The Court's relevant findings in Smirke (No 2), by which the parties are bound
87 It should be recalled, as I have in previous judgments in relation to these claims, that committed, sustained and resource-intensive efforts were made by two experienced Registrars of this Court to facilitate the mediation of the dispute in respect of the overlap area. The Jurruru applicant and the YG applicant were given ample opportunities to agree on an outcome between them, and to remove the risk that the Court would make decisions wholly in favour of one party or another, or decisions with which neither of them were entirely satisfied. The latter might describe what occurred in the Court's decision in Smirke (No 2).
88 There was no application for leave to appeal by any party from the Court's answers to the separate question in Smirke (No 2). While the parties would have remained bound by the Court's answers in Smirke (No 2) unless and until they were set aside after the grant of leave to appeal (assuming leave was granted), the existence of an application for leave to appeal was likely to have, in effect if not by order, stayed any further steps towards determinations of native title in the overlap area. The absence of such an application meant there was no reason to postpone moving towards determinations of native title in the overlap area, especially since these claims have remained outstanding (in one form or another) for almost a quarter of a century.
89 Relevantly to the present issue, the parties are all bound by the following findings of the Court in Smirke (No 2).
90 The overarching finding (as the answer to one of the separate questions) was that native title (in the Yinhawangka area, and the yet-to-be-determined boundary region around the Ashburton River) is held by members of the Yinhawangka Gobawarrah native title claim group as Yinhawangka people, under Yinhawangka traditional law and custom.
91 The Court found that the YG were not a community which observes and adheres to a distinct system of traditional law and custom from other Yinhawangka People. It also found the YG applicant had not proven that there is anything in traditional Yinhawangka law and custom which provides for the separate and distinct holding of native title by a sub-set or sub-group of Yinhawangka People who are descended from certain apical ancestors: see Smirke (No 2) at [4].
92 The Court found the parties did not spend a lot of time in evidence or submissions on the content of the native title rights and interests. On the basis of the evidence as it stands, and having given primary weight to the fact that there are existing determinations for the Jurruru People and for the Yinhawangka People, the Court found that the content of the rights should be determined to be the same as the rights set out in the respective determinations in Smirke (No 2) and in Jones: [9].
93 The Court found David Cox, a senior Yinhawangka man who gave evidence for the Jurruru in Smirke (No 2), held considerable antagonism towards the YG claim and claim group members. At [245] the Court found:
It seems likely his antagonism has several sources. I accept Dr McGrath's opinion that in part it could well be sourced in feeling disrespected as a Yinhawangka person by a claim made over an area he does not consider to be Yinhawangka country. How that sits with his apparent acceptance, at least until his oral evidence in the GMY preservation hearing, of the Yinhawangka Part B determination extending to areas Mr Cox considers to be Jurruru country was not really explored in the evidence. Nor was his concession about the extent of Jiwarlangu's country. There is something of a contradiction in Mr Cox's positions during his evidence. It may well be explained by his evidence about the 2001 and 2010 boundary agreements, to which I refer below. In my view, it is likely Mr Cox believed agreements had been struck in 2001 and then again in 2010 and they should be honoured, irrespective of whether that meant the allocation of country which did not entirely accord with a traditional understanding of where the boundaries lay. What this means for the separate questions is a matter to which I return later in these reasons. On this basis, I consider his evidence needs to be approached with some care.
94 The Court made findings about the reasons for, and significance of, the "boundary agreements" in 2001 and 2010 which purported to favour all of the overlap area being Jurruru country. At [468]-[471], the Court made a number of findings about this matter, concluding with the following findings (at [472]):
The difficulty in this evidence [referring to some of Mr Cox's evidence], especially the last piece is that David Cox, on his own evidence, does not consider areas such as Ngulunganga (Mt Elephant) to be Yinhawangka country and yet he agreed, in 2001, to the boundary being set so that would be the outcome. I infer he well knew and understood these matters at the time. Ngulunganga is a significant site in the region. I find that what occurred was that he, and it would appear, other Yinhawangka people, participated in a boundary negotiation which, as counsel for the Yinhawangka Gobawarrah applicant described it, had some pragmatism to it. The 2001 agreement did not reflect the views of all senior Yinhawangka people about the boundaries of their country: it reflected an agreement they were prepared to make, and live with, with the Jurruru, and to make while excluding the GMY claimants. Despite Dr McGrath's opinions, it does appear the two sides essentially split the overlapping area in half. People such as Brendan Cook took responsibility for drawings lines on maps in relation to country they had never visited. The evidence suggests little that was "traditional" about what occurred in 2001. The exclusion of Mabel Tommy might be explained by gender factors (although no witness did), but the exclusion of Jambu Giggles cannot be. The evidence suggests pragmatism. The evidence about the 2001 negotiation also reveals a desire to cut out the GMY claim group, based in my opinion by this stage more on personal animosities than anything to do with traditional law and custom. This animosity extended to not wanting to listen to and watch the tapes from the Haydock materials in order to see why Mabel Tommy was explaining that at least some of the overlap area was country passed down from her ancestors. The principal Yinhawangka people were simply not open to discussion about the overlap area, despite what is now acknowledged to be the objective quality of what Mrs Tommy was saying, according to (amongst others) Dr McGrath, although I accept she did not see these materials until 2019.
95 At [616], the Court held that both Jurruru and Yinhawangka Peoples were language identity groups, and (as Dr Palmer described it, in a passage the Court expressly adopted), within each language group, "share laws, customs and normative referents in common". At [627]-[631], the Court described the key features of the determination in Jones, identifying at [628] the three aspects of group membership - a descent-based pathway, mutual recognition as Yinhawangka and "connection" with the land and waters which are the subject of the determination.
