Introduction
This application concerned eight lots in the town of Eucla in Western Australia and one lot northwest of the town (the Part B land). The rest of the land (the Part A land) was determined in KD (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225. At the time of that determination, the parties agreed to continue discussions about the Part B land. These discussions resulted in a consent agreement that Native Title does not exist in relation to the land, to take effect once the State was satisfied that an Indigenous Land Use Agreement (ILUA) had been registered.
Legal Issues
The Court may make a determination of native title by consent if it considers it appropriate to do so. In deciding whether the order is appropriate, the Court will consider the agreement of the parties and the conduct of the State. In this case, the material provided by the parties would have supported a determination that native title does exist. However, the Court was invited to make a determination that there was no native title in anticipation of the ILUA. Therefore, the Court presumed, in effect, that the claim group sought to surrender native title. This was considered to be the only fact advanced to justify the making of the order.
Decision
His Honour made it clear that the determination would only take effect once the ILUA had been approved, and that the determination would be expressly made on the basis that native title had been surrendered. For these reasons, the Court made a determination in the terms sought.