Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69

(WAD 30 of 2019)

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 Turlock, Annette Pepper, June Ruffin, Mary Tullock, Gerald John Whitby, Lorraine Whitby, Janet Wilson on behalf of the Nanda People (Applicant) and the State of Western Australia, James Michael Drew, Loreto Mary Drew, Yamatji Marlpa Aboriginal Corporation, Gabor Holdings Pty Ltd, Telstra Corporation Ltd (Respondents)

(WAD 339 of 2018)

Between: John Thomas Oxenham, Sarah Louise Bellottie, Terrence Gordon McKie, Bianca Elise McNeair, Denise Charmaine Mitchell, Leslie Anthony O'Neill, Albert Darby Winder on behalf of the Malgana People (Applicant) and the State of Western Australia, Shire of Shark Bay (Respondents) 

(WAD 402 of 2018)

Between: John Thomas Oxenham, Sarah Louise Bellottie, Terrence Gordon McKie, Bianca Elise McNeair, Denise Charmaine Mitchell, Leslie Anthony O'Neill, Albert Darby Winder on behalf of the Malgana People (Applicant) and the State of Western Australia, Shire of Shark Bay (Respondents) (WAD 402 of 2018)

Judges: Mortimer, White and Colvin JJ

Judgment:

This case established that where there are separate and distinct native titles over the same area, the court may determine that more than one prescribed body corporate (PBC) is to perform the functions required under the Native Title Act 1993 (Cth) (the NTA) and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) (the Regulations)[7].

Further, where separate native title holder groups nominate separate PBCs, the court does not have the discretion to determine that there should be only one PBC [7].

Background

On 4 November 2019, the Federal Court of Australia in Drury on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812 (Drury) made a determination of native title over two adjacent areas near Shark Bay in Western Australia.

The two areas were referred to as the 'Malgana Area' and the 'Shared Area'.

The Court determined the Malgana People held native title over the Malgana Area, whilst the Malgana People and the Nanda People held overlapping native titles over the Shared Area.

The Court reserved two questions for the Full Court's consideration:

1. Where there are distinct groups that each hold native title over the same area, can the court make orders for more than one PBC to be appointed to perform the functions required under the NTA?
2. If the answer to the first question is yes, does the Court have discretion to determine that only one PBC should be appointed? 

Legislative Background

Under s 55 of the NTA, if the court makes a positive determination of native title, it must then make the determinations required under s 56 (native title in trust) and s 57 (non-trust functions of PBCs).

To determine whether the native title is to be held in trust, the court takes the steps set out in s 56(2).

Firstly, the court must request that a representative of the native title holders indicate whether the native title holders intend to have their native title held in trust by nominating a prescribed body corporate (PBC) to be trustee of their native title within a specified period (s 56(2)(a)).

Following this request, there are three possibilities:

• Where a PBC is nominated as trustee: the court must determine accordingly (s 56(2)(b). The PBC's functions as trustee are provided for under the Regulations (s 56(3) and (4));
• Where a PBC is not nominated as trustee: the court must determine that the native title will be held by the native title holders (s 56(2)(c)). The court must then make a further request that a representative of the native title holders nominate a PBC which will perform the functions given to it [as their agent] under the NTA and under the Regulations s. 57(b); or
• Where no PBC is nominated: the court must determine which PBC will perform the functions required s. 57 (c).

Details of Judgment

Question 1: Whether multiple PBCs can perform the functions required under the NTA over the same area

The majority, Justices Mortimer and Colvin, held that multiple PBCs are appropriate where there is an overlap of native titles [7].

Their Honours saw the definition of the term 'determination of native title' in s 225 of the NTA as having two aspects. That is, the court's first task is to determine 'overall' whether native title exists in relation to the area based on a claimant's continuous communal connection to the area. If it does exist, then the second task is to determine further matters such as who are the native title holders, the rights conferred, and the geographic extent [26]-[27].

It is well established that there may be overlapping determinations of native title over the same area, so the question of whether there may be more than one PBC appointed is to be considered in that context [46].

Their Honours held that there can only be one PBC for one native title, since to determine otherwise would be inconsistent with the nature of native title which recognises a society's single body of laws and customs in relation to an area [74]. However, where distinct native titles are possessed under different laws and customs with separate sources of connection to the same area of native title, the holders of the overlapping titles may each nominate their own PBC [76]-[77].

Although the existence of two or more PBCs for the same area may create practical difficulties for the operation of other parts of the NTA, such as when it comes to negotiating Indigenous Land Use Agreements (ILUAs), assessing compensation, or applying for revised native title determinations, the NTA's provisions would not be so unworkable as to negate the conclusion that multiple PBCs may be appointed [81]-[88].

Their Honours also noted that if s 55 of the NTA was interpreted to mean the court must appoint a PBC in respect of each individual or group holding a particular native title right or interest, the result would potentially be a large number of PBCs in the overlapping native title area [71]. This would count against finding the court could appoint more than one PBC for the same area, meaning that, the Court's conclusion that the PBC is in relation to an overall determination of native title is an important contextual restraint on finding that more than one PBC may be appointed for overlapping native title areas [71].

Dissent: Justice White answered the first question in the negative. That is, there can be no more than one PBC for an area over which multiple groups hold overlapping native title. Although his Honour found that the native title of the Malgana People and the Nanda People were indeed possessed under different laws and customs, White J considered that the determination of the overlapping native title rights and interests of the two groups in the Shared Area was a single determination [121]-[123]. This is because his Honour considered that the further matters referred to above in relation to s 255, such as the determination of the native title holders, the rights conferred, and the geographic extent were an 'integral part of a determination that native title exists' [225].

Question 2: Whether the court can restrict separate native title holders to a single PBC

The majority held that the court has no discretion to determine that only one PBC should be appointed in circumstances where each group nominates a separate PBC [7]. Once the Court recognises native title as existing, it is up to the holders of that title to nominate a PBC [60].

If the native title holders nominate a PBC, then the PBC holds the native title on trust for the holders. Whereas, if the native title holders themselves hold the title, then there must still be a PBC, to act as their agent. Only if there is no PBC nominated to perform the required functions in relation to the native title does the court determine the identity of the PBC. The court's limited power indicates that if the native title holders nominate a PBC, then the court must appoint that PBC to perform the functions required [60].

Their Honours also noted that the purpose of the NTA is to provide for the recognition and protection of native title. Given that the NTA provides a mechanism for native title holders to nominate a PBC, imposing a different PBC would be inconsistent with the recognition of native title [57].

White J did not need to consider the second question given that he answered the first question in the negative [262].

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