Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (N0 3) [2018] FCA 1108

Pilbara Region

Registered on the National Native Title Register

*Holborow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (N0 3) [2018] FCA 1108

Between: Valerie Holborow and Others (Yaburara Mardudhunera) (Applicant) and State of Western Australia, Hamersley Iron Pty Ltd, Robe River Mining Co Pty Ltd and Others named in the Schedule (Respondents)

Judge: Barker J

Determination

The Court made orders under s 87A and s 94A of the Native Title Act 1993 (Cth) (the NTA) for a determination that native title exists in the terms jointly proposed by the parties, as follows.

Native title exists in part of the determination area

It consists of non-exclusive native title rights and interests 

Native title holders

The Mardudhunera People.

Non-exclusive native title rights and interests exist over part of the determination area (shown green on the maps of Schedule 2). They include the rights to:

• hunt, fish, gather and use the traditional resources;
• take and use water;
• engage in cultural activities; and
• protect places of cultural or spiritual importance.

These rights and interests are exercisable in accordance with the traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Other (non-native title) rights and interests in the determination area include:

• multiple reserves for watering places, a stock route, public purposes, part purposes, and recreation preservation of coastal environment;
• the Yalleen, Yarraloola, Mardie, and Karratha Station pastoral leases;
• leaseholds for the construction and operation of a processing plant, an accommodation area for workers, and a telecommunications area;
• roads;
• Port of Cape Preston;
• the Dampier to Bunbury Natural Gas Pipeline under the Dampier to Bunbury Pipeline Act 1997 (WA);
• numerous mining tenements granted under the Mining Act 1904 (WA) and/or the Mining Act 1978 (WA);
• numerous petroleum interests;
• Telstra Corp Ltd; and
• the KM/YM Indigenous Land Use Agreement (ILUA) (Robe River Kuruma Mardudhunera People and Yaburara Mardudhunera) and the Cape Preston ILUA (Y/M Mardie ILUA)).

See Schedule 4 of the determination (via the URL link above) for further information about the non-native title rights and interests.

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

Native Title does not exist in the area seaward of the mean low water mark of the mainland coast, or those areas (shaded pink on the maps at Schedule 2) which are subject to the following interests:

• two freehold titles;
• several reserves for gas pipeline purposes, conservation of flora and fauna, airstrip, government requirements etc.;
• a leasehold for transient workforce accommodation; multiple dedicated roads;
• the Dampier to Bunbury Natural Gas Pipeline;
• taking order for a road and construction facility;
• Telstra;
• any other public works as defined in s 251D of the NTA and s 23C(2) of the Titles Validation Act

Prescribed body corporate

The native title is not held in trust.

The Wirrawandi Aboriginal Corporation performs the functions required under the Native Title Act 1993 (Cth) on behalf of the Mardudhunera People.

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

Background

The Yaburara & Mardudhunera People (Y/M) application was made over approx. 9,530 sq km of land and waters in the Pilbara and lodged with the National Native Tribunal (NNTT) on 1 August 1996. The sea area claimed includes a cluster of islands comprising the Great Sandy Island Nature Reserve.

The application, as it was originally lodged, overlapped the litigated Ngarluma Yindjibarndi Application, but was not successful in that respect.

Details of Judgment

The parties were unable to reach agreement to include two of the ancestors referred to in the YM application as Mardudnhunera ancestors.

Nonetheless, the Mardudhunera People recognise that the descendants of those ancestors, but who are not native title holders according to Schedule 5 to the determination, may conduct activities in relation to the native title right by invitation of a native title holder, and under the KM/YM Indigenous Land Use Agreement (ILUA) [Court Note F].

Native title exists in parts of the determination area

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