Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 1 of 70, A4, 07/02/2020
FEDERAL COURT OF AUSTRALIA
Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42
File number: WAD 345 of 2019
Judge: MORTIMER J
Date of judgment: 7 February 2020
Catchwords: NATIVE TITLE – consent determination – agreement of the parties – overall native title settlement – indigenous land use agreement – requirements of s 87 of the Native Title Act 1993 (Cth) satisfied – appropriate to make orders
Legislation: Native Title Act 1993 (Cth) ss 47B, 56, 61, 67, 84, 87, 87A, 225
Cases cited: Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 Lander v State of South Australia [2012] FCA 427 Leedham Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2015] FCA 1342 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238
Date of hearing: Determined on the papers
Date of last submissions: 30 January 2020
Registry: Western Australia
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 82
Counsel for the Applicant in Ms G Miocevich WAD 345 of 2019: Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 2 of 70, A4, 07/02/2020
Solicitor for the Applicant in Ms J Horsley of the Yamatji Marlpa Aboriginal WAD 345 of 2019: Corporation
Solicitor for the Applicant in Ms B Creemers of the Yamatji Marlpa Aboriginal WAD 19 of 2019: Corporation
Counsel for the Applicant in Mr G McIntyre SC WAD 21 of 2019:
Solicitor for the Applicant in Ms C Huynh of Corser & Corser WAD 21 of 2019:
Solicitor for the Applicant in Mr J Brown of the Yamatji Marlpa Aboriginal Corporation WAD 27 of 2019:
Solicitor for the Applicant in Mr M Pagsanjan of MPS Law WAD 31 of 2019:
Solicitor for the State of Ms S Begg and Ms W Song of the State Solicitor’s Office Western Australia:
Solicitor for the Mr A Gerrard of the Australian Government Solicitor Commonwealth of Australia: Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 3 of 70, A4, 07/02/2020
ORDERS
WAD 345 of 2019
BETWEEN: FREDERICK TAYLOR, GARRY HODDER, LEEDHAM PAPERTALK, LORRAINE WHITBY AND YVETTE HARRIS ON BEHALF OF THE YAMATJI NATION CLAIM Applicant
AND: STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA, SHIRE OF YALGOO, RICHARD STUART HAMILTON, REGINALD BRIAN VEITCH & JOKE MARIONE KAREL AGNES CORNELIA VEITCH- VANEECHOUTTE, EMR GOLDEN GROVE PTY LTD, AUSTRALIAN WILDLIFE CONSERVANCY, RCMA AUSTRALIA PTY LTD, NEVILLE GEORGE GOLDING, DBNGP (WA) NOMINEES PTY LIMITED, BRANDY HILL IRON PTY LTD, DEFLECTOR GOLD PTY LTD, GULLEWA GOLD PROJECT PTY LTD, CENTRAL INFRASTRUCTURE PTY LTD, SILVER LAKE (DEFLECTOR) PTY LTD, STRIKE WEST PTY LTD, UIL ENERGY PTY LTD, BEACH ENERGY (PERTH BASIN) PTY LIMITED, IMERYS TALC AUSTRALIA PTY LTD, GARNET INTERNATIONAL RESOURCES PTY LTD, TELSTRA CORPORATION LIMITED Respondents
JUDGE: MORTIMER J DATE OF ORDER: 7 FEBRUARY 2020
THE COURT NOTES THAT:
A. Pursuant to section 87 of the Native Title Act 1993 (Cth) the parties have filed with the Court the attached Minute of Consent Determination of Native Title which reflects the terms of an agreement reached by the parties in relation to these proceedings. B. The terms of the agreement involve the making of consent orders for a determination of native title in relation to the land and waters the subject of these proceedings pursuant to sections 87(2) and 94A of the Native Title Act 1993 (Cth). C. An order has been made on 7 February 2020, separately to these orders, relating to the consolidation of the Yamatji Nation Claim WAD 345 of 2019 with native title determination applications WAD 21 of 2019 Part A, WAD 19 of 2019, WAD 27 of 2019 and WAD 31 of 2019. That order is to take effect on the date that the State files Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 4 of 70, A4, 07/02/2020
a notice that the Yamatji Nation Indigenous Land Use Agreement (Yamatji Nation ILUA) has been Conclusively Registered (as defined in the Yamatji Nation ILUA) on the Register of Indigenous Land Use Agreements. D. The State has carried out a broad analysis of tenure and the Applicant and the State agree that, in respect of the majority of the land and waters within the Determination Area, native title rights and interests will have been extinguished. To the extent any native title may have existed in parts of the Determination Area other than the Native Title Land, that native title is to be surrendered pursuant to the Yamatji Nation ILUA. E. The parties acknowledge that, when the Determination takes effect, the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Native Title Land.
In these circumstances and with the consent of the parties, THE COURT DETERMINES, DECLARES AND ORDERS THAT:
In these orders: Conclusive Registration Date means the date the State has issued the Yamatji Southern Regional Corporation Ltd a notice confirming when the Yamatji Nation ILUA has been Conclusively Registered on the Register of Indigenous Land Use Agreements.
1. It is satisfied that an order in the terms proposed in the attached Minute of Consent Determination of Native Title in native title determination application WAD 345 of 2019 is within the power of the Court and is appropriate to be made pursuant to section 87 of the Native Title Act 1993 (Cth). 2. There be a determination of native title in the terms of the Minute of Consent Determination of Native Title attached. 3. Subject to Order 5 of these orders, Orders 1 and 2 are to take effect immediately after the Court’s order consolidating the present proceeding with native title determination applications WAD 21 of 2019 Part A, WAD 19 of 2019, WAD 27 of 2019 and WAD 31 of 2019 takes effect. 4. On the determination of native title made by Order 2 of these orders coming into effect, Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 5 of 70, A4, 07/02/2020
Bundi Yamatji Aboriginal Corporation (ICN 9213) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth). 5. If the Conclusive Registration Date does not occur on or before 31 December 2022, or such other date as the Court may order, the proceedings are to be listed for further directions, and none of Orders 1, 2, 3 and 4 will take effect. 6. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 6 of 70, A4, 07/02/2020
ATTACHMENT “A”
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title (s225)
1. The Determination Area is the land and waters described in Schedule 1 and depicted on the maps comprising Schedule 2.
2. Native title exists in those parts of the Determination Area identified in Schedule 3 (Native Title Land).
3. Native title does not exist in those parts of the Determination Area identified in Schedule 4.
Native title holders (s225(a))
4. The native title in the Determination Area is held by the native title holders. The native title holders are the people referred to in Schedule 5.
The nature and extent of native title rights and interests (s225(b))
5. Subject to paragraphs 6, 7, 8 and 9 the nature and extent of the native title rights and interests in the Native Title Land referred to in Schedule 3 are rights to use and enjoy those lands and waters, being the rights:
(a) to access land for living and camping;
(b) to visit, maintain and protect places of importance;
(c) to teach on land and waters;
(d) to conduct ceremony;
(e) to hunt on, fish from, take and use resources of the area; and
(f) to be accompanied onto the land by:
(i) non-Yamatji spouses; or Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 7 of 70, A4, 07/02/2020
(ii) persons required by traditional laws and customs for ceremonial or cultural activities.
6. The native title rights and interests referred to in paragraph 5 do not confer:
(a) possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others, nor
(b) a right to control the access of others to the land or waters of those parts of the Determination Area.
7. Notwithstanding anything in this Determination there are no native title rights and interests in the Determination Area in or in relation to:
(a) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
(b) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(c) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
except the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).
8. Native title rights and interests are subject to and exercisable in accordance with:
(a) the laws of the State and the Commonwealth, including the common law; and
(b) the traditional laws and customs of the Native Title Holders.
9. For the avoidance of doubt, the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination is the non-exclusive right to take, use and enjoy that water. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 8 of 70, A4, 07/02/2020
Areas to which s47, s47A and s47B of the Native Title Act apply
10. Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to the areas described in Schedule 6.
The nature and extent of any other interests
11. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 7.
Relationship between native title rights and other interests
12. The relationship between the native title rights and interests described in paragraphs 5 and the other interests is as follows:
(a) the determination does not affect the validity of those other interests;
(b) to the extent of any inconsistency between the other interests and the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and
(c) otherwise the other interests co-exist with the native title rights and interests. To avoid doubt, existence and exercise of native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests, and the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.
Definitions and interpretation
13. In this Determination, unless the contrary intention appears:
“Determination Area” means the land and waters described in Schedule 1 and depicted on the maps at Schedule 2;
“land” and “waters” respectively have the same meanings as in the Native Title Act;
“Native Title Act” means the Native Title Act 1993 (Cth); Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 9 of 70, A4, 07/02/2020
In the event of any inconsistency between the written description of an area in Schedule 1 or Schedule 3 and 4 and the area as depicted on the maps at Schedule 2, the written description prevails.
Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 10 of 70, A4, 07/02/2020
SCHEDULE 1
DETERMINATION AREA
The Determination Area, generally shown as bordered in blue on the maps at Schedule 2, comprises all that land and waters bounded by the following description:
All those lands and waters commencing at the intersection of a southern boundary of Lot 312 as shown on Deposited Plan 54513 being Pastoral Lease N049978 (Carlaminda) and a line joining coordinate points Latitude 28.149497 South Longitude 116.960465 and Latitude 28.151798 South Longitude 116.968628 and extending southeasterly through the following coordinate points
LATITUDE (SOUTH) LONGITUDE (EAST) 28.151798 116.968628 28.153766 116.976803 28.155735 116.984977 28.155886 116.989094 28.157521 116.997281 28.159157 117.005467 28.169654 117.044203 28.171182 117.053184 28.173359 117.061333 28.176220 117.070290 28.179071 117.078837 28.181914 117.086975 28.184766 117.095522 28.186942 117.103673 28.188462 117.112243 28.190638 117.120394 28.192482 117.128550 28.194659 117.136700 28.197168 117.144844 28.199687 117.153398 Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 11 of 70, A4, 07/02/2020
LATITUDE (SOUTH) LONGITUDE (EAST) 28.202214 117.162361 28.204400 117.170921 28.206909 117.179065 28.209095 117.187625 28.210965 117.197009 28.213493 117.205972 28.215678 117.214532 28.218521 117.222670
Then southeasterly to the western boundary of Native Title Determination WAD6123/1998 Badimia People (WCD2015/001) at Longitude 117.225919 East; then generally southerly and generally easterly along the boundaries of that native title determination to Longitude 117.382627 East Latitude 29.936689 South; then generally southwesterly through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 29.938970 117.380294 29.945811 117.373208 29.952635 117.365304 29.959458 117.357400 29.963032 117.353241 29.966597 117.348671 29.970171 117.344512 29.976671 117.337023 29.983503 117.329529 29.989994 117.321631 29.993901 117.317466 30.000751 117.310790 30.003992 117.306636 30.007566 117.302476 30.010473 117.298329 30.014056 117.294578 30.020556 117.287090 Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 12 of 70, A4, 07/02/2020
LATITUDE (SOUTH) LONGITUDE (EAST) 30.027038 117.278782 30.029946 117.274635 30.032854 117.270488 30.036427 117.266328 30.041910 117.258039 30.045484 117.253880 30.048716 117.249317 30.051957 117.245163 30.054864 117.241015 30.061688 117.233111 30.065262 117.228951 30.068836 117.224792 30.072419 117.221041 30.075993 117.216882 30.082492 117.209393 30.085733 117.205239 30.089307 117.201080 30.092548 117.196926 30.096121 117.192767 30.099353 117.188204 30.102594 117.184051 30.105502 117.179903 30.111308 117.171198 30.114216 117.167051 30.117439 117.162079 30.120680 117.157925 30.123589 117.153777 30.127496 117.149611 30.130070 117.145470 30.133635 117.140901 30.136876 117.136747 30.139784 117.132600 30.142692 117.128452 30.145933 117.124299 30.150749 117.116022 Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 13 of 70, A4, 07/02/2020
LATITUDE (SOUTH) LONGITUDE (EAST) 30.152982 117.111477 30.155890 117.107330 30.160698 117.098643 30.165515 117.090366 30.168422 117.086219 30.171321 117.081662 30.174220 117.077105 30.177119 117.072547 30.180018 117.067990 30.182917 117.063434 30.187059 117.054759 30.190868 117.046091 30.195351 117.037821 30.199817 117.028731 30.204634 117.020454 30.207541 117.016306 30.212025 117.008035 30.214258 117.003490 30.218409 116.995225 30.222551 116.986551 30.225702 116.978304 30.228836 116.969238 30.231654 116.960998 30.234140 116.952763 30.236617 116.944119 30.239427 116.935469 30.241580 116.927240 30.244065 116.919005 30.246218 116.910777 30.248037 116.902554 30.249523 116.894337 30.251010 116.886121 30.253162 116.877892 30.255307 116.869254 30.256793 116.861037 Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 14 of 70, A4, 07/02/2020
LATITUDE (SOUTH) LONGITUDE (EAST) 30.258280 116.852820 30.260432 116.844592
Then southwesterly to the intersection of a line joining Longitude 116.844592 Latitude 30.260432 South and Longitude 116.835960 East Latitude 30.262243 South and a line joining Latitude 30.261075 South Longitude 116.841558 East and Latitude 30.252618 South Longitude 116.830319 East; then generally northwesterly passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 30.252618 116.830319 30.245437 116.822605 30.238327 116.815556 30.232496 116.809668 30.221756 116.801125 30.213364 116.792918 30.207335 116.786834 30.201700 116.781149 30.191457 116.771867 30.181783 116.762504 30.168621 116.752977 30.157305 116.742327 30.151902 116.737241 30.143435 116.728382 30.127994 116.713812 30.124792 116.710915 30.121661 116.708680 30.118388 116.705122 30.114473 116.700984 30.108068 116.695192 30.100952 116.688160 30.092126 116.681377 30.083870 116.674513 30.074973 116.667070 30.066075 116.659629 Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 15 of 70, A4, 07/02/2020
LATITUDE (SOUTH) LONGITUDE (EAST) 30.056608 116.652272 30.047638 116.644171 30.036533 116.637728 30.032559 116.634769 29.975377 116.596278 29.932559 116.572719 29.925538 116.568655 29.917635 116.565114 29.909019 116.560334
Then northwesterly to intersect a northern boundary of the Shire of Dalwallinu at Longitude 116.558401 East; then generally westerly along the northern boundaries of that shire to the intersection of a eastern boundary of the Shire of Coorow; then generally northwesterly, southwesterly and westerly along the northern boundaries of that shire to Longitude 114.978514 East; then westerly to intersect a line 10 kilometres seaward of the Lowest Astronomical Tide (LAT) at Latitude 29.935811 South; then generally northerly along that line to Latitude 29.102433 South; then southwesterly to intersect with the 12 Nautical Mile Sea Limit at Latitude 29.153462 South; then generally northwesterly along that sea limit to the intersection of Latitude 27.857932 South; then westerly to the intersection with the westernmost southwestern corner of Native Title Determination Application WAD30/2019 Nanda People And Nanda #2 (WCD2018/011), then generally southeasterly along the southern boundary of that native title determination to its southernmost southeastern corner, then generally southeasterly passing through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 28.038436 114.676371 28.055975 115.118931 28.056312 115.119016
Then southeasterly to intersect a northwestern boundary of Reserve 36388 (Wandana Nature Reserve) at Longitude 115.128965 East; then generally northeasterly and generally easterly along the boundaries of that reserve to a western boundary of Lot 11802 as shown on Deposited Plan 26343 being Pastoral Lease N049424 (Wandina); then southerly, easterly, northerly, again easterly, again southerly, and again easterly along boundaries of that lot and Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 16 of 70, A4, 07/02/2020
Lot 7433 on Deposited Plan 202668 being Pastoral Lease N049424 (Wandina) to the southernmost southeastern corner of that lot and onwards to again the southern boundary of Pastoral Lease N049424 (Wandina); then again easterly, south westerly, south easterly and generally northerly along boundaries of that pastoral lease to the southernmost south western corner of Reserve 9701; then easterly along the southern boundary of that reserve to Lot 301 on Deposited Plan 64845 being Pastoral Lease N049424 (Wandina) then generally southerly along that lot to its westernmost southwestern corner; then southeasterly to the northernmost northern corner of Reserve 33466 (Urawa Nature Reserve); then southeasterly along that reserve to the westernmost northwestern corner of Lot 7624 on Deposited Plan 202677; then easterly along the northern boundary of that lot to its northernmost northeastern corner and onwards to again Pastoral Lease N049424 (Wandina); then generally southerly along boundaries of that pastoral lease to its southernmost southwestern corner being a northwestern corner of Pastoral Lease N050667 (Tallering); then generally southerly and easterly along boundaries of that latter pastoral lease to the intersection of Pastoral Lease N050549 (Gabyon); then generally northeasterly along boundaries of that pastoral lease to the intersection with the northernmost northeastern corner of Lot 11816 as shown on Deposited Plan 220201; then easterly to the westernmost corner of Lot 306 as shown on Deposited Plan 39184; then easterly and northerly along the boundaries of that lot to the intersection with a southwestern corner of Pastoral Lease N049977 (Carlaminda); then northerly and generally easterly and generally southerly along boundaries of that pastoral lease to the northwestern corner of Lot 381 as shown on Deposited Plan 43537; then southerly and easterly along boundaries of that lot; then easterly to the southwestern corner of Lot 314 as shown on Deposited Plan 43528 then easterly and northerly along boundaries of that lot to a southeastern corner of again Pastoral Lease N050549 (Gabyon); then generally northerly, easterly and again generally northerly along boundaries of that pastoral lease to the southwestern corner of Lot 312 on Deposited Plan 54513 being Pastoral Lease N049978 (Carlaminda). Then generally easterly along southern boundaries of that lot back to the commencement point.
For the avoidance of doubt the determination excludes any land and waters subject to: Native Title Determination Application WAD6123/1998 Badimia People (WCD2015/001) as Determined in the Federal Court on the 25/05/2015. Native Title Determination Application WAD28/2019 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19/10/2017 Native Title Determination Application WAD30/2019, WAD286/2018 Nanda People and Nanda #2 (WCD2018/011) as Determined in the Federal Court on the 28/11/2018 Native Title Determination Application WAD30/2019 Nanda People (WC2000/013) Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 17 of 70, A4, 07/02/2020
Native Title Determination Application WAD176/2019 Nanda People #3 (WC2019/004)
Native Title Determination Application WAD647/2017 Marlinyu Ghoorlie (WC2017/007)
Native Title Determination Application WAD6006/2003 Single Noongar Claim (Area 1) (WC2003/006)
Native Title Determination Application WAD6192/1998 Yued (WC1997/071)
Native Title Determination Application WAD28/2019 Wajarri Yamatji (WC2004/010)
Native Title Determination Application WAD32/2018 Wajarri Yamatji #3 (WC2018/001)
Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 18 of 70, A4, 07/02/2020
NON – EXCLUSIVE NATIVE TITLE AREAS
Lucky Bay
All that land and water commencing from the southernmost southwestern corner of Lot 11263 as shown on Deposited Plan 91188 and extending generally easterly and generally northwesterly along the boundaries of that lot to the intersection with the southern boundary of Lot 4837 as shown on Deposited Plan 138004; Then northeasterly and westerly along the boundaries of that lot to the intersection of an eastern boundary of Lot 11263 as shown on Deposited Plan 91188; Then generally northwesterly along the boundaries of that lot to the intersection with the westernmost northwestern corner of Lot 12 on Deposited Plan 202246; then easterly and northerly along the boundaries of that severance to the intersection of a southwestern boundary of Native Title Determination WAD6136/1998 WAD286/2018 Nanda People and Nanda #2 (WCD2018/011); then northwesterly along the boundary of that native title determination to the intersection of the northwesternmost boundary of Lot 11263 as shown on Deposited Plan 91188; then generally southwesterly and southeasterly along the boundaries of that lot back to the commencement point.
Kadji Kadji
All that land and water comprising Lot 8532 as shown on Deposited Plan 154221
EXCLUSIONS
All that land and water comprising Miscellaneous Licence L70/130
All that land and water comprising Miscellaneous Licence L70/126
All that land and water comprising Miscellaneous Licence L59/62.
Ex Barnong Area
All that land and water commencing from the southernmost southeastern corner of Lot 9555 as shown on Diagram 9955 and extending westerly along the southern boundary of that lot to the intersection of approximate Longitude 116.268659 East; then southerly to the intersection of the northeastern boundary of the central severance of Lot 300 on Deposited Plan 39180 (Reserve 48372) and approximate Longitude 116.268660 East; then southeasterly along the Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 19 of 70, A4, 07/02/2020
boundary of that lot to the intersection of approximate Longitude 116.284414 East; then northeasterly to approximate coordinate position Latitude 28.416630 South, Longitude 116.287993 East; Then northwesterly back to the commencement point.
EXCLUSIONS
All that land and water comprising Miscellaneous Licence L59/70.
ALT Reserves
All those lands and waters comprising:
Reserve 28608 being Lot 10899 as shown on Deposited Plan 210816, Lot 10888 as shown on Deposited Plan 210804 and all that land comprising that portion of Lot 10881 as shown on Deposited Plan 210792 that falls entirely within the external boundary of Native Title Application WAD345/2019 Yamatji Nation Claim (WC2019/008).
Menai Hill
All that land and water commencing at the intersection of a northeastern boundary of Lot 11833 as shown on Deposited Plan 238009 and approximate Longitude 114.320213 East and extending generally northwesterly, generally southwesterly and generally southeasterly along boundaries of that lot to the intersection of approximate Longitude 114.312637 East; then northeasterly back to the commencement point.
Parcels Adjacent to Wandana Nature Reserve 36388
All those lands and waters comprising Lot 11130 as shown on Deposited Plan 046461.
All those lands and waters being Unallocated Crown Land commencing at the northeastern corner of Lot 10102 as shown on Deposited Plan 165109 and extending southerly along the eastern boundary of that lot to northernmost northern boundary of Unallocated Crown Land; then easterly and southerly along boundaries of that Unallocated Crown Land to its easternmost southeastern corner; then southerly to the northeasternmost corner of the northern severance of Lot 9373 as shown on Deposited Plan 204872; then southerly along the Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 20 of 70, A4, 07/02/2020
eastern boundary of that severance and onwards to the northern boundary of the southern severance of that lot, then easterly and again southerly along boundaries of that severance to the easternmost northeastern corner of Unallocated Crown Land; then southerly, westerly,
again southerly, again westerly and generally northerly along the boundaries of that Unallocated Crown Land to the southeastern boundary of Lot 4930 as shown on Deposited Plan 137431; then southwesterly, northwesterly and northeasterly along boundaries of that lot to a southwestern boundary Unallocated Crown Land; then northwesterly to a southeastern boundary of Dartmoor Road; then northwesterly along that side of that road to the prolongation southwesterly of the easternmost southeastern boundary of Lot 10718 as shown on Deposited Plan 209858; then northeasterly and northwesterly along boundaries of that Lot to a southeastern corner of Lot 10765 as shown on Deposited Plan 171871; then northwesterly along the northeastern boundary of that lot and onwards to a southern boundary of Unallocated Crown Land; then generally westerly and generally northerly along boundaries of that Unallocated Crown Land to the intersection of a line joining coordinate points Latitude 28.038436 South, Longitude 114.676371 East and Latitude 28.055975 South, Longitude 115.118931 East; then easterly along that line to the western boundary of lot 4994 as shown on Deposited Plan 232419; then southerly and southeasterly along boundaries of that lot and lot 4993 to a northwestern side of Dartmoor Road; then generally southwesterly along that side of the road to the northeastern corner of the northwestern severance of Lot 8360 as shown on Deposited Plan 152155; then westerly, southerly and easterly along boundaries of that severance to again a western side of Dartmoor Road; then generally southwesterly along that side to the prolongation southwesterly of the southeastern side of Dartmoor Road North; then generally northeasterly along that side of the road back to the commencement point.
EXCLUSIONS
All those roads within the external extent.
