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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
Cases cited: Billy Patch and others on behalf of the Birriliburu People v
State of Western Australia [2008] FCA 944
Cashmere on behalf of the Jirrbal People No 1 v
Queensland (2010) 283 ALR 610
Dare v Pulham (1982) 148 CLR 658
Eaton on behalf of the Nyamal People (No 10) v State of
Western Australia [2019] FCA 1571
FQM Australia Nickel Pty Ltd v Bullen (2011) 191 FCR
261
Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in
liq) (1916) 22 CLR 490
Lampton on behalf of the Juru People v State of
Queensland [2014] FCA 736
Long v Northern Territory of Australia [2011] FCA 571
Mabo v State of Queensland (No 2) (1992) 175 CLR 1
Mouda on behalf of the Joombarn-Buru Native Title
Claimants v State of Western Australia [2021] FCA 1233
Mulligan on behalf of the Warlangurru Claim Group v
State of Western Australia [2022] FCA 845
Munn (for and on behalf of the Gunggari People) v
Queensland (2001) 115 FCR 109
Northern Territory of Australia v Alyawarr, Kaytetye,
Warumungu, Wakaya Native Title Claim Group (2005) 145
FCR 442
Widjabul Wia-bal v Attorney-General of New South Wales
[2022] FCA 1187
Division: General Division
Registry: New South Wales
National Practice Area: Native Title
Number of paragraphs: 81
Date of hearing: 19 December 2022
Counsel for the Applicant: Dr A Frith
Solicitor for the Applicant: NTSCORP Limited
Counsel for the First Mr M…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FCA 1521
Decision Date: 19 December 2022

CaseChat Overview and Summary

The Widjabul Wia-bal people sought a consent determination of their native title rights over land and waters in New South Wales under section 87 of the Native Title Act 1993 (Cth). The Attorney-General of New South Wales agreed to the proposed determination. The court was required to decide whether the majority of living capable members of the applicant could continue to act on behalf of the applicant and whether the description of the native title claim group in the proposed determination limited the court’s power to make the determination.

The court found that the majority of living capable members of the applicant could continue to act on behalf of the applicant, despite the death of one member and the incapacity of another. The court also found that the description of the native title claim group in the proposed determination did not limit its power to make the determination. The court was satisfied that there was a credible basis to conclude that it was appropriate for it to exercise its power under section 87(1A) and (2) to make the consent determination in the terms proposed by the parties. The court made the consent determination in the amended terms agreed upon by the parties, recognising the Widjabul Wia-bal people’s ongoing traditional custodianship of, and legal rights and interests in, the land and waters. The determination ensures that the Widjabul Wia-bal people’s native title in their land and waters will be protected for the future. The court congratulated the parties on achieving this resolution.

Orders

Orders of the court

2. There be a determination of native title in the terms set out below.

3. The determination of native title takes effect upon the date on which the agreement referred to in paragraph 1 of Schedule Four (agreements) is registered on the Register of Indigenous Land Use Agreements, pursuant to section 199B of the Native Title Act 1993 (Cth).

4. In the event that the agreement referred to in Order 3 above is not registered on the Register of Indigenous Land Use Agreements on or before 18 December 2025, or at such later time as this Court may order, the matter is to be listed before the Court for a case management hearing.

5. On the determination of native title taking effect, Widjabul Wia-bal Gurrumbil Aboriginal Corporation, ICN 9856 is to hold the determined native title in trust for the

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

common law holders pursuant to section 56(3) of the Native Title Act 1993 (Cth) and is

to:

(a)

be the prescribed body corporate for the purposes of section 57(1) of the Native Title Act 1993 (Cth); and

(b)

perform the functions set out in section 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

6. There be no order as to costs.

BY AGREEMENT THE COURT DETERMINES THAT:

7. Native title exists in relation to the native title area described in Schedule One (native title area) and depicted in the maps at Part 1.7 (maps of the native title area) of Schedule One to this determination of native title.

8. Any extinguishment of native title in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) is to be disregarded in accordance with section 47A(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist in relation to that land or waters.

9. Any extinguishment of native title in relation to the land or waters described in Part 1.6 (land or waters to which section 47B of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) is to be disregarded in accordance with section 47B(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist in relation to those areas.

