Procedural History
6 Subject to the following paragraph, the present Kariyarra application is the result of the combination of 13 separate native title determination applications made by the Kariyarra people, being:
(1) Kariyarra People #1 (WC1996/034, WAD6078/1998) lodged on 1 April 1996;
(2) Kariyarra #2 (WC1996/035, WAD6079/1998) lodged on 1 April 1996;
(3) Kariyarra #3 (WC1996/036, WAD6080/1998) lodged on 1 April 1996;
(4) Kariyarra #4 (WC1996/037, WAD6081/1998) lodged on 1 April 1996;
(5) Kariyarra #5 (WC1996/040, WAD6084/1998) lodged on 1 April 1996;
(6) Kariyarra People #6 (WC1997/011, WAD6148/1998) lodged on 17 February 1997;
(7) Kariyarra People #7 (WC1997/012, WAD6149/1998) lodged on 17 February 1997;
(8) Kariyarra People #8 (WC1997/013, WAD6150/1998) lodged on 17 February 1997;
(9) Kariyarra #9 (WC1997/020, WAD6155/1998) lodged on 14 March 1997;
(10) Kariyarra #10 (WC1997/021, WAD6156/1998) lodged on 14 March 1997;
(11) Kariyarra #11 (Jirluwarra) (WC1997/031, WAD6163/1998) lodged on 24 April 1997;
(12) Kariyarra (Kariera) #12 (WC1996/024, WAD6073/1998) lodged on 15 March 1996; and
(13) Kariyarra #13 (WC1997/039, WAD6169/1998) lodged on 30 May 1997.
7 The Court record suggests that the application in (12) of the preceding paragraph may have been discontinued. It is referred to here in the event it remained on foot at the time of the combination.
8 Kariyarra applications #1-#13 were lodged with the National Native Title Tribunal (NNTT) pursuant to s 61 of the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act). All applications were notified by the Native Title Registrar pursuant to s 66 of the old Act. As result of the Native Title Amendment Act 1998 (Cth), Kariyarra applications #1-#13 are taken to have been made to this Court. Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3, Item 6 of the Native Title Amendment Act 1998 (Cth)).
9 Kariyarra applications #1-#12 were, in effect, small polygon claims within the boundary of the present Kariyarra application. The boundary of the Kariyarra #13 application closely resembled the boundary of the present Kariyarra application.
10 By order made by this Court on 15 February 1999, the Kariyarra #13 application was amended so that henceforth it was combined with, and included, Kariyarra applications #1-#12. Kariyarra applications #1-#12 were combined and continued in and under the Kariyarra #13 application. Further, the Kariyarra #13 application was amended to take the form set out in the Amended Native Title Determination Application (Form 1) filed in support of the amendment application. This amended application was given a new NNTT number (being WC1999/003), although it kept its original Federal Court number (WAD6169/1998). The application was henceforth referred to as the Kariyarra (or Kariyarra People) application.
11 Pursuant to s 66A(5) of the NTA those persons who were parties to Kariyarra applications #1-#12 were considered parties to the Kariyarra application and, as required by s 66A(2) of the NTA, were notified by the Registrar of the combination.
12 The Kariyarra application was subsequently considered by the Registrar pursuant to s 190A of the NTA (commonly known as the registration test). The Registrar was satisfied that the Kariyarra application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 22 April 1999.
13 As originally lodged, the Kariyarra application included land and waters that were also claimed by native title determination application WAD6017/1996 (Ngarluma Yindjibarndi application). Relevantly, the overlap area included portions of Depuch Island and the adjacent mainland at Balla Balla, in addition to a portion of Mungaroona Range Nature Reserve. The Ngarluma Yindjibarndi application was the subject of a litigated determination of native title: at first instance before RD Nicholson J, see Daniel v State of Western Australia [2003] FCA 666 (reasons for judgment); Daniel v State of Western Australia [2005] FCA 536 (determination of native title made on 2 May 2005); and later on appeal before the Full Court of Moore, North and Mansfield JJ, see Moses and Others v Western Australia and Others (2007) 160 FCR 148; [2007] FCAFC 78 (reasons for judgment of the Full Court on appeal); and orders made on 27 August 2007 by the Full Court in WAD114/2005 varying the determination made by RD Nicholson J on 2 May 2005. On 2 May 2005, RD Nicholson J dismissed that portion of the Kariyarra application which overlapped the Ngarluma Yindjibarndi application on the basis that the claim group on whose behalf the Kariyarra application was brought did not hold native title rights and interests in that area. See Daniel at [1163(7)] and Order 24 made by RD Nicholson J on 2 May 2005.
