FEDERAL COURT OF AUSTRALIA

Dann on behalf of the Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867

ORDERS

THE COURT NOTES THAT:

A.    On 19 October 2017, the Hon Justice Griffiths partially determined the Wajarri Yamatji #1 Application (WAD 6033 of 1998), known as ʻWajarri Yamatji (Part A)ʼ.

B.    On 23 April 2018, the Hon Justice Griffiths also partially determined the Wajarri Yamatji #1 and #2 Applications (WAD 382 of 2017) known as ‘Wajarri Yamatji (Part B)’.

C.    On 7 December 2018, the Hon Justice Griffiths determined the Wajarri Yamatji #4 Application (WAD 44 of 2018) and Wajarri Yamatji #5 Application (WAD 157 of 2018) (which related to land and waters within the Wajarri Yamatji #1 and #2 Applications) known as ‘Wajarri Yamatji (Part C)’.

D.    The Applicant has made a new native title determination application WAD 278 of 2018 (“Wajarri Yamatji (Byro Plains) Application”) which covers an area of land and waters abutting, and immediately to the west of, the Wajarri Yamatji (Part A) determination area. The Applicant has made a further new native title determination application WAD373 of 2018 (“Wajarri Yamatji #6 Application”) covering part of the area covered by the balance of the Wajarri Yamatji #1 Application and the Wajarri Yamatji #2 Application. The Wajarri Yamatji #6 Application was made to take advantage of section 47B of the Native Title Act 1993 (Cth) (Native Title Act). The Wajarri Yamatji (Byro Plains) Application and the Wajarri Yamatji #6 Application relate to an area of land and waters the subject of the attached minute of proposed consent determination (“the Part D Determination”).

E.    The Applicant in both proceedings and the State of Western Australia have reached an agreement as to the terms of a determination of native title which they submit should be made in relation to the whole of the land and waters covered by the Wajarri Yamatji (Byro Plains) Application and the Wajarri Yamatji #6 Application (“the Part D Determination Area”). The external boundaries of the Part D Determination Area are described in Schedule One of the Part D Determination.

F.    Pursuant to sub-section 87(1) of the Native Title Act the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached.

G.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act.

H.    Having regard to the requirements in sections 67 and 68 of the Native Title Act orders are also sought dismissing the Wajarri Yamatji #1 Application and the Wajarri Yamatji #2 Application to the extent that it covers the Part D Determination Area.

I.    The parties acknowledge that the effect of the making of the Part D Determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Part D Determination Area as set out in the Part D Determination.

J.    Pursuant to sub-section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Part D Determination Area without holding a hearing.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.    Proceedings WAD 28 of 2019 and WAD 382 of 2017 be dismissed to the extent that they cover the area of proceeding WAD 373 of 2018.

2.    Pursuant to sub-section 67(1) of the Native Title Act, proceedings WAD 278 of 2018 and WAD 373 of 2018 be determined together.

3.    In relation to the Part D Determination Area, there be a determination of native title in WAD 278 of 2018 and WAD 373 of 2018 as provided for in Attachment A.

4.    In respect of the Part D Determination Area the Wajarri Yamaji Aboriginal Corporation (ICN 7878) shall hold the determined native title in trust for the Wajarri Yamatji People pursuant to section 56(2)(b) of the Native Title Act.

5.    There be no order as to costs.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s.225 Native Title Act)

1.    Subject to paragraph 2, native title exists in the Part D Determination Area in the manner set out in paragraphs 4 and 5 of this determination.

2.    Native title does not exist in those parts of the Part D Determination Area the subject of the interests identified in Schedule Four.

Native title holders (s.225(a) Native Title Act)

3.    The native title in the Part D Determination Area is held by the Wajarri Yamatji. The Wajarri Yamatji are the people referred to in Schedule Seven.

The nature and extent of native title rights and interests and exclusiveness of native title (ss.225(b) and 225(e) Native Title Act)

Exclusive rights and interests

4.    Subject to paragraphs 2, 6 and 10, the nature and extent of the native title rights and interests in relation to the Exclusive Area is that they confer the right to possession, occupation, use and enjoyment on the Wajarri Yamatji to the exclusion of all others.

