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Mediated NT outcomes may follow Pilbara ruling

FINAL orders from last week’s West Pilbara Native Title decision are months away, but the implications appear clear for Government and industry.

Blake Dawson Waldron partner Geoff Gishubl said it was always difficult to predict the outcome of a case.

"While it will take a while to shake out all the detail, generally there are no surprises here," he said.

The real benefit of the ruling for Native Title practitioners seems to be the additional clarification and detailed reasoning it offers.

Mr Gishubl said he believed the Pilbara ruling would encourage more mediated outcomes, particularly in the north of the State.

While the ruling established no new law on extinguishment, the detail in setting out which rights were and were not extinguished by a mining lease was something that had not been available from previous rulings, Minter Ellison partner Graham Castledine said.

The decision was the first application by a court of principles set out by the earlier Ward/Miriuwung-Gajerrong and Yorta Yorta decisions.

It gave a good indication of how the stringent test for proving continual connection to the land as laid down in the Yorta Yorta case could be satisfied, Mr Castledine said.

"After Yorta Yorta, it was difficult to predict whether any claimant groups could proceed," Mr Castledine said.

Of particular significance was the statement by Federal Court judge Robert Nicholson on the impact of European settlement.

The impact of settlement had “brought them towards the cusp of the moment when their connection to each of their lands through their traditional law and custom could be washed away by the tide of history,” he said.

Taylor Linfoot & Holmes partner Marcus Holmes said Justice Nicholson’s decision was noteworthy in showing again how strong Native Title can be, despite the impact of European settlement.

Mr Holmes pointed out that a number of cases, including Mabo and Ward, had looked at similar history – smallpox epidemics, movement to towns, removal of children – and determined Native Title had still existed.

Mr Holmes noted the results of European settlement had in some ways assisted Aboriginal people in the protection and enhancement of their rights.

This was by way of creating reserves and rations depots, improved health care, the establishment of Aboriginal political groups in the North West during the 1970s, and the development of education centres to pass down a particular culture to children.

These developments appear to have come at a critical time for Aboriginals, in respect to now being able to establish continued connection and cultural practice, and could have implications for South West claimant groups.

The Pilbara decision also confirmed enclosing property with fences and gates did not deny Native Title interests.

This was an important clarification for pastoralists, highlighting that rights are not extinguished when physical impediments make it difficult for Aboriginal people to access land.

Of particular consequence to the State Government was the ruling that Native Title did not exist on the Burrup Peninsula, home to the North West Shelf gas project and potential fertilisers and methanol projects.

But the State Government has taken some flak on signing a heritage protection and compensation package with the claimant groups, before Native Title had been clarified in court.

The package covered the Maitland industrial estate and the Burrup, and land around Karratha, and the court judgment established Native Title for two of these areas.

Mr Holmes said such agreements were good for all parties – they were less destructive for relationships, gave greater certainty with respect to land usage, and offered protection for special areas of land.

They also afforded a quicker outcome, Hunt & Humphrey partner Michael Hunt said.

Mr Holmes said many looked forward to the WA Government applying a similar approach to other areas of the State.

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