TR (Deceased) on behalf of the Kariyarra - Pipingarra People v State of Western Australia [2016] FCA 1158

FEDERAL COURT OF AUSTRALIA

TR (Deceased) on behalf of the Kariyarra – Pipingarra People v State of Western Australia [2016] FCA 1158 File number(s): WAD 232 of 2009

Judge(s): NORTH ACJ

Date of judgment: 23 September 2016

Catchwords: NATIVE TITLE – interlocutory application under s 84(8) of the Native Title Act to remove Indigenous respondents as respondents – Indigenous respondents cannot obtain native title determination in this proceeding – no application for competing native title filed – Court will not determine intramural issues – whether or not interest claimed by Indigenous respondents will be affected in demonstrable way by native title determination – Indigenous respondents contest group membership – challenge to group membership is assertion of competing native title – assertion of competing native title is an interest affected by determination – a person is entitled to seek to protect such an interest from erosion, dilution, or discount – whether or not Indigenous respondents have raised prima facie case for competing native title – where competing native title supported by expert anthropological evidence, prima facie case is made out

Legislation: Native Title Act 1993 (Cth) ss 84(3)(b), 84(8), 84D(4)

Cases cited: Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 Byron Environment Centre Incorporated v The Arakwal People [1997] FCA 797; 78 FCR 1 Commonwealth of Australia v Clifton [2007] FCAFC 190; 164 FCR 355 Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, 198 ALR 315 Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 Kokatha Native Title Claim v South Australia [2005] FCA 836, 143 FCR 544 Moses v Western Australia [2007] FCAFC 78; 160 FCR 148 Munn v Queensland [2002] FCA 486 Starkey v State of South Australia [2011] FCA 456; (2011) 193 FCR 450 Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, 164 FCR 181