Colvin J
The Court held that there be liberty for the parties to provide further submissions and affidavits in support of the application for a consent determination under the Native Title Act 1993 (Cth) (NTA).
Background
The Court was asked to make a consent determination recognising non-exclusive native title rights over an area of land near the town of Shark Bay in Western Australia held by both the Malgana People and the Nanda People (Shared Area). The proposed orders for the Shared Area provided for separate but shared native title interests of each of the Malgana People and the Nanda People to be held by separate prescribed bodies corporate. The determination would also recognise native title in a separate nearby area as being held by the Malgana People (Malgana Area). The Malgana Area would be held by a single prescribed body corporate.
The proposed consent determination involved three applications, one brought by the Nanda People and two by the Malgana People. The proposed determination would deal with all of the land covered by the Malgana application, and only part of the land covered by the Nanda application. The Nanda application overlapped with area subject to a separate application, the Mullewa Wadjari Community Application.
The Court’s decision
Colvin J posed three questions that were important to this determination:
Can the Court make a determination of native title of a kind that would identify separate holders of native title in respect of the same area?
Does the proposed consent determination purport to identify separate holders or does it identify the Malgana People and the Nanda People as two peoples who together are the native title holders for the area on a shared basis?
If the court can make a determination of a kind that would identify separate holders and the determination proposes a determination of that kind, has a proper basis been demonstrated for the making of such a determination in this case?
His Honour considered the extensive procedural history relating to overlap proceedings and noted at para [35] that there “appears to be some conflict in the case law as to whether the Court can make a determination of native title of a kind that would identify separate holders of native title in respect of the same area (with the consequence that there could be more than one RNTBC for a particular area)”. His Honour invited further submissions from the parties addressing all three questions he posed before making a final decision as to the proposed consent determination.
Colvin J held that in the submissions before the Court there was no indication of the parties’ consideration of the nature of the rights to be held in the Shared Area (at para [47]). As such, his Honour concluded that it was not possible to answer the three posed questions.
His Honour was particularly concerned with the proposal for appointment of two separate PBCs for the Shared Area. He noted that he was unsure whether he could make such a consent determination as proposed (at para [48]).
His Honour concluded that he would allow the parties an opportunity to file further submissions and affidavits as to the proposed consent determination before making a final decision on the application.