Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571

Shire of East Pilbara, Town of Port Hedland

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

Between:

Doris Eaton, Alice Mitchell and Doris Monaghan on Behalf of the Nyamal People (Applicant)

and

State of Western Australia, Coongan Aboriginal Corporation, Strelley Pastoral Pty Ltd, The Nomads Charitable and Educational Foundation Inc and Yamatji Marlpa Aboriginal Corporation (Respondents)

Judge: Justice Reeves 

Determination

Native title exists in parts of the determination area

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

Native title holders

Native title is held by the Nyamal People, as defined in Schedule Seven. 

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 all the parts of the area described in Schedule Three, except in relation to flowing and underground water. The exclusive area is shaded green on the maps in Schedule Two.

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

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

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

These rights exist over the non-exclusive area shaded yellow on the maps at Schedule Two. In the judgment, this area is described those parts of the determination area that are not exclusive areas, or those described in paragraph 2 of the judgment as an area where native title does not exist.

The non-exclusive rights include:

• living on, being able to enter and remain on the area;
• camping and erecting temporary shelters and structures for the purposes above and to travel over and visit any part of the non-exclusive area; 
• hunting; 
• fishing; 
• gathering and using the traditional resources of the non-exclusive area; 
• taking and using water on the non-exclusive area; 
• engaging in cultural activities & sharing cultural knowledge, including: visiting culturally and/or spiritually important places, and undertaking lawful activities to protect those places, as well as undertaking ceremonies and rituals in the determination area; and 
• being accompanied by non-Nyamal spouses/parents/children of the Nyamal People, or anyone required by traditional law and custom to perform ceremony or cultural activities on the non-exclusive area. 

Other rights and interests in the determination area include:

• reserves; 
• pastoral leases; 
• other leases; 
• roads; 
• mining tenements; 
• access to mining areas; 
• those of Telstra Corporation Limited; 
• those of the Warralong Aboriginal Community; 
• 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;
• public rights held by all community members; 
• the rights 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 Areas 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 over or 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 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 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

Originally, this application was filed on 25 May 2000 [4]. At this time, the Nyamal #10 Application overlapped with two other native title applications: the Warren (WAD 82 of 1998) and the Ngarla #2 (WAD 77 of 2005) applications [5].

On 27 March 2007, Justice Bennett ordered that the extent of the overlap with the Ngarla #2 Application be dealt with in the Ngarla #2 proceeding [7]. On 20 August 2010, the Nyamal #10 Application was amended to decrease the area of the claim and it no longer overlapped with the Ngarla proceeding [10]. Due to the resolution of other native title applications, by 3 October 2014 the Nyamal #10 Application no longer overlapped any other native title application [13].

The parties to the Nyamal #10 Application came to an agreement in early 2019 and Justice Reeves approved the agreement per s 87 of the Native Title Act [15].

On learning of the successful native title determination, Ms Eaton stated that "I'm happy and I'm sad. Sad that we lost our old people [and they're] not with us... [but] it's a happy time, at least we got a right to negotiate with Government... give us [the] right for our voice to be raised through the Government system... so our next generation can plan things better. But for myself, I am happy... I'm over the moon we are getting determination. It's a good thing." (Cross, 2019)

Details of Judgment

On the parties' persistence with the native title process, Justice Reeves stated that "one of the objects of the NTA is to resolve native title claims by negotiation and agreement. The negotiations and agreement that have led to this determination of native title clearly serve to advance that object. The parties are to be congratulated for the years of effort and persistence that have been required to pursue the negotiations to their finality" [35]-[36].  

Importantly, Justice Reeves made clear the role of a native title determination, and in doing so recognised the longevity of Indigenous Law in Australia; "In conclusion, it is worth making this observation: 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" [38].

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