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Daniel v State of Western Australia [2005] FCA 536 (2 May 2005)

Category: Case Law
Date: 2 May 2005
Sub Category:Litigated Determination
Location:Western Pilbara, Western Australia, Australia
Western Pilbara, Western Australia
Legal Status: Registered on the National Native Title Register
Legal Reference: Federal Court file no.: WAD6017/1996; Tribunal fil
Alternative Names:
  • Ngaluma/Injibandi native title determination
  • Ngarluma Yindjibarndi native title determination
  • Subject Matter:Land Use | Native Title | Native Title - Extinguishment | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    Summary Information:
    Daniel v State of Western Australia [2005] FCA 536

    In Daniel v State of Western Australia, the Federal Court of Australia made the Pilbara region's first determination of native title. The Court determined that non-exclusive native title rights and interests which exist in relation to the Determination Area are held by the Ngarluma People (as defined in the Third Schedule) in relation to the Ngarluma Native Title Area, and the Yindjibarndi People (as defined in the Third Schedule) in relation to the Yindjibarndi Native Title Area.

    Native title was held to exist in parts of the Determination Area. The Determination Area consists of the lands and waters depicted in the First Schedule to the determination.

    Native title does not exist in relation to the following parts of the Determination Area:
    (a) the 'Burrrup' (as described in the First Schedule);
    (b) 'Offshore waters' (as described and depicted in the First Schedule);
    (c) 'Depuch Island' (as described and depicted in the First Schedule);
    (d) the 'Hamersley Ranges Area' (as described and depicted in the First Schedule);
    (e) the 'Total Extinguishment Area' (as described and depicted in the First Schedule).

    Subject to the above, native title is held to exist in the 'Ngarluma Native Title Area' (as defined in the First Schedule) and the 'Yindjibarndi Native Title Area' (as defined in the First Schedule), including the 'section 47A Area' and the section 47B Area' (as described in the Fifth Schedule) in respect of which extinguishment is disregarded in accordance with ss 47A and 47B of the Native Title Act 1993 (Cth). (These sections make provision for prior extinguishment to be disregarded where the application for determination of native title relates to areas once reserved for the benefit of Aboriginal or Torres Strait Islander People or to vacant Crown land.)

    The native title rights and interests do not confer possession, occupation, use and enjoyment of land or waters to the exclusion of all others and are exercisable only in accordance with and subject to traditional laws and customs for personal, domestic, and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

    The Ngarluma People hold non-exclusive native title rights and interests in relation to the Ngarluma Native Title Area. These comprise:
    (a) A right to access (including to enter, travel over and remain);
    (b) A right to engage in ritual and ceremony (including to carry out and participate in ritual practices);
    (c) A right to camp and build shelters (including boughsheds, mias and humpies), limited to the proximity of river courses within the Ngarluma Native Title Area , and to live there temporarily as part of camping or for the purpose of building a shelter;
    (d) A right to fish from the waters, limited to the coastal areas landward of the low water mark, and inland water courses;
    (e) A right to collect and forage for bush medicine;
    (f) A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, emu, bush turkey, echidna, porcupine, witchetty grub, swan), limited in the case of water fauna to coastal waters landward of the low water mark and inland water courses;
    (g) A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);
    (h) A right to take black, yellow, white and red ochre;
    (i) A right to take water for drinking and domestic use;
    (j) A right to cook on the land including light a fire for this purpose, limited to the proximity of river courses;
    (k) A right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

    Similarly, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to the Yindjibarndi Native Title Area:
    (a) A right to access (including to enter, to travel over and remain);
    (b) A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
    (c) A right to camp and to build shelters (including boughsheds, mias and humpies), limited to the Millstream-Fortescue Area, and to live temporarily thereon as part of camping or for the purpose of building a shelter;
    (d) A right to fish from the waters, limited to the Millstream-Fortescue Area;
    (e) A right to collect and forage for bush medicine, limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
    (f) A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle), limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
    (g) A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey), limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
    (h) A right to take black, yellow, white and red ochre, limited to the Millstream-Fortescue Area;
    (i) A right to take water for drinking and domestic use;
    (j) A right to cook on the land including light a fire for this purpose, limited to the Millstream-Fortescue Area;
    (k) A right to protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).

    The non-exclusive native title rights and interests in relation to the 'Inter-tidal Zone' (defined in the First Schedule' do not include the rights in subparagraphs (b), (c), (e), (g), (h), (i), (j), or (k) of the paragraph above.

    The native title rights and interests in relation to the 'Offshore Islands' (defined in the First Schedule) do not include any of the native title rights and interests in subparagraphs (a)-(j) of the paragraph above.

    The native title rights and interests in relation to the 'Cemetery Reserve Area' (defined in the First Schedule) do not include:
    (a) the right to engage in ritual and ceremony referred to in subparagraph (b) of the paragraph above, save to the extent it relates to ritual and ceremony for the dead; or
    (b) any of the rights in subparagraphs (c), (d), (h), (j) and (k) of the paragraph above.

    The non-exclusive native title rights and interests in relation to the 'Telstra Area' (defined in the First Schedule) do not include:
    (a) a right to remain (part of right (a) in the paragraphs above); and
    (b) right (c) in the paragraphs above.

    The non-exclusive native title rights and interests in relation to the 'Telstra Cable Routes' (defined in the First Schedule) do not include right (h) in the paragraphs above, to the extent that the right involves digging beneath the surface of that land.