10. Native title has been extinguished in relation to the extinguished area, described in Schedule Two (extinguished area) and depicted on the maps at Part 2.7 (maps of extinguished areas) of Schedule Two to this determination of native title, being subject to a previous exclusive possession act attributable to the State in accordance with section 20 of the Native Title (New South Wales) Act 1994 (NSW) and to which none of sections 47A, 47B or 47C of the Native Title Act 1993 (Cth) apply.

11. To the extent of any inconsistency between the written description in Schedule One (native title area) and Schedule Two (extinguished area) and the maps in either Schedule, the written description prevails.

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

iii

Native Title Holders

12. Native title in relation to the native title area is held by Widjabul Wia-bal who comprise all the descendants of the following apical ancestors:

(a)

Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;

(b)

Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;

(c)

Johnny Bob (also known as Bob Roberts), born circa 1820;

(d)

William “Billy” King, born 1878 at Lismore;

(e)

George Williams, born 1870;

(f)

Kitty Barry, born 1841, died 1911 at Blakebrook; and

(g)

John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860;

including persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Widjabul Wia-bal in accordance with Widjabul Wia- bal traditional laws and customs (and the biological descendants of those adopted or incorporated persons).

Nature and Extent of Native Title Rights and Interests in the Native Title Area

13. Subject to paragraphs 14, 15 and 16, the nature and extent of the native title rights and interests in relation to the native title area are the following non-exclusive native title rights:

(a)

the right to access, move about on and traverse;

(b)

the right to camp and erect temporary shelters and other structures but not to permanently camp on, possess or occupy;

(c)

the right to live, being to enter and remain;

(d)

the right to hunt for non-commercial personal, domestic, communal and cultural purposes;

(e)

the right to fish for non-commercial personal, domestic, communal and cultural purposes;

(f)

the right to have access to and use the natural water resources for non- commercial personal, domestic, communal and cultural purposes;

(g)

the right to gather and use the natural resources for non-commercial personal, domestic, communal and cultural purposes;

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

(h)

the right to share and exchange the natural resources for non-commercial personal, domestic, communal and cultural purposes;

(i) the right to share and exchange the natural resources with nearby native title groups for personal, domestic, communal and cultural purposes;

(j)

the right to conduct and participate in ceremonial, ritual and spiritual activities;

(k)

the right to maintain and protect places of importance under traditional laws and customs;

(l)

the right to transmit traditional knowledge to members of the native title claim group including knowledge of particular sites; and

(m)

the right to hold meetings.

Note:

These rights include rights and interests incidental to the native title rights as expressed. For the removal of doubt, rights (i) and (l) may, where appropriate, be exercised outside the native title area.

General Qualifications on Native Title Rights and Interests

14. Native title does not exist in:

(a)

minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and

(b)

petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Offshore) Act 1982 (NSW).

15. The native title rights and interests described in paragraph 13 do not confer:

(a)

any right of possession, occupation, use and enjoyment of the land or waters in the native title area to the exclusion of all others; and

(b)

any right to control public access to or use the land or waters in the native title area.

16. The native title rights and interests in relation to the land or waters in the native title area are subject to and exercisable in accordance with:

(a)

the laws of the State of New South Wales and of the Commonwealth;

(b)

the traditional laws acknowledged and traditional customs observed by Widjabul Wia-bal; and

(c)

the terms and conditions of the agreements referred to in Schedule Four (agreements).

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

The Nature and Extent of Any Other Interests

17. The other interests in relation to the native title area are described in Schedule Five (other interests in the native title area).

Relationship between Native Title Rights and Interests and Other Interests

18. Subject to paragraphs 19, 20 and 21, and except as otherwise provided by law, the relationship between the native title rights and interests in relation to land or waters in the native title area and the other interests, described in Schedule Five (other interests in the native title area), in relation to those areas is that:

(a)

the other interests continue to have effect;

(b)

the other interests co-exist with Widjabul Wia-bal’s native title;

(c)

Widjabul Wia-bal do not have the right to control access to or the use of the land or waters by the holders of the other interests; and

(d)

to the extent of any inconsistency, the other interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the other interests, while they are in existence, prevail over but do not extinguish native title and any exercise of those native title rights and interests.

