Daniel v State of Western Australia - [2004] FCA 849 - FCA 2004 case summary — Zoe

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Daniel v State of Western Australia

[2004] FCA 849

Federal Court of Australia|2004-07-02|Before: Nicholson J

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Court

Federal Court of Australia

Decision date

2004-07-02

Before

Nicholson J

Source

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Judgment (96 paragraphs)

[1]

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

[46]

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.

[49]

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.

[50]

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.

[53]

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.

[55]

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.

[56]

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.

[63]

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.

[74]

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.

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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

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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