Murphy J made orders by consent recognising the native title rights and interests of the Thiin-Mah, Warriyangka, Tharrkari and Jiwarli people over an area of land and waters in the Shires of Ashburton, Carnarvon, and Upper Gascoyne.
Background
In 2009 a native title determination was made in favour of the Thiin-Mah, Warriyangka, Tharrkari and Jiwarli people, then referred to as the Thudgari people, in Thudgari People v State of Western Australia [2009] FCA 1334 (Thudgari Determination). On 7 October 2016, the same claim group filed the current application essentially seeking an extension of the area covered by the Thudhgari Determination. In particular, the newly claimed areas include the land to the south/south-east of the Thudgari Determination and is predominantly comprised of pastoral stations.
The Thudgari Determination did not encompass all of the land that would traditionally be associated with the native title holding group. This was due to neighbouring native title claims that covered these areas. These neighbouring claims were later withdrawn from that area, but not before the Determination was made.
The Applicant, the State of Western Australia and the other respondents to the proceedings reached an agreement in relation to the extension of the Determination Area. The pastoralist respondents each agreed to the terms of the determination in relation to the portions of their respective pastoral leases that were situated within the Determination Area.
Narrowing the assessment of connection
With the understanding that that the application operates as an extension to the Thudgari native title holder’s claim, the Court agreed at [17] with the parties that the focus of the connection inquiry should be narrowed to three issues, namely:
whether the TMWTJ Application area was part of the country of Thudgari/TMWTJ society at sovereignty;
if so whether the TMWTJ people have maintained a connection to the TMWTJ Application area from sovereignty to the present, by acknowledgement of their traditional laws and observance of their traditional customs; and
the type of native title rights and interests that are to be recognised in the TMWTJ Application area.
The parties provided joint submissions that a substantial body of connection material supporting the application including the Thudgari Connection Report prepared for the Thudgari Determination was provided to the State [18]. The Court noted that the State was satisfied that the native title rights and interests set out in the Minute of Proposed Consent Determination in respect of this application are the same as those recognised in the Thudgari Determination.
Murphy J was satisfied that the Court had the power to make an order pursuant to s 87 NTA. The Court was satisfied that it was appropriate to make the extension of the determination area and its corresponding terms set out in the Minute [40-41].
Rights and interests
The Court recognised the non-exclusive native title rights to access the land and waters, enter and remain on the land, camp, erect shelters and light fires for cooking, heating and lighting purposes, take flora, fauna, fish and other traditional resources (excluding minerals), take and use water, engage in ritual and ceremony, care for, maintain and protect from physical harm, particular sites and areas of significance, and to be accompanied on to the Determination Area.
Prescribed Body Corporate
The Court was satisfied that the Thiin-Mah, Warriyangka, Tharrkari and Jiwarli claim group nominated the Woodgoomungooh Aboriginal Corporation ICN 9040 to be the Prescribed Body Corporate for the proposed determination area at a 14 March 2019 meeting. Murphy J ordered that the determined native title was to be held on trust by the Woodgoomungooh Aboriginal Corporation in accordance with s 56(2)(b) NTA.