Smirke on behalf of the Jurruru People v State of Western Australia (No 4)
[2022] FCA 993
•26 August 2022
FEDERAL COURT OF AUSTRALIA
Smirke on behalf of the Jurruru People v State of Western Australia (No 4) [2022] FCA 993
File number(s): WAD 490 of 2016
WAD 537 of 2018
WAD 538 of 2018Judgment of: MORTIMER J Date of judgment: 26 August 2022 Catchwords: NATIVE TITLE – consent determination – where determination made on the basis of mediation following a contested determination of a separate question – where nominated prescribed body corporate differs from that determined to hold similar native title on behalf of a similar, but not identical, common law native title holding group Legislation: Federal Court of Australia Act 1976 (Cth), ss 22, 37M, 37N
Native Title Act 1993 (Cth), ss 13(1)(a), 56(2), 57(2), 67(1), 68, 84D(4), 87, 94A, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), r 11
Cases cited: Commonwealth v Clifton [2007] FCAFC 90; 164 FCR 335
Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510
Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849
Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; 276 FCR 203
Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497
Freddie v Northern Territory [2017] FCA 867
Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365
Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801
Jurruru People v State of Western Australia [2012] FCA 2
Lander v State of South Australia [2012] FCA 427
Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Moses v Western Australia [2007] FCAFC 148; 160 FCR 148
Mouda on behalf of Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233
Peterson v State of Western Australia [2013] FCA 518
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939
Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42
Thudgari People v State of Western Australia [2009] FCA 1334
Ward v State of Western Australia [2006] FCA 1848
Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 59 Date of hearing: 26 August 2022 Counsel for the applicant in WAD537/2018 and WAD538/2018: Stephen Wright SC Solicitor for the applicant in WAD537/2019 and WAD538/2018: Yamatji Marlpa Aboriginal Corporation Counsel for the applicant in WAD490/2016, the twelfth to fifteenth respondents in WAD537/2018 and the tenth to thirteenth respondents in WAD538/2018: Tina Jowett Solicitor for the applicant in WAD490/2016, the twelfth to fifteenth respondents in WAD537/2018 and the tenth to thirteenth respondents in WAD538/2018: Cross Country Native Title Services Counsel for the first respondent in each proceeding: Griff Ranson SC Solicitor for the first respondent in each proceeding: State Solicitor’s Office ORDERS
WAD 537 of 2018 BETWEEN: IVAN SMIRKE, ALEC ALEXANDER AND KELLMAN LIMERICK
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondents
WAD 538 of 2018 BETWEEN: IVAN SMIRKE, ALEC ALEXANDER AND KELLMAN LIMERICK
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondents
WAD 490 of 2016 BETWEEN: ROY TOMMY, NANCY TOMMY, MARY MILLS & ANOR
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondents
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
26 AUGUST 2022
THE COURT NOTES THAT:
A.Pursuant to s 87(1) of the Native Title Act 1993 (Cth), the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title.
B.The Minute is in relation to an area covered by the entirety of the applications WAD 490 of 2016 and WAD 538 of 2018 (formerly WAD327/2012) and the balance of application WAD 537 of 2018 (formerly WAD6007/2000) (together, the Determination Area).
C.The Minute reflects the Court’s findings in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 and Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122, and also gives effect to agreements subsequently reached by the parties in mediation and after further compromise following mediation.
D.The terms of the agreement involve the making of consent orders for a determination of native title pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.
E.The parties acknowledge that the effect of the making of the determination is that the members of the native title claim groups, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination.
BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:
THE COURT ORDERS THAT:
1.There be a determination of native title in the terms proposed in these orders, despite any actual or arguable defect in the authorisation of the applicant in WAD 490 of 2016 to seek and agree to a consent determination pursuant to s 87 of the Native Title Act 1993 (Cth).
BY CONSENT THE COURT ORDERS THAT:
1.Pursuant to subsection 67(1) of the Native Title Act 1993 (Cth), proceedings WAD 490 of 2016, WAD 537 of 2018 and WAD 538 of 2018 be determined together.
2.In relation to the Determination Area, there be a determination of native title in WAD 490 of 2016, WAD 537 of 2018 and WAD 538 of 2018 in the terms provided for in Attachment A (‘the determination’).
3.In respect of the Yinhawangka Area (as defined in paragraph 14 of the determination), the Gobawarrah Yinhawangka Aboriginal Corporation (ICN 9813) shall hold the determined Yinhawangka native title in trust for the Yinhawangka People pursuant to section 56(2)(b) of the Native Title Act1993 (Cth).
4.In respect of the Jurruru Area (as defined in paragraph 14 of the determination), the Jurruru Aboriginal Corporation RNTBC (ICN 8251) shall hold the determined Jurruru native title in trust for the Jurruru People pursuant to section 56(2)(b) of the Native Title Act1993 (Cth).
5.In respect of the Overlap Area (as defined in paragraph 14 of the determination), the Gobawarrah Yinhawangka Aboriginal Corporation (ICN 9813) shall hold the determined Yinhawangka native title in trust for the Yinhawangka People pursuant to section 56(2)(b) of the Native Title Act1993 (Cth) and the Jurruru Aboriginal Corporation RNTBC (ICN 8251) shall hold the determined Jurruru native title in trust for the Jurruru People pursuant to section 56(2)(b) of the Native Title Act1993 (Cth).
6.Within 28 days of the Agreement, which forms Schedule Seven to the determination, being executed by the Gobawarrah Yinhawangka Aboriginal Corporation (ICN 9813) and the Jurruru Aboriginal Corporation RNTBC (ICN 8251), the Gobawarrah Yinhawangka Aboriginal Corporation (ICN 9813) shall file and serve a document notifying the Court and parties of that fact.
7.Order 5 of these Orders and paragraph 5 of the determination shall not take effect unless and until the notice in Order 6 has been filed.
8.In the event the Agreement referred to in Order 6 has not been executed within 6 months of the date of these Orders, or such later time as this Court may order, the matter is to be listed for further directions.
9.Subject to Order 10, there be no order as to costs.
10.The question of costs against Yamatji Marlpa Aboriginal Corporation (ICN 2001) in WAD 490 of 2016, WAD 537 of 2018 and WAD 538 of 2018 be reserved, subject to the filing of the interlocutory application(s) contemplated by the order of Mortimer J dated 24 February 2022 in proceeding WAD 490 of 2016.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ATTACHMENT A
DETERMINATION
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
Existence of native title: section 225 Native Title Act
1.Subject to paragraph 2, Jurruru native title and Yinhawangka native title exist in the Determination Area in the manner set out in paragraphs 6 and 7 of this determination.
2.No native title exists in those parts of the Determination Area that are identified in Schedule Three.
Native title holders: section 225(a) Native Title Act
3.In the Yinhawangka Area, Yinhawangka native title is held by the Yinhawangka People.
4.In the Jurruru Area, Jurruru native title is held by the Jurruru People.
5.In the Overlap Area:
(a)Yinhawangka native title is held by the Yinhawangka People; and
(b)Jurruru native title is held by the Jurruru People.
The nature and extent of native title rights and interests: sections 225(b) and 225(e) Native Title Act
6.Subject to paragraphs 2, 8, 9, 10 and 13, the nature and extent of the Yinhawangka native title in relation to the Yinhawangka Area and the Overlap Area is that it confers the following non-exclusive rights, including the right to conduct activities necessary to give effect to them, on the Yinhawangka People:
(a)the right to live, being to enter and remain on the land, to camp and erect shelters and other structures for that purpose, and travel over and visit any part of the land and waters;
(b)the right to hunt, fish, gather, take and use the traditional resources;
(c)the right to take and use water;
(d)the right to engage in cultural activities and the transmission of cultural knowledge, including:
(i)visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and
(ii)conducting ceremony and ritual, including burial and burial rites; and
(e)the right to be accompanied by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right, are:
(i)spouses, parents or children of the native title holders; or
(ii)people required by or entering in connection with traditional law and custom for the performance of ceremonies or cultural activities.
7.Subject to paragraphs 2, 8, 9, 10 and 13, the nature and extent of the Jurruru native title in relation to the Jurruru Area and the Overlap Area is that it confers the following non-exclusive rights, including the right to conduct activities necessary to give effect to them, on the Jurruru People:
(a)the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters;
(b)the right to hunt, fish, gather, take and use the traditional resources;
(c)the right to take and use water;
(d)the right to engage in cultural activities, including:
(i)visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and
(ii)conducting ceremony and ritual; and
(e)the right to be accompanied by those people who, though not Jurruru People, are:
(i)spouses, parents or descendant of one or more Jurruru person; or
(ii)people required by traditional law and custom for the performance of ceremonies or cultural activities.
Qualifications on the native title rights and interests
8.The 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 Yinhawangka People and/or the Jurruru People (as the case may be) for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).
9.Notwithstanding anything in this determination, there are no native title rights and interests in the Determination Area in relation to:
(a)minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA), except to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA);
(b)petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);
(c)geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
(d)water lawfully captured by the holders of the Other Interests.
