Federal Court of Australia
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
SUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.
This proceeding deals with overlapping native title applications by two groups over land and waters in the Pilbara. The disputed country is a more-or-less triangular area of 3423 sq km in the Pilbara, sitting 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), through the middle of which runs the Ashburton River (the overlap area).
The Jurruru People claim it is their country under traditional law and custom. On the other side of the dispute is a group of Yinhawangka people, who call themselves the Yinhawangka Gobawarrah, who have long asserted they hold a particular, distinct set of rights over this area. There are some members of the broader Yinhawangka community who do not agree. The State has supported the Jurruru People.
There has been a long series of claims in this region, which have been started, amended and sometimes withdrawn, with new claims replacing them. The first one, on behalf of Innawonga, Banjima and Nyiyaparli Peoples, was filed in 1996. Now 24 years later, because the claim group members cannot agree on an outcome between themselves, the Court must resolve the dispute over this area.
To resolve this dispute, the parties agreed to what is called a “separate question” process. Questions were framed for the Court to answer. Those questions ask who has native title in this overlap area. The judgment given today answers these questions. This judgment is not a determination of native title, but it is a critical step along the way to a native title determination for the overlap area.
Evidence for this case began to be given in 2013, when some older witnesses gave evidence to Justice Barker and showed him a variety of sites. Then there was more evidence taken in 2016. And finally, in 2019 the Court heard evidence on country in the overlap area, at Paraburdoo, and in Perth. The parties have relied on all this evidence from elders, and from witnesses in 2019. Another important part of the evidence was a series of tapes recorded in 1999 by Mr Philip Haydock, of conversations he had with Mabel Tommy, Jambu Giggles and Muyit Smith, the three Yinhawangka elders that the Yinhawangka Gobawarrah relies on for its arguments.
The Court was also shown some historical accounts that were said to include information about the overlap area. A considerable number of anthropologists have worked in this region, and have done reports, and most of these were in evidence before the Court. There was also expert evidence from two anthropologists – Dr McGrath and Dr Palmer. The Court has spent a long time looking at all that evidence, and considering the arguments put by the lawyers on behalf of the Yinhawangka Gobawarrah applicant and the Jurruru applicant, and the State. The Court accepts all the witnesses on both sides did their best to tell the Court what they knew, and what they did not know. The Court is grateful to them all, including for their hospitality on country and their willingness to show the Court around the overlap area.
The Court must only look at the evidence put before it by the parties. It also has to think about which party has what is called the “burden of proof” or the “onus of proof”. Essentially that means which party must give the Court enough evidence to persuade it to accept what that party says are the correct facts. The Court must then decide which facts are more likely than not to be the correct facts. In a case like this one, the parties have tried to reconstruct what happened a long time ago, about ancestors who lived a long time ago, and who was in the overlap area before white people came. So the question of which party must persuade the Court can be quite important, and the Court has to decide who has given the most reliable and believable evidence about how they are connected to this country by traditional law and custom, and why the country in the overlap area is, and has always been, their country.
I have explained in these reasons which evidence I consider to be the most persuasive and believable, and why. I have generally given the most weight to what the older generation of witnesses have said. The Court also listens carefully to what the anthropologists have to say, and what their views are, but the Court does not always agree with them. The Court must then put all this material together and make a decision on the questions the Court has been asked.
The tension between people in these two groups is sad to see, since they are all family. It was clear the on-country hearing was stressful for many people present, but everyone tried to be respectful, and the Court appreciated that effort. There was an agreement in 2001 between some Jurruru and Yinhawangka people about boundaries for their country, but the Tommy family was not a part of this negotiation. That meant their claim was not settled. Each side has found the other side very difficult to deal with. So now the Court must resolve the dispute.
The Court’s reasons for judgment explain why the Court has answered the separate questions as it has. The Court’s reasons are long, and they cover a large number of factual disputes raised by the parties. This summary cannot set them all out. Instead, it will summarise the main points decided by the Court. The main points are:
• The Court has accepted part of the Jurruru applicant’s arguments, and part of the Yinhawangka Gobawarrah applicant’s arguments. Neither group has been completely successful.
