Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia

1. Pursuant to r 9.05(1) of the Federal Court Rules 2011 (Cth), Yinhawangka Aboriginal Corporation RNTBC ICN 7837 (YAC) be joined as a respondent party to proceeding WAD490/2016.
2. The participation of YAC in proceeding WAD490/2016 be limited to resolving whether it is to hold the rights and interests comprising the Yinhawangka native title in trust for the common law holders.
3. YAC is to participate in a case management process with the Yinhawangka Gobawarrah applicant and the State of Western Australia before Judicial Registrar McGregor, including the Jurruru applicants as Judicial Registrar McGregor sees fit, to: (a) attempt to bring forward the holding of its proposed meeting with the common law holders; (b) assist in discussions with the YAC Board; and (c) revise, if necessary, the present timetable attached to the orders made on 24 February 2022.
4. Judicial Registrar McGregor is to give such directions to the parties to attend further mediation sessions as she considers appropriate.
5. There be no order as to the costs of this application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 I consider it is appropriate for the Yinhawangka Aboriginal Corporation RNTBC ICN 7837 (YAC) to be joined as a party to proceeding WAD490/2016. The State's interlocutory application for joinder will therefore be upheld. In substance, I accept the State's submissions on joinder and I accept that YAC is an appropriate and necessary party to the proceeding, given the findings of the Court about the native title holders for the relevant part of the overlap area. 2 YAC was represented at the hearing of the interlocutory application. Mr Hunter, making submissions on behalf of YAC, informed the Court that YAC did not oppose the orders sought by the State, but explained why the board of YAC preferred to adopt a relatively neutral position, rather than consent to those orders. I accept that the question of perceptions and apprehensions amongst native title holders and claim group members in relation to the overlap area may be a relevant consideration in the board's position. The Court certainly does not criticise the board for the position it has adopted on this application. 3 The Jurruru applicant in WAD537/2018 and WAD538/2018 was also represented at this hearing. By making no active submissions, the Jurruru applicant's representative appropriately recognised the joinder issue is not one that affects his client's interests directly. The Yinhawangka Gobawarrah applicant in WAD490/2016 supported the joinder application. 4 At a case management hearing on 16 February this year, the Court was informed the parties proposed consent determinations of native title in respect of the overlap area covered by the three proceedings, pursuant to s 87 of the Native Title Act 1993 (Cth). Preparations are somewhat advanced towards that outcome and the State has been instrumental in the preparation and drafting of a proposed minute of consent determination, as well as preparing tenure material. These steps are presently the subject of orders which have those steps due to be completed by May this year, with a final minute proposed to be executed and filed in late May 2022. I return to why that timetable is important later in these reasons. 5 In its decision on separate questions stated by the parties, the Court decided, amongst other matters, that the area around and to the north of the Ashburton River was land and waters over which native title exists and that it is native title held by the members of the Yinhawangka Gobawarrah claim group commonly, with at least some of the other members of the Yinhawangka people, and, further, that it is the Yinhawangka traditional law and custom which gives rise to those native title rights and interests: see Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [1292]. 6 Since that decision was handed down, the Yinhawangka Gobawarrah applicant and its legal representatives have, I am satisfied, worked steadily and in good faith to encourage YAC and the wider members of the Yinhawangka native title holding group to understand the effect of the Court's decision and to make a decision about whether YAC would accept an invitation from the Court pursuant to s 56(2) of the Native Title Act to indicate whether the Yinhawangka native title holders intend YAC to hold the native title for the Yinhawangka part of the overlap area in trust. 7 Despite the best efforts of the Yinhawangka Gobawarrah applicant and its legal representatives, the position of the YAC has remained unclear. That is a matter of some regret and it is important for the members of the board of the YAC to understand that the lack of that the lack of clarity about their position is holding up the native title determinations in these matters. From here on, their position will be at least to a great extent responsible for any delay in the recognition of native title in this area. 8 In my opinion, based on the Full Court's decision in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69; 276 FCR 203, YAC is likely to be the appropriate prescribed body corporate (PBC) to be determined under s 56(2) of the NTA. The native title it holds pursuant to the determination in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 is the same native title as the Court has found exists in relation to the areas at and to the north of the Ashburton River in the overlap area. In both cases it is Yinhawangka traditional law and custom which gives rise to the rights of interests in the land and waters concerned; that is a finding the Court has made. 9 It is necessary, as the State submitted, in those circumstances, that YAC be "in the room" and subject to the supervision of the Court in how effect is given to the Court's findings. If the Yinhawangka native title holders do not agree in a timely fashion to YAC becoming the PBC for the northern part of the overlap area, if I can call it that by way of shorthand, then the Court may need to consider taking the necessary steps to appoint the Indigenous Land and Sea Corporation as an interim PBC: see, generally, my reasons in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497, and see also Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 276, a decision of Banks-Smith J. However, even on this scenario, which the Court hopes does not eventuate, YAC should, nevertheless, be involved in this proceeding as a party. It is clear that its interests are affected and it is appropriate that it is a party to the proceeding. I make those observations about appointment of the Indigenous Land and Sea Corporation only to emphasise that the Court will not allow the overlap area to remain undetermined for very much longer. 10 That brings me to what Mr Hunter has informed the Court about today in terms of the plans of the board of YAC about future meetings. Mr Hunter informed the Court that YAC is planning to hold consultation meetings in April 2022 and hopes to hold a full meeting of common law holders in June 2022 about this question of whether it will accept a nomination of the PBC for the northern part of the overlap area. Now, that proposed timing is considerably outside the timing for which the Court's present orders provide in terms of finalising these three proceedings by consent determination. Mr Hunter informed the Court of sorry business within the Yinhawangka community and ongoing issues with COVID-19 both of which he submitted have posed some challenges for the board in terms of the timing of these meetings. 11 The separate question in this proceeding was decided in 2019, more than two years ago. These proceedings are long overdue for determination and the Court is acutely conscious of the circumstances of elders in both the Jurruru and Yinhawangka groups. As with other matters, the Court accepts people may have various challenges in discharging their responsibilities that they have assumed under the Native Title Act, but, nevertheless, they must attempt promptly and in good faith to discharge those responsibilities and if they prove they cannot, then the Court will do what it has within its power to ensure that the native title that it has found ought to be recognised is recognised. 12 Having heard where matters are up to, particularly in relation to the YAC, I consider it is appropriate to make some additional orders as well as the joinder orders to ensure that parties now, after the making of these orders, including YAC, have the opportunity for constructive discussion and confidential discussion if need be. I propose to make orders referring the next steps to Judicial Registrar McGregor, who will be able to assist the parties with those discussions both in an open and in a confidential setting. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.