10.The native title rights and interests set out in paragraphs 6 and 7 do not confer:
(a)possession, occupation, use and enjoyment on the Yinhawangka People or the Jurruru People to the exclusion of all others; or
(b)a right to control access to, or use of, the land and waters of the Determination Area or its resources.
Areas to which ss 47, 47A or 47B of the Native Title Act applies
11.For the avoidance of doubt, sections 47, 47A and 47B of the Native Title Act do not apply to disregard any prior extinguishment in relation to the Determination Area.
The nature and extent of any Other Interests
12.The nature and extent of the Other Interests are described in Schedule Four.
Relationship between native title rights and Other Interests
13.Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 6 and 7 and the Other Interests is that:
(a)to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of 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 otherwise,
(b)the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.
Definitions and Interpretation
14.In this determination, unless the contrary intention appears:
"Determination Area" means the land and waters described in Part 1 of Schedule One and depicted on the map at Schedule Two;
"Jurruru Area" means the land and waters depicted with a green hatch pattern in the map at Schedule Two;
"Jurruru People" means the people described in Schedule Six;
"land" has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of "waters";
"Native Title Act" means the Native Title Act 1993 (Cth);
"Other Interests" means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Four and referred to in paragraph 12;
"Overlap Area" means the land and waters described in Part 2 of Schedule One and depicted by way of a blue cross-hatch pattern in the map at Schedule Two;
"resources" means flora, fauna, and other natural resources such as charcoal, stone, soil, sand, clay, gravel, timber, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant to the Mining Act 1904 (WA) (repealed));
"Titles Validation Act" means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);
"use" does not include use by way of trade;
"waters" has the same meaning as in the Native Title Act;
"Yinhawangka Area" means the land and waters depicted with a purple hatch pattern in the map at Schedule Two; and
"Yinhawangka People" means the people described in Schedule Five.
15.In the event of any inconsistency between the written description of an area in Schedule One, Three or Four and the area as depicted on the map at Schedule Two, the written description prevails.
SCHEDULE ONE
Part 1 – External boundary of the determination area
The Determination Area, generally shown as bordered in blue on the map at Schedule Two, comprises all land and waters bounded by the following description:
All those land and waters commencing at Latitude 23.067387 South, Longitude 117.161894 East being a point on the present boundary of Native Title Determination WAD340/2010 Yinhawangka Part A (WCD2017/003) and extending generally southeasterly along the boundaries of that native title determination to Latitude 23.101992 South, Longitude 117.229480 East being a point on the present boundary of Native Title Determination WAD216/2010 Yinhawangka Part B (WCD2017/003); Then generally southerly and generally southeasterly along the boundaries of that native title determination to Latitude 23.701669 South, Longitude 117.739187 East being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001); Then southwesterly along the boundary of that native title determination to Latitude 23.716124 South being a point on the eastern boundary of Pastoral Lease N049718 (Mininer); Then southwesterly to Latitude 23.727920 South, Longitude 117.694158 East; Then southwesterly to a southern boundary of Pastoral Lease N049718 (Mininer) at Longitude 117.669525 East being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001); Then generally southwesterly along the boundaries of that native title determination to an eastern boundary of Pastoral Lease N050510 (Pingandy) at Latitude 23.835574 South; Then generally southwesterly through the following coordinate points:
LATITUDE (SOUTH) LONGITUDE (EAST) 23.855564 117.459929 23.891595 117.393929 23.924224 117.345668 23.946174 117.304098
Then southwesterly to Latitude 23.952345 South, Longitude 117.294870 East being a point on the present boundary of Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002); Then generally southwesterly, generally northwesterly and generally northerly along the boundaries of the native title determination to Latitude 23.098784 South, Longitude 117.169473 East being a point on the boundary of Native Title Determination WAD126/2005 Puutu Kunti Kurrama and Pinikura 2 (WCD2015/003); Then northwesterly along the boundary of that native title determination 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 October 2021.
For the avoidance of doubt, the Determination Area excludes any land and waters the subject of the following native title determinations:
·Native Title Determination WAD126/2005 Puutu Kunti Kurrama and Pinikura #2 (WCD2015/003) as determined in the Federal Court on 02/09/2015.
·Native Title Determination WAD340/2020 Yinhawangka Part A (WCD2017/003) as determined in the Federal Court on 18/07/2017.
·Native Title Determination WAD216/2010 Yinhawangka Part B (WCD2017/003) as determined in the Federal Court on 18/07/2017.
·Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as determined in the Federal Court on 29/08/2000.
·Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002) as determined in the Federal Court on 01/09/2015.
Datum:Geocentric Datum of Australia 2020 (GDA2020)
Prepared By: Graphic Services (Landgate) 8th November 2021
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 of 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.Part 2 – Description of the overlap area
All those lands and waters commencing at the intersection of an eastern boundary of Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002) with Latitude 23.451864 South and extending northeasterly along the boundary of that native title determination to Latitude 23.389912 South; Then generally southeasterly through the following coordinate points:
LATITUDE
(SOUTH)LONGITUDE
(EAST)23.390572 117.154045 23.390601 117.154151 23.390636 117.154256 23.390677 117.154358 23.390723 117.154457 23.390774 117.154553 23.390829 117.154646 23.390890 117.154736 23.392146 117.156483 23.392216 117.156575 23.392292 117.156662 23.392372 117.156744 23.393792 117.158109 23.393869 117.158179 23.393949 117.158245 23.394033 117.158305 23.394120 117.158360 23.394210 117.158410 23.394302 117.158455 23.394396 117.158493 23.394492 117.158527 23.397822 117.159564 23.397922 117.159592 23.398024 117.159613 23.398126 117.159629 23.398229 117.159638 23.398332 117.159640 23.398436 117.159636 23.400785 117.159472 23.400896 117.159461 23.401007 117.159442 23.401116 117.159416 23.401224 117.159382 23.401329 117.159341 23.401432 117.159293 23.401529 117.159240 23.401532 117.159239 23.401628 117.159178 23.401721 117.159110 23.401810 117.159037 23.401894 117.158957 23.402517 117.158335 23.402536 117.158445 23.402692 117.160316 23.402705 117.160434 23.402725 117.160551 23.402751 117.160667 23.402784 117.160781 23.402823 117.160892 23.402868 117.161001 23.402920 117.161106 23.404501 117.164124 23.404596 117.167516 23.404602 117.167624 23.404613 117.167733 23.404630 117.167840 23.404653 117.167946 23.404681 117.168051 23.404714 117.168154 23.405697 117.170940 23.405739 117.171048 23.405786 117.171153 23.405840 117.171255 23.405898 117.171353 23.405962 117.171447 23.406031 117.171537 23.406105 117.171623 23.406184 117.171703 23.406267 117.171778 23.406353 117.171848 23.406444 117.171912 23.406538 117.171970 23.408459 117.173074 23.409722 117.174525 23.409733 117.174537 23.410971 117.175991 23.411048 117.176076 23.411129 117.176155 23.411215 117.176229 23.411305 117.176298 23.411398 117.176360 23.411494 117.176416 23.411594 117.176466 23.411696 117.176509 23.411801 117.176545 23.411907 117.176574 23.412015 117.176596 23.412123 117.176611 23.412233 117.176619 23.412342 117.176620 23.412452 117.176614 23.412561 117.176600 23.412669 117.176579 23.412775 117.176551 23.414249 117.176114 23.414358 117.176078 23.414464 117.176035 23.414567 117.175984 23.414667 117.175927 23.414764 117.175863 23.414857 117.175792 23.414946 117.175715 23.415029 117.175633 23.415108 117.175544 23.415182 117.175451 23.415250 117.175353 23.415313 117.175250 23.415369 117.175143 23.415419 117.175033 23.415462 117.174919 23.415499 117.174803 23.415529 117.174685 