Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia

• Jurisdiction: Australia Federal only
• Judge: ROBERTSON J
• Judgment Date: 22 January 2019
• Neutral Citation: [2019] FCA 30
• Date: 22 January 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2019] FCA 30

File number:	WAD 128 of 2018
Judge:	ROBERTSON J
Date of judgment:	22 January 2019
Catchwords:	NATIVE TITLE – consent orders – whether more appropriate to proceed under s 81 of the Native Title Act 1993 (Cth) by adopting findings in other proceedings or under s 86G or s 87 where the application is unopposed or agreement is reached
Legislation:	Native Title Act 1993 (Cth) ss 47B, 81, 86, 86G, 87, 94A
Cases cited:	Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479 Kennedy v Queensland [2002] FCA 747; 190 ALR 707 Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367 Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275 Nelson v Northern Territory [2010] FCA 1343; 190 FCR 344
Date of hearing:	Determined on the papers
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	35
Solicitor for the Applicant:	Mr D Mavec of Kimberley Land Council
Solicitor for the Respondent:	Mr M Pudovskis of State Solicitor’s Office

ORDERS

		WAD 128 of 2018
BETWEEN:	ERNEST DAMIEN MANADO AND OTHERS ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (BINDUNBUR #2) Applicant
AND:	STATE OF WESTERN AUSTRALIA Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	22 JANUARY 2019

THE COURT ORDERS THAT:

1. There be a determination of native title in the form attached as Attachment A to these orders.

2. By 2 May 2019, a representative of the common law holders of native title shall:

   1. indicate whether the common law holders intend to have the native title held in trust; and

   2. nominate, in writing given to the Federal Court, a prescribed body corporate:

      1. to be trustee of the native title rights and interests; or

      2. otherwise perform the functions set out in section 57(3) of the Native Title Act,

including within the nomination the written consent of the body corporate.

3. In the event that there is no nomination by 2 May 2019, or such later time as the Court may order, the matter is to be listed, in conjunction with proceeding WAD359/2013, for further directions.

4. Proceeding WAD359/2013 is dismissed, to the extent of its overlap with the area of this proceeding WAD128/2018.

ATTACHMENT A TO THE ORDERS – BINDUNBUR #2 DETERMINATION

		WAD 128/2018
BETWEEN:	ERNEST DAMIEN MANADO AND OTHERS ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (BINDUNBUR #2) Applicant
AND:	THE STATE OF WESTERN AUSTRALIA Respondent
JUDGE:	ROBERTSON J
DATE OF ORDER:	22 JANUARY 2019

THE COURT DETERMINES THAT:

Existence of native title [s 225]

1. Native title rights and interests exist in the whole of the Determination Area.

Native title holders [s 225(a)]

2. The rights and interests comprising the native title are held by the Jabirr Jabirr/Ngumbarl people, being the people described in Schedule 2 (native title holders).

Nature and extent of native title [s 225(b) and (e)]

3. Subject to paragraphs 4 and 5, the nature and extent of the native title rights and interests in relation to the Determination Area (being wholly an area where any extinguishment must be disregarded) is the right of possession, occupation, use and enjoyment as against the whole world.

4. The native title rights and interests are exercisable in accordance with and subject to the:

1. traditional laws and customs of the native title holders; and

2. laws of the State and the Commonwealth, including the common law.

5. Notwithstanding anything in this determination, there are no native title rights and interests in or in relation to:

1. pursuant to the Mining Act 1904 (WA), gold, silver, other precious metals, precious stones and all other minerals; or

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

Other interests [s 225(c) and 225(d)]

6. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 3 (other interests).

7. The relationship between the native title rights and interests and the other interests is as follows:

1. the other interests co-exist with the native title rights and interests;

2. the determination does not affect the validity of those other interests; and

3. to the extent of any inconsistency, the native title rights and interests yield to the other interests.

Areas where extinguishment is disregarded [s 47B]

8. Section 47B of the Native Title Act applies to disregard any prior extinguishment in respect of the whole of the Determination Area.

Definitions and interpretation

9. In this determination, unless the contrary intention appears:

‘Determination Area’ means the land and waters described in Schedule 1;

‘land’ and ‘waters’ respectively have the same meanings as in the Native Title Act;

‘Native Title Act’ means the Native Title Act 1993 (Cth) as amended as at the date of this Determination; and

‘State’ means the State of Western Australia.

In the event of an inconsistency between the written description of an area in Schedule 1 and an area depicted on the maps in Schedule 4, the written description prevails.

Schedule 1 – Determination Area

[See paragraphs 1 and 9 of the Determination]

All that land comprising that portion of Lot 851 as shown on Deposited Plan 66631 that is wholly within the external boundary of Mining Exploration Licence E04/2084 (as defined by The Department of Mines, Industry Regulation and Safety as at 17th July 2014).

Note: Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 29^th June 2018.

Mining Tenements sourced from The Department of Mines, Industry Regulation and Safety as at 17^th July 2014.

For the avoidance of doubt the application excludes any land and waters subject to:

Native Title Determination Application WAD359/2013 Bindunbur (WCD2018/005) as Determined in the Federal Court on the 2^nd May 2018.

Datum: Geocentric Datum of Australia 1994 (GDA94)

Prepared By: Graphic Services (Landgate) 26^th November 2018

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Schedule 2 – Native Title Holders

[See paragraph 2 of the Determination]

Jabirr Jabirr/Ngumbarl people

Jabirr Jabirr/Ngumbarl people are the living persons who are the descendants of one or more

of the following ancestors, including by adoption in accordance with the traditional laws and

customs of the native title holders:

Gadalargan; Murrjal; Dorothy Kelly; Liddy Kenagai; Liddy Skinner; Bornal; Wallai William

& Mary Nelagumia; Senanus; Frank Walmandu; Sophie McKenzie; Frank Dixon (aka Frank Dinghi); Nabi; Appolonia; Dorothy (sister of Senanus); Agnes Imbarr; Deborah & Jacky; Ethyl Jacky; Alice Darada; Milare & Kelergado; Matilda; Louisa; Flora; Madeline; Fred/Friday Walmadang; and Walamandjin.

Schedule 3 – Other Interests

[See paragraph 6 of the Determination]

The nature and extent of other...