Bropho v City of Perth [2016] FCA 1098

Bropho v City of Perth [2016] FCA 1098

Native title in respect of Heirisson Island has been wholly extinguished by previous vesting orders under s 33 of the Land Act 1933 (WA) as per binding High Court authority; the originating application is incompetent without a determination of native title, and there is no reasonable prospect of success.

Jurisdiction
Australia
Judgment Date
08 September 2016
Procedural Posture
Originating Application for Declaration Regarding Local Government Property Law and Native Title / Summary Dismissal
Outcome
Application summarily dismissed
Legal Topics
['extinguishment of Native Title' 'summary Judgment' 'statutory Construction' 'standing and Jurisdiction' 'local Government Power' 'public Works and Earthworks']
['native Title' 'administrative Law'] ['extinguishment of Native Title' 'summary Judgment' 'statutory Construction' 'standing and Jurisdiction' 'local Government Power' 'public Works and Earthworks']

Case Brief

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Procedural Posture

Originating Application for Declaration Regarding Local Government Property Law and Native Title / Summary Dismissal

Legal Issues

  1. 1 ['Whether native title exists or is extinguished over Heirisson Island' "Whether vesting 'in trust' under Land Act 1933 (WA) was valid after 1948 amendments" 'Whether the decision in Western Australia v Ward (2002) 213 CLR 1 is binding' 'Whether activities prohibited by the Local Government Property Local Law 2005 (WA) are protected by s 211 Native Title Act 1993 (Cth)' 'Whether the proceeding is incompetent without a determination of native title']

Ratio Decidendi

Native title in respect of Heirisson Island has been wholly extinguished by previous vesting orders under s 33 of the Land Act 1933 (WA) as per binding High Court authority; the originating application is incompetent without a determination of native title, and there is no reasonable prospect of success.

Court Disposition

Application summarily dismissed

Orders

  • ['The originating application filed 3 June 2016 be dismissed.' 'The first respondent (and second respondent, if seeking to be heard) to file a minute as to costs within 5 days supported by submissions.' 'Applicant to file corresponding material in response within 5 days thereafter.' 'Final orders as to costs to be...