Lyndon on behalf of Budina 2 Claim Group v State of Western Australia [2021] FCA 134

Southern Pilbara Region, north of the Kennedy Range National Park and northeast of Lake McLeod 

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Clive Lyndon, Scott Lyndon, Ursula Lyndon and Marie Lyndon (Applicant) and State of Western Australia (Respondent)

Judge: Banks-Smith J

Determination

Native title exists in parts of the determination area. 

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

Native title holders

Native title is held by the Budina People. The Budina People are people who are descended from one or more of the individuals identified in Schedule Five of the determination, have a connection to the land and waters of the determination area in accordance with the traditional laws acknowledged and the traditional customs observed by the Budina People, and are accepted as Budina in accordance with the traditional laws acknowledged and the traditional customs observed by the Budina People.

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

These rights exist over the area described in Schedule One and include the right to:

• enter and remain on the land, camp, erect temporary shelters and travel over and visit any part of the land and waters of the determination area; 
• hunt, fish, gather, take and use the traditional resources of the land; 
• take and use water; 
• engage in cultural activities on the determination area, including visiting places of cultural or spiritual importance and maintaining, caring for and protecting those places by carrying out activities to preserve their physical and spiritual integrity, as well as conducting ceremony and ritual and the transmission of cultural knowledge; and 
• be accompanied on to the determination area by those people who, though not Budina, are the non-Budina spouses, parents, or children of a Budina person, or otherwise people entering in connection with, and subject to, traditional law and custom for the performance of ceremonies or cultural activities on the determination area. 

Other rights and interests in the determination area include:

• six reserves for the purposes of water, the protection of vermin-proof fence, or water rabbit department;
• the following pastoral leases: Towera Station, Winning Station, Mia Mia Station, Lyndon Station, Emu Creek Station, and Middalya Station;
• mining tenements: two exploration licences under the Mining Act 1978 (WA); 
• petroleum interests: one pipeline license under the Petroleum Pipelines Act (1969) and the interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land in the Dampier to Bunbury Natural Gas Pipeline Corridor. This includes State Corridor rights under the Dampier to Bunbury Pipeline Act 1997 (WA), as well as the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under s 34, s 36 and s 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA); 
• access to mining and petroleum areas by using existing roads and tracks in the determination area as necessary for access to the area that is subject to the mining tenement or petroleum title, for the purposes of exercising the rights granted by that tenement or title. This includes any right to exclude members of the public from entering onto land and waters provided by the tenement/title; 
• rights and interests granted by the state or the Commonwealth;
• rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to the force and operation of the Rights in Water and Irrigation act 1914 (WA); 
• common law rights and interests of members of the public, including but not limited to the public right to fish, navigate and to enjoy any roads over which members of the public have a right to access under the common law at the date of this determination;
• the right to access the determination area by an employee, agent or instrumentality of the state, Commonwealth or any local government authority as required in the performance of their statutory or common law duty; 
• pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), 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; 
• any other legal or equitable estate or interest in the land or waters or any other right, charge, power, privilege, estate, interest, or restriction on or in connection with the land or waters.

See Schedule Four 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 Budina 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 Budina People.

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

Background 

Lyndon on behalf of Budina 2 Claim Group v State of Western Australia [2021] FCA 134 (Budina 2) follows Lyndon on Behalf of Budina People v State of Western Australia [2017] FCA 1214 (Budina 1).

Here, in Budina 2, the Budina People sought a determination of native title over an area west of the Budina 1 determination area, aiming to 'rectify the difference between the full extent of the Budina country ... and the area already determined' [3]. 

Details of Judgment

Justice Banks-Smith accepted the same connection documentation provided in Budina 1, which relied on anthropological reports regarding the Budina People's connection with the determination area.

The sole issue in contention was the validity of the Budina working group's consent to the determination being made [13, 23]. The Budina People had authorised the working group to give consent on their behalf [26], despite s 62A of The Native Title Act 1993 (Cth) (the NTA) expressly stipulating that it is the Applicant which 'may deal with all matters arising ... in relation to the application'.

Justice Banks-Smith noted that final decisions should not be made by a working group with the capacity to act by majority [50]. Her Honour determined that 'the delineation between the working group's role and the statutory role of the applicant must be maintained and respected' [52]. 

However, Section 84D(4) of the NTA allows the court to hear and determine an application or to make other orders as the court sees fit, regardless of a 'defect in authorisation' as outlined in 84D(3). Accordingly, Justice Banks-Smith decided to make the determination in the 'interests of justice' [66]. Her Honour took into consideration that the working group and the Applicant were constituted of the same members, and had consented to the determination unanimously [63, 66].

Native title exists over parts of the determination area 

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