Colvin J
In this matter the Court considered a number of applications for determinations of native title in relation to land and waters in Western Australia and made orders by consent recognising the native title rights and interests of the Malanga People and, in relation to a shared area, the Malanga People and Nanda People. The Court referred a question about the proposed appointment of two prescribed bodies corporate (PBC) for the shared area of land to the Full Federal Court.
The respondents include the State of Western Australia, Yamatji Marlpa Aboriginal Corporation, Shire of Shark Bay, Telstra Corporation Limited, Gabor Holdings Pty Ltd and various named individuals.
Background
In two previous decisions, Drury on behalf of the Nanda People v State of Western Australia [2019] FCA 1138 and Drury on behalf of the Nanda People v State of Western Australia (No 2) [2019] FCA 1642, Colvin J had raised a concern about the proposed consent orders which would result in two PBCs for the same area - the Shared Area.
Consideration
The Court considered there was legal uncertainty about what should happen to PBCs where there is overlapping native title and, in particular, how the issue plays through into other aspects of the operation of the Native Title Act 1993 (Cth).
For this reason, the Court agreed to make the consent orders as requested by the parties (excluding the PBC orders) and referred the PBC question to the Full Federal Court.
Native Title Rights and Interests- non-exclusive
The native title recognised in the Malgana Area is held by the Malgana People.
The native title rights and interests in the Shared Area are held by each of the Malgana People and the Nanda People
The nature and extent of the native title rights and interests recognised in the areas identified in Schedule 1 of the consent determination are:
The right to enter and remain on the Determination Area, camp, erect shelters and other structures for that purpose, and to travel over and visit any part of the Determination Area;
The right to hunt, fish, gather, and use the traditional resources of the Determination Area;
The right to take and use water;
The right to engage in cultural activities on the Determination Area, including:
visiting places of cultural or spiritual importance and protecting those place by carrying on spiritual importance and protecting those place by carrying out lawful activities to preserve the physical or spiritual integrity; and
conducting ceremony and ritual, including burial rites; and
The right to be accompanied on the Determination Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title in the Determination Area, are:
Spouses, parents or children of the native title holders; or
People required by, or entering in connection with, traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area.
Prescribed Body Corporate question referred to Full Federal Court
Colvin J reserved 2 questions for the Full Court's consideration:
Whether the Court has the power to determine more than one PBC is to perform the functions of PBCs; and
If yes, whether the Court has a discretion to determine that there should only be one PBC for the area if each group nominates a separate PBC.