Overview
This matter was part of a separate question process to resolve overlap between the native title claims of the Jurruru and the Yinhawangka peoples in the Pilbara, Western Australia. The judgment did not determine a final outcome, and each claimant was partially successful. Further resolution of the overlap was left for future negotiations between the two claimant groups.
Background
The disputed Country is approximately a triangular area of 3423 km2, between land and waters held by the Jurruru People to the west, the Yinhawangka People to the east, and the Nharnuwangga People to the south. In the middle of the area is the Ashburton River, largely constituting the overlap.
There is a long history of varying claims in the region, with the first claim filed in 1996. No agreement has been reached between the claimants, hence this matter attempted to resolve the dispute in a consented-to separate question hearing. Evidence for this case specifically began in 2013, and more was given in 2016. In 2019, evidence was heard on country in the overlap area (at Paraburdoo) and in Perth. Evidence was provided by elders, witnesses, tapes of recorded conversations with elders from 1999, and reports by anthropologists.
Issues/Submissions
The Jurruru People claimed the whole overlap area was solely their Country. The State supported the Jurruru People.
The Yinhawangka people, who called themselves the Yinhawangka Gobawarrah, also asserted they hold a particular, distinct set of rights over this area, sought by their separate application for a determination of native title. Some members of the broader Yinhawangka community did not agree with this and gave evidence to support the Jurruru claim.
Decision
Both claimants partially proved their case. The Jurruru applicant was successful in proving the area south of the Ashburton River was Jurruru country. It was noted that it is likely that there are some sites in this southern area which are held under Yinhawangka law and custom, but no specific findings about these sites was made. The area north of the river was deemed to be Yinhawangka country. Ashburton River itself was held to most likely to have been shared country, and is not a boundary line. Mortimer J did not accept that either the Yinhawangka Gobawarrah people could hold separate native title as a sub-group of the Yinhawangka, given the shared system of traditional law and custom.
Given this, separate native title can be found to the south of the river for the Jurruru, and north for the Yinhawangka. The overlap areas (the river itself, Jabaguru and likely some southern sites) require further resolution by negotiation between the parties to draw a boundary line. Mortimer J noted if negotiation and agreement on how this boundary is to be drawn could not be made, the matter would be taken to trial, an outcome described as ‘tragic and costly.’ Case management was ordered for early 2021.