Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570

Shire of East Pilbara, Town of Port Hedland. 

Registered with the National Native Title Tribunal on the Native Title Register 03/06/1999.

Between: Kevin Charles Allen, Alice Mitchell , Jean Walker, Tony Taylor and Willie Jumbo on behalf of the Nyamal People (Applicant)

and

The State of Western Australia, Mt Goldsworthy Joint Venturers, Mt Newman Joint Venturers, BHP Direct Reduced Iron Pty Ltd, Balfour Downs Pastoral Coy Pty Ltd, Bovidae Pty Ltd, Hillside Station (WA) Pty Ltd, Pardoo Beef Corporation Pty Ltd, Vanguard Enterprises Pty Ltd, Startline Nominees Pty Ltd, Anne Catherine Paull, Greenleigh Pty Ltd, Keydrive Pty Ltd, Barkley Marshall Day, Joan Elizabeth Day, Richard Ernest Day, Zane Bradley Day, Paul D Bettini, John J Bettini, Ethel M Bettini, Anthony B Bettini, Mary E Bettini, Mark J Bettini, David F Bettini, Grant William Robert Brooks, Wendy Mcwhirter Brooks, Colin Brierly and Pinga Pty Ltd (Respondents)

Judge: Justice Reeves 

Determination

Native title exists in part of the determination area

It consists of exclusive and non-exclusive native title rights and interests. Native title rights were recognised in all of the determination area except for the parts of the determination area identified in Schedule Four and those shaded pink in the maps in Schedule Two. 

Native title holders

Native title is held by the Nyamal People, as defined in Schedule Seven and available to read in the Extract. This Schedule describes the Nyamal People as those who: identify as Nyamal under traditional law and custom, are identified by other Nyamal People as Nyamal, and are descendants of those listed in the Schedule. 

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

This is the right to possession, occupation, use, and enjoyment, to the exclusion of all others,  of the area described in Schedule Three and shaded green on the maps in Schedule Two, except in relation to flowing and underground water. The land designated by General lease 1123414 is excluded.

In relation to the flowing and underground water in the area of exclusive native title, the Nyamal People have the right to use and enjoy the resources, including: 

• hunting; 
• fishing;
• taking and using the traditional resources of the flowing and underground waters; and 
• taking and using the flowing and underground waters. 

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

Non-exclusive rights exist over all of the land of the determination area, except the exclusive native title area and the area described in paragraph two of the determination as one over which native title does not exist. The non-exclusive native title rights and interests are:

• living, being able to enter, remaining on, camping and erecting shelters on the land;
• travelling on and visiting any part of the non-exclusive area;
• hunting; 
• fishing; 
• using the traditional resources;
• taking and using water from the area;
• engaging in cultural activities and passing on cultural knowledge;
• visiting places of cultural or spiritual importance;
• protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;
• conducting burials, ceremony and ritual; and
• being accompanied by spouses, parents or children of the Nyamal People, or those required by traditional law and custom to enter land for the performance of ceremonies or cultural activities. 

Other rights and interests in the determination area include:

• reserves; 
• pastoral leases; 
• leases; 
• easements; 
• roads; 
• mining tenements; 
• petroleum interests;
• access to mining and petroleum areas;
• those of Telstra corporation limited; 
• rights and interests granted by the Crown as permitted by legislation;
• rights and interests arising from the operation of the State or Commonwealth, including the Rights in Water and Irrigation Act 1914 (WA); 
• public rights held by community members, including to fish, to navigate and to use and enjoy public access roads in the determination area;
• the right of State, Commonwealth or local Government employees, agents 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 s 212(2) of the Native Title Act and s 14 of the Titles (Validation) Act;
• any other legal or equitable estate or interest in the area; 
• any other right, charge, power or privilege in connection with the area; and 
• restrictions on the use of land and/or waters in the determination area. 

See Schedule Six for further information about these other 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 Nyamal 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 Nyamal People.

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

Background

This application is the culmination of nine native title applications made by the Nyamal People [4]. Nyamal #1- #7 were small claims within the boundary of the present application, and Nyamal #8 was a small claim outside the present application [6]. Nyamal #9 was a larger claim that covered all the land that the Nyamal People claimed to be their traditional lands [6]. 

On 19 March 1999, Nyamal #1 was amended to include applications #2- #9, and entered on the Register of Native Title Claims on the 3rd of June 1999 [7]. 

On the 25th of May 2006, the application was amended to decrease the size of the land claimed. This was to ensure that land overlaps with the Ngarla, Nyiaparli, Kariyarra, Nyangumarta and Palyku native title applications were reduced so far as possible [8].

Since then, further amendments have been made, including to the constitution of the Nyamal Applicant and the claim group description [9]. 

The parties to the Nyamal Application presented an agreement to the Court at the beginning of 2019, and requested the Judge make a decision as to these proposed native title rights under s 87A of the Native Title Act [13]. Justice Reeves was satisfied that an adequate agreement about the Nyamal People's native title rights had been made. [37]

Upon learning of the successful determination, Mr Allen stated he "[felt] proud that we're [the Nyamal People] going to win something and make the next step" in the "fight" for equality (Cross, 2019). 

Details of Judgment

In explaining this agreement to the Court, the parties provided a joint submission that recognised that "the Nyamal system of traditional laws and customs connects the Nyamal People to their country and the traditional spiritual beliefs of the Nyamal People are firmly embedded within the physical landscape" [35]. As described in Nyamal belief systems, "it was during the Kapukarri that the ancestral beings created the current physical features of the Nyamal Determination Areas, put the Nyamal People and language in the land and also laid down the laws to govern the Nyamal People and how they behave. It is these laws and customs that connect the Nyamal People to their country" [35]. 

In terms of the ongoing connection to Country required by the Native Title Act, the joint submission recognised that "the Nyamal People have maintained their connection to the Nyamal Determination Area since the assertion of sovereignty. It is evident from the archaeological and historical record that the Aboriginal people have occupied and used the resources of the land in the Nyamal Determination Area since well before first contact" [35]. 

In his conclusions, Justice Reeves makes a pertinent point about the existence of native title for First Nations People: "this determination of native title does not create native title in the Determination Area. Instead, it marks the recognition, by the Australian legal system, of the Nyamal People's long held, and pre-existing, native title in this land. That is to say, that native title has existed in this land, according to the traditional laws and customs of the Nyamal People, since long before this determination today" [41]. 

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