Bropho v City of Perth [2016] FCA 1098

FEDERAL COURT OF AUSTRALIA

Bropho v City of Perth [2016] FCA 1098 File number(s): WAD 261 of 2016

Judge(s): MCKERRACHER J

Date of judgment: 8 September 2016

Catchwords: NATIVE TITLE – application for declaration that local government property law of no effect as against persons with native title rights – application for summary dismissal – where local law prohibits certain activities such as camping – where application for native title the subject of separate, ongoing proceedings – where terminology of vesting land 'in trust' removed from Land Act 1933 (WA) following amendments – whether no reasonable prospects of success as native title rights or interests have been wholly extinguished – whether native title extinguished as vesting of land 'in trust' invalid following amendments to the Land Act 1933 (WA) – whether the decision in Western Australia v Ward (2002) 213 CLR 1 is binding and necessitates that native title has been extinguished – whether addition of the term 'in trust' in vesting order goes outside of the field of operation of the enabling legislation – whether native title has been wholly extinguished by reason of the whole island being 'major earthworks' – whether camping is an activity under s 211(3) of the Native Title Act 1993 (Cth) – whether originating application incompetent where brought prior to determination of native title Held: application for declaration summarily dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) s 31A(2) Federal Court Rules 2011 (Cth) rr 26.01, 34.107 Land Act 1933 (WA) ss 31, 33 Local Government Property Local Law 2005 (WA) cl 30(3) Native Title Act 1993 (Cth) ss 23B(7), 69(2), 211, 213, 237(c), 253 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 12J(1)