Mortimer and Colvin JJ
In this matter, the Court held 2-1 that two prescribed bodies corporate (PBCs) can be nominated and appointed over the same area of land where there are separate, overlapping native title determinations. The applicants were the Nanda People and the Malgana People, who both held native title over land and waters near the town of Shark Bay in Western Australia. The respondent was the State of Western Australia and The Cape York Land Council (CYLC) and the State of Queensland intervened.
Background
Native title was determined over the area in November 2019 in Drury on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812 (Drury). The determination concerned two adjacent areas: the ‘Malgana Area’, where the Malgana People were held to have non-exclusive native title, and the ‘Shared Area’, where both the Malgana and the Nanda Peoples were held to have non‑exclusive native title. In the Shared Area, the native title holders nominated a PBC each: the Nanda Aboriginal Corporation RNTBC and the Malgana Aboriginal Corporation RNTBC. While the Judge was prepared to make the determination, the Court refused to appoint two PBCs for the same area, and referred the matter to the Full Court for Decision. The questions to be determined were:
If there are distinct groups which each hold native title rights over the same area of land, can the Court determine that more than one PBC is to perform the relevant functions?
If yes, does the Court have a discretion to determine that there be only one PBC?
Submissions
At the hearing, the applicants variously submitted that multiple PBCs for the shared area was statutorily possible, more appropriate and a matter to be decided by claimants. They relied on the case of Daniel v State of Western Australia [2004] FCA 849, where it was held that where a determination area includes a shared area are held by different groups, the Native Title Act 1993 (Cth) (NTA) permits the nomination of more than one PBC to hold the determined native title rights and interests in trust. The CYLC submitted further that groups within a larger native title claim should be able to nominate a PBC for each right and interest of the title.
Decision
Question (a)
Mortimer and Colvin JJ described native title determinations as a two part process. Firstly, there is an ‘overall determination’ of whether native title exists through communal connection, laws and customs over particular land. Secondly, there is a ‘further determination’ of who holds the title, the rights it confers, and its geographic extent. As native title depends on distinct traditional laws and customs, the Court held that one application can give rise to separate titles at either stage, as seen in Drury.
Following this, the joint judgment confirmed that the NTA mandates that a PBC be appointed for each determination of native title, rather than for each parcel of land. Hence, multiple PBCs are appropriate where there is geographic overlap of separate titles.
Daniel was held not to apply as it was considered not to have given consideration to issues of jurisdiction required to allow multiple PBCs. White J agreed on the inapplicability of this case.
Question (b)
Their Honours reiterated that the role of PBCs is to facilitate dealings with the consent of the common law native title holders and that the NTA prescribes that the PBC appointed is dependent on the common law holder choice. Based on this, it was held not within the court’s discretion to determine which PBC is appointed or to determine that only one PBC be appointed.
The CYLC Submission
In obiter, the Court further said that there cannot, however, be separate PBCs for each distinct native title right or interest. In construing the relevant sections of the NTA, the communal character of native title was emphasised, and the judgment stressed that the jurisdiction to uphold multiple PBCs for the same area requires separate native titles. This raises questions about when there will be two distinct native title determinations, and in particular, whether this requires two distinct societies. The Court did not resolve issues around the concept of ‘society’, including the level at which it is construed for native title purposes.
Practical considerations
The practical difficulties of multiple PBCs were noted, but these were deemed insufficient to impede the statutory entitlement to a PBC. Their Honours discussed the potential for conflict between PBCs in making decisions about the land, negotiating ILUAs and assessing compensation (s 49 of the NTA prevents multiple compensation for the same act). The proposed mitigating methods require discussion between PBCs and, where multiple native title rights and interests are proposed in a consent determination, ensuring a hearing is held.