Drury on behalf of the Nanda People v State of Western Australia

• Jurisdiction: Australia Federal only
• Judge: COLVIN J
• Judgment Date: 24 July 2019
• Neutral Citation: [2019] FCA 1138
• Date: 24 July 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Drury on behalf of the Nanda People v State of Western Australia [2019] FCA 1138

File numbers:	WAD 30 of 2019 WAD 339 of 2018 WAD 402 of 2018
Judge:	COLVIN J
Date of judgment:	24 July 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 would be appointed over the shared area - whether such a determination could be made - orders for further submissions before final determination
Legislation:	Native Title Act 1993 (Cth) ss 11, 13, 17, 20, 22D, 24BC, 24BD, 48, 49, 51A, 55, 56, 57, 61, 61A, 62, 66, 67, 68, 87, 87A, 94A, 185, 190A, 190B, 213, 223, 224, 225, 251B Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth )
Cases cited:	Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456 Brown v Northern Territory of Australia [2015] FCA 1268 Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254 Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Fejo v Norther Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 Freddie v Northern Territory [2017] FCA 867 Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 Lander v State of South Australia [2012] FCA 427 Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 Oxenham on behalf of the Malgana People v State of Western Australia [2018] FCA 1929 Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183 Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 Ward v State of Western Australia [2006] FCA 1848 Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Date of hearing:	Determined on the papers
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	49
In WAD 30 of 2019:
Solicitor for the Applicant:	Mr C McKellar 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:	Ms C Tan and Ms M Highfold 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:	Ms C Tan and Ms M Highfold of Yamatji Marlpa Aboriginal Corporation
Solicitor for the State of Western Australia:	Ms A Warren of the State Solicitors Offic
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:	24 July 2019

THE COURT ORDERS THAT:

1. There be liberty to the parties to provide further submissions and affidavits in support of the application for a consent determination.

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

REASONS FOR JUDGMENT

COLVIN J:

1. In the present case, I am asked to make a determination of native title by consent on the papers. The proposed orders, if made, would recognise non‑exclusive native title rights over an area of land near the town of Shark Bay in Western Australia (Shared Area) held by both the Malgana People and the Nanda People. It would also recognise native title in a separate nearby area (Malgana Area) as being held by the Malgana People.

2. As to the Shared Area, the proposed orders would provide for what is described as the separate but shared native title interest of each of the Malgana People and the Nanda People to be held by separate prescribed bodies corporate. As to the Malgana Area there would be a single prescribed body corporate.

3. The proposed declaration of native title as to the Shared Area is in the following terms:

The native title in the Shared Area is held by the Malgana People and the Nanda People.

4. The proposed consent determination concerns three applications, one brought by the Nanda People...