In this matter, Griffith J made a determination recognising the non-exclusive native title rights and interests of the Mirarr people to land in the Jabiru Township and its immediate surrounds. The parties to the present case are the Applicant, and five respondents.
In August 2016, Mansfield J published reasons for judgment in relation to whether any executive or legislative acts since European settlement had extinguished native title in the claim area, and the extent of any such extinguishment. His Honour’s reasons for judgment are reported as Margarula v Northern Territory of Australia [2016] FCA 1018 (Margarula No 1).
The parties agree that, prima facie, the Mirarr people hold native title rights and interests in respect of the Jabiru land within the meaning of s 223 of the Native Title Act 1993 (Cth) (NTA). The contested issue, was whether those native title rights and interests have been wholly or partially extinguished as a result of the various acts of the Crown since British settlement. The parties agreed that the exclusive native title rights have been extinguished as a result of grants of pastoral leases by the Crown in the nineteenth century.
The Court made declaratory orders in August 2016 which gave effect to Mansfield J’s reasons for judgment relating to the extinguishment questions. It was left to the parties to seek to agree on the terms of a native title determination. There was some delay because an issue arose as to whether any such determination was a consent determination under s 87 NTA, or whether it simply gave effect to Mansfield J’s reasons. The parties now agree that the latter approach is correct. It is the same approach as was taken by the parties in Rrumburriya Borroloola Claim Group v Northern Territory of Australia (No 2) [2016] FCA 908.
The Court did not make formal orders on 30 June 2016, when Mansfield J’s reasons for judgment were published. His Honour acceded to the parties’ suggestion that they should prepare a Minute of Proposed Orders and Determination of native title, consistent with s 94A of the NTA. This then occurred and formal orders giving effect to the earlier reasons for judgment were made by the Court on 11 August 2016.
The parties agreed that the Mirarr people’s non-exclusive native title comprised numerous rights and interests, such as travel and access, to hunt and fish, gather and use the natural resources, to live and camp on the land. Griffith J was satisfied that the proposed orders gave effective to Mansfield J’s reasons for judgment in Margarula No 1, and thus recognised the Mirarr people as the holders of native title over the Jabiru land.