Gordon on behalf of the Marlarngowem Native Title Claim Group Part B v State of Western Australia [2020] FCA 1149

South-eastern Kimberly region, near Warmun and Purnululu

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

Between: Pearl Gordon, Bernard Stretch, Gordon Barney, Mabel Peters, Mr R Peters, Shirley Purdie, Paddy McGinty, Mary Thomas and Queenie Malgil (Applicant) on behalf of the Malarngowem Part B native title claimants and State of Western Australia (Respondents)

Judge: Banks-Smith J

Determination

Native title exists in the entire determination area

It consists of 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 Ancestors (listed in Schedule 4). Native title is also held by those people that the native title holders recognise as either holding rights and responsibilities relating to ceremonies that reference important sites within the area or holding rights and interests in the area under traditional law and custom.

Exclusive native title rights and interests over the entire 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.

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:

• Two exploration licences granted under the Mining Act 1978 (WA); and
• An easement to the conservation and land management executive body for public access purposes.

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

The Malarngowem 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) (NTA) and holds the native title in trust for the Malarngowem native title claim group.  

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

Background

In 1999, an application was lodged with the Native Title Tribunal on behalf of the Malarngowem native title group (the Malarngowem Part A Application) over approx. 7,504 sq km of land in the south-eastern Kimberley region which included the present Part B determination area.

The Malarngowem Part A Application was determined in May 2019, with the parties agreeing to exclude the Part B area because it consisted of two parcels of unallocated crown land over which s 47B of the NTA was likely to apply [7]-[8]. Section 47B of the NTA allows historical extinguishment of native title to be disregarded if the area is not covered by particular grants or rights from the Crown. 

In October 2019, the Malarngowem native title group then lodged the Malarngowem Part B Application with the National Native Title Tribunal. However, the Malarngowem Part A Application, despite having been determined, was still on foot in relation to the Part B area. This meant that there were overlapping native title applications for the same land [9] which is prohibited under ss 67 and 68 of the NTA.

To resolve this issue, the parties proposed that the Malarngowem Part A Application be dismissed [12]. Banks-Smith J agreed that this was the appropriate course of action and ordered the Malarngowem Part A Application be dismissed upon Part B being determined and Part A coming into effect with the appointment of a prescribed body corporate to manage the native title rights and interests [13]-[16], [51].

Details of Judgment

The Court gave effect to the parties' agreement and recognised the Malarngowem native title claim group's native title over all of the Part B determination area. To make this finding, the Court considered evidence submitted in the Malarngowem Part A Application and evidence submitted in the Malarngowem Part B Application.

The parties jointly drew attention to the fact that the description of the native title holders as described in Schedule 4 was not exactly the same as that in the amended application filed in October 2019. However, Banks-Smith J decided that the difference was no more than "an unfortunate formatting error" and that it was appropriate to correct the error in the making of the determination orders [26]-[27].

Native title exists in the entire determination area.

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