John on behalf of the Malarngowem Native Title Claim Group v State of Western Australia [2019] FCA 697

Southeastern Kimberley region

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Maggie John, Mr. T Springvale, Rusty Peters, Mr. C Thomas, Mr. N Thomas, Mary Thomas, Shirley Purdey, Mr. R Peters, Mabel Peters, Lena Nyadbi, Paddy McGinty, Queenie Maglil, Pearl Gordon, Mr. C Cann, Ms. G Barrett, Gordon Barney, Patrick Mung, Ms. P Gallagher, Mr. H Chunda, Bernard Stretch (Applicant) and State of Western Australia, Shire of Halls Creek, Shawleish Holdings pty ltd, Telstra Corporation Limited, Sophie Downs Station pty ltd (Respondents)

Judge: Banks-Smith J

Determination

Native title exists in parts of the determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Native title is held by Aboriginal persons who are related (including by adoption) or affiliated to a Malarngowem Apical Ancestor as detailed in Schedule 6. Native title is additionally held by Aboriginal persons recognized by those related or affiliated persons as either holding rights and responsibilities relating to ceremonies that reference important sites within the Determination Area or holding rights and interests in the Determination Area under traditional law and custom. 

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

The right to possession, occupation, use, and enjoyment of the area detailed in Schedule 3 to the exclusion of all others.

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

These rights and interests exist over the area described in Schedule 4 and include the rights to: 

• access and move freely through and within;
• live, camp, and erect temporary shelters and other structures for those purposes;
• engage in cultural activities, including the sharing of cultural heritage knowledge;
• hold meetings;
• access and take resources;
• protect places, areas, and sites of traditional significance;
• conduct and participate in ceremonies;
• conduct burials and burial rites and other ceremonies in relation to death;
• visit, maintain and protect from physical harm, areas, places, and sites of importance; and
• be accompanied by a spouse, partner, or persons who may assist with the performance of ceremonies or cultural activities.

Native title does not exist over minerals as defined in the Mining Act 1978 (WA), or petroleum, geothermal energy, and geothermal energy resources as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

Native title rights are non-exclusive rights to take, use, and enjoy over water in any watercourse, wetland, or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA).

Other rights and interests in the determination area include: 

• eight pastoral leases - including obligations to best practice management of pasture and vegetation resources;
• three leases;
• two reserves - interests of persons relating to the control and maintenance of the reserves as well as interests of people entitled to access and use those reserves;
• various mining-related interests under the Mining Act 1978 (WA); and
• two roads - interests of persons relating to the control, maintenance, and use of roads to which the non-extinguishment principle applies. The non-extinguishment principle means that under the Native Title Act 1993 (Cth) activities inconsistent with native title do not extinguish that title, but pause it until those activities are finished. 

See Schedule 8 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

The native title holders are to indicate within twelve months whether they are to have their native title held in trust as required by s 56, 57 of the Native Title Act 1993 (Cth). 

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

Background 

The Malarngowem native title application was lodged with the National Native Title Tribunal in 1997 and was amended in 1999 so that it was combined with, and became the lead application of, three additional applications [4].

The Malarngowem Native Title Claim Group in 1999 consisted of twenty individuals however due to the passage of time, eight had passed away at the time of determination in 2019 [15].

On 1 March 2019, the parties informed the Federal Court that they had reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area under s 87A of the Native Title Act 1993 (Cth) [6]. 

Details of Judgment

The Court determined that it was within the Court's power to give effect to the parties agreement and recognised the Malarngowem native title claim group's native title over part of the Determination Area. The Court further acknowledged the contributions of the legal representatives, Kimberley Land Council, and the State in reaching an agreement.

Native title exists in part of the determination area.

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