McKerracher J
In this case, McKerracher J dismissed an application for a declaration that cl 30(3) of the Local Government Property Local Law 2005 (WA) (Local Law) is of no effect against persons with native title rights on Heirisson Island (Matagarup) on the Swan River in Perth. This land had been designated as a reserve for public purposes on a number of occasions.
The application was brought by Swan River Nyungah elder, Ms Bropho. Ms Bropho is an applicant in the Swan River #2 Claim (WAD 24/2011) seeking a determination of native title over Heirisson Island. The Local Law prohibits activities such as camping. Ms Bropho argued that she is protected from the application of this law under s 211 of the Native Title Act 1993 (Cth) (NTA) as she will be entitled to hold native title over Heirisson Island in due course.
The respondents to the proceeding were the City of Perth and the State of Western Australia.
McKerracher J found that Ms Bropho's application had no reasonable prospects of success and should be dismissed on the basis that native title had been wholly extinguished by the vesting of a reserve in 1950 and 1975 under s 33 of the Land Act 1933 (WA), including the reserve made after the commencement of the Racial Discrimination Act 1975 (Cth).
His Honour also noted that Ms Bropho would have difficulties relying upon s 211 of the NTA as although some of the activities described by Ms Bropho in her affidavit may be included under s 211(3)(d), being ‘a cultural or spiritual activity’ there were many other actitivies which did not fall within the classes of activities listed in s 211(3) NTA, including camping.
Furthermore, His Honour held that Ms Bropho is seeking a declaration on the assumption that native title exists, however her application can only succeed if and when there is a determination of the Court that native title exists over the area and the application was only brought by Ms Bropho and not as the authorised applicant of the Swan River #2 claim or any other claimant application.
McKerracher J concluded that the application for a declaration had no reasonable prospects of success as native title has been wholly extinguished over the area and it was not apparent that Ms Bropho had standing to bring the application.