Bennell v State of Western Australia [2021] FCA 1508

Binomial Name: Federal Court of Australia
Date: 1 December 2021
Sub Category:Consent Determination (Native Title Act)
Place:

South West

State/Country:Western Australia, Australia

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.

Legal Status:

Registered on the National Native Title Register

Legal Reference: Federal Court File No.: WAD6085/1998, WAD6134/1998, WAD6192/1998, WAD6274/1998, WAD6286/1998, WAD6181/1998, WAD6006/2003, WAD6012/2003, WAD253/2006, WAD33/2007, WAD242/2011; National Native Title Tribunal File No.: WCD2021/010
Alternative Names:
  • South West Settlement
  • Subject Matter:Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/1508.html?context=1;query=bennell%202021;mask_path=au/cases/cth/FCA
    Summary Information:

    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.

    Detailed Information:

    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 PeopleILUA
    3. YuedILUA
    4. South West Boojarah #2ILUA
    5. Wagyl Kaip & Southern NoongarILUA
    6. Whadjuk PeopleILUA

    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].

    Outcomes:

    Native title does not exist in the entire determination area


    Related Entries

  • Gnaala Karla Booja Indigenous Land Use Agreement (ILUA)
  • Ballardong People Land Use Agreement (ILUA)
  • Yued Indigenous Land Use Agreement (ILUA)
  • South West Boojarah #2 Indigenous Land Use Agreement (ILUA)
  • Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement (ILUA)
  • Whadjuk People Indigenous Land Use Agreement (ILUA)
  • Organisation
  • National Native Title Tribunal
  • State of Western Australia - Respondent
  • Commonwealth of Australia - Respondent
  • City of Bayswater - Respondent
  • Shire of Koorda - Respondent
  • City of Cockburn - Respondent
  • Shire of Manjimup - Respondent
  • South West Aboriginal Land and Sea Council - Respondent
  • Shire of Dandaragan - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
  • People
  • Anthony Bennell (and others named in the Schedule of Parties) (Single Noongar Claim #1) and (Single Noongar Claim #2) - Native Title Applicant
  • Anthony Bennell and Others - Native Title Applicant

  • Documents

    Document
    National Native Title Register Extract for WCD2021/010 as 3/02/2023 (South West Settlement) - ( PDF | PDF | PDF)

    Glossary

    Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Aboriginal and Torres Strait Islander (Australia) | Applicant | Respondent | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Aboriginal Corporation (Australia) | Native Title Applicants | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Registered Native Title Body Corporate (RNTBC) (Native Title Act) (Australia)