Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42

Approximately 48,000 sq km in the Midwest Region of Western Australia

Registered on the National Native Title Register on 26 October 2020.

Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42

Between: Frederick Taylor, Garry Hodder, Leedham Papertalk, Lorraine Whitby and Yvette Harris on behalf of the Yamatji Nation Claim (Applicants) and State of Western Australia, Commonwealth of Australia, Shire of Yalgoo, Richard Stuart Hamilton, Reginald Brian Veitch & Joke Marione Karelagnes Cornella Veitch-Vaneechoitte, EMR Golden Grove Pty Ltd, Australian Wildlife Conservancy, RCMA Australia Pty Ltd, Neville George Golding, DBNGP (WA) Nominees Pty Limited, Brandy Hill Iron Pty Ltd, Deflector Gold Pty Ltd, Gullewa Gold Project Pty Ltd, Central Infrastructure Pty Ltd, Silver Lake (Deflector) Pty Ltd, Strike West Pty Ltd, UIL Energy Pty Ltd, Beach Energy (Perth Basin) Pty Limited, Imerys Talc Australia Pty Ltd, Garnet International Resources Pty Ltd, Telstra Corporation Limited (Respondents).

Judge: Justice Mortimer

Determination

The determination area covers four prior claim areas that the native title applicants combined for this Yamatji Nation Claim. See more about the prior claims below in the Background information.

Native title exists in the parts of the determination area These areas are described in Schedule 3 and shown in the maps of Schedule 2 of the determination (access the determination via the url above or below under Documents). The native title consists of non-exclusive native title rights.

Native Title is held by the Aboriginal people who:

• are descendants of the following apical ancestors: Ap-barra (Uppaarawa) and Dharriaga, Annie Tira, Biddie (mother of Fred Carnamah, Billy and Judy Thompson, Brindy, Cissie Broad, Eeranyoo, Eliza, Galena, Jane Cotter (mother of Sarah Mabel Bell and Patrick John Bell), Jane Hunt, Jibija (Rosie Jones), John Yuna Councillor, Lizzie Flynn, Mary Gingina, Mary Nundie, Nellie, Noogy (grandmother of Minnie Campbell), Punch, Rosie (mother of Walter Ninghan), Rosie Coleman, Sarah Jane Campbell, Sarah Broad, Sarah Feast (Jooldarnoo), Shilling, Timothy Benjamin, Uanda, Woondoora, Wyoo and Myonda; and
  
• identify as Yamatji people connected to the determination area under traditional laws and customs and are accepted as such by other Yamatji Nation people.
  

The non-exclusive native title rights are rights to:

• access to land for living and camping;
• visit, maintain and protect places of importance;
• teach on land and waters
• conduct ceremony;
• hunt on, fish from, take and use the resources of the area; and
• be accompanied onto the land by non-Yamatji spouses or persons required by traditional laws and customs for ceremonial or cultural activities.

Non-native title rights and interests that exist in the determination area include:

• leases granted by the Aboriginal Lands Trust over part or all of Reserves 28607, 28608 and/or 28609;
• mining leases and exploration licenses and permits granted under the Mining Act 1978 (WA) or the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• rights or other interests granted by the Crown pursuant to statute or executive power under valid legislation or regulations; and
• the right to access land by an employee, agent or instrumentality of the State, the Commonwealth, or any local government authority.
  

Other non-native title rights that exist are the common law rights of the public to fish, navigate, access to waterways and the beds or foreshores of waterways, stock routes, or areas that were public places at the end of 31 December 1993.

There are no native title rights or interests in minerals, petroleum or geothermal energy resources, and geothermal energy.

In the case of conflict, the exercise of non-native title rights and interests will prevail over, but not extinguish, the native title rights and interests.

The native title rights and interests are also subject to the terms of the Yamatji Nation ILUA executed, together with this determination, on 7 February 2020.

The Bundi Yamatji Aboriginal Corporation (ICN 9213), as the prescribed body corporate, is to perform the functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders.

Background

The application for this determination of native title consolidates four others: the Part A Mullewa Wadjari (WAD21/2019), the Southern Yamatji (WAD19/2019), the Hutt River (WAD27/2019), and the Widi Mob (WAD31/2019). The first of these overlapping claims was made in 1996, beginning what Mortimer J called 'a long and challenging process' of mediation and negotiation between the claim groups and then between those groups and the State of Western Australia [2].

A process of negotiating with the State about an alternative settlement for the four claims, known as the Yamatji Nation Southern Regional Agreement, began in August 2017 and was agreed to in principle on 27 September 2019 (WA Government, 2019). The process involved the claim groups setting up a twelve-person Traditional Owner Negotiation Team (TONT) that began formal negotiations with the State in November 2017.

In mid-2019, the claim groups agreed to lodge a new overarching single Yamatji Nation claim for the recognition of native title. The new single claim group included descendants of ancestors not included in the other underlying claims (Yamatji Marlpa Aboriginal Corporation). On 9 December 2019, the four original claim groups authorised the Yamatji Nation Indigenous land Use Agreement (ILUA) (YMAC, Yamatji Nation Southern Regional Agreement), which contains the terms of compensation for the State having in the past extinguished the Yamatji Nation's native title over most of the determination area.

The Yamatji Nation Southern Regional Agreement is the first agreement in native title history to include both native title recognition and an economic package of cash and assets (National Indigenous Times; YMAC 2020).

The Western Australian Minister for Aboriginal Affairs Ben Wyatt said the agreement provides for 'strong governance and unprecedented opportunities for the State Government to work in partnership with the Yamatji people' (Western Australia State Government). Simon Hawkins, CEO of Yamatji Marlpa Aboriginal Corporation, described the package as changing the relationship between Traditional Owners and government, stating 'we believe it can serve as a blueprint for future agreement making of this nature' (Yamatji Marlpa Aboriginal Corporation, 2020).

Details

Orders for the determination of native title were made by consent on 7 February 2020.

The parties agreed that the determination would not come into effect until the Yamatji ILUA was conclusively registered. This occurred on 30
July 2020. Justice Mortimer, in her judgment, called the ILUA a
cornerstone of the negotiated outcome of the Yamatji Nation claim [36].

This determination provides recognition of the Yamatji Nation claim group's non-exclusive native title rights and interests over parts of the former Barnong, Menai Hills, and Kadji Kadji pastoral leases, land parcels adjacent to the Wanda Nature Reserve and within the Lucky Bay Reserve, as well as Aboriginal Lands Trust areas in Carnamah, Kadathini and Eneabba (ABC News). See Schedule 3 of the determination for details of the native title area.

Related Entries

References

Documents

Glossary