Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 11 August 2020
• Neutral Citation: [2020] FCA 1149
• Court: Federal Court
• Date: 11 August 2020

Federal Court of Australia

Gordon on behalf of the Malarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149

File number:	WAD 568 of 2019
Judgment of:	BANKS-SMITH J
Date of judgment:	11 August 2020
Catchwords:	NATIVE TITLE - consent determination - where area subject to prior application but excised from prior determination - excised area subject of new application - ancillary order to prevent duplication of determinations over same area - requirements of s 87 of the Native Title Act 1993 (Cth) satisfied - appropriate to make orders
Legislation:	Native Title Act 1993 (Cth) ss 47B, 56, 57, 61, 62A, 64, 66, 67, 68, 87, 94A, 223, 225
Cases cited:	Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929 Freddie v Northern Territory [2017] FCA 867 John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697 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
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	55
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr D D'Antoine
Solicitor for the Applicant:	Kimberley Land Council
Counsel for the Respondent:	Ms S Begg
Solicitor for the Respondent:	State Solicitor's Office

ORDERS

		WAD 568 of 2019
BETWEEN:	PEARL GORDON, BERNARD STRETCH, GORDON BARNEY, MABEL PETERS, MR R PETERS, SHIRLEY PURDIE, PADDY MCGINTY, MARY THOMAS & QUEENIE MALGIL Applicant
AND:	STATE OF WESTERN AUSTRALIA Respondent

order made by:	BANKS-SMITH J
DATE OF ORDER:	11 AUGUST 2020

THE COURT NOTES THAT:

A. Pursuant to s 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.

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 s 87(2) and s 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 s 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 s 56(1) or s 57(2) of the Native Title Act 1993 (Cth), as the case may be.

3. On or before 31 May 2021 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 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 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 (s 225)

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 (s 225(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 (s 225(b)) and exclusiveness of native title (s 225(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:

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

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

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

(d) water lawfully captured by the holders of other interests (as included in Schedule 6),

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:

(a) the laws of the State and the Commonwealth, including the common law; and

(b) 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 s 47B 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 in Schedule 6.

Relationship between native title rights and other interests

10. The relationship between the native title rights and interests described in paragraph 4 and the other interests is as follows:

(a) the determination does not affect the validity of those other interests;

(b) to the extent of any inconsistency between the other interests and the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and

(c) otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, existence...