Oxenham on behalf of the Malgana People v State of Western Australia [2018] FCA 1929.

Southern Gascoyne region 

Registered with the National Native Title Tribunal on the Native Title Register on 04/12/2018.

Between: 

John Thomas Oxenham, Sarah Louise Bellottie, Terrence Gordon McKie, Bianca Elise McNeair, Denise Charmaine Mitchell, Leslie Anthony O'Neill, and Albert Darby Winder (Applicants)

and

The State of Western Australia, Francine Brown, Richard McMillan Brown, Clausen Pty Ltd, Daleath Pty Ltd, Richard Edmund Fenny, Gabor Holdings Pty Ltd, Damien McKeough, Leane McKeough, Commonwealth of Australia, Shark Bay Resources Pty Ltd, Telstra Corporation Limited and Australian Wildlife Conservancy (Respondents)

Judge: Murphy J 

Determination

Native title exists in part of the determination area

It consists of exclusive and non-exclusive native title rights and interests. Native title was found to exist in all areas except those identified in Schedule Four.

Native title holders

Native title is held by the Malgana People, as defined in Schedule Seven.

Exclusive native title rights and interests exist over part of the determination area

This is the right to possession, occupation, use, and enjoyment of the exclusive area, to the exclusion of all others. The Malgana People hold such rights in relation to all parts of the area described in Schedule Three entitled Magpie, except in relation to flowing and underground water. The exclusive area is shaded green on the maps in Schedule Two. 

In relation to flowing and underground water in this area of exclusive native title, the Malgana People have non-exclusive rights to use and enjoy the resources, including: 

• hunting; 
• fishing;
• taking and using the traditional resources of the flowing and underground water; and 
• taking and using the flowing and underground water.

Non-exclusive native title rights and interests over part of the determination area

These non-exclusive native title rights exist over the area shaded yellow in the maps in Schedule Two and include rights to: 

• enter, remain on, camp on, and erect shelters on the determination area;
• travel on and visit any part of the determination area;
• hunt, fish, gather and use the traditional resources of the determination area;
• take and use water;
• engage in cultural activities, including: visiting culturally and/or spiritually important places, and undertaking lawful activities to protect those place, as well as undertaking ceremonies and rituals in the determination area; and 
• be accompanied by spouses/parents/children of the Native Title Holders (as defined in Schedule Seven) or anyone following traditional law and custom to undertake ceremony or cultural activities in the determination area. These people do not have to hold native title rights themselves. 

The Malgana People also have the right to undertake activities that are required in order to exercise the rights listed above. 

Non-native title rights and interests in the determination area include:

Other rights and interests held by non-native title holders include those in relation to: 

• reserves;
• pastoral leases;
• roads;
• the Dampier to Bunbury Natural Gas Pipeline;
• mining Tenements and Petroleum Interests;
• access to Mining Tenements and Petroleum Interests;
• rights and interests of Telstra Corporation Limited; 
• rights and interests granted by the Crown as permitted by legislation; 
• rights and interests arising from the operation of the laws of the State or Commonwealth;
• public rights held by all community members; 
• right of members of the public to access beaches, coastal waters and tracks existing at the date of the judgment as outlined in Schedule Three;
• the right of State, Commonwealth or local Government employees, agents or instrumentalities to access the determination area in order to fulfil their legal duties;
• existing public access to and enjoyment of certain places in the determination area as outlined in s212(2) of the Native Title Act and s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);
• any other legal or equitable estate or interest in the area;
• any other right, charge, power or privilege over or in connection with the area; and 
• restrictions on the use of the land and/or waters in the determination area.

See Schedule Five for further information about the non-native title rights and interests. 

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

Where there are inconsistencies between the two sets of rights/interests, the native title interests remain whole but having no effect on the other interests. The existence of native title rights do not prevent the operation of the non-native title interests or the activities required to fulfil them, however those other interests do not extinguish any native title rights

The Malgana Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Malgana People.

Full text of the determination is available via the URL link above.

Background

The Malgana People originally lodged an application in this proceeding on 30 March 1998 (the Malgana Shark Bay People's Application: WAD6236). In 1999, the application was amended to clarify both the area over which native title was claimed and the native title claim group [6]. 

In 2017, the application was amended further to reduce the claim area, including by removing the area seaward of the 12 mile nautical limit and moving the eastern boundary westward [7].

Another amendment, in 2018, changed the description of the native title claim group, and updated the information about the traditional laws and customs that were asserted. This amendment also changed the name of the Malgana People Applicant so that the existing 38 named members on behalf of the claimant, were replaced with seven, only one of whom had been an existing member prior to the amendment. Since the claim was first made in 1998, nine of the existing named members had died and many others had become elderly and infirm [9]. 

Details of Judgment

Under the power provided by s 87A, Justice Murphy approved the determination, the terms of which were agreed to by both the applicants and respondents. Although this determination does not recognise native title over the whole of the area claimed by the Malgana People, it does recognise the Malgana People's native title over approximately 28,800 km of Country in the Southern Gascoyne region [5]-[9].

Justice Murphy recognised the continuing sovereignty of the Malgana People by stating that 'under Malgana traditional laws and customs, the determination drea is, and has been since prior to sovereignty, the traditional country of the Malgana people. Contemporary Malgana people say that Malgana Country is owned by all Malgana people' [31]. As such, the 'Malgana people are bound together by a normative system of traditional laws and customs which has continued to be observed by its members in a substantially uninterrupted manner' [45]. In line with the requirements of native title under the Native Title Act, continuing connection to Country was acknowledged by Justice Murphy, with the 'Malgana people hav[ing] maintained their connection to Malgana Country since the assertion of sovereignty' [36]. Justice Murphy found that this was demonstrated in part through traditional owners working and residing in 'Shark Bay and on stations within the determination area and nearby townships' [38]. In this way, the 'Malgana people were able to continue to visit hunt and gather on their Country and transmit knowledge about the land to their children, thereby maintaining a continued connection to their land' [38].

Native title exists in part of the determination area. 

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