Peck on behalf of the Gnulli Native Title Claim Group v State of Western Australia [2019] FCA 2090

The Geraldton and Pilbara regions of Western Australia.

The determination area can be found in the Geraldton and Pilbara regions of Western Australia and includes parts of Exmouth, Coral Bay, Carnarvon and the Gascoyne Junction. For a detailed description of the area and maps see Schedules 1 and 2  of the determination, attached below under documents. The area is within the jurisdictions of the Ashburton, Carnarvon, Exmouth, Murchison, and Upper Gascoyne Council Shire Councils.

Registered with the National Native Title Tribunal on the Native Title Register on  17/12/2019.

Between: 

Gwen Peck & Ors on behalf of the Gnulli Native Title Claim Group (Applicant - WAD 22 of 2019); J.E. (deceased) & Ors on behalf of the Gnulli #2 Native Title Claim Group (Applicant - WAD 366 of 2018); Sharon Crowe & Ors on behalf of the Gnulli #3 Native Title Claim Group (Applicant - WAD 261 of 2019); and

The State of Western Australia (First Respondent); the Commonwealth of Australia (Second Respondent); the Shire of Murchison and others named in the Schedule (Third Respondent).

Judge: Griffiths J

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

The Baiyungu and/or Thalanyji native title holders are those Aboriginal persons who:

• have a connection to those lands and waters within the Baiyungu and/or Thalanyji Area through the traditional laws and customs applicable there; and
• are descended from one or more of the forebears listed in Schedule 7 either by birth or by being culturally 'grown up' from a young age by such persons in accordance with the traditional laws acknowledged and the traditional customs observed by the Baiyungu and/or Thalanyji native title holders; and
• whose connections are recognised by those Baiyungu and/or Thalanyji native title holders who have authority under Baiyungu and/or Thalanyji traditional law and customs.

Yinggarda native title holders are those Aboriginal persons who:

• have a connection to those lands and waters within the Yinggarda Area through the traditional laws and customs applicable there; and
• are descended from one or more of the forebears listed in Schedule 7 either by birth or by being culturally 'grown up' from a young age by such persons in accordance with the traditional laws acknowledged and the traditional customs observed by the Yinggarda native title holders; and
• whose connections are recognised by those Yinggarda native title holders who have authority under Yinggarda traditional law and customs.

Exclusive native title rights and interests over of the determination area

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule 3, to the exclusion of all others.

Other rights and interests in the determination area include:

• land tenure interests registered with the Western Australian Land Information Authority;
• freehold estates;
• reserves;
• marine parks;
• pastoral leases;
• other leases;
• roads;
• interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA);
• easements;
• mining tenements granted under the Mining Act 1904 (WA) (repealed) and/or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements;
• petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and/or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those petroleum interests;
• access to mining tenements and petroleum Interests;
• rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the determination area created under 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) for its employees, agents or contractors to access its telecommunications facilities in and around the vicinity of the determination area in the performance of their duties and/or under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the determination area;
• rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such statutes;
• rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the Rights in Water and Irrigation Act 1914 (WA);
• the common law rights and interests of members of the public, including the right to fish, the right to navigate, the right of any person to use and enjoy any roads in the determination area (subject to the laws of the State) as at the date of this determination;
• right to access the determination area by an employee, agent or instrumentality of the State, Commonwealth, or local government authority as required in the performance of his or her duties;
• any existing public access to and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes, and any areas that were public places at the end of 31 December 1993;
• any other legal interest or right in connection in the land or waters of the determination area
• the Automatic Weather Station (AWS) known as the Cape Range AWS; and
• rights and interests of the Australian Maritime Safety Authority under section 190 of the Navigation Act 2012 (Cth) and section 6(1) of the Australian Maritime Safety Act 1990 (Cth).

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

The Baiyungu and/or Thalanyji native title holders have nominated the Nganhurra Thanardi Garrbu Aboriginal Corporation as the prescribed body corporate to hold their determined native title in trust and to perform the functions required under the Native Title Act 1993 (Cth).

The Yinggarda native title holders have nominated the Yinggarda Aboriginal Corporation as the prescribed body corporate to hold their determined native title in trust and to perform the functions required under the Native Title Act 1993 (Cth).

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

Background

The Gnulli Application

The Gnulli Application was lodged with with the National Native Title Tribunal (NNTT) on 14 April 1997 [7]. It was amended four times in order, among other things, to change the scope of the determination area [9-11]. Some members of the Gnulli applicant were also replaced during the process of the claim under s 66B of the Native Title Act 1993 (Cth) (NTA). The most recent amendment was made (and accepted) on 21 February 2019 [13].

The Gnulli #2 Application

The Gnulli #2 Application was filed in the Court on 7 August 2018 and covers an area adjacent to the south eastern boundary of the Gnulli Application [15]. It was made on behalf of the same claim group as the Gnulli Application, although described in a different form [30-31]. The Native Title Registrar was satisfied that the Gnulli #2 Application addressed all necessary criteria required for registration, and the application was entered on the Register of Native Title Claims on 14 December 2018 [16].

The Gnulli #3 Application

The Gnulli #3 Application was filed in the Court on 1 May 2019 and covers an area within the Gnulli Application [17]. The Gnulli #3 Application was made on behalf of the same persons as both the Gnulli #2 and the Gnulli Applications so was not able to satisfy s 190C(3) of the NTA in order to be registered [17]-[19]. The Registrar of the NNTT subsequently provided public notification of the Gnulli #3 Application under s 66 of the NTA [19]. 

Details of Judgment

Connection to country

The native title holders have religious and spiritual connections to the lands and waters specified in the determination area [48].

Under traditional law and custom, rights to land in the Gnulli claim areas are held at the level of extended families. The current families who hold these rights are the descendants of the members of the original groups that held land within the Yinggarda, Baiyungu and Thalanyji language area [53]. They are linked with other families across generations through a shared language identity. Therefore, while the rights and responsibilities for country are held by the claimants, identity and belonging in relation to law and custom also operates at the broader level of language labels [54].

Rights to the Yinggarda Area (and membership of the Yinggarda native title holders) are acquired through having a Yinggarda parent or grandparent. Being born in, living in, or having knowledge of the Yinggarda Area alone (without the requisite element of descent from an Yinggarda forebear) does not provide for rights and interest in land. On the other hand, while filiation is an essential prerequisite, it does not automatically confer rights and interests unless a person has a connection to the Yinggarda Area, and their connection is recognised by the Yinggarda native title holding group [55]. The case is the same for rights to the Baiyungu and/or Thalanyji Area [56].

Ongoing connection to the Determination Area

The native title holders have maintained their connection to their respective countries since the assertion of European sovereignty. It is evident from the archaeological and historical record that Aboriginal people have occupied and used the resources of the land in the determination area since well before first contact [58].

An order of determination is appropriate

The Court found it appropriate to make the determination sought by the parties in respect of the Gnulli, Gnulli #2 and Gnulli #3 Applications [85].

Native title exists in part of the determination area.

Related Entries

Documents

Glossary