Barker J
In this case, the Court dismissed the application of an unregistered native title claimant (Mr Corunna) that he and other members of the Swan River People claim group are a party to each of four ILUA areas and are therefore required to separately authorise any proposed ILUAs affecting their rights and interests.
Background
The matter relates to a single Noongar claim over Perth and the South West region (the South West Settlement) where the South West Aboriginal Land and Sea Council (SWALSC) and the State of Western Australia (WA) had reached in principle agreement. The terms of the agreement included that all those Noongar people who hold or may hold native title in the relevant area must surrender their native title rights and interests and validate all invalid acts of WA in return for benefits valued at approximately $1.3 billion.
The South West Settlement is proposed to be implemented through a series of Indigenous land use agreements (ILUAs) over six distinct regions.
Operation of the Statutory Scheme
Registration of ILUAs operates as a contract among the named parties and binds all members of the claim group concerned.
The Native Title Registrar decides whether or not to register ILUAs under s 24CJ of the Native Title Act 1993 (Cth) (NTA) and SWACLs intended to 'certify' the applications for registration. This would trigger a right to object by any person claiming to hold native title in relation to the ILUA area on the grounds that SWALSC did not satisfy the requirements of s 203BE(5)(a) and (b) of the NTA. These requires are that SWALSC must be of the opinion that:
all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified; and
all members of the identified group have authorised the making of the agreement.
Authorisation
An unregistered native title claim of Mr Corunna and 3 other people partially overlapped four of the six ILUA areas.
Mr Corunna personally sought a declaration that he and other members of the Swan River People claim group are a party to each of the four ILUA areas and are therefore required to separately authorise any proposed ILUAs affecting their rights and interests in the Swan River People claim area under s 251A of the NTA. Alternatively, Mr Corunna proposed that he is entitled to participate in a separate authorisation process with regards to the four proposed ILUAs.
Decision
Barker J reviewed the agreement making requirements of ss 24CB to 24CE of the NTA and concluded that Mr Corunna was not entitled to the declaration at that stage as his overlapping claim was not registered. The application before the Court was premature or hypothetical. His Honour stated, at [62] that:
if, in due course, SWALSC applies for the registration of the relevant ILUAs in this case, and Mr Corunna wishes to object to the registration, then he may do so and, at least, may object that he, having been identified as a person who holds or may hold native title in relation to land or waters in the area covered by the ILUAs (as he has been been so identified by the materials currently before the Court), has not authorised the making of the agreement.
As this was the only declaration sought, Barker J dismissed Mr Corunna’s application on the ground that it had no reasonable prospect of success under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
No order as to costs would be made unless SWALSC pressed for one.