Karlka Nyiyaparli Aboriginal Corporation RNTBC v State of Western Australia [2021] FCA 9

Registered on the Native Title Register 26/09/2018.

Between: Karlka Nyiyaparli Aboriginal Corporation RNTBC (Applicant) and State of Western Australia (Respondents)

Judge: Colvin J

Determination

This determination varies Justice Barker's orders in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453 to account for the High Court's finding in Tjungarray v Western Australia [2019] HCA 12 that exploration or prospecting licences or permits covering an area do not prevent the disregarding of the extinguishment of native title under s 47B(2) of the Native Title Act 1993 (Cth) (NTA).

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 Nyiyaparli People as described in Schedule 7.

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

Except in relation to flowing and underground water, this is the right to possession, occupation, use, and enjoyment of the area, described in Schedule 3, to the exclusion of all others.

The Nyiyaprli People have the right to use and enjoy the flowing and underground water including taking and using the traditional resources of the waters.

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

These rights and interests exist over those parts of the Determination Area that are not exclusive areas. This non-exclusive area is shaded yellow on the maps at 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 and temporary reserves; 
• pastoral leases; 
• leases;
• roads; 
• easements; 
• mining tenements and petroleum interests;
• exploration and prospecting licences; 
• 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 NTA 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 NTA and holds the native title in trust for the Nyiyiparli People.

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

Background

On 26 September 2018 the Court determined by consent that the Nyiyaparli People held native title over almost 50,000 sq km in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453 (Stock).

During that process, the parties had agreed that if the High Court overturned the decision in BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL#2) [2018] FCAFC 8 (BHP Billiton Nickel West Pty Lt), then the Karlka Nyiyaparli Aboriginal Corporation RNTBC may apply for a variation to Stock in relation to areas covered by s 47B(2) of the NTA.

Details of Judgment

Justice Colvin held that the requirements of s 87 or s 87A of the NTA must be met in an application for a variation [12].

However, in Stock, the Court had determined native title with regard to s 87, and with the implication that but for BHP Billiton Nickel West Pty Ltd, since overturned, it would have been appropriate to make the determination in the terms sought here [13].

Therefore, Colvin J did not consider it necessary to be provided with the material ordinarily required under s 87 to support this determination being made by consent [14].

The parties had filed joint submissions to confirm their view that the orders as proposed were appropriate, and the notice period in relation to the application had expired so ultimately Colvin J was satisfied to recognise the Nyiyaparli People's antie title as proposed [16] -[18].

Native title exists in parts of the determination area

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