Non-exclusive rights and interests

5.    Subject to paragraphs 2, 6, 7 and 10, the nature and extent of the native title rights and interests in relation to the Non- Exclusive Area are that they confer the following non-exclusive rights on the Wajarri Yamatji, including the right to conduct activities necessary to give effect to them:

(a)    the right to enter and remain on the land, camp, erect temporary shelters, and travel over and visit any part of the land and waters of the Non- Exclusive Area;

(b)    the right to hunt, fish, gather, take and use the resources of the land;

(c)    the right to take and use water;

(d)    the right to engage in cultural activities on the Non- Exclusive Area, including:

(i)    visiting places of cultural or spiritual importance and maintaining, caring for, and protecting those places by carrying out activities to preserve their physical or spiritual integrity; and

(ii)    conducting and participating in ceremony and ritual, and the transmission of cultural knowledge;

(e)    the right to light contained and controlled fires for domestic, cultural and spiritual purposes but not for the clearance of vegetation;

(f)    the right to conduct burials and burial rites and other ceremonies in relation to death; and

(g)    the right to be accompanied on to the Non- Exclusive Area by those persons who, though not native title holders, are:

(i)    spouses, partners, parents or children of the native title holders;

(ii)    people who are members of the immediate family of a spouse, partner, parent or child of a native title holder; or

(iii)    people entering the Non- Exclusive Area in connection with the performance of ceremonies or cultural activities in accordance with traditional laws and customs.

Qualifications on the native title rights and interests

6.    The native title rights and interests set out in paragraph 4 and 5:

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Wajarri Yamatji; and

(b)    do not confer any rights in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA);

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    water captured by the holders of the Other Interests pursuant to those Other Interests.

7.    The native title rights and interests set out in paragraph 5 do not confer:

(a)    possession, occupation, use and enjoyment on the Wajarri Yamatji to the exclusion of all others; or

(b)    a right to control the access to, or use of, the land and waters of the Part D Determination Area or its resources.

Areas to which ss.47, 47A and 47B of the Native Title Act apply

8.    Section 47B of the Native Title Act applies to disregard any prior extinguishment in relation to the areas described in Schedule Five.

The nature and extent of any other interests

9.    The nature and extent of the Other Interests are described in Schedule Six.

Relationship between native title rights and other interests

10.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Liberty to Apply

11.    The parties have liberty to apply to establish the precise location and boundaries of any public works and adjacent land and waters identified in relation to any part or parts of the Part D Determination Area referred to in Schedule Four of this determination.

Definitions and interpretation

12.    In this determination, unless the contrary intention appears:

“Part D Determination Area” means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

“Exclusive Area” means those lands and waters of the Part D Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps in Schedule Two);

“land” has the same meaning as in the Native Title Act and, for the avoidance of doubt, includes any natural collection of water found on the land which does not fall within the definition of “waters”;

“Non- Exclusive Area” means those lands and waters of the Part D Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

“Native Title Act” means the Native Title Act 1993 (Cth);

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Part D Determination Area described in Schedule Six and referred to in paragraph 9;

“resources” means flora, fauna, and other natural resources such as charcoal, stone, soil, wood, resin and ochre (except, for the avoidance of doubt, ochres for use in the manufacture of porcelain, fine pottery or pigments which are minerals pursuant the Mining Act 1904 (WA) (repealed));

“waters” has the same meaning as in the Native Title Act.

13.    In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six and the area as depicted on the maps at Schedule Two the written description prevails.

SCHEDULE ONE

PART D DETERMINATION AREA

The Part D Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description:

Area 1

All those lands and waters comprising of Unallocated Crown Land being Lot 60 as shown on Deposited Plan 194660 that is wholly within the external boundary of Exploration Licence E09/2179 (1st August 2017).

Area 2

All those lands and waters commencing at an intersection of a northwestern corner of an eastern boundary of the westernmost severance of Native Title Determination WAD28/2019 Wajarri Yamatji Part B (WCD2018/002) and an eastern boundary of Native Title Determination WAD6236/1998 Malgana Part A (WCD2018/012); Then extending generally northeasterly and generally northwesterly along the boundary of that latter native title determination to the intersection with the centerline of Wooramel River at Longitude 115.362930° East; Then generally southeasterly and generally northeasterly along the centerline of that river to a northwesterly corner of a western boundary of Native Title Determination WAD28/2019 Wajarri Yamatji Part A (WCD2017/007); Then southeasterly and southerly along the western boundary of that native title determination to the intersection with a northern boundary of Native Title Determination WAD28/2019 Wajarri Yamatji Part B (WCD2018/002); Then westerly, southerly and again westerly along the boundaries of that native title determination back to the commencement point.

Note:       Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 04th December 2018.

Mining Tenements sourced from Department of Mines, Industry Regulation and Safety boundaries as at 1st August 2017.

Topographical data sourced from the PSMA Dataset dated 07th September 2017.

For the avoidance of doubt the application excludes any land and waters already claimed by:

•    Native Title Determination WAD6236/1998 Malgana Part A (WCD2018/012) as Determined in the Federal Court on the 4th December 2018.

