Stock on behalf of the Nyiyaparli People v State of Western Australia (No. 5) [2018] FCA 1453

The Determination Area comprises approximately 40,957 square kilometres in the eastern Pilbara region of Western Australia. For a detailed description of the area and maps see Schedule One of the determination, attached below under documents. The area is within the jurisdiction of the Shire of East Pilbara.

Registered on the Native Title Register on 9 October 2018.

Nyiyaparli Application (WAD628/1998)

Between: David Stock, Raymond Drage, Victor Parker, Billy Cadigan, Leonard Stream on behalf of the Nyiyaparli People (Applicant) and State of Western Australia, Shire of Meekatharra, Yamatji Aboriginal Corporation, BHP Billiton Minerals Pty Ltd, BHP Iron Ore (Jimbelar) Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd, Mitsui-Itochu Iron Pty Ltd, Pilbara Pastoral Co Pty Ltd, Gayna Park Pty Ltd, Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Resources Ltd, Hamersley Iron-Yandi Pty Ltd, Deborah Jane Anick, John Christopher Anick, Balfour Downs Prospecting Coy Pty Ltd, Rachel Mary Burn, Hancock Prospecting Pty Ltd, Keydrive Pty Ltd, Anne Catherine Paull, Chandra Louise Ridley, G H Rinehart, Roy Hill Station Pty Ltd, Brent Ronald Smoothy, Startline Nominees Pty Ltd, Sunblade Holdings Pty Ltd (Prairie Downs), Vanguard Enterprises Pty Ltd, Airservices Australia, Telstra Corporation, Commonwealth of Australia (Respondents)

Nyiyaparli #3 Application (WAD196/2013)

Between: David Stock, Raymond Drage, Victor Parker, Billy Cadigan, Leonard Stream on behalf of the Nyiyaparli People (Applicant) and State of Western Australia, Hamersley Exploration Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Resources Ltd, Hamersley WA Pty Ltd, Hamersley and Hope Downs Iron Ore Pty Ltd, BHP Billiton Minerals Pty Ltd, BHP Iron Ore (Jimbelar) Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, Mitsui Iron Ore Corporation Pty Ltd, Mitsui-Itochu Iron Pty Ltd, Pilbara Pastoral Co Pty Ltd (Respondents) and Attorney General of the Commonwealth of Australia (Intervener).

Judge: Barker J 

Where made: Coondiner Pool 

Determination

Native title exists in parts of the determination area

It consists of exclusive and non-exclusive native title rights and interests. Native title does not exist in the parts of the determination area shaded pink on the maps in Schedule Two, see attached below. 

Native title holders

Native title is held by the Nyiyaparli People, as defined in Schedule Seven. Schedule Seven describes that Nyiyaparli People identify themselves as Nyiyaparli under traditional law and custom, are identified by other Nyiyaparli People as Nyiyaparli, have a connection with the Determination Area according to traditional law, and are descended from one (or more) of the listed persons or have been incorporated into the Nyiyaparli group according to traditional law.  

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

The exclusive area is described in Schedule Three and is generally shown as shaded green on the maps in Schedule Two. In relation to the exclusive area, the native title holders have the right to possession, occupation, use, and enjoyment of the area (except in relation to flowing and underground water), to the exclusion of all others. In relation to flowing and underground water in the exclusive area, the native title holders have the right to: 

• hunt on, fish from, and take and use the traditional resources; and
• take and use the flowing and underground water.

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

These rights and interests exist over those parts of the Determination Area that are not exclusive areas. The non-exclusive area is shaded yellow on the maps in Schedule Two. The non-exclusive rights include:

• the right to live, enter and remain on, camp and erect shelters or other structures on, and travel over or visit any part of the non-exclusive area; 
• the right to take and use water; 
• the right to engage in cultural activities and transmit cultural knowledge. Such activities include visiting, maintaining, protecting and caring for places of spiritual importance, and conducting ceremony; and
• the right to be accompanied on the non-exclusive area by those people who, though not native title holders themselves, are spouses/parents/children of the native title holders or are required by traditional law to be on the non-exclusive area. 

