THE YINDJIBARNDI PEOPLE

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1 THE YINDJIBARNDI PEOPLE Yindjibarndi People as defined by the Yindjibarndi Native Title Determination The Yindjibarndi People as defined by Yindjibarndi Law The Statutory Authority of YAC in matters affecting the Native Title Area a. the authority of YAC to negotiate on behalf of the Yindjibarndi People Yindjibarndi People, Yindjibarndi Aboriginal Corporation & the Yindjibarndi #1 Applicant a. Yindjibarndi People as defined by the Yindjibarndi Native Title Determination Yindjibarndi People, is the name of the distinct society (of indigenous persons) which was formally recognised by the Native Title Determination of the Federal Court, on 3 July 2003 i, as a body of persons united in and by its acknowledgment and observance of a body of laws and customs ii. The Court was required to be satisfied that the Yindjibarndi People had, since before the assertion of British sovereignty, maintained its connection to Yindjibarndi Country through the continuous acknowledgement and observance of the traditional laws and customs which connect their society to Yindjibarndi Country. Notably, his Honour, Justice Nicholson made the following observation iii : From an examination of the evidence they have given I am satisfied that... historical circumstance has not broken the Yindjibarndi connection with their land and waters.... The reality and the sense of the connection appears from the evidence as enduring despite the influences which European settlement has brought to both peoples. In the case of each of them, it would appear to be that these impacts have brought them towards the cusp of the moment when their connection to each of their lands through their traditional law and custom could be washed away by the tide of history. From the evidence I do not consider that time has yet arrived. A further impression which I have from the evidence of connection is that despite the substantial impact of European settlement on both peoples, they have remarkably maintained a strong sense of connection to their lands. This is particularly so in the case of the Yindjibarndi people whose movement out of their lands has not broken their attachment to it. The Native Title Determination of Nicholson J was subsequently appealed; however his Honour s decision was upheld by the Full Court iv. Pursuant to the Determination of the Full Court, the Native Title in the Yindjibarndi Native Title Area comprises the following incidents: the right to access the land and waters; the right to remain on the land and waters; the right to build shelters on the land; the right to take ochre; and the right to protect and care for sites, including by performing any ceremonies required under traditional law to be performed at those sites; the right to use and enjoy the land and waters for camping, hunting, fishing and foraging. v 1/7

2 It is important not to lose sight of the fact that, although the above rights are commonly referred to as rights and interests, they are not separate from, but rather incidents of, a proprietary title. A determination of native title operates as a judgment in rem vi (i.e. the title runs with, the land) and is thus enforceable as against the whole world. This is why, following a native title determination, the details of the title must be entered into the National Native Title Register vii ; and written notice of the title must be given to the State land titles office viii. b. The Yindjibarndi People as defined by Yindjibarndi Law Yindjibarndi people have been around for a long time. According to one archaeologist the traditional country of the Yindjibarndi People has been occupied for at least the past 40,000 years ix. They are a religious people, who believe their traditional country was created, in the form seen today, by spiritual beings sent from the skyworld above by God, Minkala, in the Ngurranyujunggamu x the beginning of time, when the world was soft. These spiritual beings, Marrga, also created the distinct society, which is known today as the Yindjibarndi People. From the perspective of Yindjibarndi people however their society might be better understood in terms of: the People of Yindjibarndi. This is because Yindjibarndi refers to, and is inseparable from, the spiritual domain (created by the Yindjibarndi Marrga) in which the Birdarra Law xi applies; and from which all physical attributes of Yindjibarndi emerge; including: the People and their language; and, the creatures, plants, and geographical features of that domain. In this view, Yindjibarndi refers to the spiritual life force of everything that exists within, emerges from, and ultimately returns to, the domain of the Yindjibarndi Marrga; the domain now called Yindjibarndi country xii. The distinction between Yindjibarndi people and Yindjibarndi country, as of subject and object, is one necessarily adopted and accepted by Yindjibarndi people