Case: Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373
Outcome: applied
The Commonwealth made submissions on this issue because two of the 140 freeholds in question are held by the Aboriginal and Torres Strait Islander Commission. In the course of the Commonwealth's submissions, it became apparent that the 140 freehold grants were in the Cable Beach area and probably had houses constructed upon them by the freehold grantees, or by purchasers from those grantees, who had not been informed of these proceedings or of the likelihood that their rights were subject to the rights and interests of the native title holders. This extraordinary situation apparently came about because the Western Australian statutory regime relied upon by the State (to ensure that freeholds granted by it after 1 January 1994 prevailed over native title) was held by the High Court in State of Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 ('the Native Title Act Case ') to be invalid. Plainly, the situation is one that will have to be resolved between owners of the freeholds, the State and the native title holders. One likely method of resolution is an indigenous land use agreement under which the native title holders may relinquish their native title rights and interests on appropriate terms. 23 When this issue arose at the hearing, I expressed grave concern at how the matter had arrived at this stage without the freehold grantees or their purchasers having notice of the likelihood that the freehold grants are invalid to the extent that they affect native title. The Commonwealth's response to my concern appears to provide the answer which is that, properly construed, the relevant application of the Yawuru claimants did not claim the areas in respect of which the freehold grants were made. If that contention is correct that would preclude the Court from making a determination of native title in respect of the relevant areas but it will not make the problem disappear. As against the State I have found that, subject to extinguishment, native title exists throughout the Yawuru claim area. Even if the 140 lots do not technically fall within that area they are not relevantly distinguishable from the surrounding areas in which native title has been found to exist. It must follow that the problem created by the State by its 140 freehold grants, which were not validated by the NTA , will still have to be resolved by the relevant parties. 24 I now turn to consider whether the 140 lots fall within the Yawuru claim area. The relevant application (#WN95/7) which was filed on 11 January 1995 was known, prior to the consolidation of the various applications, as Rubibi # 5 . The application was lodged with the Native Title Tribunal on 11 January 1995, which was prior to the decision in the Native Title Act Case . After certain amendments, which were made during January 1995, the application was accepted by the Native Title Tribunal. The application was in the form prescribed by Sch 1 of the NTA which, relevantly, provided for a description and a map of the area covered by the application and for the applicants to set out the information known to them about other interests in relation to the land and waters in the claim area: see pars A6 and A7 of the prescribed form. Paragraph A6 of the amended application stated that the area covered by the application was the land indicated on the attached map. It added that: 'The land claimed is in the State of Western Australia in the West Kimberley Region and covers all areas of land, currently designated Vacant Crown Land or Reserve , as fall within the area edged and hatched in heavy black lines on the accompanying map, save and except [certain specified Reserves]. ...' (emphasis added)