In this matter the Court ordered that there be a determination of native title in WAD 127 of 1997 in the terms provided for in Attachment A and the Wirrawandi Aboriginal Corporation ICN: 8870 shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
[1] Pursuant to s 225 of the Native Title Act 1993 (Cth) (NTA) the matter before the Court was the Yaburara & Mardudhunera native title claimant application (YM application) which covers an area of approximately 9530 square kilometres of land and waters in the Pilbara region of Western Australia. It was proposed by the parties that the Court should determine that the holders of native title in this area are the Mardudhunera People. The Determination Area largely relates to four pastoral leases, being Yalleen, Yarraloola, Mardie and Karratha Stations. There are also several leases, roads, numerous small reserves and unallocated Crown land within the Determination Area. The procedural history of this proceeding is set out in paragraphs [11] – [17] of his Honour’s written reasons for judgment.
[18] Pursuant to s 87 of the NTA, and having regard to the agreement they have reached, the parties requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing. In support of the agreement reached, the first respondent (State of Western Australia) filed a Minute of Proposed Consent Determination of Native Title which has been signed by each of the parties with an interest in the Determination Area.
Assessment of connection material
Barker J observed that: [25] It was apparent from the joint submissions, that the applicant provided the State with an anthropological report by Dr Michael O’Kane entitled Yaburara and Mardudhunera People Final Connection Report (dated 17 September 2015) (connection material) in support of the Mardudhunera People’s connection with the claim area. [26] The State assessed the connection material in accordance with its Guidelines for the Provision of Connection Material (dated February 2012), with the State’s response being informed by legal advice from the State Solicitor’s Office. [27] In November 2016, representatives of the State met directly with representatives of the YM Applicant and members of the claim group, in Karratha. The joint submissions explain that this meeting provided an opportunity for direct and detailed discussions between the Mardudhunera People and the State about the nature and extent of the Mardudhunera People’s ongoing connection to country and their acknowledgment and observance of traditional law and custom.
[28] The joint submissions provide the following information regarding the connection to country of the Mardudhunera People. [37] The applicant nominated Wirrawandi Aboriginal Corporation WAC pursuant to s 56(2)(a) of the NTA to hold the determined native title in trust for the native title holders. That nomination is in writing and WAC has given its consent to the nomination. His Honour was satisfied that the requirements of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) have been met. [42] Section 87(1A) of the NTA requires the Court to be satisfied that it is appropriate to make the determination sought by the parties. This is a discretion that must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the NTA. [50] Barker J was satisfied that it was appropriate and within the power of the Court under s 87 and s 94A of the NTA to make the determination and his Honour made orders to that effect.