when communicating with members of the dominant European culture. However, for the many who continue to hold to their religious beliefs; and for the lawmen, who perform religious ceremonies and rituals on-country each year, it is a false dichotomy, as evidenced by Michael Woodley in proceedings before the National Native Title Tribunal: In accordance with the Birdarra, I...believe that Yindjibarndi people, Yindjibarndi language and Yindjibarndi country (and all that is within, from both past and present) are not different things, but related parts of one thing, called Yindjibarndi, which has existed since the Ngurranyujunggamu. This is why I, and the other Yindjibarndi Ngaarda, believe we must continue to look after Yindjibarndi country, in the way the Birdarra says we must, because we don t just belong to Yindjibarndi country, we are Yindjibarndi country, and if our Law is not followed we are punished and we suffer. It doesn t matter if we were unable to stop the Law from being broken, it is our duty to ensure it is not. For us, Yindjibarndi country is alive and connected to us, and it can grab us in a way that makes you very sick. xiii The Birdarra is disclosed through the medium of song; an immense corpus of ancient songs, referred to collectively as the Burndud a song-cycle performed each year during ceremony time, between October and March, in the ancient original language of the Pilbara. The hallmark of a great lawman is his ability to sing the songs of the Burndud, without error; and the ability to do so like the ability to understand and translate the ancient language in which they are sung - was instilled into Mr Woodley by decades of teaching by the old Yindjibarndi Lawmen of his grandfather s generation. The most important part of the Birdarra concerns what Yindjibarndi people call Galharra the social system of Yindjibarndi. Under this system everything that exists as Yindjibarndi belongs to one of four social groups: Banaga, Burungu, Garimarra and Balyirri. Galharra is the system of relationship rules which prescribes how a person in one group is required to behave in relation to the other members or things in that group, and towards the members and things in each of the other three groups. As was previously attested to by Mr Woodley: The Yindjibarndi Galharra Law today is the same law given by Minkala to the Marrga. It was passed down to us, by the Marrga and our old people, and we are obliged to keep it going. That is what we have done, even through the hardest of times, and it is what we must keep doing. Galharra is a relationship system, based on respect and reciprocity it binds us together as a community and ensures that [the] resources of our country are shared by the present generation and preserved for future generations. 2/7

3 The survival and wellbeing of Yindjibarndi depends on each of us following the Law that was given to us and ensuring that Manjangu [ strangers ] do the same. As I said [before], this can be done with other Ngaardangarli [ Aboriginal people ] because they have their own Galharra and we can easily fit them into our system; it can also be done with people who are not Ngaardangarli and who don t have Galharra, so long as they prove [their] intentions are worthy and we are confident they will not break our law. But with mining companies, like FMG, it is not possible to include them in our Galharra system and the only alternative is an agreement which sets the rules about how they must relate to Yindjibarndi. xiv Ongoing adherence to the religious principle of reciprocity explains why, in 2007, although the Yindjibarndi People oppose mining of any sort in Yindjibarndi country, approval was given for YAC to try to negotiate an agreement with FMG. As Mr Woodley later testified: Under [the Birdarra] Law, Yindjibarndi country is obliged to produce and share its resources with us, only if we continue to follow the Law by caring for our country and people in accordance with that Law; and, Yindjibarndi... are obliged to share the resources of Yindjibarndi country with Manjangu, only if they too follow the Law by caring for our country and us in accordance with that Law. xv And so, on 15 November 2007, the Chairman of YAC, Stanley Warrie, wrote to Mr Forrest personally to say that the Yindjibarndi People were prepared to negotiate an Agreement to give consent for FMG to access Yindjibarndi country for mineral resources if, in return, FMG was prepared to: recognise the economic, political and social disadvantage faced by the Yindjibarndi People ; fully respect their fundamental human right to civil, political and cultural self-determination as enshrined within the United Nations Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights ; and, honour the decision of the Yindjibarndi People for all negotiations to be conducted through YAC. Notably, Mr Forrest never replied to the Chairman s letter. c. Yindjibarndi Aboriginal Corporation i. The