96 At [631], while accepting that the description of the native title holders in the YG claim was slightly different, the Court found:
On one view, this is a result of the circumstances and history of the Yinhawangka Gobawarrah claim; but on the evidence there is of course no doubt that the Yinhawangka Gobawarrah claim group members are, and have been, identified by other Yinhawangka People as Yinhawangka.
97 At [1227], in the section of the Court's reasons dealing with what might be called the "sub-group/not a traditional group" contentions, and having referred to the Full Court's decision in Ward, the Court found:
This, with respect, is precisely what has occurred in the Yinhawangka Part A and B determination. A single native title holding group is identified, but the descent connections of particular families or groups to particular areas or sites within the determination area may well lead to a differential exercise of native title rights within the group. The traditional law and custom which is the source of the Yinhawangka native title allows for the intramural allocations of rights and responsibilities for particular areas.
98 At [1228]-[1231], the Court found this characterisation supported by the Full Court's reasons in Northern Territory of Australia v Alywarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; 145 FCR 442 at [81] and [86]. The controlling effect of the Jones determination was a feature of the State's submissions in Smirke (No 2): see [1232]-[1233].
99 In substance, the Court found that the lay evidence from witnesses for the YG applicant supported an approach which saw the Yinhawangka area as land and waters where rights and interests arose from Yinhawangka traditional law and customs. For example, at [1244], in relation to Nancy Tommy:
Again, Nancy Tommy is not in my opinion indicating that the GMY or Yinhawangka Gobawarrah hold rights separately and independently from other Yinhawangka; she is indicating her understanding of a descent-based system where, intramurally, different people may speak or have responsibilities for, and have particular affiliations to, particular areas.
100 At [1292]-[1293], the Court made the following finding on the nature of the native title to the Yinhawangka area:
In my opinion, the evidence does not support the Yinhawangka Gobawarrah applicant's contention that, as a group, they hold a native title in the overlap area (or parts of the overlap area, on my findings) which is a separate and distinctive native title from the Yinhawangka People. Rather, in my opinion, native title is held in those parts of the overlap area I have identified in these reasons by the Yinhawangka People, including the members of the Yinhawangka Gobawarrah claim group. It is the traditional law and custom of the Yinhawangka People which connect them to that land and waters. It is not any separate system of law and custom. Further, there is no proven aspect of Yinhawangka traditional law and custom which apportions separate and distinct rights and interests to a sub-group of people.
Rather, the evidence suggests, as it does for other areas of the Yinhawangka Part A and B determination, that certain people have particular associations or affiliations with certain parts of the land and waters over which native title is held, and assume particular responsibilities for certain areas, or may be recognised as able to "speak" for those areas. The evidence shows those circumstances may arise because of the acquisition of rights through descent from particular ancestors. It may arise though other matters - birth, death and burial, lived association, and the like. Those matters are not the source of the rights, but they are aspects of traditional law and custom which form part of the connection of the Yinhawangka People to their land. They are, nevertheless, matters for intramural allocation.
101 At [1295], the Court found this was more likely than not to be the way elders such as Mabel Tommy understood the traditional rights and interests in this area:
She identified herself as a Yinhawangka person first, but she had a view that her ancestors' country ran all the way down to the Ashburton River, a view which I have in substance upheld in this proceeding
102 Then, at [1300], the Court found:
On the evidence then, this aspect of the Yinhawangka Gobawarrah case must fail. The evidence, lay and expert, and the accounts from Mabel Tommy, Jambu Giggles and Muyit Smith in particular, establishes comfortably that the Yinhawangka People are a single community, with shared customs and traditions, and shared laws about the acquisition of rights in land and waters, although within that single community there may be descent-based groups with particular affiliations and responsibilities for particular areas. I am satisfied this was the kind of affiliation and responsibility of which Mabel Tommy spoke, when she described those areas of country around the Ashburton River she felt responsible for, having inherited that responsibility from her parents and grandparents. But she did so as a Yinhawangka person, recognising and adhering to what she understood to be Yinhawangka law and custom, the same law and custom which governed her, and her family, in relation to the land and waters which are covered by the Yinhawangka Part A and B determination. The fact this determination was not made until sometime later does not affect how her accounts in 1999 are to be understood - she was, I am satisfied, speaking about law and custom operating across all of Yinhawangka country.
103 Lastly, at [1303], and following decision in Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; 261 FCR 183, the Court found that the existence and content of the Yinhawangka native title determination in Jones precluded a finding that there was a YG sub-group which, amongst only themselves, held native title to the Yinhawangka area. Having set out various passages from the Court's reasons in Jones, and also the group membership description in Schedule 7 to the Determination, the Court held (at [1308]-[1309]):
These are descriptions which plainly equate with the descriptions of a single community made up of various descent groups, with connections to particular areas within the wider country held communally by the whole group, as described by the Full Court in Alyawarr[a] in the passage I have extracted at [1229] above, and consistently with the principles set out in Bodney v Bennell and Croft to which I have earlier referred. In the face of that determination, it is difficult to see how this aspect of the Yinhawangka Gobawarrah's case could ever have succeeded. However, as I have found, it also fails on the accounts given by Mabel Tommy, Jambu Giggles and Muyit Smith, the principal sources of the Yinhawangka Gobawarrah applicant's positive case.
While I accept Jones was a consent determination, and therefore more flexibility may have been applied to the establishment of the requirements in s 223 of the Native Title Act, the members of the Yinhawangka Gobawarrah claim group, as native title holders in Jones, are bound by that determination. Their present case seeks to depart from its premises in a fundamental way.
104 At [1310], the Court confirmed that the group which holds native title to the Yinhawangka area is the Yinhawangka People, as well as recognising at [1311] that not all Yinhawangka people would welcome this finding.