Introduction
In the week commencing 1 March 2021 the Court held a series of case management hearings for native title proceedings in the East Kimberley. One of the purposes of these hearings was to enable the Court to listen directly to the concerns of claim group members and native title holders in several proceedings. These meetings were held over Microsoft Teams due to ongoing travel restrictions related to the COVID-19 pandemic.
Jaru Claim
In December 2018 the Court made a native title determination in the Jaru claim. After that the native title holders were given a year to nominate a PBC, which did not occur. In this matter, this date was revised, and the Court ordered all PBC documents to be filed by 30 April 2021.
Purnululu and Gajangana Jaru Claim
On 22 October 2020 the Court decided on a dispute between the Purnululu and Gajangana People over who the correct apical ancestors were with respect to the Purnululu National Park. It also settled a dispute as to which descendants of Fred Jalwarta held rights and interests in the area. In this matter, the Court noted that the following issues still needed to be resolved:
Do any Malgnin People have rights and interests in the claim area?
Should there be two separate determinations?
Should there be one PBC covering both areas, or one for each area? (Two in total)
How should the PBC(s) be structured?
What is the correct and complete list of apical ancestors for each area?
Ngarrawanji #1 and #2 Claims
On 21 May 2019 the Court made orders recognising native title in Ngarrawanji #1. Ngarrawanji #2 was decided on 8 July 2020. The Court gave the applicant 12 months to nominate a PBC, and this date was not met. There was no sign a PBC was likely to be nominated due to conflicts within the group, so the Indigenous Land and Sea Corporation (ILSC) was nominated. The Court outlined that it would give the applicant until 17 September 2021 to nominate their own PBC. If they could not do this the Court would appoint the ILSC at the registered PBC, while helping native title holders form their own. Alternatively, the Court could make the decision that native title is held communally. The latter option does not allow native title holders to assert their rights or benefit from their position as native title holders.
Koongie-Elvire and Ngarrawanji #3 Claims
The Koongie-Elvire claim is over 20 years old. The claim group is divided between Wawarl Jaru members, Kija/Lunga members and Nyinin Jaru members. This case had been stalled due to groups not being able to come to an agreement over who should hold native title over particular areas. The Ngarrawanji #3 claim was a new claim overlapping the same area. This claim group consisted of mostly Lunga/Kija people. The Court decided that because of the proximity of the claims, and the overlap in personnel, they should be managed together.
Conclusion
Across all four sets of proceedings, the main issue was dispute between members of the claim groups. The Court considered there to be no real obstacles from the State and put the onus firmly on the native title groups to negotiate and compromise. The Court made it clear that it would step in if the relevant matters were not decided within a reasonable timeframe.