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Banjima People V State of Western Australia (No 2) [2013] FCA 868

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Banjima People V State of Western Australia (No 2) [2013] FCA 868 FEDERAL COURT OF AUSTRALIA Banjima People v State of Western Australia (No 2) [2013] FCA 868 Citation: Banjima People v State of Western Australia (No 2) [2013] FCA 868 Parties: BANJIMA PEOPLE v STATE OF WESTERN AUSTRALIA AND ORS File number: WAD 6096 of 1998 Judge: BARKER J Date of judgment: 28 August 2013 Catchwords: NATIVE TITLE – application for determination of native title – whether claimants constitute single group – whether claim area part of traditional country of claimants – whether claimants have maintained connection with claim area – whether claimants descendants of ancestors who had rights and interests in claim area – what native title rights and interests exist – what non-native title rights and interests exist – whether various acts extinguished native title rights and interests – extent of any extinguishment of native title rights and interests PRACTICE AND PROCEDURE – application for confidentiality order under s 37AF Federal Court of Australia Act 1976 (Cth) – whether order necessary to prevent prejudice to proper administration of justice – whether order necessary to protect safety of persons Legislation: Evidence Act 1995 (Cth) s 136 Federal Court of Australia Act 1976 (Cth) s 17, Pt VAA, s 37AE, s 37AF, s 37AG, s 37AG(1), s 37AG(1)(a) Native Title Act 1993 (Cth) s 13(1)(b), s 15(1)(a), s 15(1)(c), s 15(1)(d), s 19, s 23A(2), s 23B(2)(c)(i), s 23B(2)(c)(iii), s 23B(2)(c)(viii), s 23B(7), s 23B(9), s 23C(1), s 23C(2), s 23F, s 24HA, Pt 2 Div 3 Subdiv I, s 24IA(a), s 24IB, s 24IB(a), s 24IB(b), s 24ID(1), s 24ID(1)(a), s 24ID(1)(b), s 24ID(1)(c), s 24ID(3), Pt 2 Div 3 Subdiv M, 24MA, s 24MB, s 24MD(1), s 24MD(3), s 24MD(6A), s 24MD(6B), s 24MD(6B)(b), s 24MD(6B)(c), s 24MD(6B)(d), s 24MD(6B)(f), s 24MD(6B)(g), s 24OA, Pt 2 Div 3 Subdiv P, s 25(4), s 26(1)(c)(i), s 28(1), s 29, s 32, s 39(1)(e), s 44H, s 44H(c), s 44H(d), s 44H(e), s 47, s 47A(1), s 47A(1)(b), s 47A(1)(b)(i), s 47A(1)(b)(ii), s - 2 - 47A(1)(c), s 47A(2), s 47B, 47B(1)(b), s 47B(1)(b)(ii), s 47B(1)(c), s 47B(2)(b), s 61, s 61A(3), s 190B(6), s 212, s 212(1)(a), s 223, s 223(1), s 223(1)(c), s 225(c), s 225(d), 225(e), s 226(2)(e), s 227, s 228, s 228(2), 228(2)(a)(ii), s 228(2)(b), s 228(3), s 228(3)(a), s 228(3)(b), s 228(3)(b)(i), s 228(9)(c), s 229, s 229(3)(a), s 230, s 231, s 232D, s 233, s 233(1), s 233(1)(c)(i), s 237A, s 238, s 239, s 245, s 245(1), s 246(1), s 246(2), s 248B, s 251D, s 253, Sch 1 cl 36, Sch 5 Pt 3 Native Title Amendment Act 1998 (Cth) Racial Discrimination Act 1975 (Cth) s 10, s 10(1) Crown Lands Ordinance 1931-1952 (Cth) s 111 Aboriginal Affairs Planning Authority Act 1972 (WA) s 20(3)(c), s 30(c) Aboriginal Heritage Act 1972 (WA) Acts Amendment (Iron Ore Agreements) Act 2000 (WA) Pt 5 Acts Amendment (Mt Goldsworthy, McCamey’s Monster and Marillana Creek Iron Ore Agreements) Act 1994 (WA) Pt 2 Country Areas Water Supply Act 