Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521

The majority of living, capable members of the applicant can continue to act and seek a consent determination; the Court's power to make a native title determination under s 87 of the Native Title Act 1993 (Cth) is not limited by the description of the claim group in Form 1, and the consent determination can appropriately include a broader or amended group if properly authorised in accordance with the Act.

Parties
Applicant: Widjabul Wia-bal; First Respondent: Attorney-General of New South Wales; Second Respondent: Byron Shire Council; Third Respondent: Lismore City Council; Fourth Respondent: Jali Local Aboriginal Land Council; Fifth Respondent: New South Wales Aboriginal Land Council; Ninth Respondent: Ngulingah Local Aboriginal Land Council; Sixth Respondent: NTSCORP Limited; Seventh Respondent: Telstra Corporation Limited; Eighth Respondent: Transgrid; Tenth Respondent: Amplitel Pty Ltd as trustee of the Towers Business Operating Trust
Jurisdiction
Australia
Judgment Date
19 December 2022
Procedural Posture
Consent Native Title Determination / Final Determination With Orders Made by Consent Under S 87 Native Title Act 1993 (cth)
Outcome
Consent native title determination orders made. Native title found to exist in specified areas, extinguished in others. Determination is to commence upon registration of the ILUA, with listing for case management if not registered by prescribed date. Corporation appointed as trust holder of native title. No order as...
Legal Topics
Consent Determination, Group Membership Definition, Death/incapacity of Applicant, Court Powers—description in Form 1
Native Title Consent Determination Group Membership Definition Death/incapacity of Applicant Court Powers—description in Form 1

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Parties

Widjabul Wia-bal

Applicant

Attorney-General of New South Wales

First Respondent

Byron Shire Council

Second Respondent

Lismore City Council

Third Respondent

Jali Local Aboriginal Land Council

Fourth Respondent

New South Wales Aboriginal Land Council

Fifth Respondent

Ngulingah Local Aboriginal Land Council

Ninth Respondent

NTSCORP Limited

Sixth Respondent

Telstra Corporation Limited

Seventh Respondent

Transgrid

Eighth Respondent

Amplitel Pty Ltd as trustee of the Towers Business Operating Trust

Tenth Respondent

Procedural Posture

Consent Native Title Determination / Final Determination With Orders Made by Consent Under S 87 Native Title Act 1993 (cth)

Legal Issues

  1. 1 Whether applicant's authorisation lapses or is invalidated due to death or incapacity of applicant members
  2. 2 Whether the Court can make consent determination under s 87 where claim group description differs from Form 1
  3. 3 Requirements for sufficient authorisation under Native Title Act 1993 (Cth)

Ratio Decidendi

The majority of living, capable members of the applicant can continue to act and seek a consent determination; the Court's power to make a native title determination under s 87 of the Native Title Act 1993 (Cth) is not limited by the description of the claim group in Form 1, and the consent determination can appropriately include a broader or amended group if properly authorised in accordance with the Act.

Court Disposition

Consent native title determination orders made. Native title found to exist in specified areas, extinguished in others. Determination is to commence upon registration of the ILUA, with listing for case management if not registered by prescribed date. Corporation appointed as trust holder of native title. No order as...

Orders

  • Determination of native title in terms sought by the parties.
  • Orders take effect upon registration of the ILUA; if not registered by 18 December 2025, matter to be listed for case management.