All that land and water commencing at the northwestern corner of Lot 10461 on Deposited Plan 208071, being a point on the eastern boundary of Reynolds Road, and extending northwesterly and northerly along the eastern boundaries of that road to the intersection with a southern boundary of an unnamed road, then easterly and southeasterly along the southern and Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 21 of 70, A4, 07/02/2020 western boundaries of unnamed road until an intersection with the northeastern corner of again Lot 10461 on Deposited Plan 208071, then southwesterly back to the commencement point.
Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 1st August 2019. Datum: Geocentric Datum of Australia 1994 (GDA94)
Prepared By: Graphic Services (Landgate) 15th November 2019
Use of Coordinates:
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
G:\WAG\WAD0345_2019\Determination\Determination_TD\Yamitji Nation Non Exclusive Areas TD.doc
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SCHEDULE 2
MAPS OF THE DETERMINATION AREA
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SCHEDULE 3
NATIVE TITLE LAND Areas where native title comprises the rights set out in paragraph 5
The following land and waters (as described in the technical descriptions under ‘Non – Exclusive Native Title Areas’ in Schedule 1, and generally shown as orange on the maps at Schedule 2): Unallocated Crown Land (UCL) areas Ex Barnong Part Polygon Identification Number (PIN) 10068851, and Part PIN 10011699, Lot 11816 on DP 220201 Menai Hills Part PIN 718427, Lot 11833 on DP238009 Parcels adjacent to Wandana Nature Reserve Part PIN 997305 PIN 997307 PIN 997308 PIN 997309, Lot 9373 on DP 204872 PIN 997310 PIN 997312 PIN 997317, Lot 9373 on DP 204872 PIN 997320 PIN 997321, Lot 10102 on DP 165109 PIN 994474, Lot 4930 on DP 137431 PIN 994477 PIN 994487, Lot 9373 on DP 204872 PIN 994501 PIN 1341839 PIN 1345587 PIN 11427527, Lot 11130 on DP 46461 Parcels below Kadji Kadji PIN 562080, Lot 8532 on DP 154221 PIN 562093, Lot 8532 on DP 154221
Reserves Lucky Bay Portion of Reserve 35206 for the purpose of Recreation, being portion of Lot 7046 on DP 202246, portion of Lot 11283 on DP 91188 and Lot 4837 on DP 138004
1 For unsurveyed UCL areas the polygon identification number used in the land selection process is the identification tool used by the Applicant and the State. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 33 of 70, A4, 07/02/2020
ALT Reserves Reserve 28607 for the purpose of Use and Benefit of Aborigines, Lot 10881 on DP 210792 Reserve 28608 for the purpose of Use and Benefit of Aborigines, Lot 10899 on DP 210816 Reserve 28609 for the purpose of Use and Benefit of Aborigines, Lot 10888 on DP 210804
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SCHEDULE 4
AREA WHERE NATIVE TITLE DOES NOT EXIST
All of the area within the external boundary of the Determination Area as described in Schedule 1 and depicted on the maps in Schedule 2 other than the Native Title Land described in Schedule 3 and depicted as orange on the maps in Schedule 2.
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SCHEDULE 5
DESCRIPTION OF THE NATIVE TITLE HOLDERS
The native title holders are those Aboriginal people who:
(a) are descendants of the following apical ancestors:
(i) Ap-barra (Uppaarawa) and Dharriga
Annie Tira
Biddie (mother of Fred Carnamah)
Billy and Judy Thompson
Brindy
Cissie Broad
Eeranyoo
Eliza
Galena
Jane Cotter (mother of Sarah Mabel Bell and Patrick John Bell)
Jane Hunt
Jibija (Rosie Jones)
John Yuna Councillor
Lizzy Flynn
Mary Gingina
Mary Nundie
Nellie
Noogy (grandmother of Minnie Campbell)
Punch
Rosie (mother of Walter Ninghan)
Rosie Coleman Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 36 of 70, A4, 07/02/2020
Sarah Jane Campbell
Sarah Broad
Sarah Feast (Jooldarnoo)
Shilling
Timothy Benjamin
Uanda
Woondoora
Wyoo and Myonda; or
(ii) any other Aboriginal persons who are recognised by Yamatji People as Yamatji and as having had rights in the Determination Area under traditional Yamatji laws and customs. The term “descendants” includes Aboriginal persons who have been adopted as children or raised (grown up) as part of the family of descendants of those apicals referred to above; and
(b) In addition to (a), those descendants must also identify as Yamatji People who are connected under the traditional Yamatji law and customs with the land and waters in the Determination Area and be accepted as such by other Yamatji People. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 37 of 70, A4, 07/02/2020
SCHEDULE 6
AREAS TO WHICH SECTIONS 47, 47A AND 47B OF THE NATIVE TITLE ACT APPLY
Section 47A Reserve 28607 Lot 10881 on DP 210792
Reserve 28608 Lot 10899 on DP 210816
Reserve 28609 Lot 10888 on DP 210804
Section 47B Ex-Barnong area Part PIN 1006885 and
Part PIN 10011699, Lot 11816 on DP 220201
Kadji Kadji area PIN 562080, Lot 8532 on DP 154221
PIN 562093, Lot 8532 on DP 154221
Area adjacent to Wandana Nature Lot 11130 on DP 46461 Reserve
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SCHEDULE 7
OTHER INTERESTS
1. Leases
Any leases granted by the Aboriginal Lands Trust over part or all of Reserves 28607, 28608 and/or 28609 including: Lease of Reserve 28607 to Leah Bell for a term expiring on 30 June 2079, assigned from Leah Bell to Leah Bell and Ashley Bell on 31 December 1985.
2. Existing Interests under the Mining Act 1978 (WA)
Tenement ID Tenement Type Date of grant M 70/203 Mining Lease 9 December 1986 E 70/5130 Exploration Licence 19 November 2018 E 70/2509 Exploration Licence 27 July 2005
3. Existing Interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA)
EP 454 R1 Exploration Permit 26 February 2007 EP 498 Exploration Permit 6 February 2018
4. Other Rights and Interests
(a) Rights and interests, including licences and permits, granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation.
(b) Rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA). Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 39 of 70, A4, 07/02/2020
(c) Rights and interests of members of the public arising under the common law including but not limited to:
(i) the public right to fish;
(ii) the public right to navigate;
(iii) the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under common law.
(d) The right to access land by an employee or agent or instrumentality of:
(i) the State;
(ii) the Commonwealth; or (iii) any local Government authority;
as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.
(e) So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to and enjoyment of:
(i) waterways; (ii) the beds and banks or foreshores of waterways; (iii) stock routes; or (iv) areas that were public places at the end of 31 December 1993.
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REASONS FOR JUDGMENT
MORTIMER J:
1 The parties have sought and the Court has agreed to a determination of native title under s 87 of the Native Title Act 1993 (Cth), and associated orders, in respect of an area of approximately 47,970 square kilometres in the Murchison region of Western Australia. The Yamatji Nation determination area contains portions of land within the city of Geraldton and extends to parcels of land within the towns of Northampton, Dongara, Eneabba, Three Springs, Morawa, Mullewa, Mingenew and Yalgoo. The area is intersected by river systems, and is now predominantly farmland. In these reasons, and in order to respect the way Yamatji Nation People describe their land and waters, I have used the word “Country” to describe their land.
2 The orders made by the Court today reflect the outcome of a long and challenging process, beginning in 1996 with the making of separate native title claims by several claim groups, consequent mediation and negotiation between the claim groups, and then between those groups and the State and other respondents, culminating in the middle of 2019 with the filing of a new, overarching claim for a determination of native title, the Yamatji Nation claim. It is that claim which is the subject of a determination of native title today.
3 For the reasons set out below, the Court is satisfied it is appropriate to make the orders sought, and that it is within the power of the Court to do so. The making of these orders brings to fruition the aspirations of many claimants and elders of the Yamatji Nation, and sets them on a path of their choosing, which they have negotiated, and which it is hoped will empower them and their families and communities to take advantage of all aspects of the settlement reached with the State of Western Australia and the other consenting respondents.
The material before the Court
4 The application for consent determination was supported by a principal set of submissions filed on behalf of the Yamatji Nation applicant, the applicants in WAD 19 of 2019 Southern Yamatji, WAD 21 of 2019 Mullewa Wadjari (Part A), WAD 27 of 2019 Hutt River, WAD 31 of 2019 Widi People (also called Widi Mob) and the State Solicitor’s Office of Western Australia (SSO), on behalf of the first respondent (Joint Submissions). The SSO prepared the proposed orders and proposed determination, and the Court is grateful for the State’s continuing support in terms of making its resources available for this purpose. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 41 of 70, A4, 07/02/2020
5 In addition to the Joint Submissions, and the proposed orders and proposed determination, the material before the Court on the Yamatji Nation application comprises:
(a) supplementary joint submissions of the applicants (being the Yamatji Nation applicant and the applicants in proceedings WAD 19 of 2019, WAD 21 of 2019 Part A, WAD 27 of 2019 and WAD 31 of 2019) and the first respondent filed on 23 January 2020 (Supplementary Joint Submissions); (b) a minute of proposed consent orders providing, amongst other matters, for the consolidation of the four underlying proceedings with the Yamatji Nation proceeding, filed on 3 February 2020 (Proposed Consent Orders); (c) affidavit of Wanjie Song, a solicitor in the SSO, affirmed on 23 January 2020 on behalf of the first respondent, concerning the signing of the proposed determination (First Song Affidavit); (d) affidavit of Wanjie Song affirmed on 23 January 2020 on behalf of the first respondent, concerning the meaning of certain terms in the Yamatji Nation Indigenous Land Use Agreement (ILUA) (Second Song Affidavit); and (e) affidavit of Rodney Francis Nichole, solicitor for the Yamatji Nation applicant, affirmed on 23 January 2020, in support of the proposed consent determination of native title.
6 In the other four proceedings over which orders were sought to facilitate and support the primary orders being made in the Yamatji Nation application, the following material was filed:
(a) the Joint Submissions; (b) the Supplementary Joint Submissions; (c) the Proposed Consent Orders; (d) the First Song Affidavit; (e) the Second Song Affidavit; (f) in WAD 19 of 2019: an affidavit of Brooke Creemers, solicitor for the Southern Yamatji applicant, affirmed on 6 January 2020, in support of the proposed consent determination of native title in the Yamatji Nation claim; (g) in WAD 21 of 2019 Part A: an affidavit of Chau Kim Huynh, solicitor for the Mullewa Wadjari applicant, affirmed on 19 December 2019 in support of the proposed consent determination of native title in the Yamatji Nation claim, and Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 42 of 70, A4, 07/02/2020
a second affidavit of Chau Kim Huynh affirmed on 23 January 2020 in support of the Supplementary Joint Submissions; (h) in WAD 27 of 2019: an affidavit of Jeremy Brown, solicitor for the Hutt River applicant, affirmed on 6 January 2020, in support of the proposed consent determination of native title in the Yamatji Nation claim; and (i) in WAD 31 of 2019: an affidavit of Michael Pagsanjan, solicitor for the Widi Mob applicant, affirmed on 19 December 2019 in support of the proposed consent determination of native title in the Yamatji Nation claim, and a second affidavit of Michael Pagsanjan affirmed on 23 January 2020 in support of the Supplementary Joint Submissions.
7 These documents, together with the original Yamatji Nation native title determination application under s 61 of the Native Title Act, constitute the material on which the Court has relied in making the orders for a determination of native title. Although I describe below the lay evidence and the anthropological material to which the Joint Submissions refer, none of that material was filed with the Court. The parties did not file any agreed statement of facts.
8 As I have noted in previous consent determination reasons, in these circumstances, the Court relies very much on the joint submissions made by the parties. This is a well-accepted approach. As the Joint Submissions recognise, the basis for the Court’s orders under s 87 is the agreement of the parties, and the Court does not need to make its own inquiries as to the merits of the claim for native title: see Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J), quoting North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]. Recognition of this approach as permissible confers significant flexibility on parties to agreements for a consent determination. They may elect to agree on matters – not only of fact, but also of law – which, in a contested hearing, would favour one party or another because of the state of the law or the evidence. However, in a negotiated outcome, the very nature of negotiation involves compromise, and parties may elect to compromise on facts and on their legal rights and interests, as long as the factual and legal preconditions exist for the Court to consider that a determination satisfies the requirements of the Native Title Act, so that the determination is within power and is appropriate to make.
