Background Information
This consent determination consists of two applications which were combined on 10 November 1999, and concerns 18,432 square kilometres of land and waters in the Pilbara region, near Onslow, Western Australia. The area covers 13 pastoral leases, including Urala in the north and Glen Florrie in south, Ashburton River, Cane River Conservation Park, the town of Onslow, the abandoned “Old Onslow” townsite, unallocated crown land, and sea and a group of islands extending northwest to Airlie Island. The ‘predominant physical features of the area… are alluvial, Spinifex-covered plains and contrasting sandstone ranges and granite outcrops’ (Justice North).
The parties agreed to dismiss the application with regards to:
three areas which overlap with other native title applications;
the sea component of the claim; and
the north eastern coastal component east of Onslow townsite and Onslow Road (this is most likely Nhuwala country).
Justice North recognised the adaptation of Thalanyji land holding systems from a patrilineal system to more ‘generalised rights to Thalanyji country’, and emphasised that a flexible approach was needed in establishing preservation of connection to land.
Five Indigenous Land Use Agreements (ILUAs) dealing with ‘practical co-existence issues between native title holders and pastoralists’ were due to be registered immediately after the consent determination (NNTT Media Release). Parties involved in the negotiations have included:
the Puutu Kunti Kurrama People;
the Pinikura People;
the Thudgari People;
the State and Commonwealth governments;
the Shire of Ashburton;
pastoralists from Mt Stuart, Red Hill, Wyloo, Yanrey, Nyang (Emu Creek), Minderoo, Glenforrie and Koondarrie stations;
Onslow Salt;
CEMEX Australia;
The Western Australian Fishing Industry Council;
MG Kailis Gulf Fisheries;
Exmouth Pearls;
Apache Northwest;
Apache Oil Australia;
BHP Billiton Petroleum;
Carnarvon Petroleum;
Chevron Australia;
Santos (BOL);
Santos Offshore;
Strike Oil; and
Telstra.
The applicants were not represented by the Pilbara Native Title Service, which is the NTRB for the region. They were represented by law firm Corser & Corser.
Native Title Rights and Interests
Native title exists in relation to the land and waters in Schedule 1, conferring the native title holders non-exclusive rights to:
enter, travel through and remain on the land;
camp and erect temporary shelters;
hunt, fish, gather and use ‘traditional resources’ of the land;
take and use water (excluding water captured by the holders of the pastoral leases);
take ochre (but no other minerals and petroleum);
perform rituals and ceremonies; and
maintain and protect sacred sites and objects (NNTT Extract from the National Native Title Register, paragraph 5)
Native title is extinguished in the land and waters identified in Schedule 2.
These rights are exercisable subject to the laws of the state and in accordance with the traditional laws of the claimants, for ‘personal, domestic and non-commercial communal purposes’ (NNTT Extract, paragraph 6).
They are subject to other rights and interests, including the rights and interests held over various reserves, pastoral leases, mining tenements, petroleum interests and the rights of Telstra Corporation Ltd (set out in Schedule 3).
The land is to be held in trust by Buurabalayji Thalanyji Aboriginal Corporation.
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