Colvin J
The Court ordered a determination of native title pursuant to s 87 of the Native Title Act 1993 (Cth) (NTA) be found, pending a determination under s 56(1) of the NTA regarding the nomination of a prescribed body corporate ‘as soon as practicable.’
This case concerns the Ginijyawarrni Yoowaniya Application (WAD610 of 2017), and is the second part of a claim that has been progressed in two parts: the first being Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250 made on 25 October 2016, which recognised the claims by the Gooniyandi People. The second part was brought on 1 December 2017 and included a wider claim group, concerning land that is Gooniyandi, Kija and mixed Gooniyandi/Kija country.
His Honour summarised the evidence before the Court regarding the connection to country for the claim area at [9].
S 87 Power of Court if parties reach agreement
His Honour then turned to consideration of s 87 of the (NTA) and found that all elements were satisfied. His Honour held that the ‘primary focus of the Court’s consideration is upon the demonstration that there has indeed been the requisite agreement’ between the parties, and will consider evidence to ensure a ‘rational decision’ has been made in ‘good faith’ (at [10]). Further consideration the question of ‘appropriateness’, his Honour held that making consent orders is not to occur where there has been ‘sharp practice, unfairness or impropriety, a lack of disclosure, a lack of good faith, a lack of advice or understanding or similar circumstance…’ (at [14]). In light of this, his Honour found that it was appropriate to make the native title determination.
Rights and interests
The nature and extent of the rights and interests in relation to most of the Determination Area are the non-exclusive rights to access, to live, camp, light controlled fires other than for clearance of vegetation, engage in cultural activities, hold meetings, access and take resources for any purpose, protect places, areas and objects of traditional significance, and be accompanied. In relation to a small part of the Determination Area, the nature and extent of the rights and interests is the right to possession, occupation, use and enjoyment of that part as against the whole world.