Bennell v State of Western Australia

INTRODUCTION 1 These orders are made in respect of 11 individual applications. For convenience, each applicant in those respective applications is named in these reasons and in the accompanying orders as 'the First Applicant', 'the Second Applicant' etc. 2 The First and Second Applicants have also brought native title determination applications WAD 6006 of 2003 (Single Noongar #1 Application) and WAD 6012 of 2003 (Single Noongar #2 Application), together the Single Noongar Applications. 3 The Third to Eleventh Applicants have brought native title determination applications: (a) WAD 6181 of 1998 (Ballardong People Application); (b) WAD 6274 of 1998 (Gnaala Karla Booja Application); (c) WAD 253 of 2006 (South West Boojarah #2 Application); (d) WAD 6286 of 1998 (Wagyl Kaip Application); (e) WAD 6134 of 1998 (Southern Noongar Application); (f) WAD 33 of 2007 (Wagyl Kaip - Dillon Bay Application); (g) WAD 242 of 2011 (Whadjuk People Application); (h) WAD 6192 of 1998 (Yued Application); and (i) WAD 6085 of 1998 (Harris Family Application), together the Underlying Noongar Applications, each of which partially overlaps one or other of the Single Noongar Applications. 4 Since 2009, the First to Eleventh Applicants, the South West Aboriginal Land and Sea Council and the State of Western Australia have engaged in negotiations for the full and final settlement of all claims by the Noongar people under the Native Title Act 1993 (Cth) (NTA). These negotiations resulted in the authorisation, execution and registration of six Indigenous Land Use Agreements (Settlement ILUAs) which make up the South West Native Title Settlement. 5 The Settlement ILUAs were entered on the Register of Indigenous Land Use Agreements pursuant to s 24CK of the NTA on 17 October 2018 as WI2015/005, WI2015/009, WI2017/012, WI2017/013, WI2017/014 and WI2017/015. The relevant Settlement ILUAs remain on the Register following legal challenges to the authorisation, execution and registration of the Settlement ILUAs, including Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 per Barker J, McGlade v Native Title Registrar [2017] FCAFC 10; (2017) 251 FCR 172, McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; (2019) 374 ALR 329 per Allsop CJ, McKerracher and Mortimer JJ, Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 per McKerracher J and Yarran v South West Aboriginal Land & Sea Council Aboriginal Corporation [2020] HCATrans 202: see also AC (deceased) v State of Western Australia [2021] FCA 735 per McKerracher J (at [51]). 6 Each Settlement ILUA relates to a separate area (each, an Agreement Area). Together the six Agreement Areas comprise the Settlement Area. The decision to divide the Settlement Area into six distinct regions, broadly co-extensive with the Underlying Noongar Applications, with one Settlement ILUA for each registered claim area, was undertaken to ensure that the rights of Noongar people to speak for Noongar country properly respected the many different estates existing within Noongar society and country. The division of the Settlement Area gave assurance to people that a person's or family's country could not be interfered with by someone with no connection to it: McGlade (No 2) (at [257]). 7 Pursuant to cl 6.2 of each Settlement ILUA, all native title rights and interests in relation to the relevant Agreement Areas were surrendered to the State on 13 April 2021 (i.e. native title was surrendered in respect of the whole of the Settlement Area on that date). Further, cl 6.3 of each Settlement ILUA envisages that consent orders will be made for a determination that native title does not exist in relation to each Agreement Area. 8 Accordingly, the First to Eleventh Applicants, the State and the other respondents to each of the proceedings (parties) have reached an agreement as to the terms of a determination (the Determination), which is to be made in relation to the land and waters of a Determination Area that comprises the lands and waters of the Settlement Area, and is described in Schedule One to the Determination. A map showing the external boundaries of the Determination Area is depicted in Schedule Two to the Determination. 9 The parties have agreed that, in respect of those land and waters of the Single Noongar #1 Application and the Yued Application which fall outside the Determination Area, no determination is to be made at present. 10 In submissions filed by the First to Eleventh Applicants and the State in support of a determination that native title does not exist in relation to the Determination Area, they specifically address the criteria in s 87A of the NTA (in respect of the Single Noongar #1 Application and the Yued Application) and s 87 of the NTA (in respect of the other Underlying Noongar Applications and the Single Noongar #2 Application) by which the Court should be satisfied that an order in the terms proposed by the parties should be made.