Barker J
In this matter, Barker J recognised, by consent, the native title rights and interests of the Gingirana people to approximately 12,153 square kilometres of land located in the western perimeter of the Little Sandy Desert, south of Newman and northwest of Wiluna in Western Australia. The application was filed in 2003 and amended three times. The respondent parties included the State of Western Australia, Yamatji Marlpa Aboriginal Corporation and Telstra Corporation Limited. The Commonwealth Attorney General was an intervenor.
[4] On 14 August 2017, the Attorney General of the Commonwealth of Australia intervened in the application pursuant to s 84A(1) of the Native Title Act 1993 (Cth) (NTA). The intervention arose over the issue of whether the State may have an entitlement to compensation from the Commonwealth arising under s 53 of the NTA, with respect to the operation of s 47A and s 47B NTA to parts of the application.
The Court recognised exclusive native title rights and interests to possession, occupation and enjoyment of Unallocated Crown Land 1, 3 and 4. The non-exclusive native title rights and interests recognised include: the right to access, take and use the resources for any purpose, and the right to maintain and protect places of significance.
[11]–[24] The Court accepted that the Gingirana claimants belong to a system of laws and customs referred to as the Western Desert Cultural Bloc. The pathways to connection recognised were: by descent of people with traditional association with the land; by birth or birth of an ancestor on the determination area; or by possession of traditional cultural knowledge of the determination area. The Court found there to be a significant amount of material in support of the claimants’ connection to the determination area. This was partly due to the evidence given by five Gingirana claimants during the preservation evidence hearing in March 2015.
During the preservation evidence hearing, all the witnesses explained the significance of the law to Gingirana claimants. In particular, Mr Patterson explained in his witness statement [20]:
‘The Tjukurpa is the story – the Law – about Putijarra country. It has been passed down from the old people. It started in the beginning – in the dreamtime. Tjukurpa makes special places. From the dreamtime, we pass it on from generation to generation. It is still alive today. Men have their tjukurpa, and ladies have their own tjukurpa – men can’t talk about ladies stuff and ladies can’t talk about the men’s side. For some tjukurpa, both men and women share the knowledge. Some parts of law business are for men, some parts of law business are for women and some parts are for everyone together. This is our Putijarra Law, and we are still following that.’
The State was satisfied that the evidence was sufficient to establish the maintenance of connection according to traditional laws and customs in the determination area. The State was also satisfied that the connection material is sufficient to establish that the claimants occupied UCL 1, UCL 3 and UCL 4 in the eastern portion of the determination area at the requisite time for s 47B(1)(c) of the NTA to apply.
The parties and the Commonwealth agreed that the description of the native title holders in Schedule 2 of the determination, rather than that in the Form 1, accurately reflects those persons who hold native title rights and interests in the determination area according to traditional laws and customs.
The Court made the determination as sought in Schedule 2, holding at [26]–[27] that ‘the Court is not limited to making a determination in the form sought in the Form 1 and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: see BP (deceased) on behalf of the Birriliburu People v Western Australia [2008] FCA 944 at [18], Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] and Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250 at [18].
The Court was satisfied that it is appropriate and within the power of the Court under ss 87 and 94A of the NTA, to make the determination. The determination includes an agreement that within six months of the date of the determination, a prescribed body corporate will be nominated in accordance with the requirements of ss 55, 56 and 57 of the NTA.