As such the evidence is highly relevant and important to claimants, interest-holders and the first respondents; (b) the evidence, if accepted, would most certainly affect the result – see comments under (a) above; and (c) the evidence could not by reasonable diligence have been previously discovered – in the case of land dealings which have occurred since the close of the first respondents' case, the evidence simply could not have been previously discovered. In the case of the evidence previously available but not captured by the Land Claims Mapping Unit, this represents an extremely small oversight on the part of the first respondents in the context of a very large and complex task and is to that extent something that has occurred despite reasonable diligence. (See Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 at 89) 68 Other relevant factors include: (a) there is no demonstrated prejudice to the applicants in the Court receiving this further evidence. The first respondents are not raising any new issues but rather raising further areas to which the existing decision of the Court will be applied. (b) the public interest in the finality of litigation will be served by the Court receiving this further evidence, because otherwise the determinations will be incorrect and consequently will need to be corrected by a variation application under the NTA. (See Re Australasian Meat Industry Employees Union; Ex parte Ferguson (1986) 67 ALR 491 at 493 – 494). 69 It is important to realise the importance of the opportunity for a principal determination to finalise all issues concerning native title in the claim areas once and for all. Applying the above principles in that context, I grant leave to reopen the issue and direct that within 14 days of publication of these reasons the first applicants and the first respondents submit draft directions for filing and service of any further submissions which may be necessary, to be settled in Chambers. issue (v) – what is the extent of the hamersley ranges area? 70 For the first applicants it is contended that the southern boundary of the Yindjibarndi claim should be the top of the northern escarpment of the Hamersley Ranges rather than the foot of those Ranges. I accept the submission for the first respondents that the foot of the Ranges better accords with the evidence at trial. issue (w) – Do the Yindjibarndi have a right to take sea turtle and dugong in Yindjibarndi country? 71 While no finding was made as to whether any of the named fauna were only marine fauna which could not be found inland, the evidence disclosed that the right to take fauna (considered in the context of the evidence on the right to hunt) as exercised by the Yindjibarndi had been exercised only in relation to non-marine fauna. The deletion of reference to marine in the case of the Yindjibarndi people is therefore appropriate. Issue (x) – should the definition and map of the 'telstra area' and 'telstra cabling' be amended? 72 The Telstra submissions as accepted for the first respondents in pars 83 – 85 of their written submissions in reply should be included in the amended determination. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 2 July 2004 Counsel for the First Applicants: Ms C Tan Solicitor for the First Applicants: Yamatji Maripa Land and Sea Council Counsel for the Third Applicants: Mr RI Viner QC Solicitor for the Third Applicants: Kitto and Kitto Counsel for the First Respondents: Mr KM Pettit SC with Mr S Wright Solicitor for the First Respondents: Crown Solicitor's Office Solicitor for the Second Respondents: Australian Government Solicitor Solicitor for the Third Respondents: Blake Dawson Waldron Counsel for the Fifth Respondents: Mr G Hiley QC Solicitor for the Fifth Respondents: Jackson McDonald Solicitor for the Eighth, Ninth and Tenth Respondents: Blake Dawson Waldron Counsel for the Eleventh Respondent: Mr M Marshall Solicitor for the Eleventh Respondent: Hunt & Humphry Counsel for the Fifteenth Respondent: Mr M Marshall Solicitor for the Fifteenth Respondent: Hunt & Humphry Date of Last Written Submissions: 30 April 2004 Date of Judgment: 2 July 2004 appendix The following table shows all unallocated Crown land, as at the date of the claim was lodged, along with the finding on whether s 47B applies. Area Location (general) Apply Reason 10 Offshore N No native title. 