Silencing the Wunna Nyiyaparli
For much of Australia’s history, Aboriginal people were not legally counted as people at all. Until the 1967 referendum, they were excluded from the national census, and in some states their affairs were handled by departments of “Fisheries and Fauna” — treated as part of the landscape rather than as human beings with rights.
In 2008, Parliament apologised to the Stolen Generations. Then–Prime Minister Kevin Rudd promised that the silencing, removal, and dispossession of Aboriginal people would never be repeated.
Yet less than a decade later, in a Federal Court in Perth, the Wunna Nyiyaparli were silenced once again. Their evidence was excluded, their witnesses unheard, and their claim struck out on a technicality. Meanwhile, the rival Nyiyaparli Applicant, aligned with mining interests, secured native title by consent with the Government of Western Australia.
What looked like recognition in public was, in truth, the old pattern repeating — a handshake on country, but exclusion in court.
The First Claim (1998)
The story begins in 1998, when the Nyiyaparli People — a large, extended community spread across the Pilbara — lodged a native title claim over their country. It was one of the biggest claims in the region, stretching across iron-rich lands that mining companies already had their eyes on.
Under the Native Title Act 1993 (Cth), such claims could not simply be filed and forgotten. They first had to pass a strict screening process by the Native Title Registrar. The law is blunt:
“If the Registrar is satisfied that the claim meets the requirements of this section, the claim must be accepted for registration.” — s 190A(6)
The Nyiyaparli cleared that hurdle. Their claim was entered onto the Register of Native Title Claims. And with that entry came powerful rights — to be consulted, to negotiate, to sit at the same table as mining giants.
They used those rights well. In the years that followed, the Nyiyaparli group negotiated Indigenous Land Use Agreements over Roy Hill, aligning themselves closely with industry. Step by step, their position solidified: backed by law, recognised by government, and connected to commercial interests.
The Second Claim (2012)
Fourteen years later, in 2012, another voice emerged. The Wunna Nyiyaparli People — a smaller landholding clan within the broader Nyiyaparli — filed their own native title claim.
Their focus was different. For them, this was not about royalties or commercial leverage. It was about cultural survival: sacred burial grounds, waterholes, and the spiritual identity tied to Roy Hill country.
Like the 1998 claim, the Wunna Nyiyaparli application passed the Registrar’s strict screening test and was entered on the Register of Native Title Claims.
For a time, two claims sat side by side:
1998 Nyiyaparli People — institutionally supported, aligned with mining.
2012 Wunna Nyiyaparli People — custodians, seeking recognition of culture and identity.
The Native Title Act anticipated this possibility. Section 67(1) provides:
“If 2 or more claimant applications cover the same area, the Federal Court must make an order that they be dealt with in the same proceeding.”
The wording sounds reassuring, but it is deceptively vague. To a lay reader, “dealt with in the same proceeding” suggests the claims will be heard together, tested together, and decided together — a genuine contest of evidence.
In practice, it did not play out that way.
The Separate Question Trap (2015–2016)
The decisive turn did not come from Justice White, who would later deliver the verdict, but from Justice Barker in October 2015. At what should have been a routine directions hearing, Barker — with counsel’s recorded agreement — chose a shortcut. He ordered that a “separate question” be decided first:
“Was the paternal grandmother of William (Bill) Coffin, being a woman described by the Wunna Nyiyaparli Applicant as Maggie, a Nyiyaparli person… in accordance with traditional laws and customs of the Nyiyaparli People?”
With that single order, the entire Wunna Nyiyaparli claim was reduced to the identity of one ancestor. A narrow genealogical test, framed as a procedural device, became the pivot on which their cultural survival turned.
The Wunna Nyiyaparli did not sit idle. They prepared for the contest, filing an anthropologist’s report by Mr de Gand (December 2015) and witness statements from Ernest William Coffin, Ailsa Roy, and Charlotte Perry (Dec 2015 – Mar 2016). Their intention was clear: they were ready to fight the question on its merits.
But in March 2016, their legal representation collapsed. Their solicitors, Newton Vincent, withdrew from the case. On 14 March, Marjorie Drage, one of the named applicants, filed a notice of address for service herself. The cruel irony was that these same lawyers had earlier agreed to the “separate question” procedure — a decision that proved fatal for their clients.