1947 (WA) Dampier Solar Salt Agreement Act 1967 (WA) Dampier Solar Salt Industry Agreement Act 1967 (WA) Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) Environmental Protection Act 1986 (WA) Goldfields Act 1886 (WA) Goldfields Act 1895 (WA) Land Act 1898 (WA) s 96, s 152, s 153 Land Act 1933 (WA) s 7, s 7(1), s 7(2), s 10, s 10(1), s 10(7), s 29, s 32, s 33, s 33(3)(a), s 33(4)(a), s 43, s 94, s 109, s 109A, s 114, s 116, s 117, s 144(2), s 145(6) Land Administration Act 1997 (WA) s 26(2), s 41, s 46, s 79 Local Government Act 1960 (WA) s 288 Interpretation Act 1984 (WA) s 74 Iron Ore (Hamersley Range) Agreement Act 1963 (WA) Iron Ore (Marillana Creek) Agreement Act 1991 (WA) Iron Ore (Mount Bruce) Agreement Act 1972 (WA) Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) s 4A, s 4B, s 4C Iron Ore (Mount Goldsworthy) Agreement Act Amendment Act 1971 (WA) Iron Ore (Mount Newman) Agreement Act 1964 (WA) s 3 Iron Ore (Robe River) Agreement Act 1964 (WA) Iron Ore (Yandicoogina) Agreement Act 1996 (WA) Main Roads Act 1930 (WA) s 9, s 16, s 19, s 22, s 26, s 27A(3) - 3 - Mining Act 1904 (WA) s 3(1), s 26, s 26(4), s 48, s 48(1), s 48(5), s 50(1)(b), s 51, s 65, s 69, s 80(1)(b), s 115, s 117, Pt IX, s 196, s 205, s 207, s 208, s 210, s 273, s 276, s 277 Mining Act 1978 (WA) s 8(1), s 9, s 9(1), Pt IV Div 1, s 40, s 40(1), s 40(2), s 48, s 51, s 51A, Pt IV Div 2, s 56C, s 57(1), s 57(2), s 66, s 71, s 73(1), s 82(1)(c), s 85, s 86(1), s 86(3), s 87, s 87(1), s 87(2), s 88, s 91(3)(b), s 91(6), s 113, s 116 Mining Act Amendment Act 1920 (WA) s 6, s 7(1), s 8(1) Mining Act Amendment Act 1937 (WA) s 2 Mining Act Amendment Act 1957 (WA) s 6 Mining Act Amendment Act (No. 2) 1964 (WA) s 3 Mining Act Amendment Act 1968 (WA) s 2 Mining Act Amendment Act 1969 (WA) s 2 Native Welfare Act 1963 (WA) s 18 Petroleum Act 1936 (WA) s 5, s 9, Pt IV Div 1, s 32(1), s 35(3), s 35(4), s 39, s 40 Petroleum Act 1967 (WA) s 15(1), Pt III Div 2 s 30, s 31, s 32(1)(a)(i), s 32(4), s 38 Petroleum Amendment Act 2007 (WA) Petroleum and Geothermal Energy Resources Act 1967 (WA) s 9 Property Law Act 1969 (WA) s 4(a), s 33(2)(d), Sch 1 Public Works Act 1902 (WA) s 17 Rights in Water and Irrigation Act 1914 (WA) s 4(1), s 5A, s 5C, s 7, s 9, s 17, s 18, s 26D, s 27(5), s 27(6) Road Districts Act 1919 (WA) s 158 Road Districts Act Amendment Act 1932 (WA) s 2(c) Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 5, s 6, s 8, s 12I, s 12I(1), s 12J, s 12J(1), s 12M, s 12M(1), s 12M(1)(a), s 12M(1)(b)(i), s 13(1), s 24JA(1) Western Australia Day (Renaming) Act 2012 (WA) Wildlife Conservation Act 1950 (WA) s 14(1), s 16, s 22 Land Regulations 1882 (WA) reg 29, reg 29(13) Land Regulations 1887 (WA) reg 32, reg 32(n), reg 69 Mining Regulations 1925 (WA) reg 5, reg 10, Pt III, Pt III Div 2, reg 40, reg 50, reg 55(1), reg 55(2), Pt III Div 3, reg 84, reg 87(1), Pt IV, reg 98(f), reg 111, reg 114 Mining Regulations 1981 (WA) Pt IV Div 1, reg 13, reg 15(1), Pt IV Div 2, reg 19, reg 36(b) Real Property Act 1845 (UK) Statute of Frauds 1677 (UK) s 1, s 2 Western Australia Constitution Act 1890 (UK) s 3 Cases cited: