Mortimer J
In this matter, Mortimer J considered whether or not s 47B of the NTA applied to disregard prior extinguishment in relation to the Yakabindie Homestead block claimed by the Tjiwarl group in the Western Desert. The application of s 47B of the NTA to the block was originally considered in Narrier v State of Western Australia [2016] FCA 1519, but Mortimer J ordered further submissions in light of Her Honour’s findings on occupation at [1280]-[1285]. The respondents in this matter were the State of Western Australia, Central Desert Native Title Services, TEC Desert Pty Ltd, and TEC Desert No. 2 Pty Ltd.
Two members of the Tjiwarl group had houses on the Yakabindie Homestead block. Only one of these houses is still occupied, but both were occupied at the time the Tjiwarl claims were filed. A large portion of the block between these houses is not occupied by members of the claim group.
The issue considered my Mortimer J was whether or not occupation of two sections of the larger block can have the effect of engaging s 47B(2) of the NTA with respect to the entire block or parts thereof, at [10].
Her Honour considered the comments of Merkel J in Rubibi Community v Western Australia (No 7) [2006] FCA 459 at [98], stating that s 47A requires the occupancy of the whole area, not merely part of the area.
The applicant submitted that the comments in Rubibi cannot be extended to the application of s 47B of the NTA because nothing in the text of this section requires that ‘the area’ correspond to the cadastral boundaries of a particular prior interest.
Her Honour accepted the state’s submission, that s 47B of the NTA cannot be engaged in relation to the lot. Her Honour took into account the broader subject matter of Pt 2 of the NTA together with the beneficial purpose of s 47B. Her Honour found that while theoretically there is no issue with claiming an area of land under s 47B that does not correspond to cadastral boundaries; here the applicants had not established the boundaries that would apply, at [19]. Mortimer J stated that the determining factor is how an applicant chooses to identify the ‘area’ for the purposes of a claim under s 47B of the NTA. With reference to the current application, the applicants had claimed the entire Yakabindie Homestead block, over which ‘occupation’ had not been broadly established within the meaning in Moses v Western Australia [2007] FCAFC 78, at [216].
Mortimer J did not consider it necessary to make orders in relation to this matter.