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[2022] FCA 993
Federal Court of Australia
2022-08-26
Mortimer J
Original judgment source is linked above.
INTRODUCTION AND BACKGROUND 1 Before the Court are three applications for determinations of native title pursuant to s 225 of the Native Title Act 1993 (Cth). Taken together, the applications cover an area of land and waters in the Pilbara that is 3423 square kilometres in size, with the Ashburton River running through the middle. The area lies between lands and waters previously determined under the NTA to be held by the Jurruru People (to the west), the Yinhawangka People (to the north and east), and the Nharnuwangga People (to the south). The present determination area is depicted in the map at Schedule 2 to the proposed determination. 2 The Court is asked to make orders under s 87 of the NTA that two native titles exist in the area covered by the applications: one held by the Yinhawangka People, and one by the Jurruru People. In relation to the Ashburton River and a strip of land extending south from its southern bank, tracking alongside the river and across the whole determination area, the Court is asked to determine that the two native titles overlap and thus the land and waters are shared. Subject to the determination of a foreshadowed application for costs against the Yamatji Marlpa Aboriginal Corporation, the native title representative body for the region, the proposed determination seeks finally to resolve a long running dispute about the traditional ownership of this area. 3 The complex history of Federal Court proceedings related to this dispute is summarised in Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [18]-[43] and in Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 1122 at [71]-[86]. It is unnecessary to repeat those summaries in full here; it suffices to outline the origins of the three proceedings in which a determination of native title is presently sought, and relevant findings the Court has made in those proceedings to date. 4 The first of the three proceedings was commenced on behalf of the Jurruru People on 24 July 2000, by way of a Form 1 application that became known as the Jurruru #1 Application. It was entered onto the Register of Native Title Claims on 1 March 2001 and subsequently notified by the Native Title Registrar pursuant to s 66 of the NTA. The period of three months after the notification day referred to in s 66(8) and s 66(10)(c) of the NTA ended on 29 August 2001. 5 The Jurruru #1 Application, originally filed with the proceeding number WAD6007/2000 (later replaced by the electronic file number WAD537/2018), was amended pursuant to Court orders on two occasions: once on 19 February 2001, prior to its registration, and once on 6 July 2006. In 2012, the Court made orders to replace the members of the native title applicant: Jurruru People v State of Western Australia [2012] FCA 2. 6 As amended, the Jurruru #1 Application sought a determination of native title in relation to approximately 10,066 square kilometres of land and waters in the Ashburton area northeast of Carnarvon. 7 On 1 September 2015, this Court made a determination of native title by consent under s 87A of the NTA in relation to the vast majority of the Jurruru #1 Application's claim area: Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939. The remainder of the claim area, comprising approximately 2737 square kilometres in the east, became known as "Jurruru #1 (Part B)". 8 After the consent determination in Smirke, the Jurruru #1 Application was amended on three further occasions, most recently on 9 October 2020. The amended application was again entered on the Register of Native Title Claims on 13 November 2020. 9 The second application in these proceedings, the Jurruru #2 Application (WAD538/2018, formerly WAD327/2012), was filed on behalf of the Jurruru People on 22 November 2012. It was notified by the Native Title Registrar pursuant to s 66 of the NTA, the three-month post-notification period ending on 9 July 2013. The Jurruru #2 Application twice failed to meet the conditions for registration that are prescribed in the NTA, for reasons not presently relevant. A further amended application filed on 5 October 2020 satisfied the registration criteria and was entered on the Register of Native Title Claims on 13 November 2020. The Jurruru #2 Application seeks a determination of native title in relation to approximately 666 square kilometres of land immediately adjacent to the eastern boundary of the Jurruru #1 (Part B) claim area. As in other reasons handed down in these proceedings, references to the 'Jurruru applicant' in these reasons are references to the applicant in the Jurruru #1 and the Jurruru #2 applications. 10 The third and final application in these proceedings was filed on 17 October 2016 and registered on 20 April 2017. Its three-month notification period ended on 30 August 2017. This application was made on behalf of the 'Yinhawangka Gobawarrah People', and it has become known as the Yinhawangka Gobawarrah Application (WAD490/2016). Its claim group members largely comprise Yinhawangka People who were determined to hold native title over land and waters to the north and north-east in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801, with one relevant difference: the Yinhawangka Gobawarrah Application identifies Nijawarla as an apical ancestor of its claim group, whereas the definition of the native title holders in Jones does not include this ancestor. 11 The Yinhawangka Gobawarrah Application covers 3423 square kilometres of land and waters. Aside from approximately 20 square kilometres at its northern tip, in which there are no overlapping claims for native title, the claim area of the Yinhawangka Gobawarrah Application is wholly coextensive with the Jurruru #1 (Part B) and Jurruru #2 claim areas. 12 This overlap reflects a dispute between the Jurruru People and a group of Yinhawangka People who identify as Yinhawangka Gobawarrah as to the traditional ownership of the lands and waters in question. As these reasons, and the reasons in Smirke (No 2), make clear, there are some in the current generation of Yinhawangka People who do not agree with the Yinhawangka Gobawarrah claim, and indeed there was one Yinhawangka elder, David Cox, who gave evidence against the claim and in favour of the Jurruru claim. 13 In February 2018, after many failed attempts at mediation, the Court made orders to facilitate the separate determination in each of the three proceedings of the question of who holds native title in the overlap area, and what rights and interests are comprised in that native title or titles. The Court heard evidence on country in July 2019, followed by a tranche of expert evidence heard in Perth in December 2019 and closing submissions in February 2020. The Jurruru applicant submitted that the evidence showed that the land in the overlap area belonged to the Jurruru People. The Yinhawangka Gobawarrah applicant contended that they had proved that the Yinhawangka Gobawarrah People held rights and interests in the land that were derived from under the same Yinhawangka traditional laws and customs as those recognised in Jones, but which formed a separate Yinhawangka Gobawarrah native title. 14 On 2 December 2020, the Court published orders and reasons in Smirke (No 2) determining that, but for any extinguishment, native title is held by the Jurruru People in relation to most parts of the overlap area south of the Ashburton River, and by the Yinhawangka People in relation to the parts of the overlap area north of the Ashburton River. 