KD (deceased) on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 10

The determination area consists of eight lots within the town of Eucla and one lot north-west of Eucla crossing the Eucla Reid Highway. 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 Dundas Council.

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

Between: KD (Deceased), Bruce Hogan, Clem Lawrie, Desrae Kelly, Daniel Tucker, Pearl Scott, Fay Sambo, Raelene Peel, Annette-Grace Lawrie, James Peel, John Graham, David Hirschausen (Applicant) and State of Western Australia and Telstra Corporation Limited (Respondents)

Judge: Colvin J

Determination

Native title does not exist in the entire determination area.

This determination only takes effect upon the conclusive registration of the Mirning People Part B Indigenous Land Use Agreement (ILUA). Under this ILUA the parties agree that the Mirning People surrender their native title over the determination area in exchange for a cash and land package to be held in trust. 

Native title claimants

The Mirning people.

The Mirning Peoples' rights and interests in Mirning Country arise where they have:

• descended from a named apical ancestor;
• knowledge, association and familiarity with Mirning Country; and
• mythical or ritual totemic knowledge of Tjukurpa (the Dreaming) associated with Mirning Country [34].

A geographical description of Mirning Country is described in the joint submissions filed by the applicant and the State:

• 'The traditional country of the Mirning native title claimants is located at the far south eastern extremity of Western Australia. It comprises a strip of coastal country, which includes high cliffs of the western portions of the Great Australian Bight, as well as extensive coastal dunes. To the north the area includes portions of the limestone plateau and parts of the Nullarbor Plain. The eastern boundary of Mirning Country is the South Australian border' [34].

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

Background

An earlier determination of native title, KD (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225 (WA Mirning People) was made by consent of the parties on 24 October 2017. That determination acknowledged that non-exclusive native title rights and interests exist in the majority of the traditional country of the Mirning native title claimants.

In the making of the 2017 determination, the parties agreed to exclude (for further negotiations) the area to which this present WA Mirning People Part B determination relates.

Details of Judgment

The Mirning People and the State subsequently agreed that native title rights and interests would be surrendered as part of an ILUA. As per the joint submissions: 

• 'The ILUA provides for a cash and land package to be held in trust in exchange for the surrender of the native title rights and interests, and validation of the acts done by the State over the 9 areas' [4].

Pursuant to section 87(1) of the Native Title Act 1993 (Cth) (NTA), the parties filed their agreement with the Federal Court for determination. 

While the Court found that the evidence provided would ordinarily support an affirmative determination that native title exists, in anticipation of the ILUA, the parties asked that the Court instead make a determination pursuant to section 225 of the NTA that native title does not exist. 

Colvin J approved the agreement holding that the determination would not take effect until, and unless, the ILUA becomes conclusively registered.

The parties relied on the fact that Mortimer J had made orders of this kind in Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42.

Colvin J indicated that there was utility in the making of the determination prior to the registration of the ILUA: 

• '...the form of orders proposed in these proceedings reflects the fact that terms agreed as to surrender of title to be the subject of the ILUA may be the subject of challenges as part of the process of registering the ILUA even though all parties who have been joined in the present application (after notification as required by the Native Title Act) are in agreement. There are costs and delay involved in undertaking the ILUA process. In those circumstances, it is understandable that the parties may wish to have some certainty as to the nature of the determination of native title that will take effect if, as expected, the ILUA is registered' [8].

His Honour gave extensive consideration to section 87(6) of the NTA and whether it was appropriate to make the determination as proposed.

His Honour concluded that under section 87(6) of the NTA, the Court must be satisfied that there is a "credible and rational basis in fact and law for the conclusion that there is native title in the terms agreed [to by the parties]" [32].

His Honour was satisfied that all criteria were met under section 87 of the NTA.

After reviewing the anthropological evidence and the process involved in the parties' negotiations, Colvin J made orders in the terms proposed by the parties. 

Native title does not exist.

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