Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2020] FCA 929

South-Eastern Kimberley Region

Not Registered with the National Native Title Tribunal on the Native Title Register as at 08/07/2021

Between: Josephine Farrer, Gregory Donald Tait, Matt Dawson, Phyllis Wallaby, Marty Stevens and Mark Bin Bakar (Applicant) and State of Western Australia (Respondent)

Judge: Mortimer J

Determination

Native title exists in the entire of the determination area

It consists of exclusive native title rights and interests.

Native title holders

The native title holders are people related (including by adoption) to one of the apical ancestors who held rights and interests in one of the local estate countries, or are connected to Ngarrawanji apical ancestors through spirit connections/and or birth sites, or are recognised by the native titled holders as holding rights and responsibilities to the area.

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

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule 3, to the exclusion of all others.

Other rights and interests in the determination area include:

There are no native title rights and interests in the determination area in or in relation to: 

• minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA);
• petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and the Petroleum and Geothermal Energy Resources Act 1967 (WA)
• geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or
• water lawfully captured by the holders of other interests in the area

except for the right to take and use ochre to the extent that ochre is not a mineral pursuant to the Mining Act 1904 (WA).

Existing interests in the area include:

• the right of employees and contractors of the Water Corporation, established under the Water Corporations Act 1995 (WA), to continue to access and maintain water bores on the Determination Area existing as at the date of the determination; and
• existing interests under the Mining Act 1978 (WA) in relation to three exploration licences.

See Schedule 6 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

On or before 7 December 2020 the native title holders are required to indicate whether their native title rights are to be held in a trust and by which body corporate. 

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

Background

This application was filed on October 29 2019 pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA). This claim was originally part of a claim filed by the Ngarrawanji claim group on 25 June 1996 which included the Moola Bulla Station and two parcels of unallocated crown land. As the two parcels of unallocated crown land were excised from the Moola Bulla pastoral lease in 2013, well after the 1996 application had been made, they became subject to s 47B of the NTA which relates to vacant crown land [7]. Accordingly, it was requested that these parcels be subject to a separate determination - Part B, which is this claim. 

Part A, the land over Moola Bulla Station, was determined on 21 May 2019 in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655 with native title being found to exist over all the land at Moola Bulla. Justice Mortimer described the treatment of Aboriginal people on the Moola Bulla station as shameful [1].

Details of Judgment

The court made this determination under s 87 of the NTA after the parties came to an agreement about its terms and requested the Court to make the determination accordingly [27]-[28]. The state's agreement was based upon an expert report by Dr Redmond and an affadavit from one of the applicant's Gregory Tait [20]. In Mr Tait's evidence, he discussed the traditional ways the two blocks of land have been used including growing black plums and bush medicines and fishing in rock holes [25]. Justice Mortimer was satisfied that the requirements of s 87 of the NTA had been met and made the determination that native title existed over all of the land and waters in the two parcels of unallocated crown land.  

Justice Mortimer noted the difficulties associated with s 47B of the NTA. Her Honour discussed how needing to separate the application into two parts meant that there were overlaps with the remainder of the Ngarrawanji Part A Application, resulting in this application not meeting the registration requirements [8]-[12] and requiring ancillary orders to be made [40]-[43].

To date, the native title holders have not allocated a prescribed body corporate (PBC) to administer the trust that holds the native title rights and interests. Justice Mortimer noted that "it is a matter of some concern that there is still no PBC established to hold the native title recognised in the Ngarrawanji native title holders" [39]. Her Honour discussed how delaying the nomination of the PBC creates complexities in the administration and operation of the NTA [43].

Justice Mortimer paid tribute to the many elders who had passed away over the 20 years it took for these determination to be made [2]. Her Honour's concluding remarks included a quote from the Part A determination: 

"The Ngarrawanji claim group members deserve respect and admiration for their patience, determination and tolerance of the slow progress of the native title system in respect of their claim. It should not have taken this long.....The tolerance and persistence of the Ngarrawanji claim group members in this respect comes on top of, or in addition to, the many other obstacles which have faced Aboriginal people and their communities since non-Indigenous people came to this land" [45].

Native title exists over all of the determination area

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