23.415748 117.173702 23.415762 117.173629 23.416308 117.170680 23.416325 117.170573 23.416337 117.170464 23.416406 117.169595 23.416507 117.169619 23.417082 117.170019 23.417764 117.171462 23.418137 117.172386 23.418196 117.172666 23.418164 117.172765 23.418138 117.172867 23.418116 117.172970 23.418100 117.173074 23.417982 117.173965 23.417831 117.174504 23.417803 117.174617 23.417781 117.174731 23.417766 117.174847 23.417756 117.174964 23.417754 117.175081 23.417757 117.175197 23.417767 117.175314 23.417784 117.175429 23.417807 117.175544 23.417836 117.175656 23.417871 117.175767 23.418063 117.176314 23.418104 117.176422 23.418152 117.176528 23.418205 117.176630 23.418264 117.176729 23.418328 117.176824 23.418397 117.176914 23.418998 117.177651 23.419076 117.177741 23.419159 117.177826 23.419247 117.177905 23.420214 117.178714 23.420553 117.179222 23.420614 117.179308 23.420679 117.179390 23.420748 117.179468 23.420821 117.179542 23.420898 117.179612 23.420978 117.179677 23.421061 117.179737 23.421594 117.180096 23.421697 117.180355 23.421738 117.180451 23.421784 117.180544 23.421834 117.180634 23.421889 117.180721 23.421948 117.180804 23.422657 117.181760 23.422723 117.181843 23.422793 117.181923 23.422866 117.181998 23.422944 117.182068 23.423708 117.182723 23.423784 117.182784 23.423862 117.182841 23.423943 117.182894 23.424026 117.182941 23.424112 117.182984 23.424552 117.183191 23.424785 117.183521 23.424857 117.183617 23.424934 117.183708 23.425017 117.183793 23.425104 117.183873 23.425196 117.183946 23.425292 117.184013 23.425392 117.184073 23.425494 117.184126 23.426490 117.184601 23.427692 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23.584385 117.442170 23.584449 117.442251 23.584518 117.442328 23.584590 117.442401 23.584665 117.442469 23.584744 117.442533 23.586552 117.443920 23.586602 117.443956 23.586973 117.444221 23.587787 117.446425 23.587831 117.446533 23.587880 117.446638 23.587935 117.446740 23.587996 117.446838 23.588063 117.446932 23.588873 117.448013 23.589084 117.448297 23.588994 117.448576 23.588964 117.448678 23.588939 117.448781 23.588920 117.448885 23.588906 117.448990 23.588897 117.449096 23.588893 117.449202 23.588895 117.449308 23.588913 117.449752 23.588932 117.450211 23.588844 117.450274 23.588760 117.450342 23.588679 117.450416 23.588603 117.450495 23.588531 117.450578 23.588463 117.450666 23.588401 117.450758 23.588344 117.450853 23.588291 117.450953 23.588245 117.451055 23.588203 117.451160 23.588168 117.451268 23.587921 117.452091 23.587408 117.453401 23.587368 117.453513 23.587335 117.453628 23.587307 117.453745 23.587287 117.453863 23.587273 117.453983 23.587266 117.454104 23.587216 117.455856 23.586308 117.458449 23.585735 117.459620 23.584694 117.461355 23.584641 117.461450 23.584592 117.461548 23.584549 117.461650 23.583856 117.463398 23.583815 117.463508 23.583782 117.463621 23.583754 117.463736 23.583151 117.466600 23.583145 117.466628 23.583133 117.466696 23.582530 117.470403 23.582529 117.470411 23.582293 117.471900 23.581784 117.472727 23.579630 117.476202 23.579581 117.476284 23.579537 117.476369 23.579496 117.476456 23.579460 117.476545 23.578213 117.479817 23.578174 117.479931 23.578141 117.480047 23.578115 117.480164 23.577258 117.484605 23.577239 117.484721 23.577237 117.484738 23.576769 117.488399 23.576757 117.488518 23.576752 117.488637 23.576754 117.488757 23.576967 117.493743 23.577054 117.500197 23.577056 117.500256 23.577494 117.510687 23.577502 117.510796 23.577515 117.510905 23.577533 117.511013 23.579637 117.521531 23.580764 117.527140 23.583318 117.539849 23.583343 117.539957 23.583373 117.540063 23.583409 117.540167 23.583450 117.540269 23.587261 117.549016 23.590645 117.559950 23.590678 117.560047 23.590715 117.560143 23.590758 117.560236 23.590804 117.560327 23.590855 117.560415 23.590911 117.560500 23.594416 117.565583 23.594426 117.565596 23.597931 117.570592 23.597995 117.570677 23.598062 117.570758 23.598134 117.570835 23.598209 117.570908 23.598289 117.570976 23.598371 117.571039 23.598457 117.571097 23.598545 117.571149 23.599531 117.571697 23.599621 117.571744 23.599713 117.571785 23.599807 117.571820 23.599903 117.571850 23.600000 117.571874 23.600098 117.571893 23.600602 117.571971 23.600896 117.572484 23.601524 117.573675 23.601553 117.573728 23.601583 117.573778 23.602939 117.576016 23.602973 117.576070 23.602978 117.576078 23.603632 117.577072 23.603748 117.577555 23.604050 117.578897 23.604077 117.579004 23.604110 117.579110 23.604148 117.579213 23.604192 117.579314 23.605043 117.581149 23.605440 117.582187 23.605933 117.583698 23.605974 117.583812 23.606022 117.583924 23.606076 117.584032 23.606136 117.584136 23.606202 117.584236 23.606563 117.584747 23.606963 117.585425 23.607027 117.585526 23.607097 117.585622 23.607172 117.585714 23.607252 117.585800 23.607337 117.585881 23.607426 117.585956 23.607520 117.586024 23.607617 117.586086 23.607718 117.586142 23.607822 117.586190 23.607928 117.586232 23.608037 117.586266 23.608147 117.586292 23.608258 117.586311 23.608371 117.586323 23.608484 117.586327 23.608789 117.586327 23.608896 117.586323 23.609003 117.586313 23.609109 117.586296 23.609213 117.586272 23.609317 117.586241 23.609418 117.586203 23.609633 117.586418 23.609712 117.586493 23.609795 117.586562 23.609882 117.586627 23.609971 117.586685 23.610064 117.586738 23.610159 117.586785 23.610257 117.586826 23.611273 117.587214 23.611901 117.587586 23.613259 117.588829 23.614938 117.590863 23.614951 117.590879 23.615004 117.590939 23.616394 117.592452 23.616633 117.592857 23.616569 117.593049 23.616492 117.593137 23.616420 117.593230 23.616354 117.593328 23.616293 117.593431 23.616239 117.593537 23.616190 117.593647 23.616148 117.593759 23.616113 117.593875 23.616084 117.593992 23.616062 117.594111 23.616047 117.594232 23.616038 117.594353 23.616037 117.594475 23.616042 117.594596 23.616055 117.594717 23.616074 117.594837 23.616101 117.594955 23.616133 117.595071 23.616173 117.595185 23.616219 117.595296 23.616271 117.595404 23.616329 117.595508 23.616736 117.596186 23.616800 117.596286 23.616870 117.596382 23.616946 117.596472 23.617026 117.596558 23.618857 117.598389 23.618925 117.598454 23.618997 117.598515 23.619070 117.598572 23.619147 117.598625 23.621215 117.599982 23.621292 117.600029 23.621371 117.600073 23.621452 117.600112 23.621793 117.600267 23.621709 117.600331 23.621629 117.600400 23.621552 117.600474 23.621480 117.600553 23.621411 117.600636 23.621348 117.600723 23.621289 117.600814 23.621234 117.600909 23.621185 117.601006 23.620914 117.601583 23.620867 117.601691 23.620826 117.601802 23.620791 117.601915 23.620763 117.602031 23.620741 117.602148 23.620726 117.602266 23.620718 117.602386 23.620716 117.602505 23.620722 117.602625 23.620733 117.602743 23.620752 117.602861 23.620777 117.602978 23.620808 117.603092 23.620846 117.603204 23.620890 117.603314 23.620940 117.603420 23.620996 117.603523 23.621058 117.603622 23.621125 117.603717 23.621198 117.603807 23.621275 117.603892 23.621357 117.603972 23.621443 117.604046 23.621533 117.604115 23.621627 117.604177 23.621725 117.604233 23.621825 117.604283 23.622198 117.604452 23.622299 117.604495 23.622403 117.604530 23.622508 117.604559 23.622615 117.604581 23.622723 117.604596 23.622831 117.604603 23.622939 117.604604 23.623048 117.604598 23.623156 117.604584 23.624315 117.604401 23.624566 117.604401 23.625033 117.604730 23.625118 117.604787 23.625207 117.604838 23.625297 117.604884 23.625390 117.604924 23.625485 117.604959 23.626706 117.605366 23.626806 117.605396 23.626907 117.605420 23.627009 117.605437 23.627112 117.605448 23.627216 117.605452 23.627319 117.605450 23.628676 117.605383 23.628781 117.605374 23.628886 117.605359 23.628989 117.605336 23.629092 117.605307 23.629231 117.605503 23.629290 117.605582 23.629353 117.605658 23.629419 117.605729 23.629758 117.606077 23.629744 117.606196 23.629737 117.606315 23.629737 117.606434 23.629744 117.606554 23.629757 117.606672 23.629777 117.606789 23.629804 117.606905 23.630004 117.607677 23.629966 117.607702 23.629423 117.608075 23.629420 117.608078 23.629329 117.608144 23.629239 117.608220 23.629154 117.608302 23.629073 117.608389 23.628998 117.608482 23.628928 117.608580 23.628864 117.608682 23.628806 117.608788 23.628755 117.608899 23.628710 117.609012 23.628672 117.609128 23.628640 117.609247 23.628616 117.609368 23.628492 117.609359 23.627799 117.609024 23.627699 117.608980 23.627595 117.608942 23.627490 117.608911 23.627384 117.608886 23.627276 117.608869 23.627167 117.608859 23.627058 117.608856 23.626949 117.608860 23.626841 117.608871 23.626733 117.608890 23.626627 117.608915 23.626522 