Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia [2019] FCA 655

East Kimberley Region

The determination area covers approx 4,065.8319 sq km, covering Moola Bulla Pastoral Lease, including Ngarrawanji (also known as Mount Barrett). For a detailed description of the area and maps see Schedule 1, Attachment B and Attachment C, attached below under documents. The area is within the jurisdiction of the Halls Creek Shire Council. 

Registered on the Native Title Register on 28 April 2022

Between Josephine Farrer, Matt Dawson, Phyllis Wallaby, Marty Stevens, Mark Bin Bakar and Gregory Donald Tait (Applicants) and State of Western Australia (First Respondent) Telstra Corporation Limited (Second Respondent) and Shire of Halls Creek (Third Respondent)

Judge: Mortimer 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

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 part 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.

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 right to have access to, remain in and use that part, which includes but is not limited:

• access and move freely through and within that part;
• enter and remain on, camp and erect temporary shelters and other structures in order to live on that part;
• light controlled contained fires but not for the clearance of vegetation;
• to engage in cultural activities in that part, including the transmission of cultural heritage knowledge; and
• to hold meetings in that part

The right to access and take for any purpose the resources on that part, which includes:

• to access and take water, other than water which is lawfully captured or controlled by the holders of pastoral leases.

The right to protect places, areas and sites of traditional significance on that part, which includes to:

• conduct and participate in ceremonies in that part;
• conduct burials and burial rites and other ceremonies in relation to death in that part; and
• visit, maintain and protect from physical harm, areas, places and sites of importance in that part.

The right to be accompanied onto the Determination Area by any persons who, the native title holders may invite pursuant to traditional law and custom, being:

• spouses or partners of the native title holders; and
• persons who may assist with the performance of ceremonies or cultural activities, including sharing of knowledge about country

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

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

See Schedule 5 and 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

Within 12 months of the order the common law 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 claim was first filed on 25 June 1996 pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA). The claim was also entered on the Native Title Register on that date. As only 2 of the original 11 applicant members remained alive, after a November 2018 authorisation meeting and successful application to the court, the applicant was replaced with a newly constituted applicant [11] [12] [13].

The State’s agreement to the determination was based on a review of an expert report provided by Dr Redmond (Anthropologist’s Connection Report for three adjacent native title claims in the central east Kimberley region: Ngarrawanji WAD 6017 of 1998), and an affidavit from Mr Greg Tait, a member of the newly constituted applicant [22].

Two areas of unallocated crown land were separated from this application after both parties agreed that the claim would be determined in two parts [17]. This determination covers the Part A area. The Part B area is covered in Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australian [2020] FCA 929.

In the Part B determination, Justice Mortimer noted "it is notorious that the treatment of Aboriginal people at Moola Bulla station is a shameful aspect of post sovereignty history in the East Kimberley" [1]. This treatment was discussed in a landline special where a survivor Charlie Yeeda asserted having " seen white people tie them in a tree, flog them with a greenhide rope. Real cruelty, you know, very cruel" (Lee, 2012). 

At the celebrations for the outcome of the claim, Greg Tait, an applicant for the claim, said "today we walk away with a clear mind and a clear heart. We got here and we should all be very proud of that. All the old people and the spirits will be very proud to see us and our kids today" (Kimberley Land Council, 2019). 

This was the first of three claims heard over a three day period, which determined that native existed over 93.5% of the Kimberley. This is an area bigger than the size of Belgium (Kimberley Land Council, 2019). Kimberley land council's chief executive officer, Nolan Hunter, praised the determinations, however, raised issues with the process in that it re-traumatises people as people need to discuss how they were forcibly removed from the area or lived under the cruel conditions at the station (Kimberley Land Council,2019). He questioned whether there was a less traumatic and divisive way as the current "native title process forces people to disclose deeply personal and sensitive information to prove their connection to country" (Kimberley Land Council, 2019).

Details of Judgment

In May 2019, the Ngarrawanji claim group and the State were able to inform the Court of their agreed terms for a  determination of native title. Justice Mortimer was satisfied that the requirements of s 87A of the NTA (Cth) had been met and made the determination that native title existed over only part of the land and waters subject to the application.

Justice Mortimer noted that it had taken more than 20 years for this application to be resolved with a tragic consequence that many elders of the the Ngarrawanji claim group, who were important to establishing the claim and securing an agreement, had not lived to see the determination [2]. Justice Mortimer highlighted "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" [49].

Justice Mortimer discussed the importance of this land to the Aboriginal people, especially Ngarrawanji (Mount Barrett) and its connection to Eagle Hawk dreaming [1], [30]. 

Justice Mortimer was satisfied that the authorisation process was pursuant to s 66B of the NTA [15].

Native Title exists in part of the determination area

Related Entries

References

Documents

Glossary