Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia - [2017] FCA 1299 - FCA 2017 case summary — Zoe

[8]

Relationship between native title rights and other interests (s 225(d) Native Title Act) 9. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and the Other Interests apart from exploration licence 47/1349 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. 10. Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 3 and 4 and exploration licence 47/1349 is that: (a) to the extent that the rights under the licence are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the rights under the licence continue to exist in their entirety, but have no effect in relation to the native title rights and interests to the extent of the inconsistency during the currency of the licence; and otherwise, (b) the existence and exercise of the rights under the licence do not prevent the doing of any activity required or permitted to be done by or under and in accordance with the native title rights and interests, and the doing of such activities prevails over the exercise of any rights under the licence to the extent of inconsistency with those rights.

[12]

Then northwesterly to the intersection of a western boundary of Pastoral Lease N050483 (Mt Florance) with Latitude 22.210019 South being a point on the present boundary of Native Title Determination WAD6208/1998 Eastern Guruma (WC2007/001) and then generally northwesterly along the boundaries of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 31 July 2017. Cockeraga River data based on 250K vector data © Commonwealth of Australia (Geoscience Australia) 2008. For the avoidance of doubt the application excludes any land and waters already claimed by: Native Title Determination WAD6017/1996 Ngarluma/Yindjibarndi (WCD2005/001) as Determined in the Federal Court on the 2nd May 2005. Native Title Determination WAD6096/1998 Banjima People (WCD2014/001) as Determined in the Federal Court on the 11th March 2014. Native Title Determination WAD6208/1998 Eastern Guruma (WCD2007/001) as Determined in the Federal Court on the 1st March 2007. Native Title Determination WAD6090/1998 Kuruma Marthudunera (Part A) (WCD2016/006) as Determined in the Federal Court on the 1st November 2016. Native Title Determination Application WAD6169/1998 Kariyarra People (WC1999/003) as Registered in the Federal Court on the 22nd April 1999. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 18th October 2017 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 to 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: Exclusive Area The Exclusive Area, shaded in green on the maps in Schedule 3, comprises: Areas where section 47A applies Reserve 31428 Areas where section 47B applies UCL 01, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed UCL 02, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed UCL04 UCL06 UCL 07, except to the extent covered by: (a) mineral lease AML70/00004; and (b) miscellaneous licence 47/47 as at the date the application was filed. UCL08 UCL09 UCL10 UCL11 UCL13, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed UCL14 UCL17 UCL18 UCL19 UCL22 UCL23 UCL24 WATER1, except to the extent covered by mineral lease AML70/00004 as at the date the application was filed

[15]

Roads and associated features (a) 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) and Native Title (Effect of Past Acts) Act 1995 (WA)), including the following: MapInfo ID Description Shown /referred to in ROAD 01 Roebourne-Wittenoom Road, including a 200m-wide corridor Cancelled public plan 503 154 (97/300) dated 30 June 1941 1: 250,000 plan for Pyramid (SF50-7, Edition 1) Map 2553 1: 100 000 plan for Wittenoom (Edition 1) ROAD 02 Road 1644 Government Gazette 31 July 1903, 1 April 1904, 4 December 1914 Cancelled public plan 505 558 dated 28 March 1894 Cancelled public plan 506 648 dated 15 August 1903 HISTORICAL ROAD 01 Nanutarra-Wittenoom Road, including a 200m-wide corridor Cancelled public plan 502 692 dated August 1963 1: 250 000 plan for Mt Bruce (F50) dated January 1969 1: 250 000 plan for Mount Bruce (SF50-11, Edition 1) Map 2553 1: 100 000 plan for Wittenoom (Edition 1)

              Fortescue Valley Crossing Road                                                            Map 2553 Wittenoom 1:100 000, dated 20 March 1996
                                                                                                        Plan LAWA 1221 dated 29 November 1996
                                                                                                        Government Gazette 15 July 1997, 18 May 1999

              Hooley Road (north-south road from Hooley Station homestead to Roebourne-Wittenoom Road)  Map 2553 Wittenoom 1:100 000, dated 20 March 1996
                                                                                                        1: 250,000 plan for Pyramid (SF50-7, Edition 1)
                                                                                                        Map 2553 1: 100 000 plan for Wittenoom (Edition 1)

              Hooley Road (east-west road from Hooley Station homestead to Roebourne-Wittenoom Road)    Cancelled public plan 503 155 (97/3000) dated 9 November 1951
                                                                                                        1: 250,000 plan for Pyramid (SF50-7, Edition 1)

[39]

