Kokatha People v State of South Australia [2007] FCA 1057

FEDERAL COURT OF AUSTRALIA

Kokatha People v State of South Australia [2007] FCA 1057 NATIVE TITLE – respondent to an application for a native title determination seeking a determination of native title in his favour in virtue of s 225 of the Native Title Act 1993 (Cth) – respondent's own application previously discontinued – whether in the circumstances the Court has jurisdiction to make a positive determination in respondent's favour – whether respondent can only set up own native title defensively.

Native Title Act 1993 (Cth) s 1, s 10, s 13, s 61, s 61A, s 62, s 63, s 66, s 67, s 68, s 84, s 84C, s 94A, s 213, s 225, s 251B

Western Australia v Ward (2000) 99 FCR 316 disapproved Moses v State of Western Australia [2007] FCAFC 78 considered McKenzie v South Australia (2005) 214 ALR 214 considered Kokatha Native Title Claim v South Australia (2005) 143 FCR 544approved Akiba v Queensland (No 2) (2006) 154 FCR 513 considered Munn v State of Queensland [2002] FCA 486 considered Rubibi Community v State of Western Australia (2002) 120 FCR 512 considered Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 considered Harrington-Smith v State of Western Australia (No 9) [2007] FCA 31 considered Western Australia v Ward (2002) 213 CLR 1 considered Jango v Northern Territory (2006) 152 FCR 150 cited Jango v Northern Territory [2007] FCAFC 101 cited Quall v Northern Territory [2007] FCAFC 46cited The Wik Peoples v The State of Queensland (1994) 49 FCR 1 cited Gumana v Northern Territory (2005) 141 FCR 457 cited Ward v Western Australia (1998) 159 ALR 483 considered

2 Smith's Leading Cases 776 (12th ed, 1915)

KOKATHA PEOPLE, BARNGARLA PEOPLE AND ARABUNNA PEOPLE v STATE OF SOUTH AUSTRALIA & ORS No SAD 6013 of 1998

FINN J

16 JULY 2007

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA