Bennell v State of Western Australia [2021] FCA 1508

South West

The determination area covers the area of the six Indigenous Land Use Agreements that cover the South West Native Title Settlement Area (the Settlement Area). Also, most of the Single Noongar #1 Application area (apart from a small portion located northeast of the determination area (the Dalwallinu Area) which was also subject to the Widi Mob Application (WAD6193/1998) at the time the Settlement Area ILUAs were made; all of the Dingle Noongar #2 Application area; and most of the Yued Application area (apart from that within the Dalwallinu Area and the part located seaward of the 3 nautical mile limit).

Schedules 1 and 2 (attached) provide a written description and map of the area.

Registered on the National Native Title Register

This determination is related the South West Native Title Settlement (the largest native title settlement in Australia to date).

It reflects the agreement of all parties listed below in relation to the determination area, with each of the third to eleventh applications (the Underlying Noongar Applications) partially overlapping the first or second application. 

1. WAD 6006 of 2003 Between: Anthony Bennell and others named in the Schedule of Parties (Single Noongar Claim #1) (First Applicant) and State of Western Australia, Commonwealth of Australia, City of Bayswater and others named in the Schedule of Parties (Respondents)
2. WAD 6012 of 2003 Between: Anthony Bennell and others named in the Schedule of Parties (Single Noongar Claim #2) (Second Applicant) and State of Western Australia, Commonwealth of Australia (Respondents)
3. WAD 6181 of 1998 Between: Alan Jones and others named in the Schedule of Parties (Ballardong People) (Third Applicant) and State of Western Australia, Commonwealth of Australia, Shire of Koorda and others named in the Schedule of Parties (Respondents)
4. WAD 6274 of 1998 Between: Lorraine Bellotti and others named in the Schedule of Parties (Gnaala Karla Booja) (Fouth Applicant) and State of Western Australia, Commonwealth of Australia, City of Cockburn and others named in the Schedule of Parties (Respondents)
5. WAD 253 of 2006 Between: William Webb and others named in the Schedule of Parties (South West Boojarah #2) (Fifth Applicant) and State of Western Australia, Commonwealth of Australia, Shire of Manjimup and others named in the Schedule of Parties (Respondents)
6. WAD 6286 of 1998 Between: Hazel Brown and others named in the Schedule of Parties (Wagyl Kaip) (Sixth Applicant) and State of Western Australia, Commonwealth of Australia, Shire of Manjimup and Attorney General of the Commonwealth (Respondents)
7. WAD 6134 of 1998 Between: Dallas Coyne and others named in the Schedule of Parties (Southern Noongar) (First Applicant), Hazel Brown and others named in the Schedule of Parties (Second and (jointly Seventh Applicant) and State of Western Australia, Commonwealth of Australia, Shire of Manjimup and others named in the Schedule of Parties (Respondents)
8. WAD 33 of 2007 Between: Gerald Williams and others named in the Schedule of Parties (Wayl Kaip-Dillon Bay) (Eighth Applicant) and State of Western Australia, South West Aboriginal Land & Sea Council (Respondents)
9. WAD 242 of 2011 Between: Clive Davis and others named in the Schedule of Parties (Whadjuk People) (Ninth Applicant) and State of Western Australia, Commonwealth of Australia, City of Bayswater and others named in the Schedule of Parties (Respondents)
10. WAD 6192 of 1998 Between: Malcolm Ryder and others named in the Schedule of Parties (Yued) (Tenth Applicant) and State of Western Australia, Commonwealth of Australia, Shire of Dandaragan and others named in the Schedule of Parties (Respondents)
11. WAD 6085 of 1998 Between: Minnie Edith Van Leeuwen and others named in the Schedule of Parties (Harris Family) (Eleventh Applicant) and State of Western Australia, Commonwealth of Australia, Shire of Manjimup and others named in the Schedule of Parties (Respondents)

Judge: McKerracher J

Determination

McKerracher J dealt with the overlapping claim areas per s 67 of the NTA, and by consent of the parties determined that native title does not exist in the entire determination area.

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

Background

Since 2009, the applicants for this determination engaged in negotiations for the full and final settlement of all native title claims with the State and the South West Aboriginal Land and Sea Council.

The negotiations resulted in six Indigenous Land Use Agreements (ILUAs), each relating to a separate area, and together covering the area of the South West Native Title Settlement (Settlement Area).

The effect of the six ILUAs (listed below), was that on 13 April 2021, the Noongar people surrendered all native title rights and interests that may exist over the Settlement Area to the State.

1. the Gnaala Karla Booja ILUA
2. Ballardong People ILUA
3. Yued ILUA
4. South West Boojarah #2 ILUA
5. Wagyl Kaip & Southern Noongar ILUA
6. Whadjuk People ILUA

Significantly, the ILUAs also included the agreement of the relevant parties to jointly request the Court to make a determination that native title does not exist in the ILUA area.

The determination area also includes most of the Single Noongar #1 Application area (apart from a small portion located northeast of the determination area (the Dalwallinu Area) which was also subject to the Widi Mob Application (WAD6193/1998) at the time the Settlement Area ILUAs were made; all of the Dingle Noongar #2 Application area; and most of the Yued Application area (apart from that within the Dalwallinu Area and the part located seaward of the 3 nautical mile limit).

Details of Judgment

The basis on which the applicants said they were authorised to consent to the Court making this determination is that the Settlement ILUAs remain on the National Native Title Tribunal Register of ILUAs (despite legal challenges to their authorisation, execution, and registration), and that under s 24EA(1) of the NTA each ILUA operates as a binding contract on the parties and all other people who hold native title in the area covered in the agreement area (this includes the members of the Single Noongar Applications and the Underlying Noongar Applications) [33]-[34].

Justice McKerracher then was satisfied that it was appropriate, in all the circumstances, to make this negative determination of native title consistent with the orders proposed by the parties [60].

In conclusion, McKerracher noted the challenges and setbacks prior to achieving this significant result, and the importance of recording that 'it is firmly hoped that the settlement reached will bring about, in the years to come, widespread advancement and benefit to all it is intended to recognise' [64].

Native title does not exist in the entire determination area

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