Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521

FEDERAL COURT OF AUSTRALIA Widjabul Wia-bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 File number(s): NSD 1213 of 2018 NSD 1174 of 2013

Judgment of: RARES J

Date of judgment: 19 December 2022

Catchwords: NATIVE TITLE – consent determination under s 87 Native Title Act 1993 (Cth) – where one member of applicant died and another became incapable prior to entry into s 87 agreement – whether authorisation of applicant under s 251B to prosecute claimant application for determination of native title under s 61(1) of Act (Form 1) affected by member's death or incapacity – where description of native title claim group in s 87 agreement expanded in Form 1 to include persons who become members of claim group by way of adoption or incorporation and their descendants – whether Court's power to make determination under s 87 limited by claim group description in Form 1 – Held: majority of living capable members of applicant can continue to act; description of claim group in Form 1 does not limit Court's power to make consent determination with expanded description of claim group

Legislation: Constitution Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Federal Court of Australia Act 1976 (Cth) ss 5, 23 Native Title Act 1993 (Cth) ss 47C, 56, 57, 61, 62, 64, 66, 66A, 66B, 84, 87, 94A, 190A, 199B, 225, 251A, 251B, 253 Native Title Legislation Amendment Act 2021 (Cth) Sch 1, item 62 Native Title (Federal Court) Regulations 1998 (Cth) reg 5, form 1 Aboriginal Land Rights Act 1983 (NSW) s 36