Mortimer J
Mortimer J made orders by consent recognising the native title rights and interests of the Ngarrawanji peoples over 4,065 square kilometres in the central eastern and southern-eastern Kimberly region of Western Australia. The determination area also included the Moola Bulla pastoral station.
Applicant replacement
Following an authorisation meeting in November 2018, the applicant filed an interlocutory application on 15 April 2019 seeking to replace the current applicant under s 66B of the Native Title Act 1993 (Cth) (NTA). The meeting authorised a new composition of the applicant: Josephine Farrer, Matt Dawson, Phyliis Wallaby, Marty Stevens, Mark Bin Bakar and Gregory Tait. Ms Farrer was one of the originally named applicants and was proposed to remain on as a member of the new applicant group. However, Ms Smith was removed as one of the members as per the resolution passed at the authorisation meeting.
Her Honour noted that the claim group’s representative, KLC, identified for the Court a possible defect in the notification process. The notices given for the November 2018 meeting which were distributed to claim group members, made no specific reference to the proposal to replace the applicant with a new applicant, comprised mostly of different claim group members. Despite the issues with the notices, Mortimer J was satisfied that the claim group composition could be amended as per s 66B NTA (at [13]). Her Honour held that the same result was likely to be achieved if a second meeting were held, and that there was no evidence that claim group members did not attend the meeting, but would have attended if the notices had expressly said a new applicant would be appointed (at [15]).
Claim
The parties agreed that the Ngarrawanji claim was to be determined in two parts. The court accepted that this was appropriate given the potential application of s 47B NTA to two areas of unallocated Crown land located close to Halls Creek. Both of these areas were subject to petroleum and exploration tenements. However, Her Honour noted that these areas could be determined relatively quickly due to the recent High Court decision in Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 (at [18]). Furthermore, Mortimer J noted at para [19] that at the November 2018 meeting the newly constituted applicant was authorised to conduct this second part of the Ngarrawanji claim.
Rights and interests
The Court recognised in relation to the area in Schedule 3 exclusive native title rights and interests of possession, occupation, use and enjoyment to the exclusion of all others.
The Court recognised the following non-exclusive rights and interests in relation to the area in Schedule 4: the right to have access to, remain in and use the area including to access and move freely, to live, camp and erect temporary shelters and other structures, to light controlled contained fires but not for the clearance of vegetation, to engage in cultural activities including the transmission of cultural heritage knowledge, and to hold meetings. Further, the right to access and take for any purpose the resources on the land including to access and take water, other than water which is lawfully captured or controlled by the holders of pastoral leases. The right to protect places, areas and sites of traditional significance, including to conduct and participate in ceremonies, conduct burials and burial rites and other ceremonies in relation to death, and to visit, maintain and protect from physical harm, areas, places and sites of importance. The native title holders may invite pursuant to traditional law and custom, spouses or partners of the native title holders; and persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country.
A registered native title body corporate is yet to be nominated.
Conclusion
In her conclusion, her Honour noted that there have been, and will shortly be, several other native title determinations in the East Kimberley area which border the Ngarrawanji claim. Mortimer J at [16] stated that this brought a resolution to the very delayed recognition by Australian law, that large tracts of the East Kimberley are the traditional country of a number of Aboriginal peoples.