Holborow v State of Western Australia - [2009] FCA 1200 - FCA 2009 case summary — Zoe

CTHFCA

Holborow v State of Western Australia

[2009] FCA 1200

Federal Court of Australia|2009-07-01|Before: McKerracher J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2009-07-01

Before

McKerracher J

Source

Original judgment source is linked above.

Judgment (119 paragraphs)

[1]

INTRODUCTION 1 The first respondent (the State) applies by motion for orders that the Yaburara/Mardudhunera native title determination application be dismissed over the townsites of Karratha and Dampier (the application). The technical descriptions of these towns are annexed as 'A' and 'B' respectively to these reasons. The application is pursued under O 20 r 4 of the Federal Court Rules (FCR) on the basis that no reasonable cause of action is disclosed. The application regarding Dampier is also based on s 84C of the Native Title Act 1993 (Cth) (NTA) on the ground that the application does not comply with s 61A(2) NTA. 2 At the hearing of the application, counsel for the Yaburara/Mardudhunera made it clear that the Yaburara/Mardudhunera no longer pursue the determination of native title over the townsite of Dampier. That leaves the townsite of Karratha for consideration. It also raises the question of what should be done in respect of the presently existing application for native title over the townsite of Dampier.

[2]

MOTION FOR JOINDER OF PARTIES 3 In addition to the State's motion for dismissal, there is a notice of motion for joinder of parties to these proceedings. The motion is brought by Violet Samson, Pansy Hicks, Norman Smith, Jim Fredericks, Max Sambo, Kerry Churnside and John Wedge representing the Ngarluma People who are also the applicant in matter WAD 165 of 2008 (the Ngarluma Townsites Claim). 4 The Court has power to join any person as a party to proceedings if it satisfied that the person has an interest that may be affected by a determination in the proceedings and that it is in the interests of justice to do so (s 84(5) NTA). The assertion of native title rights may provide a sufficient basis for allowing respondent party status: Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 (Kokatha). Further, a member of a claimant community asserting a competing communal native title right and interest which is inconsistent with substantive native title rights and interests being asserted in the claim may be joined as a respondent under s 84(5) NTA: Rubibi Community v Western Australia (2002) 120 FCR 512 (Rubibi). 5 The Ngarluma People contend that their joinder will ensure that their interests would not be adversely affected by a determination in the proceedings without the Ngarluma People having the opportunity to be heard. It would also enable all matters in dispute arising from competing native title claims to the area to be adjudicated upon within the same proceeding if required (Rubibi at [9]). As there can be only one determination of native title over a particular area, those who claim to be entitled to such rights should be able to become a party to a claim in which the rights may be determined (Munn v State of Queensland [2002] FCA 486 per Emmett J. 6 Of particular significance to the Yaburara/Mardudhunera claim is the fact that native title has already been determined in favour of the Ngarluma People in the surrounding area. A claim lodged on behalf of the Ngarluma and Yindjibarndi Peoples was lodged with the National Native Title Tribunal (NNTT) on 27 July 1994 and transferred to this Court on 21 November 1996. The Yaburara/Mardudhunera claim was subsequently lodged with the NNTT on 1 August 1996 and transferred to this Court on 7 November 1997. There was a substantial overlap between the Yaburara/Mardudhunera claim and the Ngarluma/Yindjibarndi claim. In the course of the Ngarluma/Yindjibarndi proceedings orders were made by Nicholson J that so much of the Yaburara/Mardudhunera claim that overlapped with the Ngarluma/Yindjibarndi application be heard as part of the same proceedings as the Ngarluma/Yindjibarndi application. 7 The underlying reasons supporting most aspects of the claim at first instance are to be found in the extensive decision of Daniel v Western Australia [2003] FCA 666, determined on 3 July 2003 (Daniel). 8 The four townsites of Karratha, Dampier, Point Samson and Wickham were omitted from the original Ngarluma/Yindjibarndi claim and were therefore not included in the determination but native title in the area surrounding the townsites of Point Samson, Wickham and Karratha was determined as being held by the Ngarluma People. When making a determination of native title in favour of the Ngarluma People and the Yindjibarndi People, Nicholson J also dismissed that part of the Yaburara/Mardudhunera claim that overlapped the Ngarluma/Yindjibarndi claim. As there was no direct overlap between the two claimants in respect of the townsites' area, there has been no specific determination at the precise location of Karratha. 9 The Yaburara/Mardudhunera claim (subject to amendment by deletion of Dampier), covers two of the four townsites (Karratha and Dampier) as well as a substantial further area which does not presently fall for consideration in the State's application. 10 The Ngarluma People are entitled to be joined as respondents. However, in light of my intended disposition of the summary judgment motion, I will make no order at this stage joining the Ngarluma People. The position can be reviewed should their motion be maintained. For the present, I will adjourn the motion with liberty to apply.

[4]

THE CLAIM 14 In Yaburara/Mardudhunera's outline of case filed on 23 October 1998, the boundaries of the claim area were illustrated by reference to a map and a description of the boundaries within the longitude and latitude coordinates there described. 15 For present purposes it is not necessary to identify with precision the detail of the area of the claim. It suffices to say that the claim included the Dampier townsite, the Karratha townsite, an area seaward to the west and the north of those townsites and substantially to the south. In total, the area was some hundreds of square kilometres and very substantially more than the two townsites mentioned. It was said that the land and waters claimed were part of the traditional homelands of the Yaburara and Mardudhunera Peoples; that the ancestors of the Yaburara and the Mardudhunera Peoples, both at the time of sovereignty and the time of contact with various Europeans in the 1800s occupied and resided on the land claimed; camped on it; travelled over it; travelled over the waters; hunted on the land; fished in the waters; foraged for food on the land claimed and for shellfish on the edge of the waters claimed; quarried and knapped stoned on the land claimed; dug for ochre on the land claimed; made tools and weapons with raw materials found on the land claimed; made shelters on the land claimed from raw materials found on the land claimed; educated and guided their children with regard to ownership of the land and other matters; placed etchings and paintings of cultural significance on the rocks and trees on the land claimed; conducted ceremonies and rituals with regard to the birth and death and different life stages of members of the society; enjoyed recreation on the land and waters claimed; created and maintained sites of spiritual and cultural importance; cared for and maintained the land the subject of the claim; prepared medicines and religious artefacts from materials found on the land; used the Yaburara and the Mardudhunera languages which belonged exclusively to the area; gave names to landmarks on the land claimed in the Yaburara and Mardudhunera languages; asserted ownership of the land and waters claimed as against members of other language groups; resisted invasion and settling of the claimed land and waters by Europeans; conducted trade and commerce with other language groups around the claimed land and waters; and burned the land claimed for hunting and other reasons. In the following year certain amendments were made to the claim area and other features of the claim. 16 It is to be noted that although the original claim relies upon connections to the claim area held by both the Yaburara People and the Mardudhunera People, the manner in which the case was presented in Daniel was somewhat different. As will be seen from the summaries of evidence and findings appearing below, in Daniel essentially the claim in relation to the Burrup was pursued on behalf of the Mardudhunera People who claimed their link to the land through the Yaburara People. That claim failed as Nicholson J found in Daniel that the Yaburara People or any other group were not in occupation of the Burrup beyond a period early in the Twentieth Century. The State argues that no other basis has been advanced to support the Yaburara claim in Daniel. 17 It is unclear whether the balance of the overlap area was claimed by the Yaburara/Mardudhunera People as Yaburara or Mardudhunera or partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera. Nevertheless, Nicholson J observed at [352] of Daniel that those of the Yaburara/Mardudhunera who claimed to be Yaburara had not established that to be the case and that evidence supported the view that the Yaburara/Mardudhunera claimed as Mardudhunera. Nicholson J then went on to consider whether the Yaburara/Mardudhunera, being Mardudhunera, had continuity as a group since sovereignty. At [375] and [501] Nicholson J found that although the Mardudhunera group had held the requisite continuity since sovereignty, the evidence did not establish that the Mardudhunera had exercised the remaining two rights found to be presently observable continuously back to sovereignty. On that basis, Nicholson J found that no requisite connection was established and that even if they had connection at the time of sovereignty, it had not survived the passage of time. The State contends that it would be inherently implausible that, within the relatively small area of the townsite of Karratha, the situation were somehow different from the entirety of the area surrounding Karratha and which was closely examined in Daniel.

[7]

APPROPRIATE PRINCIPLES FOR DETERMINING WHETHER 'NO CAUSE OF ACTION' IS DISCLOSED 23 The principles are well established and warrant repetition only to reinforce the high level that is to be satisfied in a motion such as the present. The principles are conveniently collected in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J (as his Honour then was) and in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 128-130. From the principles there stated it is clear that no court proceeding should be summarily dismissed except in a very clear case. The General Steel test as explained by Barwick CJ at 129 is that: The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 24 If there is a real question of fact or law to be determined and the rights of the parties depend upon it, a proceeding should not be summarily dismissed. 25 It does not follow from this collection of principles that it is only in blindingly obvious cases that summary dismissal should be ordered. The fact that detailed argument may be necessary to highlight the basis of the contention should not be determinative of the issue. 26 The High Court reiterated over forty years later in Webster v Lampard (1993) 177 CLR 598 (Mason CJ, Deane and Dawson JJ) (at 602) that: The power to order summary judgment must be exercised with "exceptional caution" … and "should never be exercised unless it is clear that there is no real question to be tried". 27 The Court should have regard to the version of facts most favourable to the applicant but this does not mean that every fact pleaded has to be accepted. Were it otherwise, an issue estoppel argument could never be relied upon (and it has), to justify summary dismissal. 28 The summary judgment principles have been applied in the context of native title determinations on a number of occasions. In Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 Wilcox J dismissed proceedings for lack of authorisation (at [44]-[48]). In Williams v Grant [2004] FCAFC 178 the Full Court (North, Dowsett and Lander JJ) (at [48]-[49] also on an authorisation basis); Bodney v Bropho (2004) 140 FCR 77 (at 88-89, at [50]-[51] where Stone J examined the Senate debate on the topic of summary judgment); Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967 (at [17]-[18] again for lack of authorisation); and Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185 (at [8] and, again, for lack of authorisation). 29 Most recently in Quall v Northern Territory of Australia [2009] FCA 18 the claim was struck out for reasons which will be examined below in more detail but are presently pertinent.

[9]

Quall 32 Before considering the application of those principles in a number of cases, it is necessary to consider a recent similar case. In the recent decision of Quall [2009] FCA 18, an order similar to that now sought was made by Reeves J. In Risk v Northern Territory of Australia [2006] FCA 404 (Risk), parts of native title determination applications relating to a particular area near Darwin described as being 'Area A' had been consolidated into one set of proceedings. The second native title applicant in those proceedings, Mr Quall (on behalf of the Danggalaba and Kulumbiringin People), alleged the existence of a particular Aboriginal society that held native title. However, Mansfield J held, (as did Nicholson J in this case) that a different society to the one alleged by Mr Quall was the relevant society which held native title at sovereignty. His Honour held that society had ceased to hold native title due to a 'substantial interruption' in the observance of traditional laws and customs in the Twentieth Century. Claims over Area A were therefore dismissed. 33 On the motion before Reeves J the Northern Territory applied to dismiss the balance of the Quall native title application. The balance of that application related to an area of land termed Area B. It was not the land which had been the subject of dismissal in Risk. 34 Mr Quall argued the existence of the same society as asserted in Risk (as the Yaburara/Mardudhunera are arguing in this proceeding) and alternatively, the existence of another different society that he had not asserted in Risk but he had asserted unsuccessfully on appeal in Risk (on behalf of Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) (2007) 240 ALR 75. 35 It was held that to the extent the applicants relied on the same society they had asserted in Risk in relation to Area A, they were estopped from doing so because the continued existence of that society had been determined adversely and therefore there was an issue estoppel. His Honour also held that to the extent that the applicants proposed to rely on a different society to that asserted in Risk, they were also estopped from doing so because the society 'issue' had been determined (adversely against them, in effect, in Risk) (Quall at [99]). 36 The Court took the view that it did not matter that a different area was involved (at [98] and [115]) nor that the alternative society argument had not been considered and determined in Risk (at [97]). It was held that it was an abuse of process to argue that a different alternative society existed in relation to Area B. At [115] his Honour said: As I have already observed above, I consider the findings made by Mansfield J in Risk are in clear terms and they deal directly with the various components of the definition of native title in s 233 of the NT Act, as explained by the High Court in Yorta Yorta. Those findings followed an exhaustive examination of a large body of evidence and they resulted in the final orders made by Mansfield J to the effect that native title does not exist for Larrakia lands in Area A (see [43] above). In my view, the findings and orders of Mansfield J are final, in the sense that they foreclose on any other Aboriginal society being able to establish that the laws and customs under its normative system gave rise to rights and interests in Larrakia lands in Area A. Indeed, they constitute a judgment in rem that no native title exists in those lands (see the cases set out in [63] above). While the decision in Risk does not have the same status in relation to the lands in Area B, I do not consider that detracts from the final effect of the findings on the ultimate issues upon which that decision is founded. Specifically, that the Larrakia peoples were the relevant Aboriginal society at sovereignty that possessed rights and interests in Larrakia lands. I consider this constitutes a final finding as to the relevant Aboriginal society that possessed rights and interests in those lands whether they fell within Area A or B. 37 Nicholson J concluded in Daniel (at [370]-[371] and see also Moses v Western Australia (2007) 160 FCR 148 (Moses) at [281]-[284] and [349]) that the only society holding native title over the Ngarluma native title area at sovereignty and at present was and is the Ngarluma society. That conclusion was reached following examination of extensive evidence.

