K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225 (24 October 2017)

Coastal area in south-eastern Western Australia, just east of the Nullabor National Park on the South Australian Border.

The determination area comprises approximately 33,000 square kilometres of coastal country, including western portions of the Great Australian Bight. The north of the determination area includes portions of the limestone plateau and parts of the Nullarbor Plain. The eastern boundary is the South Australian border. For a detailed description of the area and maps see Schedules One and Two of the determination, attached below under documents. The area is within the jurisdiction of the Shire of Dundas Council.

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

Between: KD (Deceased), Clem Lawrie, John Graham, David Hirschausen, Annette-Grace Lawrie, Fay Sambo, Raelene Peel, Pearl Scott, Daniel Tucker, Desrae Kelly, Bruce Hogan and James Peel on behalf of the Mirning People (Applicant) and State of Western Australia, City of Kalgoorlie-Boulder, Telstra Corporation Limited, Commonwealth of Australia, Colin John Campbell, Roderick Steel Campbell, Brie McClure Campbell, Matthew Rodney Lewis, Clare Elizabeth Lewis, CC Cooper & Co Pty Ltd (Respondents)

Judge: Robertson J

Where made: Point Low (Gondwana Link, 2017). 

Determination

Native title exists in parts of the determination area 

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

Native title holders

The Mirning People.

The Mirning People are:

• Descendants of a named apical ancestor and recognised as having realised their rights in accordance with traditional law and custom through knowledge, association and familiarity with the determination area; or 
• Spinifex People who hold mythical or ritual totemic knowledge and experience of Tjurkurpa (the Dreaming) in the determination area. 

For further information about the native title holders, including named apical ancestors, see Schedule Six of the Determination. 

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

These rights exist over the area described in Schedules One and Two and include:

• the right to access the land and waters;
• the right to use and enjoy resources from the land and waters;
• the right to practice traditional religious customs;
• the right to maintain and protect from harm particular sites and areas of traditional and cultural significance to the Native Title Holders; and
• the right to be accompanied on to the area by those persons who, although not native title holders, are spouses or partners of native title holders; immediate family members of native title holders or their spouses; people required by native title holders to perform ceremonies or cultural activities; people who have specialised knowledge and are required to observe or record traditional activities or otherwise investigate matters of cultural significance in connection with the exercise of native title rights and interests.

Other rights and interests in the determination area include:

• Reserves
• Pastoral leases
• Eyre Highway maintenance
• Telstra Corporation Limited
• Access easements
• Rights or interests held under the laws of the State or of the Commonwealth, including the Rights in Water and Irrigation Act 1914 (WA) 
• Licences, permits and other rights and interests granted pursuant to statute or otherwise in the exercise of executive power
• Public rights arising under common law
• Commonwealth employee access for the performance of common law or statutory duties

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

The Mirning Traditional Lands 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 acts as agent for the Mirning People.

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

Background

The Mirning Application was filed with the Federal Court under section 61 of the Native Title Act 1993 (Cth) (NTA) (the NTA) on 27 February 2001. Details of the claim were entered into the National Native Title Register on 14 September 2001. 

There was subsequently an outcry by some Mirning People that they did not want to be part of a combined native title claim (Georgatos, 2013).

The Mirning People Indigenous Land Use Agreement (ILUA) between the Mirning People and the State was registered on 19 February 2014. In the present determination the court noted that: 

'The parties to that ILUA have agreed that 'Land Transactions', as set out by the ILUA, will be undertaken. Certain of those Land Transactions have not yet occurred or been completed. The State and native title holders acknowledge and agree that they remain committed to the fulfillment of the terms agreed by the ILUA, including by fulfilling the Land Transactions' [G].

Amended Mirning Applications were then filed on 28 April 2016 and 16 August 2016.

The Mirning native title claim group subsequently met at Coolgardie on 8 August 2017 where they authorised the applicant to consent to the Mirning Determination. This meeting was attended by Mr Rumler, the Principal Legal Officer of the Goldfields Land and Sea Council, who had been attending meetings with the Mirning People claim group to inform them of the progress of their application and to obtain their instructions since 2013. The Court later relied on Mr Rumler's reports that the majority of claimants attended the meeting. 

Details of Judgment

The parties reached an agreement after the meeting at Coolgardie and filed joint submissions on 20 September 2017. 

Robertson J noted that: '[w]hilst all of the Mirning native title claimants currently live outside of the Determination Area, they continue to access the area as often as they are able, to take and use resources and to teach their children about the Determination Area. There is a shared acknowledgement that under traditional law and custom the permission of the  Mirning native title claimants is needed to enter the Determination Area in order to avoid danger to persons and to country' [7].

Robertson J then considered whether Mr Palmer has sufficiently explained the proposed Consent Determination to the Mirning People claim group, in consultation with an anthropologist. His Honour found that authorisation by the claim group for the applicant to consent to the proposed Determination was validly done. 

His Honour then proceeded under the criteria laid out in section 87A, rather than section 87 of the NTA, to allow the amending of the application for the removal of an area [section 64(1B) of the NTA]. This area would be the subject of further negotiations which were later settled in KD (deceased) on behalf of the Mirning People v State of Western Australia [2021] FCA 10 (WA Mirning People Part B). Operating under section 87A of the NTA would also allow for the area to be exempt from re-application of the registration test [section 190A(lA)]. 

Robertson J found all elements of section 87A of the NTA to be made out. His Honour gave special consideration to whether it would be appropriate [section 87A(4)(b) of the NTA] and within the court's power [section 87A(4)(a) of the NTA] to make the orders sought. Accordingly, the Court found that the parties had come to the agreement freely and on an informed basis.

His Honour then complied with section 225 of the NTA. 

Robertson J then made orders in the terms proposed by the parties. 

Native title exists in parts of the determination area

Related Entries

References

Documents

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