FEDERAL COURT OF AUSTRALIA Rubibi Community v State of Western Australia [2004] FCA 964 NATIVE TITLE – determination of native title – prescribed body corporate – whether body corporate nominated by a representative of the common law holders – whether requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) satisfied – whether body corporate has given written consent to nomination – whether nomination of body corporate occurred within specified period Native Title Act 1993 (Cth) ss 55, 56, 59 Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) reg 4 Ngalpil v State of Western Australia [2003] FCA 1098 – cited FELIX EDGAR, FRANK SEBASTIAN, FRANCIS DJIAGWEEN, PATRICK DODSON AND JOSEPH "NIPPER" ROE ON BEHALF OF THE RUBIBI COMMUNITY AND ROSIE CHARLIE ON BEHALF OF THE LEREGON (LANGANJUN) CLAN OF THE YAWURU TRIBE v THE STATE OF WESTERN AUSTRALIA AND OTHERS WG 90 AND 91 OF 1998 MERKEL J 23 JULY 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY WG90 & 91 OF 1998 BETWEEN: FELIX EDGAR, FRANK SEBASTIAN, FRANCIS DJIAGWEEN, PATRICK DODSON AND JOSEPH "NIPPER" ROE ON BEHALF OF THE RUBIBI COMMUNITY FIRST APPLICANT ROSIE CHARLIE ON BEHALF OF THE LEREGON (LANGANJUN) CLAN OF THE YAWURU TRIBE SECOND APPLICANT AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 23 JULY 2004 WHERE MADE: MELBOURNE THE COURT DETERMINES THAT pursuant to ss 55 and 56 of the Native Title Act 1993 (Cth) the Kunin (Native Title) Aboriginal Corporation is to hold the rights and interests from time to time comprising the native title the subject of the Determination of the Court made on 7 November 2001 in trust for the common law holders identified in that Determination. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY WG90 & 91 OF 1998 BETWEEN: FELIX EDGAR, FRANK SEBASTIAN, FRANCIS DJIAGWEEN, PATRICK DODSON AND JOSEPH "NIPPER" ROE ON BEHALF OF THE RUBIBI COMMUNITY FIRST APPLICANT ROSIE CHARLIE ON BEHALF OF THE LEREGON (LANGANJUN) CLAN OF THE YAWURU TRIBE SECOND APPLICANT AND: THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT JUDGE: MERKEL J DATE: 23 JULY 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 29 May 2001 the Court handed down reasons for judgment that concluded that native title rights in the area known as the Kunin law ground are held by members of the Yawuru Community, who were described in those reasons: see Rubibi Community v Western Australia (2001) 112 FCR 409. On 7 November 2001 the Court made a native title determination ("the Rubibi determination") in favour of the members of the Yawuru Community, who were the persons set out in the Second Schedule to that determination: see Rubibi Community v State of Western Australia (No 2) (2001) 114 FCR 523. At that time I made orders requiring the first applicants to indicate whether the members of the Yawuru Community intended to have their native title rights held in trust and, if so, to nominate a prescribed body corporate for that purpose. A body corporate, namely the Kunin (Native Title) Aboriginal Corporation, has now been nominated. I am therefore now required to consider whether it is appropriate to make a determination under ss 55 and 56 of the Native Title Act 1993 (Cth) ("the Act") that the Kunin (Native Title) Aboriginal Corporation hold the native title rights set out in the Rubibi determination on trust for the members of the Yawuru Community. 2 Section 55 of the Act requires that where the Court makes an approved determination of native title that native title exists at the time of the determination, it must at the same time make the determinations required under s 56 or s 57. Section 56, which is relevant to the present case, deals with determinations where native title is to be held in trust by a prescribed body corporate. It provides that for this to occur by the common law native title holders ("the common law holders") nominating in writing, within a specified period, a prescribed body corporate to be trustee of the native title (s 56(2)(a)(i)); and providing the consent of the body corporate in question. Where these requirements are met within the specified time the Court must determine that the prescribed body corporate is to hold the native title rights on trust for the common law holders (s 56(2)(b)). Where the requirements are not met within the specified time, the Court must determine that the native title rights are to be held by the common law holders (s 56(2)(c)). 3 In Ngalpil v State of Western Australia [2003] FCA 1098 ("Ngalpil"), Carr J observed that s 56(2)(a) requires the consideration of three questions: (1) Has a representative of the common law holders made the nomination in writing? (see Ngalpil at [12]) (2) Is the nominated body corporate a "prescribed body corporate" as provided in the Native Title (Prescribed Bodies Corporate) Regulations 1999 ("the Regulations")? (see Ngalpil at [13]) (3) Has the nominated body corporate given its written consent to be the trustee of the native title rights and interests? (see Ngalpil at [14]) 4 It is clear from paragraphs (b) and (c) of s 56(2) that in order for the Court to make a determination that the nominated body corporate hold the rights and interests on trust for the common law holders the Court must also be satisfied that the requirements of paragraph (a) have been met within the specified time. 5 The first requirement is that a representative of the common law holders has made a nomination in writing. In the present matter a nomination in writing was made by Frank Sebastian, who describes himself in that nomination as "a representative of the Yawuru Community, being a named applicant and a common law holder of native title in relation to the determination area…" Mr Sebastian, in addition to being one of the first applicants, gave evidence in the proceeding in his capacity of a senior Yawuru law man. I am satisfied that the requirement that he be a representative of the common law holders has been met. Accordingly, the first requirement has been met. 6 The second requirement, as set out by Carr J in Ngalpil, is that the nominated body corporate must be a "prescribed body corporate" as provided in the Regulations. Section 59 of the Act provides that regulations may prescribe the kinds of bodies corporate that may be determined under the Act. Regulation 4 of the Regulations fulfils that function. It provides four requirements (see also Ngalpil at [20] – [31]). The first of these is that the body corporate must have been incorporated under the Aboriginal Councils and Associations Act 1976 (Cth)on or after 30 December 1994 (reg 4(1)(a)). The Kunin (Native Title) Aboriginal Corporation was incorporated by the Registrar for Aboriginal Corporations under the Aboriginal Councils and Associations Act 1976 (Cth)on 30 March 2004. Accordingly this requirement is satisfied. 