• The Jurruru applicant has proven its case in relation to the area south of the Ashburton River. The Court has decided that is Jurruru country. The only Jurruru apical ancestor with descendants who identify as Jurruru, Kantitharra, is likely to have some pre-sovereignty rights and interests in a small part of the western part of the overlap area, but not in the south, so that he and his descendants have succeeded to – or are entitled to take over and look after – the land of other groups of Jurruru people who did not survive after white settlement.
• The Yinhawangka Gobawarrah applicant has proven that the area north of the Ashburton River is Yinhawangka country and not Jurruru country. The Court has accepted that the 1999 tapes recorded by Mr Haydock are important evidence, and together with other evidence, the accounts of Mabel Tommy, Jambu Giggles and Muyit Smith in those tapes show that Yinhawangka country always came down to the Ashburton River.
• The Court has not accepted that the Yinhawangka Gobawarrah group can hold native title separately to the Yinhawangka People. The group is not a “traditional” one which has a separate system of traditional law and custom from other Yinhawangka people. Nor has it been proven that there is anything in traditional Yinhawangka law and custom which allows a sub-group of the Yinhawangka People who are descended from certain apical ancestors to hold separate native title.
• Although it was a difficult issue to resolve, the Court did not accept that the evidence of Toby Smirke in relation to the northern area proved a Jurruru connection through traditional law and custom, although it did show that through being brought up in the area, living and working in it, he had a deep knowledge of the country but this was not enough to persuade the Court that Jurruru traditional law and custom connected the Jurruru People with the area north of the Ashburton River. Instead evidence such as that from Mabel Tommy showed that Yinhawangka traditional law and custom connected Yinhawangka people with the area north of the Ashburton River.
• The Court has found that the Ashburton River does not represent a hard boundary between the two native title holding groups. It has found that the area of the river itself, and sites such as Jabaguru, are most likely to have been shared country. It is more likely than not that there are some sites south of the river, but close to it, which are held under Yinhawangka traditional law and custom.
The Court has no made specific findings about what these southern sites are, nor how a boundary is to be drawn for the purposes of making two determinations of native title in the overlap area. The Court’s reasons indicate there are areas subject only to one native title (south of the Ashburton River area for Jurruru, and north of the Ashburton River for Yinhawangka), but there are also areas (the river itself, Jabaguru and perhaps some other sites close to the river) which may be shared and may therefore be areas over which two native titles exist; or about which there needs to be further negotiation between the parties. The Court expects the parties to negotiate and reach agreement on how this boundary is to be drawn. Failing such agreement after a reasonable period of time, there will need to be a further trial with further evidence and the Court will need to determine and draw the boundary for the parties. That is an outcome which should be avoided if at all practicable.
The Court’s conclusions may not be welcomed by some Yinhawangka people, including those who gave evidence in support of the Jurruru claim. The Court’s conclusion is that their evidence was affected by a desire to support the 2001 boundary agreement that had been made, or by other factors including the animosity between the groups, and while this position was understandable, the Court has been persuaded by the Yinhawangka Gobawarrah evidence that before white settlement, Yinhawangka country went right down to the Ashburton River in the overlap area, and the descendants of Thurantajinha and Nijawarla have maintained a connection under Yinhawangka law with that country.
The Court’s conclusions as a whole are also unlikely to satisfy the Yinhawangka Gobawarrah claimants, because they do not deliver the control over the overlap area which was sought by their separate application for a determination of native title.
Nor are the Court’s conclusions likely to satisfy the Jurruru applicant and claim group, who had, as the Court’s reasons explain, a single minded perspective that the whole overlap area was Jurruru country, which the Court has found was not borne out by persuasive evidence.
These are some of the consequences of a litigated rather than a negotiated outcome: the parties lose control over the final position.
The Court is ready and willing to continue to assist the parties in whatever way it can to bring the native title claims over the overlap area to a final conclusion as soon as practicable.
MORTIMER J
2 December 2020
