Manolis on behalf of the Yawuru Community v State of Western Australia [2019] FCA 1781

Year: 
2019
Jurisdiction: 
Western Australia
Forum: 
Federal Court
Legislation considered: 
s 87 Native Title Act 1993 (Cth)
s 47B Native Title Act 1993 (Cth)

O’Bryan J

In this matter the Court made orders by consent recognising the exclusive and non-exclusive native title rights and interests of the Yawuru Community over an area of land surrounding the Robebuck Plains Pastoral Lease in the Kimberley, Western Australia.

The respondent is the State of Western Australia.

Background

This consent determination follows a number of other determinations made by the Court, referred to as the Rubibi Determinations. See Related Content.

This application for a determination of native title was filed in November 2015 ( Edarrbur (Rubibi #18). The claim area was not included in an earlier determination of native title over land the subject of the Roebuck Plains Pastoral Lease ((Rubibi #7), but is entirely surrounded by the lease. This was because the Rubibi #7 determination was limited to the pastoral lease land and certain areas within the internal boundary were not the subject of that lease.

Recognising the substantial body of evidence that had been adduced before Merkel J in the Rubibi Determinations, the parties  agreed that the evidence and findings of Merkel J, as well as the formulation of the rights and interests to be recognised, the description of the  native title holders and the nature and extent of the other interests, should be adopted. 

Given the extensive evidence and findings in the Rubibi Determinations the State accepted that:

  1. occupation of the six areas of unallocated Crown land covered by the application is established;
  2. as a result, s 47B of  the Native Title Act 1993 (Cth) (NTA) applies (extinguishment by the grant or creation of prior interests may be disregarded) and exclusive native title rights and interests are recognised over those areas; and
  3. non-exclusive native title rights and interests as recognised by Merkel J in Rubibi #7 existed over the eight reserves covered by this application.

The Court was satisfied that all of the conditions in s 87(1) of the NTA had been met and the native title rights and interests of the Yawuru Community in the parcels of land should be formally recognised in the proposed consent determination.

Rights and Interests - Exclusive

The Yawuru People's native title rights and interests recognised in the area identified in Schedule 4 of the consent determination are:

  1.  The right of possession and occupation against the whole world; and
  2. The right to take flowing and subterranean water for personal, domestic or non-commercial communal use (but this right does not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others).

Rights and Interests - Non-exclusive

The native title rights and interests recognised in the area identified in Schedule 5 of the consent determination [where there has been partial extinguishment by the creation of reserves] are:

  1. The right to live on the land;
  2. The right to access, move about in and on and use the land and waters;
  3. The right to hunt and gather on the land and waters for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes);
  4. The right to engage in spiritual and cultural activities on the land and waters;
  5. The right to access, use and take any of the resources of the land and waters (including ochre) for personal, domestic or non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes); and
  6. The right to care for and maintain and protect the land and waters, including places of spiritual or cultural significance.

Prescribed Body Corporate

The native title is to be held in trust by the Yawuru Native Title Holders Aboriginal Corporation (ICN 7033).