In this matter, a consent determination of non-exclusive native title rights and interests was made in favour of the Jaru People, in an area that covers approximately 28,915 kilometres in the central eastern and south-eastern Kimberley region of Western Australia. The determination is made except to the extent that the application overlaps land and waters covered by Reserve 28538. The Jaru application was lodged and filed on 15 February 2012.
The parties agreed that the rights and interests in the determination area under traditional law and custom are held by the Jaru people by reference to:
a relationship through affiliation to one of the apical ancestors;
affiliation to an apical ancestor where people have spirit conception and /or birth sites in one of the local estate countries in the area;
recognition by Jaru people who fall into the first two categories of those who:
(a) hold rights and responsibilities for certain songs and ceremonies;
(b) hold rights and interests in one of the local estate countries in the area under traditional law and custom.
There was contention surrounding the identification of apical ancestors, particularly regarding the inclusion of two apicals. The apical ancestors identified in the Determination are not identified in the same way as they were in the Jaru application. The list of claimed apical ancestors differs from the list proposed in the minute of consent determination submitted by the parties to the Court. Mortimer J held that despite these differences, the apical ancestors identified in the determination are appropriate. Her Honour held the focus is on the 'parties’ agreement, rather than insisting on a precise correlation between the initial application and the determination’ (at [20]).
Mortimer J held that the joint submissions provided sufficient information for the Court to be satisfied it is appropriate to determine native title. Her Honour notes that whilst it is important that the ‘authentic, abiding’ Aboriginal voice is heard in describing the traditional law and custom, the role played by an anthropologist can also be critical (at [60]). In considering the traditional laws and customs of the Jaru people with respect to native title, her Honour took into account rights and responsibilities owed by the Jaru people to Jaru country, in particular to protect sites that have cosmological or spiritual significance because of the Jaru people who have been born or buried there, Jaru law regarding the transmission of cultural knowledge, a significant level of continuing use and occupation of the land which ‘continues to be an important and pervasive feature of the everyday lives of the Jaru’ (at [81]).
Her Honour refered to their approach to the question of ‘appropriateness’ under ss 87 and 87A of the Native Title Act 1993 (Cth) as set out in Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849. Her Honour held that, after consideration of the perspective of those who objected to the inclusion of two apicals, ultimately it was the will of the Jaru claim group as expressed unanimously at the authorisation meeting itself which binds the members of the applicant (at [104]).
Rights and interests
The determination includes non-exclusive rights to access and travel over the area, camp and live temporarily, engage in cultural activities, hunt, fish, gather and take natural resources and water for any purposes, protect places, areas and sites of traditional significance, conduct ceremonies, and bury native title holders within the area.
No prescribed body corporate had been established at the date of the determination. The Court ordered that the determination of native title will take effect immediately following a determination under s 56(1) or 57(2) of the NTA.