117.608947 23.626419 117.608986 23.626012 117.609156 23.625908 117.609203 23.625807 117.609258 23.625709 117.609319 23.625615 117.609386 23.625525 117.609460 23.625440 117.609540 23.625359 117.609626 23.625283 117.609717 23.625213 117.609812 23.625148 117.609913 23.625089 117.610017 23.625037 117.610126 23.624990 117.610238 23.624951 117.610352 23.624918 117.610469 23.624808 117.610497 23.624700 117.610531 23.624594 117.610573 23.624491 117.610622 23.624391 117.610678 23.624294 117.610740 23.624201 117.610809 23.624112 117.610884 23.624028 117.610965 23.623948 117.611052 23.623874 117.611143 23.623805 117.611240 23.623741 117.611341 23.623684 117.611446 23.623633 117.611555 23.623588 117.611667 23.623549 117.611782 23.623518 117.611899 23.623493 117.612019 23.623475 117.612139 23.623464 117.612261 23.623460 117.612383 23.623463 117.612505 23.623473 117.612627 23.623560 117.613416 23.623578 117.613537 23.623602 117.613658 23.623633 117.613776 23.623671 117.613893 23.623715 117.614006 23.623766 117.614116 23.624358 117.615299 23.624406 117.615391 23.624464 117.615486 23.624918 117.616193 23.624844 117.616234 23.624771 117.616278 23.624701 117.616327 23.624633 117.616379 23.623647 117.617168 23.623561 117.617241 23.623480 117.617319 23.623403 117.617402 23.623331 117.617491 23.623264 117.617583 23.623202 117.617680 23.623146 117.617781 23.623095 117.617886 23.623051 117.617993 23.623012 117.618103 23.622979 117.618216 23.622953 117.618330 23.622933 117.618446 23.622920 117.618563 23.622810 117.619834 23.622804 117.619950 23.622803 117.620066 23.622809 117.620181 23.622821 117.620296 23.622839 117.620410 23.622864 117.620523 23.622894 117.620634 23.622931 117.620743 23.622973 117.620849 23.623146 117.621249 23.622984 117.622236 23.622968 117.622350 23.622959 117.622465 23.622956 117.622580 23.622956 117.623676 23.622959 117.623797 23.622970 117.623918 23.622987 117.624039 23.623011 117.624157 23.623042 117.624274 23.623080 117.624389 23.623123 117.624501 23.623174 117.624609 23.623230 117.624714 23.623292 117.624815 23.623360 117.624912 23.623434 117.625004 23.623512 117.625091 23.623595 117.625172 23.623683 117.625248 23.623775 117.625318 23.623870 117.625381 23.623970 117.625438 23.624072 117.625488 23.624177 117.625531 23.624284 117.625566 23.624392 117.625595 23.624503 117.625616 23.624614 117.625630 23.624726 117.625636 23.624838 117.625635 23.624950 117.625626 23.625061 117.625610 23.625543 117.625522 23.625645 117.625500 23.625746 117.625472 23.625846 117.625437 23.625943 117.625396 23.626038 117.625349 23.626130 117.625297 23.626220 117.625238 23.626306 117.625174 23.626388 117.625105 23.626467 117.625031 23.627621 117.625886 23.627695 117.625938 23.627770 117.625986 23.627848 117.626029 23.627927 117.626069 23.628584 117.626375 23.628685 117.626419 23.628788 117.626455 23.628893 117.626485 23.628999 117.626508 23.629106 117.626524 23.629214 117.626533 23.629322 117.626535 23.629430 117.626530 23.629538 117.626517 23.629645 117.626498 23.629751 117.626472 23.629855 117.626439 23.629957 117.626400 23.630262 117.626593 23.631034 117.628410 23.631140 117.628752 23.630780 117.628840 23.630675 117.628869 23.630575 117.628904 23.629822 117.629192 23.629326 117.629369 23.629035 117.629387 23.628928 117.629397 23.628822 117.629414 23.628717 117.629438 23.628614 117.629468 23.628512 117.629506 23.628412 117.629549 23.628316 117.629599 23.628222 117.629655 23.628131 117.629717 23.628044 117.629785 23.627960 117.629858 23.627881 117.629937 23.627257 117.630594 23.627178 117.630683 23.627105 117.630776 23.627037 117.630874 23.626974 117.630977 23.626918 117.631084 23.626868 117.631194 23.626825 117.631307
Then northeasterly to the intersection with a southwestern boundary of Native Title Determination WAD216/2010 Yinhawangka Part B (WCD2017/003) with Longitude 117.631327 East; Then generally southeasterly along the boundary of that native title determination to Latitude 23.701669 South, Longitude 117.739187 East being a point on the present boundary of Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001); Then southwesterly along the boundary of that native title determination to an eastern boundary of Pastoral Lease N049718 (Mininer) at Latitude 23.716124 South being a point on the boundary of Native Title Application WAD490/2016 Yinhawangka Gobawarrah (WC2016/004); Then southwesterly along the boundary of that native title application to Longitude 117.709959 East; Then generally northwesterly through the following coordinate points:
LATITUDE
(SOUTH)
LONGITUDE
(EAST)
23.653649 117.499464 23.513554 117.163621 Then northwesterly 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 October 2021.
Native Title Determination Application WAD490/2016 Yinhawangka Gobawarrah (WC2016/004) as accepted for registration on 20th April 2017.
For the avoidance of doubt the Overlap Area excludes any land and waters the subject of the following native title determinations:
·Native Title Determination WAD216/2010 Yinhawangka Part B (WCD2017/003) as determined in the Federal Court on 18/07/2017.
·Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as determined in the Federal Court on 29/08/2000.
·Native Title Determination WAD6007/2000 Jurruru People Part A (WCD2015/002) as determined in the Federal Court on 01/09/2015.
Datum: Geocentric Datum of Australia 2020 (GDA2020)
Prepared By: Graphic Services (Landgate) 15th November 2021Use 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 of 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.SCHEDULE TWO
Map of the determination area
SCHEDULE THREE
Areas where native title does not exist [Paragraph 2]
No native title exists in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 2 of this Schedule), are generally shown as shaded in pink and outlined in red on the map at Schedule Two.
1.Roads
The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):
Mapinfo ID
Description
Shown on / in
Road 01 Road No. 5424 Road Dedication Plan 92/300;
Public Plan 503115 (cancelled 12/10/1939)
Road 02 Road No. 8385 Government Gazette 11/04/1930 at p.1066;
Public Plan 503115 (cancelled 12/10/1939)
2.Public Works
Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles Validation Act or section 23C(2) of the Native Title Act applies, which were constructed or established or commenced to be constructed or established on or before 23 December 1996.
SCHEDULE FOUR
Other interests [Paragraph 12]
The nature and extent of the Other Interests in relation to the Determination Area are as follows:
[NOTE: Land tenure interests registered with the Western Australian Land Information Authority are current as at 28 June 2022. Mining tenements and petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 22 July 2022. All other interests are current as at the date of the determination.]
1.Pastoral Leases
The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
Lease No.
Description
PL N049718 Mininer PL N050036 Ashburton Downs PL N050044 Dooley Downs PL N050364 Mt Vernon PL N050510 Pingandy 2.Reserves
The interests of persons who have the care, control and management of the following reserve and the interests of people entitled to access and use the reserve for the purpose for which it is reserved, subject to any statutory limitations upon those rights:
Reserve Number Current / Last Purpose 1120 Watering Place 3.Easements
The following easement and the rights and interests of the holders from time to time of that easement:
Easement Number Purpose F 924685 For the purpose described in the Government Gazette on 4 July 1995, commencing on page 2799 at "LA 801 Goldfields Gas Pipeline Agreement Act 1994 Public Works Act 1902 Land Acquisition" 4.Mining tenements
The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements:
(a)Exploration licences
Tenement ID E 0802307 E 0802629 E 0802756 E 0802889 E 0802938 E 0802947 E 0802948 E 0802992 E 0802994 E 0802996 E 0802997 E 0803016 E 0803040 E 0803104 E 0803113 E 0803121 E 0803122 E 0803222 E 0803257 E 0803262 E 0803269 E 0803273 E 0803279 E 0803289 E 0803328
(b)Prospecting licences
Tenement ID P 0800699
1
5. Petroleum interests
The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following tenement:
Tenement ID Tenement type PL 24 Pipeline Licence 6.Access to Mining and Petroleum Areas
(a)Without limiting the operation of any other clause in Schedule Four, but subject to clause 6(b) below, the rights of the holders from time to time of a mining tenement or petroleum interest referred to in clauses 4 or 5 of Schedule Four to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.
(b)Nothing in clause 6(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 6(a).