[10]

Was the determination of the status of the Yaburara/Mardudhunera essential to the determination of the native title question? 38 After exhaustive analysis, Nicholson J in Daniel concluded that the Yaburara/Mardudhunera as Yaburara could not establish native title over the Burrup and that the Yaburara/Mardudhunera did not hold native title in the area surrounding Karratha as the Mardudhunera group did not have the requisite connection with the claim area. To appreciate the significance of the conclusion (in order to determine whether the Yaburara/Mardudhunera is issue estopped), it is necessary to consider what it was that Nicholson J had to determine in Daniel. 39 Section 223 NTA relevantly provides that 'native title' or 'native title rights and interests' means: … communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 40 The statutory definition in s 223(1) NTA is clearly the crucial question and the starting point. In De Rose v South Australia (No 2) (2005) 145 FCR 290 (at [38]), the Full Court said: It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as "communal", "group" or "individual". The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community. 41 In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ said after observing that native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title, that native title is neither an institution of the common law nor a form of common law tenure but is recognised by the common law. 42 Their Honours asked (at [31]): …Is it a body of traditional law and custom as it existed at the time of sovereignty? Is it a body of law and custom as it exists today but which, in some way, is connected with a body of law and custom that existed at sovereignty? How, if at all, is account to be taken of the inescapable fact that since, and as a result of, European settlement, indigenous societies have seen very great change? 43 And continued to note (at [33]) that: ..."Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. … 44 Further, the Court said (at [34]) that: …the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law. 45 And, (at [35]) that the rights and interests in relation to land must be 'recognised' by the common law of Australia. 46 Native title rights and interests to which the NTA refers, the Court reinforced, are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act. 47 Then, coming to the current issue, the Court said: 51 What is the position if, as is said to be the case here, the content of the laws and customs is passed on from individual to individual, despite the dispersal of the society which once acknowledged and observed them, and the descendants of those who used to acknowledge and observe these laws and customs take them up again? Are the laws and customs which those descendants acknowledge and observe "traditional laws" and "traditional customs" as those expressions are used in the Native Title Act, and are the rights and interests in land to which those laws and customs give rise possessed under traditional laws acknowledged and traditional customs observed? 52 Again, it is necessary to consider the several elements of the issues that thus arise. Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment? These may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult. In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no. 53 When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.

[11]

AN ADVERSE FINDING TO THE YABURARA/MARDUDHUNERA WAS MADE IN DANIEL 48 In addition to advancing some arguments of his own for the Yaburara/Mardudhunera, Counsel for the Yaburara/Mardudhunera has adopted the submissions of senior counsel for Wong-Goo-TT-OO to which I have referred in the reasons for decision in Wong-Goo-TT-OO (WAD 6256 of 1998). An application in Wong-Goo-TT-OO in similar terms to the current application was argued concurrently with this application. It is therefore necessary to consider an important aspect of that argument in which it was contended that no relevant 'finding' was made by Nicholson J in Daniel that is capable of operating as an issue estoppel. 49 The most important issue in the present debate is whether Nicholson J relevantly made a 'finding' in terms for which the State contends. If there was no ultimate finding, there can be no issue estoppel. Although issue estoppel can operate as to fact and to law, it must be an issue for the doctrine to arise. Simply to discard one aspect of a claim would not raise an issue for the purposes of issue estoppel. Frequently a party may fail or succeed on one aspect of a claim while having a different result on others. 50 On this issue, the Yaburara/Mardudhunera, like Wong-Goo-TT-OO in the related application relied heavily on Kuligowski v Metrobus (2004) 220 CLR 363 at [60] and particularly the passage reading: A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings. 51 However, this passage without amplification does not assist. 52 In Kuligowski, Metrobus wished to contend that Mr Kuligowski was issue estopped from advancing a common law negligence claim in respect of an ankle injury sustained at work and in respect of which a second review officer had, for workers' compensation purposes, recorded the following: It is also necessary for the applicant to prove incapacity for work and in this regard I am of the view that Mr Kuligowski has not satisfied the onus upon him on this point. 53 The ratio of the decision in Kuligowski appears before the heading 'Immaterial Matters' in which the passage on which the Yaburara/Mardudhunera wish to rely is to be found. The ratio of the decision is at [45]-[46] in which the Court held that the second review officer had a different question to decide from the question which might confront the District Court on a common law claim. Notwithstanding that difficulties may be encountered in the common law claim in light of the conclusions reached by the second review officer, the matters which that officer had to decide were different from those which would arise on the common law claim. 54 The reasoning of the High Court makes it clear that the proper approach to determining what has been decided in a matter can only be assessed having regard to the pleaded and argued issues. Plucking a sentence out here or there does not answer all the questions. 55 The comments made by the Court on which the Yaburara/Mardudhunera rely appear under the heading 'Immaterial Matters' as part of a collection of other issues which arose and on which, in the circumstances, it was unnecessary to decide. 56 The full paragraph in which the sentence on which the Yaburara/Mardudhunera relies reads as follows (footnotes omitted): In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way: "[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden." A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings. 57 As the Court explained at [61], in finding whether or not something has been solemnly found against a party, the form of the first proceeding, particularly the issues joined or admitted on the pleadings will be important. In other words, as Dixon J observed in Blair v Curran 62 CLR 464 (at 532): [J]udicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the ground work of the decision itself, though not then directly the point at issue. 58 More importantly for present purposes, Dixon J went on to distinguish findings concerning only 'evidentiary facts' rather than the 'ultimate facts' which found the very title to rights in dispute. In Kuligowski, however, the High Court observed that that important issue was not the subject of the primary submissions of the parties and was not necessary to decide in the present case so was put to one side. 59 In Kuligowski, the High Court referred to the decision in the Privy Council which upheld the dissenting judgment of Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537. In Hoysted, Higgins J had referred to the use of the phrase 'actually litigated and determined' - in turn, an expression coined by the Supreme Court of the United States in Cromwell v County of Sac (1876) 94 US 351 at 353. Higgins J observed in Hoysted that the particular point (in relation to joint ownership for the purposes of land tax) was by virtue of the formal objections and from the nature of the judgment 'actually litigated and determined' in the former proceedings and that whether the judgment in its actual form was due to the Commissioner's consent or admission or to his neglect, he is bound by the finding of joint ownership which the judgment necessarily involves. 60 In Kuligowski, the High Court went on to say that in the proceedings under the Workers' Compensation and Rehabilitation Act 1981 (WA), no findings were made which operated in the manner alleged as issue estoppels nor was the structure of the legislation in the nature of the proceedings such that there could be said that the necessary findings must be treated as having been actually litigated and determined. 61 Unlike Kuligowski, in the present case it is central to the issue estoppel argument to determine whether or not Nicholson J made findings on the topic of whether the Yaburara/Mardudhunera had the ability to hold native title as a group. 62 A number of cases have considered the passage in the joint High Court judgment in Kuligowski where the Court says that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged (at [60]): Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322; DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16; Lancee v Willert [2008] WASCA 120; Wyatt v MR and RC Smith Pty Ltd [2008] WASCA 55; Squires Transport Pty Ltd v Turnor [2004] WASCA 245. 63 One of the decisions cited in Kuligowski was Egri v DRG Australia Ltd (1988) 19 NSWLR 600, a decision of the Court of Appeal of New South Wales in a Court constituted by Mahoney, McHugh and Clarke JJA. (McHugh JA was also a member of the Court in Kuligowski). In Egri, the Court of Appeal upheld a conclusion by the primary judge that there had been an issue estoppel by virtue of the primary judge having said 'I am not satisfied that the theory of the disc lesion has been established… I am not satisfied that the injury has resulted in disc lesion'. 64 The approach taken by the Court of Appeal as is evident from the judgment of McHugh JA was that unlike the case of Lombardo v Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159 (and I might say, unlike Kuligowski), the finding relied upon for an issue estoppel in Lombardo as to an infarction was not an indispensable step in making the ultimate findings. However, in the case of Egri, the finding that there was no disc lesion was fundamental in determining what was the nature of the injury and whether the worker was still incapacitated (at 605). 65 It was because of the fundamental nature of what was being decided as distinct from the language employed that an issue estoppel was created. Even in Blair v Curran 62 CLR 464, Dixon J (as he then was) observed at (at 531-532) that the essential task is to distinguish between those matters fundamental to the decision or necessarily involved in its legal justification or foundation from matters which are not in point of law the essential ground work of the conclusion. 66 Indeed, in Egri, it was argued that because there had been no positive finding as to a failure to establish on balance of probabilities the existence of a disc lesion that the conclusion reached was insufficient to create an estoppel. That submission was expressly rejected in Egri (at [601F], [604D], [608D]). The Yaburara/Mardudhunera advance the same argument in this proceeding, that a negative conclusion such as not being satisfied, cannot constitute a finding. The argument should be rejected as it was in Egri. 67 The High Court in Kuligowski saysthat in relation to ultimate facts which form the very title to rights in dispute would it require more than non-satisfaction. I take this to be indicating that conclusions reached about ultimate facts as distinct from evidentiary facts must necessarily be findings. That does not necessarily conflict with the observation that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. As all the cases indicate, it is a matter of examining the real issues in dispute, the task for the Court, and the basis on which the Court arrived at its conclusion in order to assess whether a determination is, for the purposes of an issue estoppel, in the nature of an ultimate finding, however it may have been expressed. 68 One example of the cases in point is Wyatt v MR and RC Smith Pty Ltd in which Buss JA with whom Wheeler JA and Pullin JA agreed, said: 42 It is essential, in examining reasons for decision which are alleged to create an issue estoppel, to understand with precision what the judicial officer was required to determine. See Murphy v Abi-Saab (1995) 37 NSWLR 280, where Gleeson CJ (with whom Kirby P and Rolfe AJA agreed) said: The difficulty is to distinguish between decisions of fact or law fundamental or cardinal to the judgment and other decisions. One thing, however, is clear. Only a decision about a matter which it was necessary to decide can create an issue estoppel. It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide (288). … 46 In Kuligowski, the High Court noted that in some cases it may not be possible for a court or tribunal to reach a conclusion either way in relation to a specific issue [60], and cited the following passage from the speech of Lord Brandon of Oakbrook in Resa Shipping Co SA v Edmunds [1985] 1 WLR 948: [T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden (955). The High Court then said that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. Their Honours added: There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings [60].

