Daniel v State of Western Australia [2005] FCA 536 (2 May 2005)

In Daniel v State of Western Australia [2005] FCA 536, the Federal Court of Australia made the Pilbara region's first determination of native title.

The Court determined that non-exclusive native title rights and interests exist in relation to the determination area, which consists of the lands and waters depicted in the First Schedule to the determination.

These rights and interests are held by the Ngarluma People in relation to the Ngarluma Native Title Area, and the Yindjibarndi People in relation to the Yindjibarndi Native Title Area.

As described in the First Schedule, native title does not exist in relation to the following parts of the determination area: (a) the 'Burrrup'; (b) 'Offshore waters'; (c) 'Depuch Island'; (d) the 'Hamersley Ranges Area'; or (e) the 'Total Extinguishment Area'.

Native title exists in the 'Ngarluma Native Title Area' and the 'Yindjibarndi Native Title Area', including the 'section 47A Area' and the section 47B Area', whereby extinguishment is disregarded in accordance with the Native Title Act 1993 (Cth). Sections 47A and 47B of the act allows for prior extinguishment to be disregarded where the application for determination of native title includes areas once reserved for the benefit of Aboriginal or Torres Strait Islander People or to vacant Crown land.

The native title rights and interests do not confer possession, occupation, use and enjoyment of land or waters to the exclusion of all others. They are exercisable only in accordance with and subject to traditional laws and customs for personal, domestic, and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

The Ngarluma People hold the following non-exclusive native title rights and interests in relation to the Ngarluma Native Title Area. The rights to:

• access;
• engage in ritual and ceremony;
• camp and build shelters near the river and to live there temporarily, either camping or for the purpose of building a shelter;
• fish in the coastal areas landward of the low water mark, and inland water courses;
• collect and forage for bush medicine;
• hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, emu, bush turkey, echidna, porcupine, witchetty grub, swan), limited in the case of water fauna to coastal waters landward of the low water mark and inland water courses;
• forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);
• take black, yellow, white and red ochre;
• take water for drinking and domestic use;
• cook on the land including light a fire for this purpose, in the proximity of river courses;
• protect and care for sites and objects of significance in the (including a right to impart traditional knowledge concerning the area, while on the area, to future generations and others so as to preserve the benefits of the area and warn against behavior which may result in harm (not including a right to control access or use of the land by others).

The Yindjibarndi People hold the following non-exclusive native title rights and interests in relation to the Yindjibarndi Native Title Area. The rights to:

• access;
• engage in ritual and ceremony;
• camp and to build shelters in the Millstream-Fortescue Area, and to live temporarily either camping or for the purpose of building a shelter; (d) fish from the waters in the Millstream-Fortescue Area;
• collect and forage for bush medicine in the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
• hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle), in the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
• forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey), in the Millstream-Fortescue Area and the upper reaches of the Sherlock River; (h) take black, yellow, white and red ochre in the Millstream-Fortescue Area;
• take water for drinking and domestic use;
• cook on the land including light a fire for this purpose in the Millstream-Fortescue Area;
• protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to inform on traditional knowledge concerning the area, while on the area, to future generations and others so as to preserve the benefits of the area and warn against behavior which may result in harm, (not including a right to control access or use of the land by others).

In relation to the paragraph above, the non-exclusive native title rights and interests in relation to the 'Inter-tidal Zone', do not include the rights in subparagraphs (b), (c), (e), (g), (h), (i), (j), or (k). The native title rights and interests in relation to the 'Offshore Islands', do not include any of the native title rights and interests in subparagraphs (a)-(j). The native title rights and interests in relation to the 'Cemetery Reserve Area', do not include: (a) the right to engage in ritual and ceremony unless it relates to ritual and ceremony for the dead; or (b) any of the rights in subparagraphs (c), (d), (h), (j) and (k). The non-exclusive native title rights and interests in relation to the 'Telstra Area' do not include: (a) a right to remain; and (b) right (c). The non-exclusive native title rights and interests in relation to the 'Telstra Cable Routes', do not include right (h), to the extent that the right involves digging beneath the surface of that land.

The determination also sets out qualifications to the existence of native title rights and interests set out above. There are no native title rights and interests in relation to:

(a) minerals (including ochres to the extent they are minerals) as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA) before the date of this determination; or (b) petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA) before the date of this determination; or (c) the 'Subterranean Waters' as defined in the First Schedule.

The native title rights and interests identified in the determination are exercisable in accordance with state and federal laws and the common law.

The determination also sets out the nature and extent of existing non- native title interests in the determination area. These include the interests of:

• the state and local governments in the use, care, control and management of roads;
• holders of pastoral leases; those in whom reserves are vested;
• mining and petroleum tenements;easement holders;
• DBNGP Land Access Minister in the land in the DBNGP Corridor;
• holders of identified petroleum pipeline permits;
• the Crown and the public in identified dedicated roads;
• the public right to fish and navigate in tidal waters.

The determination also identifies the relationship between the non-exclusive native title rights and the other non- native title rights and interests set out above as follows:

• to the extent that any other interest is a category D past act, a category D intermediate period act or a future act under the Native Title Act 1993 (Cth), or is an act to which sections 47A or 47B Native Title Act 1993 (Cth) applies, and is inconsistent with the continued existence, enjoyment or exercise of the native title rights or interests, the native title continues to exist in its entirety. However, the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of those other interests;
• in the case of mining leases, pastoral leases, easements and licences granted prior to 1 January 1994, the construction or erection of an improvement which is required or permitted under such a lease, easement or licence will prevent the exercise of the non-exclusive native title rights and interests at that location to the extent that the exercise of those rights are inconsistent with the improvement, so long as the improvement is kept; and
• the existence and exercise of the native title rights and interests does not prevent the doing of activities required or permitted to be done by or under the other interests. The doing of such activities prevail over the native title rights and interests and may prevent any exercise of the native title rights and interests but does not extinguish them.

The Yindjibarndi Aboriginal Corporation is to hold on trust the native title rights and interests of the Yindjibarndi People. The Ngarluma People must decide within six months of the date of the determination whether they intend to have their native title held by a prescribed body corporate and have the prescribed body corporate perform the functions set out in the Native Title Act 1993 (Cth). If not, the native title rights and interests of the Ngarluma People will be held by the Ngarluma People and the Court will determine which body corporate is to perform the relevant functions in accordance with Native Title Act 1993 (Cth).

The Ngarluma and Yindjibarndi Peoples first lodged their claim for a determination of native title in 1994. Since that time however, they have had the right to negotiate over any development of the Burrup Peninsula.

This determination, handed down by Justice Robert Nicholson, legally recognises the Ngarluma and Yindjibarndi Peoples' continuing connection to their land.

The determination finalises a claim over almost 25,000 square kilometres of land situated 100 kilometres southwest of Port Hedland.

The Federal Court held that the Ngarluma and Yindjibarndi Peoples hold non-exclusive native title rights over parts of the claim area. The rights identified encompass the right to access, the right to conduct rituals and ceremonies, and the right to hunt, fish, forage, collect bush tucker, bush medicine, ochre, flora, fauna and water. The native title holders also have the right to protect and care for sites and objects.

The determination follows two years after the negotiation of an agreement between three Indigenous groups (including the native title holders) and the State of Western Australia and the Western Australian Land Authority, which allowed for extensive industrial development in the claim area.

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