REASONS FOR JUDGMENT
1 In the Ngarluma/Yindjibarndi Native Title Determination ('the Determination') made on 2 May 2005 (Daniel v State of Western Australia [2005] FCA 536), it was ordered with respect to prescribed body corporations to hold the native title rights and interests found as follows:
'18. The Yindjibarndi Aboriginal Corporation is to hold the native title rights and interests of the Yindjibarndi People in trust for the Yindjibarndi People.
19. Within 6 months of the date of this order, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks on behalf of the Ngarluma People are to file and serve:
(a) a notice in accordance with section 56(2)(a) of the Native Title Act 1993 (Cth) indicating whether the Ngarluma People intend to have their native title held in trust by a prescribed body corporate alternatively whether they intend to have a prescribed body corporate perform the functions in section 57(3) of the Native Title Act 1993 (Cth); and
(b) if the Ngarluma Peoples' native title is to be held in trust - the name and the rules of the proposed prescribed body corporate and the written consent of the prescribed body corporate;
(c) if the Ngarluma Peoples' native title is to be held by the common law holders with a prescribed body corporate to perform the functions in sub-section 57(3) of the Native Title Act 1993 (Cth) - the name and the rules of the proposed prescribed body corporate.
20. Any party has liberty to apply within 21 days from the date the name and the rules of the proposed prescribed body corporate are filed and served in accordance with order 19 above.
21. If order 19 is not complied with in the time specified then it is determined that the native title rights and interests of the Ngarluma People are held by the Ngarluma People as common law holders.
22. If the native title rights and interests of the Ngarluma People are held by the Ngarluma People as common law holders in accordance with order 21 above then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act 1993 (Cth).
23. Until such time as there is a registered native title body corporate in relation to the native title rights and interests of the Ngarluma People, any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the Ngarluma native title holders or the Ngarluma registered native title claimants may be served on the representative Aboriginal/Torres Strait Islander body in relation to the land or waters concerned or such other address for service for the Ngarluma People as may be notified to the Court and the parties by the said representative Aboriginal/Torres Strait Islander body, and such service shall be deemed to be sufficient.'
2 On 26 July 2005, within the time limit set out in order 19 of the Determination, the Ngarluma People filed and served a notice stating that they had nominated the Ngarluma Aboriginal Corporation as the prescribed body corporate to hold their native title in trust. On the same date they also filed and served a consent of the Ngarluma Aboriginal Corporation to the nomination as the prescribed body corporate for the Ngarluma People.
3 Notice has been given to the respondents of the nomination and no opposition to it has been made. The first respondents have filed submissions in support of the making of the appointment.
4 In the appellate proceedings instituted with respect to the Determination, the first respondents have cross-appealed part of the Determination, being the reference to the Ngarluma People and Yindjibarndi People without further definition of those terms. The first respondents have reserved their rights that, should their cross-appeal be successful, it may affect the validity of the rules of the corporation which adopted and refer to the terms in the Determination. One of the respondents 2A (Commonwealth of Australia) has also cross-appealed in relation to the provision in the Determination for more than one prescribed body corporate.
5 However, the submissions for the first respondents on the prescription of the Ngarluma Aboriginal Corporation state that, notwithstanding these cross-appeals, it is appropriate for orders to be made appointing that Corporation as the prescribed body corporate for the Ngarluma People. Three reasons are given for that.
6 Firstly, the Determination is taken to be valid and operational until overturned. The presumption is, therefore, that the Determination made by the Court on 2 May 2005, programming the nomination of determination of a prescribed body corporate for the Ngarluma People is in conformity with the Determination, and should proceed. Secondly, orders have already been made determining the Yindjibarndi Aboriginal Corporation as the prescribed body corporate for the Yindjibarndi People, similarly in conformity with the Determination. If either cross-appeal is successful, the Full Court may need to make orders dealing with the Yindjibarndi prescribed body corporate determination. There is, therefore, no further disadvantage to the Full Court in also dealing with a Ngarluma prescribed body corporate determination. Thirdly, the first applicants have acknowledged that an amendment to the rules of the prescribed bodies corporate (to redefine the membership of each corporation) will be required if the first respondents' cross-appeal is successful. If the Commonwealth's cross-appeal is successful, new prescribed bodies corporate will have to be constituted, in any event, in respect of both the Ngarluma People and the Yindjibarndi People.
7 It is therefore apparent that the cross-appeals will not be prejudiced by the proposed determination of the Ngarluma prescribed body corporate and nor will the success of either cross-appeal be occasioned excessive or inappropriate inconvenience. This is particularly the case given that the Yindjibarndi prescribed body corporate has already been brought into existence.
8 I am therefore persuaded that the application should be allowed and the order appointing the Ngarluma prescribed body corporate should now be made.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.