•    Native Title Determination WAD28/2019 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19th October 2017.

•    Native Title Determination WAD28/2019 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23rd April 2018.

•    Native Title Determination Application WAD22/2019 Gnulli (WC1997/028).

•    Native Title Determination Application WAD366/2018 Gnulli 2 (WC2018/015).

Datum:    Geocentric Datum of Australia 1994 (GDA94)

Prepared by: Graphic Services (Landgate) 13th March 2019

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE TWO

MAPS OF THE PART D DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE AREA (Paragraph 4)

Native title comprises the rights and interests set out in paragraph 4 of the Part D Determination in relation to the following land and waters (which area is shown as shaded in green on the maps in Schedule Two):

That portion of UCL 336 subject to Exploration Licence E09/2179 (as at 1 August 2017) excluding any area subject to:

    Native Title Determination WAD6033/1998 Wajarri Yamatji (WCD2017/007) as determined in the Federal Court on 19 October 2017; and

    Native    Title Determination WAD6033/1998, WAD382/2017 Wajarri Yamatji Part B (WCD2018/002) as determined in the Federal Court on 23 April 2018.

SCHEDULE FOUR

AREAS WHERE NATIVE TITLE DOES NOT EXIST (Paragraph 2)

Native title does not exist in relation to land and waters the subject of the following interests within (or partly within) the Part D Determination Area.

1.    Roads

The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)):

2.    Public Works

Any public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or subsection 23C(2) of the Native Title Act applies.

SCHEDULE FIVE

AREAS TO WHICH SECTION 47B OF THE NATIVE TITLE ACT APPLY (Paragraph 8)

SECTION 47B AREAS:

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest is to be disregarded:

SCHEDULE SIX

OTHER INTERESTS (Paragraph 9)

The nature and extent of the Other Interests in relation to the Part D Determination Area as at the date of this determination are:

1.    Pastoral Leases

The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

2.    Mining Tenements

The following mining tenements and the rights and interests of the holders from time to time of those tenements:

3.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Schedule Six, but subject to clause 3(b) below, the rights of the holders from time to time of a mining tenement referred to in clause 2 of Schedule Six to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Part D Determination Area as necessary to have access to the area the subject of the mining tenement for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in clause 3(a) above allows any upgrade, extension, widening or other improvement to the road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to its use pursuant to clause 3(a).

4.    Other

The following rights and interests:

(a)    Rights and interests, including licences and permits, granted by the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and any regulations made pursuant to such legislation.

(b)    Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including but not limited to, the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

(c)    Rights and interests of members of the public arising under the common law, including but not limited to:

(i)    the public right to fish;

(ii)    the public right to navigate; and

(iii)    the right of any person to use and enjoy any roads in the Part D Determination Area (subject to the laws of the State) over which, as at the date of this determination, members of the public have a right of access under the common law;

(d)    The right to access the Part D Determination Area by:

(i)    an employee, agent or instrumentality of the State;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any local government authority,

as required in the performance of his or her statutory or common law duty.

(e)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(i)    as the owner or operator of telecommunications facilities within the Part D Determination Area;

(ii)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

                              (i)    to inspect land;

                              (ii)    to install and operate telecommunications facilities; and

                              (iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(iii)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Part D Determination Area in performance of their duties; and

(iv)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Part D Determination Area.

(f)    So far as confirmed pursuant to sub-section 212(2) of the Native Title Act and section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Part D Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways; and

(iii)    areas that were public places at the end of 31 December 1993.

(g)    Any other:

(i)    legal or equitable estate or interest in the land or waters; or

(ii)    any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

                          (A)     the land or waters; or

                          (B)     an estate or interest in the land or waters; or

(iii)    restriction on the use of the land or waters, whether or not annexed to other land or waters.

SCHEDULE SEVEN

NATIVE TITLE HOLDERS (Paragraph 3)

The Wajarri Yamatji means those persons who:

(a)    are descended from one or more of the following ancestors:

1.    Kia (also known as Murgoo Fred), Innie (also known as Annie), Rosie English (also known as Yangudgi), Badja and Kadjba (siblings)