The application, the determination area and the process towards consent determination
9 The Yamatji Nation claim is of fairly recent origin, but the claims of connection to the Country it covers by those who now comprise the Yamatji Nation claim group are not recent. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 43 of 70, A4, 07/02/2020
10 It is not necessary to rehearse in detail the history of all the separate claims for parts of the Country now covered by the Yamatji Nation claim. They were the subject of Barker J’s reasons in Leedham Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2015] FCA 1342. At the time his Honour delivered judgment in November 2015, there were five proceedings on foot: WAD 6119 of 1998 Mullewa Wadjari People, WAD 6193 of 1998 Widi Mob, WAD 6194 of 1998 Naaguja Peoples, WAD 6001 of 2000 Hutt River People and WAD 6002 of 2004 Amangu People. There were significant overlaps between these claims.
11 By November 2015, those five proceedings had reached a fork in the road: either the claim groups were going to be able productively to mediate their overlapping claims, or there would need to be a trial. Justice Barker made orders which provided, in the short term, for mediation to allow the claimants to attempt to resolve their overlapping claims to an area referred to as the separate proceeding area (SPA), and then for the claimants to put forward a proposal to the State to resolve the proceedings in the SPA by agreement. If such an objective could not be achieved by mediation, then in the alternative Barker J’s orders made provision for a trial in relation to the SPA. In the reasons which accompanied those orders, Barker J spoke (at [4]) of the “difficult relationship” to that point between the State and the claimants, and then stated (at [7]-[11]):
Suffice to say, at a recent case management hearing, on 3 November 2015, the State moved for orders to list the proceedings for trial in respect of a separate proceeding area that includes parts of the areas the subject of each of the claimant applications. The claimants, or most of them, resisted the State’s approach, indicating among other things that they are not sufficiently advanced in their preparations for a trial or adequately funded to that end. Prior to the State moving in these terms, pursuant to earlier case management orders of the Court, the State and the claimants (led by those claimants for whom YMAC act) were endeavouring to identify current tenure to land the subject of the claims with a view to clarifying what land, if any, within the claim areas was the subject of claim under the NTA. An inquiry of this nature is of particular relevance in these proceedings for a number of reasons. First, following the settlement by the British of the Swan River Colony and the assertion of the sovereignty of the British Crown over Western Australia, these claim areas were the subject of early intensive settlement and grants of a range of interests including freehold title. It is well understood that a historic grant of freehold title extinguished any native title rights that then existed in relation to the grant area. See Fejo v Northern Territory of Australia (1998) 195 CLR 96; [1998] HCA 58. As a result, in the various claim areas it is likely that there will be relatively little land available for claim under the NTA. This is recognised by most, if not all, of the claimants, and at least their advisors. For that reason, most, if not all, of the claimants appreciate that it could be to their combined advantage to complete an early identification of just what land is actually Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 44 of 70, A4, 07/02/2020
available for claim under the NTA and then to consider approaching the State with a view to exploring constructive negotiations with the State as to settlements that might be made alternative to a determination that native title exists or does not exist. The dealings between the State and the claimants in relation to the single Noongar claim provide a significant example of what might possibly be achieved in this regard between relevant negotiating parties. See Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491 at [2]-[5]. Secondly, if, as explained below, the claimant applications are not capable of resolution in this way, and must proceed to trial, then the tenure analysis will be important to the conduct of the trial. (Original emphasis.)
12 After those orders were made in November 2015, there commenced a process which would last for almost four years, and which has required tremendous dedication and persistence, and the application of considerable financial and other resources, by all concerned.
13 Judicial Registrar Daniel has been responsible for the conduct of the mediation ordered by Barker J. Her considerable skill and expertise, and her dedication to assisting the parties to reach a negotiated outcome, should be recognised at the start of these reasons. This outcome is in no small measure due to her involvement.
14 For the first, lengthy, negotiation, a mediation was conducted between the five native title claim groups over the period of February 2016 to March 2017. By March 2017, all outstanding overlaps were resolved. The Joint Submissions described this outcome as involving “considerable efforts and commitment by the parties”.
15 On 6 April 2017, leave was granted by the Court for proceedings WAD 6002 of 2004 Amangu People and WAD 6194 of 1998 Naaguja Peoples to be combined with proceeding WAD 6002 of 2004 as the lead claim, to be renamed “Southern Yamatji”.
16 About six months before this, a set of proposals for resolution of the claims was formulated by the authorised representatives of the claim groups, and mediation around these proposals commenced in January 2017. The mediation continued for the first half of 2017, until 31 August 2017 when the State made a formal offer to enter into negotiations towards a non- litigated resolution of the (then) four claimant applications over the SPA: Mullewa Wadjari People, Widi Mob, Hutt River and Southern Yamatji.
17 The offer to enter into negotiations was accepted by the four native title claim groups on 19 October 2017, and the first mediation meeting with the State took place in Geraldton on 14 and 15 November 2017. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 45 of 70, A4, 07/02/2020
The negotiations between the claimants and the State
18 A cornerstone of the structure of the negotiations was the establishment of a 12 member Traditional Owner Negotiation Team. The claimants who comprised that team were: Mr Fred Taylor (Southern Yamatji), Mr Rod Little (Southern Yamatji), Ms Carol Martin (Southern Yamatji), Mr Ross Councillor (Southern Yamatji), Ms Delveen Whitby (Southern Yamatji), Mr Leedham Papertalk Snr (Southern Yamatji and Mullewa Wadjari), Ms Glenda Jackamarra (Southern Yamatji and Mullewa Wadjari), Ms Helen Nutter (Southern Yamatji and Hutt River), Mr Paul “Yeti” Eley (Southern Yamatji and Hutt River), Ms Shirley McPherson (Southern Yamatji and Widi Mob), Mrs Kathleen Pinkerton (Southern Yamatji and Widi Mob) and Mr Wayne Warner (Southern Yamatji). Sadly Mr Warner passed away late last year and it is appropriate to recognise the significant contribution he made to the negotiation process, his leadership as a member of the Traditional Owner Negotiation Team and within the community, and his hope that the outcome of the negotiations will genuinely benefit future generations of Yamatji People.
19 The State’s negotiations were led by senior staff from the Department of the Premier and Cabinet, with assistance from a number of State government departments and agencies, and legal representation from the SSO.
20 While non-State respondents were not involved in negotiations, they have continued to be updated about the progress of the negotiations through reports to the Court and they have assisted in settling the terms of the proposed orders and proposed determination.
21 The framework for the negotiations was an all-encompassing settlement, with an ILUA at the centre. The topics covered in the negotiations included:
(a) Recognition; (b) Governance; (c) Land base; (d) Economic base; (e) Conservation Estate; (f) Heritage and culture; and (g) Access to water. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 46 of 70, A4, 07/02/2020
22 The Joint Submissions describe the conduct of the negotiations as “at times, challenging”, but explain the content and focus of the negotiations in the following way:
Negotiations were guided by the aspirations of the claimants and their native title claim groups, which focused on ensuring that current and future generations of native title holders would be able to continue to maintain their relationship to Country and attain economic and social independence and provide for sustainable benefits from the agreement.
23 There was genuine give and take in the negotiation process, and the members of the Traditional Owner Negotiation Team, their legal representatives and the representatives of the State are to be congratulated on their commitment to reach an outcome which genuinely reflected the core aspirations of the parties. The Joint Submissions acknowledge how this commitment manifested itself during the negotiations:
All parties displayed a willingness to truly negotiate, compromise and reach a mutually acceptable outcome. For example, while the original offer by the State was for a non- native title outcome that included the surrender of native title for the entire SPA, through the negotiations the parties reached agreement for the recognition of non- exclusive native title rights and interests over areas of special significance for the claimants. The claimants were particularly effective at conveying their attitudes and feelings about their relationship to Country, the loss incurred and their aspirations for their future. This open dialogue ultimately persuaded the State of the importance of an innovative agreement and ensured the negotiations met the claimants’ aspirations. A particularly important aspiration is to be recognised as native title holders who have maintained their connection to their land and waters, and who have not surrendered their native title rights and interests over the entirety of the SPA.
The combined claim and the determination of native title
24 As a result of anthropological research conducted on behalf of all four native title claim groups (Widi Mob, Mullewa Wadjari, Hutt River and Southern Yamatji), the claimants determined it was appropriate to lodge an overarching claim covering the whole of the SPA, which the State did not oppose. The claim included a combined group of apical ancestors from whom the native title rights and interests of the claim group members are contended to have been acquired, a contention the Court accepts by the making of the determination orders today. The Yamatji Nation claim was authorised on 24 June 2019 and was filed on 28 June 2019, and is the application which is the subject of the Court’s native title determination.
25 The Yamatji Nation application is made by Frederick Taylor, Garry Hodder, Leedham Papertalk, Lorraine Whitby and Yvette Harris as the individuals who jointly comprise the Yamatji Nation applicant, and who have been authorised to bring the application on behalf of the Yamatji Nation native title claimants. At [66], the Joint Submissions describe how the individual members of the Yamatji Nation applicant were chosen: Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 47 of 70, A4, 07/02/2020
The Yamatji Nation Applicant members authorised were selected on the basis that their composition reflected representatives from each of the underlying claims and a representative of claimants that were not members of any of the underlying claims. This composition was intended to reflect the unified and inclusive approach to the Yamatji Nation native title claim group, the proposed Yamatji Nation ILUA and the recognition of native title in the SPA.
26 In the Yamatji Nation claim, reflecting the core aspirations which have been described at [23] above, there will be a determination that non-exclusive native title exists over a number of areas of land within the SPA, shown on the maps attached to the Court’s orders.
27 The areas comprise some significant places for Yamatji People within the SPA where native title holders continue to visit, camp, hunt and exercise traditional cultural practices. These areas include unallocated Crown Land parcels at Ex Barnong Station, Menai Hills, Kadji Kadji and parcels adjacent to Wandana Nature Reserve. In addition it includes reserve parcels at Lucky Bay and three Aboriginal Lands Trust reserve parcels.
28 At meetings held on 8 and 9 December 2019 in Geraldton, concurrently with the authorisation of the Yamatji Nation ILUA, the Yamatji Nation native title claim group considered and confirmed the authorisation of the Yamatji Nation applicant to enter into the Yamatji Nation determination. At [68]-[69], the Joint Submissions describe a comprehensive process of informing claim group members who chose to attend the authorisation meetings about the proposed ILUA and determination:
The first day of this two day authorisation meeting was presented as an exhibition, where Yamatji Nation claimants were provided substantial opportunity to consider and discuss all elements of the proposed Yamatji Nation ILUA and Determination in an interactive, hands-on format. Over 1000 people attended the exhibition. Information and details about the various components was provided in a manner which afforded claimants an opportunity to tangibly engage with information and the proposed outcomes. Opportunities for claimants to sit with family members and elders to discuss their perspectives and concerns was afforded at these meetings and lively discussion and deliberation occurred. In keeping with the collaborative nature of the negotiations, State representatives assisted TONT members and the Applicant lawyers in presenting material and engaging with claimants. The second day of the two day authorisation meeting was for the claimants to make decisions about and authorise the Yamatji Nation Applicant, the Yamatji Nation ILUA and the Yamatji Nation Determination. Approximately 500 people participated in the second day and offered their overwhelming support, in excess of 92% of attendees, to the Yamatji Nation ILUA and Determination.
29 On the evidence before it, and as to the proposed determination of native title which is the subject of the Court’s orders today, the Court is satisfied this process gave sufficient time and opportunity to claim group members who chose to attend to make informed decisions about Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 48 of 70, A4, 07/02/2020
the proposal for the determination of native title (positive and negative) which was put before them.
