In this matter, Robertson J made orders by consent recognising the native title rights and interests of the Mirning people in relation to an area in south eastern Western Australia. The respondent parties included the Western Australian and Commonwealth governments, City of Kalgoorlie-Boulder, Brie McClure Campbell and Colin John Campbell, Roderick Steel Campbell, CC Cooper & Co Pty Ltd, Clare Elizabeth Lewis and Matthew Rodney Lewis, and Telstra Corporation Limited. The application was filed in February 2001.
The traditional country of the Mirning native title claimants comprises a strip of coastal country, which includes high cliffs of the western portions of the Great Australian Bight, as well as extensive coastal dunes. To the north the area includes portions of the limestone plateau and parts of the Nullarbor Plain. The eastern boundary of the Mirning application area is the South Australian border.
The non-exclusive native title rights and interests include rights to access and use the land and waters and resources of the area, to practice traditional religious customs and maintain and protect from harm particular sites and areas of significance. The rights and interests in relation to the exclusive rights area confer the right to possession, occupation, use and enjoyment to the exclusion of all others.
His Honour observed at [6] that: ‘whilst all of the Mirning native title claimants currently live outside of the determination area, they continue to access the area as often as they are able, to take and use resources and to teach their children about the determination area. There is a shared acknowledgement that under traditional law and custom the permission of the Mirning native title claimants is needed to enter the determination area in order to avoid danger to persons and to country.’
Robertson J stated at [44]: ‘I am satisfied that the parties have freely and on an informed basis come to an agreement. In this respect I note that the Applicant and the State have each been legally represented throughout the case management process and it is apparent that the State has taken “a real interest in the proceeding in the interests of the community generally”: Munn for and on behalf of the Gunggari People [2001] FCA 1229 at [29]. I accept that in so doing, the State (acting in the interests of the community generally, including the claimants), having regard to the requirements of the Native Title Act, and having made its assessment of the sufficiency of the evidence, has satisfied itself that the determination is justified in all the circumstances.’
His Honour concluded stating at [44]: ‘I refer in this respect to Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [20], where Jagot J spoke of “ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups” as being an important part of the public interest the State is intended to protect and promote.’ The Court made orders by consent which recognised that the Mirning native title claimants have, and always have had, native title rights and interests in land within the area the subject of the application.