This case concerned an application made under ss 13(1)(b) and 61(1) of the Native Title Act 1993 (Cth) (NTA) (‘Yindjibarndi Variation Application’) to vary the approved determination of native title made by the Court in Moses v Western Australia (2007) 160 FCR 148 (’the Moses determination’). The Yindjibarndi Variation Application sought to vary the Moses determination by recognising exclusive possession held by the Yindjibarndi people over Reserve 40617 and 6 areas of unallocated Crown land. The Yindjibarndi Variation Application also sought to address an ambiguity as to whether Reserve 12260 was within the determination area by providing that no part of reserve 12260 was covered by the Moses determination.
Background
The variation was sought following findings of fact made in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 (Warrie). In this case it was found that, under their traditional laws and customs, the Yindjibarndi people hold native title rights of exclusive possession. Furthermore, in 2017 the National Native Title Tribunal (NNTT) identified the determination boundary issue with respect to Reserve 12260.
The Applicant, the State of Western Australia and the other Respondents to the application in this case reached an agreement as to the terms of the orders which they signed and filed with the Court on 11 September 2020.
Considerations
(1) Reserve 40617
With respect to Reserve 40617 Nicholson J determined that s 47A of the NTA applied to the reserve so that any earlier extinguishment of native title had to be disregarded. In 1988 the reserve was set aside and vested in the Aboriginal Lands Trust to be held expressly for the “use and benefit of Aboriginal inhabitants” under s 29 of the Land Act 1933 (WA). This complied with s 47A(1)(b)(ii) of the NTA. His Honour held that the Yindjibarndi people had exclusive rights and interests over the land, in line with his ruling in Warrie.
(2) The 6 areas of unallocated crown land
With respect to the 6 areas of unallocated crown land, His Honour concluded that the state had acted in accordance with its duties set out in Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992. Additionally, there was a credible or cogent basis for concluding that each of the areas were occupied in 1994. On this basis, His Honour concluded that there was sufficient foundation on which a consent determination could be made.
(3) Reserve 12260
Finally, with respect to Reserve 12260, His Honour took note of the mapping error identified by the NNTT depicting Reserve 12260 as included in the Moses determination land instead of being excluded from it. In Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, McKerracher J said that s 13(5) of the NTA contemplated that native title holders or native title rights might change or that the original determination might contain an error or omission. The power under s 13(5) is clearly available to correct such mistakes. Both parties to the current proceeding agreed that no part of Reserve 12260 was in Yindjibarndi country and that the revised determination should include a revised map.
Conclusion
The Court was satisfied that orders sought by the parties were within its power under ss 13(5) and 87A(4) of the NTA. It made orders by consent varying the previous native title determination.