Mansfield J
In this decision, the Court made orders recognising the Tjayiwara Unmuru People’s non-exclusive native title rights and interests in an area of approximately 4500 square kilometres of pastoral lease land in the central northern part of South Australia.
The area claimed is a significant area in the central northern part of South Australia, part of the much larger Western Desert region of Australia over which the Tjayiwara Unmuru People share traditional laws and customs with other Western Desert groups. It adjoins the area of the earlier De Rose Hill native title claim (SAD 253 of 2002).The land and waters in the determination area are covered entirely by non-exclusive pastoral leases.
The respondents were the State of South Australia (State), Lyndavale Pty Ltd, Tianda Resources (Australia) Pty Ltd, Tianda Uranuim (Australia) Pty Ltd and Tieyon Pastoral Co Pty Ltd.
The claim group membership substantially mirrored that of the earlier De Rose Hill native title claim and the applicant sand the State therefore relied on the extensive evidence given in that matter, in addition to further anthropological evidence to substantiate connection to the particular area. The native title claim group identify as Yankunytjatjara People with some Pitjantjatjara ancestry. His Honour made the following comments on the evidence:
The evidence suggests that the Yankunytjatjara people have always moved freely between the pastoral stations that make up the Tjayiwara Unmuru areas. The Yankunytjatjara are recognised as part of the Western Desert Bloc society. This bloc consists of a number of groups of people who speak variants of a single language that are mutually intelligible (at least in the case of adjacent groups) and have similar culture. Their country includes vast areas of Australia’s interior from Western Australia, into the north-west of South Australia and the south-west of the Northern Territory.
The claimants gave accounts of travelling through the claim area, hunting and gathering traditional foods and being taught about the tjukurpa (dreaming) sites and the associated stories relating to how ancestral creatures created significant features of the landscape (such as waterholes) in the course of their progress across the land. This knowledge has been passed down from generation to generation and connects the claimants not only to one another but also to the physical and spiritual country of the land. The Court accepted that the native title rights and interests under claim arise from the claimants’ traditional law and customs, which have evolved from the native title rights and interests as they were likely to have been at sovereignty.
The Court was satisfied the requirements of s225 of the Native Title Act 1993 (Cth) (NTA) were met. His Honour was further satisfied on the evidence that it should make the determination of native title according to s 87 of the NTA. .
Rights and interests
The Court recognised the Tjayiwara Unmuru People’s non-exclusive rights in the land and waters of the determination area including the right to access, hunt and camp on the area, gather and use the natural resources including natural water resources, live, cook, conduct ceremonies, teach the physical and spiritual attributes of locations and sites and protect sites and places of significance on the area.
The native title rights and interests are for personal, domestic and communal use and do not include commercial use of the determination area or the resources from it.
Orders
Once the determination comes into effect:
The native title is not held on trust.
Tjayiwara Unmuru Aboriginal Corporation ICN 7854 is to be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act.
The parties are free to apply to the Court to establish the location and boundaries of specified public works as specified and their effect on native title rights and interests and related matters.