12 Burrup N No native title. 13 Burrup N No native title. 14A Islands Y (part) Not part covered by TR5461H, E47/490, E47/491 14B Islands Y 18A Dixon Island Y (part) Not part covered by TR5461H 18B Mt Welcome Y (part) Not part covered by E47/650, E47/658 and ML47/511-ML47/520 (inclusive) 56 Pyramid Y 72 Millstream N Resumption process. 82 Pyramid Y (part) Not part covered by E47/625 and P47/862 90 Millstream N Resumption process. 94 Millstream N Resumption process. 95 Millstream N Resumption process. 99 Mt Welcome Y 110A Coolawanyah N E47/572 110B Coolawanyah Y 110C Coolawanyah Y (part) Not part covered by E47/503 114 Coolawanyah Y (part) Not part covered by E47/651, E47/465, M47/215 121 Millstream Y 129 Point Samson N TR5461H 132 Point Samson N TR5461H 133 Point Samson N TR5461H 135 Point Samson N TR5461H Area Location (general) Apply Reason 138 Point Samson N TR5461H 139 Point Samson N TR5461H 141 Cossack N TR5461H 142 Mt Welcome N E47/617 147 Millstream N Resumption process. 148 Cossack N TR5461H 160 Wickham N TR5461H 161 Wickham N TR5461H 162 Cossack N TR5461H 173 Roebourne Y (part) Not part covered by Reserve 611 and TR5461H 180 Burrup N No native title. 181 Millstream N Resumption process. 183 Roebourne Y (part) Not part within townsite and part covered by easements 3134B/604, 3134B/55(1) and 3134B/43. 188 Mt Welcome N Wholly covered by ML47/161. 192 Roebourne N Townsite. 193 Roebourne N TR5461H and E47/672 196 Roebourne N TR5461H and E47/650 204B Burrup N No native title. 217 Burrup N No native title. 218 Burrup N No native title. 220 Burrup N No native title. 221 Burrup N No native title. 234 Burrup N No native title. 236 Burrup N No native title. 239 Burrup N No native title. 241A Burrup N No native title. 241B Karratha Station N TR5461H (and part ML253SA) 241C Karratha Station N TR5461H Area Location (general) Apply Reason 242 Burrup N No native title. 250 Burrup causeway N No native title. Alternatively, to extent part may be subject to native title, TR5461H. 251 Roebourne N TR5461H and townsite. 252 Roebourne N TR5461H and townsite. 253 Roebourne N Townsite. 254 Roebourne N Townsite. 255 Roebourne N TR5461H and townsite. 256 Roebourne N Townsite. 257 Roebourne N TR5461H 262 Roebourne N Special lease 3116/5828 up to 24 May 1995. Alternatively TR5461H. 264 Roebourne N TR5461H 269 Roebourne N Townsite. 271 Roebourne N Townsite. 272 Roebourne N Townsite. 280 Roebourne N Townsite. 283 Burrup N No native title. 287 Roebourne N Townsite. 289 Roebourne N Townsite. 296 Roebourne N TR5461H and townsite. 297 Roebourne N TR5461H and townsite. 302 Roebourne N Townsite. 309 Roebourne N Townsite. 310 Roebourne N TR5461H and townsite. 311 Burrup N No native title. 315 Roebourne N TR5461H and townsite. 321 Karratha Station N TR5461H 322 Roebourne N TR5461H Area Location (general) Apply Reason 323 Roebourne N TR5461H (Note special lease 3116/11217 was surrendered on 13 May 1994). 328 Roebourne N Townsite. 335 Roebourne N Townsite. 341 Roebourne N Townsite and part covered by TR5461H 342 Roebourne N TR5461H 344 Roebourne N Townsite. 346 Roebourne N Townsite. 347 Roebourne N Townsite. 348 Roebourne N Townsite. 349 Roebourne N Townsite. 350 Roebourne N Townsite. 351 Roebourne N Townsite. 352 Roebourne N Townsite. 353 Roebourne N Townsite. 355 Roebourne N Townsite. 356 Roebourne N Townsite. 357 Roebourne N Townsite. 358 Roebourne N Townsite. 363 Roebourne N TR5461H and townsite. 364 Offshore N No native title. Alternatively, TR5461H. 365 Karratha town N TR5461H (and part covered by ML253SA and townsite). 366A Burrup N No native title. 366B Burrup N No native title. 