15 In its reasons, at [13]-[14] the Court emphasised the critical role of the burden of proof, and the realities of what was possible, and not possible, in the task of attempting to reconstruct what the position in a claim area was at sovereignty, and moving forward from that time. It did so by adopting what was said in Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 at [13]: As I explain below, the Court's answers to the separate questions depend on reaching a view about what, on the evidence before it, are more likely than not to be the facts. That is what the civil standard "balance of probabilities" means. The Court does not decide what the "truth" is in any absolute sense. The Court is not in that sense the arbiter of history. The Court decides whether the party who must prove the necessary facts has shown the facts it contends for are more likely than not to have existed. In circumstances which involve the level of historical reconstruction that these separate questions do, that is not only all that is required; it is all that can reasonably be expected. This exercise is carried out on the basis of the evidence adduced, and inferences which can reasonably be drawn from that evidence. The Court must assess what, reasonably and rationally, can be made of the evidence before it. It does so from a more objective perspective than that brought by the parties, and for that reason, it may well see some evidence as persuasive although one party does not. Conversely, it may see other evidence as unpersuasive, although a party, its expert or the claim group members find that evidence persuasive. Even where the task is challenging, and the evidence pulls in different directions (as it does in many of the factual issues to be resolved in these separate questions), the Court's function is to make a decision, and to decide if the party with the onus of proof has discharged it. 16 Importantly for the terms of the determination that the Court has been asked to make today, in Smirke (No 2), the Court held that the Ashburton River itself, and at least some sites in the area around its southern banks, were more likely than not traditionally shared country. There was some evidence about one site in particular, Jabaguru, but even in relation to this site, the Court found the evidence did not favour native title being held by only one of the two contesting groups. At [526]-[527]: The detailed knowledge about distinctions between kinds of traditional or customary interests in a site such as Jabaguru has been lost to time. Neither native title applicant has proven on the balance of probabilities that Jabaguru was an area in which only one of the Jurruru or the Yinhawangka had rights and interests of a possessory or ownership nature. In my opinion the evidence available to the Court can only lead to the conclusion that it is more likely than not that Jurruru and Yinhawangka groups (and perhaps Ngarla as well) had traditional and customary interests in the area, and that both those sets of interests had a possessory or ownership character - but how they were worked out as between these groups is simply not knowledge any longer available. As the later part of these reasons explains, it is not possible for the Court on the available evidence or draw a particular line on a map in the surrounds of the Ashburton River about where Yinhawangka country finishes and Jurruru country begins. The area of Jabaguru likewise cannot be delineated between the groups. In the first instance, the two groups will need to try and negotiate an outcome based on the Court's findings. Failing agreement, further and more specific evidence might be required. 17 At [852], the Court's reasons explain further why the evidence did not support the proposition that the Ashburton River operated as some kind of "hard boundary" between the Yinhawangka and the Jurruru: Relying on Dr Palmer's opinions, which I have generally found the most persuasive, and accepting the "at sovereignty" source material is thin, I consider it is more likely than not that the estate groups which did exist, did not have rights and interests in the land and waters which treated the Ashburton River as some kind of hard boundary. Some groups are more likely to have spilled over on both sides, some may have had country for which they asserted possessory rights located further away from the river. It is difficult to discount the possibility that there may have been Yinhawangka-identifying people in at least some areas to the south of, but close to, the river, although as Dr Palmer explained probably not very far south. 18 The Court therefore gave the parties an opportunity to try to negotiate about the area around the Ashburton River, with the proviso that if they could not agree, a further trial would be necessary: Smirke (No 2) at [7]-[8]. 19 The Court determined that the rights and interests in the Jurruru native title were the same as those in the native title determined in Smirke. In relation to the Yinhawangka native title, the Court held that there was no separate Yinhawangka Gobawarrah native title, and that those who constitute the Yinhawangka Gobawarrah claim group would hold native title in relation to certain parts of the claim area with at least some other members of the Yinhawangka People: Smirke (No 2) at [1292]. 20 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. 21 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. 22 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. 23 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). 24 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. 25 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. 26 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 27 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). 28 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. 29 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 30 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. 31 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. 32 I accept these submissions. 33 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. 34 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. 35 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. 36 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.) 37 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. 38 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. 39 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". 40 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 41 The applicants in these proceedings have requested the Court make determinations for separate PBCs to hold the Jurruru and Yinhawangka native titles. 42 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. 43 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. 44 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? 45 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? 46 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. 47 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. 48 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. 49 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. 50 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. 51 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. 52 The situation which now confronts the Court is the situation expressly left open by the Full Court in Drury at [74]. 53 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. 54 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. 55 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. 56 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. 57 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 58 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 59 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 2016 Federal 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 2018 Federal 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 2018 Federal 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.
Smirke on behalf of the Jurruru People
State of Western Australia
017] 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 1122 Smirke 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
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: