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

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 21 May 2019
• Neutral Citation: [2019] FCA 655
• Court: Federal Court
• Date: 21 May 2019

FEDERAL COURT OF AUSTRALIA

Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655

File number:	WAD 41 of 2019
Judge:	MORTIMER J
Date of judgment:	21 May 2019
Catchwords:	NATIVE TITLE – consent determination – agreement of the parties – where interlocutory application brought prior to determination seeking orders under s 66B of the Native Title Act 1993 (Cth) to replace the applicant – where newly constituted applicant duly authorised by claim group – requirements of s 66B of the Native Title Act 1993 (Cth) satisfied – requirements of s 87A of the Native Title Act 1993 (Cth) satisfied – appropriate to make orders
Legislation:	Native Title Act 1995 (Cth) ss 47B, 55, 56, 57, 61, 66, 66B, 87, 87A, 225 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited:	Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Lander v South Australia [2012] FCA 427 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 PC on behalf of the Njamal People v State of Western Australia [2016] FCA 462 Stock v State of Western Australia [2014] FCA 179 Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255
Date of hearing:	Determined on the papers
Date of last submissions:	8 March 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	49
Solicitor for the Applicant:	Ms Justine Toohey of the Kimberley Land Council Aboriginal Corporation
Solicitor for the State of Western Australia:	Ms Sheila Begg of the State Solicitor’s Office
Solicitor for Telstra Corporation Limited:	Mr Scott Evan Singleton of King & Wood Mallesons
Solicitor for the Shire of Halls Creek:	Mr Peter Wittkuhn of McLeods

ORDERS

		WAD 41 of 2019
BETWEEN:	JOSEPHINE FARRER, MATT DAWSON, PHYLLIS WALLABY, MARTY STEVENS, MARK BIN BAKAR AND GREGORY DONALD TAIT Applicant
AND:	STATE OF WESTERN AUSTRALIA First Respondent ; TELSTRA CORPORATION LIMITED Second Respondent ; SHIRE OF HALLS CREEK Third Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	21 may 2019

THE COURT NOTES THAT:

A. Pursuant to section 87A(2) 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.

B. 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 section 87A(4) 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. 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 87A 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. Within twelve months of the date upon which these orders are made, 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:

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

(b) including within 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 to be 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 Schedules 3 and 4 (Native Title Area).

3. Native title does not exist in those parts of the Determination Area identified in Schedule 5.

Native title holders (s225(a))

4. 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 6.

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

5. Subject to paragraphs 8, 9 and 10 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.

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

Non-exclusive rights and interests

6. Subject to paragraphs 7, 8, 9 and 10 the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 (being areas where there has been a partial extinguishment of native title and where any extinguishment is not required to be disregarded) are that they confer the following non-exclusive rights on the Native Title Holders.

(a) The right to have access to, remain in and use that part, which includes but is not limited to the following activities:

(i) to access and move freely through and within that part;

(ii) to live, being to enter and remain on, camp and erect temporary shelters and other structures for those purposes on that part;

(iii) to light controlled contained fires but not for the clearance of vegetation;

(iv) to engage in cultural activities in that part, including the transmission of cultural heritage knowledge; and

(v) to hold meetings in that part.

(b) The right to access and take for any purpose the resources on that part, which includes but is not limited to the following activities:

(i) to access and take water, other than water which is lawfully captured or controlled by the holders of pastoral leases.

(c) The right to protect places, areas and sites of traditional significance on that part, which includes but is not limited to the following activities:

(i) to conduct and participate in ceremonies in...