| Judgment winds back native title rights Summaries of Miriuwung-Gajerrong decision AN appeal by the West Australian and Northern Territory governments over the landmark Miriuwung-Gajerrong claim was upheld in part on 3 March 2000 by the Full Court of the Federal Court. The claim includes Lake Argyle, part of the Argyle Diamond Mine lease, the Ord River, Kununurra, and the Keep River National Park in the Northern Territory. The judgment partly upheld the governments' appeal, which means the mine, the Ord River and all pastoral and mining leases included in the claim remain as Crown land. Does this mean that native title does not exist on these areas? The written reasons of the judges comprise 214 pages. LRQ provides two interpretations or summaries of the judgment and its implications: The decision, however, will undoubtedly be taken on appeal to the High Court. |
The following is an abridged version of a summary of the Miriuwung and Gajerrong appeal by Paul Kennard, in-house counsel for the Land and Heritage Unit at the Aboriginal Legal Service of Western Australia (Inc). THE Court consisted of three judges. Two of them gave a joint judgment and so they formed the majority. The other judge disagreed with them over the question of extinguishment of native title. He took the same view as the trial judge. However, it is the majority decision of the appeal court which has the force of law and their views are now the common law of Australia (common law means court-made law, as opposed to laws made by Parliament). The appeal was divided into two parts. The first dealt with the existence of native title and the second with its extinguishment. The Government said the Miriuwung and Gajerrong people had lost their connection to the land long ago and native title no longer existed. None of the judges accepted this. Where they disagreed was on how much had been extinguished. - EXISTENCE OF NATIVE TITLE
- Continuing Connection to Country
The court agreed with the trial judge that the claimants were descended from the Aboriginal people who occupied the claim area at the time of European sovereignty (1829). The current claim group followed a set of traditional laws and customs that could be traced back to their ancestors who occupied the land hundreds of years ago.
- Interruptions to Connection
Following contact with Europeans and the starting up of the pastoral industry, many of the ancestors were driven off their land. Connection had to be continuous "as far as practicable" and disruptions caused by earlier settlers and government officials did not break the connection.
- Physical, Spiritual and Social Connection
The court agreed with the trial judge that it was not necessary to provide continuous physical occupation of the whole claim area. It was sufficient if there was some spiritual or religious connection such as through the Dreamtime stories or ritual knowledge.
- Community or Estate Group Title
There was some dispute over whether native title was held by the Miriuwung and Gajerrong people as a broad community, or whether it was held by estate groups or sub-groups with particular rights to speak for land within the claim area. The court upheld the trial judge's finding on this point and said that it was a community title and was held by the Miriuwung and Gajerrong people. This is consistent with the Mabo decision, where individuals had their own specific vegetable plots but the title was held by the Meriam people as a whole. It was not the court's role to determine which people had certain rights in any particular area.
- Evidence
To support the finding of native title, the court relied on the primary evidence of the claimants who gave evidence on country. Their evidence was backed up by expert opinions from historians, anthropologists, archaeologists and a linguist.
- EXTINGUISHMENT
- Bundle of Rights
The majority of the Full Court disagreed with the trial judge on the question of extinguishment. They regarded native title as a bundle of rights which could be extinguished one at a time by passing a new law or by a government grant of an interest in land to someone else. This resulted in partial extinguishment of native title. The trial judge had held that native title was not just a bundle of rights but an interest in land itself
The Full Court held that the native title right of exclusive possession and some other native title rights were extinguished by the grant of the lease and hence there was partial extinguishment of native title. Once extinguished, native title cannot be revived.
- Pastoral Leases
Before 1934, there was a right to enter upon any unenclosed or enclosed but unimproved parts of a pastoral lease.
The court declared that native title was extinguished in enclosed areas (which means "fenced") or where there were improvements. This applies to leases issued after 1934.
The court said that native title rights were limited to those allowed under the lease. Any other rights were inconsistent with the rights of possession and use by the pastoralist. It is not evident from the court's draft determination referred to below that the native title rights are so limited.