14 On 18 December 2009, the Kariyarra Pipingarra application was filed in this Court pursuant to s 61 of the NTA. The Kariyarra Pipingarra application covers land and waters to the east of the Kariyarra application and adjoins native title determination application WAD6028/1998 (Nyamal) and the Ngarla and Ngarla #2 (Part A) determination area. See Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025.
15 The Kariyarra Pipingarra application was given NNTT number WC2009/003 and was subsequently considered by the Registrar pursuant to s 190A of the NTA. The Registrar was satisfied that the Kariyarra Pipingarra application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 6 May 2010. The Kariyarra Pipingarra application was subsequently notified by the Registrar pursuant to s 66 of the NTA. The period after the notification day referred to in s 66 of the NTA ended on 15 September 2010.
16 Between 2009 and 2011, the applicants in the Kariyarra application and the Kariyarra Pipingarra application and the State commenced negotiations towards a consent determination of native title. However, issues surrounding the membership of the native title claim group and the joinder of certain Indigenous respondents suspended those negotiations. On 9 December 2010, North J made orders to facilitate the appointment of an expert anthropologist to inquire into and report on questions relevant to the composition of the native title claim group, in an attempt to resolve or narrow the claim group dispute. See Roberts v State of Western Australia [2010] FCA 1483. On 11 October 2011, the Court engaged consulting anthropologist Dr John Morton as a Court expert. Dr Morton delivered his report in February 2012.
17 Preservation evidence in the Kariyarra application and the Kariyarra Pipingarra application was received by the Court on 27-30 May 2013 from Irene Roberts and EW (deceased) at various on-country locations in the Kariyarra application area.
18 Further anthropological research was also commissioned by the applicants in the Kariyarra application and the Kariyarra Pipingarra application, including in respect of the traditional laws and customs relating to group membership. Arising out of the research, on 18 and 19 December 2013, the applicants in the Kariyarra application and Kariyarra Pipingarra application filed: (1) interlocutory applications to amend the Form 1 native title determination applications the subject of those proceedings; (2) a statement of facts, issues and contentions as to connection issues; and (3) an expert anthropological report prepared by Dr Kingsley Palmer (Palmer Report) and a supplementary anthropological report on Kariyarra bush tucker and medicine prepared by Amy Usher.
19 On 5 March 2014, the Kariyarra Abydos application was filed in this Court pursuant to s 61 of the NTA. The Kariyarra Abydos application covers land and waters to the east of the Kariyarra application and south of the Kariyarra Pipingarra application. It includes a portion of the Woodstock and Abydos Aboriginal reserves.
20 The Kariyarra Abydos application was given NNTT number WC2014/001 and was subsequently considered by the Registrar pursuant to s 190A of the NTA. The Registrar was satisfied that the Kariyarra Abydos application addressed the criteria of the registration test and the application was entered on the Register of Native Title Claims on 29 May 2014. The Kariyarra Abydos application was subsequently notified by the Registrar pursuant to s 66 of the NTA. The period after the notification day referred to in s 66 of the NTA ended on 15 October 2014.
21 On 9 July 2014 and 5 September 2014, orders were made in this Court granting leave to amend the Kariyarra application and the Kariyarra Pipingarra application by, inter alia, substituting differently formulated native title claim groups. See TR (Deceased) on behalf of the Kariyarra People v State of Western Australia [2014] FCA 734. Following that amendment, the native title claim group descriptions in Sch A of the native title determination applications (Form 1s) in the Kariyarra application, Kariyarra Pipingarra application and Kariyarra Abydos application were identical.
22 Copies of the amended Kariyarra application and Kariyarra Pipingarra application were given to the Registrar pursuant to s 64(4) of the NTA. This triggered the Registrar's duty to consider the claims made in the applications under s 190A of the NTA. As the amendments to the Kariyarra application and Kariyarra Pipingarra application fell outside the scope of s 190A(6A) of the NTA, the claims contained in the applications were considered against all of the conditions in s 190B and s 190C, as required by s 190A(6). The Registrar was satisfied that the amended Kariyarra application and Kariyarra Pipingarra application addressed the criteria of the registration test and each application remained on the Register of Native Title Claims.