19. The relationship between the native title rights and interests in relation to the land or waters in the native title area, being:

(a)

Part 1.1 (Crown land in the native title area) of Schedule One (native title area);

(b)

Part 1.2 (the national park estate in the native title area) of Schedule One (native title area); and

(c)

Part 1.3 (State forests in the native title area) of Schedule One (native title area);

and

(d)

the Aboriginal Land Council interests set out at Item 1(a) of Schedule Five (other interests in the native title area),

is that the Aboriginal Land Council interests continue to have effect.

20. The relationship between the native title rights and interests in relation to the land or waters in the native title area being:

(a)

Part 1.1 (Crown land in the native title area) of Schedule One (native title area);

(b)

Part 1.2 (the national park estate in the native title area) of Schedule One (native title area); and

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

(c)

Part 1.3 (State forests in the native title area) of Schedule One (native title area);

and

(d)

the Aboriginal Land Council interests set out at Item 1(b) of Schedule Five (other interests in the native title area);

is that:

(e)

pursuant to section 36(9) of the Aboriginal Land Rights Act 1983 (NSW), the Aboriginal Land Council interests shall be subject to the native title rights and interests existing in relation to the land or waters in the native title area immediately before the transfer, meaning that the native title rights and interests have full effect and may be exercised; and

(f)

the land or waters in the native title area may only be dealt with by the Aboriginal Land Council in accordance with the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993 (Cth).

21. The relationship between the native title rights and interests in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) and the Aboriginal Land Council Interests described at Item 1(c) of Schedule Five (other interests in the native title area) is that:

(a)

the Aboriginal Land Council interests continue to have effect;

(b)

the non-extinguishment principle described in section 238 of the Native Title Act 1993 (Cth) applies to the grant or vesting of the Aboriginal Land Council interests and any prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act 1993 (Cth);

(c)

the native title rights and interests continue to exist in their entirety, but have no effect in relation to the Aboriginal Land Council interests;

(d)

the Aboriginal Land Council interests, and any activity that is required or permitted by or under and done in accordance with the Aboriginal Land Council interests, may be exercised and enjoyed in their entirety notwithstanding the existence of the native title rights and interests;

(e)

the native title rights and interests may not be exercised on land or waters the subject of the Aboriginal Land Council interests while those Aboriginal Land Council interests exist;

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

vii

(f)

if the Aboriginal Land Council interests or their effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and

(g)

if the Aboriginal Land Council interests or their effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

Definitions and Interpretation

22.

Aboriginal Land Council means the New South Wales Aboriginal Land Council or

any Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act

1983 (NSW) for a Local Aboriginal Land Council area, within the meaning of that Act

that is within the land and waters in the native title determination area, and includes

Ngulingah Local Aboriginal Council and Jali Local Aboriginal Land Council.

Aboriginal Land Council interests means the rights and interests set out in Item 1 of

Schedule Five (other interests in the native title area).

extinguished area means the land or waters described in Schedule Two (extinguished

area).

laws of the State of New South Wales and of the Commonwealth include statutes,

regulations and other subordinate legislation, and the common law.

native title and native title rights and interests means the rights and interests

described in paragraph 13 of the determination.

native title area means the land or waters described in Schedule One (native title area).

native title determination application means the native title determination application

filed on 24 June 2013 by the Applicant in the Federal Court and given the number

NSD1213/2018, as amended.

In this approved determination of native title, unless the contrary intention appears: (native title determination area), being the land and waters:

(a)

within the external boundary of the native title determination application, described in Part 1 (external boundaries of the native title determination application) of Schedule Three (native title determination area) excluding:

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

viii

(i) the land and waters excluded from the native title determination application on 6 July 2022, described in Part 2 (land and waters excluded from the native title determination application on 6 July 2022) of Schedule Three; and

(ii) the land and waters excluded from the native title determination application on 19 October 2022, described in Part 3 (land and waters excluded from the native title determination application on 19 October 2022) of Schedule Three.

native title holders and Widjabul Wia-bal means the persons described in

paragraph 12 of the determination.

natural resources includes but is not limited to animals (including mammals, birds,

reptiles, amphibians, insects, crustaceans, worms and fish), plants (including medicinal

plants, timber and tubers), charcoal, wax, stone, ochre and resin as well as food and

material for fabricating tools, hunting implements, and domestic items, and making

artwork and musical instruments.

other interests means the rights and interests described in Schedule Five (other

interests in the native title area).

Widjabul Wia-bal has the same meaning as native title holders.