[12]

WAS KARRATHA AFFECTED BY THE ISSUES DETERMINED IN DANIEL? 69 The question is whether the findings reached in the Daniel litigation also mean that the Yaburara/Mardudhunera People are precluded from pursuing a claim in native title over the only remaining area relevant to the current application, namely, the townsite of Karratha. To decide this question, it is necessary to trace not only the history of the claim but also its resolution. 70 The Yaburara/Mardudhunera native title determination application was first lodged with the NNTT on 1 August 1996. It included land that was already under claim by the Ngarluma/Yindjibarndi People in WAD 6017 of 1996 and land which was later claimed by the Wong-Goo-TT-OO People in WAD 6256 of 1998. 71 The map which is annexed and marked 'C' depicts the Yaburara/Mardudhunera claim area vis a vis the Ngarluma/Yindjibarndi and Wong-Goo-TT-OO claim areas. To the extent that the Yaburara/Mardudhunera and Wong-Goo-TT-OO applications overlap the Ngarluma/Yindjibarndi claim area, they were consolidated with the Ngarluma/Yindjibarndi application which was heard by Nicholson J, first, in 1999. The Ngarluma/Yindjibarndi People were ultimately described as the first applicants in the proceeding, the Yaburara/Mardudhunera People became the second applicants and the Wong-Goo-TT-OO People became the third applicants. The State was the first respondent and there were other respondents. 72 On 3 July 2003, Nicholson J handed down his reasons in Daniel. Subsequently, on 2 July 2005, his Honour made a determination under the NTA of non-exclusive native title rights and interests in respect of the claim area (Daniel Determination). 73 The holders of the native title rights and interests so determined were the Ngarluma People and the Yindjibarndi People. His Honour dismissed, to the extent that they overlap with the claim of the Ngarluma/Yindjibarndi People, any competing claims of the Yaburara/Mardudhunera and the Wong-Goo-TT-OO Peoples. 74 There were two appeals pursued from the reasons and orders of Nicholson J. They were heard together. The first appeal was that lodged by Ngarluma/Yindjibarndi. It concerned certain portions of the claim area in which his Honour had found that native title had been wholly extinguished. The Full Court delivered judgment in Moses on 7 June 2007. Then on 27 August 2007, the Full Court made final orders and a substituted determination of native title. That determination is annexed and marked 'D'. 75 In a second appeal lodged by the Wong-Goo-TT-OO People, it was contended that the proceedings at first instance involved a wholly inadequate appraisal of the evidence of Wong-Goo-TT-OO and a misdirection of what was required to establish the elements of native title under s 223(1) NTA. That appeal was dismissed by the Full Court on 7 June 2007 in Dale v Moses [2007] FCAFC 82 (Dale). 76 The townsites (of Dampier and Karratha) were not, however, claimed by the Ngarluma/Yindjibarndi and therefore were not the subject of the determination made by Nicholson J. This is also reflected in the determination and orders made by his Honour on 2 May 2005 and was not disturbed on appeal. Until further order, because the Yaburara/Mardudhunera's claim was only dismissed to the extent that it overlapped with the claim of the Ngarluma/Yindjibarndi, the Yaburara/Mardudhunera claim over the townsites remains on foot. It is that claim which is the subject of attack in the State's application for summary dismissal.

[13]

SPECIFIC CONCLUSIONS IN DANIEL 77 In relation to the Yaburara/Mardudhunera claim, the State contends that Nicholson J in Daniel made a number of key findings which operate against the Yaburara/Mardudhunera as an issue estoppel. Specifically, it contends that the following are the applicable findings: (1) The second applicants [the Yaburara /Mardudhunera claimants] claim the lands said to have originally been occupied by the Yaburara people, being the Burrup and surrounding islands, and the country said to have traditionally been occupied by the Mardudhunera people. (Daniel at [99]) (2) I accept the submission for the first respondents that it is not clear on the pleadings whether the overlap area is said to be Yaburara or Mardudhunera or partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera. The evidence from the second applicants on the point was inconsistent. (Daniel at [103]) (3) The second applicants have identified themselves in the title of their application as 'Coastal Mardudhunera and Yaburara people' … [and] [t]he claimant group is said to be a joint community of Yaburara and Mardudhunera people, composed of three inter-related family groups. (Daniel at [340]) (4) …I find those of the second applicants who claim to be Yaburara have not established that to be the case. The evidence supports the view that the second applicants having a claim in the claim area claim as Mardudhunera. (Daniel at [352]; Moses at 41]). (5) There remains the question whether the second applicants as Mardudhunera people are a community or group. There is ample evidence of the Mardudhunera people as a tribe in the coastal zone of the claim areas. It is not apparent, however, whether the second applicants comprise all presently living Mardudhunera people. Nor is it apparent in the evidence whether the second applicants are recognised socially as a community of Mardudhunera people. The relevant common purpose is that of being Mardudhunera. While there is not evidence the second applicants are recognised by others as such apart from their role in these proceedings, I consider they fall within the broader connotation of the word 'group'. (Daniel at [353]; Moses at [29]) (6) … In the case of the second applicants the issue arises as to whether the Yaburara tribe, of which some of the second applicants claim to be descendents, ceased to exist. The nature of the issue, the submissions of the parties, the expert evidence and the lay evidence relating to that issue is set out in Appendix G. In reliance upon the matters there set out, I find that there has been no discharge of the onus of proof by the second applicants or in the circumstances of all the evidence that the Burrup was inhabited by the Yaburara. If, contrary to that finding, the evidence supports the finding that the Yaburara or a group by any other name inhabited the Burrup, the evidence establishes that that group disappeared as an identifiable group early in the Twentieth Century. (Daniel at [373]; Moses at [43]) (7) Further, there are a number of reasons why I consider that the claim for succession by either the first or second applicants from Iniarba as a Yaburara cannot succeed. Firstly, there is the unsubstantiated character of the evidence of the two second applicants Colin Cosmos and Valerie Holborow on this issue. Secondly, the evidence does not support a finding that Iniarba was Ngarluma. Thirdly, the argument that Yaburara was a sub-set of Ngarluma is not supported by the evidence. (Daniel at [374]) (8) The question remains whether the second applicants being Mardudhunera are members of a group which has had continuity from sovereignty and so has not ceased to exist. In reliance on the evidence set out in relation to the Mardudhunera as a Group in Part X, I find the group has had the requisite continuity. (Daniel at [375]) (9) The evidence does not establish that the Mardudhunera second applicants exercised the remaining two rights found to be presently observable continuously back to sovereignty. If they had connection at the time of sovereignty it has not survived the passage of time. I find no requisite connection is established in their case. (Daniel at [501]) (10) The trial judge dismissed the Yaburara/Mardudhunera application to the extent that it overlapped with the Ngarluma/Yindijibarndi claim. (Order 24 of the Daniel Determination; Moses at [92]). (emphasis added) 78 The Yaburara/Mardudhunera are correct in saying that not all of the portions of the Daniel decision on which the State rely, constitute findings. Some are comment but I have emphasised those that are findings. The remaining matters are necessarily stated to put the findings in perspective. 79 Nicholson J found in Daniel (at [373]) that no society has inhabited the Burrup area since the beginning of the early Twentieth Century (see also Moses at [43]). The Yaburara/Mardudhunera acknowledge that they are bound by that finding. 80 The State contends that it must follow that the applicants are estopped from asserting the continuity of any society since sovereignty over the area of the Burrup. Once that is acknowledged, it is fatal to the applicants' claim to Dampier which is geographically part of the Burrup and surrounded on all sides by the area in which Nicholson J found that there was no native title. 81 As to Karratha, Nicholson J held in Daniel (at [370]-[371]) that the society holding native title over the Ngarluma native title area at sovereignty and at present is the Ngarluma society. That area fully surrounds the relatively small area of Karratha townsite. 82 The Yaburara/Mardudhunera contend that the townsites present different issues from the surrounding areas under consideration in Daniel. The State contends that the townsite of Dampier, in particular, presents the same issues as were considered by Nicholson J in Daniel in relation to the Burrup and secondly, that Karratha presents the same issues as were decided in relation to the Ngarluma native title area because: (a) Dampier and Karratha are surrounded on all sides by the Burrup and Ngarluma native title area respectively; (b) the claim does not distinguish between Dampier and Karratha and the surrounding areas; (c) Dampier and Karratha were not considered in Daniel only because the Ngarluma/Yindjibarndi claimants decided not to include those towns in their original claim. It is now asserted (in WAD165/2008) that they do hold native title over each of those towns; (d) the judgment in Daniel indicates that extensive evidence was given of the nature of asserted native title rights in relation to the Burrup and the Ngarluma native title area including by the applicants (see the Summary in Daniel at [1374]-[1383]). In the course of giving that evidence, no distinction was drawn between the areas and the towns; (e) because of the arbitrary distinction between the towns and the surrounding areas, it is reasonable to expect that any evidence capable of supporting the existence of native title within the towns would not have been limited to the towns and would have been led. The fact that such evidence was not led by the applicants even though certain of their evidence was in fact led about areas not included in the proceedings (as evident from Daniel at [308]) and also referred to in the Daniel Summary at [1379]-[1380]) would indicate that the applicants do not distinguish between the towns and the surrounding areas. 83 The State contends that if the issues relating to Karratha are not identical to the issues concerning the surrounding areas, they are so similar as to disclose no reasonable chance of success for the claim in relation to the towns. 84 Further, the State argues, it would be an abuse of process for the applicants to assert a different basis for their claim over Karratha to the one that was asserted in Daniel. It is argued that there is no value whatsoever in the applicants leading evidence of native title over either of the towns. 85 The State also contends that in the interests of certainty, the strike out claim to the extent it includes Dampier, should be allowed in accordance with the State's motion or, alternatively, there should be a declaration that the claim does not include Dampier or, alternatively, an order that the claim is amended such that it excludes Dampier.

[14]

MOSES 86 The Full Court summarised the findings of Nicholson J as to the boundaries of the Ngarluma country (in Moses at [243]) where the Full Court said: 243 In Part II of the July 2003 reasons, his Honour described the claim areas and made findings concerning the boundaries of those areas. The area claimed by the Ngarluma people was described as the lowlands between the Chichester Ranges and the sea found between Poverty Creek to the east of Whim Creek on the eastern side of the claim areas, to the vicinity of the Maitland River on the western side of the claim areas, as well as the adjacent portion of the sea. His Honour found that the boundaries as claimed were established on the evidence. The technique used by his Honour in this section, and followed in later sections, was to record the claims and findings in the body of his reasons for judgment and then to refer to the evidence on which the findings were based in appendices to the reasons for judgment. The evidence concerning boundaries is collated in Appendix A. It is a comprehensive review of the primary evidence of Aboriginal witnesses, as well as a review of the evidence of experts in history, linguistics and anthropology. 244 His Honour also pointed out that the major population centres of west Pilbara, namely Dampier, Karratha, Wickham, Point Sampson, Roebourne and Cossack are located in the north-west coastal portion of the claim area, and that the remainder of the region is sparsely settled. … 305 Much evidence was given as to the boundaries of Ngarluma country. His Honour made findings that this evidence established that the Ngarluma country included the Karratha area. Such evidence supported an inference that the Ngarluma people have retained a continuous connection with the Karratha area. (emphasis added) 87 The Full Court also noted (at [313]) in Moses that the Ngarluma area had been treated as a whole for the reason that Nicholson J formed the view on the evidence that it was all part of Ngarluma lands. 88 Subject only to the important qualification that the specific townsite of Karratha was not part of the claim, the conclusion expressed (at [305]) in Moses, appears to fully and finally conclude any possibility of the Yaburara/Mardudhunera establishing a claim over the Karratha townsite. 89 The State and Ngarluma contend that these findings were all essential to the ratio of the conclusions that the Ngarluma People had native title throughout the area. Those conclusions, it is contended, are all that is required for issue estoppel for the reason that the Yaburara/Mardudhunera will not be permitted to allege facts that contradict the relevant foundational facts established in the Daniel decision. There is no doubt, it is contended, that it is open to look not only at the final judgment and order but also the reasons as well. This submission is correct (Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1 at [1153]-[1154] per Goldberg J). 90 The findings in Daniel were not only positive for the Ngarluma People but also, necessarily, negative to the claim of the Yaburara/Mardudhunera. To the extent that the findings were based on the failure to be satisfied by the evidence of the Yaburara/Mardudhunera, the Yaburara/Mardudhunera are estopped by the finding that they do not hold native title in the area and by the finding that any use and enjoyment of resources and protection of important places that they engaged in did not have the required continuity back to sovereignty and thus not traditional. Those negative findings can still constitute an estoppel: see the analysis in Egri.

