Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570

Year: 
2020
Jurisdiction: 
Western Australia
Forum: 
Federal Court
Legislation considered: 
s 87A Native Title Act 1993 (Cth)
s 47B Native Title Act 1993 (Cth)

Reeves J

In this matter the Court made orders by consent under s 87A of the Native Title Act 1993 (Cth) (NTA) recognising the native title rights and interests of the Nyamal People in an area of land and waters in the central Pilbara region in the north of Western Australia. 

Background

The Court noted that the proceeding had a long and complex history. The current Nyamal Application was created in 1999 as a combination of nine separate native title determination applications made by the Nyamal People.  Over the years the application had been amended in various ways. In 2018, a separate proceeding was commenced over the balance of the land and waters of the Nyamal Application as it was overlapped by a native title determination application of the Palyku People. 

The other parties were the State of Western Australia (State), Mt Goldsworthy Joint Venturers, Mt Newman Joint Venturers, 28 other individuals and companies, and the Attorney-General of the Commonwealth of Australia, as intervener.  

The Court noted that majority of the determination area is covered by pastoral leases, mining tenements, roads and reserves, at [14]. 

Having regard to the procedural history and evidence filed in support of the proposed consent determination the Court was satisfied that all of the conditions of s 87A of the NTA were fulfilled and the consent orders should be made.

Although not necessary to do so, Reeves J extracted part of the joint submissions summarising the distinct body of Nyamal traditional laws and customs and evidence of the Nyamal People's connection to their traditional country of the Determination Area. Noting, 'This summary goes some way to explaining why the parties came to the agreement that this determination of the Nyamal People’s native title should be made..", at [35]. 

Nature and extent of native title rights and interests

Exclusive Possession

The native title rights and interests in relation to the land and waters in Schedule 3, Exclusive Area, are the:

  1. right to possession, occupation, use and enjoyment to the exclusion of all others, except in relation to flowing and underground waters.
  2. In relation to flowing and underground waters, the right to use and enjoy the flowing and underground waters, including:

(i) the right to hunt on, fish from, take and use the traditional resources of the flowing and underground waters; and (ii) the right to take and use the flowing and underground waters.

Non-exclusive rights and interests

The non-exclusive native title rights and interests of the Nyamal People in relation to the land and waters in the Non-Exclusive Area, including the right to conduct activities necessary to give effect to them:

(a) the right to live, being to enter and remain, camp and erect temporary shelters and other temporary structures for that purpose and to travel over and visit any part of the Non-Exclusive Area; (b) the right to hunt, fish, gather and use the traditional resources of the Non-Exclusive Area; (c) the right to take and use water on the Non-Exclusive Area; and (d) the right to engage in cultural activities and the transmission of cultural knowledge on the Non-Exclusive Area, including:

(i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and (ii) conducting burials, ceremony and ritual.

(e) the right to be accompanied on to the Non-Exclusive Area by those people who, though not Nyamal People and who (for the avoidance of doubt) cannot themselves exercise any native title rights, are:

(i) the non-Nyamal spouses, parents or children of the Nyamal People; or (ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Non-Exclusive Area.

Orders

  1. In relation to the Determination Area, there be a determination of native title in the terms provided for in Attachment A.
  2. The Nyamal Aboriginal Corporation (ICN: 8770) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).
  3. There be no order as to costs.