FEDERAL COURT OF AUSTRALIA

Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868

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 Application and the Wajarri Yamatji #2 Application (WAD 382 of 2017) known as ‘Wajarri Yamatji (Part B)’. The Part B Determination Area did not cover any area of unallocated Crown land within the Wajarri Yamatji #2 Application that was covered by the grant of an exploration licence or a prospecting licence under the Mining Act 1978 (WA) when the Wajarri Yamatji #2 Application was made (1 August 2017).

C.     These areas were excluded from the Part B Determination Area as, at the date of the Part B Determination, whether or not an exploration tenement was a “lease” within the meaning in subsection 47B(1)(b)(i) of the Native Title Act 1993 (Cth) was an issue before the High Court that had not yet been heard. Accordingly it remained controversial as to whether section 47B of the Native Title Act could apply to those areas of unallocated Crown land.

D.     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) (known as ‘Wajarri Yamatji (Part C)’). Those native title determination applications fell within the external boundaries of both the Wajarri Yamatji #1 Application and Wajarri Yamatji #2 Application and were made to seek the benefit of the application of section 47B of the Native Title Act. In particular, the Wajarri Yamatji #4 and #5 Applications were made in relation to areas of unallocated Crown land within the Wajarri Yamatji #2 Application which, at the time of the making of the relevant applications, were no longer subject to the grant of an exploration licence or a prospecting licence under the Mining Act 1978 (WA).

E.     On 17 April 2019 the High Court in Tjungarrayi v Western Australia [2019] HCA 12; 366 ALR 603 held that the exploration tenements were not “leases” within the meaning of section 47B(1)(b)(i) of the Native Title Act, with the result that the exploration tenements did not disapply the application of section 47B of the Native Title Act in the area of those tenements. Accordingly, section 47B of the Native Title Act could apply in respect of the undetermined portion of the Wajarri Yamatji #2 Application.

F.     In relation to the remaining portion of the Wajarri Yamatji #2 Application, being that area not subject to the Wajarri Yamatji Part B and C Determinations or the proposed Wajarri Yamatji Part D Determination (namely the area subject to the Wajarri Yamatji #6 Application (WAD373 of 2018)) the Wajarri Yamatji #2 Applicant, the State of Western Australia and other Respondents to the proceedings (“the parties”) have reached an agreement as to the terms of a determination of native title which the parties submit should be made in relation to that area (“the Part E Determination Area”).

G.     The external boundaries of the Part E Determination Area are described in Schedule One to the Part E Determination.

H.    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.

I.     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.

J.     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 to the extent that it covers the Part E Determination Area.

K.     The parties acknowledge that the effect of the making of the Part E 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 E Determination Area as set out in the Part E Determination.

L.     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 E 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.    Proceeding WAD 28 of 2019 be dismissed to the extent that it covers the area of proceedings WAD 382 of 2017.

2.     In relation to the Part E Determination Area, there be a determination of native title in WAD 382 of 2017 as provided for in Attachment A.

3.     In respect of the Part E 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.

4.    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 E Determination Area in the manner set out in paragraph 4 of this determination.

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

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

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

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

4.    Subject to paragraphs 2, 5 and 8, the nature and extent of the native title rights and interests are that they confer the right to possession, occupation, use and enjoyment on the Wajarri Yamatji to the exclusion of all others.

Qualifications on the native title rights and interests

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

(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 exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA) as at the date of this determination; and

(c)    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.

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

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

The nature and extent of any other interests

7.    The nature and extent of the Other Interests are described in Schedule Five.

Relationship between native title rights and other interests

8.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraph 4 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

9.    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 E Determination Area referred to in Schedule Three of this determination.

Definitions and interpretation

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

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

“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 E Determination Area described in Schedule Five and referred to in paragraph 7;

“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.

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

SCHEDULE ONE

DETERMINATION AREA

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

    All that land comprising that portion of Lot 38 as shown on Deposited Plan 221065 that is wholly within the external boundary of Exploration Licences E09/2143, E09/2149 and Prospecting Licence P09/468 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017) and easterly of a line commencing at Latitude 24.589098 South, Longitude 116.245198 East and extending northeasterly to the intersection of the centreline of Wanna Road (approximately at Latitude 24.190470 South, Longitude 116.446734 East), being a southeastern corner of Native Title Determination WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WCD2019/003); Then northeasterly to Latitude 24.121100 South, Longitude 116.481806 East.