[15]

FINDINGS AGAINST THE YABURARA/MARDUDHUNERA IN DANIEL 91 The Yaburara/Mardudhunera claim brought in Daniel was brought on the basis that the areas claimed were the areas where the Yaburara and the Mardudhunera People held native title. They claimed that the claim areas were traditionally occupied by them (Daniel at [99]). Nicholson J rejected and dismissed the claims insofar as they overlapped the Ngarluma/Yindjibarndi claim and found that the areas were areas over which only the Ngarluma or Yindjibarndi People held native title. Accordingly, his Honour's finding was, in effect, that the areas surrounding the townsites were not Yaburara or Mardudhunera country and the Yaburara/Mardudhunera People did not hold any native title rights within it. 92 Evidence given by the Yaburara/Mardudhunera witnesses in Daniel as to boundaries of the Yaburara/Mardudhunera country or Yaburara country or Mardudhunera country included parts of the Ngarluma determination. Such evidence did not draw a distinction between areas surrounding the townsites and the townsites themselves which had been excluded from the hearing. This is apparent from the following passages in Daniel (at [1199]-[1200], [1374]-[1383], [1666]-[1667] (emphasis added): 1199 Robert Boona (Y) had been told by his father that the boundary of their land went from the mouth of the Nickol River, back into the Leopold Ranges, then went further down south to the Fortescue. The boundary followed Princup Hill to the Leopold ranges (T 2966). His father told him never to look at the Burrup (T 2970). Valerie Holborow had no knowledge of the boundaries of her land (T2974) and relied upon the boundaries as presented in evidence by Robert Boona (Y), Colin Cosmos (Y) and Lawrence Kerr (N) (T 3063). Colin Cosmos (Y) had been told nothing of the boundaries of Mardudhunera land but Algie Patterson (M) had told him that they were from the mouth of the Fortescue up to Leopold Hill and towards the Fortescue River (T 2974). The following day he corrected this, saying that the boundaries were from the mouth of the Nickol River, to Mount Leopold and towards the Fortescue River and that he had been told this by his grandfather (T 2999). Lawrence Kerr (N) said that Algie Patterson (M) had told him that Mardudhunera country stretched from Fortescue, to Peters Creek and back to Nickol (T 3005). In cross examination he said that the territory between Miaree Pool on the Maitland River and Karratha town, in other words the area of Karratha station, was Mardudhunera country. He knew nothing of Yaburara country apart from the name (T 3036). Robert Boona (Y) agreed that the boundaries claimed as Mardudhunera in the overlap claim area were those of Karratha station. He denied that his father may have been referring to the station as the area for which they had responsibility when they were doing their mill run (T 3074). Colin Cosmos (Y) said that the Yaburara people were different from the Mardudhunera, and had distinct territories. He only knew the boundary from what he had recently read (T 3084). 1200 Robert Boona (Y), whom Mr Robinson identified as a Mardudhunera man, told Mr Robinson that the Maitland River was the boundary (T 5453). Mr Robinson accepted the view that Yindjibarndi people regarded the Mardudhunera as the people who lived downstream from them on the lower Fortescue River (T 5519). Mr O'Connor agreed under cross-examination that he had earlier conducted ethnographic survey work for the second applicants and had formed a view that they were entitled to lodge a native title claim (T 6111). In a site survey he conducted in 1997, he described the Yaburara as 'coastal people whose territories were centred upon the Burrup Peninsula, the present towns of Dampier and Karratha and the surrounding coastal plain'. He qualified that to mean 'coastal flats' and noted that Karratha town is built partly on the coastal flats. He agreed that boundaries in Aboriginal Australia are not a matter of general agreement.(T 6114) (a) POSSESS, OCCUPY, USE AND ENJOY (a) 'The right to possess the land and waters claimed.' (b) 'The right to occupy the land and waters claimed.' (c) 'The right to use and enjoy that land and waters claimed.' 1374 Dorrie Wally testified that Valerie Holborow's and Colin Cosmos' father had been Mardudhunera and had been initiated (T 3003). Colin Cosmos considered his father Yaburara but had not been told anything about the law from him (T 2952). To his knowledge his father had no connection to the Burrup (T 3095). Colin Cosmos grew up on Karratha station. It was like a little Aboriginal village then. He could remember some people who lived there including Kenny Jerrold (T 3009). He was told of his ancestors by Algie Paterson , but not which tribe they belonged to (T3020). He lived separately from the other Aboriginal people on Karratha station (T 3065). He was not taught anything about the Burrup (T 2991). He felt his family's claim to the land came from their descent from Inarba, his father's step-father, who was a Yaburara man (T 2952; 3021). He only concluded he was Yaburara from reading material published recently, not from his own knowledge of Aboriginal groups and culture which was poor (T 3020). Even if Inarba were shown to be Ngarluma he would still consider himself most entitled to the Burrup through descent (T 3022). He heard from an old man on Karratha station that his land stretched from the mouth of the Nickol River to Leopold Hill and towards the Fortescue River (T 2975; 2999). His maternal grandmother's brother was Fred Hicks, and he acknowledged being related to Wilfred and Cane Hicks (T 3012). 1375 Lawrence Kerr testified that he had been initiated the Ngarluma way because his father was Ngarluma. His mother and step-father were Mardudhunera and he could have been initiated the Mardudhunera way. He knew of only one other surviving Mardudhunera man, Algie Paterson (T 3004-3005). Algie Paterson had told him of certain Mardudhunera places, from Fortescue River to Peters Creek and across to the Nickol River. He did not mention the Burrup (T 3006). 1376 Robert Boona's mother was related to the Hicks family but he did not know details (T 3044). His mother was Yindjibarndi and his father was Mardudhunera which he equated with Yaburara. His father had pointed out the boundaries of his country which roughly coincided with the boundaries of Karratha station (T 3073). He knew no Aboriginal place names in that area (T 3074). He said their traditional land extended to the small offshore islands (T 2969). He had never been told by any of the old people of any fishing out among those islands (T 3033). 1377 Dorene Wescombe regarded herself as Mardudhunera after her father. She was related through her father with the Cosmos and Boona family (T 2956). She grew up on Mardi (not in the overlap area between the first and second applicants claims) and Karratha stations (T 2984). Margaret Boona grew up on Mardi and later Karratha stations (T 2988-2989). Valerie Holborow testified that her grandmother was Yaburara, from the Burrup, as was her father. She had no knowledge of the boundaries of her country (T 2974). (b) MAKE DECISIONS ABOUT USE AND ENJOYMENT (d) 'The right to make decisions about the use and enjoyment of the land and waters claimed.' (c) ACCESS AND CONTROL (e) 'The right to free access to the land and waters claimed.' (f) The right to control the access of others to the land and waters claimed.' 1378 See 'Possess, occupy, use and enjoy' (d) USE, ENJOY RESOURCES (g) 'The right to use and enjoy the resources of the land and waters claimed.' (h) 'The right to control the use and enjoyment of others of the resources of the land and waters claimed.' (i) 'The right to trade in the resources of the land and waters claimed.' (j) 'The right to receive a portion of any resources taken by others from the land and waters claimed.' 1379 Dorene Wescombe was shown how to hunt and cook goanna and gather witchetty grubs and sweet potato by her grandparents and parents on Mardi station (T 2979; 2982-2983). She lived in Derby when her children were young and didn't take them fishing or hunting there (T 2985). Mardi station and Derby are outside the overlap area between the first and second applicants' claims. Dorene Wescombe still hunts kangaroo inland from Karratha (T 2984). She fished in the Fortescue River. She was taught by her grandmother (T 2979). She fished in the sea at Karratha, gathered shellfish and watched her father catch turtles (T 2984). She teaches her grandchildren to gather bush tucker (T 2986). 1380 Margaret Boona was taught hunting and gathering bush tucker by her parents. She fished in the Fortescue River and around Roebourne (T 2988-2989). Roebourne is outside the overlap area between the first and second applicants' claims. 1381 Colin Cosmos takes his son hunting, and teaches him what he knows about skinning kangaroo and traditional methods of cooking of goanna (T 2991). He fished with his father at Wajabi waterhole on the upper Fortescue River near Karratha station and in the ocean at the mouth of the Yanari River (T 2976). He takes his family fishing on day trips to Nguria Point (' 40 Mile'), Withnell Bay and Hearson Cove on the Burrup, The Landing, the Yanari River (T 2990; 3085). He fishes from the shore (T 3100). (e) MAINTAIN AND PROTECT PLACES OF IMPORTANCE (k) 'The right to maintain and protect places of importance on the land and in the waters claimed.' 1382 Colin Cosmos has been on one heritage survey on the Burrup. His brothers and sisters do not attend because they know nothing of the law for that area. Robert Boona does any 'heritage work' (T 3057). Robert Boona testified that his father warned them as children not to look at the Burrup or their spirit would be taken away (T 3029). Colin Cosmos was told by his father the Maitland could be a dangerous place because of a snake that lived in a permanent waterhole there (T 2992), and a waterhole at Leopold Hills upon which one should never allow one's shadow to cast (T 2975). (f) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE (l) 'The right to maintain, protect and prevent misuse of cultural knowledge associated with the land and waters claimed.' 1383 Valerie Holborow and Colin Cosmos testified that their father had scarification on his body. He had never discussed it with them (T 2972; 2978). Colin Cosmos did not know if they were 'sorry scars' (T 3051). Valerie Holborow testified she did not know their meaning because she was a woman (T 3090). Her father took his law and culture seriously and would not divulge it to his daughter. Nor did he speak of it to his son Colin (T 2952). He would engage in ritual such as spraying water at water holes (T 2973). Lawrence Kerr had been initiated. He testified that scarification indicated a person had been initiated and was a senior lawman. The practice was no longer continued. He did not know why (T 3006-3007). Robert Boona's father had not been initiated (T 3043). Robert Boona testified that he was not an initiated tribal person, because all traditional Mardudhunera law, songs, dance had been extinguished (T 2953). He had been prevented from undergoing initiation at Woodbrook for that reason (T 3046). His and Colin Cosmos' fathers conversed in Mardudhunera. Very few could (T 2955). Dorene Wescombe testified her father and the older men on Mardi and Karratha stations would talk in a language she assumed was Mardudhunera. They did not teach any of it to her. Her father forbade her going anywhere near men's meetings by the river (T 2980). She only speaks her mother's language, Yindjibarndi, which she teaches to her grandchildren (T 2985). Colin Cosmos acknowledged that when he was growing up there were men on his country who knew and practiced the law of that country, including Mibbin Lowe and Tim Kerr (T 3025). He did not know the law himself (T 3026), but expressed a desire to learn it, if necessary from Ngarluma men who knew it (T 3028). His father had never taught him anything about it (T 2975). Dorene Wescombe (T 2981), Margaret Boona (T 2988), Colin Cosmos (T 2991) all recounted that their family was only permitted to kill and eat the yellow goanna. The black goanna would harm them. Margaret Boona was taught to placate the yellow goanna's spirit by cutting off its tail.

[16]

Mardudhunera's rights not exercised continuously back to sovereignty 93 Further and more fundamentally to the current assertion of issue estoppel, his Honour (crucially) found that the rights claimed were not exercised continuously back to the time of sovereignty. That finding was expressed in Daniel (at [501]) where the following appears: 501 The evidence does not establish that the Mardudhunera second applicants exercised the remaining two rights found to be presently observable continuously back to sovereignty. If they had connection at the time of sovereignty it has not survived the passage of time. I find no requisite connection is established in their case. (emphasis added) 94 There is a summary of some of the evidence leading to the conclusion set out in Daniel (at [1656]-[1658]) where the following appears: 1656 Radcliffe-Brown writing in 1913 relevantly described the Mardudhunera people's country as bordering that of the Ngarluma people at the Maitland River. He said they probably did not number a hundred, and they mostly lived on sheep stations. The tribe was divided into a number of local groups each with its own defined country. He identified important camping places in each of these groups' areas. He did not indicate the existence of such a group within the relevant overlap claim area. He was able to establish genealogical links between the Mardudhunera he met and those living before the European occupation of their country. … … … (e) Maintain and protect places of importance 'The right to maintain and protect places of importance on the land…claimed' 1657 A report in 1893 remarked the Aboriginal people on Mardi station were much stricter in their observance of tribal law than those nearer Roebourne, and that they held regular corroborees. 1658 Radcliffe-Brown, writing in 1913 observed that some of the customs of the Mardudhunera resembled those of the 'Fortescue tribes' (which includes the Yindjibarndi). The Mardudhunera had a system of totems resembling those of the Kariyarra (which in turn he found resembled the Ngarluma system), and performed ceremonies, called talu for the purpose of increasing these totems. 95 Those rights, such as they were, were not found to be rights and interests satisfying the Yorta Yorta tests of continuity (Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422). 96 The State, supported by the Ngarluma People, now submit that no valid distinction could be made between the townsites and the rest of the Ngarluma determined area as there is, not only, no distinction made in the course of the evidence given but, more importantly, that the Yaburara/Mardudhunera People were found not to have exercised rights continuously back to the time of sovereignty. 97 In the proposed determination reflecting the findings of Nicholson J on this topic, it was originally intended to record that the Yaburara/Mardudhunera People do not hold native title in the determination area (see Daniel at [1163] - Daniel Determination at [5]). Subsequently that finding was not included. It was unnecessary in the final determination because the determination could only mean that the Ngarluma People were the only people found to be native title holders in the area.

