An Aboriginal family's ongoing fight in the Federal court to have its Indigenous identity recognised has exposed a loophole in Native Title recognition and its connection with Prescribed Body Corporates.

Pilbara businessman Steven Dhu, 53, and his family identify as Nyiyaparli people; Traditional Owners of 37,000sqkm of land and sea in the east Pilbara region of Western Australia.

The vast Country encompasses significant mining operations and pastoral leases, and Aboriginal communities Jigalong and Parpajinya, who have several places of particular significance in the Determination Area, including Nyiyaparli ceremonial sites, Songlines, permanent pools and natural resources.

Mr Dhu has been involved in Federal court proceedings since 2019 to seek remedy to his family's identification as Nyiyaparli people, with "seven long years of approaching mediation" with the Office of the Registrar of Indigenous Corporations (ORIC) as well as the National Native Title Tribunal.

In the family's first court case during July 2021, the Dhus were able to prove their identity as Nyiyaparli through the three key indicators recognised by the NNTT and ORIC, including connection to an apical ancestor and Country.

The Dhus are also well entrenched and accepted within the Nyiyaparli community.

Identity denied through systemic fault

Karlka Nyiyaparli Aboriginal Corporation RNTBC (KNAC) - the registered Native Title body corporate for the Nyiyaparli People (with approximately 400 current members) - had been able to refuse Mr Dhu's legal right to membership due to a flaw in the federal CATSI Act, which governs PBCs across Australia.

"If people challenge the PBC, they must prove standing to do so ... This is a twist," Mr Dhu said.

"Because to challenge, you must be a member of the PBC to do so ... the legislative framework is flawed."

According to the Native Title Act once a claim group has been given Native Title then a PBC holds native title in trust on behalf the people.

The board of the PBC will then make a decision if a person is a member for the register, with the three key indicators as their guide.

Mr Dhu said the loophole leaving him with no means to challenge the decision apart from through the courts leaves people and families like him with no other option but to undergo expensive legal battles.

"If the PBC plays gatekeeper and does not acknowledge the individual, it leaves them no place to go," he said.

"And if the PBC is controlled by non-Aboriginal people who refuse to resolve the matter, there is also no place to go.

"Native Title was never intended to be used as a tool to erase any Aboriginal peoples' identity."

Mr Dhu said the situation was "taking a huge toll on me and my family".

"My concern is my and family's identity - and future identities of their kids - will be washed away from the Pilbara now and forever," he said.

Prescribed Body Corporate refuses to comment

Karlka Nyiyaparli Aboriginal Corporation did not respond to requests from the National Indigenous Times for comment on Mr Dhu's case, or to comment on their refusal to recognise he and his family's rightful heritage despite the determination in the Federal court.

"Despite the court action, the PBC continues to ignore us," Mr Dhu said.

"No one will help to break the patterns of behaviour of the PBC, of simply saying 'no', and they won't engage.

Mr Dhu expressed how distressing the battle had been on the family.

"My father has passed away during this time, causing hurt and anger ... because he also went to his grave not being respected in his own Country," he said.

"Karlka and the state does dealings with miners like FMG to gain access to our Traditional country and we, as the caretakers of this land, will suffer by getting sick or worse.

"There are other people like me and family."

Mr Dhu said he hopes the judge in the family's second case for heritage recognition exercises their power to help them.

"If not, we are effectively disempowering myself and creating my family as another Stolen Generation case lost in translation of white legislation framework, aided and abetted by non-Aboriginal advisors," he said.

"By the PBC not recognising my identity, they are assimilating me and not letting me or my family be Aboriginal, and true to our culture."