Banks-Smith J
Banks-Smith J ordered a determination of native title be found.
This case concerns the Goorring native title claimants’ (Goorring application), which was filed before the Court on 17 January 2006. The Application area is approximately 11.645 square kilometres in the East Kimberley region of Western Australia. It is within Pastoral Lease N49571.
The Goorring native title claimants are the Aboriginal people of the Miriuwung, Kija or Wularr language or dialect and country. Banks-Smith J noted that there were some changes in the list of claimed apical ancestors from those in the original filed application and those in the list for the present determination, though the original was not formally amended.
Her Honour was satisfied that the Applicant was authorised to consent to the Court making a determination. Her Honour briefly adopted and summarised an anthropologist’s report and genealogies, which were submitted to the Court in support of the claim (at [21]).
S 87 Power of Court if parties reach agreement
Banks-Smith J found that the requirements of ss 87(1)(a)-(c) of the Native Title Act 1993 (Cth) were satisfied. Her Honour then turned to the question of ‘appropriateness’ under ss 87(1A) and (2). Her Honour reaffirms that this does ‘not necessarily require the Court to receive evidence and make findings, or even to form a concluded view, as to whether the legal requirements for proving native title have been met’ (Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6)). Her Honour cites North J in Ward, in providing that s 87 must be construed in the context of mediation as the primary means of native title resolution, meaning the Court may be satisfied that it is appropriate to make a consent determination without ‘evidence of the primary facts substantiating native title’. In the present case Banks-Smith J held that the evidence was cogent and credible.
Rights and interests
The nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 (being areas where any extinguishment must be disregarded) is the right to possession, occupation, use and enjoyment of that part of the Determination Area as against the whole world. The nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source is the non-exclusive right to take, use and enjoy that water.
The determination of native title is to take effect once the parties establish a prescribed body corporate to hold native title.