Moses v State of Western Australia [2007] FCAFC 78

Western Australia
Federal Court
Legislation considered: 
Mining Act 1978 (WA)
s 223 Native Title Act 1993 (Cth)
s 225 Native Title Act 1993 (Cth)
s 47A Native Title Act 1993 (Cth)
s 47B Native Title Act 1993 (Cth)
s 56 Native Title Act 1993 (Cth)
s 57 Native Title Act 1993 (Cth)

Moore, North, and Mansfield JJ

The primary judge, in Daniel v State of Western Australia [2005] FCA 536, made a determination that non-exclusive native tile rights and interests exist in relation to the Ngarluma Native Title Area and the Yindjibarndi Native Title Area.

The Yaburara/Mardudhunera, Wong-Goo-TT-OO, and Kariyarra claims were dismissed to the extent that they overlap the Ngarluma/Yindjibarndi claim area.

Extinguishment by grant of pastoral lease

The Full Court found that the primary judge erred in finding that some pastoral leases had extinguished native title. The parties agreed that the pastoral leases did not have any extinguishing effect upon native title. The Full Court, in citing Ward, agreed with the parties and granted consent orders.

Sections 47A

The effect of the above consent orders which will be made in relation to the pastoral leases is that non-exclusive native title rights and interests will be recognised in those areas.

Section 47B

This ground of appeal concerns whether s 47B of the Native Title Act 1993 (Cth) applies to area which were, at the time of the determination application was made, subject to temporary reserves under the Mining Act 1978 (WA). The Full Court concluded that s 47B does apply to the relevant reserves, and made a determination that native title should be extended to encompass those areas. However, further considerations were then given to whether these areas had been occupied by the native title claim group. The Full Court examined evidence of occupation over various parts of the claim area. Their Honours concluded that all but two discrete areas had been occupied at the time of the determination application and thus s 47B would apply.

Internal geographical limitations

The parties sought orders by consent to the effect that the native title rights and interests as found may be exercised over the whole of the lands and waters to which the Ngarluma and Yindjibarndi peoples have a traditional connection.

Existence of native title in the Karratha Area

The Full Court considered many issues in relation to this ground of appeal including continuity, society, traditional laws and customs, and connection. The Full Court found that the primary judge did not err in his findings in relation to this ground of appeal and that the primary judge did not assume that thw acknowledgement and observance of laws and customs had been continuous.

Description of native title holders

The argument contended is essentially that s 225(a) of the Native Title Act 1993 (Cth) is not satisfied by simply naming the native title holding group but also requires that a method be stipulated to ascertain individual group members. The Full Court found that the descriptions in this case do go beyond mere nomination of the group and define membership by reference to two criteria, namely, self recognition and recognition by others in the group. There is nothing to suggest that s 225(a) was not complied with.

Prescribed bodies corporate

The state contended that ss 56(2) and 57(2) of the Native Title Act 1993 (Cth) allow for only one PBC to be determined for each native title determination area. The Full Court determined that the regulation is permissive and does not require that there be only one PBC for each determination.