Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588

FEDERAL COURT OF AUSTRALIA

Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588

ABORIGINES – native title – consent determination – whether appropriate and within power – consideration of connection report – determination made. Native Title Act 1993 (Cth) s 87 DICKEY COX ON BEHALF OF THE YUNGNGORA PEOPLE v STATE OF WESTERN AUSTRALIA, SHIRE OF DERBY (WEST KIMBERLEY) AND KIMBERLEY LAND COUNCIL WAD6229 OF 1998

FRENCH J

27 APRIL 2007

NOONKANBAH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD6229OF 1998

BETWEEN: DICKEY COX ON BEHALF OF THE YUNGNGORA PEOPLE

Applicant

AND: STATE OF WESTERN AUSTRALIA

First Respondent

SHIRE OF DERBY (WEST KIMBERLEY)

Second Respondent

KIMBERLEY LAND COUNCIL

Third Respondent

JUDGE: FRENCH J DATE OF ORDER: 27 APRIL 2007

WHERE MADE: NOONKANBAH

BY CONSENT OF THE PARTIES THE COURT ORDERS THAT:

The Court notes: A. That pursuant to s 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties as to the resolution of this matter. B. That the terms of the agreement include requesting the Court to make a determination of native title in relation to the land and waters which are the subject of these proceedings in the terms set out in the attached Minute of Consent Determination of Native Title. C. That the applicant is working towards the finalisation of the rules of a prescribed body corporate, with a view to having the prescribed body corporate perform the functions of a registered native title body corporate under the Native Title Act. The third respondent has agreed to provide assistance to the applicant to finalise this matter. D. At this point in time the parties have agreed to ask the Court to make a determination of native title, and to allow six months for a prescribed body corporate to be nominated to the Court pursuant to s 56 or s 57 of the Native Title Act. In those circumstances and with the consent of the parties the Court determines, declares and orders: 1. That it is satisfied that the determination of native title proposed in the Minute of Consent Determination of Native Title is within the power of the Court, is appropriate and open to be made, pursuant to s 87(2) and 94A of the Native Title Act. 2. There be a determination of native title in the terms of the attached Minute of Consent Determination of Native Title. 3. Within six months of the date these orders are made, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and if so by whom, by: (a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and (b) including within the nomination the written consent of the prescribed body corporate. 4. If a prescribed body corporate is nominated in accordance with Order 3, it will hold the native title rights and interests described in the Determination of Native Title in trust for the common law holders (as defined in the Determination) in respect of the Determination Area. 5. If a prescribed body corporate is not nominated in accordance with Order 3, the native title rights and interests described in the Determination of Native Title will be held by the common law holders (as defined in the Determination) in respect of the Determination Area as the common law holders of the native title rights and interests. 6. If a prescribed body corporate is not nominated in accordance with Order 3 and native title is therefore held by the common law holders in accordance with Order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with s 57(2) of the Native Title Act. 7. There be no order as to costs.