Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571

Year: 
2019
Jurisdiction: 
Western Australia
Forum: 
Federal Court
Legislation considered: 
s 87 Native Title Act 1993 (Cth)
s 47A Native Title Act 1993 (Cth)

Reeves J

In this matter the Court made orders by consent recognising the native title rights and interests of the Nyamal People in land and waters located 30 kilometres east of Port Hedland in the central Pilbara region in the north of Western Australia.

The respondent parties were the State of Western Australia, Coongan Aboriginal Corporation, Strelley Pastoral Pty Ltd and others named in the Schedule.  

Background

The Court noted that the history to the proceeding was long and complex. The Nyamal #10 Application was filed in May 2000.  Later the application was overlapped by a portion of native title determination in the Ngarla #2 Application. Various amendments were made to these applications, together with case management orders. See procedural history at, [3-14] and Related Content below.

In October 2014, the Nyamala #10 Application was no longer overlapped by any other native title determination application. The majority of the Determination Area is covered by pastoral leases, mining tenements, roads and reserves with a large portion comprised of Strelley and Coongan pastoral stations.

In 2019 the parties reached agreement and sought a proposed determination of the Nyamal People's native title by consent without a hearing under s 87 of the Native Title Act 1993 (Cth)(NTA).

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 87 of the NTA were fulfilled and the consent orders should be made.

Nature and extent of the native title rights and interests recognised

Exclusive Possession

The Nyamal People's native title rights and interests in the Exclusive Area, described in Schedule 3 of the Determination, are:

  1. the right to possession, occupation, use and enjoyment to the exclusion of all others, except in relation to flowing and underground waters; and
  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 Nyamal People's native title rights and interests in relation to the Non-Exclusive Area confer the following non-exclusive rights on the Nyamal People, 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 WAD 26 of 2019 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.