BY SEAN MARTIN-IVERSON
PERTH An August 8 High Court ruling on the Miriuwung and Gajerrong people's native title claim to their land in east Kimberley acknowledged that they retain limited traditional ownership rights.
The ruling is significant because it takes into account federal and WA legislation passed to roll back native title rights.
The Miriuwung and Gajerrong people have been seeking legal recognition of their rights to a 7900 square kilometre region since 1994. The High Court ruling overturned a previous Federal Court ruling that the native title rights of the Miriuwung-Gajerrong had been completely extinguished. However, the High Court did not support any "exclusive" rights over land or water for the traditional owners.
While superficially supporting the case that native title rights can co-exist with pastoral and mining leases, in practical terms the ruling excludes traditional owners from exercising significant land-use or ownership rights in these circumstances.
The High Court found that it is possible for native title rights to be "partially extinguished", but did not make clear what rights are associated with such partial ownership. The interests of pastoralists will prevail over those of the traditional owners in the event of a conflict.
While the court ruled that mining leases do not necessarily extinguish native title, all Indigenous rights over minerals or petroleum have been denied. Furthermore, the High Court specifically ruled that native title has been fully extinguished over the site of Rio Tinto's Argyle Diamond Mine.
Miriuwung-Gajerrong elder and chief claimant Ben Ward expressed frustration with the vague ruling, but stated that he will not pursue any more legal action.
Not surprisingly, the mining industry, the WA Labor government and Prime Minister John Howard all welcomed the judgement. However, the Pastoralists and Graziers Association's president Barry Court expressed his disappointment that a shred of native title still applied. "We had hoped for extinguishment of native title", he moaned.
WA's political and business elite have expressed their preference for native title agreements achieved through one-sided negotiations within a framework in which real Aboriginal land rights have already been ruled out.
According to WA Premier Geoff Gallop, "The lesson for all of us is that mediation, rather than litigation, is often the best option". This was put more bluntly by the West Australian's August 12 editorial, headlined "End native title court actions".
While welcoming the High Court's limited recognition of Miriuwung-Gajerrong people's native title rights, Wayne Bergmann, executive director of the Kimberley Land Council, said, "Our first preference has always been for governments to sit down and talk to us, and to negotiate real and meaningful agreements that respect the rights and interests of the Aboriginal traditional owners along with those who want to use the land.
"The principle of co-existence was established in the High Court's 1996 Wik judgement [which recognised native title rights]. That is the principle on which we must move forward... It is not good enough to reduce the principle of co-existence to small-minded arguments about circumscribed access and fences. This will never be acceptable to our people.
"We are the original owners of this country and we must be recognised as such. We are also Australian citizens and we need to be able to participate in the economic development of our region", Bergman stated.
According to the Western Australian Aboriginal Native Title Working Group (WANTWG), the onus is now on the state and federal governments and industry to recognise the reality of native title and to negotiate to achieve real outcomes.
"The court's recognition that pastoral and mining leases do not extinguish, and co-exist with, native title has widespread ramifications, as the vast majority of native title claims in WA are affected by pastoral or mining leases", said WANTWG spokesperson Glen Kelly.
Goldfields Land and Sea Council director Brian Wyatt welcomed the High Court's ruling as a "major step forward in cementing the native title rights of Indigenous people and a strong pointer to negotiated settlements".
"The decision is a clarion call to industry to reach agreements with native title claimants instead of continuing to pursue expensive and time-wasting counter claims in the courts... The day has arrived when developers must meet Indigenous people as equals to negotiate any compromise to their rights that developers might be seeking", Wyatt said.
From Green Left Weekly, August 21, 2002.
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