Bodney v Bennell [2008] FCAFC 63

STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL and CHRISTOPHER BODNEY v ANTHONY BENNELL and OTHERS WAD 287 of 2006 WAD 288 of 2006 WAD 289 of 2006 WAD 290 of 2006 SUMMARY In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court's reasons is the judgment itself. This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au. Bodney v Bennell [2008] FCAFC 63 In 2003 eighty Aboriginal persons made an application to the Court for a determination of native title. The application came to be called 'the Single Noongar application'. The applicants alleged that in 1829 (the date of European settlement in Western Australia) there was a single Aboriginal community throughout the whole of the south‑west of Western Australia. The applicants called this the 'Noongar community' and claimed the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community. The applicants said the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community's traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community. The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia. The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance. The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land. The whole of the land and waters claimed in the single Noongar application are described as the 'claim area'. The claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns. However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments. The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most leasehold land. Having regard to the extent of urban development, and intensive farming, in the claim area, the result is that a large proportion of the land within the claim area is unaffected by the claim. The Court decided to break up the trial of the Single Noongar application by first dealing with an area, in and around Perth, that had been the subject of several earlier, smaller claims later aggregated together as the 'Combined Metro claim'. The Court took this course because of the expressed desire of the State (supported by the Commonwealth) for early finality as to whether native title still survived in the Perth area. With the agreement of all parties, the Court created a separate proceeding in relation to the Perth area. With the assistance of the parties, the Court framed a separate question in that proceeding, asking whether native title existed in the Perth area and, if so, who were the persons who held the native title and what rights and interests it included. The application was heard by Justice Wilcox commencing in October 2005. On 19 September 2006 the Judge answered the separate question as follows: "But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off‑shore islands and land and waters below low‑water mark." In the course of his reasons for judgment Justice Wilcox reached the following conclusions: (1) that the applicants were correct in claiming that, in 1829, the laws and customs governing land throughout the claim area (other than off‑shore islands and land and waters below low‑water mark) were those of a single community; (2) that the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement; (3) that the native title holders are the whole Noongar community on whose behalf the Single Noongar application was made. The State, the Commonwealth and Western Australian Fishing Industry Council (WAFIC) obtained leave to appeal to the Full Court against Justice Wilcox's decision. The appeal was heard by Justices Finn, Sundberg and Mansfield in April 2007. Today the Full Court allowed the appeals. The Full Court assumed, without deciding, that in 1829 the laws and customs governing land throughout the claim area were those of a single community. However, it held that Justice Wilcox had failed to consider two matters the claimants were required by s 223 of the Native Title Act to establish in order for their application to be successful. The first was that there has been continuous acknowledgment and observance of the traditional laws and customs by the Single Noongar Society from sovereignty until recent times. The second matter was that the claimants have a connection with the area of the separate question, that is the Perth Metropolitan Area. Justice Wilcox had taken the view, wrongly in the Full Court's opinion, that it was enough that the claimants had established a connection with the claim area of the Single Noongar claim, and that since the Perth Metropolitan Area was part of that larger area, the connection requirement was satisfied in relation to the Perth Metropolitan Area. The Court set aside Justice Wilcox's answer to the separate question, and remitted that question to the Perth docket judge for determination, Justice Wilcox having retired from the Court shortly after handing down the judgment under appeal. The Full Court's allowance of WAFIC's appeal does not require separate treatment in this Summary. At the same time as he heard the Noongar claim Justice Wilcox heard various claims by Mr Bodney to land in the Perth area. The Judge dismissed the claims. The Full Court dismissed Mr Bodney's appeal. The reasons for doing so do not need to be described in this Summary.