23 The Kariyarra claims were subsequently set down for hearing in accordance with programming orders made by this Court on 25 August 2014 and 10 November 2014 (as amended). Pursuant to those programming orders pleadings as to connection issues were exchanged between the parties. Current tenure information was also provided by the State and some other respondent parties.
24 In 2015, the applicants in the Kariyarra claims and the State recommenced negotiations towards a possible consent determination of native title. Due to the progress of those negotiations the remaining programming orders were vacated by the Court on 25 February 2016.
25 On 19 February 2016, the applicant in the Kariyarra Pipingarra filed an interlocutory application seeking orders that certain Indigenous respondents, who disputed the claim group description contained in the Kariyarra claims, cease to be respondents to the Kariyarra Pipingarra application. That application was dismissed on 23 September 2016. See TR (Deceased) on behalf of the Kariyarra - Pipingarra People v State of Western Australia [2016] FCA 1158.
26 On 15 December 2016, the Court ordered that Cyril Gordon, Donny Wilson and Kerry Robinson jointly replace the applicant for the Kariyarra application pursuant to s 66B of the NTA.
27 As the Indigenous respondents to the Kariyarra Pipingarra application continued to oppose the formulation of the native title holding group contained in the Kariyarra claims, also on 15 December 2016 the Court ordered that the following question (the separate question) be determined separately from, and before, any other question in each of the Kariyarra claims: "Who are the persons (if anyone) holding the communal rights comprising the native title claimed by the applicants in the [area of the Kariyarra claims]."
28 On-country evidence in respect of the separate question was received by the Court on 4-8 September 2017 in Port Hedland from the following Aboriginal witnesses called by the applicants in the Kariyarra claims: Margaret Stewart, Rick Watkins, Raelene Button, Jenny Baraga, VL (deceased), Donny Wilson, Diana Robinson, Eileen Rule, Alfred Barker, Jason Alec, Jeannie Snowball and Selina Ali. Between 30 October and 1 November 2017, evidence was heard in Perth from the following Aboriginal and other lay witnesses called by the Indigenous respondents: Mary Attwood, George Dann, Shirley Lockyer, Robert Dann, Patricia Mason, Joseph Kickett and John Patterson. Expert anthropological evidence was heard in Perth on 2 and 3 November 2017 by Dr Palmer (on behalf of the applicants in the Kariyarra claims) and Dr Phillip Clarke (on behalf of the Indigenous respondents).
29 On 29 March 2018, the Court answered the separate question as follows:
The persons holding the communal rights comprising the native title claimed by the applicants in the Kariyarra Claim Area are the persons who comprise the Kariyarra community, being those Aboriginal persons who:
(a) are a descendant, by cognatic descent, from one or more of the following apical ancestors:
(i) Jinapi
(ii) Wirtinpangu (Jimmy)
(iii) Dougal Robinson
(iv) Puyubungu
(v) Yanki Williams
(vi) Topsy McKenna
(vii) Fanny
(viii) Nyitji
(ix) Maggie
(x) Tommy Anderson
(xi) Fauntleroy (Pontroy); and
(b) recognise themselves as having rights and interests in the Kariyarra Claim Area under Kariyarra traditional law and custom, and
(c) are recognised by other members of the Kariyarra community as having rights and interests in the Kariyarra claim area under Kariyarra traditional law and custom.
See Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430.
30 The Court also removed the Indigenous respondents as parties to the Kariyarra Pipingarra application. An application for leave to appeal was filed by the Indigenous respondents, but discontinued before the scheduled hearing of the application and appeal.
31 As a result of that answer and those orders, the applicants in the Kariyarra claims, the State and the other respondents to the Kariyarra claims proceeded to finalise a consent determination of native title over the area of the Kariyarra claims. As part of that process, the applicants in the Kariyarra claims provided the State and the Commonwealth of Australia with evidence (including affidavits from Alfred Barker, VL (deceased), Diana Robinson and Donny Wilson) and submissions concerning the application of s 47A and s 47B of the NTA to various areas within the Determination Area.