Drury on behalf of the Nanda People v State of Western Australia (No 2)

• Jurisdiction: Australia Federal only
• Judge: COLVIN J
• Judgment Date: 04 October 2019
• Neutral Citation: [2019] FCA 1642
• Date: 04 October 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Drury on behalf of the Nanda People v State of Western Australia (No 2) [2019] FCA 1642

File numbers:	WAD 30 of 2019 WAD 339 of 2018 WAD 402 of 2018
Judge:	COLVIN J
Date of judgment:	4 October 2019
Catchwords:	NATIVE TITLE - application for determination of native title by consent recognising non-exclusive native title rights held by two groups over a shared area - where two separate prescribed bodies corporate sought to be appointed over the shared area - consideration whether to receive further submissions as to whether certain questions should be reserved for consideration by the Full Court pursuant s 25(6) of the Federal Court of Australia Act 1976 (Cth) - orders made convening a case management hearing for the making of further submissions
Legislation:	Native Title Act 1993 (Cth) ss 56, 57, 87 Federal Court of Australia Act 1976 (Cth) ss 25, 26
Cases cited:	Altintas v O'Dea Lawyers [2018] FCAFC 165 Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 Daniel v Sate of Western Australia [2003] FCA 666 Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254 Deeral on behalf of herself and the Gamaay Peoples v Charlie [1997] FCA 1408 Drury on behalf of the Nanda People v Western Australia [2019] FCA 1138 Henderson v Pioneer Homes Pty Ltd [1979] FCA 24; (1979) 38 FLR 460 Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932 Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703 Thompson v Riley Mckay Pty Ltd (No 3) [1979] FCA 35; (1979) 40 FLR 70
Date of hearing:	Determined on the papers
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	22
In WAD 30 of 2019:
Solicitor for the Applicant:	Mr C Trees of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Ms A Warren of the State Solicitors Office
Solicitor for the Yamatji Marlpa Aboriginal Corporation:	Yamatji Marlpa Aboriginal Corporation
Solicitor for Gabor Holdings Pty Ltd:	Cornerstone Legal
In WAD 339 of 2018:
Solicitor for the Applicant:	Mr C Trees of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Ms A Warren of the State Solicitors Office
Solicitor for Shire of Shark Bay:	Shire of Shark Bay
In WAD 402 of 2018:
Solicitor for the Applicant:	Mr C Trees of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Ms A Warren of the State Solicitors Office
Solicitor for Shire of Shark Bay:	Shire of Shark Bay

ORDERS

		WAD 30 of 2019
BETWEEN:	VIOLET DRURY, COLLEEN DRAGE, JOHN STEPHEN DRAGE, STEVEN KELLY (FATHER OF MARRICK KELLY), STEVEN KELLY (GRANDSON OF CORNELIUS KELLY), WILLIAM MALLARD JR, WILLIAM MALLARD SR, NORA MALLARD, GWEN MITCHELL, HELEN NUTTER, ANNETTE PEPPER, JUNE RUFFIN, MARY TULLOCK, GERALD JOHN WHITBY, LORRAINE WHITBY, JANET WILSON Applicant
AND:	STATE OF WESTERN AUSTRALIA, JAMES MICHAEL DREW, LORETO MARY DREW, YAMATJI MARLPA ABORIGINAL CORPORATION, GARBOR HOLDINGS PTY LTD, TELSTRA CORPORATION LIMITED Respondent

		WAD 339 of 2018
BETWEEN:	JOHN THOMAS OXENHAM, SARAH LOUISE BELLOTTIE, TERRENCE GORDON MCKIE, BIANCA ELISE MCNEAIR, DENISE CHARMAINE MITCHELL, LESLIE ANTHONY O'NEILL, ALBERT DARBY WINDER Applicant
AND:	STATE OF WESTERN AUSTRALIA, SHIRE OF SHARK BAY Respondent

		WAD 402 of 2018
BETWEEN:	JOHN THOMAS OXENHAM, SARAH LOUISE BELLOTTIE, TERRENCE GORDON MCKIE, BIANCA ELISE MCNEAIR, DENISE CHARMAINE MITCHELL, LESLIE ANTHONY O'NEILL, ALBERT DARBY WINDER Applicant
AND:	STATE OF WESTERN AUSTRALIA, SHIRE OF SHARK BAY Respondent

JUDGE:	COLVIN J
DATE OF ORDER:	4 OCTOBER 2019

THE COURT ORDERS THAT:

1. There be a case management hearing in these proceedings on a date to be fixed.

2. Any party wishing to make submissions as to the matters referred to in the reasons of the Court published today, do file and serve a minute of any orders to be sought at least two clear days before the case management hearing.

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

REASONS FOR JUDGMENT

COLVIN J:

1. I am asked to make a determination of native title by consent on the papers. In deciding whether to make such a determination the Court must be satisfied that an order in the terms sought would be within the power of the Court and would conform to the requirements of the Native Title Act 1993 (Cth): see s 87.

2. If made, the proposed consent orders would result in two prescribed bodies corporate each being responsible for the separate but shared native title interest of each of the Malgana People and the Nanda People over the same area of land (Shared Area). In an earlier decision, I identified three questions that arise in circumstances where the parties invite the Court to make orders of that kind: Drury on behalf of the Nanda People v Western Australia [2019] FCA 1138. I expressed those questions in the following terms at [20]:

First, can the Court make a determination of native title of a kind that would identify separate holders of native title in respect of the same area? Second, does the proposed consent determination purport to identify separate holders or does it identify the Malgana People and the Nanda People as two peoples who together are the native title holders for the area on a shared basis? Third, if the court can make a determination of a kind that would identify separate holders and the determination proposes a determination of that kind, has a proper basis been demonstrated for the making of such a determination in this case?

3. Before finally deciding whether to make the proposed consent determination, I provided interested parties with an opportunity to provide further submissions and affidavits as to those matters. Joint submissions have been received from a solicitor acting for both groups of applicants and the State of Western Australia. No further affidavits have been provided.

4. As to the first question, I am satisfied that the Court can made a determination of native title of a kind that would identify separate holders of native title in respect of the same area. Overlapping native title rights and interests held by different groups have been recognised in a number of decided cases.

5. As to the second question, the parties have stated by their further joint written submissions that the native title proposed to be declared is separate for each of the Nanda People and the Malgana People. Even though the declaration is proposed to be expressed as 'native title in the Shared Area is held by the Malgana People and the Nanda People' what is intended is that there be separate and distinct native title to be determined as being held by each group, but in respect of the same area, namely the Shared Area. The rights are to be described in the same terms, but are not communal rights held by all of the Malgana People and the Nanda People as one society. Rather, each group is to be declared as separately holding communal native title interests of the kind described for the same area. It is in that sense that they are overlapping.

6. It is said that the form of the proposed consent determination is similar to that expressed in Lovett on...