    All that land comprising that portion of Lot 60 as shown on Deposited Plan 194660 that is wholly within the external boundary of Exploration Licences E09/1618, E09/2191, E09/2197, E09/2200 and E09/2203 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

    All that land comprising that portion of Lot 40 as shown on Deposited Plan 238030 that is wholly within the external boundary of Exploration Licences E09/2201, E52/3035, E52/3051, E52/3339, E52/3469 and E52/3490 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017) and northwesterly of a line defined by the following coordinate positions:

    All that land comprising that portion of Lot 214 as shown on Deposited Plan 220375 that is wholly within the external boundary of Exploration Licence E09/2184 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

    All that Unallocated Crown Land parcel in the vicinity of Mt Gould Well surrounding Reserve 1412 and surrounded by Pastoral Lease N050153 (Mt Gould) with an approximate centroid of Latitude 25.810283 South, Longitude 117.308157 East that is wholly within the external boundary of Exploration Licences E52/1552, and E52/1553 (as defined by the Department of Mines, Industry Regulation and Safety as at 1 August 2017).

    All that land comprising that portion of Lot 12629 as shown on Deposited Plan 28859 that falls northeast of a line joining Latitude 27.786223 South, Longitude 116.570933 East and Latitude 27.374942 South, Longitude 115.982815 East.

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 1st March 2021.

Mining Tenements sourced from Department of Mines, Industry Regulation and Safety dated 1 August 2017.

For the avoidance of doubt the determination excludes any land and waters subject to:

Native Title Determination WAD28/2019 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19/10/2017.

Native Title Determination WAD28/2019 Wajarri Yamatji Part B (WCD2018/002) as Determined in the Federal Court on the 23/04/2018.

Native Title Determination WAD44/2019 & WAD157/2018 Wajarri Yamatji Part C (WCD2018/014) as Determined in the Federal Court on the 07/12/2018.

Native Title Determination WAD72/1998 Nharnuwangga Wajarri and Ngarlawangga (WCD2000/001) as Determined in the Federal Court on the 29/08/2000.

Native Title Determination WAD464/2016 Combined Thiin-Mah Warriyangka, Tharrkari, Jiwarli (WCD2019/003) as Determined in the Federal Court on the 16/04/2019.

Native Title Determination WAD22/2019 Gnulli, Gnulli #2 and Gnulli #3 – Yinggarda, Baiyungu and Thalanyji People (WCD2019/016) as Determined in the Federal Court on the 17/12/2019.

Native Title Determination Application WAD21/2019 Mullewa Wadjari Community (WC1996/093) as accepted for registration on 05/01/2017.

Native Title Determination Application WAD373/2018 Wajarri Yamatji #6 (WC2018/016) as filed in the Federal Court on 21/08/2018.

Datum:     Geocentric Datum of Australia 2020 (GDA2020)

Prepared By: Graphic Services (Landgate) 23rd March 2021

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 E DETERMINATION AREA

SCHEDULE THREE

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 E Determination Area.

1.    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 FOUR

AREAS TO WHICH SECTION 47B OF THE NATIVE TITLE ACT APPLIES (Paragraph 6)

Section 47B of the Native Title Act applies in relation to the whole of the Part E Determination Area, except in relation to the areas described in Schedule Three.

SCHEDULE FIVE

OTHER INTERESTS (Paragraph 7)

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

1.    Mining Tenements

The following mining tenements under the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those mining tenements:

(a)    Exploration Licences

Tenement ID

E 5203339

E 0902149

E 0902184

E 0902200

E 0902201

Tenement ID

E 0902203

E 5203469

E 5203490

E 0901618

E 0902197

(b)    Miscellaneous Licences

2.    Access to Mining Areas

(a)    Without limiting the operation of any other clause in Schedule Five, but subject to clause 2(b) below, the rights of the holders from time to time of a mining tenement referred to in clause 1 of Schedule Five to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Part E 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 2(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 2(a).

3.    Other

(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 E 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 E 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 E 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:

          (A)    to inspect land;

          (B)    to install and operate telecommunications facilities; and

          (C)    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 E 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 E 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 E Determination Area:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    stock routes; and

(iv)    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 SIX

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 of native title filed on 18 June 2021. The consent determination relates to an application made pursuant to s 61 of the Native Title Act 1993 (Cth) (NT Act) for a determination of native title in proceeding WAD 382 of 2017 (Wajarri Yamatji #2 Application), also known as the Wajarri Yamatji Part E Determination. The Wajarri Yamatji #2 Application is one of eight Wajarri Yamatji applications that are currently before the Court. The Court has made three conditional determinations of native title in respect of some of those Wajarri Yamatji applications (Wajarri Yamatji Part A, B and C Determinations).

