Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia

• Jurisdiction: Australia Federal only
• Judge: BANKS-SMITH J
• Judgment Date: 23 May 2019
• Neutral Citation: [2019] FCA 696
• Court: Federal Court
• Date: 23 May 2019

FEDERAL COURT OF AUSTRALIA

Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696

File number:	WAD 44 of 2019
Judge:	BANKS-SMITH J
Date of judgment:	23 May 2019
Catchwords:	NATIVE TITLE - consent determination of native title - agreement of parties - s 87A of the Native Title Act 1993 (Cth)
Legislation:	Native Title Act 1993 (Cth) ss 55, 56, 57, 61, 62A, 64(1B), 66, 66B, 87, 87A, 94A, 109A, 190, 225 Native Title Amendment Act 2007 (Cth) [2.62]
Cases cited:	Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; (2003) 134 FCR 16 Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Brooking on behalf of the Bunuba People (Bunuba #2) v State of Western Australia [2015] FCA 1481 Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 Jessell on behalf of the Goorring Native Title Claimants v State of Western Australia [2018] FCA 2047 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; (2001) 115 FCR 109 Neowarra v State of Western Australia [2004] FCA 1092 O'Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 Sharpe v State of Western Australia [2013] FCA 599 Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 Sturt on behalf of the Jaru Native Title Claim v State of Western Australia [2018] FCA 1923 Ward v State of Western Australia [2006] FCA 1848 Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 Wurrunmurra v State of Western Australia [2012] FCA 1399
Date of hearing:	Determined on the papers
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	59
Solicitor for the Applicant:	Ms J Toohey of the Kimberley Land Council
Solicitor for the State of Western Australia::	Ms S Begg of the State Solicitors Office
Solicitor for the Shire of Halls Creek:	Mr P Wittkuhn of McLeods
Solicitor for Sterling Jack Buntine:	Ms M Watt of M Watts Legal
Solicitor for Telstra Corporation Limited:	Mr SE Singleton of King & Wood Mallesons

ORDERS

		WAD 44 of 2019
BETWEEN:	SHIRLEY PURDIE, KENNETH MARTIN, RITA MALAY, TREVOR BEDFORD, MAUREEN CARTER, RAYMOND WALKBIER, MAREEKA PATRICK, JEAN MALAY, REBECCA SAMPI, TIMOTHY MOSQUITO, IRA LANS Applicant
AND:	STATE OF WESTERN AUSTRALIA, SHIRE OF HALLS CREEK, STERLING JACK BUNTINE, TELSTRA CORPORATION LIMITED Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	23 MAY 2019

THE COURT NOTES THAT:

A. Pursuant to s 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 s 87A(4) and s 94A of the Native Title Act 1993 (Cth).

C. The pastoral respondent Sterling Jack Buntine has agreed to the terms of the Minute of Consent Determination of Native Title on the basis of having reached agreement with the Applicant in relation to N50413 Bedford Downs pastoral lease and those portions of N050504 Margaret River and N50414 Lansdowne pastoral leases that are situated within the Determination Area. Following the determination taking effect, the agreements will be executed and application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as a body corporate agreement pursuant to s 24BG of the Native Title Act 1993 (Cth).

In these circumstances and with the consent of the parties, the Court determines, declares and orders that:

THE COURT 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 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 s 56(1) or s 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 invited 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 (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 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 (s 225(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 (s 225(b)) and exclusiveness of native title (s 225(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.

Non-exclusive rights and...