McKerracher J
In this case, McKerracher J ordered the first respondent prepare a final minute of determination reflecting the reasons for judgment, which held that one determination should be made in respect of the determination area, with one PBC to represent both the Yilka and Sullivan groups.
In 2016 following a lengthy contested hearing McKerracher J held that both the Yilka claimants and the Sullivan claimants hold exclusive native title (subject to extinguishment) across the respective claim areas (Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752) (Yilka No 5). McKerracher J concluded that subject to confirming certain extinguishment matters, there would be a determination that native title exists in relation to the determination area claimed by each applicant.
Following that decision, mediation between the Yilka applicant and the Sullivan applicant (and other parties) occurred primarily concerning the form of the determination and whether one or two Prescribed Bodies Corporate (PBCs) would be appropriate.
The Sullivan applicant contended that the Court should order: (a) one determination describing the two separately authorised claim groups as common law native title holders and (b) that each group of common law holders have their native title held in trust by their respective PBC. The Sullivan applicant submitted that the traditional laws and customs of the Western desert society did not necessitate that the Yilka and the Sullivan claim groups effectively merge for the purposes of the determination. The Sullivan applicant further submitted that there was no reason if two PBCs were created that the two corporations could not make arrangements to develop a single interface as was the case in Lovett on behalf of the Gunditjmara v State of Victoria (No 5) [2011] FCA 932 (Lovett). The Sullivan applicant argued that if s 225(a) of the NTA provides that a determination of native title is a determination of ‘who the persons, or each group of persons, holding the common or group rights comprising native title’ are, then each group should also have their rights and interests comprising the native title held in trust by each group’s respective PBC.
McKerracher J stated that there can be more than one PBC in a single determination area (Daniel v Western Australia [2003] FCA 666). In Lovett, the Gunditjmara people resolved that the Gunditjmara PBC be the PBC for the purposes of the NTA and that it hold the native title of the Gunditjmara people in relation to the overlap area in trust with the Eastern Maar people who were also found to hold native title over the same area. The Eastern Maar people resolved to incorporate the Eastern Maar Corporation as their PBC. The Gunditjmara and the Eastern Maar peoples together resolved that the respective corporations would be the PBC in relation to each of their interests. In that case, North J held that s 56(2)(a) and s 57(2)(a) of the NTA allows for two PBCs.
McKerracher J noted that the form of the determination and whether there be one PBC or two (amongst other matters) was an issue within his Honour’s discretion. His Honour noted that he had to deal with the most functional regulation of dealing in future between the two external parties.
His Honour said at [34]: ‘Intra-indigenous issues are resolved between the common law holders in accordance with traditional law and custom, within the framework of the body corporate and the requirement of the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) and in accordance with agreed dispute resolution mechanisms.’
In Yilka No 5 His Honour found that the Yilka claim and the Sullivan claim were in the nature of representative proceedings brought by the members of the claim groups for their respective rights and interests in reliance on their common membership of the Western Desert Cultural Bloc (WDCB) society (Yilka No 5 at [476] [494]-[495]). His Honour found that the Yilka and Sullivan claim groups ‘native title [rights] in the determination area is indistinguishable and the evidence led by either applicant would have been sufficient to establish the existence of native title’ at [37]. His Honour concluded that there is no need to refer to the separate claim groups in the determination.
The Yilka and Sullivan applications were pursued on the basis of the same traditional law and custom at [45]. His Honour found that ‘it would not be appropriate or necessary to state that the native title rights and interests of one applicant group are independent of or additional to the rights and interests of the other’ at [48]. His Honour found that in this instance two PBCs was not appropriate otherwise non-native title parties would be required to negotiate twice with two different entities and such negotiations could lead to different outcomes.
His Honour ordered that a check of the status and currency of tenure be conducted prior to the determination and that the State, being the first respondent: prepare the final form of determination to reflect his reasons and the updated tenure information at [54]. The issue of costs was resolved as between the parties. His Honour concluded that it was time in his view that the two groups further developed this ability to work together and reach agreement.