- Mining Leases
The majority looked at the terms and conditions of a mining lease issued under West Australia's legislation and found that the rights given to the mining company left no room for native title and that therefore native title is extinguished by the grant of a mining lease.
- Minerals and Petroleum
The court held that any native title rights to minerals had been extinguished in Western Australia by legislation in 1899 and by later legislation in the Northern Territory.
- Ord River Project
Native title has also been extinguished in areas associated with the Ord River Project. The sheer size of the project made it impossible for native title to be exercised.
- Conservation of Wildlife and Fauna
Section 23 of the Wildlife Conservation Act 1950 (WA) allows an Aboriginal person to take flora and fauna for personal use without a licence on Crown land or on any other land with the consent of the occupier as long as it is not a nature reserve or wildlife sanctuary. In the court's opinion, this meant that a native title right to take wildlife or flora in a nature reserve or wildlife sanctuary was extinguished - not regulated. The court added that the legislation was discriminatory against Aboriginal people.
- Conservation and Land Management Act 1984 (WA)
In contrast, the court found that the Conservation and Land Management Act imposed very stringent and extensive controls over human activities within nature reserves and wildlife sanctuaries (eg no camping or lighting fires without authority) but it did not wholly extinguish native title. The right to control access, the right to exclusive possession or occupation of reserves and the right to make decisions about human activities on land were extinguished. Other native title rights were controlled.
In the Northern Territory part of the claim, the Keep River National Park did not extinguish native title, although there were no exclusive rights to possession, occupation, use and enjoyment.
- Other Leases
A conditional purchase lease, a permit to occupy, and some special leases of a commercial nature allowed for exclusive possession by the grantee and therefore they extinguished native title.
- Aboriginal Reserve Land
Within the Ord Project area, there were six reserves created for the benefit of Aboriginal people. Native title was protected by Section 47A of the Native Title Act, so any prior extinguishment must be disregarded. The same applied to the Glen Hill Pastoral Lease and to land granted to communities at Policeman's Hole, Bucket Springs and Bubble Bubble in Keep River National Park in the Northern Territory. In relation to the Glen Hill Pastoral Lease and Keep River communities, the court's draft determination gives the community native title as against the whole world to possession, occupation, use and enjoyment of the lands. This is a Mabo-type determination and the equivalent of a freehold estate. The Aboriginal reserves in the Ord Project area were given a similar entitlement except that native title could not affect public works comprising the Ord Project.
- DRAFT DETERMINATION
Apart from those areas mentioned above where the native title rights amount virtually to exclusive possession, the court issued a draft determination of native title in the remaining areas as follows:
- a right to possess, occupy, use and enjoy the land;
- a right to make decisions about the use and enjoyment of the land;
- a right of access to the land;
- a right to enjoy the traditional resources of the land;
- a right to maintain and protect places of importance under traditional laws, customs and practices.
- QUALIFICATIONS
These rights are not exclusive rights. The draft determination says they must yield to the rights of others who have obtained interests in the land through legislation or government grant as well as to the interests held by members of the public under the common law where there is any inconsistency between the native title rights and the other rights.
The native title rights, whether exclusive or non-exclusive, are also subject to regulation and control by valid laws of Australia.
The decision in brief . . . Lisa Strelein, of the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies, provides the following brief interpretation of the Miriuwung Gajerrong decision: The Federal Court has handed down a 2 - 1 decision in the Miriuwung Gajerrong native title case, upholding the appeal by Western Australia in relation to areas of extinguishment (North J. dissenting) but reconfirming the native title of the Miriuwung Gajerrong people in general. The determination of native title was changed to exclude any commerical aspects, such as the right to trade, and rejected Justice Lee's recognition of the right to control access by others. Also rejected was the right to protect against the misuse of cultural knowledge (North J. dissenting). The majority held that native title is a bundle of rights and is, therefore, susceptible to partial extinguishment. This issue is likely to be appealed to the High Court. |
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