30 The importance of the consolidation of the four underlying claims with the Yamatji Nation claim was emphasised in the Joint Submissions at [19]:
Equally, the recognition that all Yamatji People who are connected to the SPA are included in the description of native title holders, no-matter the history of the underlying claims and membership to such claim groups, without discrimination, is a further important aspiration. That aspiration is not without its challenges, with claimants demonstrating significant frustrations with the native title system. Some claimants have felt marginalised by research and legal processes throughout the life of the claims. The nature of the native title system and the onerous burden it places on claimants to justify and explain their connection to Country in the context of the history of the region has caused frustration and division over the years. However, an outcome that includes the recognition of native title rights unites all traditional owners within the SPA as Yamatji People under the complex legal system of the colonisers that has historically divided Aboriginal people. The native title recognition shows that Yamatji People in the SPA are strong and proud of their identities and connections, despite the challenges of the native title system. This native title recognition also demonstrates that claimants have maintained their relationship with Country and continue to observe traditional laws and customs as Yamatji People.
31 As the Joint Submissions recognise, the four underlying claims remain on foot and orders need to be made to recognise that there will be no individual determination of native title in those proceedings. Accordingly, in order to ensure that all of the underlying claims and the Yamatji Nation claim are dealt with in the same proceeding, and in a way which does not prejudice the existing interests of any of the underlying claim group members, the parties have consented to orders that the Yamatji Nation claim is amended by consolidating the four underlying claims with the Yamatji Nation claim, and that the amended consolidated Yamatji Nation claim continue in and under the native title determination application numbered WAD 345 of 2019.
32 There is some complexity attached to the sequence of orders to be made in the Yamatji Nation proceeding, and in terms of the consolidation orders. The complexity arises because of the parties’ agreed approach to when the entire negotiated outcome (positive and negative determinations of native title and the ILUA) is to come into effect. In substance, the orders made on the application for a consent determination of native title, and the separate orders made concerning the consolidation of the proceedings, provide for the following sequence of events:
(a) The consolidation orders in relation to the four underlying proceedings and the Yamatji Nation proceeding are to take effect on the date the State files a notice Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 49 of 70, A4, 07/02/2020
that the Yamatji Nation ILUA has been “Conclusively Registered” on the Register of Indigenous Land Use Agreements. (b) The term “Conclusively Registered” is described at [4] of the Second Song Affidavit, by reference to its definition in the Yamatji Nation ILUA, as:
Conclusive Registration means, once this Agreement has been Registered, that this Agreement remains Registered: (a) at a date that is 60 Business Days after the date on which a decision is made to Register this Agreement, provided that no Legal Proceedings have been commenced in respect of such Registration; or (b) otherwise, at a date that is 40 Business Days following the exhaustion and determination of the final available Legal Proceedings in respect of such Registration, and Conclusively Registered has a corresponding meaning. (c) Immediately after the Court’s consolidation orders take effect, the determination of native title (positive and negative) will take effect, as will the order vesting the native title in the Bundi Yamatji Aboriginal Corporation (ICN 9213), as trustee for the common law native title holders.
33 Both the consolidation orders and the determination orders also provide that if the Conclusive Registration Date does not occur on or before 31 December 2022, or such other date as the Court may order, the proceedings are to be listed for further directions. In those circumstances, the determination orders state that none of the orders relating to the determination of native title will take effect. The term “Conclusive Registration Date” is defined in the notes to the determination orders as “the date the State has issued the Yamatji Southern Regional Corporation Ltd a notice confirming when the Yamatji Nation ILUA has been Conclusively Registered on the Register of Indigenous Land Use Agreements”. This approach is intended to accommodate any unforeseen circumstances such as any potential challenge to the Yamatji Nation settlement.
34 I accept those orders, while unusual, are necessary and appropriate to address the circumstances of this particular settlement, involving as it does both a determination that native title exists in respect of some parcels of land in the SPA, and an ILUA which confers a range of benefits and compensation, and also involves the surrender of native title over the majority of the SPA, by way of the agreement to a negative determination. The course of events that has occurred in relation to the Noongar settlement (for a summary, see the recent decision of the Full Court of this Court in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 50 of 70, A4, 07/02/2020
[2019] FCAFC 238 at [1]-[15], [37]-[85]) provides an example of the challenges which may be brought. While all those involved no doubt hope that the Yamatji Nation settlement does not follow the same course, the orders proposed, which the Court accepts should be made, are designed to reflect some of the potential uncertainties in the short term.
The Yamatji Nation ILUA
35 The ILUA is described in the Joint Submissions as:
… a progressive and innovative settlement which will hopefully become the basis on which future agreements are negotiated nation-wide.
36 The ILUA is one of the cornerstones of the negotiated outcome in the four underlying claims and the overarching Yamatji Nation claim. It sets out compensation and benefits to be provided by the State in consideration for the surrender of most of the native title rights and interests extant in the SPA, and the diminution, impairment, or other effect on native title rights and interests in the SPA.
37 As noted at [28] above, the ILUA and consent determination were authorised by a significant majority of the persons who attended the authorisation meetings in Geraldton in December 2019.
The material provided to the State for the purposes of its agreement to the consent determination
38 The Joint Submissions describe (at [37]) the extensive material provided to the State as part of the negotiation process, in support of the Yamatji Nation native title holders’ connection to, and occupation of, the Yamatji Nation claim area:
(a) Hutt River & Southern Yamatji Anthropology Report by Dr John Morton dated 2018; (b) Widi Mob (WAD6193/1998) and Mullewa Wadjari (WAD6119/1998) within the Eastern Region of the Special Proceedings Area: Anthropologist’s Report by Catherine Wohlan dated October 2018; (c) Separate Proceedings Area: Widi Mob and Mullewa Wadjari (eastern part) Final Report by Ethical Research & Native Title Services Pty Ltd dated April 2018; Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 51 of 70, A4, 07/02/2020
(d) Widi Mob (WAD6193/1998) and Mullewa Wadjari (WAD6119/1998) within the Eastern Region of the Special Proceedings Area: Anthropologist’s Supplementary Report by Catherine Wohlan dated February 2019; (e) The Special Proceeding Area (SPA) and the Mullewa Wadjari (WAD6119/1998) and Widi Mob (WAD6193/1998) Claims: Targeted Report further to the Hutt River (WAD6001/2000) & Southern Yamatji (WAD6002/2004) Anthropology Report, 2018 by Dr John Morton dated April 2019; (f) The Yamatji Nations Southern Regional Agreement (YNSRA) Report on Possible Additional Apical Ancestors by Dr John Morton dated August 2019; (g) The Yamatji Nations Southern Regional Agreement (YNSRA) Further Consideration of Ancestors dated October 2019 (also by Dr John Morton); (h) Witness Statement of Cecil James Hodder signed on 30 July 2019; (i) Witness Statement of Ashley David Bell signed on 16 August 2019; (j) Witness Statement of Leedham Papertalk signed on 21 August 2019; (k) Witness Statement of Fred Taylor signed on 30 August 2019; and (l) Witness Statement of Daniel Green signed on 13 September 2019.
39 I note that where the material above refers to the “Special Proceeding Area”, that is a reference to the “Separate Proceeding Area” identified in Barker J’s orders.
40 Representatives of the State also met with Dr John Morton and legal representatives of the Yamatji Nation applicant on 26 February 2019, 16 April 2019 and 31 October 2019 to discuss specific issues arising from the connection material.
41 The summary which I set out below, and which I accept as reflecting the material considered by and made available to the State, and which formed the basis of its agreement to a consent determination, is drawn from the Joint Submissions, which in turn refer back to that material.
The native title holders
42 People within the claim group today may identify as Yamatji, meaning “Aboriginal person”, but may also continue to identify as Amangu, Badimia, Wilunyu, Naanhagardi, Naaguja, Nanda, Mullewa Wadjari, Wajarri, Wattandee, Widi and Wilinyu. One of the consequences of the adaption of traditional law and custom to European occupation, recognised by Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 52 of 70, A4, 07/02/2020
anthropological opinion, has been a shift from localised estate groups to a regional identifier. The Joint Submissions contend that while ethnographic evidence identified the existence of local estate groups, there was also evidence of a “wider regional cultural and customary-legal system of social networks” which ancestors of the native title holders belonged to. I accept that submission. The Joint Submissions contend, and I accept:
The pre-sovereignty society for native title purposes was the regional society to which the relevant cultural and customary-legal system applied and encompassed the area of the SPA. This view is endorsed by claimants who recognise and accept that they are Yamatji people, who are united and share a wider regional cultural and customary legal system of social networks. (Footnote omitted.)
43 The Yamatji Nation native title holders are defined in the determination made by the Court today as:
(a) Descendants of the following apical ancestors: (i) Ap-barra (Uppaarawa) and Dharriga; (ii) Annie Tira; (iii) Biddie (mother of Fred Carnamah); (iv) Billy and Judy Thompson; (v) Brindy; (vi) Cissie Broad; (vii) Eeranyoo; (viii) Eliza; (ix) Galena; (x) Jane Cotter (mother of Sarah Mabel Bell and Patrick John Bell); (xi) Jane Hunt; (xii) Jibija (Rosie Jones); (xiii) John Yuna Councillor; (xiv) Lizzy Flynn; (xv) Mary Gingina; (xvi) Mary Nundie; (xvii) Nellie; (xviii) Noogy (grandmother of Minnie Campbell); Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 53 of 70, A4, 07/02/2020
(xix) Punch; (xx) Rosie (mother of Walter Ninghan); (xxi) Rosie Coleman; (xxii) Sarah Broad; (xxiii) Sarah Feast (Jooldarnoo); (xxiv) Sarah Jane Campbell; (xxv) Shilling; (xxvi) Timothy Benjamin; (xxvii) Uanda; (xxviii)Woondoora; (xxix) Wyoo and Myonda; and (b) who also identify as Yamatji People who are connected under the traditional Yamatji law and customs with the land and waters in the determination area and who are accepted as such by other Yamatji People; (c) alternatively, any other Aboriginal persons who are recognised by Yamatji People as Yamatji and as having had rights in the determination area under traditional Yamatji laws and customs.
44 The term “descendants” is defined to include Aboriginal persons who have been adopted as children or raised (or “grown up”) as part of the family of descendants of those apical ancestors identified in the determination.
45 The apical ancestors were born prior to or within the period of 1850 to 1870, with historical records demonstrating their connection at effective sovereignty to land within the SPA.
46 The Joint Submissions, properly, drew the Court’s attention to the fact that the description of the native title holders in Schedule 5 of the Yamatji Nation determination did not precisely align with the description of those claiming native title in Schedule A of the Yamatji Nation native title determination application. I accept that is so, but also accept the submission that it is nevertheless appropriate for the Court to make a determination in the terms proposed, since there has been extensive additional genealogical/anthropological research undertaken resulting in the variation, and the variation has been agreed to and authorised by the Yamatji Nation claim group. The Joint Submissions also note that no person is excluded by reason of this variation, and that the State has accepted and agreed to the variation. As to the appropriateness Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 54 of 70, A4, 07/02/2020
of the Court accepting variations in such circumstances, see generally Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18] (French J, as his Honour then was).
The connection of the native title holders to the determination area, through their traditional law and custom
47 The Joint Submissions contend, and the Court accepts, that Yamatji Nation People have a longstanding physical association with areas within the SPA occupied by their families, and continue to transmit the knowledge handed to them by their ancestors to younger generations. This is obviously known and accepted by claim group members themselves, and has always been so. It has also been demonstrated, over an extraordinarily long research period of 18 years, to anthropologists, legal representatives and others charged with the task of assisting claimants to put their own knowledge of law and tradition, and connection to their Country, down in writing in a way which is able to satisfy the requirements of the Native Title Act, and to persuade the State to agree to a recognition of Yamatji Nation People’s rights and interests in the determination area.
48 The task has been particularly difficult in the SPA because of the area’s history of European occupation. The Joint Submissions identify the year of 1839 as the time when George Grey travelled south of the Murchison River, noting that the area was “the most thickly populated district of Australia” he had yet seen. Despite this, he recorded no information as to the identity of the people he encountered. The city of Geraldton was established in 1849, and the Joint Submissions describe much of the SPA as “‘opened up’ and settled by Europeans in the 1850s”. The pace of European occupation quickened and by the mid-1860s a number of pastoral stations had been established, and Yamatji Nation lands were being cleared for agriculture.
