Drury on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812

Gascoyne Region

Registered with the National Native Title Tribunal on the Native Title Register 4/11/2019

Drury on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812

Between: Violet Drury, Colleen Drage, John Stephen Drage, Steven Kelly (Father of Marrick Kelly), Steven Kelly (Grandson of Cornelius Kelly), William Mallard Jr, William Mallard Sr, Nora Mallard, Gwen Mitchell, Helen Nutter, Annette Pepper, June Ruffin, Mary Tullock, Gerald John Whitby, Lorraine Whitby, Janet Wilson (Applicant)

and

State of Western Australia, James Michael Drew, Loreto Mary Drew, Yamatji Marlpa Aboriginal Corporation, Gabor Holdings Pty Ltd, Telstra Corporation Limited (Respondents) (WAD 30 of 2019).

Determination

Native title exists in parts of the determination area:

It consists of non-exclusive native title rights and interests.

Native title holders

In the Malgana Area, native title is held by the Malgana People. In the Shared Area, native title is held by both the Malgana People and the Nanda People. The Malgana Area is defined in Schedule 2 attached below as the northern section of land ending at the Port of Carnarvon. The Shared Area is the more substantive section of land south of Useless Loop Road (Road No 16167) in Schedule 2 attached below.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Attachment A and include:

• the right to enter and remain on the Determination Area, camp, erect shelters and other structures for that purpose, and to travel over and visit any part of the Determination Area; 
• the right to hunt, fish, gather, and use the traditional resources of the Determination Area; 
• the right to take and use water; 
• the right to engage in cultural activities on the Determination Area, including visiting places of cultural or spiritual importance and protecting those places and conducting ceremony and ritual, including burial rights; and
  
• the right to be accompanied on the Determination Area by those people who, though not native title holders, are spouses, parents or children of the native title holders or are people entering in connection with traditional law and custom for the performance of ceremonies or cultural activities.
  

Other rights and interests in the determination area include:

• those existing under the Tamala Station Pastoral Lease;
• rights and interests, including licenses and permits, granted by the State or the Commonwealth;
• rights and interests held through the laws of the State and Commonwealth, including the Rights in Water Act 1914 (WA);
• rights and interests of members of the public arising under common law, including the public rights to fish and navigate and the right of any person to use and enjoy any roads in the Determination Area (subject to the laws of the State) at the date of this determination;
• the right to access the Determination Area by an employee, agent or instrumentality of the State or Commonwealth  or any local government authority in the performance of their duties, including for the purpose of pest management control and fire hazard management in the areas of unallocated Crown land;
• so far as confirmed pursuant to s 212(2) of the Native Title Act and s 14 of the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 as the date of this determiantion, any existing public access to and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters, beaches,stock routes, and areas that were public places at the end of 31 December 1993; and
  
• any other valid interest or right in the Determination Area.

See Schedule 5 of the determination, attached below, for further information about the non-native title rights and interests.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

The Malgana Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Malgana People. In the Shared Area, the native title rights and interests are held by both the Malgana Aboriginal Corporation for the Malgana People, and the Nanda Aboriginal Corporation (RNTBC), for the Nanda People.

Full text of the determination is available via the URL link above.

Background

This determination, Drury on behalf of the Nanda People v State of Western Australia (No 3) involves the applicants from three other native title applications, the Nanda, Malgana #2 and Malgana #3.

On 28 November 2018, following a 24 year legal battle, the Nanda People were recognised as the native title holders of more than 17,000 square kilometres of land and water in Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849. Some of the areas covered by this application were not included in the determination because they overlapped with the Malgana #2 application. Following this decision, the current Nanda application was amended to remove the area covered in the 2018 determination. This resulted in the Nanda application relating only to an area which is overlapped by the Malgana #2 application and the Mullewa Wadjari Community application.

In the same year, on 4 December 2018, after a 20 year court battle, the Malgana People were granted native title in Oxenham on behalf of the Malgana People v State of Western Australia [2018] FCA 1929. During this process, the Malgana application was amended to remove the area of this current determination.

Details of Judgment

The parties to this application reached an agreement as to the terms of the determination and the form of orders that are appropriate to provide recognition of the native title rights and interests held by the Malgana People and the Nanda People in the Determination Area.

The
applicants in the Nanda application, the Malgana #2 application, the
Malgana #3 application and the State of Western Australia and the other
respondents to those applications reached an agreement as to the
terms of the determination. The determination  area
comprises the whole of the land and waters covered by the Magana #2
application and the Malgana #3 application.

The parties agreed that no determination is to be made regarding land and waters in the Nanda application which overlaps the Mullewa Wadjari Community application.

The Court accepted that the orders for the determination should be made [8]. However, Colvin J referred questions of 'considerable importance for native title claims' to be addressed by the Full Court of the Federal Court of Australia. This relates to concerns about two prescribed bodies corporate for the same area of land where there is overlapping Native Title [1]. Here, both the Malgana People and Nanda People are recognised as native title holders.

The Full Court later accepted in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 that more than one prescribed body corporate can perform functions under the Native Title Act 1993 (Cth) over the same land. This applies when there is a determination of separate and distinctive native titles over the same land, as is the case here. Further, the Full Court held that if each group nominates a separate prescribed body corporate, the Court does not have the discretion to determine that there should only be one for the prescribed area.

Native title exists in part of the determination area

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