prescribed body corporate determination: YAC is the legal owner of the native title rights, which were determined to exist by the Federal Court xvi ; and, as such is the only entity with power to negotiate an agreement which affects those rights xvii. On 2 May 2005, the Federal Court made what is generally referred to as a Prescribed Body Corporate (PBC) Determination; namely, a determination that Yindjibarndi Aboriginal Corporation (YAC) is the corporate body, prescribed by s 56 of the Native Title Act 1993 (NTA) xviii, which holds and manages the native title rights that were declared to exist (in the 2003 determination) in the Native Title Area situated in the northern half of traditional Yindjibarndi country xix in Trust for the Yindjibarndi People xx for both the present generation, and all future generations of Yindjibarndi people. In accordance with the requirement, in s 56(2) of the NTA, YAC is the chosen representative institution of the estimated 1200 to 1500 persons who currently comprise the Yindjibarndi People. Following this determination, YAC s name and address was registered in the National Native Title Register xxi. YAC has 136 members xxii ; and Board of 12 Directors xxiii, which receives advice from a 16-member Elders Council. YAC s constitutional objective is to maintain, protect, promote and support the culture, native title traditions and customs, economic development, interests and social progress of the Yindjibarndi People ; and, provide environmental, social, economic and cultural benefits ; and education, training and employment for Yindjibarndi people and other Aboriginal people xxiv. YAC s Constitution directly reflects the obligations imposed on Prescribed Bodies Corporate under the NTA and the PBC Regulations xxv. ii. The statutory authority of YAC in matters affecting the native title area: 3/7

4 The consequence of registration of YAC s name in the National Native Title Register is that YAC is obliged by the NTA and the Native Title (Prescribed Body Corporate) Regulations 1999 ( PBC Regulations ) to act on behalf of the common law holders xxvi, in respect of all matters relating to the native title rights that were declared to exist in the Native Title Area; and, YAC is empowered to enter into agreements which, if made with their prior informed consent, are binding on the common law holders of the native title rights xxvii. As the legal holder of the native title rights in the Native Title Area, YAC has power, under the PBC Regulations, to commence legal proceedings against anyone who seeks to interfere with or prevent the exercise of the native title rights xxviii ; and this includes an action for compensation against any mining company, under s 123 of the Mining Act 1978 (WA), for any loss of the use of land in which the native title rights exist, and for any social disruption caused by any such loss xxix. Notably, High Court has previously observed that the concept of social disruption may be particularly apposite in respect of any compensation for native title holders xxx. The statutory power, given to YAC to hold and manage the native title rights in the Native Title Area and to enter into agreements which are binding on the common law holders may not lawfully be delegated nor, lawfully, arrogated; the same applies to the statutory duty imposed on YAC to obtain the informed consent of persons whose common law rights and interests will be affected by any such agreement. In accordance with the decision of the Full Court of the Federal Court, in Western Australia v Ward [2000] FCA 611, the legal regime created by the NTA and the PBC Regulations, means that YAC is the entity with which a public authority and members of the public are to deal in relation to the management and administration of the native title rights and interests which were determined to exist xxxi (emphasis added). As demonstrated below, the Agreement proposed by Andrew Forrest at the 16 March 2011 meeting ( FMG s Agreement ) xxxii, directly affects the native title rights held by YAC in the Native Title Area; and, thus as a matter of law, YAC, and only YAC, is empowered to negotiate such an agreement and to hold payments of money, received as compensation or otherwise related to the native title rights and interests, in trust for the common law holders xxxiii. At the last negotiation conference between FMG and YAC, chaired by President of the National Native Title Tribunal, which was held in Roebourne on 10 August 2010, FMG presented a draft agreement a YAC s consideration. The terms of that agreement were in most respects the same as the terms in the Whole of Claim Land Access Agreement, proposed by FMG and rejected by YAC and the Yindjibarndi People at a community meeting on 11 June The changes proposed by FMG, in August 2010, offered slightly more compensation than had been offered under the 2008 proposal, but FMG had unilaterally altered the definition of the Agreement