Moses v Western Australia

The case of Moses v Western Australia involved the Ngarluma and Yindjibarndi peoples who appealed a determination of native title made by the Federal Court. The primary issue before the court was whether the primary judge erred in his interpretation of certain sections of the Aboriginal and Torres Strait Islander Act 2005 (ACA Act) and the Pastoral Land Act 1995 (Mining Act), particularly in relation to the application of section 47B of the ACA Act to areas of temporary reserves established under the Mining Act. The court was also required to decide if the establishment of one pastoral board committee (PBC) per determination area was mandatory and whether there was an appropriate mechanism for resolving disputes between PBCs within a determination area.

The court found that the primary judge did not err in his interpretation of the relevant sections of the ACA Act and the Mining Act. The court held that the primary judge was correct in determining that two PBCs could exist within one determination area, given the context and purpose of the relevant sections. The court further found that the rationale for having one PBC per determination area was to facilitate communication with third parties, but this did not negate the plain meaning of the sections in the context in which they appeared. Regarding the application of section 47B to the areas of temporary reserves, the court concluded that the primary judge’s conclusion that s 47B did not apply to the areas of temporary reserves established under the Mining Act was incorrect. The court thus upheld the appeal of the Ngarluma and Yindjibarndi peoples to the extent consented by the respondents and directed that the terms of the determination of native title be altered accordingly.

The court ordered that the parties submit the final form of orders to give effect to the court's reasons within 28 days or such further time as may be agreed and approved by the court. The court also dismissed the cross appeals of the State and the Commonwealth, finding that there would be no order as to the costs of the appeal or of the cross appeals in light of section 85A of the Aboriginal and Torres Strait Islander Act 2005.