Gordon on behalf of the Kariyarra Native Title Claim Group v State of Western Australia (No 2) [2018] FCA 1990

North of the Hammersley Range

Port Hedland and surrounds. The claim area extends to the north, into the coastal waters, south and west of the town. For a detailed description of the area and maps see Schedule 2 of the determination, attached below under documents. The area is within the jurisdiction of the Town of Port Hedland, the City of Karratha, the Shire of Ashburton, and the Shire of East Pilbara.

Registered on the National Native Title Register

WAD6169/1998

Between: Cyril Gordon, Kerry Robinson and Donny Wilson, on behalf of the Kariyarra Native Title Claim Group (Appellant) and the State of Western Australia, the Commonwealth of Australia, BGC Contracting Pty Ltd, BHP Billiton Minerals Pty Ltd, Dampier Salt Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd, Colin Brierly, Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day, Zane Bradley Day, Four Seasons Corporation Pty Ltd, Westraint Resources Pty Ltd, MG Kailis Group of Companies, Telstra Corporation Limited, and Pilbara Ports Authority (Respondents)

WAD232/2009

Between: TR (deceased), Kerry Robinson and Donny Wilson, on behalf of the Kariyarra Pipingarra Native Title Claim Group (Applicant) and the State of Western Australia, the Commonwealth of Australia, BHP Billiton Direct Reduced Iron Pty Ltd, BHP Billiton Minerals Pty Ltd, Boral Contracting Pty Ltd, Dampier Salt Ltd, FMG Pilbara Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd, Mitsui-Itochu Iron Pty Ltd, Colin Brierly, Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day, and Zane Bradley Day (Respondents)

WAD47/2014

Between: Cyril Gordon, Kerry Robinson and Donny Wilson, on behalf of the Kariyarra Abydos Native Title Claim Group (Applicant) and the State of Western Australia, BHP Billiton Minerals Pty Ltd, FMG Pilbara Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd, Mitsui-Itochu Iron Pty Ltd, Pilbara Gas Pipeline Pty Ltd, Pilbara Water and Power Pty Ltd, The Pilbara Infrastructure Pty Ltd, Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day, and Zane Bradley Day (Respondents) and the Attorney-General of the Commonwealth of Australia (Intervener)

Judge: Barker J

Determination

Native title exists in part of the determination area

It consists of non-exclusive native title rights and interests.

Native title holders

Native title is held by the Kariyarra traditional owners.

Exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedules 1, 2 and 3 as the Exclusive Area and include the right to:

• Possess, use, and occupy the Exclusive Area, excluding its associated bodies of water; and
  
• Hunt, fish, and take traditionally used resources from bodies of water in the Exclusive Area.
  

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedules 1, 2 and 3 as the Non-exclusive Area and include the right to:

• Travel over and make camp on the Non-Exclusive Area;
• Hunt, fish, and take traditionally used resources from the Non-Exclusive Area;
• Engage in cultural activities (e.g. ceremonies and burials) and maintain culturally important sites;
• Participate in decision-making related to the use of the Non-Exclusive Area by Native Title holders;

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

• Continuation of existing rights and interests related to reserves, pastoral and other leases, roadworks, easements, conditional freehold, and mining tenements;
• Petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and the Petroleum Pipelines Act 1969 (WA);
• the rights and interests Telstra would ordinarily have over any land, resulting from the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including the right to do work on its facilities in and around the area;
• the rights and interests arising from the Woodstock Abydos protected area's status under the Aboriginal Heritage Act 1972 (WA);
• the rights and interests arising from the Kariyarra and State Indigenous Land Use Agreement  (NNTT Number WI2017/016);
• the public right to fish, navigate, and use roads passing through the determination area;
• the right for government authorities to access the determination area to perform their duties; and
  
• any existing public rights of access to bodies of water, public spaces, and stock routes.

See Schedule 6 for further information about the non-native title rights and interests.

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

The Kariyarra
Aboriginal Corporation Registered Native Title Body Corporate (RNTBC)
is the prescribed body corporate. It performs the functions required
under the Native Title Act 1993 (Cth) and holds the native title in trust for the Kariyarra People.

Background

The Karriyarra application is a combination of 14 applications which commenced in 1996 with Kariyarra People #1 (WAD6078/1998) [6]. The comination represented 12 years of ongoing work between the Kariyarra People and the Western Australian Government. During that time, the Kariyarra People also successfully developed an Indigenous Land Use Agreement in collaboration with the Western Australian Government and Yamatji Marlpa Aboriginal Corporation (YMAC 2017).

The Karrinyarra Pipingarra application was filed on 18 December 2009 and covers an area to the east of the Karrinyarra application [14].

Between 2009 and 2011, issues about the membership of the claim group arose and anthropological research was conducted to resolve the dispute [16]-[18].

On 5 March 2014, the Karriyarra Abydos application was filed, covering an area east of the Karriyarra application and south of the Karriyarra Pipingarra application.

Details of judgment

The Palmer Report is referred to throughout the judgment [see e.g. 28, 41]. This report included observations made by an expert anthropologist to determine the traditional owners of the land as well as their cultural practices and inhabited land. The Palmer Report found that the lands described by the consent determination matched the traditional lands of the Kariyarra People [42], and that their cultural identity and practices have endured to this day [43, 44].

Justice Barker also considered whether there was an issue regarding the authorisation of the consent determination. Ordinarily, all parties who make up the Applicant must authorise a consent determination [47]. In this case, though, due to the deceased status of one member of the Applicant, this was not possible [50]. The Court held, though, that the other parties of the Applicant should be able to authorise the consent determination all the same, as it is in the interest of justice to let them do so [54].

Overall, the consent determination was considered to be validly made and came into legal effect [75].

Native title exists in part of the determination area.

Related Entries

References

Documents