Area to include: the Yindjibarndi portion of the native title determination area in Daniel v State of Western Australia [2005] FCA 536 determined on 2 May 2005 (Daniel ) in respect of which YAC is the Prescribed Body Corporate. YAC and the Yindjibarndi People rejected the proposal because it gave no indication of the intended scope of FMG s proposed project and yet comprehensively and indefinitely subordinated the exercise of all native title rights to FMG s project; requiring the Yindjibarndi People to obtain permission from FMG to access any part of their traditional country required by FMG for that project. The proposal thus placed in jeopardy the very condition required for the ongoing recognition of the native title by the Court; namely, the ability of the Yindjibarndi People to maintain their connection to their traditional country through the continued acknowledgement and observance of the laws and customs which connect then to their country xxxiv. Following that negotiation conference, YAC was not informed of, or invited to attend any further negotiations with FMG; and YAC was unaware of the existence of FMG s Agreement, before 6 December 2010, when it was sent to YAC by a Member of Parliament who took the view that it should be disclosed to YAC. d. The Yindjibarndi #1 Native Title Determination Application The Yindjibarndi #1 Native Title Determination Application was lodged in the Federal Court on 23 July 2003 twenty days after the Native Title Determination; and, it is a strong native title claim. As demonstrated above, the Court has already found that the Yindjibarndi People continues, as a society, to acknowledge and observe the traditional system of laws and customs, which connect that society to its 4/7

5 traditional lands; and the State, has, for the purposes of the Yindjibarndi #1 claim, conceded this point of proof. Evidence given during the previous native title hearing demonstrated that the claim area forms part of traditional Yindjibarndi Country; and comprehensive, undisputed evidence given by Michael Woodley of the continuous possession, occupation, use and enjoyment of the claim area (including the vacant Crown land [VCL] where FMG wishes to commence its Solomon Project) by the Yindjibarndi People was fully accepted by the National Native Title Tribunal, in Cheedy xxxv. Significantly, there are no competing native title claims over the VCL (or any other area covered by the Yindjibarndi #1 claim); and, there is no evidence of any prior extinguishment of the native title rights, in the VCL, by way of previous Crown grants to third parties. In any event, Mr Woodley s evidence in respect of the VCL, in Cheedy, was such that any previous grants of tenure in those areas must be disregarded, in accordance with s 47B of the NTA. Accordingly, it is my view that the Yindjibarndi People, as a society, was, at the time when the Yindjibarndi #1 claim was lodged, entitled to a determination of exclusive possession native title. This exclusive right to possess, occupy, use and enjoy the land and waters of the vacant Crown land has been claimed, in the Yindjibarndi #1 Application; and has been registered xxxvi, which means (pending formal recognition by way of a further determination of the Federal Court) xxxvii it attracts a procedural right to negotiate xxxviii in respect of any proposed grant, by the State, of any mining or other interest in the land and waters of the VCL, which affect: the enjoyment of the registered naive title rights; their way of life, culture and traditions; the development of their social, cultural and economic structures; their freedom to carry out rites, ceremonies or other activities of cultural significance xxxix. e. Status and Authority of YAC and the Applicant in relation to the Yindjibarndi #1 Claim Although it is the Applicant for a native title claim who, in accordance with s 251B of the NTA, is authorised by all members of a native title claim group to lodge a native title application; and, who may, therefore, deal with all matters arising under [the NTA] in relation to the application xl ; following the Full Court decision in 2007 upholding the native title determination of Nicholson J, it was decided jointly by all members of Applicant and all members of the Yindjibarndi #1 claim group that YAC should take the lead role, in respect of any negotiations affecting traditional rights in the claim area. This decision was made in order to ensure that the processes used for obtaining informed consent in relation to any matters affecting traditional rights in the claim area were those required under the NTA in relation to any matters affecting the Native Title Area. YAC s authority in this regard has never been revoked by a joint decision of the Applicant. i See Daniel v Western Australia [2003] FCA 666 ( Daniel #1 ), per Nicholson J; available on the web at: ii See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, at [49]-[50] ( Yorta Yorta ) available on the web at: iiiiii See Daniel #1, at[421]-[422]. iv See Moses v State of Western Australia [2007] FCAFC 78 ( Moses ). v In Moses, at [7]. vi See Western Australia v Ward (2000) 99 FCR 316 at 190. vii See NTA s viii Ibid, at s 199. ix See Daniel #1, at [394]-[405] x The literal meaning of this term, (Ngurra-nyu-junggamu) appears to be: when the earth was soft ; however, it appears also to embrace concepts similar to those identified and attributed to the term Dreaming as used by WEH Stanner in his 5/7

