Miriuwung Gajerrong & Resources
The determination of native title concerning the lands of the Miriuwung Gajerrong peoples in the east Kimberley region, involved Justice Lee of the Federal Court in an extensive review of the development of native title since the Mabo decision. His review included relevant overseas developments, particularly where the Mabo decision had been considered, such as the Delgamuukw case from Canada. Justice Lee distinguished 'native title' from 'native title rights and interests' explaining that native title is a right to the land itself, from which rights and interests emerge. This is a clear explanation of the concept of native title, similar to that given by the Canadian Supreme Court recently, and is a rejection of the idea that native title is merely a bundle of rights.
The decision has been appealed to the High Court for an authoritative statement on some of the issues raised and is yet to be heard. In particular, Justice Lee recognised the right of native titleholders in this instance, to the use and enjoyment of the resources found on the land and to control the use and enjoyment by others. This issue had not been authoritatively dealt with in Australia previously. (Ben Ward and Ors on behalf of the Miriuwung Gajerrong Peoples v The State of Western Australia (unreported decision, Federal Court of Australia, Lee J, 24 November 1998))
Justice Lee acknowledged the strong evidence of the maintenance of a physical connection with the land and their exercise of traditional laws and customs which gave rise to native title. The native title rights and interests derived from and exercisable by reason of the existence of native were determined to include rights:
* to possess, occupy, use and enjoy the area;
* to make decisions about the use and enjoyment of the area;
* of access to the area;
* to control the access of others to the area;
* to use and enjoy resources of the area;
* to control the use and enjoyment of others of resources of the area;
* to trade in resources of the area;
* to receive a portion of any resources taken by others from the area;
* to maintain and protect places of importance under traditional laws, customs and practices in the area; and
* to maintain, protect and prevent the misuse of cultural knowledge of the common law native titleholders associated with the area.
Justice Lee reconfirmed the idea of co-existence that underpinned the decision of the High Court in Wik, so that the native title exists concurrently with other, non-native title interests in the determination area. The judgement acknowledged the power of government to regulate or otherwise control the exercise of some of the concurrent native title rights by legislation or any other dealing with the land identified in the Mabo decision as affecting native title, such as Crown grant or reservation for a public purpose.
The Miriuwung Gajerrong determination is the most comprehensive determination of native title thus far and exemplifies the potential of native title for Indigenous peoples. There will be a great deal of interest in the process followed by the Miriuwung Gajerrong community in developing and administering their lands under native title.
Keywords: Australian Court Case, Canada, coexistence, Delgamuukw, determinations, Federal Court of Australia, Kimberleys, Miriuwung Gajerrong peoples, Miriuwung Gajerrong Peoples v Western Australia (1998), native title claim, Supreme Court of Canada, Western Australia, Wik, 1998
Author: Strelein, Lisa