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ISSUE 27 Contents NATIONAL NATIVE TITLE TRIBUNAL LEGAL NEWSLETTER MAY 2008, ISSUE 27 Contents Rubibi appeal — Broome.............................................................................................................................3 Western Australia v Sebastian [2008] FCAFC 65 (Full Court) ................................................................3 Single Noongar appeal – Perth..................................................................................................................19 Bodney v Bennell [2008] FCAFC 63 (Full Court) ...................................................................................19 Timber Creek appeal — exclusive native title .......................................................................................33 Griffiths v Northern Territory (2007) 243 ALR 7; [2007] FCAFC 178 (Full Court).............................33 Claimant application required for recognition of native title.............................................................40 Commonwealth v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 (Full Court)..................................40 Expedited procedure – site protection .....................................................................................................45 Parker v Western Australia [2008] FCAFC 23 (Full Court)...................................................................45 Replacing the applicant under s. 66B.......................................................................................................48 Foster v Que Noy [2008] FCAFC 56 (Full Court)...................................................................................48 Que Noy v Northern Territory [2007] FCA 1888 (Douglas North claim)............................................50 Parry v Northern Territory [2007] FCA 1889 (Fish River claim)..........................................................55 Turrbal People v Queensland [2008] FCA 316 .........................................................................................56 Anderson v Western Australia [2007] FCA 1733 (Ballardong claim)...................................................57 Registration test review..............................................................................................................................60 Wiri People v Native Title Registrar [2008] FCA 574 (authorisation)...................................................60 Glasshouse Mountains Gubbi Gubbi People v Registrar [2008] FCA 529 (2007 Amendment Act) .....62 Hazelbane v Doepel [2008] FCA 290 (Town of Bachelor No 2) ............................................................66 Strike out under s. 84C................................................................................................................................70 Hazelbane v Northern Territory [2008] FCA 291 (Town of Batchelor No 2) .......................................70 Validity of a non‐native title interest on a DOGIT...............................................................................73 Murgha v Queensland [2008] FCA 33......................................................................................................73 Section 211 – honest claim of right as defence to fisheries prosecution ...........................................76 Mueller v Vigilante [2007] WASC 259.....................................................................................................76 Claims must be actively progressed.........................................................................................................79 Naghir People 1 v Queensland [2008] FCA 192 .......................................................................................79 Dismissal of claim made in response to future act notice – s. 94C.....................................................80 Jones v Northern Territory [2007] FCA 1802...........................................................................................80 Party status....................................................................................................................................................82 Doyle v Queensland [2007] FCA 1941 (claim group member seeks joinder and strike‐out) ...........82 Akiba v Queensland (No 3) [2007] FCA 1940 (Papua New Guinean resident) ..................................82 Access to documents in native title proceedings...................................................................................84 Allison v Western Australia [2007] FCA 1969.........................................................................................84 Costs 86 Gumana v Northern Territory (No 2) [2007] FCAFC 168 (Blue Mud Bay appeal) .............................86 OʹMara v Minister for Lands (NSW) [2008] FCA 51 (interim injunction) ..........................................87 OʹMara v Minister for Lands (NSW) [2008] FCA 84 (to be paid ‘forthwith’).....................................89 Determination of native title.....................................................................................................................90 Ngadjon‐Jii People v Queensland [2007] FCA 1937 (Ngadjon‐Jii People)............................................90 Walker v Queensland [2007] FCA 1907 (Eastern Kuku Yalanji People) .............................................92 Close v Minister for Lands (NSW) [2007] FCA 1847 (Githabul People) ..............................................95 Rubibi appeal — Broome Western Australia v Sebastian [2008] FCAFC 65 (Full Court) Branson, North and Mansfield JJ, 2 May 2008 Issue The main issues in these appeal proceedings were: • whether native title to the Broome area in Western Australia was communal in nature and held by the Yawuru community; and • whether some of the findings at first instance in relation to extinguishment were correct. The Full Court of the Federal Court upheld the finding of communal native title but overturned some of the findings in relation to extinguishment. Background At first instance, his Honour Justice Merkel heard and determined two competing claims under ss. 13 and 61 of the Native Title Act 1993 (Cwlth) (NTA) for a determination of native title over and around the town of Broome, which were: • the Yawuru claim, made by 12 people on behalf of the Yawuru community, for communal native title rights and interests; • the Walman Yawuru claim, made by three people on behalf of the Walman Yawuru clan, for a determination in favour of that clan (rather than the Yawuru community) over parts of the area covered by the Yawuru claim. The State of Western Australia, the Commonwealth of Australia and the Western Australian Fishing Industry Council Inc (WAFIC) opposed both claims. Submissions on extinguishment were made by the parties. In July 2005, Merkel J published his findings in relation to the competing claims in Rubibi Community (No 5) v Western Australia [2005] FCA 1025 (Rubibi No 5, summarised in Native Title Hot Spots Issue 16). His Honour concluded that the native title rights and interests possessed in the area covered by the Yawuru application: • were communal native title rights and interests possessed by members of the Yawuru community; • were not the group native title rights and interests claimed to be possessed by members of the Walman Yawuru clan. In February 2006, Merkel J made findings on the following issues: • the identification of the native title determination area; • the criteria for membership of the native title holding community; and • the nature and extent of the native title rights and interests possessed by the native title holding community—see Rubibi Community v Western Australia (No. 6) [2006] FCA 82 (Rubibi No 6, summarised in Native Title Hot Spots Issue 19). Native Title Hot Spots Issue 27 PAGE 3 National Native Title Tribunal His Honour found that: • the Yawuru community possessed communal native title rights and interests in the whole of the Yawuru claim area; • the evidence supported the inference that the Yawuru community was entitled to exclusive possession and occupation of the Yawuru claim area (excluding the intertidal zone) where there has been no extinguishment. Among others, in Rubibi No 6, his Honour also dealt with the issue of whether: • the Djugan people were a clan of the Yawuru community or a native title holding community in their own right; • if they were a separate community, whether the northern parts of the Yawuru claim area were in fact part of the country of the Djugan community. Merkel J found that the Djugan were a subset, or subgroup, of the Yawuru community and, therefore, that the determination of native title should extend over both the northern and southern parts of the Yawuru claim area. In April 2006, in Rubibi Community v Western Australia (No 7) [2006] FCA 459 (Rubibi No 7, summarised in Native Title Hot Spots Issue 19), Merkel J published reasons for judgment determining the areas within the Yawuru claim area where the native title rights and interests of the Yawuru community had been wholly or partially extinguished and also dealt with certain other issues raised after the publication of Rubibi No 6. Merkel J also found (among other things) that, while the members of the Walman Yawuru clan held special attachments to, and responsibilities for, areas or sites with which the clan was associated, those special attachments and responsibilities did not constitute native rights or interests. Thus, the Walman Yawuru claim failed, although the Walman Yawuru people were found to hold communal native title rights and interests in their capacity as members of the
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