6 Boyer Lectures "After the Dreaming" delivered in 1968 and reproduced in the book of his essays, White Man Got No Dreaming (1979) at p xi The Laws of Minkala, given to Yindjibarndi by the Marrga. xii A comprehensive description of Yindjibarndi is set out in the evidence given by Mr Woodley and reproduced in FMG Pilbara Pty Ltd/ Ned Cheedy and Others on behalf of the Yindjibarndi People/ Western Australia, [2009] NNTTA 91 (referred to hereafter as Cheedy ); and is available on the web at: xiii See Cheedy, p. 16 at [3.2] xiv Ibid, p. 19 at [4.14] xv See Cheedy, p. 20, at [4.17], emphasis added. xvi See: Daniel v Western Australia [2003] FCA 666 ( Daniel #1 ), on the web at: Daniel v Western Australia [2005] FCA 536 ( Daniel #2 ), at [2]; on the web at: ; and, Moses v State of Western Australia [2007] FCAFC 78 ( Moses ) at: s&nocontext=1 xvii See Western Australia v Ward [2000] FCA 191 ( Ward FCA ), per Beaumont and von Doussa JJ, at [199]; available on the web at: xviii See Daniel v Western Australia [2005] FCA 536, per Nicholson J, ( Daniel #2 ); available on the web at: xix For resource reasons, the original Yindjibarndi native title determination application covered only the northern half of Yindjibarndi country (some of which was shared with the Ngarluma People) and was a joint Ngarluma and Yindjibarndi application. That application was determined by Nicholson J, on 3 July 2003 in Daniel. Twenty days later, the Yindjibarndi #1 Native Title Determination Application was lodged over the bulk of the southern half of Yindjibarndi country. This application still awaits a determination by the Court; but, YAC lacks the resources to prosecute this claim because of the large number of applications made by FMG and others, for mining tenements in Yindjibarndi country, to which YAC is required to respond. xx See Daniel v Western Australia [2005] FCA 536, per Nicholson J, ( Daniel #2 ) xxi As required by s 193(2)(e) of the NTA xxii YAC s membership list is on the web; at xxiii See YAC s Annual General Report; at xxiv See Yindjibarndi Aboriginal Corporation RNTBC (Registered Native Title Body Corporate) Rule Book at [2]; which is on the web at: xxv See NTA section 57; the Native Title (Prescribed Body Corporate) Regulations 1999 ( PBC Regulations ) at [6] and [8], on the web at: and YAC s Rule Book at [13], [15] and [22]. xxvi Common law holders is defined in the PBC Regulations to include both the Yindjibarndi People, as a society; and, any sub-group, or individual member/s of that society who (under the traditional laws and customs of the Yindjibarndi People) hold particular rights in particular parts of the Native Title Area: see PBC Regulations at [3.2] and [8]. xxvii See Ward, per Beaumont and von Doussa JJ, at [196]; NTA s 58 and PBC Regulations, at [6] and [8]. xxviii See PBC Regulations, at [7] xxix See Western Australia v Ward [2002] HCA 28 ( Ward ), per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [316] and [318]-[319] xxx Ibid. xxxi Per Beaumont and von Doussa JJ, at [199]; available at: xxxii FMG s Agreement, is available on the YAC website at xxxiii See PBC Regulations, at [6(1)(b)]. xxxiv A determination of Native Title may in such circumstances be revoked by the Court under s 13 of the NTA xxxv See footnote 12 above. xxxvi In accordance with the provisions of Part 7 of the Native Title Act 1993 ( NTA ). xxxvii The Yindjibarndi #1 Claim was lodged more than seven years ago. If a determination had already been made by the Court, which recognised this right of exclusive possession, it would of course not be possible for anyone to lawfully traverse the VCL (in order to gain access say to a mining lease) without first obtaining the consent of the Yindjibarndi People. xxxviii See NTA s31 and s 33. xxxix These are the matters which the National Native Title Tribunal ( Tribunal ) is required to take into account, pursuant to s39 of the NTA; if, at the end of the six-month right to negotiate period, the person who applied for the 6/7

7 grant of the mining tenement applies to the Tribunal (under s 35) for a determination (under s 38) that the tenement can be granted by the State. xl See NTA s 62A. The Applicant on the Yindjibarndi #1 Claim is comprised of seven Yindjibarndi people: Ned Cheedy, Mavis Pat, Aileen Sandy, Thomas Jacob, Sylvia Allen and Alum Cheedy and Michael Woodley. 7/7

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