The FMG note issue - consideration 5 I reject FMG's argument as untenable. It ignored the express words of ss 47A(2) and 47B(2) that require that any extinguishment of the native title rights and interests in land and waters to which either section applies "must be disregarded" for "all purposes under this Act". Since s 11(1) provides that "Native title is not able to be extinguished contrary to this Act", there are no situations in which anyone can have had any rights or interests in land or waters to which ss 47A(2) and 47B(2) might apply prior to a determination of native title that are inconsistent with the rights and interests as recorded in the determination itself: see Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 453 [75]-[76] per Gleeson CJ, Gummow and Hayne JJ, McHugh J agreeing at 467 [127]-[128], 468 [134]; and my principal reasons at [350]-[351]. As Mansfield, Kenny, Rares, Jagot and Mortimer JJ held in Banjima People v Western Australia (No 2) (2015) 328 ALR 637 at 648 [35]: The ordinary and natural meaning of "disregard" is "to treat as of no importance; to pay no attention to" (Oxford English Dictionary online, sense b.) and "to pay no attention to; leave out of consideration" (Macquarie Dictionary online, sense 1). The legislative command in s 47B(2) is to pay no attention to any extinguishment of native title rights and interests in relation to that area that are claimed in the application where that area satisfies one of the three criteria in s 47B(1)(b) and each criterion in s 47B(1)(a) and (c). (italic emphasis in original; bold emphasis added) 6 FMG did not argue that Banjima 328 ALR 637 was wrongly decided. The effect of the activities on which the Yindjibarndi relied to establish occupation and the legal effect of the six exploration licences were the only matters on which the State and FMG had relied to defeat the operation of ss 47A(2) and 47B(2) in relation to the relevant areas of land and waters. I found that the Yindjibarndi had established that one or more members of the claim group had occupied the respective land and waters and that those prior interests did not operate to extinguish native title over the land and waters that each affected. Accordingly, by force of ss 11(1), 47A(2) and 47B(2) no extinguishment of native title rights and interests ever occurred in respect of those areas of land and waters. 7 Moreover, in Gumana 141 FCR at 528 [268] Selway J rejected an argument that s 47A conferred on this Court a non-judicial function of creating new rights. Rather, he found that the Act itself, by requiring the Court to disregard any interest that met the statutory preconditions in s 47A(1), resulted in the "creation" of the rights when the final determination gave effect to the legislative requirement in s 47A(2) of disregarding any act that at common law would have extinguished native title. 8 When the Court applies either of ss 47A(2) or 47B(2) in making a final determination it is exercising judicial power in the sense described by Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188. In such a case, the Court is making a binding declaration of right (subject to its indefinite character as explained in Western Australia v Ward (2002) 213 CLR 1 at 71-72 [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and my principal reasons at [350]-[354]) by way of the adjudication of a dispute about rights and obligations arising from the operation of law (here, the Act) upon past events or conduct. The Court does not create any new rights when making a final determination of native title under s 225 of the Act including when it specifies, in such a determination, the legal consequences for which ss 47A(2) or 47B(2) provide. 9 While a determination made under s 225 of the Act may be seen as a new development, it is not itself creative of any new rights or interests. Rather the determination recognises what has not been extinguished in accordance with the Act and so confirms the existing rights and interests in the land and waters, just as Mabo v Queensland (No 2) (1992) 175 CLR 1 recognised that at common law native title rights and interests in land and waters had survived the Crown's acquisition of sovereignty and radical title (see 175 CLR at 69 par 3 per Brennan J). 10 A final determination is declaratory of the rights and interests that the Court has ascertained by applying the Act, and any other applicable law (whether statutory or judicially decided), to the facts as found by the Court. 11 For these reasons, the note should not be included in the final determination that I will now make.

[41]