2.    Baljarba (also known as Jim Crow) (married Badja)

3.    Mogagee (also known as Daniel Dann) (married Annie)

4.    Jinatharra (also known as Bobby Clark)

5.    Tommy Glass

6.    Wannanu (also known as Waurene Porter)

7.    Billelia (also known as Nellie) (mother of Fred Simpson)

8.    English Edwards and Mary Jane (also known as Mununmarie)

9.    Yanbaree

10.    Kitty Gilbert

11.    Dija

12.    Mary from Twin Peaks

13.    Emily (mother of Lizzie Worth)

14.    Ivy, Robby and Simon Walgar (siblings)

15.    Tommy and Fanny Jones

16.    Frances, Tiger, unnamed and Boomer Ryan (siblings)

17.    Molly (married unnamed Ryan)

18.    Caroline (mother of Lena Sullivan)

19.    Budjeeyona and Jinny

20.    Jinty (also known as Cindy Tyson nee Sullivan)

21.    Amy Porter and Jigaroo

22.    Polly Parker

23.    Frank Franklin (also known as Punch)

24.    Charlie Dongara

25.    Eniwani Jimmy and Jenny (also known as Jinnie)

26.    William Jones and Sarah

27.    Julia (mother of Cecil Lane)

28.    Jimmy and Judy

29.    Bunnabuddy (also known as Daisy) and Molly (siblings)

30.    Jibija (also known as Rosie Jones)

31.    Moweramarra (also known as Caroline) (mother of Ruby Nairn)

32.    Nyuga and Isaac

33.    Jane Towser

34.    Coolya (also known as Judy)

35.    Jubyjub (also known as Janie Narry)

36.    Polly (mother of Paddy Donnelly)

37.    Angelina (mother of Alice Darby)

38.    Topsy (mother of Mary Wheelock)

where descent can be either by birth or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji;

(b)    identify themselves as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji; and

(c)    are accepted as Wajarri Yamatji in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    These reasons for judgment relate to a proposed consent determination filed on 18 June 2021. The consent determination relates to two applications made pursuant to s 61 of the Native Title Act 1993 (Cth) (NT Act) for a determination of native title in WAD 278 of 2018 (Wajarri Yamatji (Byro Plains) Application) and WAD 373 of 2018 (Wajarri Yamatji #6 Application). This proposed consent determination was filed alongside another proposed consent determination in related proceedings: see Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868) and an interlocutory application seeking to amend three previous conditional determinations of native title: see Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 (Hamlett v WA (No 3)).

2    These proceedings have a lengthy and complicated procedural history, which is desirable to outline.

The procedural history of the Wajarri Yamatji applications

3    The Wajarri Yamatji (Byro Plains) and #6 Applications are two of eight Wajarri Yamatji applications that are currently before the Court. Further, the Court has made three conditional determinations of native title in respect of some of those Wajarri Yamatji applications. Given the complex history of these matters a brief description of the relevant proceedings is set out below.

4    Native title determination application WAD 28 of 2019 (formerly WAD 6033 of 1998) (Wajarri Yamatji #1 Application) is located in the Murchison and Gascoyne regions of Western Australia. The present Wajarri Yamatji #1 Application is the result of a combination between 1999 and 2005 of a number of earlier native title determination applications, the earliest being filed in 1996. The Wajarri Yamatji #1 Application covers the majority of the traditional land and waters of the Wajarri Yamatji People.

5    The Wajarri Yamatji #2 Application was filed in the Federal Court on 1 August 2017. The Wajarri Yamatji #2 Application covers various pastoral leases, reserves and areas of unallocated Crown land within the Wajarri Yamatji #1 Application. It was lodged to seek the benefit of the application of ss 47, 47A and/or 47B of the NT Act.

6    The Wajarri Yamatji #2 Application was notified by the Native Title Registrar pursuant to s 66 of the NT Act on 10 August 2017. The notification period ended on 17 January 2018.

7    On 19 October 2017, the majority of the Wajarri Yamatji #1 Application was the subject of a conditional determination of native title made under s 87A of the NT Act (Wajarri Yamatji Part A Determination): see I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (IS v WA). The Wajarri Yamatji Part A Determination covered an area of approximately 68,743 square kilometres of land and waters.

8    The Wajarri Yamatji Part A Determination did not include those land and waters of the Wajarri Yamatji #1 Application that were covered by the Wajarri Yamatji #2 Application or which were overlapped by native title determination applications WAD 21 of 2019 (formerly WAD 6119 of 1998) (Mullewa Wadjari Application) and WAD 31 of 2019 (formerly WAD 6193 of 1998) (Widi Mob Application).

9    Native title determination application WAD 32 of 2018 (Wajarri Yamatji #3 Application) was filed in the Federal Court on 5 February 2018. The Wajarri Yamatji #3 Application covered various areas of unallocated Crown land within that portion of the Wajarri Yamatji #1 Application which was overlapped by the Mullewa Wadjari Application. It was lodged to seek the benefit of the application of s 47B of the NT Act.

