Drury on behalf of the Nanda People v State of Western Australia (No 2) [2019] FCA 1642

Drury on behalf of the Nanda People v State of Western Australia (No 2) [2019] FCA 1642

The Court was satisfied that it had power under s 25(6) of the Federal Court of Australia Act 1976 (Cth) to reserve for the Full Court questions arising in deciding whether to make the proposed consent determination. Given the uncertainty in the authorities about whether two prescribed bodies corporate can be appointed for the same area where distinct native title interests overlap, the Court declined to finally determine the consent application at this stage and ordered a case management hearing for submissions on whether questions should be reserved.

Jurisdiction
Australia
Judgment Date
04 October 2019
Procedural Posture
Application for Determination of Native Title by Consent / Determined on the Papers; Case Management Hearing Ordered for Further Submissions Before Deciding Whether to Make the Proposed Consent Determination
Outcome
Case management hearing ordered; proposed consent determination not finally decided.
Legal Topics
['consent Determination of Native Title' 'overlapping Native Title Rights and Interests' 'prescribed Bodies Corporate' 'reservation of Questions for Full Court']
['native Title' 'federal Court Procedure'] ['consent Determination of Native Title' 'overlapping Native Title Rights and Interests' 'prescribed Bodies Corporate' 'reservation of Questions for Full Court']

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Procedural Posture

Application for Determination of Native Title by Consent / Determined on the Papers; Case Management Hearing Ordered for Further Submissions Before Deciding Whether to Make the Proposed Consent Determination

Legal Issues

  1. 1 ['Whether the Court can make a native title determination identifying separate holders of native title in respect of the same area.' 'Whether the proposed consent determination identifies the Malgana People and the Nanda People as separate holders or as peoples who together hold native title on a shared basis.' 'Whether there is a proper basis for making a determination recognising separate native title interests over the Shared Area and appointing separate prescribed bodies corporate for that same area.' 'Whether questions should be reserved for consideration by the Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

The Court was satisfied that it had power under s 25(6) of the Federal Court of Australia Act 1976 (Cth) to reserve for the Full Court questions arising in deciding whether to make the proposed consent determination. Given the uncertainty in the authorities about whether two prescribed bodies corporate can be appointed for the same area where distinct native title interests overlap, the Court declined to finally determine the consent application at this stage and ordered a case management hearing for submissions on whether questions should be reserved.

Court Disposition

Case management hearing ordered; proposed consent determination not finally decided.

Orders

  • ['There be a case management hearing in these proceedings on a date to be fixed.' 'Any party wishing to make submissions as to the matters referred to in the reasons of the Court published today, do file and serve a minute of any orders to be sought at least two clear days before the case management hearing.']