Background
The Nganjuwarr Claim Group filed an application for a determination of native title over a 960-square-kilometre area of land and waters in the Kimberley region of Western Australia, located within the Doon Doon Pastoral Lease. The applicants, representing the native title holders, and the State of Western Australia entered into negotiations to resolve the claim without a full trial.
The parties successfully reached an agreement under s 87 of the Native Title Act 1993 (Cth) on the terms of a consent determination. This cooperative process, achieved less than two years after the initial application, was presented to the Federal Court for approval. The court reviewed the agreement, a statement of agreed facts, and anthropological evidence to ensure the claim had a credible basis and that making the orders was appropriate.
The Court’s Holding
Justice Longbottom of the Federal Court of Australia made a determination of native title by consent, formally recognising the rights and interests of the Nganjuwarr people. The Court found that native title exists over the entire determination area and is held by the Nganjuwarr native title holders, who are defined by their descent from a list of named ancestors and their acknowledgement of a shared body of traditional laws and customs.
Crucially, the Court determined that the nature and extent of the native title rights are the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others. These exclusive rights are subject to the laws of Australia, the group’s traditional laws and customs, and certain pre-existing, non-extinguishing interests outlined in the decision, such as pastoral leases and mining tenements. The Court appointed the Giliwinggin Aboriginal Corporation to hold the determined native title in trust for the native title holders.
Key Takeaways
- The Federal Court recognised exclusive native title, the highest form of native title, over a large area within a pastoral lease in Western Australia.
- The determination was achieved by consent between the native title applicants and the State, highlighting the effectiveness of the negotiation and conciliation framework within the Native Title Act.
- The decision confirms that native title can co-exist with other interests in land, such as pastoral leases and mining tenements. Where inconsistent, the activities permitted under those other interests prevail for their duration but do not extinguish the underlying native title.
- A prescribed body corporate, the Giliwinggin Aboriginal Corporation, will act as trustee, managing the native title rights and interests on behalf of the Nganjuwarr people.
Why It Matters
This case is a significant victory for the Nganjuwarr people, providing legal recognition of their enduring, exclusive connection to their country. It demonstrates the continuing application of the principles established in Mabo v Queensland (No 2), which first recognised native title in Australia.
For legal practitioners, this judgment serves as a contemporary example of a successful consent determination, which the Native Title Act promotes as a more just, efficient, and less adversarial alternative to litigation. It reinforces that the existence of pastoral or mining interests does not preclude a finding of exclusive native title and provides a clear framework for the co-existence of these varied rights on the same land.