49 The Joint Submissions note (at [27]), and the Court accepts:
European settlement of the region had a severe impact on the Aboriginal population, due to conflict and the impact of disease. It also impacted upon the landholding system under traditional law and custom, with small localised estates becoming considerably attenuated and evolving into a broader notion of the Country holding group, reflected in these proceedings as the Yamatji Nation. (Footnotes omitted.)
50 Thus, the task of pulling together the kind of evidence required for the State’s agreement under s 87, let alone for a contested hearing, was very substantial indeed. The work of Dr John Morton and Ms Catherine Wohlan in assisting the claimants to present their evidence of connection Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 55 of 70, A4, 07/02/2020
through traditional law and custom is acknowledged by the Court. The Joint Submissions summarise the effect of Dr Morton’s work in the following way (at [41]):
Dr Morton mapped family associations with the SPA, noting that the areas of such association are not discrete and well-bounded but overlap. These current family associations not only reflect traditional associations with Country but also reflect “their lived experience of Country, their movements within it and their relationships to specific places”. These lived experiences of Country also reflect what Sutton refers to as evidence of ‘lawful occupation’ under the traditional system of law and custom. (Footnotes omitted.)
51 Dr Morton’s opinion is that there is continuing observance of law and custom under an ongoing normative system through rules and practices such as site avoidance, totemic and mythological knowledge, beliefs in the water serpent and spirit beings, ancestral spirits, sanctions for damage to or disregard of Country, protocols when visiting sites such as water holes and the belief in the bimara “complex”. bimara is the mythological snake, which is associated with parts of the Irwin River, including a spring at Depot Hill, Noondemarra Pool to the west of the Mullewa, Greys Beach in Geraldton and Ellendale Pool to the south-east of Geraldton.
52 Participation in law meetings continues for some native title holders, usually outside the SPA, although there are law grounds within the SPA which are described as being “in remission” and which could be opened. The Mullewa law ground was used as recently as the 1970s and is still looked after by native title holders. The Joint Submissions contend and I accept:
Protocols about access to Country continue to be observed, and beliefs and practices first documented by Augustus Oldfield in 1865 continue to have normative force. In addition, customs about conducting welcome to Country ceremonies continue to play an important part of demonstrating association to Country. For example, claimants associated with various parts of Country and with responsibility to that Country continue to conduct welcome to Country ceremonies in areas that they speak of their association with. (Footnote omitted.)
53 Through the Joint Submissions, many examples have been given of the connection of the native title holders with areas in the Yamatji Nation determination area, and with specific sites in that area.
54 One of the aspects of knowledge shared with Dr Morton relates to knowledge about resources available on Country, and about hunting and fishing practices. Not only is there ample knowledge about these matters, but further, it demonstrates that traditional food preparation and medicinal practices continue amongst the native title holders. Examples of this knowledge and those practices are set out at [53] of the Joint Submissions: Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 56 of 70, A4, 07/02/2020
Claimants also provided extensive evidence of hunting, fishing, and taking of resources from Country. Dr Morton provided a representative sample of this, which is in no way intended to be exhaustive and is not ordered with reference to importance or priority: a. Trevor Moocher (at Willigulli): ‘Limestone bigurda [hill kangaroo/euro], that’s all we talk about in the Councillor family – [we] grew up on it’. Coronation has a flat reef, for shellfish collection. Get crayfish. b. Shirley McMahon (at Bowes): ‘The older people used to clean the water out to clean the river.’ The old Councillors would dig out the mouth of the river so that it could flow into the ocean… Shirley said her mother used to cut river gum trees for digging sticks ‘wanna’. c. Shirley McMahon (near Lynton station): Shirley said there are ‘murrumboos’ here, little berries that look like bush watermelon. d. Karen Whitby: Karen collects bush medicine. ‘I took a special interest in bush medicine when old people passed away. I have started scrapbooking bush medicine.’ e. Lorraine Whitby: Brothers ask her for bush medicine when they get sick. f. David Shane Kelly: David tells us about how the water works on the limestone breakaways, the water would run down and create natural soaks – sometimes water stayed on top of the limestone. g. Eric Oakley: ‘Beachlands [and Geraldton] Reef – [we] could walk out on low tide to get periwinkles [and] get a good feed. … Bullrushes – you can eat the roots.’ (Eric also mentioned fishing and taking crayfish in this context.) h. Wayne Warner: ‘Noondamurra, [we] went there just weeks ago looking for emu eggs. … Kangaroos, goannas – we get that continually. [My] grandkids are familiar with bardi grubs, wild onions and collecting those things. Emu eggs are also down at Beekeepers.’ i. Clarrie Cameron: ‘Nobody eats yawuda (grey kangaroo) – stinking meat. [The] only good meat is malu [red kangaroo]. Nobody wastes time with rubbish [meat]. Where the greys are, that’s our country. Bigurda (euro), wiyadu (wallaby), we get them here and [we do] eat them. Mingenew Hill is where I saw them last. I still got rifles and I take the grannies [grandchildren] out at Sandstone, on my mother’s country. The kids learn about the ‘roos, the lingo [for them], and goannas. We give the excess away to relations, [or to] any old people … who need it.’ j. Leedham Papertalk: The ‘waterfall’ [is a] big meeting place, just outside of Mullewa to the north. As kids, [we’d] go up there and get a feed, get birds, etc. We get the bungarra (good eating ones … lizard that looks like [yellow] tree colour). Them big black ones are no good. Red Kangaroo – we eat. The ‘yawuda/grey kangaroo [is the] stinking kangaroo [and we] don’t eat them. ‘We still cook Kangaroo and emu in the ground, the traditional way. We burn their hair off and put a hole in the ground. We cook the inside of emu – take inside out and fill it with hot rocks. We do the same with Kangaroo and tie it up like a ball. We do the same with the emu too – legs out, up in the air. We rub the Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 57 of 70, A4, 07/02/2020
emu with blood before we cook it, to show respect for the totem. ‘Goodbra’ – cancer bush, bush medicine drink – good for diabetes and cancer. Bulga – bush tobacco. These bush plants are all found around Mullewa. k. Graham Taylor: ‘Carnamah, Arrino, Three Springs … we moved up and down those towns for weekends. We’d kill galahs and bronzewing pigeons and ringneck parrots with slings, but never black cockatoos (no good to eat). We’d stick them in our belts [and] me and my cousins would cook them up. [We also] collected emu eggs, blew them and ate them, [but] gave away [the shell] for carving. [My] uncle took them to Mt Magnet for that.’ l. Rob Ronan: ‘[At] Greenough – heaps of abalone, periwinkles, crayfish and fish. Lots of middens [are] down there. Octopus and loads of types of shellfish. Rob and family would dive for these. … Crayfish – [you] have to dive for these. [You] can stab them with a wooden spear or grab them by hand. To make the spear, you’d have rubber tied around your hand, and a hook on the end or a piece of wire, hold the spear and let go. Was called a Hawaiian spear. [We] also made craypots.’ m. Graham Taylor: On the farm we used to get two different types of yams. One like a carrot with a paperback skin (can be raw or cooked). The other yam was more clear which had a creeper, as big as a potato and skin thin as a potato. Nice and juicy to quench thirst, like a watermelon almost. n. Alfred ‘Patch’ Farrell: Poison Springs, near Mingenew. People used to camp and get water there. [They’d also get] stuff from the trees [and] they’d put it in the water. Emus [would] come to drink the water and [it’d] stun them. [It] wouldn’t affect the kangaroos. Near Eneabba, south of Mingenew [is where we used this] hunting technique.’ o. Tony Farrell: Porcupine – eats the fat. The porcupine points to where you gotta hit him and where you gotta cut him. ‘When we eat him, he cries, you watch where he runs his fingernail down’. Then clean him out, take stomach out – big pot of boiling water. Pour boiling water on him, quills come off – then you shave him. Then they boil for 1 ½ hours and bake him for 2 hours. After that you have to traditionally cut him. Porcupine – have pork, mutton and beef in it. You eat the fat, good for asthma, allergies – has positive medicinal properties. Native hops (purple) – pull up, eat the bottom of the root and boil it up, then drink like tea. Bush medicine for cancer – will take if not feeling well. p. Reg Brockman (at Depot Hill): [Reg] points out a bush, [smells] like rosemary, to use with ‘roo meat. A native. Not sure on the name, but [it] needs to be cooked and dried. [He] also points out a quandong tree [and] then a jam tree [that] kids would get [bimba from]. [You] can make a lot of stuff out of quandongs – boil, fry, make jam or pickle, etc. But they fruit only once a year. … [Reg also showed] a yellow flowered bush: lemon bush – also [what he called] the castor oil bush, [which is] a laxative. q. Reg Brockman, Thomas Cameron, Michael Edwards (at Koolanooka): Different families came here for travelling time and camped. Mallee Fowl trees are very strong – good for tools, spears and boomerangs. There are lots of Mallee Fowl nearby where we turned in, good food. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 58 of 70, A4, 07/02/2020
Reg describes the water in the area, the rock hole nearby, during winter time. Reg says: ‘We used to burn back at the right time of year so that when the first rain comes, the animals would eat the green shoots.’ Reg’s dad, Lionel, almost lived in the bush his whole life and burnt the Country at the ‘right’ time. Lionel would tell people not to take too many animals, keep water holes clean, you had to leave enough animals for the next people coming along…. I come out here when I get a chance and takes adult children and kids – about 50-60 people out on Country. Koolanooka Hill – good for Mallee Fowl. Reg saw lots of Mallee Fowl nests on top of that. Snake wood and Kurara wood in the area was used for fires and tools, spears, shields and boomerangs. r. Rob Ronan (at a native well near Geraldton): A place … where Rob got some bush medicine once. It comes out of the soil. You make a fire in the cave, and it comes out of the soil. It seeps out and then [it gets hard] like bone …. You’d eat it [as] it’s a type of bush medicine. [The] Afghans would trade for it, from far inland around Mullewa. You can find it in the caves around the hills here. [It is] perhaps petrified shit from the little kangaroo rats, but not sure. [It’s] like a general medicine. Another bush medicine is the murrin bush. [It] grows everywhere around Geraldton. (Original emphasis and footnote omitted.)
55 Widi Mob People gave evidence of the same kind of knowledge and practices. Shirley Anne McPherson described how her Widi family would take her out hunting for kangaroo, rabbits and bush turkeys, and how they would go camping on Widi Country, particularly out from Morawa, and up around Yalgoo.
56 There is considerable detail set out in the Joint Submissions about the knowledge of Yamatji People about the fauna and flora found on their Country, and its uses. Paragraph 52 of the Joint Submissions sets out some of this knowledge:
Claimants’ evidence of the use of flora and fauna used by the group identified: a. Mangarda, or Jam Tree, has an edible gum called Bimba. b. Ajico, or bush potato, grow in 3 to 4 feet of earth and in a straight line, getting thicker at the buried end. The stalk is a leafy vine that will attach itself to a host tree. The leaves of this vine eventually get wider and a flower blooms on the vine. The flower becomes puffy and full of water. The flowers bloom in spring and can be eaten, as a snack, straight off the vine. c. Agurda, or bush potato, grows in rocky country and has a very shallow root system. It is similar in taste to the Ajico. The root grows in a snake like fashion, seeking out the looser soil and changing direction when it comes into contact with hard rock. The stalk is a leafy vine somewhat like that of the Ajico. d. Matha, bush carrot/turnip, grows in the sand plain country. It has an edible root that grows as a sectioned red bulb. The stem consists of flat Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 59 of 70, A4, 07/02/2020
green leaves. I was informed that the plant looks like a root but has a hot flavour like that of an onion. Matha would be cooked in the ashes until it turned a reddish colour, the flavour would then be less bitter than if eaten raw. e. Kurlanu, bush onion, has a tall stem and its reddish bulb looks like an onion. f. Korara Trees ripen around September. The seeds are collected and placed in the ashes to roast. Once the seed is cooked, the pod is squeezed with a thumb and the seed pops out and can be eaten. The seed is also ground into a flour before cooking. g. Bulrush are the reed type plants, though no one knows what its name is. The rushes from the middle of the bush are the youngest, and subsequently the freshest and tastiest. The rushes are the best in summer and can cause illness in winter. Snakes also commonly live in the bushes. h. Bottle Brush are the sweetest in spring. The flower is sucked on to extract all the honey and moisture. i. Koonma, Wattle Tree, is ripe around September, the seed is good food like the Korara. j. Bigurda, red (Euro) kangaroo, found in rocky hill country. k. Urudu, grey kangaroo, found in sand plains. l. Wiruu, Tammar wallabies, small grey wallabies found mainly in the thick scrub country and breakaways. m. Bangara, bungarra lizard. n. Palharda, blue-tongue lizard. Its liver is said to be good medicine, and is eaten warm out of the body. o. Gnow, Mallee hen. p. Warla, eggs. q. Citkada, porcupine. The fat is good for keeping hair healthy and making it go curly. r. Almost all of the emu was used when they were hunted. The fat, knee caps, breast plate and gizzards were reserved for elders and senior adults, being the tastiest parts of the emu. The stomach of the emu was typically cleaned out, and the liver, heart, fat, kidney, spleen and lungs would be stuffed inside. The stomach would have a knot tied on the end of it and fastened shut with a sharp stick, then cooked on hot coals. (Original emphasis and footnotes omitted.)