The Todd declaration issue - consideration 16 In my principal reasons I found that: one of the Todd respondents' two apical ancestors, Winningbung, was not Yindjibarndi ([407]); the Todd respondents did not have a Yindjibarndi ancestor [509]; the Todd respondents and their living family members were not Yindjibarndi ([513]-[514]); all of the Yindjibarndi, in authorisation meetings held for the purpose of authorising this proceeding, had said that the Hicks and Todd families were not Yindjibarndi ([503], [506], [515]); none of the relatives of the Todd respondents who claimed to be Yindjibarndi, and entitled to join YAC, was Yindjibarndi ([502]-[503], [506], [515]). 17 In the circumstances, the Todd respondents, supported by WMYAC and its resources, as well as by FMG, did not make out their claim to be Yindjibarndi. Their other living relatives did not apply under s 84(5) of the Act to be joined to this proceeding, but by their conduct appeared to be content for the three Todd respondents to make the claim, on their behalf, that they all had a right to be recognised as Yindjibarndi: cf Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 at 102; Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 403 per Barwick CJ (with whom McTiernan J agreed at 405), at 405 per Menzies J and at 459-460 per Stephen J both of whom agreed with the Chief Justice and Gibbs J on this point, and at 456 per Gibbs J. That is why I was not satisfied, first, that the Todd respondents had established that they are Yindjibarndi and, secondly, that any of their living family members had established that they are either (at [513] of my principal reasons). 18 As I noted in my principal reasons at [514], I formed the impression that, Nibbin, the second indigenous apical ancestor of the Todd respondents, appeared to be a Mardudhunera or a Ngarluma, although she may have been a Kariyarra. Moreover, I was not satisfied that the Todd respondents had proved, if (as I found at [513]) they had the onus of proof, that Nibbin was a Yindjibarndi. However uncertain the position was with Nibbin's heritage, I was satisfied that the whole claim group had said that the Todd family was not Yindjibarndi in the authorisation meetings for the present claim (see my principal reasons at [475], [515]). That occurred well before the divisions that occurred in the claim group which led to the foundation in 2010 of WMYAC (see [391]-[392] and [506] of my principal reasons). 19 Moreover, Charlotte Lockyer, Nibbin's daughter, is an apical ancestor for the Ngarluma township claim and, as Prof Trigger recognised, that indicated that she had elected to follow the Ngarluma language group, if she had had a choice between being a member of that group and being Yindjibarndi (see [420]-[421] of my principal reasons). 20 In all of the circumstances, I am of opinion that the appropriate way in which to reflect my findings is to make more limited declarations that, first, the apical ancestor of the Todd respondents, Winningbung, was not Yindjibarndi and, secondly, to the effect, as the claim group had decided in authorising this proceeding, the Todd respondents and their living family members are not Yindjibarndi. However, the Todd respondents argued that the use of the phrase "their living family members", if used in a declaration, would create imprecision and ambiguity because it could include relatives who were descended from ancestors who were themselves Yindjibarndi. I accept that submission. 21 Since I found that the Todd respondents did not have a Yindjibarndi ancestor, it follows that they, their siblings and all of their children are not Yindjibarndi. However, it may be that the later issue of those children can become Yindjibarndi if the other parent of any such issue is Yindjibarndi and the issue (being a child of a descendant of any of the Todd respondents or their siblings and a Yindjibarndi parent) has elected, or being capable of making an election does elect, to be Yindjibarndi. The final form of declaration should preserve the rights of any such issue to follow his or her Yindjibarndi parent (being the non-Todd family parent). 22 In my opinion the following declarations will adequately identify the family members to whom it applies so as not to affect adversely persons who have or will have a parent who is one of the Yindjibarndi people, as defined in the determination: Winningbung was not Yindjibarndi and is not an apical ancestor of the Yindjibarndi People; None of the following is one of the Yindjibarndi People: (a) Phyllis Harris (neé Todd), Lindsay Todd and Margaret Todd (the Todd respondents); (b) the siblings of the Todd respondents (the siblings); (c) the children and later issue of the Todd respondents and the siblings unless the other parent of any such child or issue is one of the Yindjibarndi People and the child or issue has elected, or is capable of electing and does elect, to be Yindjibarndi.

[43]

Conclusion 24 Today marks the conclusion of this proceeding. The final determination that the Court will make records, as s 225 of the Act requires, that the Yindjibarndi are the persons who hold the common or group rights comprising the native title in the claimed area (s 225(a)), the nature and extent, in the claimed area, of, first, their native title rights and interests, secondly, any other rights and interests, and, thirdly, the relationship between the two (s 225(b), (c) and (d)), and, to the extent that the land and waters in the claimed area are not covered by a non-exclusive pastoral lease, the extent that I have found in my principal reasons that the Yindjibarndi's native title rights and interests are exclusive (s 225(e)). 25 The determination of native title, that I am now making, is a formal order of the Court. That order acknowledges that the Yindjibarndi people not only possess today, but also have continuously possessed, since before the British Crown claimed sovereignty over Australia, specific native title rights and interests in the claimed area that have not been wholly or partially extinguished. Those are the rights and interests that exist under the traditional laws that the Yindjibarndi people acknowledge and the traditional customs that they observe by which they have a connection with the claimed area and which Australian law also recognises. 26 YNAC will hold the native title rights and interests identified in the determination on trust for the Yindjibarndi people (s 56(2)(b)). The final orders will also declare that, first, Winningbung was not Yindjibarndi and, secondly, the Todd respondents and their siblings are not Yindjibarndi nor are their children and later issue, unless the child or issue has a Yindjibarndi parent and has elected to be Yindjibarndi. 27 All of the Yindjibarndi people, regardless of whether they support WMYAC or not, are now entitled to the benefit of the exclusive and non-exclusive rights and interests that YNAC will hold in trust for them in large parts of the claimed area. That area they know, is to the south of where the Court has convened today here at Millstream. 28 I have found they have exclusive possession rights and interests over the Yandeeyara Reserve, unallocated Crown land around Garliwinjinha, Bangkangarra, including FMG's Solomon Hub mine, and some other areas of unallocated Crown land. 29 In addition, however, the determination also specifies land and waters where acts, like the grant of a freehold interest or a pastoral lease, have extinguished wholly or partly the pre-existing native title rights or interests. So, the determination records that there are large areas over which the Yindjibarndi have and will continue to enjoy non-exclusive legal rights and interests in, among other places, the Coolawanyah, Mt Florance, Hooley and Mulga Downs pastoral leases. 30 I now make the orders and determination that will finalise this proceeding. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

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