Miriuwung Gajerrong – a landmark case
Claim Status: Determined
The Miriuwung Gajerrong claim was the most significant native title claim since the Wik decision in 1996, and became a milestone in the interpretation of Native Title law.
The landmark decision paved the way for native title rights to co-exist with pastoral leases and gave Traditional Owners rights to access the country to hunt, fish, gather and camp among other things.
The Miriuwung Gajerrong claim also brought into contention the ownership of sub-surface mineral resources. However, the Courts ruled that native title does not include land rights to sub surface minerals or petroleum commodities.
These decisions defined a clear path in native title law and set a precedent for future native title claims in Western Australia.
Claim History:
Two claims
In 1994-95 the Miriuwung, Gajerrong and Kija people lodged two native title claims –
MG#1 – which covered reserve, leasehold and Crown lands and MG#2 – which covered mainly pastoral lease land
The first claim: MG#1
MG#1 was heard by the Federal Court in 1997, determination of native title followed in 1998, recognising Miriuwung, Gajerrong and Kija people as Traditional Owners with surviving native title rights.
However, this decision was appealed to the High Court. In August 2002 the High Court handed down a decision and sent the claim back to the Federal Court for final determination in December 2003.
On 8 December 2003, after nine years of hearings before three separate Courts and a significant amount of money spent on litigation by all parties, an agreement was reached recognising the native title rights and interests of the Miriuwung, Gajerrong and Kija people in the MG #1 claim area. This was a significant milestone and cause for celebration.
The second claim: or MG#4
MG#2 was re-lodged in June 2004 and renamed MG#4 (there is an MG#3 claim, but it falls on the NT side of the border)
MG#4 covered almost 7,000 square kilometres of land including pastoral leases and reserves in the north east Kimberley. Carlton Hills Station, Ivanhoe Station, and the West Australian side of Rosewood Station – and some reserves inside those pastoral leases were included in the claim.
Negotiations on MG#4 were postponed until October 2005, while the Ord Stage 2 Agreement was finalised.
Ord Final Agreement – Negotiating a New Standard
The landmark agreement, known as the Ord Final Agreement, was signed between the Miriuwung, Gajerrong and Kija people, the State of Western Australia and other interested parties.
This agreement set a new standard for governments around Australia. It demonstrated that negotiation with native title parties provided mutually beneficial outcomes and speedier resolution.
In November 2005, following the signing of the Ord Final Agreement, mediation on the MG #4 claim began.
It took less than 12 months of negotiations to resolve the final chapter of the MG native title claims.
After significant cooperation between all parties, agreement for a consent determination was reached in October 2006.
Determination was handed down by Justice North of the Federal Court on 24 November 2006.
Native Title rights
The MG #4 native title determination recognises that the Miriuwung, Gajerrong and Kija people have native title rights and interests inside the claim area. This is based on their continuing connection to that country in accordance with their traditional laws and customs, which have been maintained since the British declared sovereignty over Western Australia in 1829.
Exclusive possession
The Miriuwung, Gajerrong and Kija people have exclusive possession native title rights over four community lease areas. These are Molly Springs / Wijilawarrim, Flying Fox, Kumbarumba and Ningbing.
Non-exclusive possession
The Miriuwung Gajerrong people will share rights and interests on pastoral lease land. These rights include:
• the right to access, live and camp on the land, and the right to erect temporary structures and light camp fires;
• the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, timber, charcoal, ochre, stone and wax;
• the right to engage in cultural activities and protect places of cultural significance;
• the right to make decisions about how the native title holders will use the land in accordance with traditional law and custom; and
• the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.
Co-existence
The exercise of these rights and interests will be subject to the prevailing rights of the pastoralists under their pastoral leases, with all parties required to act reasonably in exercising their rights and co-existing on the land.
This relationship of co-existence, and its importance to the future enjoyment of the land by all parties, is reinforced by an agreement between the pastoralists and the native title holders which clarifies how ‘coexistence’ will operate in certain areas inside the claim, and how the native title holders and pastoralists will live and work together on the land in the future.
Extinguishment of native title
Native title is extinguished over some land in the claim area which is affected by different types of reserves or leases. However, the Miriuwung, Gajerrong and Kija people will remain involved in the management of some of these areas as a result of the joint land management agreements which were part of the Ord Final Agreement.
