In this matter, Barker J made orders by consent recognising the native title rights and interests of the Mayala people in relation to an area of approximately 3,800 square kilometres of land and waters in the west Kimberley region of Western Australia. The area covered includes islands, reefs and waters north of Derby, between the Dampier Peninsula and Yampi mainland, extending northwards beyond the 16th parallel and including parts of the Buccaneer Archipelago and King Sound. It is situated between, and delineated by, the external boundaries of the Bardi and Jawi Determination as determined in Sampi and Others (on behalf of the Bardi and Jawi People) v Western Australia and Others (No 2) [2010] FCAFC 99 to the west (on the Dampier Peninsula) and the Dambimangari Determination, as determined in Barunga v State of Western Australia [2011] FCA 518 to the east (on the Yampi Peninsula).
The application was lodged with the National Native Title Tribunal in July 1998 and was amended by orders of the Federal Court in 1999, 2004, 2005 and in May 2018. The May 2018 orders provided that the then applicant be replaced by the current applicant and that the title of the application be changed to its present name. The respondent parties are the State of Western Australia; the Commonwealth of Australia; Maxima Pearling Co Pty Ltd; Clipper Pearls Pty Limited; and Shire of Derby/West Kimberley.
The parties have reached an agreement as to the terms of the determination, which covers most but not all, of the land and waters covered by the application. The application in respect of land and waters excluded from the determination is to be dismissed and no determination made in relation to the land and waters comprised in that area. The 'excluded area' comprises areas of unallocated Crown land which were covered by exploration licence E04/743 as at the date the Mayala application was made. On the basis of the decision of the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (dec’d) (Tjiwarl and Tjiwarl #2) and Others [2018] FCAFC 8, s 47B(2) of the Native Title Act 1993 (Cth) (NTA) cannot apply to those areas. Accordingly, these areas have been removed from the determination area with the intention that a new native title determination application will be made over those areas following this Determination. It also includes areas where the parties agree that native title has been wholly extinguished but which the applicant wished to exclude from the determination area in the event that s 47A or s 47B of the NTA becomes applicable to those areas.
The native title rights and interests recognised in relation to the ‘exclusive area’ shown in green on the maps in Schedule Two is the right to possession, occupation, use and enjoyment as against the whole world. The rights and interests recognised in the ‘non-exclusive area’ shown in yellow on the maps in Schedule Two are the rights to access; take resources; and protect places, areas and things of traditional significance. Sections 47A and 47B of the NTA apply to disregard any prior extinguishment in relation to the areas described in Schedule Five.
Barker J accepted that the connection materials disclose that the members of the Mayala claim group belong to a unique archipelagian society with its own territory, languages, traditional laws and customs and a distinct maritime culture. The Mayala People’s laws and customs have their origins within a period of time long past which is generally referred to as milarnjun or lailai. It was at this time that the physical world, its creatures and human society were created or modified by the activities of spiritual beings that roamed the earth. It was also during this period that the system of rules, prescribed behaviour, ritual and song, which govern the members of the Mayala claim group today and connect them to their country, were ordained. Under these laws and customs, the determination area is, and has been since prior to sovereignty, the traditional country of the members of the Mayala claim group and their ancestors.
His Honour was satisfied that it is appropriate and within power to make the determination of native title in the terms proposed pursuant to s 87 and s 94A of the NTA. Within 12 months of the date of the orders, a representative of the common law holders of the native title rights and interests shall nominate a prescribed body corporate and indicate whether they intend to have the native title rights and interests held in trust or by an agent.