Mortimer J
In this matter, the Court made orders giving effect to the settlement agreed between the parties, including both positive and negative native title determinations and an Indigenous Land Use Agreement (ILUA) conferring a range of benefits and compensation to the Yamatji Nation. The orders relate to approximately 47,970 square kilometres of land and waters in the Murchison region, within the city of Geraldton and the towns of Northampton, Dongara, Eneabba, Three Springs, Morawa, Mullewa, Mingenew and Yalgoo.
Background
The case was the result of a long history of five native title claims which had significant geographic overlap: the Mullewa Wadjari People, Widi Mob, Naaguja Peoples, Hutt River and Amangu People claims. In Leedham Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2015] FCA 1342, Justice Barker ordered mediation between the overlapping claim groups to define a separate proceeding area (SPA), prior to further native title negotiations or proceedings. In 2017, the Amangu People and Naaguja Peoples claims were combined and renamed ‘Southern Yamatji’, and the overlaps were resolved. The native title claim groups then entered into negotiations with the State of Western Australia towards a non-litigated resolution of the four claimant applications over the SPA.
The negotiations were led by the Traditional Owner Negotiation Team, consisting of twelve members from the Yamatji Nation. The Team was guided by claimants and focused on ensuring present and future native title holders could maintain their relationship to Country and attain economic and social independence. The negotiation framework was an all-encompassing settlement, centred around an ILUA. The state originally offered a non-native title outcome. Open negotiation and the claimants’ ability to convey their strong relationship to Country resulted in the innovative settlement consisting of a determination of non-exclusive native title over areas of special significance, in addition to an ILUA over the SPA.
The ILUA was described in the Joint Submissions (at [35]) as ‘a progressive and innovative settlement which will hopefully become the basis on which future agreements are negotiated nation-wide’. It sets out compensation and benefits to be provided by the State in consideration for the surrender of most of the native title rights and interests extant in the SPA, and the diminution, impairment, or other effect on native title rights and interests in the SPA. The proposed native title determinations and ILUA were authorised by 92% of 1000 attendees at a two-day meeting of claimants in Geraldton in 2019. The first day consisted of an exhibition and discussions, and the second was a meeting to authorise the settlement.
As a result of anthropological research conducted on behalf of all four native title claim groups, the claimants determined it was appropriate to lodge an overarching claim covering the whole of the SPA. The Yamatji Nation claim was authorised on 24 June 2019 and was filed on 28 June 2019, and is the application which is the subject of the Court’s native title determination. A competing application for a portion of the land was made in a late claim by the Badimaya Barna Guda claim group. Ultimately this was dismissed, with reasons found in Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104.
Decision
Mortimer J relied on the joint submissions, which satisfied section 87 of the Native Title Act 1993 (Cth), to order ILUA registration and uphold the native title. The negative determination of native title over the majority of the SPA was necessary due to the estimated 36,614 competing land interests. The native title recognised confers non-exclusive rights to access the land for living, camping, customary purposes and to take resources in various areas within the SPA. These were unallocated Crown Land parcels at Ex Barnong Station, Menai Hills, Kadji Kadji and parcels adjacent to Wandana Nature Reserve, as well as reserve parcels at Lucky Bay and three Aboriginal Lands Trust reserve parcels.
In order to ensure that all of the underlying claims and the Yamatji Nation claim are dealt with in the same proceeding, and in a way which does not prejudice the existing interests of any of the underlying claim group members, the parties consented to orders that the Yamatji Nation claim is amended by consolidating the four underlying claims with the Yamatji Nation claim, and that the amended consolidated Yamatji Nation claim continue in and under the native title determination application numbered WAD 345 of 2019. The separate order consolidating the Yamatji Nation claims, made on the 7 Feb 2020, is to take effect once the State has filed a notice that the Yamatji Nation ILUA has been conclusively registered on the Register of Indigenous Land Use Agreements. The native title determination will then come into effect, and the positive native title will be vested in the Bundi Yamatji Aboriginal Corporation. Mortimer J noted at [34] that these orders ‘while unusual, are necessary and appropriate to address the circumstances of this particular settlement’. The dependence on ILUA registration is a mechanism to accommodate for any potential challenges with settlement (as was witnessed in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238).
Her Honour stated at [81] that the determination had ‘special significance’ due to the ‘widespread physical dispossession of the people of the Yamatji Nation from their lands; because of the complexity and challenges of the negotiations; because Yamatji Nation People have – through the Traditional Owner Negotiation Team – truly driven the direction of the negotiations; and because of the unity shown by all groups within the Yamatji Nation to a future that is shared, with strength and pride, between them as a single people united by a system of traditional law and custom which continues, and to which they are so obviously committed to protecting and nurturing.'