McKerracher J
In this matter the Court made orders by consent recognising the native title rights and interests of the Esperance Nyungar people over approximately 28,895 square kilometres of land and waters extending east from Esperance to Israelite Bay, west from Esperance to around Ravensthorpe and north through to Salmon Gums.
The State of Western Australia (State), Shires of Esperance and Ravensthorpe, Ravensthorpe Nickel Operations Pty Ltd and The Shell Company of Australia Ltd were the respondents.
The application was originally lodged on 6 June 1996, with 2 amendments made in 2008 and 2009.
The agreement was reached through mediation, commenced in 2010, including an early neutral evaluation in 2004 and includes a determination of native title and various Indigenous Land Use Agreements (ILUA).
Rights and interests
Non-exclusive native title rights and interests were recognised in the Determination Area including the right to:
access the land and waters;
enter and remain on the land, camp and light fires for cooking, heating and lighting;
take and use (by sharing and exchanging) flora, fauna, fish and shellfish and other traditional resources from the land and waters;
take and use water
participate in cultural and religious activities; and
care for, maintain and protect from harm sites and areas of traditional and cultural significance.
These rights are for the purpose of satisfying the personal, domestic, social, cultural, religious, spiritual, ceremonial and communal needs but not for commercial purposes.
The Court accepted anthropological, historical, archaeological and linguistic evidence, as well as a Connection Report prepared by Goldfields Land and Sea Council, witness statements by members of the claimant group, a DVD and film guide of a three day on-country meeting in March 2008 and joint submissions by the parties.
McKerracher J discussed various aspects of the Esperance Nyungar connection to country, at paragraph [17], and noted the elements of traditional cultural practice, law and custom that the Esperance Nyungar people share with the broader Nyungar cultural bloc, while acknowledging the unique attributes that justify recognition of a distinct Esperance Nyungar society. Of interest was the geographical distribution of the tjaltjraak or tallarack tree, which correlates closely to the boundaries of Esperance Nyungar country and is an important symbolic marker for Esperance Nyungar country.
Prescribed Body Corporate
A prescribed body corporate is to be nominated by the common law holders within twelve months of the date the determination.
Of note in the decision
Two parcels of land within the Determination Area were subject to mining leases granted by the State to FMQ in 2007 without having reached an agreement with the applicant under s 31 of the Native Title Act 1993 (Cth) (NTA). See Bullen v State of Western Australia [2010] FCA 900.
Through Federal Court convened mediation, the applicant and FQM entered into an Indigenous Land Use Agreement over the mining lease areas as part of the consent determination negotiations.
One of the conditions to the State’s consent was the Esperance Nyungar people's agreement to a determination that native title does not exist in the northern part of the claim area as the State was not satisfied that connection had been proven in that area. The claimants agreed not to claim that this area was traditionally their country, notwithstanding the long term cultural heritage importance of that area to the group.