Griffiths J
In this decision, Griffiths J made orders by consent recognising the exclusive and non-exclusive native title rights and interests of the Yinggarda, Baiyungu and Thalanyji people (the Gnulli Native Title Claim Group) in relation to land and waters covering approximately 71,354 square kilometres in the Upper West Gascoyne and Murchison regions of Western Australia. The area encompasses six local government regions as well as the Aboriginal communities of Mungullah and Woodgamia. The majority of the area is under, or has historically been under, pastoral lease.
Significant natural features include the Kennedy Range and Cape Range National Parks, the Ningaloo Marine Park, and Lake MacLeod. The Determination Area includes waters in the Exmouth Gulf and the Ningaloo Marine Park. The remainder of the Determination Area comprises reserves, freeholds and leases (predominately within the towns of Carnarvon, Gascoyne Junction, Exmouth and Coral Bay), roads and unallocated Crown land.
The respondents to the proceedings include the State of Western Australia, Commonwealth of Australia, the Shires of Murchison, Carnarvon, Exmouth, Upper Gascoyne, various corporations and pastoral interests listed in the Schedule of Parties to the decision.
Background
The Gnulli, Gnulli #2 and Gnulli #3 applications were lodged in April 1997, August 2018 and May 2019 respectively. The Gnulli application was amended in July 1999, September 2000, April 2014 and, most recently, in February 2019, with the effect of clarifying and reducing the area claimed.
Rights and Interests recognised
The native title in the Baiyungu and/or Thalanyji Area is held by the Baiyungu and/or Thalanyji native title holders.
The native title in the Yinggarda Area is held by the Yinggarda native title holders.
Exclusive rights and interests
In relation to the exclusive area described in Schedule 3, Griffiths J recognised the rights and interests of the native title holders to possession, occupation, use and enjoyment to the exclusion of all others, except in relation to flowing and underground water.
In relation to flowing and underground water, the right to use and enjoy the flowing and underground water, including the right to hunt on, fish from, take and use the traditional resources, of the flowing and underground water; and the right to take and use the flowing and underground water.
The Court noted that, except as otherwise provided for by law, the relationship between the exclusive native title rights and interests and mining lease M0900086 is that, to the extent that the mining lease is inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, M0900086 continues to exist in its entirety, but is invalid to the extent of the inconsistency with the native title rights and interests during the currency of M0900086.
Non-exclusive rights and interests
In relation to the non-exclusive area (those lands and waters which are not Exclusive Areas or described as an area where native title does not exist), Griffiths J recognised the non-exclusive rights and interests of the native title holders, including the right to conduct activities necessary to give effect to them:
(a) the right to enter and remain on the Non-Exclusive Area, camp, erect temporary shelters, and to travel over and visit any part of the Non-Exclusive Area;
(b) the right to hunt, fish, gather, take and use the resources of the Non-Exclusive Area;
(c) the right to take and use water;
(d) the right to engage in cultural activities on the Non-Exclusive Area, including:
(i) visiting places of cultural or spiritual importance, protecting and maintaining those places by carrying out activities to preserve their physical or spiritual integrity; and
(ii) conducting and participating in ceremony and ritual, including burials, burial rites and the transmission of cultural knowledge;
(e) the right to light contained and controlled fires for domestic, cultural and spiritual purpose but not for the clearance of vegetation;
(f) the right to be accompanied on to the area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the area, are:
(i) the spouses, partners, parents or children of the native title holders;
(ii) people who are members of the immediate family of a spouse, partner, parent or child of a native title holder; or
(iii) people entering the Non-Exclusive Area in connection with the performance of ceremonies or cultural activities in accordance with traditional laws and customs.
Orders
There be a determination of native title in the terms set out in Attachment A.
The Nganhurra Thanardi Garrbu Aboriginal Corporation (ICN 9183) shall hold the determined native title in trust for the Baiyungu and/or Thalanyji native title holders.
The Yinggarda Aboriginal Corporation (ICN 9184) shall hold the native title in trust for the Yinggarda native title holders.
No orders as to costs.