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Miriuwung Gajerrong

Miriuwung Gajerrong – a landmark case:

The Miriuwung Gajerrong claim represents one of the most significant native title achievements in Australia.

The claim has been labelled the most significant native title claim since the Wik decision in 1996, as it signaled 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.

The determination:

The Full Federal Court handed down the Miriuwung Gajerrong Native Title determination on December 9, 2003 bringing an end to almost a decade of litigation.

The two consent determinations were approved at an on-country hearing in Kununurra after the Traditional Owners, the Western Australian Government and the Northern Territory Government came to a mutual agreement.

The native title claim had been in the Courts for almost 10 years after an initial finding by Justice Lee, that native title existed across much of the claim area, was appealed.

The two determinations recognise the Miriuwung Gajerrong people as the Traditional Owners of a significant part of the claim area which encompasses the Kununurra township, Lake Argyle, Keep River National Park and the Ord River irrigation area.

KLC Executive Director Wayne Bergmann praised the Miriuwung, Gajerrong and Kija people for standing strong through a tough and challenging nine-year court battle.

“Your commitment, through so many difficulties, shows your strong relationship to country. You have stayed together and stayed strong,’’ he said.

“It is time to move away from litigation. The cost and stress of litigation should not be an obstacle to securing the strongest possible native title outcomes for Traditional Owners.

“The KLC is a strong advocate for negotiated settlements. The Miriuwung Gajerrong claim recognises the past and shows us a way for the future.’’

Another claim named Miriuwung Gajerrong #4 was determined by consent on November 24, 2006, recognising the existence of native title across 7,000 square kilometres of land.

The claim included pastoral leases and reserves in the north east Kimberley and brought to an end a long chapter in the history of native title law and the Miriuwung Gajerrong people.

KLC Executive Director Wayne Bergmann said the Miriuwung Gajerrong Claim #4 was the last chapter in one of the most significant native title claims in Australia.

“The resolution of the MG #4 claim demonstrates what can be achieved by all parties working cooperatively together, and recognising that native title is a reality which cannot be ignored,’’ he said.

“The Miriuwung, Gajerrong and Kija people have remained committed to their pursuit of native title over many years, showing a strength and maturity in reaching a consent determination which delivers positive outcomes for everyone.’’

Mr Bergmann said the key to securing a consent determination was the coming together of Traditional Owners and pastoralists, to put in place practical, workable structures that allowed for shared interests in relation to pastoral leases.

“I acknowledge the leadership shown by the pastoralists involved in recognising the benefits of developing mutually beneficial, long-term relationships with Traditional Owners,’’ he said.

“I congratulate the Office of Native Title for their commitment and persistence in ensuring an outcome could be reached that satisfied the needs of all parties.’’

The history of the Miriuwung Gajerrong fight for native title – the hard way:

In 1994-1995 the Miriuwung, Gajerrong and Kija people lodged two native title claims over their traditional country in the north east Kimberley.  The claims over this traditional country were split in two, in the hope they could be resolved more easily. The first claim covers mainly reserve, leasehold and Crown lands while the second claim covers mainly pastoral lease land.  These claims became known as Miriuwung Gajerrong #1 (or MG #1) and Miriuwung Gajerrong #2 (or MG #2). 

The MG #1 native title claim was heard by the Federal Court over 83 days in 1997.  At the time, it was the longest hearing ever conducted in the Federal Court. 

A determination of native title was handed down by Justice Lee on 24 November 1998 which recognised that the Miriuwung, Gajerrong and Kija people were the Traditional Owners of the land claimed.  The determination also found that native title rights had survived through to the present, in areas where they had not been previously extinguished.  

Justice Lee’s determination was appealed to the Full Court of the Federal Court, and then to the High Court.  The High Court, On August 8, 2002 handed down its decision to send the claim back to the Federal Court for a final determination.

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 Miriuwung Gajerrong #4 claim – how native title should be resolved:

For technical reasons, the MG #2 claim was re-lodged in June 2004 and renamed Miriuwung Gajerrong #4, or MG #4 (the MG #3 claim is in the Northern Territory).  The MG #4 claim covers almost 7,000 square kilometres of land including pastoral leases and reserves in the north east Kimberley. The pastoral leases are the Carlton Hills Station, Ivanhoe Station and the West Australian side of the Rosewood Station.

Negotiations for resolution of the MG #4 claim were deferred pending the completion of discussions regarding the expansion of the Ord Irrigation Scheme Project, known as Ord Stage 2.  These negotiations were completed in October 2005 when a 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. An agreement was reached in October 2006 paving the way for a native title consent determination. It took less than 12 months of negotiations to resolve the final chapter of the MG native title claims. 

These negotiations were able to be conducted so smoothly and in a relatively short period of time, in part, because of the following:

Native Title rights and the MG #4 dermination:

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:

  1.  the right to access, live and camp on the land, and the right to erect temporary structures and light camp fires;
  2.  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;
  3. the right to engage in cultural activities and protect places of cultural significance;
  4. the right to make decisions about how the native title holders will use the land in accordance with traditional law and custom; and
  5. the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

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.


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