Rares J
In this matter, Rares J recognised the native title rights and interests of the Yindjibarndi people to the area outlined in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 (the principal reasons) and summarised in the What’s New in Native Title - July 2017.
The respondent parties included the State of Western Australia, FMG, Yamatji Marlpa Aboriginal Corporation and the Todd respondents. The other interests in the determination area include reserves, pastoral leases, water licences and mining tenements. The Yindjibarndi Ngurra Aboriginal Corporation is the nominated prescribed body corporate.
The rights and interest recognised in the non-exclusive areas include rights to access, take and use resources, engage in ritual and ceremony and protect and care for sites and objects of significance. In the exclusive areas, the Yindjibarndi people have the right to possession, occupation, use and enjoyment to the exclusion of all others.
In July 2017 Rares J ordered the parties to consult, agree and prepare a draft determination of native title for the Court to make under s 225 of the Native Title Act 1993 (Cth) (NTA). Two matters remained in dispute:
Whether, as Fortescue Metals Group (FMG) contended, the areas of determination to which ss 47A and 47B NTA apply include exclusive possession or not (the FMG note issue)
In what form a declaration should be made in respect of the Todd respondents’ unsuccessful claim to be recognised as Yindjibarndi (the Todd declaration issue).
The FMG note issue
FMG argued that it was appropriate to include the note in order to identify what would have been the native title rights and interests in the area comprising the land and waters covered by the Reserve and UCLs affected by the six exploration licences, had it not been found that ss 47A(2) and 47B(2) of the Act applied to that area. FMG submitted that there could be occasions where a third party needed to know what the native title rights and interests were before and after a determination. The Yindjibarndi and the State opposed the inclusion of the note in the final determination.
Rares J rejected FMG’s argument as untenable as it ignored the wording of ss 47A(2) and 47A(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.’ His Honour relied on Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 and Banjima People v Western Australia (No 2) [2015] FCAFC 171 in which it was determined that the natural and ordinary meaning of ‘to pay no attention’ or ‘disregard’ was the correct understanding of s 47B(2). Rares stated at [8]-[9] that ‘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. 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.’
The Todd declaration issue
Rares J held in the principal reasons that the Todd respondents are not Yindjibarndi people. The Todd respondents argued that their position should be reflected in a declaration in the determination that ‘Phyllis Harris (Todd), Lindsay Todd and Margaret Todd are not Yindjibarndi People.’
They contended that such a declaration would avoid inconsistency with Nicholson J’s finding in Daniel v State of Western Australia [2003] FCA 666 at [509] that the Hicks family (of which the Todd respondents formed part) had Yindjibarndi ancestry and potential unfairness for persons who were not parties to the proceeding.
The determination will include the declaration that:
Phyllis Harris (neé Todd), Lindsay Todd and Margaret Todd and their living family members:
have an apical ancestor, Winningbung, who was not a Yindjibarndi;
do not have a Yindjibarndi parent and are not Yindjibarndi.