Purdie on behalf of the Yurriyangem Taam Native Title Claim Group v State of Western Australia [2019] FCA 696

The Kimberley region

Registered on the National Native on the Native Title Register on 1 July 2021

Between: Shirley Purdie, Kenneth Martin, Rita Malay, Trevor Bedford, Maureen Carter, Raymond Walkbier, Mareeka Patrick, Jean Malay, Rebecca Sampi, Timothy Mosquito, Ira Lans (APPLICANTS) and State of Western Australia, Shire of Halls Creek, Sterling Jack Buntine, Telstra Corporation Limited (RESPONDENTS)

Judge: Banks-Smith J

Determination:

Native title exists in parts of the determination area

It consists of exclusive native title rights and interests.

Native title holders

The native title holders are those Aboriginal people who are:

• related (including by adoption) to one of the Yurriyangem Taam Apical Ancestors who held rights and interest in one of the local estate countries comprising the Determination Area; or
• are related to a Yurriyangem Taam Apical Ancestor and who have spirit conception and/or birth sites in one of the local estate countries in the Determination Area; or
• are recognised by the persons described above as (i) holding rights and responsibilities for certain songs and ceremonies which make reference to important sites in the Determination Area; or (ii) holding rights and interests in one of the local estate countries in the Determination Area under traditional law and customs.

Exclusive native title rights and interests over the determination area

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule 3, to the exclusion of all others.

Non-exclusive native title rights and interests over the determination area

These rights exist over the area described in Schedule 4 and include:

• pastoral leases;
• reserves;
• unallocated Crown Land; and
• water areas.

Other rights and interests over the determination area include those:

• granted by the Crown in right of the Commonwealth or the State pursuant to statute or otherwise under any related regulations;
• held under the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).
• of members of the public arising under general law including but not limited to: (i) the public right to fish; (ii) the public right to navigate; (iii) the right of any person to use any road in the Determination Area (subject to the laws of the State) over which, as at the date of this Determination, members of the public have a right of access under common law.
• to access land by an employee or agent or instrumentality of the State, the Commonwealth, or any local government authority as required and where access would be permitted under law to private land.
• of existing public access to and enjoyment of: (i) waterways; (ii) the beds and banks or foreshores of waterways; (iii) stock routes; or (iv) areas that were public places at the end of 31 December 1993, pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
• of Telstra Corporation Limited (ACN 051 775 556) as the owner or operator of telecommunications facilities within the Determination Area under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth).

See Schedule 7 for further information about the non-native title rights and interests.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

Within twelve months of the determination date, a representative of the common law holders of the Yurriyangem Taam claimant group shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom.

Full text of the determination is available via the URL link above.

Background

The Yurriyangem Taam application was filed with the Federal Court of Australia on 20 September 2010. The application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act (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 28 March 2011 [4].

The claim made in the Yurriyangem Taam application was considered by the Native Title Registrar pursuant to s 190A of the NTA (a consideration commonly known as the registration test). The Native Title Registrar was satisfied that the Yurriyangem Taam application was sufficient to meet the requirements of the registration test and details of the application were entered onto the Register of Native Title Claims on 29 October 2010 [5].

On 4 April 2019, the parties to the application informed the court that they had reached an agreement on the terms of a proposed determination of native title under s 87A of the NTA. In support of the application, a minute of the terms of that proposed determination, supporting affidavits and joint submissions of the Yurriyangem Taam applicant and the State were filed with the court. The parties then requested the court make a determination of native title in accordance with the agreed terms [6].

Details of Judgment

The State informed the court that the connection materials provided [26] were, in its view, sufficient to demonstrate that the Yurriyangem Taam claimants and their ancestors have maintained a presence in the Yurriyangem Taam application area since the acquisition of British sovereignty. In addition, evidence of the Yurriyangem Taam claimants and their ancestors' continuing physical or spiritual involvement in the Yurriyangem Taam application area was sufficient to enable the State to conclude that this connection had not been severed. Taken together, the State was satisfied that the material considered was sufficient to evidence the maintenance of connection according to traditional laws and customs in the Yurriyangem Taam application area [28].

The power of the court to give effect to the agreement reflected in the consent determination is found in s 87A of the NTA. That section sets out the conditions which must be met before the court may make an agreed determination of native title relating to a part of the claim area covered by an application. In this case, the court was satisfied that each of the conditions contained in s 87A were met [53].

Native title exists in parts of the determination area.

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