10    Native title application WAD 44 of 2018 (Wajarri Yamatji #4 Application) was filed in the Federal Court on 9 February 2018. Further, on 20 April 2018, native title application WAD 157 of 2018 (Wajarri Yamatji #5 Application) was filed.

11    Both the Wajarri Yamatji #4 and #5 Applications are located within the external boundary of the Wajarri Yamatji #1 and #2 Applications. They cover certain areas of unallocated Crown land that were subject to exploration licences granted under the Mining Act 1978 (WA) at the time the Wajarri Yamatji #2 Application was lodged (but which had subsequently been surrendered or had expired). They were lodged to seek the benefit of the application of s 47B of the NT Act.

12    In particular, the Wajarri Yamatji #4 and #5 Applications were made due to uncertainty in the law at the time as to whether petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and mineral exploration licences granted under the Mining Act fell within the meaning of the word “lease” in s 47B(1)(b)(i) of the NT Act. Relevantly, the Full Court of the Federal Court in BHP Billiton Nickel West Pty Ltd v KN (dec’d) (Tjiwarl and Tjiwarl #2) [2018] FCAFC 8; 351 ALR 491 had held that s 47B(2) of the NT Act could not apply to an area of unallocated Crown land that was covered by an exploration licence granted under the Mining Act.

13    This decision was subsequently appealed and overturned by the High Court on 17 April 2019. Relevantly, the High Court held that the presence of exploration or prospecting licences or permits did not prevent the disregarding of extinguishment under s 47B(2) of the NT Act in respect of land or waters covered by such licences or permits: see Tjungarrayi v Western Australia [2019] HCA 12; 366 ALR 603.

14    On 23 April 2018, a further portion of the Wajarri Yamatji #1 and #2 Applications was the subject of a conditional determination of native title made under s 87A of the NT Act (Wajarri Yamatji Part B Determination): see Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 (Hamlett v WA).

15    The Wajarri Yamatji Part B Determination did not include the following land and waters of the Wajarri Yamatji #1 and #2 Applications:

(1)    any areas subject to overlapping native title determination applications, including Wajarri Yamatji #3, #4 and #5 Applications, the Mullewa Wadjari Application and the Widi Mob Application;

(2)    any area of unallocated Crown land that was covered by the grant of an exploration licence or a prospecting licence granted under the Mining Act when the Wajarri Yamatji #2 Application was made (due to the legal uncertainty discussed at [12] above); and

(3)    a very small area of unallocated Crown land (less than one square kilometre) that formed part of a much larger contiguous area of unallocated Crown land located within the area overlapped by the Mullewa Wadjari Application.

16    On 25 June 2018, native title determination application WAD 278 of 2017 (Wajarri Yamatji (Byro Plains) Application) was filed in the Federal Court. The Wajarri Yamatji (Byro Plains) Application covers an area outside of the Wajarri Yamatji #1 Application, but immediately adjacent to the western boundary of that application.

17    On 21 August 2018, native title determination application WAD 373 of 2018 (Wajarri Yamatji #6 Application) was filed in the Federal Court. The Wajarri Yamatji #6 Application falls within the external boundaries of both the Wajarri Yamatji #1 and #2 Applications. Like the Wajarri Yamatji #4 and #5 Applications it was made in relation to an area of unallocated Crown land that was subject to an exploration licence granted under the Mining Act when the Wajarri Yamatji #2 Application was made (but which had subsequently been surrendered or had expired). It was lodged to seek the benefit of the application of s 47B of the NT Act.

18    On 7 December 2018, the Wajarri Yamatji #4 and #5 Applications were the subject of a conditional determination of native title made under section 87 of the NT Act (Wajarri Yamatji Part C Determination): see Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945 (Egan v WA).

19    On 19 December 2018 native title determination application WAD 611 of 2018 (Wajarri Yamatji #7 Application), was filed in the Federal Court. It covers an area of unallocated Crown land within the external boundaries of the Wajarri Yamatji #1 Application, the Mullewa Wadjari Application and the Wajarri Yamatji #3 Application. Wajarri Yamatji #7 Application was lodged in order to seek the benefit of the application of s 47B of the NT Act in relation to an area of unallocated Crown land that was subject to an exploration licence granted under the Mining Act at the time when the Wajarri Yamatji #3 Application was made.

Interlocutory application

20    By an interlocutory application dated 18 June 2021, the applicants in Wajarri Yamatji #1, #2, #4 and #5 Applications sought the Court’s approval to the making of amendments to the Wajarri Yamatji Part A, B and C Determinations. This included amending the list of apical ancestors so as to add three additional persons. Those matters are dealt with in separate reasons for judgment (see Hamlett v WA (No 3)).