AB (deceased) v Western Australia (No 4) [2012] FCA 1268 Alyawarr v Northern Territory [2004] FCA 472; (2004) - 4 - 207 ALR 539 Akiba v Queensland (No 3) [2010] FCA 643; (2010) 204 FCR 1 Akiba v Commonwealth [2013] HCA 33; (2003) 87 ALJR 916 Aplin on behalf of the Waanyi People v Queensland [2010] FCA 625 Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 Australian Broadcasting Commission v Parish (1980) 43 FLR 129 Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Australian Manganese Pty Ltd v Western Australia [2008] NNTTA 38; (2008) 218 FLR 387 Barry v Hasseldine [1952] Ch 835 Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120 BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145 BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui-Itochu Iron Ore Pty Ltd v Martu Idja Banyjima (MIB) Native Title Claimants [2009] WAMW 6 Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84 Bropho v Western Australia [2000] FCA 1; (2000) 96 FCR 453 Brown v Western Australia (No 2) [2010] FCA 498; (2010) 268 ALR 149 Brown v Western Australia [2012] FCAFC 154; (2012) 208 FCR 505 Commonwealth v Akiba [2012] FCAFC 25; (2012) 204 FCR 260 Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 Congoo v Queensland [2001] FCA 868 Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502 Daniel v Western Australia [2003] FCA 666 Daniel v Western Australia [2003] FCA 1425 Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254 Daniel v Western Australia [2005] FCA 536 De Rose v South Australia [2002] FCA 1342 De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 - 5 - Erubam Le (Darnley Islanders) v Queensland [2003] FCAFC 227; (2003) 134 FCR 155 Evans v Western Australia (1997) 77 FCR 19 Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 Fibrework Industries Pty Ltd v Furnari [2005] VSC 489; [2006] ANZ ConvR 137 Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 Gerhardy v Brown (1985) 159 CLR 70 Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 Griffiths v Northern Territory [2007] FCAFC 178; (2007) 165 FCR 391 Gumana v Northern Territory [2007] FCAFC 23; (2007) 158 FCR 349 Harrington-Smith v Western Australia (No 2) [2003] FCA 893; (2003) 130 FCR 424 Harrington-Smith v Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1 Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 ICI Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VR 400 ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140 In re St Clement’s [1988] 1 WLR 720 James v Western Australia [2010] FCAFC 77; (2010) 184 FCR 582 Jango v Northern Territory (No 4) [2004] FCA 1539; (2004) 214 ALR 608 Jones v Dunkel (1959) 101 CLR 298 King v Northern Territory [2007] FCA 1498 Kogolo v Western Australia [2011] FCA 1481 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 Lardil, Kaiadilt, Yangkaal and Gangilidda Peoples v Queensland [2004] FCA 928 Lardil, Yangkaal, Gangalidda and Kaiadilt Peoples v Queensland [2008] FCA 1855 Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453 Mabo v Queensland (No 2) (1992) 175 CLR 1 Mineralogy Pty Ltd v National
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