The Miriuwung Gajerrong Determination
In November 1998, Justice Lee of the Federal Court recognised the native title of the Miriuwung Gajerrong peoples over areas on the border of Western Australia and the Northern Territory. The determination in relation to lands of the Miriuwung Gajerrong peoples provides an example of how native title might be described:
The Miriuwung Gajerrong determination:
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
1. Native title exists in the 'determination area' as defined below except those areas of land or waters as are described in the 2nd Schedule. The 'determination area' is that part of the land or waters within the areas outlined in red on the map in the 1st Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged by them with the National Native Title Tribunal ('the Tribunal') referred to the Court by the Tribunal for decision.
2. Native title in the 'determination area' is held by the Miriuwung and Gajerrong people, and in respect of that part of the 'determination area' known as Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
3. Subject to par 5 hereof, the nature and extent of the 'native title rights and interests' in relation to the 'determination area' are the rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title, in particular:
a) a right to possess, occupy, use and enjoy the 'determination area';
b) a right to make decisions about the use and enjoyment of the 'determination area';
c) a right of access to the 'determination area';
d) a right to control the access of others to the 'determination area';
e) a right to use and enjoy resources of the 'determination area';
f) a right to control the use and enjoyment of others of resources of the 'determination area';
g) a right to trade in resources of the 'determination area';
h) a right to receive a portion of any resources taken by others from the 'determination area';
i) a right to maintain and protect places of importance under traditional laws, customs and practices in the 'determination area'; and
j) a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the 'determination area'.
4. The nature and extent of any other interests in relation to the 'determination area' are the interests created by the Crown as set out in the 3rd Schedule.
5. The relationship between the 'native title rights and interests' described in par 3 and the 'other interests' described in par 4 is as follows:
'The native title rights and interests' described in par 3 hereof and the 'other interests' described in par 4 hereof are concurrent rights and interests in relation to that part of the 'determination area' to which the other interests relate, but by operation of legislation or by the nature and extent of the other interests created by the Crown, regulation, control, curtailment, restriction, suspension or postponement may operate upon the exercise of some of those concurrent rights.
6. Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by common law holders.
7. There be liberty to apply as to costs and to refer to the National Native Title Tribunal for mediation issues arising out of the relationship between native title rights and interests and other interests in relation to the 'determination area.'
The Miriuwung Gajerrong determination:
THE COURT ORDERS, DECLARES AND DETERMINES THAT:
1. Native title exists in the 'determination area' as defined below except those areas of land or waters as are described in the 2nd Schedule. The 'determination area' is that part of the land or waters within the areas outlined in red on the map in the 1st Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged by them with the National Native Title Tribunal ('the Tribunal') referred to the Court by the Tribunal for decision.
2. Native title in the 'determination area' is held by the Miriuwung and Gajerrong people, and in respect of that part of the 'determination area' known as Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
3. Subject to par 5 hereof, the nature and extent of the 'native title rights and interests' in relation to the 'determination area' are the rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title, in particular:
a) a right to possess, occupy, use and enjoy the 'determination area';
b) a right to make decisions about the use and enjoyment of the 'determination area';
c) a right of access to the 'determination area';
d) a right to control the access of others to the 'determination area';
e) a right to use and enjoy resources of the 'determination area';
f) a right to control the use and enjoyment of others of resources of the 'determination area';
g) a right to trade in resources of the 'determination area';
h) a right to receive a portion of any resources taken by others from the 'determination area';
i) a right to maintain and protect places of importance under traditional laws, customs and practices in the 'determination area'; and
j) a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the 'determination area'.
4. The nature and extent of any other interests in relation to the 'determination area' are the interests created by the Crown as set out in the 3rd Schedule.
5. The relationship between the 'native title rights and interests' described in par 3 and the 'other interests' described in par 4 is as follows:
'The native title rights and interests' described in par 3 hereof and the 'other interests' described in par 4 hereof are concurrent rights and interests in relation to that part of the 'determination area' to which the other interests relate, but by operation of legislation or by the nature and extent of the other interests created by the Crown, regulation, control, curtailment, restriction, suspension or postponement may operate upon the exercise of some of those concurrent rights.
6. Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by common law holders.
7. There be liberty to apply as to costs and to refer to the National Native Title Tribunal for mediation issues arising out of the relationship between native title rights and interests and other interests in relation to the 'determination area.'
Keywords: determinations, Federal Court of Australia, Kimberleys, Miriuwung Gajerrong peoples, native title claim, Northern Territory, Western Australia, 1998
Author: Strelein, Lisa
Source: The Miriuwung Gajerrong determination, 1998.
Source: The Miriuwung Gajerrong determination, 1998.