This case concerned an application brought by a group of persons who are Noongar people for a determination of native title over an area of land in Western Australia known as the Swan River People #2 (SRP2) Claim Area. The SRP2 Claim Area almost entirely overlapped with areas that were the subject of Indigenous Land Use Agreements (ILUAs) that had been concluded by the Noongar people under the South West Settlement Agreement.
Background
The Noongar people and the State had engaged in negotiations resulting in the registration of six ILUAs that covered a settlement area of over 200, 000 km2 in the South West of Western Australia.
Submissions
The State submitted that per the terms of the ILUAs, any native title rights and interests ceased to exist in the settlement area. As all but a small portion of the SRP2 Claim Area (amounting to less than five per cent of the area) was covered by the settlement area, the State submitted that the native title rights and interests in the SRP2 Area also ceased to exist.
The applicants submitted that the SRP2 claim group had not authorised any of the overlapping ILUAs, and that they were a distinct and separate claim group. The applicants relied on the findings of Branson J in Kemp v Native Title Registrar [2006] FCA 939; (2006) 153 FCR 38 (‘Kemp’) that where there are two or more conflicting groups claiming native title over the same area, they must engage in separate authorisation processes under ss 251A(a) or 251A(b) of the Native Title Act 1993 (Cth).
Decision
McKerracher J dismissed the applicants’ reliance on Kemp and held that the applicants had had ample opportunity to apply for judicial review of the registration of the ILUAs but had not done so within the appropriate time period. It was also determined that upon registration of an ILUA, the ILUA was binding on all people holding native title in the area covered. In this matter, this included the SRP2 claim group.