368 Karratha Station Y (part) Not part covered by TR5461H, TR5976H, TR5975H, ML253SA. 386 Karratha Station Y (part) Not part the subject of E47/635, E47/645, E47/648, E47/531, E47/643, M47/314, M47/27, G47/44 373 Karratha town N TR5461H and townsite. Area Location (general) Apply Reason 380 Karratha town N TR5461H and townsite. 381 Karratha town Y (part) Not part covered by TR5461H, TR8117H, part within townsite, nor part covered by E47/658, M47/249, M47/257, M47272 384 Karratha town N TR5461H and townsite. 391 Mt Welcome N TR5461H 408 Karratha town N Townsite and part TR8117H 409 Karratha town N Townsite. 410 Karratha town N TR5461H and townsite. 411 Karratha town N TR5461H and townsite. 412 Karratha town N TR5461H and townsite. 415 Karratha town N TR5461H and townsite. 416 Karratha town N TR5461H and townsite. 414 Karratha Station N E47/635 417 Karratha Station N TR5461H 419 Karratha town N TR5461H and townsite. 420 Karratha town N TR5461H and townsite. 421 Karratha town N TR5461H and townsite. 425 Karratha town N TR5461H and townsite. 427 Karratha town N TR5461H and townsite. 431 Karratha town N TR5461H and townsite. 432 Karratha town N TR5461H and townsite. 446 Karratha town N TR5461H and townsite. 469 Balla Balla N Townsite. 472 Balla Balla N Townsite. 473 Balla Balla N Townsite. 474 Balla Balla N Reserve 5931 475 Balla Balla N Townsite. 476 Balla Balla N Townsite. 477 Balla Balla N Townsite. 478 Balla Balla N Townsite. Area Location (general) Apply Reason 481 Balla Balla N Townsite. 482 Cossack N TR5461H 483 Cossack N TR5461H 484 Cossack N TR5461H 485 Cossack N TR5461H 486 Cossack N TR5461H 488 Cossack N TR5461H 489 Cossack N TR5461H 490 Cossack N TR5461H 491 Cossack N TR5461H 492 Cossack N TR5461H 493 Cossack N TR5461H 494 Cossack N TR5461H 496 Cossack N TR5461H 497 Cossack N TR5461H 502 Cossack N TR5461H 505 Cossack N TR5461H 506 Cossack N TR5461H 512 Cossack N TR5461H 513 Cossack N TR5461H 515 Cossack N TR5461H 519 Cossack N TR5461H 529 Cossack N TR5461H 532 Cossack N TR5461H 533 Cossack N TR5461H 535 Cossack N TR5461H 537 Cossack N TR5461H 538 Cossack N TR5461H 539 Cossack N TR5461H 540 Cossack N TR5461H 541 Cossack N TR5461H Area Location (general) Apply Reason 542 Cossack N TR5461H 543 Cossack N TR5461H 544 Cossack N TR5461H 545 Cossack N TR5461H 546 Cossack N TR5461H 547 Cossack N TR5461H 554 Mt Welcome N Resumption process. 563A Karratha Station N TR5461H, 5975H, ML253SA 563B Mt Welcome Y (part) Not part covered by TR5461H; E47/645, 646, 650, 658; P47/741, 797, 838, 888; ML/47/127, 530, 538 563C Warambie Y (part) Not part covered by E47/490, 491, 665 563D Sherlock/Mallina Y (part) Part covered by E47/432, 490, 618, 665 566 Balla Balla N E47/618 567 Offshore Islands N TR5461H 568 Point Samson N TR5461H 569 Burrup N No native title. 570 Burrup N No native title. 572 Karratha Station N EL47/643 The areas to which s 47B of the NTA applies (to the extent set out in the table above), and the extinguishing acts in respect of those areas, are set out in the table below. Those acts the extinguishing effect of which is not disregarded are shown in bold and italics. Area no. Extinguishing acts 14A - 14B - 18A - 18B - 56 - 82 - 99 - 110B Pastoral lease 3114/1138 (part) Area no. Extinguishing acts 110C - 114 - 121 - 173 Cape Lambert supply main extension Resumption of 394/439 (GG 9/8/1974 p 2966) Easement 3134B/44 183 Certificate of title 1093/889 (part) Certificate of title 839/108 (part) Cape Lambert supply main extension Reserve 31768 (part) 381 - 386 - 563B Reserve 1766 (part) 563C - 563D - The acts in the above table in bold and italics are: (a) public works, the extinguishing effect of which is not disregarded by the operation of s 47B of the NTA: see Erubam Le (Darnley Islanders) No 1 v State of Queensland [2003] FCAFC 227 at [85] – [90]; and (b) in the case of resumption of 394/439 (GG 9/8/1974 p 2966), subject to a resumption process. That resumption was for the purpose of, and the land is being used for, the Cape Lambert Supply Main Extension.