Bennell v Western Australia

Case [2006] FCA 1243

Bennell v State of Western Australia & Ors

Bodney v State of Western Australia & Ors

STATEMENT OF JUSTICE WILCOX

(This statement is intended to provide some information about the proceedings listed for judgment today and the conclusions reached by the Court.  The statement does not cover all aspects of those cases and is not a substitute for the Court’s formal orders or its reasons for judgment.  These can be found on the internet at the Court are six native title cases.  Each of them concerns land and waters in, or near to, the Perth metropolitan area.

Five of the cases arise out of applications for a native title determination made by Christopher Robert (‘Corrie’) Bodney.  Four of the applications concern particular small areas of land, being land at Hartfield Park, Wannerro Road, Burswood Island and Swanbourne respectively.  The fifth application claims a larger area of Perth land, and adjoining coastal waters to the twelve nautical mile limit. 

The sixth case arises out of a native title application which has been called ‘the Single Noongar application’.  It takes this title from the fact that it was brought to the Court by 80 Aboriginal persons who allege that, in 1829 (the date of European settlement in Western Australia), there was a single Aboriginal community throughout the whole of the south-west of Western Australia.  The applicants call this the ‘Noongar community’ and claim the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community.  The applicants say the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community’s traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community.  The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia.  The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance.  The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land.

I will refer to the whole of the land and waters claimed in the single Noongar application as the ‘claim area’.

It will be appreciated that the claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns.  However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments.  The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most…

Continue reading Bennell v Western Australia

Sign in free to access the full text

Details
AGLC
Bennell v Western Australia [2006] FCA 1243
Case
[2006] FCA 1243
Decision Date

CaseChat Overview and Summary

The case of Bennell v Western Australia involved a dispute regarding the existence and extent of native title rights over certain lands in Western Australia. The court was required to determine whether native title existed over a specified area, and if so, to what extent. The case was heard by the Federal Court of Australia, with French J presiding over the proceedings. The legal issues included whether the court's order to determine the existence of native title in a separate proceeding excluded relevant evidence and whether the separate question order was appropriate given the circumstances.

The court considered whether the separate question order excluded relevant evidence, particularly in relation to occupation, partial extinguishment, and the formulation of the Native Title Determination. Counsel for the State argued that certain questions about occupation and the specifics of native title rights were relevant to both the separate question and the broader issues of extinguishment. However, the court found that there was no evidence that such questions were relevant to the separate question and therefore, the order did not exclude relevant evidence. Regarding partial extinguishment, the court concluded that while the High Court had indicated that the articulation of native title rights was necessary to address partial extinguishment, this did not mean that the issues were inseparable. The court determined that the separate question order was appropriate and did not exclude relevant evidence.

The court ruled that the separate question order did not exclude relevant evidence and was appropriate given the circumstances. The order regarding the existence of native title was answered in the affirmative, confirming that native title exists in relation to the specified area. The court also dismissed the State's notice of motion and ordered the State to pay the costs incurred by the Applicants in relation to that motion. The separate proceeding was remitted to French J for further orders and directions as necessary.

Orders

Orders of the court

1. The question which was directed, by an order entered on 6 April 2005, to be decided separately from any other question (as amended up to and including 21 December 2005), be answered as follows:

As to para (i):

But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark;

As to para (ii):

The persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;

As to para (iii):

Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:

(a) to access and live on the area;

(b) to conserve and use the natural resources of the area for the benefit of the native title holders;

(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;

(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;

(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;

(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;

(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;

(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.

2. The notice of motion filed by the State of Western Australia on 25 August 2006 be dismissed.

3. The State of Western Australia pay the costs incurred by the Applicants, in the principal proceeding, in relation to the said notice of motion.

4. The costs of other parties in relation to the said notice of motion be reserved for consideration, on application, by French J.

5. The separate proceeding constituted by the order made on 21 December 2005 be remitted to the Western Australian native title provisional docket judge, French J, for the making of such further orders and directions as may be necessary.

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The situation that originally applied did not change when the Single Noongar application was filed and it was decided to formulate a separate question about the Perth Metropolitan Area. This was done in order to adhere to the strategy adopted by Beaumont J: to determine connection issues in relation to Perth, in advance of all other issues that might arise in connection with that part of the Single Noongar claim area. When I made the order for the separate question, I assumed the only residual matters (if the Applicants succeeded in establishing connection) would be extinguishment and settling the precise terms of the Determination of Native Title. I made that assumption because I had not then been told that authorisation was in issue. When this was made clear to me, on 11 October 2005, I made the offer indicated in the transcript, but neither the State nor the Commonwealth chose to follow it up.(ix) Has the separate question order excluded relevant evidence? In relation to this issue, counsel for the State identified three supposed areas of difficulty: occupation, partial extinguishment and formulation of the Native Title Determination. Under the heading ‘Occupation’, counsel said:‘Some of the facts that go to prove occupation for the purposes of ss.47A(1)(c) and 47B(1)(c) NTA are also relevant to the issues of whether native title exists and, if it exists, what rights are held.Questions in the form “where do you live, camp, congregate, hunt, gather or fish” are relevant to both issues. Those questions in the separate question will be relevant to occupation under ss.47A and 47B [of the Act] before the next Judge and vice versa.Any such evidence heard by the next Judge will be unavailable for resolution of those questions by Wilcox J.’ Sections 47A and 47B of the Act relate, respectively, to Aboriginal reserves and vacant Crown land. Each section sets out circumstances under which prior extinguishment is to be disregarded. Those circumstances include that, when the native title application was made, ‘one or more members of the native title claim group occupy the area’. It follows that, if there is a dispute between the parties in relation to the question whether extinguishment should be disregarded in relation to any land covered by ss 47A or 47B, the Applicants will need to put evidence of occupation before the judge who determines extinguishment issues; just as they will need to put evidence in relation to any other extinguishment issue. However, that possibility would not have provided any reason for me to exclude any evidence that might have been adduced (whether in chief or by cross-examination) by any party that was relevant to the issues arising out of the separate question. In fact, so far as I recall, nobody sought to ask questions about occupation of lands falling within s 47A or s 47B. The argument about ‘occupation’ seems to have no relationship to this case. In relation to partial extinguishment, counsel for the State pointed out that, in Ward, the High Court made clear that ‘issues of partial extinguishment cannot be determined unless the native title rights are precisely articulated’. Counsel went on:‘A determination that native title exists and comprises the right to possess, occupy, use and enjoy an area to the exclusion of all others is an inadequate basis for addressing partial extinguishment. It is impossible to know what level of specificity of the native title rights is required until the relevant partial extinguishing acts have been identified. Hence the two issues are not severable.’

Decision

Reasons for decision

WILCOX J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

Full text does not contain this section.