The record of the Court shows that all parties — including the Wunna Nyiyaparli — had “consented” to this shortcut. Yet reality told a different story. On 12 April 2016, Ernest William Coffin personally told the Deputy Registrar that the Wunna Nyiyaparli “wanted no part in the separate question.”
This tension raises troubling questions:
Did they truly understand what their lawyers had agreed to?
Were they properly consulted?
Or was there a fundamental miscommunication in a complex process?
On paper, there was consent. In reality, the clients later rejected the process.
This is what we mean by partial truths: the official record shows one thing, but the lived experience of the Wunna Nyiyaparli tells another.The Pre-Trial Orders (May 2016)
The Pre-Trial Orders (May 2016)
By April 2016, the Wunna Nyiyaparli were already on shaky ground. They had lost their lawyers, filed notices of address themselves, and openly told the Court that they wanted “no part in the separate question.”
The Court, however, pressed on. On 3 May 2016, Justice White convened a pre-trial directions hearing to finalise arrangements for the upcoming trial. Letters were sent. The Deputy Registrar reminded the Wunna Nyiyaparli of Justice Barker’s earlier order and urged them to confirm how they intended to participate. Transport, accommodation, even transcription services were being arranged for a hearing in Newman.
But the Wunna Nyiyaparli did not attend. By mid-May, the Court concluded that they would not participate at all. On 18 May 2016, Justice White made orders to that effect. From that point forward, the case ceased to be a contest between equals. The only parties left standing in the trial of the separate question were the Nyiyaparli Applicant (1998 group) and the State of Western Australia.
The rules of evidence shifted decisively. The Nyiyaparli’s case would proceed entirely on affidavits, with no cross-examination of witnesses. The Wunna Nyiyaparli’s evidence, though already filed, was sidelined. What should have been a hearing “in the same proceeding,” as the Native Title Act promised, became a one-sided affair.
The promise of equality dissolved into silence. What was meant to be a fair test of competing claims narrowed into a trial where one side spoke and the other was absent — not by choice, but by the weight of procedure.
Echoes of History: The One-Sided Verdict
In 2008, the Australian Parliament stood in solemn unity. Then–Prime Minister Kevin Rudd delivered the National Apology to the Stolen Generations, acknowledging the pain of silencing, removal, and dispossession. It was meant to mark a turning point — a promise that such injustices would never be repeated.
Yet less than a decade later, in a Federal Court in Perth, an Aboriginal group was silenced once more.
On 16 December 2016, Justice White handed down judgment:
“The separate question be answered in the negative.
The Claimant Application filed on 25 January 2012 be dismissed.”
With those words, the Wunna Nyiyaparli claim (WAD 22/2012) was struck out.
This was not the outcome of a contested trial. It came from a hollowed-out process. The Wunna Nyiyaparli’s evidence — filed months earlier — was excluded. They were prevented from calling witnesses. Meanwhile, the Nyiyaparli Applicant’s affidavits were admitted in full, without a single cross-examination. A matter that should have been a full hearing of country and culture was reduced to a narrow genealogical test, the identity of one ancestor, decided in the absence of the very people whose identity was at stake.
The echoes of history were unmistakable. In earlier eras of slavery and dispossession, decisions about Indigenous identity were made without Indigenous voices. Courts and institutions spoke about Aboriginal people, not with them. In 2016, despite Parliament’s apology, the same pattern repeated. The Wunna Nyiyaparli came ready to speak, yet were silenced by procedure. What happened in 2016 was not orderliness over fairness. It was the old pattern of silencing dressed in modern robes: a people judged without their voice, their evidence erased from the record, their country handed to others. Justice was abandoned as usual for vulnerable.
With the Wunna Nyiyaparli erased from the courtroom, the path cleared for their rivals. In 2018, the Nyiyaparli Applicant (1998 group) and the State of Western Australia presented a consent determination to the Federal Court. The Court recognised the Nyiyaparli People as native title holders over Roy Hill and surrounding country. Exclusive rights were granted in some areas; non-exclusive rights — access, cultural practice, and water rights — were recognised in others.
In effect, the Government of Western Australia consented to hand recognition to one group, while the other — the Wunna Nyiyaparli — were written out of history by the process itself.