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After almost 10 years of court cases and negotiation the Miriuwung and Gajerrong peoples of Western Australia and the Northern Territory have today reached agreement on where native title exists in their traditional country in northern Australia.
President of the National Native Title Tribunal, Mr Graeme Neate, welcomed the consent determination - handed down by the Full Federal Court at a ceremony in Kununurra, WA today — and said it ‘demonstrated the traditional owners' persistence to have their native title rights recognised and the willingness of other parties to recognise those rights.
‘This determination follows almost 10 years of hard fought court battles that came at an enormous human and financial cost,’ Mr Neate said. ‘The case raised numerous legal questions that were answered by the High Court along the way. It is fitting that the final stage was the result of a negotiated agreement between the key parties. This agreement should pave the way for other native title agreements in this state. It builds on the legal certainty created by the landmark High Court decision in this case.’
The Miriuwung and Gajerrong peoples lodged their native title claim with the Tribunal in April 1994, seeking recognition of their traditional rights over an area of about 8,000 square kilometres partly in the East Kimberley region of WA and partly in the Northern Territory. The claimed area covered the Ord River Irrigation Area, Lake Argyle, Lake Kununurra, the Glen Hill pastoral lease, land subject to mining tenements, part of the Argyle diamond mine and the Keep River and Mirima national parks.
After mediation between the numerous parties to the claim proved unsuccessful, it was referred to the Federal Court in 1995. Eventually, it became known as the Ward (Ward v Western Australia) case, named after one of the lead claimants Mr Ben Ward.
After one of the longest Federal Court hearings (83 days), Justice Lee found in November 1998 that the Miriuwung and Gajerrong peoples, as a community, held native title over most of the claimed area. He said their native title arose from their significant connection to the country and that native title rights coexisted with other non-native title rights in the area.
The State of Western Australia, the Northern Territory Government, Argyle Diamonds Pty Ltd, two graziers and a group with business interests in the determination area appealed against various aspects of Justice Lee's decision. In March 2000, a Full Bench of the Federal Court partially overturned Justice Lee's decision, challenging his findings on the nature of native title and the way it may be extinguished. This resulted in a major reduction in the area over which native title was recognised.
Various parties sought special leave to appeal that decision to the High Court. Leave was granted. In August 2002 the High Court handed down its final decision making it clear that certain interests in land completely extinguish native title and that the Act allows for partial extinguishment of native title. It confirmed that the Native Title Act is the primary instrument for determining where native exists.
The High Court referred aspects of the case back to the Federal Court for further hearing and determination. The parties have been negotiating about these matters since then.
With the Full Bench of the Federal Court ratifying the consent determination today and settling aspects of law over the parts of the claim in the Northern Territory, all matters have now been resolved and an agreed outcome has been achieved.
‘Today's agreement highlights the enormous costs of litigation and further demonstrates that negotiation is the most effective approach to resolving native title issues,’ Mr Neate said. ‘The Tribunal congratulates all parties to this agreement for their persistence and commitment to concluding the process through negotiation and agreement.’
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