Robertson J
The Court ordered that a determination of native title be found, and that a prescribed body corporate be nominated by 2 May 2019.
Background
The case concerns application WAD 128/2018 (Bindunbur #2). The only parties to the claim are the applicant and the State of Western Australia. The Bindunbur #2 application is located on the Dampier Peninsula north of Broome. It is 16 km2, and is surrounded on all sides by the Bindunbur determination, made in native title determinations in Manado (on behalf of the Bindunbur Native Title Clam Group) v State of Western Australia [2017] FCA 1367 and Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275 (WAD 359/2013 – Bindunbur #1). The parties agreed that substantive modifications to the determination area were necessary to reflect the particular circumstances relevant to the Bindunbur #2 determination area, in particular; the removal of all ‘Other interests’ which do not relate to the Bindunbur #2 determination area, and the native title holding group being only the members of the Jabirr Jabirr/ Ngumbarl language group.
Source of power for orders
Although the parties agreed that the proposed orders and determination of native title should be made, they disagreed as to the appropriate source of power under the Native Title Act 1993 (Cth) (NTA). The applicant contended that the Court should adopt the findings of North J in the Bindunbur #1 determination. The applicant submitted that the disputed issues in Bindunbur were ‘directly relevant to determination to be made in the Bindunbur #2 claim area’ (at [7]), and thus the Court should determine the matter pursuant to its powers under ss 81 and 94A of the NTA.
The State contended instead that s 86G or s 87 of the NTA was the preferable source of power in resolving the claim, and that s 81 was instead more appropriate for contested matters.
Robertson J found in favour of the State, noting that in the present matter, as opposed to the Bindunbur #1 determination, there were no pleadings, evidence, written submissions, trial or hearing, all of which ‘attend the ordinary operation of s 81’ (at [26]). His Honour states that the although negotiations subsequent to the earlier Bindunbur claims have occurred, the Bindunbur #2 claim is still unopposed, making s 86G the appropriate source of power. Robertson J considered matters of discretion under s 87, finding that all requirements were satisfied. His Honour states that there were ‘no discretionary reasons not to make an order without holding a hearing’ (at [33]).