7.Other
The following rights and interests in the Determination Area:
(a)Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation;
(b)Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act1914 (WA);
(c)Rights and interests of members of the public arising under common law, including but not limited to:
(i)the public right to fish;
(ii)the public right to navigate; and
(iii)the right of any person to use and enjoy any roads 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 the common law;
(d)The right to access the Determination Area by:
(i)an employee, agent or instrumentality of the State;
(ii)an employee, agent or instrumentality of the Commonwealth; or
(iii)an employee, agent or instrumentality of any local government authority,
as required in the performance of his or her statutory or common law duty;
(e)So far as confirmed pursuant to section 212(2) of the Native Title Act and section 14 of the Titles Validation Act as at the date of this determination, any existing public access to and enjoyment of, the following places in the Determination Area:
(i)waterways;
(ii)beds and banks or foreshores of waterways;
(iii)coastal waters;
(iv)beaches;
(v)stock routes; and
(vi)areas that were public places at the end of 31 December 1993;
(f)Any other:
(i)legal or equitable estate or interest in the land or waters; or
(ii)right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(A)the land or waters; or
(B)an estate or interest in the land or waters; or
(iii)restriction on the use of the land or waters, whether or not annexed to other land or waters.
SCHEDULE FIVE
Yinhawangka People [Paragraphs 3 and 14]
The Yinhawangka People are those persons who:
(a)are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People:
(i)Minatangunha;
(ii)Jarndundha;
(iii)the couple Thurantajinha and Wilga; or
(iv)Nijawarla; and
(b)identify themselves as Yinhawangka under traditional law and custom and are so identified by other Yinhawangka People as Yinhawangka; and
(c)have a connection with the land and waters of the Yinhawangka Area or the Overlap Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinhawangka People.
SCHEDULE SIX
Jurruru People [Paragraphs 4 and 14]
The Jurruru People are those persons who:
(a)are descended from Kantitharra or Punartu or are adopted by such biological descendants in accordance with traditional laws acknowledged and the traditional customs observed by the Jurruru People;
(b)identify themselves as Jurruru under traditional law and custom and are so identified by other Jurruru People as Jurruru; and
(c)have a connection with the land and waters of the Jurruru Area or the Overlap Area, in accordance with the traditional laws acknowledged and the traditional customs observed by the Jurruru People.
SCHEDULE SEVEN
Agreement for the protection of sites in the Overlap Area [Orders 6, 7 and 8]
DATED the day of 2022
JURRURU ABORIGINAL CORPORATION RNTBC (ICN 8251)
and
GOBAWARRAH YINHAWANGKA ABORIGINAL CORPORATION RNTBC (ICN 9813)
________________________________________________________________________
DEED OF AGREEMENT REGARDING YINHAWANGKA AND
JURRURU OVERLAP AREA
_________________________________________________________________________
THIS DEED is made on this day of
BETWEEN
Jurruru Aboriginal Corporation RNTBC (ICN 8251) (Jurruru PBC)
and
Gobawarrah Yinhawangka Aboriginal Corporation RNTBC (ICN 9813) (Yinhawangka PBC)
RECITALS
A.On 2 December 2020, the Court gave judgment in relation to a separate question in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 (Smirke No 2); and on [date], the Federal Court of Australia made a Determination of Native Title by consent in respect of WAD490/2016, WAD537/2018 and WAD538/2018 (the Determination).
B.In Smirke No 2, the Court made findings about the existence of Jurruru native title and Yinhawangka native title in the lands and waters the subject of that judgment but did not make findings about the boundaries of those native titles.
C.On 21 September 2021, the Applicant in WAD 490/2016 (YG Applicant) and the Applicant in WAD537/2018 and WAD538/2018 (Jurruru Applicant) reached agreement regarding the southern extent of Yinhawangka native title and about the northern extent of Jurruru native title, as a result of the Court’s findings in Smirke No 2. These agreed borders are reflected in the Determination and are depicted in the map at Schedule Two of the Determination.
D.The YG Applicant’s acceptance of the borders was conditional on the respective prescribed bodies corporate entering into an agreement to facilitate and promote each native title holding group’s right to protect sites of significance in the Overlap Area.
E.The YG Applicant and Jurruru Applicant agreed that the YG and Jurruru sites would be identified by reference to the maps and indexes of sites which were submitted in evidence (as item 4.57 (at pages 276 and 277), and items 6.17 and 6.21 in Exhibit A, the final Court Book) during the hearing of the separate question which resulted in the Smirke No 2 decision.
F.The Parties, as the registered native title bodies corporate for the Overlap Area, enter into this deed to give effect to the agreement made by the YG and Jurruru Applicants on behalf of the native title holding groups of the Overlap Area.
OPERATIVE PROVISIONS
1.INTERPRETATION
1.1.In this Deed of Agreement, unless the contrary intention appears, words and expressions defined in the Determination have the same meaning where used; and:
Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia.
Heritage Protection Legislation means Western Australian or Commonwealth legislation enacted from time to time for the purpose of protecting Aboriginal heritage and includes, as at the date of execution of this Agreement:
1.1.1.Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth);
1.1.2.Aboriginal Cultural Heritage Act 2021 (WA);
1.1.3.Aboriginal Heritage Act 1972 (WA); and
1.1.4.Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Jurruru Sites means those sites listed in the index at Attachment B to this Agreement and marked as Jurruru Sites in the map at Attachment C to this Agreement, or as more fully or accurately located through clause 6.1.
NTA means the Native Title Act 1993 (Cth).
Party means a party to this Agreement and Parties the parties to this Agreement.
YG Sites means those sites listed in the index at Attachment A to this Agreement and marked as YG sites in the map at Attachment C to this Agreement, or as more fully or accurately located through clause 6.2.
1.2.In this Agreement, unless the contrary intention appears:
1.2.1.words and expressions defined in the NTA have the same meaning where used;
1.2.2.a reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or annexure to, this Agreement and a reference to this Agreement includes any recital, schedule or annexure;
1.2.3.a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
1.2.4.the word 'person' includes a firm, body corporate, partnership, joint venture or unincorporated association;
1.2.5.the singular includes the plural and vice versa;
1.2.6.a reference to a person, statutory authority or government body (corporate or unincorporated) established under any written law includes a reference to any person (corporate or unincorporated) established or continuing to perform the same or a substantially similar function;
1.2.7.a reference to dollars or $ is to Australian currency;
1.2.8.an agreement, representation or warranty on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally; and
1.2.9.a reference to anything is a reference to the whole or any part of it and a reference to a group of persons is a reference to any one or more of them.
2.AGREEMENT AREA
2.1.This Agreement relates to the Overlap Area, a map of which comprises Schedule Two of the Determination. The Overlap Area is also depicted on the map at Attachment C.
3.AUTHORITY TO ENTER INTO AGREEMENT
3.1.The Jurruru PBC represents and warrants that:
3.1.1.all necessary authorisations have been obtained to enter into this Agreement; and
3.1.2.this Agreement is valid, binding and enforceable in accordance with its terms against the Jurruru PBC.
3.2.The Yinhawangka PBC represents and warrants that:
3.2.1.all necessary authorisations have been obtained to enter into this Agreement; and
3.2.2.this Agreement is valid, binding and enforceable in accordance with its terms against the Yinhawangka PBC.
3.3.Each Party acknowledges and agrees that they have relied on the warranties provided in this clause to enter into this Agreement.
4.ASSIGNMENT
4.1.A Party may only assign its rights and interests in this Agreement where it ceases to be the registered native title body corporate for the relevant native title holding group for the Overlap Area, and a new prescribed body corporate becomes the registered native title body corporate for the relevant native title holding group for the Overlap Area.
4.2.If a party ceases to be the registered native title body corporate for the relevant native title holding group in the Overlap Area (ceasing prescribed body corporate), and there is a replacement prescribed body corporate for the relevant native title group in the Overlap Area:
4.2.1.The ceasing prescribed body corporate must assign this Agreement to the replacement prescribed body corporate within 20 Business Days of the replacement prescribed body corporate becoming the registered native title body corporate for the relevant group for the Overlap Area.
4.2.2.Assignment is to be effected by the ceasing prescribed body corporate providing notice to the continuing party that it has assigned this Agreement to the replacement prescribed body corporate.
4.2.3.The notice in clause 4.2(b) must be accompanied by a deed of assumption executed by the replacement prescribed body corporate in favour of the continuing party, agreeing to be bound by this Agreement, and to assume all of the ceasing prescribed body corporate’s obligations under this Agreement.
4.3.Once an assignment of this Agreement has occurred under and in accordance with clause 4.2, the ceasing prescribed body corporate will be deemed to have been released, to the extent of the assignment from all claims and liabilities arising under or in respect of this Agreement arising after the effective date of the assignment, but without affecting any claim or liability arising prior to such date.
4.4.Unless otherwise agreed by the Parties in writing or required by law, an assignment under this clause 4 shall not affect the operation of this Agreement.
5.AGREEMENT TO PROTECT YG AND JURRURU SITES
5.1.The Jurruru PBC:
5.1.1.Recognises Yinhawangka People have the right to protect YG Sites in the Overlap Area;
5.1.2.Shall not give its consent to the destruction of any YG Sites in the Overlap Area as part of any agreement or Aboriginal heritage survey or for the purpose of any Heritage Protection Legislation; and
5.1.3.Shall include in any agreement about or that affects any part of the Overlap Area:
In light of these findings, the parties were referred to mediation with the assistance of Judicial Registrar McGregor, with a view to progressing the proceedings to a determination of native title by consent on all remaining issues, or in the absence of agreement, further trial.
