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Prescribed body corporate — Ngarluma people<BR>Daniel v Western Australia [2006] FCA 271<BR>RD Nicholson J, 21 March 2006<BR>Issue<BR>The issue in this case was whether it was appropriate for the court to determine the prescribed body corporate (PBC) to hold the native title rights and interests of the Ngarluma People when there were appeal proceedings on foot that may affect that corporation. This would finalise the Ngarluma/Yindjibarndi native title determination made on 2 May 2005 in Daniel v Western Australia [2005] FCA 536.<BR>Background<BR>In the Ngarluma/Yindjibarndi native title determination, the court determined that the Yindjibarndi Aboriginal Corporation was to hold the native title rights and interests of the Yindjibarndi People on trust for the Yindjibarndi People. The applicants were given six months to nominate a PBC for the Ngarluma People: see ss. 56 and 57 of the Native Title Act 1993 (Cwlth).<BR>On 26 July 2005, the Ngarluma People filed and served a notice nominating the Ngarluma Aboriginal Corporation. They also filed and served evidence that the Ngarluma Aboriginal Corporation consented to being nominated as the PBC for the Ngarluma People. Notice of the nomination was given to the respondents and there was no opposition. The State of Western Australia filed submissions in support of the determination of the PBC.<BR>The appeal proceedings<BR>The state has filed a cross-appeal against (among other things) the manner in which the native title holders were described in the Ngarluma/Yindjibarndi native title determination i.e. by reference to 'Ngarluma People' and the 'Yindjibarndi People' without defining those expressions or providing a means of determining who is included within those terms. If it is successful, it may affect the validity of the rules of the Ngarluma Aboriginal Corporation. The Commonwealth has also cross-appealed against (among other things) the provision in the determination for more than one PBC, arguing that there should only be one PBC in respect of that part of the determination area where native title was recognised. If this is successful, a new PBC will have to be incorporated.<BR>Submissions<BR>The state submitted that, notwithstanding the cross-appeals, it was appropriate for orders to be made in the terms sought for the following reasons:<BR>• the Ngarluma/Yindjibarndi native title determination is taken to be valid and operational until overturned. It must be presumed, therefore, that the orders<BR>programming the nomination of a PBC for the Ngarluma People conforms with the determination and should proceed;<BR>• orders had already been made determining the Yindjibarndi Aboriginal Corporation as the PBC for the Yindjibarndi People, in conformity with the Ngarluma/Yindjibarndi native title determination. If either cross-appeal was successful, the Full Court of the Federal Court may need to make orders dealing with the Yindjibarndi PBC determination. There was, therefore, no further disadvantage in also dealing with a Ngarluma PBC determination;<BR>• the Ngarluma and Yindjibarndi peoples acknowledged that an amendment to the rules of each PBC (to redefine the membership) would be required if the state's cross-appeal was successful. If the Commonwealth's cross-appeal was successful, new prescribed bodies corporate would have to be constituted in respect of both the Ngarluma and Yindjibarndi People—at [6].<BR>It was therefore apparent to Justice Nicholson that the cross-appeals would not be prejudiced by the proposed determination of the Ngarluma PBC nor would the success of either cross-appeal occasion excessive or inappropriate inconvenience, particularly given that the Yindjibarndi PBC already existed—at [7].<BR>Decision<BR>The court was therefore persuaded that the application should be allowed and the order determining the Ngarluma Aboriginal Corporation to be the PBC for the Ngarluma People should be made—at [8].