Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 08 July 2020
• Neutral Citation: [2020] FCA 929
• Date: 08 July 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929

File number:	WAD 569 of 2019
Judge:	MORTIMER J
Date of judgment:	8 July 2020
Catchwords:	NATIVE TITLE – consent determination – consequent dismissal of part of existing application – agreement of the parties – requirements of s 87 of the Native Title Act 1993 (Cth) satisfied – appropriate to make orders – purpose of s 67 and s 68 – meaning of “dealt with in the same proceeding”
Legislation:	Native Title Act 1995 (Cth) ss 47B, 56, 57, 66, 67, 68, 87, 87A, 190A
Cases cited:	Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 Lander v South Australia [2012] FCA 427 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34
Date of hearing:	Determined on the papers
Date of last submissions:	13 May 2020
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	45
Solicitor for the Applicant:	Ms Justine Toohey of the Kimberley Land Council
Solicitor for the State of Western Australia:	Ms Sheila Begg of the State Solicitor’s Office

ORDERS

		WAD 569 of 2019
BETWEEN:	JOSEPHINE FARRER, GREGORY DONALD TAIT, MATT DAWSON, PHYLLIS WALLABY, MARTY STEVENS AND MARK BIN BAKAR Applicant
AND:	STATE OF WESTERN AUSTRALIA Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	8 July 2020

THE COURT NOTES THAT:

1. Pursuant to section 87(1) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings.

2. The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of this proceeding pursuant to sections 87(2) and 94A of the Native Title Act 1993 (Cth).

In these circumstances and with the consent of the parties, THE COURT DETERMINES, DECLARES AND ORDERS THAT:

1. It is satisfied that an order in the terms proposed in the attached Minute of Consent Determination of Native Title is within the power of the Court and is appropriate to be made pursuant to section 87 of the Native Title Act 1993 (Cth).

2. There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached. The determination is to take effect immediately upon the making of a determination under section 56(1) or 57(2) of the Native Title Act 1993 (Cth), as the case may be.

3. On or before 7 December 2020, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom. They are to do so by:

   1. nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and

   2. including with the nomination the written consent of the body corporate.

4. If a prescribed body corporate is nominated in accordance with order 3, it will hold the native title rights and interests described in order 1 in trust for the common law holders of the native title rights and interests.

5. In the event that there is no nomination within the time specified in order 3, or such later time as the Court may order, the matter is listed for further directions.

6. There be no order as to costs.

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

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s225)

1. The Determination Area is the land and waters described in Schedule 1 and depicted on the maps comprising Schedule 2.

2. Native title exists in those parts of the Determination Area identified in Schedule 3 (Native Title Area).

Native title holders (s225(a))

3. The native title in the Determination Area is held by the native title holders. The native title holders are the people referred to in Schedule 4.

The nature and extent of native title rights and interests (s225(b)) and exclusiveness of native title (s225(e))

Exclusive native title rights and interests

4. Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of that part of the Determination Area as against the whole world.

5. Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to:

1. minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);

2. petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA);

3. geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

4. water lawfully captured by the holders of Other Interests,

except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

6. Native title rights and interests are subject to and exercisable in accordance with:

   1. the laws of the State and the Commonwealth, including the common law; and

   2. the traditional laws and customs of the Native Title Holders.

7. For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water.

Areas to which s47B of the Native Title Act applies

8. Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule 5.

The nature and extent of any other interests

9. The nature and extent of other rights and interests in relation to the Determination Area are those set out...