That referral was progressed, but in mid-2021, the Jurruru applicant raised a question about the authorisation of the Yinhawangka Gobawarrah Application. This was despite the Jurruru applicant having no interest in the Yinhawangka area after the Court’s findings in Smirke (No 2): see Smirke (No 3) at [6]. The State joined in raising a question about authorisation, which meant it was appropriate for the matter to be resolved. There being no agreed resolution, a further separate question was formulated. The Court was asked to decide whether it has the power to make a determination in favour of the native title holding group in Jones and the descendants of Nijawarla in circumstances where that group of people had not, in its totality, authorised the making of the Yinhawangka Gobawarrah Application.
In Smirke (No 3), the Court decided it had jurisdiction to make a determination of native title in favour of a group that differs in some respects from that described in the originating application without the need for further authorisation. Contrary to the submissions of the Jurruru applicant and of the State, the Court considered the authorities, and in particular Commonwealth v Clifton [2007] FCAFC 90; 164 FCR 335, read with Moses v Western Australia [2007] FCAFC 78; 160 FCR 148, did not preclude such an approach.
Fundamental to the Court’s decision were the unique history of the Yinhawangka Gobawarrah Application, including the previous s 61 applications on behalf of the family groups who comprise the key members of the Yinhawangka Gobawarrah claimants, the particular circumstances in terms of the separate question process and decision in Smirke (No 2), from which there was no application for leave to appeal and by which the parties were bound, and the absence of any application to intervene by the Yinhawangka Aboriginal Corporation RNTBC (ICN 7837), the PBC for the Yinhawangka determination area in Jones, despite being on notice about the proposed determination after Smirke (No 2). The Court found (at [154]-[157]):
The Yinhawangka area is not “no man’s land”. The Court’s findings demonstrate the significance of some parts of the land and waters in the Yinhawangka area to the people whose country it is. In these circumstances, the interests of the administration of justice would not be served by a dismissal of the YG s 61 application. That would not be compatible with the objectives of the Native Title Act to provide for the protection and recognition of native title. Nor would it be compatible with the objectives of the Federal Court Act, in particular the overarching objective provisions in s 37M and s 37N, but also the legislative instruction in s 22 of the Federal Court Act:
The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.
Nor would the interests of the administration of justice be served by requiring the YG applicant to amend its application (presumably to reflect precisely the Court’s findings in Smirke (No 2), although the State and the Jurruru applicant did not really develop this point) and submit it for authorisation to a wider group of Yinhawangka People. That course of action raises the real possibility of an amended claim not being authorised, not for any reason stemming from traditional law and custom, but stemming from the antagonism to the YG group which I found in Smirke (No 2) to be a core feature of the interaction of Yinhawangka People for decades now, and which I also found affected the evidence of people such as David Cox and Brendan Cooke (as to the latter see Smirke (No 2) at [272] and [274]).
Although I have found it may be possible to characterise the Court’s findings in Smirke (No 2) as no more than findings about the “true membership” of the claim group, and as findings that there is a wider membership of the claim group than articulated in the YG’s s 61 application, I accept that the history of the competing native title applications about the overlap area, and the various challenges in relation to those people who were part of the GMY claim and then the YG claim, mean that it could be seen to be stretching the (undefined) concept of “true membership” as set out in Clifton at [37] to apply it here.
In the particular circumstances of these proceedings, the course which is most appropriate is for the Court to exercise its power under s 84D(4) to make a determination notwithstanding a defect in authorisation. I therefore turn to consider s 84D(4).
Against another oppositional submission made by the Jurruru applicant, the Court found it had power to exercise its discretion under s 84D(4) of the NTA: see Smirke (No 3) at [159]-[165]. Having decided the power was available, the Court then explained why it considered it was appropriate to exercise it: see Smirke (No 3) at [167]-[186]. Amongst the matters to which the Court referred in these passages were the significant interpersonal, and inter-family disputes which coloured the ongoing disputes between key members of the Jurruru claim group and key members of the Yinhawangka Gobawarrah claim group, who were all part of the same extended family. At [178]-[180], the Court found:
There is also a clear basis in the Court’s findings in Smirke (No 2) to infer that if the Court were to require the YG applicant to revert to some wholesale authorisation process with a wider Yinhawangka group, that any such process is more likely than not to be derailed by the very same forces which have sought to exclude the Tommy family and those who are aligned with them for the last 20 years or more. The Court’s findings in Smirke (No 2) suggest that opposition and exclusion were misplaced, in the sense of what the evidence in that case demonstrated about rights and interests under traditional law and custom. One explanation put forward by Dr McGrath and accepted to some extent by the Court was based in gender: Mabel Tommy, as a woman, was not accepted as having the knowledge that the objective evidence suggested she did. There may be other explanations: the Court’s findings in Smirke (No 2) pass no judgment on these interpersonal issues which have endured for decades, nor on the effects of family breakdown; the Court’s findings pass no judgment on people’s behaviour and conduct, and all the other entirely human matters which can give rise to animosity and the adoption of entrenched positions about deeply felt issues. However, the circumstances described in the Court’s reasons, and the fact there has been a litigated outcome, mean that there are likely to be multiple, non-traditional factors at play between the YG claim group and the wider Yinhawangka group.
If, in 2021 (or 2022), people at a Yinhawangka meeting were called upon to vote on authorisation of an amended claim (recalling the unaddressed difficulties I have referred to about whether they would be asked to authorise a claim reflecting the Court’s findings, or something else), it would be neither rational nor logical to ignore all these non-traditional motivations for how people might act, might think, and might vote. The more contemporary animosity is just as likely to drive decision making as anything which could remotely be described as “traditional” opinions. And that is before one even reaches the controversial contention – evident from parts of factual history given by Barker J and a source of conflict from that at least that point on – that those who lead the Jurruru claim, such as Ivan Smirke, claim because of their descent through Nancy Tommy to be able to attend Yinhawangka meetings, and to vote “as” Yinhawangka People, notwithstanding the conflict of interest writ large in such an assertion.
To require the YG applicant to go back to such a process; and to require the representative body to fund such a resource intensive process, would make a mockery of the native title system, and bring the administration of justice into disrepute. In the very particular circumstances of these proceedings, there must be finality, and that finality should proceed on the basis of the Court’s findings in Smirke (No 2), which have not been challenged by any application for leave to appeal.
Accordingly, the Court decided to exercise the discretion under s 84D(4) of the NTA to proceed to a determination of native title over the Yinhawangka area despite any alleged defect in the authorisation of the Yinhawangka Gobawarrah applicant. An order reflecting that decision forms part of the orders made today.
The parties then returned to mediation and subsequently reached agreement about the Ashburton River area, which had been an outstanding impediment to a determination of native title in the proceedings. This area is depicted in blue shading in the map at Schedule 2 to the proposed determination; it delineates the areas of shared non-exclusive native title and the areas in which the Yinhawangka People and the Jurruru People hold their respective non-exclusive native title independent of the other. The agreement reached involves a deed to be entered into by the respective prescribed bodies corporate (PBCs) after the making of a determination. The deed will facilitate and promote each native title holding group’s right to protect sites in the shared area. It forms Schedule 7 to the proposed determination, and the parties seek orders that any determination not take effect in respect of the shared area unless and until the deed has been executed by both PBCs.
THE MATERIAL BEFORE THE COURT
As part of the separate question process, the Court received a large body of evidence concerning the connection of the Jurruru People and the Yinhawangka People to the area subject of the proposed determination, and has recorded its findings in relation to that material in Smirke (No 2) and Smirke (No 3).
The terms of the proposed determination go to matters that were not the subject of specific findings in those decisions, such as the exact boundaries of the shared areas around the Ashburton River. The parties submit that, having been legally represented throughout the hearings of the separate questions and the consent determination negotiation process that followed, the Court can be satisfied that their agreement has been given freely and on an informed basis. They submit this approach is consistent with the premise of s 87 of the NTA and the Act’s emphasis on conciliation, such that further evidence about these matters need not be adduced: citing Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9]; Peterson v State of Western Australia [2013] FCA 518 at [22]; Ward v State of Western Australia [2006] FCA 1848 at [8]. I accept that submission.
Therefore, aside from the Court’s findings in Smirke (No 2) and Smirke (No 3), as well as (I infer) the existing determinations in Smirke and Jones, the only material relied on by the parties is:
(a)the minute of proposed consent determination signed by each of the parties to each of the three proceedings, filed on 17 August 2022;
(b)an affidavit filed and affirmed by Colin McKellar on 24 August 2022 deposing to the Jurruru claim group’s authorisation of the Jurruru applicant to agree to the proposed consent determination; and
(c)the written nominations, consents and affidavit material relating to the appointment of PBCs that are referred to at [42]-[43] below.
