Rares J
In this case, the Court:
considered an application by Wintawari Guruma Aboriginal Corporation RNTBC (WGAC) to be joined as a party to the Yindjibarndi people’s application for the determination of native title proceedings, TJ v Western Australia (WAD 6005 of 2003).
considered an application by WGAC to vary two consent determinations of native title held by the Eastern Guruma people recognised in Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 and Hughes (on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267 (see related content). WAGC claimed that was entitled make the application as the registered native title corporation which holds the native title rights and interests of the native title holders recognised in the two determination decisions on trust.
dismissed both applications and ordered WGAC to the pay the respondent’s costs on an indemnity basis.
Background
The land and waters in the Eastern Guruma native title determinations are immediately to the south of the Yindjibarndi people’s claim. In the application to vary lodged by WGAC an area of land and waters of 700 square kilometres overlapped one quarter of, and divided into two, the Yindjibarndi claim area.
WGAC claimed it had discovered an error in the boundaries of the consent determinations. WGAC also claimed that a site of particular significance to the Eastern Guruma people, ‘Satellite Springs’, was believed at the time of the consent determinations to be within the claim area. However, further investigation revealed that the site is located in the area claimed under the variation application. Two Eastern Guruma elders confirmed this in affidavits. If this variation was accepted, it would significantly reduce the Yindjibarndi claim area.
The variation would also have significantly disrupted the imminent on-country trial as additional anthropological and other factual evidence would need to be gathered. WGAC acknowledged that the revised application was not the subject of any previous applications from the Eastern Guruma people.
Reasons for decision
The principal issue considered by the Court was whether WGAC’s status, as the registered native title body corporate for the Eastern Guruma people’s native title, entitled it to bring the applications.
WGAC claimed:
it had the right, under s 13(1)(b) of the Native Title Act 1993 (Cth) (NTA), to apply to vary an approved determination of native title to increase that area, pursuant to s 13(5) of the NTA and because of its status as a registered native title body corporate for the purposes of making an application within the table in s 61(1) of the NTA.
the trust created by the orders creating the statutory trust under s 56(2) of the NTA extended to native title rights and interests that were not the subject of the determination but might have been included if there not been a mistake as to the boundaries claimed.
Reasons for Decision
Rares J held that neither application was capable of being made under the Act because:
the consent determinations previously made had identified with precision, the nature and extent of the native title rights and interests of the Eastern Guruma people and the judge had no power to permit or declare the creation of a trust over land and waters which could have been, but were not, included in the original application, at [23].
an application to revoke or vary an approved determination of native title on the grounds set out in ss 13(1)(b) and 13(5) of the NTA can only apply to land and waters included in the original application. This is because s 64(1) does not allow additional land or waters to be included in the amended application, at [25].
the NTA makes it clear that no one can apply for native title over land and waters that have not been the subject of, first, a process of authorisation by a native title claim group pursuant to s 251B and, secondly, the ordinary processes of the NTA, at [29].
WGAC was not entitled to be joined as a party to the Yinjibarndi proceedings because it had no authority to act beyond the execution of the trusts it was appointed to administer and those trusts did not extend to lands and waters outside the determination areas, [at 30].
Indemnity Costs
The Court concluded WGAC’s applications were fundamentally misconceived and an abuse of the court’s process and ordered WGAC to pay the costs of the Yindjibarndi applicant for both applications on an indemnity basis.