Drury on behalf of the Nanda People v State of Western Australia (No 3)

• Jurisdiction: Australia Federal only
• Judge: COLVIN J
• Judgment Date: 04 November 2019
• Neutral Citation: [2019] FCA 1812
• Date: 04 November 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Drury on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812

File numbers:	WAD 30 of 2019 WAD 339 of 2018 WAD 402 of 2018
Judge:	COLVIN J
Date of judgment:	4 November 2019
Catchwords:	NATIVE TITLE - application for determination of native title by consent - where proposed orders would result in two prescribed bodies corporate for the same area of land - orders determining native title made except for those relating to the two prescribed bodies corporate - questions referred to the Full Court
Legislation:	Native Title Act 1993 (Cth) Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Cases cited:	Drury on behalf of the Nanda People v State of Western Australia [2019] FCA 1138 Drury on behalf of the Nanda People v State of Western Australia (No 2) [2019] FCA 1642 James v State of Western Australia [2009] FCA 1262 Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Date of hearing:	4 November 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	8
In WAD 30 of 2019:
Solicitor for the Applicant:	Mr C McKellar of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Mr GJ Ranson of the State Solicitors Office
Solicitor for the Yamatji Marlpa Aboriginal Corporation:	Yamatji Marlpa Aboriginal Corporation
Solicitor for Gabor Holdings Pty Ltd:	Mr AJ Carr of Cornerstone Legal
In WAD 339 of 2018:
Solicitor for the Applicant:	Dr CL Tan of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Mr GJ Ranson of the State Solicitors Office
Solicitor for Shire of Shark Bay:	Shire of Shark Bay
In WAD 402 of 2018:
Solicitor for the Applicant:	Dr CL Tan of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Mr GJ Ranson 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 NOVEMBER 2019

THE COURT NOTES THAT:

A. The Applicant in proceeding WAD 30 of 2019 has made a native title determination application (Nanda Application).

B. The Applicant in proceeding WAD 339 of 2018 has made a native title determination application (Malgana #2 Application).

C. The Applicant in proceeding WAD 402 of 2018 has made a native title determination application (Malgana #3 Application).

D. On 28 November 2018 the Federal Court of Australia made a determination of native title pursuant to s 87A of the Native Title Act 1993 (Cth) (Native Title Act) in respect of part of the land and waters the subject of the Nanda Application: Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 (Drury). That part of the Nanda Application which was not the subject of the determination of native title in Drury included that portion of the Nanda Application which was geographically overlapped by the Malgana #2 Application and native title determination application WAD 6119 of 1998 (Mullewa Wadjari Community Application).

E. Pursuant to s 64(1B) of the Native Title Act, following the determination in Drury, the Nanda Application was deemed to be amended to remove the area of the determination and, accordingly, the area of the Nanda Application currently comprises only those portions of the Nanda Application which is overlapped by the Malgana #2 Application and the Mullewa Wadjari Community Application.

F. On 4 December 2018 the Federal Court of Australia made a determination of native title pursuant to s 87A of the Native Title Act in respect of part of the land and waters the subject of native title determination application WAD 6236 of 1998 (Malgana Application): Oxenham on behalf of the Malgana People v State of Western Australia [2018] FCA 1929 (Oxenham). That part of the Malgana Application which was not the subject of the determination of native title in Oxenham was that portion of the Malgana Application which was geographically overlapped by the Malgana #3 Application. The Malgana #3 Application was made to take advantage of the application of s 47B of the Native Title Act.

G. Pursuant to s 64(1B) of the Native Title Act, following the determination in Oxenham, the Malgana Application was deemed to be amended to remove the area of the determination and, accordingly, the area of the Malgana Application is currently the same as the area of the Malgana #3 Application.

H. The Applicants in the Nanda Application, the Malgana #2 Application, the Malgana #3 Application, the State of Western Australia and the other Respondents to those Applications (the parties) have reached an agreement as to the terms of the determination which is to be made in relation to an area that comprises the whole of the land and waters covered by the Malgana #2 Application and the Malgana #3 Application (the Determination Area). The external boundaries of the Determination Area are described in Schedule One to the determination.

I. The Applicant in the Malgana Application has agreed to the dismissal of the Malgana Application in order to facilitate the determination sought in respect of the Malgana #3 Application.

J. The parties have agreed that, in respect of the balance of the land and waters the subject of the Nanda Application (being that portion of the Nanda Application which is overlapped by the Mullewa Wadjari Community Application), no determination is to be made at present.

K. Pursuant to s 87A(1)(d), (2) and (4) of the Native Title Act (in respect of the Nanda Application) and s 87(1), (1A) and (2) of the Native Title Act (in respect of the Malgana #2 Application and the Malgana #3 Application) the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to those applications.

L. The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A (in respect of the Nanda Application) and s 87 (in respect...