7 Further, reg 4(1)(b) requires that the body corporate must have been incorporated for the purpose of being the subject of a s 56 or s 57 determination. Under reg 4(2) this is taken to be the case if a further three requirements are satisfied. Regulation 4(2)(a) requires that at the time of the determination all members of the body corporate are persons who are included or proposed to be included in the determination as native title holders. Regulation 4(2)(c) requires that at all times after the determination is made, all members of the body corporate are persons who have native title rights and interests in relation to land or waters to which the native title determination relates. 8 Rule 10 of the Rules of the Kunin (Native Title) Aboriginal Corporation relevantly states: 10.1 All adult Aboriginal people who are native title holders are eligible to be members of the Corporation. 10.2 Upon incorporation, the native title holders whose names appear in Schedule 1 will be the members of the Corporation. 10.3 A person claiming to be eligible for membership under Rule 10.1 may apply for membership to the Committee at any time. 10.4 Upon the Committee determining that the applicant is eligible for membership the applicant shall be registered as a member in the register of members, which must be kept by the Public Officer. … 10.6 A member ceases to be a member if: (a) that member dies; or (b) by notice in writing, the member resigns their membership, or (c) on reasonable grounds relating to infirmity, absence or any other matter, the Corporation is of the opinion that the member has ceased to be an effective member of the Corporation. Rule 2 defines "native title holders" as "those people identified as holding native title in the decision of Rubibi Community v State of Western Australia [(No 2) (2001) 114 FCR 523]". 9 It is clear from the Rules that the requirements of both reg 4(2)(a) and reg 4(2)(c) are satisfied. 10 The final requirement for a prescribed body corporate under reg 4 of the Regulations is that the purpose of becoming a registered native title body corporate is set out in the objects of the body corporate (reg 4(2)(b)). Under rule 6 of its Rules, the objects of the Kunin (Native Title) Aboriginal Corporation include to: (b)be a prescribed body corporate for the purpose of a determination of native title under sections 56 and 57 of the Native Title Act; (c) be a registered native title body corporate in relation to the determination area for the purposes of the Native Title Act; (d)perform the functions of a registered native title body corporate under the Native Title Act and the regulations. The requirement in reg 4(2)(b) is therefore satisfied. 11 Accordingly the nominated body corporate, the Kunin (Native Title) Aboriginal Corporation, is a "prescribed body corporate" as provided in the Regulations, and the second requirement identified by Carr J in Ngalpil is therefore satisfied. 12 The third requirement as set out in Ngalpil is that the nominated body corporate must have given its written consent to be the trustee of the native title rights and interests (see s 56(2)(ii) of the Act). In the present matter consent has been given under the seal of the Kunin (Native Title) Aboriginal Corporation for that corporation to hold the native title set out in the Rubibi determination on trust for the Yawuru Community as the common law holders. That consent was signed by Frank Sebastian and Patrick Dodson, two members of the governing committee of the Corporation and it appears that this was done in accordance with the rules and procedures of the Corporation. I am therefore satisfied that the Kunin (Native Title) Aboriginal Corporation has given its consent to serve as trustee of the native title rights and interests set out in the Rubibi determination. 13 Finally, I am required by subs 56(2)(b) and (c) of the Act to consider whether the nomination of the prescribed body corporate occurred within the specified period. My initial orders provided for the nomination of a prescribed body corporate to occur by 7 February 2002. However, since that time I have, by orders made from time to time, extended the time within which that nomination was to be made to 23 April 2004. The nomination was filed with the Court on 22 April 2004. I am therefore satisfied that the nomination was given within the specified period as extended by orders of the Court and, as a result, I am required by s 56(2)(b) to determine that the nominated body corporate is to hold the relevant native title rights and interests on trust for the common law holders. 14 It is therefore appropriate for me to determine, pursuant to ss 55 and 56 of the Act, that the Kunin (Native Title) Aboriginal Corporation is to hold the rights and interests from time to time comprising the native title the subject of the Rubibi determination in trust for the common law holders identified in Rubibi determination. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 22 July 2004 Counsel for the First Applicant: Mr Kevin Bell QC with Mr George Irving Solicitor for the First Applicant: Kimberley Land Council Appearing for the Second Applicant: Mr David Johnson Counsel for the Respondent: Ms Raelene Webb with Mr Barry King Solicitor for the Respondent: Australian Government Solicitors Date of Judgment: 23 July 2004