McKerracher J
In this matter, McKerracher J made consent orders pursuant to s 87A of the Native Title Act 1993 (Cth) (NTA) that native title does not exist within the Balanggarra #3 Part B determination area. The area includes two parcels of land and two blocks east of the Wyndham airport, and four blocks in the town of Wyndham, in the northern Kimberley region of Western Australia.
The Balanggarra community filed the Balanggarra #3 application was filed in 2000. A determination of native title was made in relation to the Balanggarra #3 application in Cheinmora v State of Western Australia (No 3) [2013] FCA 769. The area subject to this proceeding was excluded from that determination.
Background
In 2015, mediation was ordered to facilitate agreement of the rights conferred in the excluded area. By 2016, the parties had agreed to the terms of an Indigenous Land Use Agreement (ILUA) in relation to the area. By March 2017, the ILUA was certified by the Kimberley Land Council, the State had filed for its registration, and notification of the ILUA had commenced. In June 2017, the Cross Country Native Title Services lodged an objection to the registration of the ILUA, and the Native Title registrar declined to register the ILUA in 2018. The Kimberley Land Council and the State applied for judicial review for this refusal, but the applications were dismissed in Kimberley Land Council Aboriginal Corporation v Williams [2018] FCA 1955. In 2019, the parties were ordered to proceed with a consent determination, and the Balanggarra Native Title Claim Group authorised the ILUA and agreed to the negative native title determination. The ILUA was consequently registered on 14 February 2020.
Decision
McKerracher J held that it was appropriate to make the negative determination of native title sought by the parties and made orders accordingly.