[19]

Are there policy considerations which militate against issue estoppel? 102 Although elements of flexibility and discretion can be found in the NTA, the concept of issue estoppel is more than a rule of evidence. It is more correctly viewed as a substantive rule of law: Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships Limited [1947] AC 46, 56 per Lord Wright for the Privy Council. An issue estoppel is not lightly found but if found, there does not appear to be any discretionary basis to ignore it. 103 It is strongly contended by the State and the Ngarluma People that all factors point in any event in favour of the estoppel being applied. It is contended that the Yaburara/Mardudhunera simply wish to relitigate their whole claim to native title in the remainder of the claim area on the same grounds on which they had previously failed. As in Quall, even if the two issues were not identical for the purposes of an issue estoppel, they were sufficiently similar for the purposes of an abuse of process. The same logic applies in the present circumstances: see Quall at 116. 104 The underlying philosophy is compelling. In Quall (at [119]) the view expressed by Reeves J was that it was in the interests of justice to ensure that Court resources are devoted to the resolution of real and genuine native title determination applications which have not been provided with a determination on their merits. Further, it would not be in the interests of justice to create a situation of conflicting determinations. 105 The Yaburara/Mardudhunera stress that the submissions of the State of Western Australia (the State) assume that any future trial court will have no 'discretion' about the application of issue estoppel. However, this assumes there is a discretion when it comes to issue estoppel. 106 The Yaburara/Mardudhunera also fortify their submission with the flexibility with which it is said that s 86 NTA is cast. Section 86 relevantly provides as follows: 86 Evidence and findings in other proceedings (1) Subject to subsection 82(1), the Federal Court may: (a) receive into evidence the transcript of evidence in any other proceedings before: (i) the Court; or (ii) another court; or (iii) the NNTT; or (iv) a recognised State/Territory body; or (v) any other person or body; and draw any conclusions of fact from that transcript that it thinks proper; and (b) receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and (c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v). (2) Subject to subsection 82(1), the Federal Court: (a) must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and (b) may draw any conclusions of fact from that transcript that it thinks proper; and (c) may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry. (emphasis added) 107 The Yaburara/Mardudhunera contend that the word 'may' in the opening passage of s 86(1) makes it clear that any future trial court will have a discretion as to whether or not to adopt or not adopt a recommendation, finding, decision or judgment falling within s 86(1)(c). The respondents contend that the findings and judgment on which the State seeks to rely are all caught by s 86(1)(c) such that there is a discretion in the future trial court to adopt or not adopt the findings on which the State seeks to rely. 108 However if the State is correct as to the issue estoppel argument, the Yaburara/Mardudhunera claim over the townsites should be dismissed. Section 86 NTA will not be engaged. Nor is there any other discretion. 109 It is doubtful whether there is room for any discretionary factor. The threshold for establishing an issue estoppel is high. The requirements are exact and have been clearly prescribed. None of those requirements appears to invoke any overriding discretionary aspect. Nevertheless, the underlying doctrine as it has been explained in the cases behind the doctrine of issue estoppel can be seen to have relevance to the present case. The Yaburara/Mardudhunera assertion that the Yaburara/Mardudhunera People form a society that has existed continuously since sovereignty and the assertion that they have maintained their traditional lifestyle and connection with the land has been exhaustively and extensively ventilated in previous hearings. The duration of the Daniel hearing and appeal and the extensive analysis in the respective judgments would all have been wasted if the Yaburara/Mardudhunera were permitted to progress the present claim in respect of Karratha townsite. There is a real interest in achieving finality of litigation. It would also be an undesirable conflict if a Judge hearing future proceedings reached a different conclusion than that reached by Nicholson J on the same point in relation to the issue. 110 By its adoption of Wong-Goo-TT-OO's arguments, Yaburara/Mardudhunera complains that the State is failing in its model litigant obligation by refusing to negotiate with the Yaburara/Mardudhunera. This submission misconceives any statutory obligation under the NTA. There is certainly an obligation to negotiate in good faith for a period of six months in relation to future acts but there is no reason to believe that in circumstances where there is a proper foundation for a view that a claim has no basis, the State should continue to negotiate for resolution of it. That would clearly produce an impractical outcome (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615).

[21]

ALTERNATIVE ARGUMENT 113 The State has advanced the following alternative argument. Technically, none of the findings identified relate specifically to the townsite of Karratha because it and other towns were excluded from the original Ngarluma/Yindjibarndi claim. However, it is submitted that these findings apply equally to Karratha in substance because Karratha is surrounded by the area to which the orders apply. It is not plausible, it is said, that different orders could be made in relation to Karratha. 114 The submission is supported by the fact that the holders of native title in the area surrounding Karratha, the Ngarluma People, assert native title over Karratha as well. Given two competing claims over the town (as opposed to a single claim by two claim groups asserting overlapping rights, as was the case with Ngarluma and Yindjibarndi Peoples in relation to part of the Ngarluma/Yindjibarndi claim), it is implausible that any claim other than the Ngarluma claim to the townsite of Karratha could succeed. 115 Having reached a conclusion on the basis of issue estoppel, it is unnecessary to rule on this argument. As an aside, however, were that the only argument, I would be less inclined to allow it as a basis for dismissal of the claim, notwithstanding that it has a logical appeal. I would not be prepared to conclude that the present Yaburara/Mardudhunera claim should be dismissed as disclosing no reasonable cause of action on the basis that it is 'seriously implausible' that a claim could succeed in respect of Karratha despite having failed all around the townsite. It may be highly unlikely that such a claim could succeed because there is little doubt that the evidence in Daniel was relevant to the entirety of the area. The real basis for dismissal is the conclusion at [501] in Daniel and at [352], [353], [373], [374] and 375]. 116 Barwick CJ adopted a number of expressions from earlier decisions encapsulating the extent to which the Court would have to be satisfied that a case should be dismissed for showing no reasonable cause of action. I do not consider that any of those expressions descends into the arena of implausibility whether it be at the high end of the implausibility scale or the low end. The degree of certainty that a court must have as to the absence of a reasonable cause of action is at a level above implausibility: see Australian Building Industries Pty Ltd v Stramit Corporation Limited & Anor [1997] FCA 1318, Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 at [14] and Millet J in Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch 9) at 5. 117 Of course the new lower threshold introduced by legislation in s 31A FCA sets a different test. The very need for that legislative amendment fortifies the view that under the former Rules applicable to this motion, serious implausibility or serious improbability fall a little short of the mark.

[41]

Determination Area

The 'Determination Area' is the land and waters described and depicted in the First Schedule. Existence of native title
Native title does not exist in relation to the following parts of the Determination Area: (a) the 'Burrup' (as described and depicted in the First Schedule); (b) 'Offshore Waters' (as described and depicted in the First Schedule); (c) 'Depuch Island' (as described and depicted in the First Schedule); (d) the 'Hamersley Ranges Area' (as described and depicted in the First Schedule); (e) the 'Total Extinguishment Area' (as described and depicted in the First Schedule).
Subject to paragraph 2 above, native title rights and interests exist in the following parts of the Determination Area: (a) 'Ngarluma Native Title Area' (as defined in the First Schedule); and (b) 'Yindjibarndi Native Title Area' (as defined in the First Schedule), including the 'Section 47A Area' and the 'Section 47B Area' (as described in the Fifth Schedule) in respect of which extinguishment is disregarded in accordance with sections 47A and 47B of the Native Title Act 1993 (Cth).
The native title rights and interests: (a) do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and (b) are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes). Native title holders
The non-exclusive native title rights and interests which exist in the Determination Area are held by: (a) 'Ngarluma People' (as defined in the Third Schedule) in relation to the Ngarluma Native Title Area; and (b) 'Yindjibarndi People' (as defined in the Third Schedule) in relation to the Yindjibarndi Native Title Area. Native title rights and interests
Subject to paragraphs 4 and 8 to 15 inclusive, the Ngarluma People have the following non-exclusive native title rights and interests in relation to the Ngarluma Native Title Area: (a) A right to access (including to enter, to travel over and remain); (b) A right to engage in ritual and ceremony (including to carry out and participate in initiation practices); (c) A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter; (d) A right to fish from the waters; (e) A right to collect and forage for bush medicine; (f) A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan); (g) A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey); (h) A right to take black, yellow, white and red ochre; (i) A right to take water for drinking and domestic use; (j) A right to cook on the land including light a fire for this purpose; (k) A right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).
Subject to paragraphs 4 and 8 to 15 inclusive, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to the Yindjibarndi Native Title Area: (a) A right to access (including to enter, to travel over and remain); (b) A right to engage in ritual and ceremony (including to carry out and participate in initiation practices); (c) A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter; (d) A right to fish from the waters; (e) A right to collect and forage for bush medicine; (f) A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle); (g) A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey); (h) A right to take black, yellow, white and red ochre; (i) A right to take water for drinking and domestic use; (j) A right to cook on the land including light a fire for this purpose; (k) A right to protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).
The non-exclusive native title rights and interests in relation to the 'Inter-tidal Zone' (defined in the First Schedule) do not include the rights in subparagraphs (b), (c), (e), (g), (h), (i), (j) or (k) of paragraph 6 above.
The non-exclusive native title rights and interests in relation to the 'Offshore Islands' (defined in the First Schedule) do not include any of the native title rights and interests in subparagraphs (a)-(j) of paragraph 6 above.
The non-exclusive native title rights and interests in relation to the 'Cemetery Reserve Area' (defined in the First Schedule) do not include: (a) the right to engage in ritual and ceremony referred to in subparagraph (b) of paragraph 6 above, save to the extent it relates to ritual and ceremony for the dead; or (b) any of the rights in subparagraphs (c), (d), (h), (j) and (k) of paragraph 6 above.
The non-exclusive native title rights and interests in relation to the 'Telstra Area' (defined in the First Schedule) do not include: (a) a right to remain (part of right (a) in paragraphs 6 and 7 above); and (b) right (c) in paragraphs 6 and 7 above.
The non-exclusive native title rights and interests in relation to the 'Telstra Cable Routes' (defined in the First Schedule) do not include right (h) in paragraphs 6 and 7 above, to the extent that the right involves digging beneath the surface of that land. Qualifications
Notwithstanding anything in this determination, there are no native title rights and interests in or in relation to: (a) minerals (including ochres to the extent they are minerals) as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA) before the date of this determination; or (b) petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA) before the date of this determination.
There are no native title rights and interests in respect of 'Subterranean Waters' (as defined in the First Schedule) in the Determination Area.
The non-exclusive native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law. Other interests
The nature and extent of other interests in those parts of the Determination Area where native title exists are set out in the Second Schedule.
The relationship between the non-exclusive native title rights and interests and the other interests referred to in paragraph 16 is that: (a) to the extent that any other interest is a category D past act, a category D intermediate period act or a future act under the Native Title Act 1993 (Cth), or is an act to which sections 47A or 47B Native Title Act 1993 (Cth) applies, and is inconsistent with the continued existence, enjoyment or exercise of the native title rights or interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of those other interests; (b) in the case of mining leases, pastoral leases, easements and licences granted prior to 1 January 1994, the construction or erection of an improvement required or permitted under such a lease or easement or licence will prevent the exercise of the non-exclusive native title rights and interests at the location of that improvement to the extent that the exercise of those rights are inconsistent with the improvement for so long as the holder of the lease, easement or licence retains the improvement; and (c) otherwise, the existence and exercise of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and may prevent any exercise of the native title rights and interests, but does not extinguish them.

