Murphy J
Murphy J ordered that there be a determination of native title in accordance with s 87A of the Native Title Act 1993 (Cth) (NTA), and that the Malgana Aboriginal Corporation shall act as the prescribed body corporate.
The applicant in the proceeding WAD 6236 of 1998 (Malgana Applicant) lodged an application for a native title determination in 1998. It was brought on behalf of the descendants of four apical ancestors. It has since been amended numerous times, most recently by order of the Federal Court on 26 September 2018 to remove the previous thirty-eight applicant members and replace them with six new members, and one existing member. The Court was satisfied of all conditions under s 87A of the NTA (at [11]). Murphy J reaffirmed the difference in the Court’s function with regards to ss 87 and 87A, being a power ‘only exercisable when an agreement has been reached’ (at [20]), and a contested application for a determination of native title.
Regarding the requirement of a ‘credible or cogent basis’ for native title, Murphy J found that the Malgana people maintained ‘physical presence and continuing spiritual involvement in the Determination Area since the acquisition of British sovereignty’ (at [48]).
The Determination Area covers approximately 28,000 square kilometres of land and waters in the southern Gascoyne region of Western Australia. No determination is to be made in respect of land and waters which overlap with another determination (WAD 402 of 2018).