Other rights and interests in the determination area include those which occur in relation to:

• reserves; 
• pastoral leases; 
• leases;
• roads; 
• easements; 
• mining tenements and petroleum interests; 
• access to mining and petroleum areas; 
• those of Telstra Corporation Limited; 
• Indigenous Land Use Agreements with National Native Title Tribunal Numbers WI2012/005, WI2015/011, WI2012/007 and WI2015/013; 
• rights and interests granted by the Crown as permitted by legislation; 
• rights and interests arising from the operation of laws of the State or Commonwealth, including the Rights in Water and Irrigation Act 1914 (WA);
• public rights held by all community members; 
• the right of State, Commonwealth or local Government agents, employees or instrumentalities to access the determination area in order to fulfil their legal duties; 
• existing public access to and enjoyment of certain places in the determination area as outlined in s212(2) of the Native Title Act and s14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA); 
• any other legal or equitable interest in the area; 
• any other right, charge, power or privilege in the area; and 
• restrictions on the use of the land and/or waters in the determination area.

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

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

The Karlka Nyiyaparli 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 Nyiyaparli People. 

Full text of the determination is available via the URL link above.

Background

This judgment relates to a combination of two claims by the Nyiyaparli People: WAD 6280 of 1998 (Nyiyaparli People Claim) and WAD 196 of 2013 (Nyiyaparli #3 Claim). Together, these are referred to as the Nyiyaparli Applications.

The Nyiyaparli People Claim was first lodged on 29 September 1998. That application was then amended a number of times, including to be combined with a number of related applications and to amend the applicant group members. 

The Nyiyaparli #3 Claim was first lodged on 17 June 2013, and on 4 March 2014 the applicants of the Nyiyaparli People claim also became the applicants in the Nyiyaparli #3 Claim. 

Details of Judgment

Justice Barker determined the Nyiyaparli Applications together.

Before making the determination, Barker J noted that the parties had agreed to the terms of the determination. Within their agreement, they agreed that one or more members of the Nyayiparli People occupied certain areas that had been covered by exploration or prospecting licences  at the date an application is made, but for prior extinguishment and the Full Federal Court's decision in BHP Billiton Nickel West Pty Ltd v KN (Dec'd) [2018] FCAFC 8, the native title in those areas would have survived. The parties also agreed that, if the High Court later decides that the presence of exploration or prospecting licences, does not prevent the extinguishment of native title from being disregarded under s 47B(2) of the NTA, they would not oppose the registered native title body corporate applying for a variation of this determination.

Some of the pastoral group respondents had further agreed that, following the determination being made, they would sign agreements in relation to their respective pastoral lease areas to be registered as ILUAs. 

In the joint submission provided to Justice Barker by the parties, it was stated that "the Nyiyaparli traditional laws and customs connect the Nyiyaparli People to their country. The Nyiyaparli People believe that these laws and customs have been put in place by the ancestral beings - mangunpa - when the world was created, as laws binding on the Nyiyaparli People and governing Nyiyaparli country. The laws from the mangunpa govern what Nyiyaparli People can and cannot do in Nyiyaparli country. The laws govern the exercise of rights and interests in the Determination Area and who can exercise them, including such rights included in the Nyiyaparli Determination, from prior to sovereignty to the present day" [42]. 

The Court recognised the native title rights of the Nyiyaparli People through this determination, and Justice Barker "congratulate[d] the Nyiyaparli Applicants, the State and non-State respondent parties for negotiating and agreeing to consent orders being made in these terms" [73].

Upon learning of the successful determination, traditional owner Bradley Hall said "it has been almost 20 years leading us to this day and I am proud of this achievement as we have worked together to overcome the challenges faced along the way" (Dickie, 2018).

Native title exists in parts of the determination area

Related Entries

References

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