[50]

(1) Certificates of Title CT Number Parcel Identification 3/239 Roebourne Town Lot 124 10/118 Roebourne Town Lot 174 11/48 Roebourne Town Lot 130 11/60 Roebourne Town Lot 166 11/91 Cossack Town Lot 164 14/174 Roebourne Town Lot 150 15/341 Roebourne Suburban Lot 3 15/345 Cossack Town Lot 165 18/329 North Location 39 18/330 North Location 38 18/331 North Location 37 20/36 Roebourne Town Lot 271 21/329A Cossack Lot 151 31/373 Cossack Town Lot 170 33/39 Cossack Town Lot 160 35/14 Roebourne Town Lot 152 35/15 Roebourne Town Lot 153 35/16 Roebourne Town Lot 154 35/17 Roebourne Town Lot 155 35/18 Roebourne Town Lot 156 35/177 Cossack Town Lot 135 35/178 Cossack Town Lot 136 35/283 Roebourne Town Lot 57 35/284 Roebourne Town Lot 58 38/44A North Location 6 39/380A Roebourne Town Lot 190 79/189A Roebourne Town Lots 144 and 145 124/188A Roebourne Town Lot 114 186/197 Roebourne Town Lots 380 and 381 136/2 Roebourne Town Lots 174 and 175 156/22 Cossack Town Lot 116 193/174 Balla Balla Town Lot 45 221/143 Lot 1 on Deposited Plan 528 228/9 Roebourne Lot 385 265/56 Cossack Town Lot 152 267/54 Cossack Town Lot 424 319/143 Roebourne Lot 115 354/50 Cossack Town Lot 176 390/172A Roebourne Lot 394 405/11A Roebourne Lot 396 416/2 Roebourne Suburban Lot 4 416/3 Roebourne Suburban Lot 5 421/143 Balla Balla Lot 73 424/127 Balla Balla Lot 68 445/76 Roebourne Town Lots 134, 135, 146 and 147 451/184A Roebourne Town Lots 99, 100, 101, 102, 103, 106, 107 and 108 451/185A North Location 4 451/186A North Location 9 451/187A North Location 54 451/190A North Location 72 451/192A North Location 23 451/193A North Location 70 451/194A North Location 26 456/131 Roebourne Town Lot 1 464/35A Portion Roebourne Town Lot 53 466/103A Roebourne Town Lot 21 475/37A Lot 1 on Diagram 41164 475/38A Lot 2 on Diagram 41164 486/44A Portion Roebourne Lots 49 and 50 481/143 Cossack Town Lot 153 488/164 North Location 34 506/197A Lot 13 on Diagram 41455 508/149A Roebourne Lot 438 508/165A Roebourne Lot 436 523/114 Cossack Town Lot 121 541/78A Lot 2 on Plan 528 541/82A Lot 4 on Plan 528 550/87 Cossack Town Lot 145 570/65 Roebourne Town Lots 266, 267, 268, 269, 270, 272, 273, 274, 275, 276, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288 and 289 583/51 Roebourne Townsite 149 610/193A Roebourne Lot 471 762/156 Roebourne Town Lot 123 839/108 De Witt Location 11 (but not insofar as it covers the Section 47B Area) 1002/353 Cossack Town Lot 125 1020/864 Roebourne Town Lots 128, 145, 151, 265 and 271 1022/225 De Witt Location 14 1024/426 Part Lots 5 and 7 on Plan 528 1031/75 North Location 71 1031/76 Balla Balla Town Lots 43 and 44 1040/615 Peawah Location 6 1046/512 Roebourne Town Lot 27 1093/705 Roebourne Suburban Lot 16 (but not insofar as it covers the Section 47A Area) 1093/889 De Witt Location 15, Roebourne Suburban Lot 9, North Location 36 (part) and Roebourne Suburban Lot 16 (part) (but not insofar as it covers the Section 47B Area) 1107/653 Roebourne Lots 162 and 163 1113/927 Cossack Town Lot 124 1130/580 Cossack Town Lot 141 1156/380 North Location 3 1160/901 Roebourne Lot 19 1188/398 Roebourne Lot 105 1188/526 Roebourne Lot 176 1188/965 Roebourne Lot 169 1200/267 Roebourne Lot 54 and Portion Roebourne Town Lot 53 1203/514 Roebourne Lot 121 1203/515 Roebourne Lot 28 1222/113 Roebourne Part Lot 18, Lots 116, 117 1225/674 Roebourne Town Lot 29 1238/195 Roebourne Lot 119 1238/229 Roebourne Lot 6 1238/230 Roebourne Lot 10 1238/231 Roebourne Lot 259 1238/595 Roebourne Lot 127 1245/348 De Witt Location 12 1247/338 Roebourne Lot 188, 189 1249/383 Lot 11 on Plan 528 1252/43 Roebourne Lots 399, 400 1259/853 Roebourne Lot 416 1266/926 Balla Balla Lot 97 1316/148 Roebourne Lots 428, 437, 439, 440, 441, 442, 443, 445 1316/347 Roebourne Lot 196 1318/889 Roebourne Lot 434 1320/11 Roebourne Lot 59 1320/12 Roebourne Lot 60 1320/17 Roebourne Lot 146 1322/526 Lot 1 on Diagram 42823 1322/0527 Lot 2 on diagram 42823 1322/528 Roebourne Lot 397 1323/681 Roebourne Lot 111 1328/400 Roebourne Lot 435 1329/912 Roebourne Lot 421 1329/913 Roebourne Lot 422 1335/179 Portion Roebourne Lot 9 1336/708 Roebourne Lot 428 1346/865 Roebourne Lot 113 1348/518 Roebourne Town Lot 167 1349/725 Roebourne Lot 194 1349/726 Roebourne Lot 195 1352/369 Roebourne Lot 188 1363/796 Cossack Town Lot 170 1363/797 Balla Balla Town Lots 65, 66 & 67 1363/798 Roebourne Town Lot 168 1364/592 Roebourne Lot 415 1364/593 Roebourne Lot 479 1364/594 Roebourne Lot 484 1364/595 Roebourne Lot 485 1364/596 Roebourne Lot 508 1364/597 Roebourne Lot 509 1364/598 Roebourne Lot 515 1364/599 Roebourne Lot 521 1364/600 Roebourne Lot 527 1365/847 North Location 42, 43, 51, 36 (part), 55 (part), 56 (part) & 65 (part) 1368/185 Roebourne Lot 492 1368/186 Roebourne Lot 496 1368/187 Roebourne Lot 499 1369/444 Roebourne Lot 519 1369/461 Roebourne Lot 522 1376/584 Roebourne Lot 440 1376/585 Roebourne Lot 441 1381/810 De Witt Location 17 1381/811 De Witt Location 70 & 71 1382/158 Roebourne Lot 413 1382/159 Roebourne Lot 401 1382/160 Roebourne Lot 412 1382/161 Roebourne Lot 408 1382/162 Roebourne Lot 403 1384/491 Karratha Lot 1143 1387/780 Roebourne Lot 143 1387/781 Roebourne Lot 482 1387/782 Roebourne Lot 477 1387/783 Roebourne Lot 483 1387/784 Roebourne Lot 497 1387/785 Roebourne Lot 498 1390/918 Lot 3 on Plan 528 1390/952 North Location 47 1390/953 North Location 2 1391/354 Roebourne Lot 474 1396/5 Roebourne Lot 545 1397/994 Lot 1 of North Location 67 1397/995 North Location 67 1401/992 De Witt Location 83 1405/827 Roebourne Lot 443 1435/582 North Location 16 1437/701 Roebourne Town Lot 30 1442/176 North Locations 10 & 11 1443/601 Karratha Lot 1485 1445/635 Roebourne Lot 534 1453/191 Roebourne Lot 669 1453/192 Roebourne Lot 667 1453/193 Roebourne Lot 665 1453/194 Roebourne Lot 661 1453/195 Roebourne Lot 660 1453/196 Roebourne Lot 658 1453/197 Roebourne Lot 651 1453/198 Roebourne Lot 645 1453/199 Roebourne Lot 642 1453/200 Roebourne Lot 640 1455/603 Roebourne Lot 630 1455/604 Roebourne Lot 629 1462/999 North Location 32 1484/784 Part of Lot 15 on Diagram 42138 1490/126 Roebourne Lot 140, 141, 142 1500/542 Roebourne Town Lot 14 1500/543 Roebourne Town Lot 16 1517/780 Lot 1 on Diagram 53119 1517/781 Lot 2 on Diagram 53119 1518/440 Roebourne Town Lot 31 1519/118 Roebourne Lot 571 1519/119 Roebourne Lot 574 1519/120 Roebourne Lot 575 1519/121 Roebourne Lot 576 1519/122 Roebourne Lot 577 1519/123 Roebourne Lot 578 1519/125 Roebourne Lot 581 1519/126 Roebourne Lot 582 1519/127 Roebourne Lot 583 1519/128 Roebourne Lot 584 1519/129 Roebourne Lot 585 1519/130 Roebourne Lot 586 1519/131 Roebourne Lot 587 1519/132 Roebourne Lot 588 1519/133 Roebourne Lot 589 1519/134 Roebourne Lot 590 1519/135 Roebourne Lot 591 1519/136 Roebourne Lot 592 1519/137 Roebourne Lot 593 1519/138 Roebourne Lot 594 1519/139 Roebourne Lot 596 1519/140 Roebourne Lot 597 1519/141 Roebourne Lot 598 1519/142 Roebourne Lot 599 1519/143 Roebourne Lot 602 1519/144 Roebourne Lot 603 1519/145 Roebourne Lot 604 1519/146 Roebourne Lot 605 1519/147 Roebourne Lot 606 1519/148 Roebourne Lot 607 1519/149 Roebourne Lot 608 1519/150 Roebourne Lot 609 1519/151 Roebourne Lot 610 1519/152 Roebourne Lot 612 1519/153 Roebourne Lot 613 1519/154 Roebourne Lot 614 1519/155 Roebourne Lot 615 1519/156 Roebourne Lot 616 1519/157 Roebourne Lot 617 1519/158 Roebourne Lot 618 1519/159 Roebourne Lot 619 1519/160 Roebourne Lot 621 1519/161 Roebourne Lot 622 1519/162 Roebourne Lot 623 1519/163 Roebourne Lot 624 1519/164 Roebourne Lot 625 1519/165 Roebourne Lot 626 1519/166 Roebourne Lot 627 1519/167 Roebourne Lot 688 1519/168 Roebourne Lot 570 1519/169 Roebourne Lot 569 1519/994 Cossack Lot 117 1523/780 Roebourne Lot 649 1523/781 Roebourne Lot 650 1525/178 Roebourne Lot 407 1526/90 Roebourne Lot 400 1526/946 North Location 48 and portion North Location 64 1527/151 Roebourne Lot 546 1531/382 Roebourne Lot 489 1531/439 Roebourne Lot 480 1532/262 Roebourne Lot 33 1546/495 Roebourne Town Lot 112 1550/99 Roebourne Town Lot 23 1563/652 Roebourne Lot 487 1564/269 Roebourne Lot 644 1566/568 Roebourne Lot 659 1566/569 Roebourne Lot 704 1566/570 Roebourne Lot 705 1567/519 Karratha Lot 1996 1567/578 Roebourne Lot 662 1581/605 Roebourne Lot 409 1581/606 Roebourne Lot 410 1581/607 Roebourne Lot 411 1585/796 Roebourne Lot 531 1590/377 Roebourne Lot 631 1590/378 Roebourne Lot 524 1590/379 Roebourne Lot 420 1598/311 Roebourne Lot 32 1598/312 Roebourne Lot 34 1599/430 Roebourne Lot 507 1602/758 Roebourne Lot 494 1604/987 Roebourne Lot 513 1608/922 Roebourne Lot 643 1610/761 Roebourne Town Lot 264 1613/0306 Roebourne Lot 634 1617/564 Roebourne Lot 635 1617/565 Roebourne Lot 637 1619/336 Roebourne Lot 517 1624/832 Roebourne Lot 469 1624/833 Roebourne Town Lot 193 1624/0834 Roebourne Lot 552 1626/166 Roebourne Lot 264 1628/574 Roebourne Lot 512 1632/643 Roebourne Lot 675 1634/0234 Roebourne Lot 652 1634/0235 Roebourne Lot 653 1642/0893 Roebourne Lot 488 1644/525 Roebourne Lot 126 1644/526 Cossack Town Lot 167 1646/278 Roebourne Lot 495 1654/988 Roebourne Lot 525 1654/989 Roebourne Lot 526 1659/66 Roebourne Lot 429 1659/67 Roebourne Lot 486 1659/68 Roebourne Lot 490 1659/69 Roebourne Lot 503 1659/71 Roebourne Lot 514 1659/72 Roebourne Lot 516 1659/73 Roebourne Lot 523 1659/74 Roebourne Lot 657 1659/75 Roebourne Lot 668 1659/869 Roebourne Suburban Lot 1 (Part Lot 12 on Plan 528) 1667/5 Roebourne Lot 417 1677/989 Roebourne Lot 424 1683/785 Cossack Town Lot 149 1683/787 Cossack Town Lot 150 1685/729 Roebourne Lot 423 1685/866 Roebourne Lot 418 1687/59 Roebourne Lot 520 1691/19 Roebourne Lot 405 1692/99 Roebourne Lot 454 1694/689 Roebourne Lot 504 1694/857 Lot 100 on Diagram 67860 1694/858 Portion Roebourne Lot 448 1697/31 Roebourne Lot 753 1705/771 Roebourne Lot 424 1708/691 Roebourne Lot 426 1713/478 Roebourne Lot 459 1713/554 Roebourne Lot 461 1714/861 Roebourne Lot 666 1719/18 Roebourne Lot 547 1722/82 Roebourne Lot 427 1723/39 Roebourne Lot 752 1724/734 Roebourne Lot 432 1726/177 Roebourne Lot 452 1728/883 Roebourne Lot 431 1728/884 Roebourne Lot 437 1738/703 Roebourne Lot 110 1738/766 Roebourne Lot 120 1740/598 Roebourne Lot 656 1748/823 Lot 1 on Diagram 70971 1751/134 Roebourne Lot 447 1751/0412 Roebourne Lot 512 1751/413 Roebourne Lot 749 1753/164 Roebourne Lot 151 1773/240 Roebourne Lot 632 1773/241 Roebourne Lot 636 1773/242 Roebourne Lot 648 1773/243 Roebourne Lot 663 1773/867 Roebourne Lot 638 1778/353 Lot 6 on Plan 528 1783/174 Roebourne Lot 466 1785/795 Lot 12 on Diagram 72573 1785/796 Lot 11 on Diagram 72573 1789/434 Lot 14 on Diagram 41455 1792/87 Karratha Lot 4202 1792/687 Lot 12 on Diagram 72573 1795/967 Roebourne Lot 655 1800/365 Roebourne Lot 501 1802/855 Roebourne Lot 548 1810/175 Roebourne Lot 755 1812/355 Roebourne Lot 564 1814/928 Roebourne Lot 475 1817/551 Roebourne Lot 558 1821/191 Roebourne Lot 419 1827/408 Roebourne Lot 147 1827/409 Roebourne Lot 148 1837/802 Roebourne Lot 529 1838/757 Roebourne Lot 530 1845/991 Roebourne Lot 491 1845/992 Roebourne Lot 481 1849/424 Roebourne Lot 476 1857/926 Roebourne Lot 701 1861/571 Lot 1 on Diagram 41696 1861/572 Lot 2 on Diagram 41696 1861/573 Lot 3 on Diagram 41696 1866/336 Roebourne Lot 478 1872/17 Lot 100 on Diagram 77649 1881/279 Lot 710 on Diagram 78197 1881/325 Roebourne Lot 518 1892/697 Lot 1 on Diagram 78763 1903/131 Roebourne Lot 533 1940/136 Roebourne Lot 464 1940/559 Roebourne Lot 664 1946/77 Lot 1 on Diagram 80812 1948/185 Lot 17 on Diagram 52876 1958/220 Roebourne Town Lot 25 1972/692 Peawah Location 58 1977/98 De Witt Location 153 1986/554 Roebourne Lot 414 1991/48 Karratha Lot 1090 1991/423 Roebourne Lot 537 1994/185 Roebourne Lot 678 2009/631 Roebourne Town Lot 49 2023/664 Roebourne Lot 563 2032/535 Karratha Lot 2637 2052/356 Lot 10 on Diagram 89258 2073/140 Roebourne Lot 460 2073/141 Roebourne Lot 540 2081/501 Roebourne Lot 511 2084/921 Roebourne Lot 500 0029/1996 CL

