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Editors --- "Tilmouth on behalf of the Larrakia and Yirra Bandoo People v Northern Territory - Case Summary" [2002] AUIndigLawRpr 4; (2002) 7(1) Australian Indigenous Law Reporter 19

Court and Tribunal Decisions – Australia

Tilmouth on behalf of the Larrakia and Yirra Bandoo People v Northern Territory

Federal Court of Australia (O’Loughlin J)

12 April 2001

(2001) 109 FCR 240; [2001] FCA 820

Native title — communal nature of native title — application for summary dismissal — subgroup of larger native title claimant seeking to claim native title over land the subject of a claim by the larger group — subgroup’s claim not authorised by larger group — communal nature of native title prevents sub-group prosecuting its claim for native title

Facts:

The NT sought an order that Audrey Tilmouth’s application for a determination of native title be summarily dismissed.

Ms Tilmouth’s application concerned three separate parcels of land, all of which are within or close to the East Arm Port Complex. Her application was made on behalf of the Larrakia and Yirra Bandoo peoples.

Held (dismissing the application):

1. The Yirra Bandoo, an acknowledged subgroup of the Larrakia people, authorised only by members of the Yirra Bandoo, cannot prosecute a claim for native title of Larrakia land in respect of which the Yirra Bandoo has a special interest. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at p 61 per Brennan J; and Western Australia v Ward (2000) 170 ALR 59; 5(3) AILR 25 at 170 ALR 211 per Beaumont and von Doussa JJ referred to. [4]

2. The use of the words ‘community’ and ‘communal’ by Brennan J in Mabo v Queensland (No 2) and Beaumont and von Doussa JJ in Western Australia v Ward indicate the community is a composite whole as distinct from subgroups of subsets or clans or divisions within that larger community but forming part of that community. [4]

3. Each party to the proceeding bear its own cost, in accordance with s 85A of the Native Title Act 1993 (Cth). [8]–[9]