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[2006] FCA 271
Federal Court of Australia
2006-03-21
Nicholson J, Allan J, Ivan J
Original judgment source is linked above.
Daniel v State of Western Australia [2006] FCA 271 NATIVE TITLE - prescribed body corporate - Ngarluma prescribed body corporate - advent of appeals not make determination of prescribed body corporate inappropriate or inconvenient - one prescribed body corporate already in existence - appropriate for discretion to be exercised to make determination of the prescribed body corporate Daniel v State of Western Australia [2005] FCA 536 DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE and MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE & HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE & DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA and OTHERS WAD 6017 of 1996 and part of WAD 127 of 1997 and part of WAD 6256 of 1998 NICHOLSON J 21 MARCH 2006 PERTH
WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6017 of 1996
BETWEEN: DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE
AND: VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE
BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS
AND: THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM
AND: COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY
AND: THIRD RESPONDENT (FORMER RESPONDENTS 2B)
AND: P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL
AND: BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD
AND: CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD
AND: HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD
AND: NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD
AND: BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP
AND: ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL
RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O'CONNOR, J & P ROCCA AND JAMES EDWARD TELFER
GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O'BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc)
COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER
HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES
TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE
GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER
THE COURT ORDERS THAT: The Ngarluma Aboriginal Corporation is to hold the native title rights and interests of the Ngarluma People in trust for the Ngarluma People. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6017 of 1996
BETWEEN: DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE
AND: VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE
BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS
AND: THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM
AND: COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY
AND: P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL
AND: BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD
AND: CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD
AND: HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD
AND: NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD
AND: BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP
AND: ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL
RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O'CONNOR, J & P ROCCA AND JAMES EDWARD TELFER
GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O'BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc)
COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER
HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES
TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE
GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER
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.
Counsel for the First Applicants: C Tan
Solicitor for the First Applicants: Yamatji Land & Sea Council
Solicitor for the Second Applicants: Williams & Co Lawyers
Solicitor for the Third Applicants: Kitto & Kitto
Solicitor for the First Respondents: State Solicitor's Office
Solicitor for Respondents 2A: Australian Government Solicitor
Solicitor for the Third Respondent: Blake Dawson Waldron
Solicitor for the Fourth Respondent: Minter Ellison
Solicitor for the Fifth Respondents: Cornerstone Legal
Solicitor for the Eighth, Ninth and Tenth Respondents: Blake Dawson Waldron
Solicitor for the Eleventh Respondents: Hunt & Humphry
Solicitor for the Western Australian Fishing Industry Council: Hunt & Humphry
Solicitor for Exmouth Pearls Pty Ltd and Freehills MG Kailis Gulf Fisheries Pty Ltd:
Date of Last Written Submissions: 23 February 2006
Date of Judgment: 21 March 2006
Daniel
State of Western Australia