History of the Minute of Consent Determination filed in these Proceedings

21    On 29 March 2019 the applicants in Wajarri Yamatji (Byro Plains) and #6 Applications and the first respondent (being all of the parties to those applications) filed a proposed Minute of Proposed Consent Determination of Native Title and Joint Submissions in respect of those application areas.

22    On 10 April 2019, the Court wrote to the parties to the Wajarri Yamatji (Byro Plains) and #6 Applications and sought a further submission from the parties in relation to the authority of the Working Party to authorise that making of the proposed consent determination on behalf of the applicants to the Wajarri Yamatji (Byro Plains) and #6 Applications.

23    On 23 April 2019, the solicitors for the Wajarri Yamatji (Byro Plains) and #6 Applicants wrote to the Court on behalf of the applicants, advising that the applicants had referred the issue of the authorisation of the proposed determination to a claim group meeting to be held on 4 May 2019. The letter also noted that the applicants intended to seek instructions at the meeting that may otherwise affect the proposed determination.

24    On 17 May 2019, the solicitors for the Wajarri Yamatji (Byro Plains) and #6 Applicants wrote to the Court advising that, in light of instructions received at the claim group meeting held on 4 May 2019, it would be necessary to have without prejudice communications with third parties and that no determination should be made at present.

25    The instructions received gave rise to new issues, namely the need to amend the claim group description in the proposed determination (together with the description of the native title holders in the Wajarri Yamatji Parts A, B and C Determinations) to include further additional apical ancestors.

26    Because of the instructions received by the applicants at the claim group meeting on 4 May 2019, the applicants in the Wajarri Yamatji (Byro Plains) and #6 Applications and the first respondent sought leave to uplift and remove the Minute of Proposed Consent Determination of Native Title and the Joint Submissions filed on 29 March 2019 from the Registry in accordance with r 2.31 of the Federal Court Rules 2011 (Cth). Leave was granted by the Court pursuant to orders made by Judicial Registrar Daniel on 3 October 2019.

27    Subsequently, the issues regarding the identification and inclusion of additional Wajarri Yamatji apical ancestors have been resolved (as discussed further at [31]-[34] below), leading to the filing of the current Minute of Proposed Consent Determination and Joint Submissions filed on 18 June 2021. Due to the complex history of the matters, the determination of the Wajarri Yamatji (Byro Plains) and #6 Applications and the determination of the remaining area of the Wajarri Yamatji #2 Application have been prepared and filed as separate Part D and Part E minutes of proposed consent determination.

Assessment of Connection

28    As set out at [30]-[31] of IS v WA, between 10 December 2010 and 12 September 2017, the Yamatji Marlpa Aboriginal Corporation (YMAC), on behalf of the Wajarri Yamatji #1 Applicant, provided the first respondent with various materials, on a without prejudice basis, in support of the Wajarri Yamatji connection with the Wajarri Yamatji #1 claim area. Further, as discussed at [12] of Hamlett v WA, in addition to that material, YMAC also provided certain affidavits in support of the Wajarri Yamatji Part B Determination.

29    The material provided in support of the Wajarri Yamatji Part A and Part B Determinations formed the basis of the assessment of connection undertaken in relation to the Wajarri Yamatji Part D Determination.

30    The Wajarri Yamatji Applicants also provided the first respondent with, and the first respondent has undertaken an assessment of, the following material in support of the inclusion of three additional ancestors:

(a)    the Supplementary Anthropology Report for Polly (mother of Paddy Donnelly) prepared by YMAC anthropologist Luke May;

(b)    the Supplementary Anthropology Report for Angelina (mother of Alice Darby) prepared for YMAC by consultant anthropologist Sarah Bell; and

(c)    the Supplementary Anthropology Report for Topsy (mother of Mary Wheelock) prepared by YMAC anthropologist Luke May.

The native title holders, Determination Area and connection to country

Description of the native title holders

31    Schedule A of the Wajarri Yamatji (Byro Plains) and #6 Applications states that the group on whose behalf the applications are made consists of the descendants of forty-seven listed apical ancestors.

32    During the course of consent determination negotiations, the applicant and the first respondent settled on the description of native title holders in Schedule Seven of the Minute, having satisfied themselves that the description accurately reflects the position as described in the connection materials and captures all the native title holders.

33    The description of the native title holders in the Minute is similar to the description in the Wajarri Yamatji Parts A, B and C Determinations, but contains three additional apical ancestors which have been identified as a result of additional research conducted by the Wajarri Yamatji Applicants, being: Polly (mother of Paddy Donnelly); Angelina (mother of Alice Darby); and Topsy (mother of Mary Wheelock).