57 In the connection material provided to the State, members of many Yamatji families described sites of significance to them, and to their family, within the SPA, although the examples reproduced in the Joint Submissions are said to be far from exhaustive. The Court accepts each family has its own knowledge and stories. Nevertheless, what is in the Joint Submissions Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 60 of 70, A4, 07/02/2020
should be reproduced in its entirety, because it is important that the Court’s formal reasons reflect in some detail what grounds the connection of the native title holders to their Country:
Members of the Councillor family told of their association with sites around the Northampton district: a. Munjagabbie Hill: There are wild orchids and overhangs with beehives-honeycombs there, on Teakle’s/Box’s properties. Three different gorges [with] lots of wild life – pigs, kangaroos. [We’d] come here to see Davy Dunlop, he was up here with our grandfather [Jack Councillor]. We used to hunt through there. Trevor worked for Teakle’s, 15-16 years on and off. Grandfather worked for the property too. b. Irridgin Pool: This is … one of the deepest pools on Hutt River. Patchy’s father [Sidney Councillor] and Shirley’s father [Daniel Corbett, married to Evelyn Councillor] used to work down there. Pink Lake is where they’d bag salt and Shirley’s father would shoot a ‘roo and salt it there before taking it up to Kalbarri. c. Pink Lakes and Lucky Bay: Salt Lakes to Lucky Bay were always for fishing and camping by the Councillors. It was our country, said our parents. They wouldn’t go there if it wasn’t theirs, that’s how Aboriginal people do things. Junga Dam [south-east of Kalbarri] and across to Balline and Wagoe Ridge. That was all [within] the family’s movement. d. Binnu Rockhole: This was a granite outcrop that contained two holes about 3 metres long and half a metre wide as well as a smaller shallow hole. The rock holes had been partially filled with stones. Glen said he had not been here for about 64 years, when he was a child. Glen’s father worked on a farm in the area and passed by the rockhole when travelling to and from Northampton. Glen’s father had shown him the rockhole during this time. Glen remembers the old people saying that the 3 rock holes represented father, mother and child. The Taylor family, who spoke to associations to [Coorow], Arrino, Carnamah and Three Springs, said: a. Coorow: [When we lived here] we’d travel over to Beekeepers and Lake Indoon [west of Eneabba] to go camping and swimming. Lake Indoon went stagnant at one stage, but it had lots of wildlife – birds, etc. Dad had a block at Eneabba and he’d bring his rifle and get kangaroos. All greys over here. The old ones were too stringy and smelly; we’d leave the does and joeys and aim for the younger males that weren’t so nasty to eat. b. Coorow: [From here] To Latham, Buckley[?] – dad and his relations would travel all around, shearing, clearing, ploughing, piling mallee roots, from Moora right up to Geraldton. Blackfellas were responsible for making the wheat belt. We travelled with mum and dad, and mum would cook for the shearers; so we know our way around. c. Kadathini: [The Aboriginal name for -] Three Springs. The camp was at the footy ground …. Kevin and Phonse [Ildephonsus] grew up near here, when their father [John Taylor] worked on Fred Connaughton’s Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 61 of 70, A4, 07/02/2020
property at Parakalya[?]. Dad was bitten by a snake there and Kevin and Phonse used to go bird hunting a lot – trapping galahs and parrots, which their mother would make into a stew, and collecting mountain duck eggs from their nests in trees. The Brockman family, who spoke to associations to Mingenew, said: a. Little Well: Tony Farrell grew up at the old reserve, known as Little Well, on the outskirts of Mingenew. He comes back to the same area to go camping with his family, kids and grandkids. It’s an area Tony describes as where his ‘heart is’, a place where ‘spirits talk to me, they let me know about the country’. Anita Farrell describes coming back to Little Well as ‘a sense of belonging. Goosebumps’. Thomas Cameron and Tony Farrell described the old people sitting under trees at Little Well Reserve and carving emu eggs. Tony Farrell and Kathy Jacobs spoke of hunting birds and porcupines in the Little Well area, porcupines having certain medicinal benefits in the fat as well as being a meat source. In the same area Kathy showed the yams they collect close to where the camps were, and described gathering bush medicine from what they called the cancer bush. Thomas Cameron brings family back that were taken by the welfare and works with the Shire of Mingenew to protect this area and educate people of the site. b. Depot Hill: Reg Brockman’s father was born at the old camp by Depot Hill. Depot is an area where his family spent a lot of time camping and Reg and his family showed a number of bush resources his family would collect here, including: Karno (bush potato); bimba that they’d collect in jars (a jam-like substance excreted from certain eucalypts); bush rosemary; a succulent with a carrot like root; the quandong tree used for its fruit; a sweet gum tree; sourgrass, the ‘castor oil bush’, which is used like a laxative. They also described many different bird species present in the area, such as 28 (ringneck) parrots, magpies, galahs, grey hawks, and pink-faced white cockatoos. Thomas Cameron described the area as wudaji Country, something which Tony Farrell confirmed by giving an example of a wudaji causing his car to not turn over once stopped at Depot Hill. Thomas said that he knew that the spirits were still here, that he could feel it. The spring at Depot hill is a permanent spring on the Irwin river. It was spoken of by the Brockmans as the only reliable and easily accessible water for miles and one which is associated with the Bimara, the mythological snake, as are other parts of the Irwin river. Reg Brockman mentioned that the bimara further up the Irwin was the same as the one at Depot. He added that he would like to see Depot Hill and its spring registered to look after it. c. Mingenew Hill: There are a number of old people buried at Mingenew Hill and it is also a place associated with spirits. Alfred Farrell, Anita Farrell and Thomas Cameron said that, when Maitland Farrell was buried at Mingenew cemetery, smoke came out of the south side of the hill facing the cemetry [sic]. Thomas Cameron and Reg Brockman also said that they ‘always heard there was a big foot who lived on this hill’, with Thomas stressing that ‘as a kid we’d always walk around the hill but wouldn’t go in the middle’. Anita Farrell also noted that ‘we know the wudajis live here’ and Thomas added that the wudaji from Depot would come over to Mingenew Hill. Alfred Farrell noted that another family group traditionally associated with this area, the Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 62 of 70, A4, 07/02/2020
Dodds, camped at the base of Mingenew hill. At the cemetery south of Mingenew Hill, Anita Farrell stated: ‘this is home for me, my true roots, where all my family come from originally.’ The Papertalk family, who spoke to associations to Mullewa and surrounds, said: a. Mullewa Waterfalls: Mullewa Waterfalls lies on the northern side of Mullewa and is a place Leedham Papertalk called a big traditional meeting place and camp used before people moved into the town. Leedham mentioned that men who had just gone through Law were reunited with family at this place and he recalled his brother being reintroduced to his father there. As children, Leedham and others would go up to the Mullewa Waterfalls and ‘get a feed’, Leedham noting that he would catch ‘bangara (good eating ones [goannas])’, as opposed to ‘them big black ones [which] are no good.’ He also recalled hunting and eating marlu (red kangaroo), saying also that ‘the ‘yawarda (grey kangaroo) wasn’t eaten because it was a ‘stinky one.’ There is, he said, a traditional way to cook kangaroo and emu: ‘cook the emu in the hole. Hot rocks on the inside of the emu and cook in the ground. Roo, burn the hair off. With the emu, gotta cook it proper way out of respect for the totem.’ Leedham noted that it was different elsewhere, but that’s how he had to do it. Leedham and his family still come up and camp in this area and go hunting nearby. b. Mullewa Ceremonial Grounds: To the east of Mullewa are ceremonial grounds which were used up until the late 1970s. Leedham Papertalk spoke of a Law ground for men and a separate ground nearby that women could access for meetings. These sites are protected and Leedham works with the Shire and others to ensure these areas are avoided. In addition, Roslyn Flanagan recalls attending corroborees at the Mullewa Commons with the men singing and her dancing whenever she was allowed. Roslyn recalls that ‘sometimes [we] had [to have] blankets over our heads till it was time we could watch.’ Today Roslyn speaks of funerals as the time when families get together and recall these stories and let the kids know about them. Robert Flanagan, Malcolm Papertalk and Leedham Papertalk have also spoken about regions to the south of Mullewa on the road to Mingenew, including Peterwanggy Hill (an old meeting place) and the Canna Law Grounds, as well as the hunting area and bimara site at Noondemarra Pool, to the west of Mullewa, and numerous other bimara sites along the upper Irwin region. Leedham warned that if you ‘disrespect the bimara … he’ll kill you slowly.’ The Ronan family, who spoke to associations to around the township of Geraldton spoke of an important old camp and soak where the Geraldton Bowling Club is today: a. To the east and north of this camp was the camping area known as Blood Alley, one of the old unofficial sites where many of the Geraldton Aboriginal families lived on the outskirts of town. It gained its name because it was known as a fighting place, where people would resolve their differences in a traditional manner. Out towards the Geraldton lighthouse, near Greys Beach, was another soak which had good water and is a bimara site. South of Greys along the coast and on the edge of the township of Geraldton is Greenough Beach, and it is here that Rob [Ronan] spoke of collecting abalone, periwinkles, crayfish, octopus, and different types of shellfish and fish. On the north Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 63 of 70, A4, 07/02/2020
side of the Greenough River, Rob showed an old native well where fresh water can be exposed by digging. It is also a place he had collected bush medicine. He also spoke of the middens around Greenough and that he could sense the old people at these places. Heading east from Greenough, along the Greenough river, Rob spoke of another major bimara site to the southeast of Geraldton, known as Ellendale Pool, which he also described as a wudaji site. North of Geraldton, on the outskirts of town, Rob are Coronation Beach and Royce’s Farm – old massacre sites where Rob said he could hear the spirits of people crying. Although not forming part of the connection materials, Widi Mob claimants during mediation spoke of their families’ (the McPhersons and Mullalleys) association with sites and stories in the Mingenew, Yandanooka Hills, Morawa, Perenjori, Kadji Kadji and Karara areas. Indeed, one member of the Applicant for Widi Mob, a member of the Martin family named his daughter ‘Karara’ after an area that he is associated with. The above examples are in no way exhaustive of the degree of materials and evidence that have been provided by claimants over the duration of the native title process. Each family have their own stories and experiences about their association with Country and relationship to other families within the SPA. (Original emphasis and footnotes omitted.)
