Case: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Outcome: cited
Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 the issue was addressed thus: ... There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. As a result of my recurring concern with the undue burden placed upon applicants in cases resulting in consent determinations, I wrote to the parties prior to the hearing raising this concern in relation to the volume of material provided by the applicants in the present case. The State responded with a helpful and constructive submission which explained first, that in the recent Central Desert application filed by the Birriliburu People, the report provided by the representative body was short and targeted, and was used as a model report at the connection workshop conducted by the State at the end of 2008, and second, that the detail of the report in this case was provided by the applicants as a matter of their choice. It is to be hoped that the State will give careful consideration in future matters under s 87 and s 87A to easing the present unnecessary burden either placed on or assumed by native title applicants. On the material before the Court it is clearly appropriate to make the orders and the determination sought by the parties. It is now necessary to consider the proposed determination that the Nyangumarta Warrarn Aboriginal Corporation (the Corporation) be the trustee of the native title. Section 56 of the Act relevantly provides: Trust determination (1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. Steps in making determination (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders ) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and (c) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders. Native title held in trust (3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders. One of Mr Matthews' affidavits proves that the Corporation was registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) on 11 March 2009 and was thus a prescribed body corporate for the purposes of ss 56(2) and (3) (see reg 4(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Regulations). Section 56(3) of the Act requires that the Corporation holds the native title rights and interests in accordance with the Regulations. I am satisfied that this is so. The rule book of the Corporation was tendered in evidence and rule 5.2.2 satisfies the requirement of reg 4(2)(a), rule 3(c)(i) satisfies the requirement of reg 4(2)(b), and rules 3(c)(i) and (ii) satisfy the requirements of reg 6(1). The Nyangumarta People filed a written nomination of the Corporation on 22 May 2009 in accordance with s 56(2)(a)(i) of the Act. The Corporation consented to the nomination and filed a written consent dated 22 May 2009 in accordance with s 56(2)(a)(ii) of the Act.