Colvin J
In this matter the Court was asked to make orders by consent in relation to a determination of native title which would result in two prescribed bodies corporate each being responsible for the separate but shared native title interest of the Malagana People and the Nanda People over the same area of land (Shared Area).
The respondents to the proceedings were the State of Western Australia, various named individuals, Garbor Holdings Pty Ltd, the Shire of Shark Bay, and Telstra Corporation Ltd.
In deciding whether to make the determination the Court had to be satisfied that the order sought would be within the Court’s power and conformed to the requirements of s 87 of the Native Title Act 1993 (Cth) (NTA).
In earlier proceedings Colvin J had identified 3 questions arising out of the orders sought:
Can the Court make a determination of native title 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 native title that would identify separate holders, has a proper basis been demonstrated for the making of such a determination?
In relation to Question 1
Colvin J found that the Court can make a determination of native title that would identify separate holders of native title in respect of the same area. Overlapping native title rights and interests held by different groups have been recognised in a number of decided cases.
In relation to Question 2
The parties submitted that it was intended there be a ‘separate’ and ‘distinct’ native title determination for each of the Nanda People and Malgana People in relation to the Shared Area. The rights were not communal rights held by all of the Malgana People and the Nanda People as one society. Rather, each group is to be declared as separately holding communal native title interests of the kind described for the same area. It is in that sense that they are overlapping.
Colvin J considered that the determination should make clear that the interests in the Shared Area are separately held and invited the parties to propose an alternative form of wording, perhaps along the following lines:
“The native title rights and interests in the Shared Area are held by each of the Malgana People and the Nanda People.”
In relation to Question 3
Colvin J noted that whether there can be two PBCs is important to the administration of the NTA as it may have important consequences for future claims to compensation and the making of indigenous land agreements. On the other hand, if the statutory responsibilities of a PBC for distinct native title interests over the same area were required to be discharged by the same PBC, this may affect those interests.
Colvin J observed that aspects of the NTA might lead to the conclusion that there can only be one PBC in respect of an area of land, although reaching a conclusion would require an understanding of the provision of the NTA as a whole and their context.
The parties submitted that the question of whether two PBCs should be ordered was a question of discretion. The Court considered that there may be no discretion if a PBC nomination conforms to the NTA.
Colvin J considered there was power to refer the question to the Full Federal Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth) and asked the parties to consider whether it would be appropriate for the Court to reserve a question to the Full Court before determining whether to make the consent determination.
Orders
The Court ordered a case management hearing and the filing of submissions by any party about the matters referred to in the decision.