Harvey Murray and State Of Western Australia & Ors (Yilka and Yilka #2) AND G.S. (dec'd) & Ors and State of Western Australia & Ors (Sullivan Family) [2017] FCA 703

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Harvey Murray on behalf of the Yilka Native Title Claimants and State of Western Australia & Ors (Yilka)

Judge: Mckerracher J

Determination

Native title exists in the entire determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

The Yilka common law holders and the Sullivan common law holders as described in Schedule 3.

Exclusive native title rights and interests

The right to possession, occupation, use, and enjoyment of the area to the exclusion of all others exists in the area described in Schedule 5 and is shown in the Schedule 7 map attached below.

Non-exclusive native title rights and interests

These rights and interests exist over the area are described in order 4 of the Minute of Determination (see Appendix 1) and are:

• the right to access, remain in and use that part for any purpose;
• the right to access and take for any purpose resources of that part;
• the right to maintain and protect habitats and places and objects of significance in or on that part.

These non-exclusive native title rights and interests exist over the areas depicted in Schedule 7, which are described in Schedule 5 as:

• the Warburton Stock Route;
• the Yamarna Pastoral Lease; and
• a portion of unclaimed Crown land subject to mining leases.

Other rights and interests in the area include those related to:

• Cosmo Newberry (East) Aboriginal Reserve, Cosmo Newberry (West) Aboriginal Reserve, Warburton Range Stock Route, Cosmo Newberry (South) Aboriginal Reserve, and Cosmo Newberry Aboriginal Reserve;
• the Yamarna Pastoral Lease;
• exploration licenses, and prospecting licenses;
• an exploration permit under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
• groundwater licenses under the Rights in Water and Irrigation Act 1914 (WA); and
• Telstra.

For more detailed information see Schedule 6.

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

The Yilka Talintji Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Nguluma People and Yindjibarndi People.

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

Background

Following a lengthy contested hearing in 2016, McKerracher J held that both the Yilka claimants and the Sullivan claimant hold exclusive native title across the respective claim areas. The court ordered that WAD 297 of 2008, WAD 303 of 2013, and WAD 498 of 2011 be determined together.

It was held that one Prescribed Body Corporate (PBC) entity holds native title on behalf of both the Yilka and Sullivan claimant groups. Mediation followed between the Yilka applicant and Sullivan applicant to negotiate the remaining issue as to whether one or two PBC's would be appropriate [3].

The Sullivan applicant contended that the court should order:

• One determination describing two separately authorised claim groups as common law native title holders and
• Each common law holder have their native title held in trust by their respective PBC [27].

The submission made by the Sullivan applicant addressed that the traditional laws and customs of the Western desert society did not necessitate that the Yilka and Sullivan claim groups could effectively merge for the purposes of the determination. Further, the Sullivan claimant established that it was possible to make arrangements between the two PBCs to develop a single interface based on similar circumstances in Lovett on behalf of the Gunditjmara v State of Victoria (No 5) [2011] FCA 932 (Lovett) [18(c)].

Section 225 of the Native Title Act 1993 (Cth) (NTA) provides that a determination of native title must define who the persons, or each group of persons, holding the common or group rights are. Section 225(a) sets out the "rules" for making applications of this kind [7]. The Sullivan applicant argued that each group should also have their rights and interests comprising the native title held in trust by each group's respective PBC [27].

The Yilka applicant stood by the court's decision to keep the order for one PBC to hold native title on behalf of both groups. 

Details of Judgment

McKerracher J stated that there can be more than one PBC in a single determination area based on the precedent set in Lovett, however, it is not appropriate in this case as it was not going to be the most functional regulation of dealing for future matters between two separate parties [32]. His Honour noted that it is not appropriate to isolate two separate PBCs due to errors of the past from this method of control and that it is "time they worked together" with the leaders taking responsibility to make this happen [55]. The dispute about costs were agreed by the parties as "one positive sign of prospective harmony" [56].

His Honour noted that the usual native title application suggests a "single determination of Native Title in relation to a particular area... Intra-indigenous issues are resolved between the common law holders in accordance with traditional law and custom, within the framework of the body corporate and the requirement of the Native Title (PBC) Regulations 1999 (Cth) and in accordance with agreed dispute resolution mechanisms" [34].

Native title rights in the determination area were described by his Honour as 'indistinguishable' and the evidence led by either applicant would have been sufficient to establish the existence of native title [37]. It was concluded by his Honour that there is no need to refer to the separate claim groups in the determination.

The Yilka and Sullivan applications were pursued on the basis of the same traditional laws and customs and have wholly or at least partly, overlapping membership [45]. His Honour found that "it would not be appropriate or necessary to state that the native title rights and interests of one applicant group are independent of, or additional to, the rights and interests of the other" [48]. In this instance, his Honour found that it would not be appropriate to have two PBCs, as non-native title parties would be required to negotiate twice through two different entities and such negotiation could lead to different outcomes [51].

A final check of the status and currency of the tenure was ordered to be conducted prior to the determination and the State was to prepare the final form of determination to reflect his Honours reasons [54]. Costs were resolved between the parties and in conclusion, his Honour stated that it was time that the two groups further developed this ability to work together and reach agreement.

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