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Bennell v State of Western Australia  FCA 1243
|Binomial Name:||Federal Court of Australia|
|Date:||19 September 2006|
|Sub Category:||Case Law | Litigated Determination|
|Location:||Western Australia, Australia|
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|The proceedings dealt with part of the area covered by the claim referred to as 'Part A' which comprises Perth, Western Australia and surrounding non-urban areas. (NNTT)|
|Legal Status:||'Finalised Precombination' Application on the Nati|
|Legal Reference:||National Native Title Tribunal File No.:WC03/5 an|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Bennell v State of Western Australia  FCA 1243|
Anthony Bennell, Alan Burton, Alan Bolton, Martha Borinelli, Robert Bropho, Glen Colbung, Ken Colbung, Donald Collard, Clarrie Collard-Ugle, Albert Corunna, Shawn Councillor, Dallas Coyne, Dianna Coyne, Margaret Culbong, Edith De Giambattist, Rita Dempster, Aden Eades, Trevor Eades, Doolann-Leisha Eattes, Essard Floweres, Greg Garlett, John Garlett, Ted Hart, George Hayden, Reg Hayden, John Hayden, Val Headland, Eric Hayward, Jack Hill, Oswald Humphries, Robert Isaacs, Allan Jones, James Khan, Justin Kickett, Eric Krakour, Barry McGuire, Wally McGuire, Winnie McHenry, Peter Michael, Theodore Michael, Samuel Miller, Diane Mippy, Fred Mogridge, Harry Narkle, Doug Nelson, Joe Northover, Clive Parfitt, John Pell, Kathleen Penny, Carol Petptersenn, Fred Pickett, Rosemary Pickett, Phillip Prosser, Bill Reidy, Robert Riley, Lomas Roberts, Mal Ryder, Ruby Ryder, Charles Shaw, Iris Slater, Barbara Stamner-Corbett, Harry Thorne, Angus Wallam, Charmaine Walley, Trevor Walley, William Webb, Beryl Weston, Betram Williams, Gerald Williams, Richard Wilkes, Andrew Woodley, Humprhey Woods, Dianne Yappo, Reg Yarran, Saul Yarran and Myrtle Yarran (APPLICANTS) v The State of Western Australia, Commonwealth of Australia, Western Australian Fishing Industry Council (Inc), Christopher (Robert) Bodney, Noongar Land Council, Kevin Miller, City of Bayswater, City of Belmont, City of Canning, City of Fremantle, City of Joondalup, City of Melville, City of Nedlands, City of Subiaco, City of Wanneroo, Shire of Kalamunda, Shire of Mundaring, Town of Bassendean, Town of Cambridge, Town of Claremont, Town of Cottesloe, Town of East Fremantle, Town of Mosman Park, Town of Victoria Park, City of Armadale, City of Gosnells, City of Perth, City of South Perth, City of Sterling, Shire of Chittering, Shire of Northam, Town of Vincent, Billiton Aluminium (RRA) Pty Ltd, Billiton Aluminium (Worsley) Pty Ltd, Doral Mineral Sands Pty Ltd, Hedges Gold Pty Ltd, Quadrio Resources Pty Ltd, Wesfarmers Premier Coal Ltd, Adelaide Brighton Cement Ltd, Boral Resources (WA) Ltd, Cockburn Cement Ltd, Dorrington Marine Services/Yennett Pty Ltd, NHL Pty Ltd, Fremantle Sailing Club Inc, Airservices Australia, Australian Maritime Safety Authority, Australian Red Cross, BGC Contracting Pty Ltd, Fremantle Port Authority, Perth Diocesan Trustees, Roman Catholic Archbishop of Perth, The Shell Company of Australia Limited, Uniting Church in Australia Property Trust (WA), Aloca of Australia Ltd, Bluegate Nominees Pty Ltd, Edith Cowan University, Limestone Resources Australia Pty Ltd, M G Kailis Holdings Pty Ltd, Tiwest Joint Venture, Tronox Western Australia Pty Ltd, Wesfarmers Kleenheat Gas Pty Ltd, Worsley Alumina Pty Ltd, Yalgoo Minerals Pty Ltd, Optus Mobile Pty Ltd, Optus Networks Pty Ltd, Telstra Corporation Limited(RESPONDENTS)
Christopher Robert Bodney (APPLICANT) v The State of Western Australia & Ors (RESPONDENTS)
Judge: Wilcox J
Where: Perth Metropolitan and surrounding non-urban areas.
The question before the Court dealt only with an area encompassing Perth and surrounding non-urban areas ('Part A').
The full claim boundary (which includes Part A) begins on the west coast of Western Austrlia, at a point north of Jurien Bay, to a point approximately north of Moora and a point on the southern coast between Bremer Bay and Esperance (Wilcox J, Preceding Statement, 19 September 2006).
Subject to principles of extinguishment of native title (which were not considered by the Court on this occasion), the Court held that native title exists in all of the claim area 'but the off-shore islands and any other area below the low-water mark from the mainland'. (NNTT)
The Court found that the Noongar people held native title as a single, communal title.
The native title rights and interests which were recognised by the Court remains subject to the wording of the determination and the principles of extinguishment. However, the Court found that the Noongar people held rights to occupy, use and enjoy lands and waters (see below for specific rights and interests): [832 - 841].
Due to both the complexity and resource limitations presented by the question, the Court did not resolve whether the right to exclusive possession existed : [838 - 840].
| Bodney's Applications |
The Court dismissed the five applications before the Court by Christopher Bodney, an applicant seeking a determination of native title in favour of two clan groups.
The Single Noongar Application
With the agreement of all parties, the Court considered three questions pursuant to s 223 of the Native Title Act 1993 (Cth):
1) without considering extinguishment, whether native title existed in Part A of the claim area;
2) whether the native title was held by the Noongar people as a single, communal title; and
3) without making a formal determination, what native rights and interests may exist in Part A: [46 - 48].
Wilcox J found that the Noongar people had a wealth of evidence identifying a single society dating back to 1829, and recognised continuity of their society to the present day.
In paragraph 599 of his decision, Wilcox J distinguished the facts of this case from those considered in the series of Yorta Yorta decisions, noting that ' unlike the Yorta Yorta people … the south-west community did not suffer a cataclysmic event that totally removed them from their traditional country. Families were pushed around, and broken up … [h]owever, people continued to identify with their Aboriginal heritage.'
The Court found that the following native title rights and interests may exist:
- to live on and access the area;
- to use and conserve the natural resources of the area for the benefit of native title holders;
- to maintain and protect sites within the area that are significant to the native title holders and other Aboriginal people;
- to carry out economic activities on the area, such as hunting, fishing and food gathering;
- to conserve, use and enjoy the natural resources of the area for social, cultural and religious, spiritual, customary and traditional purposes;
- 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;
- to use the area for the purpose of teaching, and passing on knowledge about the area and the traditional laws and customs pertaining to it: (Wilcox J, Preceding Statement, 19 September 2006 and ).
The State of Western Australia's notice of motion
After the hearing had commenced, the State of Western Australia sought to have either:
- the recission of orders for the hearing of this separate question;
- an order for a new trial dealing with the separate question before a different judge;
- a strike-out of the Noongar application;
- orders concerning the questions about the native title group and proper authorisation of the claim.
Wilcox J dismissed all motions and awarded costs to against the State of Western Australia: [892 - 950].
The outcome of the decision is subject to four appeals to the Full Federal Court. (Federal Court Website, December 2006)
The full text of the determination is available at http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/federal_ct/2006/1243.html?query=bennell.
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