THE APPLICABLE REQUIREMENTS OF SECTION 87
In broad terms, s 87(1) of the NTA requires three criteria to be met: the period specified in the notice given in relation to the original native title application must have elapsed, the s 87 agreement must be in writing and signed by all the relevant parties to the proceeding, and the Court must be satisfied that the orders would be within its power to make. In the present case, the first two criteria have clearly been met.
In relation to the third criterion, the applicants and the State jointly submit that:
(a)each of the three applications for a determination of native title is valid, noting the Court’s decision in Smirke (No 3) concerning the exercise of power under s 84D(4) of the NTA;
(b)the applications seek determinations of native title over an area for which there has been no determination of native title, and there are no other proceedings before the Court to seek a determination of native title in that area (see ss 13(1)(a), 67(1) and 68 of the NTA);
(c)the form of the proposed determination complies with s 94A and s 225 of the NTA and is otherwise consistent with the Court’s findings in Smirke (No 2) and Smirke (No 3); and
(d)the requirements in s 87 of the NTA are otherwise satisfied.
I accept these submissions.
By s 87(1A) of the NTA, the Court must be satisfied it is appropriate to make the determination sought by the parties. I have explained my understanding of what “appropriateness” requires in the context of consent determinations in Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849 at [52]-[56]. I adopt the same approach in these proceedings. I refer also to the consideration of appropriateness outlined by McKerracher J in Mouda on behalf of Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 at [39]-[50], with which I respectfully agree.
I accept the parties’ submissions that, unlike many consent determinations, there has been extensive evidence and fact finding put before the Court on connection, and the Court has made extensive findings on the basis of that material. These findings, together with the parties’ negotiated agreement on boundaries, provide an ample basis for the Court’s satisfaction that the proposed determination is appropriate.
It is also material to the Court’s consideration of the appropriateness of a determination of native title that the State has formed the view that the proposed determination is in the interests of the community it represents, in performance of its role in relation to the negotiation of a determination of native title by consent: see Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [63]-[65]. The State has conducted searches of land tenure and mining and petroleum registries to determine the nature and extent of other interests within the proposed determination area, and has recognised those interests in the proposed determination. It has also considered the position of those who do not have a proprietary interest in the proposed determination area but might nevertheless be affected by the recognition of native title rights. In deciding to support the proposed determination of native title, the State submits that it has weighed this consideration against the particular interest of First Nations peoples in Western Australia in fulfilling the objects and purposes articulated in the first two paragraphs of the preamble to the NTA.
I accept these submissions. Building on my observations in Taylor, it should be recalled that the Preamble to the NTA provides that, through the NTA:
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 rights and interests, and their rich and diverse culture, fully entitle them to aspire.
(Emphasis added.)
In these proceedings, the State of Western Australia represents a sub-section of the “people of Australia”, Indigenous and non-Indigenous; namely, those who reside in Western Australia. It is in the interests of all Australians that native title be recognised where it can be, as the NTA intends, and that State governments contribute to the achievement of this objective by good faith cooperation and proactive involvement in the negotiation processes which the NTA places at the forefront of achieving such recognition. Through its assessment and evaluation of the terms of the s 87 agreement, and its public support for that agreement by joining in it, and by making supporting submissions to the Court, the State of Western Australia pursues the intention to which the Preamble refers. It is appropriate for the Court to acknowledge the particular proactive role it has played in the resolution of these three proceedings.
Finally, the applicants and the State submit that the various pastoralists who are parties to the proceedings have been consulted and invited to participate in the agreement of the proposed determination, and each consents to the orders the Court is asked to make. I accept that submission.
As the applicants and the State submit, the Court’s function under s 87 of the NTA differs from its function in a contested application for a determination of native title: see Freddie v Northern Territory [2017] FCA 867 at [16]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]; Thudgari People v State of Western Australia [2009] FCA 1334 at [25]; Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at [27]. In particular, when considering whether to make orders pursuant to s 87 the Court’s attention is directed to the process by which the parties’ agreement was made: Lander v State of South Australia [2012] FCA 427 at [11]. The Court should also have regard to the objectives prescribed in s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), to promote the “just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible”.
Having regard to the consistency of the proposed determination with the Court’s findings in Smirke (No 2) and the nature of the process by which elements of the determination that were not the subject of specific findings have been agreed, I accept the parties’ submission that it is appropriate for the Court to make orders in the terms of the proposed determination.
THE NOMINATION OF PRESCRIBED BODIES CORPORATE
The applicants in these proceedings have requested the Court make determinations for separate PBCs to hold the Jurruru and Yinhawangka native titles.
The Jurruru applicant has filed a notice of nomination of the Jurruru Aboriginal Corporation (ICN 8251) and the written consent of that corporation to facilitate its determination as the PBC for the Jurruru native title for the purposes of s 56(2)(a) of the NTA. The process by which the JAC was nominated and provided consent to its nomination is deposed to by Mr McKellar in his affidavit filed 24 August 2022, and copies of the nomination and written consent are annexed to that affidavit.
The Yinhawangka Gobawarrah applicant has filed a notice of nomination of the Gobawarrah Yinhawangka Aboriginal Corporation (ICN 9813) and its written consent to facilitate its determination as the PBC in relation to the Yinhawangka native title for the purposes of s 56(2)(a) of the NTA. The process by which the GYAC was nominated and provided consent to its nomination is deposed to by Dante Mavec in his affidavit filed by the Yinhawangka Gobawarrah applicant on 15 August 2022. A copy of the written consent was annexed to that affidavit. A copy of the nomination was filed on 25 August 2022.
Like other aspects of these proceedings, the circumstances giving rise to the nomination of the GYAC have some history and complexity. The principal reason for this complexity is the decision of the Yinhawangka common law holders described in Jones not to consent to the nomination of the YAC. The YAC is the PBC for the native title subject of the determination in Jones. The decision of the Jones common law holders followed a series of consultations that the YAC conducted in various locations in the Pilbara region and in Perth about the Yinhawangka Gobawarrah applicant’s request for its appointment as the PBC in this case. The Court expresses its gratitude to the YAC for its cooperation in this process. The consultations culminated in a meeting of approximately 60 of the adult Yinhawangka common law holders from Jones, including some members of the Yinhawangka Gobawarrah claim group and at least two members of the Yinhawangka Gobawarrah applicant. The request to nominate YAC was rejected by a majority vote of those present.
Can YAC hold Yinhawangka native title for one area and GYAC hold Yinhawangka native title for another area?
In Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; 276 FCR 203 at [74]-[75], Colvin J and I explained why in our opinion it would not be appropriate for there to be two different PBCs for different areas of land and waters that are subject to the same traditional title. In Smirke (No 2) the Court determined that any Yinhawangka native title within the Yinhawangka Gobawarrah Application’s claim area is derived from the same traditional title as that recognised in Jones. Given YAC has not been nominated, the question arises: can GYAC be appointed as a trustee PBC under s 56(2) of the NTA?
In written submissions filed in these proceedings on 23 June 2022, the Yinhawangka Gobawarrah applicant and the State submitted that any principle to be derived from the observations at [74]-[75] in Drury is not applicable. In their submission, the overall structure of the NTA provides that the holders of native title at common law are to control the identity of the PBC that is appointed to hold their native title under the Act, and it is only if they fail to act that the Court can intervene to determine the identity of the PBC. Thus, s 56(2)(c) of the NTA provides that the Court must determine that native title is held by the common law holders if there is no nomination of a trustee PBC under s 56(2)(a), and s 57(2)(c) then provides that the Court must determine in accordance with the regulations which body is to perform the function of an agent PBC if the common law holders do not first nominate an agent PBC of their own accord and the PBC provides its consent.
The Yinhawangka Gobawarrah applicant and the State submit that the Court cannot appoint the YAC as the agent PBC under s 57(2)(c) because the common law holders in Jones have not consented to its nomination as a PBC in respect of the Yinhawangka area and because the YAC is a trustee PBC, and therefore cannot be appointed as an agent PBC. Further, they submit that the Court could not appoint the Indigenous Land and Sea Corporation as the agent PBC pursuant to s 57(2)(c) of the NTA and r 11 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) without first affording the holders of the Yinhawangka native title in the Yinhawangka Gobawarrah Application the opportunity to nominate their own agent PBC under s 57(2)(a), citing Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497. In the submission of the Yinhawangka Gobawarrah applicant and the State, the legislative scheme for the determination of PBCs gives primacy to the intention of the holders of native title at common law, and it would therefore be appropriate in the circumstances to invite the common law holders of any Yinhawangka native title on the Yinhawangka Gobawarrah Application to nominate their own PBC. The State and the Yinhawangka Gobawarrah applicant informed the Court that they have not identified any case law which would support an argument contrary to this submission.
