McKerracher J
In this decision, the Court made orders by consent recognising the native title rights and interests of two separate but related language groups (Puutu Kunti Kurrama People and Pinikura People) who together claim rights and interests within the claim area. The Puutu Kunti Kurrama and Pinikura #1 (PKKP 1) and Puutu Kunti Kurrama and Pinikura #2 (PKKP 2) applications cover approximately 10,888 square kilometres of land and waters between Exmouth and Tom Price in the Pilbara region of Western Australia. The PKKP 1 was filed on 30 October 2001 and is in its original form. The PKKP 2 was lodged on 1 June 2005 and has been amended twice under order of the Court. The parties asked the Court to hear the applications together.
The respondents included the State of Western Australia, Shire of Ashburton, Yamatji Marlpa Aboriginal Corporation, Hamersley Iron Pty Ltd and Robe River Mining Co Pty Ltd and a number of pastoralist interests.
Rights and Interests recognised
The non-exclusive native title rights and interests recognised in relation to the Determination Area are:
the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters;
the right to hunt, fish, gather, take and use the traditional resources of the land;
the right to take and use water;
the right to engage in cultural activities including:
visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; and
conducting ceremony and ritual, and the transmission of cultural knowledge; and
the right to be accompanied onto 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:
spouses, parents or children of the native title holders; or
people required by traditional law and custom for the performance of ceremonies or cultural activities.
In his judgment, McKerracher J noted at [16] that while the two groups were distinct and had unique characteristics, they also observe common laws and customs that facilitate the protection and sharing of resources. He also discussed the histories of both the Puutu Kunti Kurrama people and Pinikura people. The evidence demonstrated that European settlement did not reach the Aboriginal people in the claim area until the 1880s and many Aboriginal people continued to live independent, mobile lives on country. The evidence provided to the State in support of the claim included an anthropological report, a historical report and supplementary anthropological information. Justice McKerracher also emphasised at [44] that the Court was not creating, but rather recognising rights and interests that have always existed.
Within six months, the group must nominate a prescribed body corporate: the native title may be held in trust either by the PKKP Aboriginal Corporation or alternatively, another corporation should be nominated with the consent of the group.