In this matter, Mortimer J made orders recognising the native title rights and interests of the Nanda People to approximately 17,350 sq km of land and waters in the Geraldton region of Western Australia.
The proceedings concerned two partially overlapping native title determination applications, made on behalf on the same persons: the ‘Nanda Application’ (WAD 6136 of 1998) and the ‘Nanda #2 Application’ (WAD 286 of 2018). The applications were combined by orders of the Federal Court on 29 September 2000. The respondent parties to the Nanda application are the State of Western Australia, the Commonwealth of Australia, Yamatji Marlpa Aboriginal Corporation, Telstra Corporation Limited, and a number of pastoralists. The respondent parties to the Nanda #2 application are the State and the Commonwealth of Australia. The land tenure of the application consists of large reserves and pastoral leases, unallocated Crown land and freehold land.
The parties agreed to terms of a determination, made in relation to the whole Nanda #2 Application and part of the land and waters covered by the Nanda Application (‘the Determination Area’).
In determining the existence of native title, Mortimer J gave consideration to the rights and interests of the Nanda people in country. These included (but were not limited to): knowledge about country and traditional laws and customs, active participation in the group affairs of the community, long term residence near or on Nanda country, and a descent based claim from a Nanda ancestor (at [26]-[27]). Her Honour was clear, however, in affirming that descent ‘will not confer rights and interests under traditional Nanda law and custom’ unless these are ‘activated’ by social participation [28].
Her Honour also considered the spiritual beliefs of the Nanda people, including serpent, emu and kangaroo dreaming which created obligations that must be observed by the Nanda people. Her Honour further held that European settlement did not result in any surrender or dissolving of traditional rights and interests in Nanda country or in loss of connection to country.
Mortimer J made orders in the form proposed by the parties. The Applicants nominated the Nanda Aboriginal Corporation (ICN 8871) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.