Evelyn Gilla and Others on behalf of the Yugunga-Nya People; Kevin Walley and Others on behalf of the Ngoonooru Wadjari People/John Wilson/Western Australia

The applicants, Evelyn Gilla and others representing the Yugunga-Nya People, along with Kevin Walley and others representing the Ngoonooru Wadjari People, sought a determination from the court for the grant of an exploration licence over their native title land. The respondent, John Wilson, was the holder of the exploration licence. The applicants contended that they were unable to execute an ancillary agreement or a State Deed, which were necessary for the grant of the exploration licence, due to the absence of one deceased applicant. The applicants argued that despite this, each native title party, as a whole, consented to the determination. They requested the court to make a consent determination that the act may be done.

The court had to determine whether it could make a consent determination under section 204 of the Native Title Act 1993 (Cth) in circumstances where one of the applicants was deceased and unable to consent. The court also needed to consider whether the remaining native title parties, as a whole, could provide valid consent for the determination. The central issue was whether the court could proceed with the determination despite the absence of one deceased applicant.

The court held that it could make a consent determination under section 204 of the Native Title Act 1993 (Cth) even though one of the applicants was deceased. The court found that the remaining native title parties, as a whole, could provide valid consent for the determination, as each of them had expressed their consent. The court also noted that the deceased applicant's estate could have consented, but there was no evidence of refusal to consent. Therefore, the court concluded that the remaining native title parties could provide valid consent for the determination, and it proceeded to make the consent determination that the act may be done.

The court made a consent determination that the act may be done, allowing the grant of the exploration licence over the native title land. This decision recognises the consent of the remaining native title parties as a whole, despite the absence of one deceased applicant. The court's decision ensures that the interests of all native title parties are taken into account in the determination process.