North J
This case concerned a consent determination of native title in favour of the Nyangumarta and Karajarri peoples for exclusive and non-exclusive native title rights and interests over an area in the South West Kimberley region.
Background
The Nyangumarta and Karajarri peoples filed separate applications for native title covering the same area of land. The respondents to both applications were the State of Western Australia, the Commonwealth of Australia, the Western Australian Fishing Industry Council (Inc), Anna Plains Cattle Co Pty Ltd, Mandora Pty Ltd and Telstra Corporation Pty Ltd.
Appropriateness of the Consent Orders
Karajarri application
Although the parties had agreed to the determination, the Court said that it was required to ensure that the orders were appropriate and within the Court’s power (ss 87(1)(c), (1A) and (2) and 87A(4) of the Native Title Act 1993 (Cth) (NTA)). Accordingly, the Court considered the evidence already provided and found that that it established that the Karajarri people constituted a society bound together by laws and customs in relation to the land, and that the Karajarri people had retained their connection with the land through those laws and customs since sovereignty as required by Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
Nyangumarta application
Although the Court did not hear evidence in relation to the Nyangumarta people, it accepted a detailed account of the basis upon which the State had been persuaded of the connection of the Nyangumarta people to the land such that they were entitled to a determination of native title. Accordingly, the Court found that the evidence provided a solid basis for the Court to be satisfied that the elements necessary to establish native title have been made out by the native title parties in relation to the shared country.
Prescribed Body Corporate (PBC)
Where the Court proposes to make a determination that native title exists it must determine whether the native title is to be held in trust and if so by whom (ss 55 and 56(1) NTA)). Both the Nyangumarta people and the Karajarri people had existing PBCs which held native title rights and interests in respect of their own Country. However, they registered a new PBC to hold the rights and interests in the shared country with membership and directorship drawn from the existing PBCs. The Court did not comment on whether a new PBC would always be required, but simply noted with approval the ‘imaginative’ solution of the parties to the concerns of the respondents over having native title rights and interests held by two native title holding groups. The Court approved the orders sought.