34    As noted above, by way of an interlocutory application dated 18 June 2021, the Wajarri Yamatji #1, #2, #4 and #5 Applicants sought orders to amend the description of the Native Title Holders in the Wajarri Yamatji Parts A, B and C Determinations to also include three additional apical ancestors (such that the native title holders proposed in the Minute will ultimately be consistent with the Wajarri Yamatji Parts A, B and C Determinations).

35    The circumstances in which these three additional apical ancestors were identified and the basis upon which it was said that they should be included as native title holders is explained in an affidavit dated 18 June 2021 by Pauline Gartlan (Gartlan affidavit). The basis upon which the other apical ancestors and description of the native title holders was reached is discussed in IS v WA at [32]-[40]. The amendments sought in the interlocutory application were made by the Court (see Hamlett v WA (No 3)).

Proposed Determination Area

36    The Wajarri Yamatji (Byro Plains) Application covers approximately 967.6 square kilometres of land and waters abutting, and immediately to the west of, the Wajarri Yamatji Part A Determination. The Wajarri Yamatji #6 Application covers approximately 13.4 square kilometres of land and waters, and is located within the external boundary of the Wajarri Yamatji Part A Determination.

37    The external boundaries of the Wajarri Yamatji Part D Determination Area are described in Schedule One of the Minute and shown on the maps in Schedule Two of the Minute. The Wajarri Yamatji Part D Determination Area covers two discrete areas. Area 1 (as described in Schedule One) comprises the area of the Wajarri Yamatji #6 Application, being an area of unallocated Crown land. Area 2 comprises the area of the Wajarri Yamatji (Byro Plains) Application, being an area of pastoral lease and the Byro-Woodleigh Road.

38    The Wajarri Yamatji #6 Application is entirely overlapped by the larger Wajarri Yamatji #1 and #2 Applications. The Wajarri Yamatji Part D Determination orders provide that the Wajarri Yamatji #1 Application and Wajarri Yamatji #2 Application are to be dismissed to the extent that they overlap the Wajarri Yamatji #6 Application.

Connection to country

39    The connection of the Wajarri Yamatji to Wajarri Yamatji country generally (and the Wajarri Yamatji Part B Determination Area specifically) is described in Hamlett v WA at [22]-[49].

40    That description applies equally to this Wajarri Yamatji Part D Determination Area. In particular, under Wajarri Yamatji traditional laws and customs, the Wajarri Yamatji Part D Determination Area is, and has been since prior to sovereignty, the traditional country of the Wajarri Yamatji.

41    Further, the connection materials reveal that the Wajarri Yamatji possess rights and interests under traditional laws and customs that may be recognised as the right to possession, occupation, use and enjoyment to the exclusion of all others in relation to part of the Wajarri Yamatji Part D Determination Area (the Exclusive Area). The Exclusive Area is described in Schedule Three of the Wajarri Yamatji Part D Determination. The requirements of s 47B of the NT Act are satisfied in relation to the Exclusive Area, with the result that the right to possession, occupation, use and enjoyment to the exclusion of all others can be recognised in that area.

Prescribed Body Corporate

42    Contemporaneously with seeking an order pursuant to section 87 for this Part D Determination to be made, the Wajarri Yamatji (Byro Plains) and #6 Applicants are nominating a Prescribed Body Corporate (PBC) under section 56 of the NT Act to hold their native title in trust.

43    The circumstances regarding the nomination of Wajarri Yamaji Aboriginal Corporation as the PBC for this Part D Determination are set out in the Gartlan Affidavit referred to at [35] above.

Authorisation of the applicants

44    Section 61(1) of the NT Act permits the making of a native title determination application by those persons who are authorised “by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed …”.

45    Further, the NT Act vests in the persons comprising the applicant the carriage of a native title determination application. Section 62A of the NT Act relevantly provides that in the case of a claimant application, “the applicant may deal with all matters arising under this Act in relation to the application”. This includes consenting to a determination of native title rights and interests pursuant to s 87 of the NT Act.

46    As set out in the Gartlan Affidavit, the members of the Wajarri Yamatji (Byro Plains) and #6 Applications considered the terms of the Minute at a Wajarri Yamatji community meeting on 22 March 2021 and authorised the applicants to enter into this Part D Determination. This authorisation included an agreement as to the inclusion of the three additional apical ancestors (listed at [33] above) to the description of the native title holders in Schedule Six.

