Manolis on behalf of the Yawuru Community v State of Western Australia [2019] FCA 1781

Registered with the National Native Title Tribunal on the Native Title Register 4/11/2019

Between: Mark Manolis & Ors on behalf of the Yawuru Community (Applicant) and State of Western Australia (Respondent)

Judge: O'Bryan J

Determination

Native title exists in parts of the determination area

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

Native title holders

The Yawuru Community.

Exclusive native title rights and interests over part of the determination area

Exclusive native title rights and interests are recognised over the six areas of unallocated Crown land as described in Schedule 4 and depicted in Schedule 2. This is the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others. 

The right to take flowing and subterranean water for personal, domestic or non-commercial purposes in this area are non-exclusive rights.

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

These rights exist over the reserve areas described in Schedule 5 and include:

• the right to live on the land;
  
• the right to access, move about in and on and use the land and waters;
• the right to hunt and gather on the land and waters for personal, domestic or non-commercial communal purposes (including social, cultural, religious and spiritual and ceremonial purposes);
• the right to engage in spiritual and cultural activities on the land and waters;
• the right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and
  
• the right to care for and maintain and protect the land and waters, including places of spiritual or cultural significance;
  

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

• existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Petroleum Pipelines Act 1969 (WA);
• existing interests under the Mining Act 1978 (WA);
• the interests of holders of tenements under the Petroleum and Geothermal Energy Resources Act 1967 (WA), Petroleum Pipelines Act 1969 (WA) and Mining Act 1978 (WA);
• the interests of holders of any other rights and interests granted by the Crown;
• rights and interests held by reason of the force and operation of the laws of the State or Commonwealth;
• the right of employees or agents of the State Government, Commonwealth Government and local government authority to access land;
• the rights and interests of Telstra Corporation Limited; and
  
• any other legal or equitable estate or interest in land or waters.
  

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

The Yawuru Native Title Holders Aboriginal Corporation (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 Yawuru Community.

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

Background

The Yawuru Community's native title claim began in 1994. An intra-communal dispute and disputes between the Yawuru Community and the State of Western Australia involved over ten years of litigation. The Yawuru community were largely successful in their related native title applications and succeeded in whole, or in part, over 4900 sq km of traditional country [8].

The Edarrburr (Rubibi #18) application was made concerning land surrounded by the Roebuck Plains Pastoral Lease area which was determined to be subject to native title in 2006 (WAD6006/1998). The Roebuck Plains Pastoral Lease application arose from eight native title claims that were combined by order of the court in 1999 [5].

Yawuru man, Senator Patrick Dodson, states that the areas have high cultural, economic and social value for the Yawuru People, with a series of freshwater places (jilas) Yawuru people have always used for stopping places including [12]:

• Yiddar/Lake Eda;
• Cockle Well;
• Government Cow;
• Chain Pump Bore/Sheep Camp
• Barley Springs;
• Loomingum Well;
• Deep Creek and Collins Lagoon; and
• Taylor's Lagoon and Yulleroo.
  

Details of Judgment

The [Rubibi #18] application was filed with the Court on 11 November 2015. The parties reached an agreement on the terms of a native title determination to recognise the native title rights and interests held by the Yawuru Community.

Due to the substantial amount of evidence presented in the previous determinations, the parties agreed that the formulation of the rights and interests, the description of native title holders and the nature and extent of other interests be adopted in the resolution of this application.

As a result, the State accepted that s 47B of the Native Title Act 1993 (Cth) applied to the six areas of unallocated Crown land so that exclusive native title could be recognised [10]. In the same way, the State  accepted that non-exclusive native title applied to the eight reserves included in the application. The parties' submissions record that knowledge of country remains strong within the Yawuru Community and transmission of sacred and practical knowledge continues through to the present day [14].

Ultimately, the Court was satisfied that the conditions of native title were met and that a determination of native title was within the power of the court.

Native title exists in part of the determination area

Related Entries

References

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