Widjabul Wia-bal Gurrumbil Aboriginal Corporation means Widjabul Wia-bal

Gurrumbil Aboriginal Corporation, ICN 9856 incorporated under the Corporations

(Aboriginal and Torres Strait Islander) Act 2006 (Cth).

23. If a word or expression is not defined in these orders or this determination of native title, but is defined in the Native Title Act 1993 (Cth), the Native Title (New South Wales) Act 1994 (NSW) or the Interpretation Act 1987 (NSW), then it has the meaning given to it in those statutes, whichever is relevant.

Note: In this version of the orders, prepared for publication on the Internet, the schedules referred to herein have not been attached but, instead, have been placed at the end of the Court’s reasons for judgment because of their length.

Note:

Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For these reasons, I am satisfied that it is within the power of the Court to make the proposed consent determination in its present form with the expanded description of the holders of the common or group native title. THE EVIDENCE IN SUPPORT OF THE S 87 AGREEMENT The applicant relied on affidavits of: The applicant ultimately tendered reports by Mr Correy and Ms Rugiano, both being anthropologists employed by NTSCORP. The Attorney-General relied on affidavits of Sophia Illiadis, a solicitor in the employ of the Crown Solicitor, made on 18 and 22 November 2022. Ms Illiadis explained the detailed consideration that the Attorney-General had given to the evidence and material provided by the applicant and available to the State through its own investigations, including of land tenures in the claim area, and advice from the Crown Solicitor and many opinions by senior and junior counsel. Ms Illiadis explained that the State had satisfied itself, based on that material and its legal advice, that it was appropriate for the State to agree to the Court making the consent determination. AUTHORISATION Ms Bartrim described the background to the parties entering into the signed s 87 agreement. On 22 July 2022, Ms Bartrim (along with Ms Rotumah and Ms Vaughan) caused notices to be given for the following three meetings under ss 251B and 251A of the Act) to seek authorisation of: The notices for the first and second meetings set them for 19 August 2022 at 9 am and 3:30 pm respectively at the Lismore Heights Bowling Club. The notices for each meeting identified respectively the compositions of the claim group in the Form 1 and the expanded group, as well as the proposed consent determination area. The notice for the third meeting set it for 9 am to 5 pm on both 20 and 21 August 2022 at the Club and was addressed to the expanded group. At the same time that NTSCORP staff sent the notices referred to at [57], they also circulated a “save the date” of 22 August 2022 for a meeting of the expanded group to seek the nomination, in accordance with s 56(2)(a) of the Act, of a prescribed body corporate (PBC) (that, by the time of the third meeting, was identified as Widjabul Wia-bal Gurrumbil Aboriginal Corporation) to hold, on trust for the Widjabul Wia-bal people, the native title rights and interests to be recognised by the consent determination, to establish the Corporation, for it to accept its nomination as trustee of the Widjabul Wia-bal’s native title rights and interests and to sign the ILUA (the PBC meeting). Ms Bartrim caused the notices of the first, second and third meetings to be advertised in the Koori Mail edition of 27 July 2022, and she and other NTSCORP staff arranged for notices of each meeting and the “save the date” for the PBC meeting to be sent to the 255 persons known to NTSCORP as members of the Widjabul Wia-bal people whose addresses it maintained on its mailing list. On 9 August 2022, Ms Bartrim (along with other NTSCORP staff) caused notices of the PBC meeting to be sent to the 255 persons on NTSCORP’s mailing list.

Decision

Reasons for decision

In substance, the proposed orders 3 and 4 operate as a stay. In my opinion, the submissions that they are orders that involve matters other than native title under s 87(5) is misconceived. The orders relate directly to native title by deferring the date on which the order, being the determination, takes effect so as to vest native title in, first, the common or group holders in the expanded definition and, secondly, the Corporation on trust for them. CONCLUSION Having reviewed the evidence before me, I am satisfied that there is a credible basis to conclude that it is appropriate for the Court to exercise the power under s 87(1A) and (2) to make the consent determination in the terms that the parties propose. For these reasons, it is appropriate to make the consent determination under s 87 of the Native Title Act in the amended terms that the parties have agreed. It is important to understand that the Court is not giving anything to the Widjabul Wia-bal people today. Instead, the Court is recognising, on behalf of our nation, their ongoing traditional custodianship of, and legal rights and interests in, the land and waters as recorded in the consent determination. The consent determination ensures that the Widjabul Wia-bal people’s native title in their land and waters will be protected for the future. That protection is guaranteed by both their own traditional laws and customs and the Court’s orders that it makes in exercising the judicial power of the Commonwealth under the Constitution of Australia. The struggle for this recognition has come after great effort, many hardships and past injustices. But you have seen through this process and achieved a significant result. On behalf of the Court, may I express the sincere hope that the Widjabul Wia-bal people will be able to use the consent determination and the benefits that will flow from the ILUA, when it is registered, to build a better future for all of their number past, present and future. The Court congratulates the parties on achieving this resolution. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:

Ratio Decidendi

Legal Principle Established

At the same time that NTSCORP staff sent the notices referred to at [57], they also circulated a “save the date” of 22 August 2022 for a meeting of the expanded group to seek the nomination, in accordance with s 56(2)(a) of the Act, of a prescribed body corporate (PBC) (that, by the time of the third meeting, was identified as Widjabul Wia-bal Gurrumbil Aboriginal Corporation) to hold, on trust for the Widjabul Wia-bal people, the native title rights and interests to be recognised by the consent determination, to establish the Corporation, for it to accept its nomination as trustee of the Widjabul Wia-bal’s native title rights and interests and to sign the ILUA (the PBC meeting). Ms Bartrim caused the notices of the first, second and third meetings to be advertised in the Koori Mail edition of 27 July 2022, and she and other NTSCORP staff arranged for notices of each meeting and the “save the date” for the PBC meeting to be sent to the 255 persons known to NTSCORP as members of the Widjabul Wia-bal people whose addresses it maintained on its mailing list. On 9 August 2022, Ms Bartrim (along with other NTSCORP staff) caused notices of the PBC meeting to be sent to the 255 persons on NTSCORP’s mailing list. The agenda for the first meeting provided for it to, first, update attendees on the proposed consent determination, secondly, confirm a decision-making process for the meeting to follow, thirdly, consider and make decisions to authorise the applicant to amend the Form 1 to remove certain parcels from the claim area and, fourthly, authorise the applicant to enter into The agenda for the second meeting provided for it to, first, confirm a decision-making process to follow and, secondly, authorise the applicant to enter into the proposed s 87 agreement and consent determination. The agenda for the third meeting provided for it to, first, give an overview of the ILUA and the negotiations for it and, secondly, consider and make decisions in relation to the authorisation of the ILUA. The agenda for the PBC meeting provided for it to, first, give information about and discuss the role of a PBC, secondly, confirm a decision-making process for establishing the PBC, thirdly, establish it under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and, fourthly, for members of the PBC to consider and make decisions in relation to it accepting its nomination to act as the trustee of the native title rights and interests of the claim, group, as then constituted, in the amended claim area and to sign the ILUA. That agenda enclosed a draft rule book for a PBC. Each notice requested persons proposing to attend to register in advance of the meeting and advised that NTSCORP would consider providing financial assistance to persons who needed it to attend the meetings. I am satisfied on the evidence that the notice of each of the first, second, third and PBC meetings was sufficient, given appropriately and that NTSCORP financially assisted those members of the claim group who needed such assistance. The s 87 agreement and ILUA are authorised

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
Cases cited:	Billy Patch and others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Cashmere on behalf of the Jirrbal People No 1 v Queensland (2010) 283 ALR 610 Dare v Pulham (1982) 148 CLR 658 Eaton on behalf of the Nyamal People (No 10) v State of Western Australia [2019] FCA 1571 FQM Australia Nickel Pty Ltd v Bullen (2011) 191 FCR 261 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 Long v Northern Territory of Australia [2011] FCA 571 Mabo v State of Queensland (No 2) (1992) 175 CLR 1 Mouda on behalf of the Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 Mulligan on behalf of the Warlangurru Claim Group v State of Western Australia [2022] FCA 845 Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 Widjabul Wia-bal v Attorney-General of New South Wales [2022] FCA 1187
Division:	General Division
Registry:	New South Wales
National Practice Area:	Native Title
Number of paragraphs:	81
Date of hearing:	19 December 2022
Counsel for the Applicant:	Dr A Frith
Solicitor for the Applicant:	NTSCORP Limited
Counsel for the First	Mr M…