2    This proposed consent determination was filed alongside a proposed consent determination in two of the other Wajarri Yamatji applications known as the Wajarri Yamatji Part D Determination (WAD 278 of 2018 and WAD 373 of 2018): see Dann on behalf of the Wajarri Yamatji People v State of Western Australia [2021] FCA 867 (Dann v WA). The applicant in this proceeding, alongside applicants in in other related proceedings, also filed an interlocutory application seeking to make amendments to the Wajarri Yamatji Part A, B and C Determinations, including the addition of three additional apical ancestors: see Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 (Hamlett v WA (No 3)).

3    The proceedings have a lengthy and complicated procedural history, which are set out in Dann v WA at [3]-[19].

4    Adopting and incorporating my reasons for judgment in Dann v WA, for the following reasons, I am satisfied that the proposed consent determination in these proceedings should be made.

Assessment of Connection

5    As in Dann v WA (see [28]-[30]), the material provided in support of the Wajarri Yamatji Part A and B Determinations formed the basis of the assessment of connection undertaken in relation to the Wajarri Yamatji Part E Determination. These materials were supplemented by further material in support of the inclusion of three additional ancestors to those listed in the Part A, B and C Determinations (see [30] of Dann v WA).

The native title holders, Determination Area and connection to country

Description of the native title holders

6    Schedule A of the Wajarri Yamatji #2 Application states that the group on whose behalf the applications are made consists of the descendants of forty-seven listed apical ancestors.

7    During the course of consent determination negotiations, the applicant and the first respondent settled on the description of native title holders in Schedule Six 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.

8    In identical circumstances as described Dann v WA at [33]-[35], the description of native title holders in this Minute is similar to the description in Wajarri Yamatji Part A, B and C Determinations, but contained three additional apical ancestors: Polly (mother of Paddy Donnelly); Angelina (mother of Alice Darby); and Topsy (mother of Mary Wheelock). The Wajarri Yamatji Part A, B and C Determinations have been amended to include the three additional apical ancestors (see Hamlett v WA (No 3)).

Proposed Determination Area

9    The remaining part of the Wajarri Yamatji #2 Application covers approximately 649.75 square kilometres and is comprised of six discrete areas within the external boundary of the Wajarri Yamatji Part A Determination.

10    The external boundaries of the Wajarri Yamatji Part E Determination Area are described in Schedule One of the Minute and shown on the maps in Schedule Two of the Minute. Each of the six areas is an area of unallocated Crown land.

11    The Wajarri Yamatji #2 Application is entirely overlapped by the larger Wajarri Yamatji #1 Application. The Wajarri Yamatji Part E Determination orders provide that the Wajarri Yamatji #1 Application is to be dismissed to the extent that it overlaps the Wajarri Yamatji #2 Application.

Connection to country

12    For similar reasons to Dann v WA at [39]-[41], I am satisfied that the Wajarri Yamatji Part E Determination Area is, and has been since prior to sovereignty, the traditional country of the Wajarri Yamatji. Furthermore, I am satisfied that the connection materials reveal that the requirements of s 47B of the NT Act are satisfied in relation to the Part E Determination 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

13    Contemporaneously with seeking an order pursuant to s 87 for this Part E Determination to be made, the applicant has nominated a Prescribed Body Corporate (PBC) under s 56 of the NT Act to hold its native title in trust.

14    The circumstances regarding the nomination of Wajarri Yamaji Aboriginal Corporation as the PBC for this Part E Determination are set out in an affidavit of Pauline Gartlan affirmed on 18 June 2021 (Gartlan Affidavit).

Authorisation of the applicant

15    Relevant parts of the statutory scheme concerning the authorisation of a native title applicant is summarised in Dann v WA at [44]-[45]. As set out in the Gartlan Affidavit, the members of the Wajarri Yamatji #2 Application considered the terms of the Minute at a Wajarri Yamatji community meeting on 22 March 2021 and authorised the applicant to enter into this Part E Determination. This authorisation included an agreement as to the inclusion of the three additional apical ancestors (listed at [8] above) to the description of the native title holders in Schedule Six.

16    On the basis of that evidence, the Court accepts that the applicant is authorised to consent to the proposed determination of native title rights and interests in, or consistent with, the terms of the Minute.

Section 87 of the NT Act is satisfied

17    The requirements of s 87 of the NT Act are set out in Dann v WA at [47]. In relation to this proposed consent determination, I am satisfied that:

(a)    The notification period referred to in ss 66(8) and 66(10)(c) of the NT Act has ended for the Wajarri Yamatji #2 Application (see Dann v WA at [6]).

(b)    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 (s 87(1)(a) and (b) of the NT Act).

(c)    For similar reasons to Dann v WA at [50]-[55], orders consistent with the terms of the Minute are within the Court’s power.

(d)    Pursuant to s 87(1A), it is appropriate for the proposed determination as sought by the parties to be made (see Dann v WA at [57]-[66]).

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

Associate:

Dated:    29 July 2021