AC (deceased) v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 01 July 2021
• Neutral Citation: [2021] FCA 735
• Court: Federal Court
• Date: 01 July 2021

Federal Court of Australia

AC (deceased) v State of Western Australia [2021] FCA 735

File number:	WAD 24 of 2011
Judgment of:	MCKERRACHER J
Date of judgment:	1 July 2021
Catchwords:	NATIVE TITLE – summary dismissal of native title determination claim – where the claim area is almost entirely coterminous with areas the subject of Indigenous Land Use Agreements (ILUAs) – where the only portion of the claim area not covered by the ILUAs is seaward of the three nautical mile limit – where the ILUAs operate to relinquish native title over the claim area from the ‘Native Title Resolution Date’ – where the Native Title Resolution Date has already passed
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(2). 31A(3) Native Title Act 1993 (Cth) ss 24CG(3)(b)(i), 24CH, 24CI, 24EA(1) 24EA(1)(b), 24EB(2), 24EBA(3), 61, 190C(3), 203BE(5), 223(1), 251A, 251A(a), 251A(b), Pt 8A Federal Court Rules 2011 (Cth) rr 26.01, r 26.01(1), Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA)
Cases cited:	Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120 Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84 Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 Clement v Australian Bureau of Statistics [2016] FCA 948 Corunna v Native Title Registrar [2013] FCA 372 Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Gardiner v Taungurung Land and Waters Council [2021] FCA 80 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 Kelly (on behalf of Byron Bay Bundjalung People) v NSW Aboriginal Land Council [2001] FCA 1479 Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38 McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 251 FCR 172 McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; (2019) 374 ALR 329 Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 QGC Pty Ltd v Bygrave [2011] FCA 1457; (2011) 199 FCR 94 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Yarran v South West Aboriginal Land & Sea Council Aboriginal Corporation [2020] HCATrans 202 Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	59
Date of last submissions:	27 May 2021 (Applicant) 9 June 2021 (First Respondent)
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Members of the Applicant filed submissions
Counsel for the First Respondent:	Mr AJ Carr
Solicitor for the First Respondent:	State Solicitor’s Office
Solicitor for Second to Sixth Respondents:	The Second to Sixth Respondents did not file submissions

ORDERS

		WAD 24 of 2011
BETWEEN:	AC, RICHARD WILKES, BELLA BROPHO, VW, GG, CD AND KP Applicant
AND:	STATE OF WESTERN AUSTRALIA First Respondent ; THE COMMONWEALTH OF AUSTRALIA Second Respondent ; CITY OF BAYSWATER, CITY OF BELMONT, CITY OF CANNING ABN 80 227 965 466, CITY OF COCKBURN, CITY OF FREMANTLE, CITY OF JOONDALUP, CITY OF KWINANA, CITY OF MELVILLE, CITY OF NEDLANDS, CITY OF SUBIACO, CITY OF SWAN, CITY OF WANNEROO, SHIRE OF KALAMUNDA, SHIRE OF MUNDARING, SHIRE OF PEPPERMINT GROVE, SHIRE OF SERPENTINE JARRAHDALE, SHIRE OF TOODYAY, TOWN OF BASSENDEAN, TOWN OF CAMBRIDGE, TOWN OF CLAREMONT, TOWN OF COTTESLOE, TOWN OF EAST FREMANTLE, TOWN OF MOSMAN PARK AND TOWN OF VICTORIA PARK Third Respondents ; SOUTH WEST ABORIGINAL LAND & SEA COUNCIL Fourth Respondent ; ADELAIDE BRIGHTON CEMENT LIMITED, ALCOA OF AUSTRALIA LIMITED, COCKBURN CEMENT LTD, DBNGP (WA) NOMINEES PTY LTD, DBNGP (WA) TRANSMISSION PTY LTD, JAPAN ALUMINA ASSOCIATES (AUSTRALIA) PTY LTD, SOJITZ ALUMINA PTY LTD, SOUTH32 ALUMINIUM (RAA) PTY LTD ACN 095 831 119 AND SOUTH32 ALUMINIUM (WORSLEY) PTY LTD ACN 088 336 921 Fifth Respondents ; AMP LIFE LIMITED (ACN 079 300 379), APF MANAGEMENT PTY LTD AND PERRON INVESTMENTS PTY LTD Sixth Respondents

order made by:	MCKERRACHER J
DATE OF ORDER:	1 JULY 2021

THE COURT ORDERS THAT:

1. The proceedings be summarily dismissed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1. In this matter, the first named respondent (the State) applies pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or, alternatively, r 26.01 of the Federal Court Rules 2011 (Cth) for summary dismissal of the applicant’s case. More particularly, it applies for the whole of the applicant’s amended ‘Native Title Determination Application Claimant Application’ dated 2 July 2013 (Amended Form 1), or the part thereof covered by four indigenous land use agreements (ILUAs) registered on 17 October 2018, to be dismissed on the grounds that there is no reasonable prospect of successfully prosecuting the proceeding. This is said to be because any native title rights or interests which may have existed in relation to the land and waters covered by the Amended Form 1 have been wholly extinguished under the ILUAs pursuant to s 24EB(2) and s 24EBA(3) of the Native Title Act 1993 (Cth).

2. As revealed in the supporting affidavit of Mr Daniel Gorman, from the State Solicitor’s Office, the Noongar/Nyoongar/Nyungar/Nyoongah people are an Aboriginal cultural bloc who are recognised and acknowledged under the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) (the Noongar Recognition Act) as the traditional owners of land and waters in the South West of Western Australia, from Geraldton on the west coast to Esperance on the south coast. There are between 30,000 and 40,000 Noongar people in Western Australia.

3. The applicant is comprised of persons who are Noongar people and are amongst the respected and acknowledged traditional owners with ties to the Perth metropolitan area and elsewhere in the South West of Western Australia. Many of the persons who are jointly the applicant (including those who are now deceased) have been involved, with others, in prosecuting various native title claims on behalf of the Noongar people, including by giving evidence about relevant Noongar traditional laws and customs to Wilcox J in Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120. In Bennell, his Honour recognised (at [841]-[848]) the right of the Noongar people to occupy, use and enjoy lands and waters in the Perth metropolitan area, subject to the principle of extinguishment. That decision, finding the existence of native title rights, was reversed on appeal in Bodney v Bennell [2008] FCAFC 63; (2008) 167...