[56]

(7) Special leases: 3116/00798 (but not insofar as it covers the Section 47B Area) 3116/04629 3116/07616 3116/10363 3116/01173 3116/04659 3116/07842 3116/10364 3116/01310 3116/04826 3116/07936 3116/10424 3116/01815 3116/04837 3116/08193 3116/10640 3116/02482 3116/04866 3116/08252 3116/10702 3116/03211 3116/04873 3116/08303 3116/10707 3116/03354 3116/04878 3116/08543 3116/10865 3116/03469 3116/04896 3116/08861 3116/10889 3116/03470 (but not insofar as it covers the Section 47B Area) 3116/04907 3116/08870 3116/11041 3116/03471 3116/04976 3116/09123 3116/11084 3116/03725 3116/04977 3116/09124 3116/11104 3116/03806 3116/04984 3116/09125 3116/11217 3116/03807 3116/05154 3116/09126 3116/11281 3116/04002 3116/05503 3116/09127 3116/11311 3116/04011 3116/05552 3116/09128 3116/11346 3116/04358 3116/05603 3116/09129 3116/11465 3116/05828 3116/09130 3116/11543 3116/04384 3116/05947 3116/09131 3116/11567 3116/04538 3116/05969 3116/09132 3116/11580 3116/04596 3116/06037 3116/09133 3116/11588 3116/04597 3116/06221 3116/09435 3116/11611 3116/04598 3116/06282 3116/09503 3116/11623 3116/04599 3116/06499 3116/09578 3116/11668 3116/04600 3116/06691 3116/09678 3116/11671 3116/04621 3116/06702 3116/09914 3116/11780 3116/04622 3116/06806 3116/10115 3116/4892 3116/04623 3116/06829 3116/10135 3116/10694 3116/04624 3116/06940 3116/10136 3116/04625 3116/06967 3116/10179 3116/04628 3116/07615 3116/10252

[58]

(9) Roads: Road ID Road No Road Name 1 155 2 156 3 279 4 371 5 388 North West Coastal Highway 6 390 Roebourne Wittenoom Road 7 391 8 392 9 393 10 407 11 432 North West Coastal Highway 12 656 13 657 14 658 15 1206 16 1644 18 7694 19 7695 20 7696 21 14625 22 14780 25 15215 26 15389 27 16088 28 18651 29 Road 30 Sams Creek Road 31 Point Samson Roebourne Road 32 Point Samson Roebourne Road 33 Point Samson Roebourne Road 34 Point Samson Roebourne Road 35 Road 36 Point Samson Roebourne Road 37 Point Samson Roebourne Road 39 North West Coastal Highway 40 15863 North West Coastal Highway 41 Croul Road 42 Road 43 15863 North West Coastal Highway 44 432 North West Coastal Highway 45 15863 North West Coastal Highway 46 Burrup Road 47 18785 Mof Road 48 Burrup, Village and Bay Roads 49 18741 Griffin Road 50 Hearson Cove and Burrup Roads 51 Burrup Road 52 16312 53 Cinders Road 54 Cinders Road 55 16211 Cinders Road 56 16211 Cinders Road 57 15444 Dampier Road 58 15444 Dampier Road 59 15444 60 15444 Dampier Road 61 Road 62 17821 Madigan Road 63 Rosemary Road 64 Gwen Road 65 Karratha Road 66 Corral Road 67 Mystery Road 68 Robins Road 69 18673 Kennels Road 70 388 71 Karratha Road 72 14530 73 17922 Madigan Road 74 Rankin Road 75 Roads 76 Roads 77 Roads 78 Roads 79 Jager Street 80 Jager Street, Samson Road and Murray Road 81 15861 Watson Street 82 14273 Samson Road 83 14274 Nairn Street 84 14272 Cleaverville Road 85 14275 86 Burrup Road and Lockyer Way 87 Roads 88 Cleaver Court 89 Roads 90 Roads 91 Roads 92 Roads 93 390 Scholl Street 94 390 Scholl Street 95 15597 Fisher Drive 96 13979 De Grey Street 97 13979 De Grey Street 98 15864 Jiwuna Way 99 Jiwuna Way 100 15863 North West Coastal Highway 101 Road 102 15863 North West Coastal Highway 103 15863 North West Coastal Highway 104 15863 North West Coastal Highway 105 Roads 106 13959 North West Coastal Highway Section of road 390 shown in Government Gazette 31 August 1893 page 869 3705 Portion of Point Samson - Roebourne Road Road on Deposited Plan 217003 Portion of Point Samson-Roebourne Road (shown on Deposited Plans 214781 and 214782) Hakea Place (shown on Deposited Plan 214782) Portion of Spinifex Road (shown on Deposited Plan 214782) as shown on Map 1 Tamarind Place (shown on Deposited Plan 214782)

[59]

(10) Resumptions: Parcel No Parcel Type (Whole or part of) 3116/4629 Special Lease 394/439 Pastoral Lease 3114/439 Pastoral Lease 3114/464 Pastoral Lease 3114/466 Pastoral Lease 3114/716 Pastoral Lease 28.01.1983 p 356 1240/869 Freehold 1240/868 Freehold 1240/867 Freehold 1067/369 Freehold R 611 Reserve R 613 Reserve part R 9701 Reserve R 30948 Reserve part R 31113 Reserve part R 31114 Reserve R 41012 Reserve Land marked off and more particularly described on Plan PWD WA 48208-1-3-4-5-6-7-8 Karratha Lot 4631, Crown land volume 3113 folio 465 Land shown on Deposited plans 194628 & 28085 Government Gazette Details (containing extent of resumption) 21.02.1995 pp 576, 577 09.08.1974 p 2966 09.08.1974 p 2966 18.05.1979 p 1329 09.08.1974 p 2966 18.05.1979 p 1329 23.08.1985 p 3005 23.08.1985 p 3005 23.08.1985 p 3005 23.08.1985 p 3005 21.02.1995 pp 576, 577 21.02.1995 pp 576, 577 18.05.1979 p 1330 28.10.1997 p 5977 18.05.1979 p 1330 18.05.1979 p 1330 28.10.1997 p 5977 18.05.1979 p 1329 Unallocated Crown land Taking order dated 20.11.2001 Unallocated Crown land Taking order dated 05.01.04

[60]

(11) Vested reserves: 492 30717 33666 36424 37967 40877 715 30871 33812 36633 38009 40879 1186 30872 33861 36708 38193 40896 1564 30948 33864 36778 38287 41012 1721 31289 33945 36800 38387 41049 1724 31429 34034 36813 38616 41092 1729 31446 34129 36889 38773 41275 4562 31624 34254 36907 38962 41594 12346 31815 34403 36908 39095 41636 12464 31950 34588 36909 39140 41666 12654 31999 34631 36910 39141 41739 15645 32059 34687 36911 39161 41764 17500 32209 34922 36912 39202 42039 18301 32318 34944 36913 39775 42080 24006 32465 35053 36915 39776 42311 24116 32980 35140 36991 39777 42337 24573 32981 35385 37120 39778 42399 25208 32987 35452 37121 39973 42820 25981 (but not insofar as it covers the Section 47B Area) 33023 35776 37140 40071 42850 27211 33134 35798 37294 40121 43195 28352 33135 35813 (but not insofar as it covers the Section 47B Area 37314 40146 43302 29092 33250 35823 37315 40174 43303 29304 33354 35892 37349 40206 43734 30071 33360 36408 37526 40457 44103 30450 33361 36409 37669 40599 44292 30617 33577 36416 37835 40718 44452 30649 33643 36423 40858

[86]

Thence southerly to the easternmost northeastern corner of Pastoral Lease 3114/558 (Sherlock Station); Thence southerly, westerly and again southerly along boundaries of that pastoral lease to a southeastern corner; Thence southeasterly to Latitude 21.025485 South, Longitude 117.880424 East; Thence southeasterly to Latitude 21.029842 South, Longitude 117.892260 East; Thence southeasterly to the westernmost northwestern corner of Reserve 31427; Thence southerly, easterly and again southerly along boundaries of that reserve to the northern boundary of Reserve 31429 (Mungaroona Range Nature Reserve); Thence easterly and generally southeasterly along boundaries of that reserve to a eastern corner at Latitude 21.809846 South; Thence westerly to Latitude 21.813716 South, Longitude 118.422139 East; Thence westerly to Latitude 21.817967 South, Longitude 118.301556 East; Thence westerly to a western corner of Pastoral Lease 3114/1173 (Hooley Station) at Latitude 21.827702 South; Thence westerly and southerly along boundaries of that pastoral lease to a northern boundary of Reserve 5515; Thence southerly to the intersection of the southern boundary of Reserve 5515 with a western boundary of Pastoral Lease 3114/1173 (Hooley Station); Thence southerly along that western boundary to a western corner of that pastoral lease and onwards to Latitude 21.955976 South, Longitude 118.020315 East; Thence westerly to a southeastern corner of Pastoral Lease 3114/1228 (Coolawanyah Station); Thence westerly along a southern boundary of that pastoral lease to a southeastern corner; Thence westerly to Latitude 21.955893 South, Longitude 117.494065 East; Thence westerly to Latitude 21.955894 South, Longitude 117.411064 East; Thence north to a eastern corner of Unallocated Crown; Thence northerly along a eastern boundary of that unallocated crown land to a southern boundary of Reserve 38991; Thence northerly and generally westerly along boundaries of that reserve to a northeastern boundary of Ashburton Location 148 (Reserve 38991); Thence northwesterly along that boundary to a eastern corner of Pastoral Lease 3114/1013 (Yalleen Station); Thence northerly, easterly and generally northwesterly along boundaries of that pastoral lease to Longitude 116.819303 East; Thence westerly to a western boundary of Special Lease 3116/4622 at Latitude 21.474046 South; Thence generally northerly along western boundaries of that special lease to a northern boundary of Reserve 38991; Thence westerly along that boundary of that reserve to a eastern boundary of Pastoral Lease 3114/1013 (Yalleen Station); Thence northerly and westerly along boundaries of that pastoral lease to Longitude 116.800532 East; Thence northerly to a southern boundary of Pastoral Lease 3114/716 (Mt Welcome Station) at Longitude 116.800535 East; Thence westerly, northerly, again westerly and again northerly along boundaries of that pastoral lease to its westernmost northwestern corner; Thence northerly to the southwestern corner of the southern severance of Reserve 356; Thence northerly along the western boundary of that severance to its northwestern corner; Thence northerly to and northerly along the western boundary of the northern severance of Reserve 356 to Latitude 20.844722 South; Thence northwesterly to Latitude 20.841057 South, Longitude 116.589897 East; Thence northwesterly to Latitude 20.836480 South, Longitude 116.582319 East; Thence northwesterly to a eastern corner of Reserve 9701 at Longitude 116.572288 East; Thence generally northwesterly along northeastern boundaries of that reserve to a northern corner; Thence northwesterly to the High Water Mark of the Indian Ocean at Longitude 116.546795 East; Thence generally northwesterly along that high water mark to Longitude 116.510163 East; Thence northwesterly to Latitude 20.783849 South, Longitude 116.508825 East; Thence northwesterly back to the commencement point.