    The determination also sets out several qualifications to the existence of the native title rights and interests set out above. There are no native title rights and interests in relation to:
    a) minerals (including ochres to the extent they are minerals) as defined in the Mining Act 1904 (WA), or in the Mining Act 1978 (WA) before the date of this determination; or
    (b) petroleum as defined in the Petroleum Act 1936 (WA), or in the Petroleum Act 1967 (WA) before the date of this determination.

    There are no native title rights and interests in respect of the 'Subterranean Waters' (as defined in the First Schedule) in the Determination Area.

    The native title rights and interests identified in the determination are exercisable in accordance with State and Federal laws and the common law.

    The determination also sets out the nature and extent of other non native title interests existing in the Determination Area (see the Second Schedule). These include the interests of the State and local government in the use, care, control and management of roads, the interests of holders of pastoral leases, the interests of those in whom reserves are vested, the interests of those with identified mining and petroleum tenements, the interests of easement holders, the interests of the DBNGP Land Access Minister in the land in the DBNGP Corridor, including State corridor rights, the interests of the holders of identified petroleum pipeline permits, the interests of the Crown and the public in identified dedicated roads, the public right to fish and navigate in tidal waters, and so forth (see the Second Schedule).

    The determination also identifies the relationship between the non-exclusive native title rights identified and the other non native title rights and interests set out above as follows:
    (a) to the extent that any other interest is a category D past act, a category D intermediate period act or a future act under the Native Title Act 1993 (Cth), or is an act to which sections 47A or 47B Native Title Act 1993 (Cth) applies, and is inconsistent with the continued existence, enjoyment or exercise of the native title rights or interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of those other interests;
    (b) in the case of mining leases, pastoral leases, easements and licences granted prior to 1 January 1994, the construction or erection of an improvement required or permitted under such a lease or easement or licence will prevent the exercise of the non-exclusive native title rights and interests at the location of that improvement to the extent that the exercise of those rights are inconsistent with the improvement for so long as the holder of the lease, easement or licence retains the improvement; and
    (c) otherwise, the existence and exercise of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the native title rights and interests and may prevent any exercise of the native title rights and interests, but does not extinguish them (see paragraph 17).

    The Yindjibarndi Aboriginal Corporation is to hold the native title rights and interests of the Yindjibarndi People in trust for the Yindjibarndi People. The Ngarluma People must decide within six months of the date of the determination whether they intend to have their native title held by a prescribed body corporate and have the prescribed body corporate perform the functions set out in s 57(3) of the Native Title Act 1993 (Cth). If not, the native title rights and interests of the Ngarluma People will be held by the Ngarluma People as common law holders, at which time subsequent orders will be made by the Court in accordance with s 57(2) of the Native Title Act 1993 (Cth). (If no prescribed body is nominated, the Court must determine which body corporate is to perform the relevant functions).
    Detailed Information:
    The Ngarluma and Yindjibarndi Peoples first lodged their claim for native title in 1994. Since that time however, they have had the right to negotiate over any development of the Burrup Peninsula.

    This determination, handed down by Justice Robert Nicholson, legally recognises the Ngarluma and Yindjibarndi Peoples' continuing connection to their land. The determination finalises a claim over almost 25,000 square kilometres of land situated 100 kilometres southwest of Port Hedland.

    The Federal Court held that the Ngarluma and Yindjibarndi Peoples hold non-exclusive native title rights over parts of the claim area. The rights identified encompass the right to access, the right to conduct rituals and ceremonies, and the right to hunt, fish, forage, collect bush tucker, bush medicine, ochre, flora, fauna and water. The native title holders also have the right to protect and care for sites and objects.

    The determination follows two years after the negotiation of an agreement between three indigenous groups (including the native title holders) and the State of Western Australia and the Western Australian Land Authority, which allowed for extensive industrial development in the claim area.

    Related Entries

    Agreement
  • Burrup and Maitland Industrial Estates Agreement Implementation Deed
  • RTIO Ngarluma Indigenous Land Use Agreement (ILUA)
  • Wickham Motorcross Indigenous Land Use Agreement (ILUA)
  • Ngarluma Aboriginal Sustainable Housing (NASH) Indigenous Land Use Agreement (ILUA)
  • Anketell Port, Infrastruture Corridor and Industrial Estates Land Use Agreement (ILUA)
  • Samson on behalf of the Ngarluma People v State of Western Australia [2015] FCA 1438
  • Balla Balla Port Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Federal Court of Australia
  • National Native Title Tribunal
  • State of Western Australia - Respondent
  • Yindjibarndi Aboriginal Corporation
  • Ngarluma Aboriginal Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • Mining Act 1904 (WA)
  • Mining Act 1978 (WA)
  • Petroleum Act 1936 (WA)
  • Petroleum and Geothermal Energy Resources Act 1967 (WA)
  • People
  • Yindjibarndi People - Native Title Claimant
  • Ngarluma People - Native Title Claimant

  • References

    Case Law
    Federal Court of Australia (2005) Daniel v State of Western Australia [2005] FCA 536
    Media Release
    National Native Title Tribunal (2005) First Native Title Determination in the Pilbara
    Resource
    National Native Title Tribunal (2005) Native Title Determination Summary: Ngarluma/Yindjibarndi

    Glossary

    Litigated Determination (Native Title Act 1993 (Cth)) (Australia)

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