Section 87 of the NT Act is satisfied

47    Section 87 of the NT Act provides that the Court may make a determination of native title by consent without holding a hearing where:

(1)    the period specified in the notice given under section 66 of the NT Act has ended (s 87(1) of the NT Act);

(2)    there is an agreement in writing for a proposed determination of native title, which has been filed in Court and signed by or on behalf of all the parties (ss 87(1)(a) and 87(1)(b) of the NT Act);

(3)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the court (s 87(1)(c) of the NT Act); and

(4)    it appears appropriate to the court to make the orders sought (ss 87(1A) and 87(2) of the NT Act).

Section 87(1): section 66 notice period expired

48    This condition is satisfied. The notification period referred to in ss 66(8) and 66(10)(c) of the NT Act has ended for the Wajarri Yamatji (Byro Plains) and #6 Applications.

Sections 87(1)(a) and 87(1)(b): Agreement in writing for a proposed determination, filed in Court and signed by all parties

49    This condition is satisfied. There is an agreement in writing, which has been filed in the Federal Court, for a proposed determination of native title, the terms of which are reflected in the Minute. That agreement has been signed by, or on behalf of, all parties to the proceeding.

Section 87(1)(c): orders consistent with the terms of the agreement are within the Court’s power

50    For the following reasons, the Court is satisfied that an order consistent with the terms of the Minute is within the Court’s power.

51    First, the Wajarri Yamatji (Byro Plains) and #6 Applications are valid.

52    Secondly, the Wajarri Yamatji (Byro Plains) and #6 Applications are for a determination of native title in relation to an area for which there is no approved determination of native title (section 13(1)(a) of the NT Act) and there remains no approved determination in relation to the area the subject of the proposed determination (section 68 of the NT Act).

53    Thirdly, there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under section 67(1) of the NT Act.

54    Fourthly, the form of the proposed determination complies with sections 94A and 225 of the NT Act.

55    Fifthly, the requirements of section 87 of the NT Act are otherwise satisfied.

Section 87(1A): order is appropriate

56    Finally, the Court must consider it is appropriate to make the determination sought by the parties as required by section 87(1A). For the following reasons, the Court finds that this condition is satisfied.

57    Subsection 87(1A) was introduced into the NT Act by the Native Title Amendment Act 2009 (Cth). Prior to the amendment of the NT Act in 2009 the requirement that the Court must consider it appropriate to make the determination sought by the parties was contained in s 87(1). Given the identical wording between s 87(1A) and the old s 87(1) in respect of this requirement, the exercise of the Court’s discretion pursuant to the s 87(1A) should be taken to import the same principles as those applying to the making of a consent determination of native title under the old s 87(1).

58    As noted by Bennett J in Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [8], the “discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the [NT Act]. That includes the resolution of native title disputes by mediation and agreement.”

59    Similarly, North J in Ward v State of Western Australia [2006] FCA 1848 at [6]-[9] observed that the NT Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation. His Honour stated at [8] that:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

60    As the terms of s 87(2) of the NT Act suggest, this does not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness in making a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [23], Hughes at [9] per Bennett J and Ward at [8] per North J.

61    Further, the requirements of s 87(2) may, and will likely, be met where the Court is satisfied that a relevant government respondent (including the first respondent), through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the government respondent relies, but it might consider that evidence for the limited purpose of being satisfied that the government respondent is acting in good faith and rationally: see Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1129; 115 FCR 109 at [29]-[30] per Emmett J and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J. As stated by Madgwick J in Clarrie Smith v State of Western Australia [2000] FCA 1249; 104 FCR 49 at [38]:

State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

62    In relation to this proceeding, the applicant and the first respondent have been legally represented throughout the negotiation process.

63    Further, the first respondent has played an active role in the negotiation of the proposed consent determination, an important factor also referred to by Emmett J in Munn at [29]. In doing so, the first respondent (acting on behalf of the community generally), having regard to the requirements of the NT Act, has satisfied itself that the determination is justified in all the circumstances.

64    The Court notes that, in the first respondent’s view, the connection materials are sufficient to demonstrate that, in respect of the Wajarri Yamatji Part D Determination Area, the Wajarri Yamatji (Byro Plains) and #6 Applications has a “credible or cogent basis”. The first respondent is satisfied that the materials presented are sufficient to establish the maintenance of connection according to traditional laws and customs in the Wajarri Yamatji Part D Determination Area.

65    The first respondent has also conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the Wajarri Yamatji Part D Determination Area, and those interests are included in the proposed determination (see Schedule Six of the Minute).

66    For these reasons, the Court is satisfied that the Minute sets out a description of the nature and extent of the native title rights and interests and the “other interests” in relation to the Wajarri Yamatji Part D Determination Area which complies with s 225 of the NT Act.

67    For these reasons, the Court is satisfied that the proposed determination should be made.

Associate:

Dated:    29 July 2021