[88]

Karratha All those lands and waters commencing at the intersection of a western boundary of Reserve 34922 with a northern side of Searipple Road and extending generally easterly along northern sides of that road to a western boundary of Reserve 44015; Thence northwesterly, northeasterly and southeasterly along boundaries of that reserve to a northern side of Searipple Road; Thence generally northeasterly along sides of that road to a southern boundary of Karratha Lot 1481 as shown on Department of Land Information Deposited Plan 182315; Thence westerly, northerly, easterly, southeasterly and southerly along boundaries of that lot to a northern boundary of Mystery Road; Thence generally southeasterly along sides of that road to Longitude 116.871324 East; Thence southerly to a southern side of Mystery Road at Longitude 116.871197; Thence northwesterly along sides of that road to a eastern side of Maitland Road; Thence southwesterly and generally southerly along eastern sides of that road to a northern side of Millstream Road; Thence southeasterly, southerly and northwesterly along sides of that road to a eastern boundary of Reserve 32197; Thence generally southwesterly, southeasterly, southwesterly, northwesterly, northeasterly, again southeasterly and generally northeasterly along boundaries of that reserve to a southern side of Millstream Road; Thence generally westerly and generally southwesterly along southern sides of that road and southern sides of Dampier Road to a eastern boundary of Reserve 34105; Thence generally southwesterly and westerly along boundaries of that reserve to a southeastern corner of Reserve 37085; Thence westerly and northwesterly along boundaries of that reserve to a eastern boundary of Reserve 37774; Thence southerly, southwesterly, again southerly and again southwesterly along boundaries of that reserve to a eastern side of Rosemary Road; Thence southwesterly to a western side of Rosemary Road at Latitude 20.755515 South; Thence northwesterly along western sides of that road to the easternmost corner of Karratha Lot 2636 as shown on Department of Land Information Deposited Plan 214685; Thence southwesterly, northwesterly and northerly along boundaries of that lot to a southern side of Radley Drive; Thence generally southwesterly along sides of that road to a eastern boundary of reserve 40708; Thence southerly, westerly and northerly along boundaries of that reserve to a southern side of Radley Drive; Thence generally southwesterly and generally northwesterly along sides of that drive to a southeastern side of Baynton Drive; Thence southwesterly, northwesterly and generally northeasterly along sides of that Drive to a southwestern boundary of Reserve 40989; Thence northwesterly, northeasterly and southeasterly along boundaries of that reserve to a western side of Baynton Drive; Thence generally northeasterly and generally northerly along sides of that drive to a southern side of Dampier Road; Thence generally westerly along southern sides of that road to the prolongation southerly of the western side of Balmoral Road; Thence northerly to and generally northerly, generally northeasterly and generally southeasterly along sides of that road to a northern boundary of Lot 2654 as shown on Department of Land Information Deposited Plan 184357; Thence northeasterly, northwesterly, again northeasterly and southwesterly along boundaries of that lot and onwards to the northernmost corner of Lot 4210 as shown on Department of Land Information Deposited Plan 29179; Thence southwesterly along the northwestern boundary of that lot to its westernmost corner; Thence northwesterly to the southernmost corner of Lot 2654 as shown on Department of Land Information Deposited Plan 184357; Thence northwesterly and southwesterly along boundaries of that lot to a northeastern side of Balmoral Road; Thence generally southeasterly along sides of that road to a northern side of a Closed Road as shown on Department of Land Information Deposited Plan 213104; Thence southeasterly along that side of that closed road to a northern side of Balmoral Road; Thence generally northeasterly along sides of that road to a northwestern side of Warambie Road; Thence easterly and generally northeasterly along sides of that road to the southeastern corner of Reserve 33666; Thence northwesterly along the northeastern boundary of that reserve to the westernmost corner of Reserve 41119, being Lot 4545; Thence northeasterly along the northern boundary of that lot and the northern boundary of Reserve 41120 to the westernmost northwestern corner of Lot 1121 as shown on Department of Land Information Deposited Plan 175620; Thence northeasterly and southeasterly along boundaries of that lot to a western side of Searipple Road; Thence generally northeasterly and generally easterly along sides of that road back to the commencement point.

[89]

All those lands and waters commencing at the northernmost corner of the northeastern severance of Reserve 35098 and extending southeasterly along the eastern boundary of that severance to the northwestern boundary of Reserve 35097; Thence northeasterly along that boundary of that reserve to the southernmost corner of reserve 31834; Thence northwesterly, northeasterly and southeasterly along boundaries of that reserve to the northwestern boundary of Reserve 35097; Thence northeasterly and southeasterly along boundaries of that reserve to a northern boundary of Karratha Lot 2567 as shown on Department of Land Information Deposited Plan 214664; Thence northeasterly along the northern boundary of that lot to a western boundary of Unallocated Crown Land, previously Lot 1058 as shown on Department of Land Information Deposited Plan 211552; Thence northerly, easterly, southeasterly and southwesterly along boundaries of that unallocated crown land to the easternmost boundary of Karratha Lot 4601 as shown on Department of Land Information Deposited Plan 35280; Thence southwesterly along the southeastern boundary of that lot to the northernmost corner of the northern severance of Reserve 32318; Thence southwesterly along the northwestern boundary of that severance to its westernmost corner; Thence southwesterly to the northernmost corner of the southern severance of Reserve 32318; Thence generally southwesterly along northwestern boundaries of that severance to a northern boundary of Pastoral Lease 3114/464 (Karratha Station); Thence generally southwesterly along boundaries of that pastoral lease to a eastern side of Karratha Road; Thence northerly along that side of that road to the southernmost corner of the southeastern severance of Lot 971; Thence southwesterly to the southeastern corner of the southwestern severance of Lot 971; Thence southwesterly and northerly along boundaries of that lot to the southwestern corner of Venn Road; Thence northerly and northeasterly along sides of that road to a western side of Karratha Road; Thence generally northerly along western sides of that road to the prolongation southwesterly of the northern side of Mooligunn Road; Thence northeasterly to and northeasterly, easterly and southeasterly along northern sides of that road to a western boundary of the southwestern severance of Reserve 35098; Thence generally northeasterly along boundaries of that severance to a western side of Keating Road; Thence generally northeasterly along sides of that road to a southwestern boundary of the northeastern severance of Reserve 35098; Thence northwesterly and northeasterly along boundaries of that severance back to the commencement point.

[119]

Area No. Location (general) Extinguishing act(s) disregarded But not including the following areas: 132 Point Samson Part vested reserve 35813 and vested reserve 37932 133 Point Samson Special lease 3116/04371 148 Cossack Part vested reserve 25981 Not part covered by E47/650 183 Roebourne Part vested reserve 31768, part De Witt Location 15, part De Witt Location 11, part North Location 36 Not part within townsite, part covered by easements 3134B/604, 3134B/55(1) and 3134B/43, road 42 and Cape Lambert Supply Main Extension 241B Karratha Station Part special lease 3116/03470 Not part covered by ML253SA 241C Karratha Station Part special lease 3116/03470 Not part covered by E47/635, E47/645, easement 3134B/211 322 Roebourne Town grant 5/1324, part town grants 6/258 and 6/357 342 Roebourne Part special lease 3116/00798; part vested reserve 21807 Part 502 Cossack Town grants 11/92 and 11/94 512 Cossack Town grants 5/1320 and 6/82, part town grants 5/1321 and 5/1322 Not part covered by E47/512 515 Cossack Town grant 8/479 532 Cossack Town enrolments 2915, 2925, 3085 and 3093; Town grants 2/231, 2/482, 2/484, 2/499, 3/500, 3/630, 5/1211, 5/1319, 7/245 533 Cossack Certificates of title 3/231 and 7/397; Town enrolments 2918, 3089, 3091; Town grant 5/1212 Not part covered by Cossack Radio Transmitter 535 Cossack Town grants 2/468, 2/483, 3/535, 5/1265, 5/1272, 5/1282, 5/1317 and 9/656 Part 538 Cossack Town grants 9/550, 9/551, 9/552, 9/553 and 9/544 542 Cossack Lease 1138/152

Parties

Applicant/Plaintiff:

Holborow

Respondent/Defendant:

State of Western Australia

Legislation Cited (26)

Workers' Compensation and Rehabilitation Act 1981(WA)

Mining Act 1904(WA)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Land Act 1933(WA)

Wildlife Conservation Act 1950(WA)

By-lawsunder the Country Areas Water Supply Act 1947(WA)

Federal Court of Australia Act 1976(Cth)s 31A

Native Title Act 1993(Cth)ss 13(1), 61, 61A(2), 84C, 84(5), 86, 85A, 223, 223(1)

Mining Act 1978(WA)

Petroleum Act 1936(WA)

Petroleum Act 1967(WA)

Dampier to Bunbury Pipeline Act 1997(WA)

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995(WA)

Post and Telegraph Act 1901(Cth)

Telecommunications Act 1997(Cth)

Land Administration Act 1997(WA)

Fish Resources Management Act 1994(WA)

Jetties Act 1926(WA)

Conservation and Land Management Act 1984(WA)

Rights in Water and Irrigation Act 1914(WA)

Transport Co-ordination Act 1966(WA)

Water Services Coordination Act 1995(WA)

Country Areas Water Supply Act 1947(WA)

Local Government Act 1960(WA)

Cases Cited (37)

Holborow v State of Western Australia [2009] FCA 1200

Australian Building Industries Pty Ltd v Stramit Corporation Limited & Anor [1997] FCA 1318 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) (2001) 119 FCR 1 Blair v Currun (1939) 62 CLR 464 Bodney v Bropho (2004) 140 FCR 77 Canada and Dominion Sugar Company Limited v Canadian National (West Indies) Steamships Limited [1947] AC 46 Carl Zeiss Stiftung v Rayner & Keeler Ltd [No.2] [1967] 1 AC 853 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 Dale v Moses [2007] FCAFC 82 Daniel v State of Western Australia [2003] FCA 666 Daniel v Western Australia [2005] FCA 536 De Rose v South Australia (No 2) (2005) 145 FCR 290 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 Egri v DRG Australia Ltd (1988) 19 NSWLR 600 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 Kuligowski v Metrobus (2004) 220 CLR 363 Lancee v Willert [2008] WASCA 120 Lombardo v Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159 Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 Moses v Western Australia (2007) 160 FCR 148 Munn v State of Queensland [2002] FCA 486 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 Phillips v State of Western Australia [2000] FCA 1274 Quall v Northern Territory of Australia [2009] FCA 18 Risk (on behalf of Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) (2007) 240 ALR 75 Risk v Northern Territory of Australia [2006] FCA 404 Rubibi Community v Western Australia (2002) 120 FCR 512 Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 Squires Transport Pty Ltd v Turnor [2004] WASCA 245 Supreme Court of the United States in Cromwell v County of Sac (1876) 94 US 351 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185 Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967 Webster v Lampard (1993) 177 CLR 598 Williams v Grant [2004] FCAFC 178 Wyatt v MR and RC Smith Pty Ltd [2008] WASCA 55

Cited By (7)

Blucher on behalf of the Gaangalu Nation People v State of Queensland

Chippendale on behalf of the Wuthathi People #2 v State of Queensland

Foster on behalf of the Gunggari People #4 v State of Queensland

Kum Sing on behalf of the Mitakoodi People # 5 v State of Queensland

McKellar on behalf of the Wongkumara People v State of Queensland

Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland

Vea Vea on behalf of the Wadja People v State of Queensland