58 Finally, the Yamatji Nation applicant provided evidence of occupation of certain areas of the SPA, for the purposes of engaging s 47B of the Native Title Act. This evidence is summarised in [58]-[62] of the Joint Submissions:
Mr Hodder, a descendant of the apical ancestor Jibija, states that three generations of his family worked on Barnong Station (in the north-eastern area of the SPA), his grandfather, his uncles and Mr Hodder himself. Whilst Mr Hodder no longer works there, he estimates he visits Country at Barnong and camps there at least twice a month, hunting and taking resources and caring for Country. Mr Taylor, a senior man and Applicant on the Yamatji Nation claim, and descendant of the apical ancestor Mary Gingina, gives evidence of transmission of knowledge passed to him as a child by his father and uncles with respect to traditional hunting and cooking practices to his children, and of continuing trips to Country with his sons to undertake these activities. Mr Papertalk is a senior elder, also an Applicant on the Yamatji Nation claim, and a descendant of the apical ancestor pair Dharringa and Ap-barra, who takes his children and grandchildren out to the Wandana area (in the mid-northern boundary of the SPA) on daytrips retracing the footsteps of our ancestors. He takes the children to ensure that culture is still being practiced, and for bush tucker and hunting. Mr Green is a younger member of the Yamatji Nation claim group who gives evidence of his continuing traditional use of the Kadji Kadji area, which is in the centre of the SPA. He states that this was his father’s grandmother’s Country, and he takes his children out to show them this Country and where to get bush food. There are trees for making fighting sticks and bush medicine in the Kadji Kadji area. Mr Green was taught about Country and how to hunt and cook bush food by his uncle and older brother. Mr Bell gives evidence about Reserve 28607 which is on the mid-southern boundary of the Yamatji Nation claim. Mr Bell is a descendant of the apical ancestor Uanda, who Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 64 of 70, A4, 07/02/2020
teaches his grandchildren stories that were passed down to him from his ancestors, and about totems and spirits. He visits the Reserve area two to three times a year, collecting sandalwood for smoking ceremonies, hunting and cooking kangaroo in the traditional way, looking for emu eggs and collecting bush medicines and bush tucker. (Original emphasis and footnotes omitted.)
59 The State has accepted the preconditions to the engagement of s 47B are met, and the Court agrees on the evidence and submissions before it that the State has a reasonable basis for that acceptance.
60 There is ample material on which the State could base its agreement to the recognition of native title in the Yamatji Nation claim, and ample material on which the Court can form a view that it is appropriate that such a determination be made.
The applicable requirements of s 87
61 I am satisfied the orders sought are consistent with the terms of the parties’ agreement as reflected in the proposed determination, and are within the Court’s power to pronounce.
Whether it is appropriate to make the orders sought (s 87(1A))
62 I set out my approach to the question of “appropriateness” and the Court’s function in the recent consent determination reasons relating to the Nanda People: see Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56], by reference to earlier authorities. I adopt those observations here.
63 In previous decisions, I have also described the important role of the State in agreeing to a consent determination under s 87 of the Native Title Act (or indeed under s 87A). The State’s public responsibility is to ensure any agreement made under s 87 or s 87A is one which is in the interests of the community it represents. That community includes the Indigenous peoples of the State, and their particular interest in seeing the objects and purposes of the Native Title Act are achieved, so that the following intentions set out in the preamble to the Act can be acted upon:
The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 65 of 70, A4, 07/02/2020
rights and interests, and their rich and diverse culture, fully entitle them to aspire.
64 The community which the State represents is, of course, a broad one and includes non- Indigenous people, some of whom have their own proprietary rights and interests in the determination area. There are also what might be described as governmental and infrastructure interests of a proprietary nature which must be considered and may need to be accommodated, as the complex scheme of the Native Title Act contemplates. The State must weigh all these factors in reaching a position on an agreement for the purposes of s 87 or s 87A.
65 Thus, the State’s responsibility is to satisfy itself there is a sufficient basis for concluding that the proposed determination is capable of meeting the requirements of s 225 of the Native Title Act. The way in which the State satisfies itself of that matter may vary considerably from case to case. As the history to which I have referred earlier in these reasons demonstrates, in some circumstances it may take a long time, with some challenging issues to be resolved along the way. No minimum requirements of proof can or should be set out. If the State embarks on such a course, and ultimately agrees to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis the State has made a reasonable and rational assessment of the material to which it has been given access.
66 On this application, the Joint Submissions note the satisfaction of the State about the connection material in the following terms:
Following consideration and assessment of the connection material, the First Respondent was satisfied that there is a credible and cogent basis upon which to conclude that: a. the current claimants are descended from apical ancestors who were connected to the SPA at or around the time of effective sovereignty in the region; b. those apical ancestors acknowledged and observed a body of laws and customs in relation to land and waters which, whilst not uniform, were largely replicated across the various language groups in the SPA to which those apicals belonged and which comprised the relevant society; c. over time the label “Yamatji” has come to be used as the label collectively attributed to the people in the SPA acknowledging and observing those laws and customs; and d. those laws and customs, whilst attenuated and adapted following the impact of white settlement, have continued to be observed to the present day by the descendants of the apical ancestors who now identify as “Yamatji” people, and comprise the contemporary society for native title purposes. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 66 of 70, A4, 07/02/2020
(Footnotes omitted.)
67 One material aspect of the present application relates to tenure within the SPA, and thus to the terms of the agreement reached between the parties. A full tenure search of the SPA would have taken, on the State’s estimates, about 5.5 years and would have cost more than $6.5 million. Instead, and sensibly, the State carried out a tenure search current as at 31 July 2014. This search identified 36,614 freehold interests out of a total of 51,143 total land tenure interests in the SPA. The State also conducted searches of land tenure, mining and petroleum registries to determine the extent of “other interests” within the proposed determination area, and those interests are included in Schedule 7 of the determination. The parties submitted, and I accept, that given the early occupation of the region by Europeans, a high proportion of the freehold interests identified in the July 2014 current tenure search by the State would have been granted prior to 31 October 1975. The Yamatji Nation applicant and the State therefore agree and submit that native title rights and interests have been extinguished over the majority of the SPA. The Joint Submissions state:
The tenure position reflected in the Yamatji Nation Minute therefore represents a compromise that has been agreed between the Applicant and the First Respondent for the purposes of settlement.
68 I accept the State has carried out its responsibilities carefully and thoroughly, which supports the conclusion that it is appropriate to make the determination sought by the parties. Specifically, the parties appear to have reached a considered position about the high level of extinguishment in the determination area, which appears to be reflected in the parties’ agreement to a negative determination, as well as a positive determination.
Nomination of a prescribed body corporate
69 There is an existing prescribed body corporate, Bundi Yamatji Aboriginal Corporation (ICN 9213), which it has been agreed shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act. There will be an order to that effect.
A late, competing, native title application
70 On 20 January 2020, a native title determination application pursuant to s 61 of the Native Title Act was filed on behalf of a claim group called the Badimaya Barna Guda. The persons comprising the Badimaya Barna Guda applicant are Adrian Lawson, Yvonne Lawson and Godfrey Simpson. The extent of the persons who comprise the claim group is somewhat unclear. Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 67 of 70, A4, 07/02/2020
71 The Badimaya Barna Guda claim area comprises two separate areas of land. Significantly for the present application, one of those areas of land partially but substantially overlaps with the Yamatji Nation claim, and also the claim areas in WAD 21 of 2019 Mullewa Wadjari, WAD 19 of 2019 Southern Yamatji and WAD 31 of 2019 Widi Mob. There are parts of the first area to the north and south which are outside the Yamatji Nation determination area. The second area of land is to the north-east of that overlapping area, south of the town of Meekatharra. The second area of land does not overlap with the Yamatji Nation claim or any of the underlying proceedings.
72 The lead applicant in the Badimaya Barna Guda claim, Mr Adrian Lawson, was joined as a respondent party to WAD 31 of 2019 Widi Mob on 16 October 2019. The joinder order was made following the filing of an interlocutory application by Mr Lawson in which he asserted that the area claimed in the Widi Mob application was in fact Badimia country. The notes to that joinder order relevantly stated:
1. Adrian Lawson contends he should be joined as a respondent party to the proceeding as he wishes to protect his interest as a Badimia person in what he asserts is Badimia country. 2. The parties do not object to Adrian Lawson being joined as a respondent party on the basis that Mr Lawson is a descendant of an ancestor in WAD345/2019 Yamatji Nation which wholly overlaps the proceeding.
73 The First Song Affidavit states at [5] that on 20 January 2020, the same day on which the Badimaya Barna Guda application was filed, Mr Lawson informed the SSO that he did not consent to the proposed determination filed in the Yamatji Nation proceeding.
74 Following this, on 24 January 2020, two interlocutory applications were filed:
(a) an application by the applicant in the Widi Mob proceeding seeking to remove a number of parties, including Mr Lawson, as respondents to the proceeding; and (b) an application by the Yamatji Nation applicant in the Badimaya Barna Guda proceeding seeking: (i) joinder of the Yamatji Nation applicant as a respondent to the Badimaya Barna Guda proceeding; (ii) dismissal of the Badimaya Barna Guda proceeding on the ground of abuse of process due to the lateness of the application; and Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 68 of 70, A4, 07/02/2020
(iii) further or alternatively to (ii) above, summary dismissal of the Badimaya Barna Guda proceeding on the grounds that the applicant has no reasonable prospects of successfully prosecuting the proceeding, that the proceeding is vexatious and/or that it is an abuse of process.
75 Both of these applications were intended to enable the proposed consent determination to proceed, despite, first, Mr Lawson’s objection as a respondent in the Widi Mob proceeding, and second, his lodgement as a member of the applicant of the Badimaya Barna Guda application.
76 Given the timing of the filing of the Badimaya Barna Guda application and its potential impact on the feasibility of maintaining the 7 February 2020 date for the Yamatji Nation consent determination, on 28 January 2020 I convened by telephone urgent case management hearings in the Badimaya Barna Guda proceeding, the Yamatji Nation proceeding and the four underlying proceedings. All members of the Badimaya Barna Guda applicant were present at the hearing and responded to questions from the Court pertaining to their native title application. Primarily, Mr Lawson spoke for the Badimaya Barna Guda applicant, and the other two members of the applicant permitted him to do so.
77 The following relevant orders were made by the Court on 28 January 2020:
(a) an order pursuant to s 84(5) of the Native Title Act joining the Yamatji Nation applicant as a respondent to the Badimaya Barna Guda proceeding; (b) an order pursuant to s 67 of the Native Title Act dividing the Badimaya Barna Guda application into two separate proceedings: (i) “Part A”, being the part of the Badimaya Barna Guda application area which overlaps with the Yamatji Nation claim area and the claim areas in three of the underlying proceedings; and (ii) “Part B”, being the remainder of the land and waters claimed in the Badimaya Barna Guda application. (c) an order requiring the Badimaya Barna Guda applicant to show cause why Part A of the application should not be dismissed on the grounds of lateness and unreasonable delay in bringing the application; (d) an order listing the “show cause” application for hearing in Perth on 6 February 2020; Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 69 of 70, A4, 07/02/2020
(e) an order adjourning the interlocutory application to remove Adrian Lawson as a respondent to WAD 31 of 2019 Widi Mob to 6 February 2020; and (f) an order adjourning Part B of the Badimaya Barna Guda application to a date to be fixed after the end of the notification period.
78 It was agreed at the case management hearing on 28 January 2020 that the hearing on 6 February 2020 would deal only with the “lateness” ground of the Yamatji Nation applicant’s interlocutory application in the Badimaya Barna Guda proceeding. An order was made adjourning the remainder of that interlocutory application (being the summary dismissal ground) pending the Court’s determination on 6 February 2020.
79 I also indicated that the Court would deliver its reasons in relation to the interlocutory applications in the Badimaya Barna Guda proceeding and the Widi Mob proceeding at the conclusion of the hearing on 6 February 2020. Those reasons have been published separately.
CONCLUSION
80 Every determination that native title exists is important. The recognition given by a determination of native title, for those who have long been denied any recognition by Australian law of their deep and abiding connection to their Country, is a step in the struggle of Aboriginal and Torres Strait Islander peoples to regain what was taken away from them, and to make their own choices as to the terms of a negotiation about their native title.
81 This particular determination might be said to have special significance: because of the widespread physical dispossession of the people of the Yamatji Nation from their lands; because of the complexity and challenges of the negotiations; because Yamatji Nation People have – through the Traditional Owner Negotiation Team – truly driven the direction of the negotiations; and because of the unity shown by all groups within the Yamatji Nation to a future that is shared, with strength and pride, between them as a single people united by a system of traditional law and custom which continues, and to which they are so obviously committed to protecting and nurturing.
82 All participants are to be congratulated on securing the orders made by the Court today.
Schedule Extract attachment: WAD21/2019 (WC1996/093) Yamatji Nation Determination Page 70 of 70, A4, 07/02/2020
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Associate:
Dated: 7 February 2020