Koara People v State of Western Australia [2006] FCA 66

Koara People v State of Western Australia [2006] FCA 66

The right to negotiate under the transitional provisions of the Native Title Amendment Act 1998 (Cth) is preserved in relation to section 29 notices issued prior to 30 September 1998, for native title claims made before 27 June 1996 which were removed from the Register following application of the registration test, notwithstanding amendment or combination of claims, and the reasoning in Bullen v State of Western Australia should be followed.

Parties
Applicants: Koara People; First Respondent: State of Western Australia; Second Respondent: The Hon Clive Brown, Minister for State Development
Jurisdiction
Australia
Judgment Date
09 February 2006
Procedural Posture
Application for Declaratory and Injunctive Relief Under the Native Title Act 1993 (cth) and Judiciary Act 1903 (cth) / Judgment at First Instance
Outcome
Application allowed; declarations and injunction granted
Legal Topics
Right to Negotiate, Registration of Native Title Claims, Transitional Provisions, Statutory Interpretation
Native Title Administrative Law Right to Negotiate Registration of Native Title Claims Transitional Provisions Statutory Interpretation

Case Brief

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Parties

Koara People

Applicants

State of Western Australia

First Respondent

The Hon Clive Brown, Minister for State Development

Second Respondent

Procedural Posture

Application for Declaratory and Injunctive Relief Under the Native Title Act 1993 (cth) and Judiciary Act 1903 (cth) / Judgment at First Instance

Legal Issues

  1. 1 Whether the combination and amendment of native title claims previously removed from the Register preserves the right to negotiate under the transitional provisions of the Native Title Amendment Act 1998 (Cth)
  2. 2 Whether subitem 11(11) of Schedule 5 to the Native Title Amendment Act 1998 (Cth) applies notwithstanding amendment of the claim
  3. 3 Whether prior decision in Bullen v State of Western Australia [1999] FCA 1490 should be distinguished

Ratio Decidendi

The right to negotiate under the transitional provisions of the Native Title Amendment Act 1998 (Cth) is preserved in relation to section 29 notices issued prior to 30 September 1998, for native title claims made before 27 June 1996 which were removed from the Register following application of the registration test, notwithstanding amendment or combination of claims, and the reasoning in Bullen v State of Western Australia should be followed.

Court Disposition

Application allowed; declarations and injunction granted

Orders

  • It is declared that the applicants are and were at all material times registered native title claimants within the meaning of the Native Title Act 1993 (Cth) with respect to any notices issued prior to 30 September 1998 pursuant to s 29 and affecting any land within the boundaries of the land subject of native title...
  • The respondents are permanently restrained from granting any interests in land the subject of any s 29 notices issued prior to 30 September 1998 and referred to in the preceding order, unless or until one of the requirements under s 28 of the Act is satisfied.