The Court accepted those submissions. In orders made on the basis of the written submissions referred to above, the Court noted that, following the YAC’s refusal of consent to be nominated as a trustee PBC in this case, the Yinhawangka Gobawarrah applicant intended to establish a new corporation for the purpose of accepting nomination. The orders requested that the Yinhawangka Gobawarrah applicant file a nomination of a trustee PBC, along with the PBC’s consent, or – failing that – the nomination of an agent PBC and its consent. If no such nomination and consent were provided, the orders noted that the Court would determine that the native title would be held by the common law holders, pursuant to s 56(2)(c), and appoint the ILSC as agent PBC immediately thereafter. This latter course of action has not been necessary because a notice of nomination and written consent by GYAC have been filed: see [43] above.
The State recognised the significance of the position outlined in Drury, as a matter of policy and general principle:
In the First Respondent's submission, there are cogent policy reasons why the NTA scheme should generally proceed on an assumption that the area of responsibility of a PBC will most sensibly correspond to the entire area in which a particular group holds native title, regardless of the determination area(s) and/or overlaps with other native title holding groups. There ought to be compelling justification for the Court to entertain a departure from the Drury principle.
I accept that submission. Nevertheless, the obiter remarks in Drury were not, in my opinion, intended to form a straitjacket for the operation of the NTA. The circumstances in which this Court comes to make determinations of native title cover a tremendous spectrum. Sometimes, as part of compliance with the NTA’s objective of resolving matters by negotiation if possible, innovative and flexible solutions to boundary and membership disputes are found. Added to this is the well-established reality that for a variety of reasons, native title holders may have to bring several s 61 applications in respect of different areas over which they claim to hold native title. Those reasons include funding challenges, the operation of s 48B of the NTA, availability of anthropological and evidence gathering resources, interactions with third party proprietary interest holders, and disputes between or within claim groups. An approach to the construction of the NTA which accommodates such resolutions is to be preferred where possible, as this will be an approach most compatible with the Preamble and the objectives of the NTA.
The bifurcation of the administration of a single native title was one of the concerns expressed by Colvin J and myself in Drury at [75]. Where the rights conferred are rights in rem, this is a legitimate consideration. However, as the submissions of the State and the Yinhawangka Gobawarrah applicant have emphasised, the NTA reposes ultimate proprietary authority in the common law holders. A PBC, whether trustee or agent, is the vehicle through which native title is to be administered, and through which dealings in that native title are to occur. The authority for that administration and those dealings however ultimately resides with the common law holders.
The situation which now confronts the Court is the situation expressly left open by the Full Court in Drury at [74].
Where, as here, some of the common law holders for one area (ie the Yinhawangka area) are also common law holders for a different area (ie the area previously determined in Jones), the way that this sub-set of common law holders wishes to hold, and deal with, their native title may not follow the more straightforward situation in Drury. In the present situation, there is no identity between apical ancestors in Jones and in the present determination for the Yinhawangka area. Not all the apical ancestors in Jones were found to have rights and interests in the Yinhawangka area in the Yinhawangka Gobawarrah Application. Further, Nijawarla was an additional and new ancestor. Thus, although the body of laws and customs which confers the native title rights and interests is the same body of laws and customs, the rights and interests arising from that body of law and custom are held distinctly and differently, in relation to a particular area, by a differently composed group of common law holders.
There is nothing incompatible with the scheme of the NTA in that circumstance for a different PBC to be nominated for that different area. Indeed, as I found at [588] in Smirke (No 2):
Although each of the Jurruru and the Yinhawangka Peoples have their own determinations of native title, it is clear on the evidence that – despite the way the parties had expressed the agreed issues ahead of trial – both groups operate under the same broad normative system of traditional law and custom.
This was sometimes called a “Pilbara” system. A number of factors, including the post-sovereignty ascendancy of language identities over territories no longer possessed or inhabited by estate level groups, had coalesced so that rights and interests in land and waters under this wider normative system could nevertheless be differentially recognised and ascertained: see Smirke (No 2) at [615]-[617]. Of course, neither the NTA nor the obiter statements in Drury require a single PBC in the Pilbara because of the existence of this wider normative system. The point is the same as the one I have made above: although the body of laws and customs which confers the native title rights and interests is the same body of laws and customs, the rights and interests arising from that body of law and custom are held distinctly and differently, in relation to a particular area, by a differently composed group of common law holders. That is, in my opinion, the point made at [49] of Drury.
I accept the Yinhawangka Gobawarrah applicant, assisted by YAC, took steps in good faith to procure the consent of YAC to its nomination as the trustee PBC for the native title subject of the present determination. Ultimately the Yinhawangka common law holders did not agree. As the extracts from Smirke (No 3) at [24] above indicate, in my opinion it is more likely than not that the explanation for this refusal by the Jones common law holders does not stem from the application of traditional law and custom, but from more recent animosities, and more recent views about sticking with boundary outcomes some Yinhawangka people negotiated in 2010.
In the unique circumstances of this case, it is appropriate to make orders appointing the GYAC as the PBC pursuant to s 56(2)(b) of the NTA.
COSTS
Subject to the PBCs entering into the deed of agreement referred to at [26] above, the parties’ proposed orders resolve the question of costs as between most parties. However, the question of what costs might be payable by Yamatji Marlpa Aboriginal Corporation, the native title representative body for the region in which the claim areas are found, is proposed to be reserved, so as to accommodate the hearing of an application by the Yinhawangka Gobawarrah applicant about that matter. This proposal is consistent with the orders made by the Court on 24 February 2022 in the Yinhawangka Gobawarrah Application, following a case management hearing in which the Court heard that YMAC consents to orders providing for the hearing of an application of costs against it after the determination of native title by consent.
CONCLUSION
Native title has been recognised in the area the subject of these three proceedings. The separate question process did not recognise native title in the way either the Yinhawangka Gobawarrah or the Jurruru applicants initially sought. Nevertheless, in their sustained efforts after that decision, the claimant groups are to be commended on finding a compromise that they can live with, and more importantly, that will allow them to continue to maintain a connection to their country, to look after it and to pass down knowledge about it to future generations. Having seen for itself the genuine respect for country, and sense of responsibility for it, held by native title holders on both sides, the Court hopes that the recognition given by its orders today will provide a new starting point for future co-operation.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 26 August 2022
SCHEDULE OF PARTIES
WAD 490 of 2016Federal Court of Australia
District Registry: Western Australia
Division: General
Applicant ROY TOMMY, NANCY TOMMY, MARY MILLS AND E.G. First Respondent STATE OF WESTERN AUSTRALIA Second Respondent YAMATJI MARLPA ABORIGINAL CORPORATION Third Respondent CENTRAL DESERT NATIVE TITLE SERVICES LTD Fourth Respondent BARKLEY MARSHALL DAY Fifth Respondent JOAN ELIZABETH DAY Sixth Respondent RICHARD ERNEST DAY Seventh Respondent ZANE BRADLEY DAY Eighth Respondent ANDREW NICHOLAS GLENN Ninth Respondent DONALD RAYMOND HAMMARQUIST Tenth Respondent WENDY RUTH HARVEY Eleventh Respondent DANIEL JOHN HASTIE Twelfth Respondent JASON GARY HASTIE SCHEDULE OF PARTIES
WAD 537 of 2018Federal Court of Australia
District Registry: Western Australia
Division: General
Applicant IVAN SMIRKE, ALEC ALEXANDER AND KELLMAN LIMERICK First Respondent STATE OF WESTERN AUSTRALIA Second Respondent BAMBI PTY LTD Third Respondent CHEELA PALINS PASTORAL CO PTY LTD Fourth Respondent ANDREW NICHOLAS GLENN Fifth Respondent PETER ROBERT GREY Sixth Respondent SUSAN JEAN GREY Seventh Respondent DONALD RAYMOND HAMMARQUIST Eighth Respondent WENDY RUTH HARVEY Ninth Respondent DANIEL JOHN HASTIE Tenth Respondent JASON GARY HASTIE Eleventh Respondent STAMCO BEEF PTY LTD Twelfth Respondent ROY TOMMY Thirteenth Respondent NANCY TOMMY Fourteenth Respondent MARY MILLS Fifteenth Respondent E.G. Sixteenth Respondent YAMATJI MARLPA ABORIGINAL CORPORATION SCHEDULE OF PARTIES
WAD 538 of 2018Federal Court of Australia
District Registry: Western Australia
Division: General
Applicant IVAN SMIRKE, ALEC ALEXANDER AND KELLMAN LIMERICK First Respondent STATE OF WESTERN AUSTRALIA Second Respondent BARKLEY MARSHALL DAY Third Respondent JOAN ELIZABETH DAY Fourth Respondent RICHARD ERNEST DAY Fifth Respondent ZANE BRADLEY DAY Sixth Respondent ANDREW NICHOLAS GLENN Seventh Respondent WENDY RUTH HARVEY Eighth Respondent DANIEL JOHN HASTIE Ninth Respondent JASON GARY HASTIE Tenth Respondent ROY TOMMY Eleventh Respondent NANCY TOMMY Twelfth Respondent MARY MILLS Thirteenth Respondent E.G.
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