Jones on behalf of the Yinhawangka people v State of Western Australia [2017] FCA 801

Pilbara Region

Registered on the Native Title Tribunal Register of Native Title Determinations and Applications.

Jones of behalf of the Yinkhawangka People v State of Western Australia [2017] FCA 801.

Part A - WAD 340 of 2010

Between: Churchill Jones, LY (Deceased), Nicholas Cook, David Cox, Adrian Condon, JI (Deceased), Stuart Injie, AF (Deceased) and Roy Tommy (Applicants) and State of Western Australia, Shire of Ashburton, Yamatji Marlpa Aboriginal Corporation, BHP Billiton Minerals Pty Ltd, Channar Mining Pty Ltd, FMG Pilbara Pty Ltd, Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley WA Pty Ltd, Hope Downs Iron Ore Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation, Mitsui Iron Ore Development Pty Ltd, Mount Bruce Mining Pty Ltd, North Mining Ltd, Robe River Ltd, Robe River Mining Co Pty Ltd, Sinosteel Channar Pty Ltd, United Iron Pty Ltd, Cheela Plains Pastoral Co Pty Ltd, Andrew Nicholas Glenn, Wendy Ruth Harvey, Bruce Michael Maguire and Turee Pastoral Co Pty Ltd (Respondents).

Part B - WAD 216 0f 2010

Between: Churchill Jones, LY (Deceased), Nicholas Cook, David Cox, Adrian Condon, JI (Deceased), Stuart Injie, AF (Deceased) and Roy Tommy (Applicants) and State of Western Australia, Barkley Marshall Day, Zane Bradley Day, Joan Elizabeth Day, Richard Ernest Day, Andrew Nicholas Glenn, Wendy Ruth Harvey, Rocklea Station Pty Ltd, Turee Pastoral Company Pty Ltd, BM Maguire, Channar Mining Pty Ltd, FMG Pilbara Pty Ltd, Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Mount Bruce Mining Pty Ltd. Robe River Mining Co Pty Ltd, Sinosteel Channar Pty Ltd and Yamatji Marlpa Aboriginal Corporation (Respondents).

Judge: Bromberg J

Where made: Western Australia

Determination:

Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights.

Native title is held by the Yinkhawangka People.

The exclusive native title rights over parts of the determination area are:

• except in relation to flowing and underground waters, the right to possession, occupation, use and enjoyment to the exclusion of all others; and
  
• in relation to flowing and underground waters: the right to use and enjoy the flowing and underground waters; the right to hunt, fish and use the traditional resources of the flowing and underground waters; and the right to take and use the flowing and underground waters.

These exclusive rights are subject to paragraphs 6,7,8 and 11 of the extract.

The 'exclusive areas' of native title are detailed in Schedule Three and highlighted in green on the maps in Schedule Two. These areas include Wakathuni, Mundari, Bibi Tree, Waarnarra, Piritayi, Nyimili, and Jangurna Jinna.

Non-exclusive native title right and interests that exist in the determination area include:

• the right to live, camp, erect shelters, travel over and visit any land and waters of the non-exclusive Area.
• the right to hunt, fish, gather, take and use any traditional resources
• the right to take and use water
• the right to engage in cultural activities and transmit cultural knowledge of the area
• visiting, maintaining, caring for, protecting and preserving places of cultural or spiritual importance 
• conducting ceremonies and rituals (including burial rites)

These non-exclusive rights do not create any rights in relation to:

• minerals as defined by the Mineral Resources Act 1989 (Qld)
• petroleum and gas as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The 'non-exclusive' areas are the lands and waters that are not part of the 'exclusive' area. Non-exclusive areas do not fall in the areas where native title does not exist. For a detailed description of the exact areas where there are non-exclusive rights, see the yellow highlighted area of the maps in Schedule Two.

Non-native title rights and interests that exist in the determination area:

The nature and extent of non-native title rights and interests are described in Schedule 4 of the determination. These interests are in the form of freehold estates, reserves, leases, and roads

Schedule 4 provides details of each freehold, reserve, lease and road where native title does not exist in relation to land and waters.

Schedule 6 details other interests that exist in the determination area. These include interests in relation to: reserves, leases, pastoral leases, easements, roads, mining tenements, mining leases, exploration licences, general purpose leases, miscellaneous licences, prospecting licences, retention licences, petroleum titles, access to mining and petroleum area, Indigenous Land Use Agreements (ILUAs), the rights and interests granted by the Crown, the rights and interests of members of the public arising under common law.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

The Yinkhawangka People Aboriginal Corporation, as the prescribed body corporate, is to perform the functions required under the Native Title Act 1993 (Cth) and holds the Yinkhawangka Peoples' native title in trust.

Background:

This determination recognised the enduring traditional laws and customs over the determination area. There are two parts to this determination: Part a (WAD340/2010) and Part B (WAD216/210).

Details of Judgment:

An agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Yinkhawangka People in relation to part of the land and waters covered by this application. 

The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth). The court was satisfied that a determination of native title was within the power of the court.

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