Leyland v State of Western Australia [2020] FCA 512

Wyndham, Northern Kimberley Region

The determination area comprises six lots of land previously referred to as the 'Excluded Area' in Cheinmora v State of Western Australia (No 3) [2013] FCA 769. For a description and maps of the area see Schedule A and B, attached below under documents.

FCA No.: WAD6004/2000; NNTT No.: WCD2020/003

Between: Jean Leyland, Tom Birch, Jeff Clarke, Vernon Gerrard, May Smith and Mary Teresa (Taylor) (Applicant) and the State of Western Australia (Respondent)

Judge: McKerracher J

Judgment

The Court accepted the parties' agreement on the matter, deciding that native title does not exist in the determination area in accordance with s 87A of the Native Title Act 1993 (Cth). 

Background

The Balanggarra #3 Part B determination area was expressly excluded from the determination of native title made in Cheinmora v State of Western Australia (No 3) [2013] FCA 769 (Cheinmora)[8]. 

Later, in January 2015, the parties were referred to mediation so that they might agree on terms for a consent determination for that excluded Balanggarra #3 Part B area [9]. By November 2015, they had agreed in principle but, on 31 May 2016, reported that they still had 'limited issues' to resolve [11]-[12]. Then, as a result of mediation held in Broome on 23 June 2016, all outstanding issues were resolved [14].  Finally, between 17 July and 19 September 2019, all parties signed the Balanggarra #3 Indigenous Land Use Agreement (the ILUA) and it was registered with the National Native Title Tribunal on 14 February 2020 [26]-[28].

Details of Judgment

This Balanggarra #3 Part B determination relates to the above mentioned ILUA, wherein the Balanggarra native title claim group surrendered any native title they held in the six lots of land that comprise the determination area and were compensated [1]. 

The evidence accepted by the Court in Cheinmora, showing the Balanggara #3 claimants' connection to the Balanggarra #3 Determination Area, is equally applicable to this Balanggarra #3 Part B determination area [32].

All the parties signed an agreement for a proposed native title determination, and no objections were made by any other party following public notification of the proposed determination [43]-[46].

Given, among other things, that the parties had freely entered into the proposed agreement, Justice McKerracher was satisfied it was appropriate to make orders, as sought by the parties, for a determination that native title does not exist under s 87A of the NTA [54].

Native title does not exist

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