FEDERAL COURT OF AUSTRALIA

Hamlett on behalf of the Wajarri Yamatji People (Part F) v State of Western Australia (No 4) [2025] FCA 61

ORDERS

Wajarri Yamatji (Part F)

THE COURT NOTES THAT:

1.    On 19 October 2017, the Court partially determined the Wajarri Yamatji #1 Application (WAD 6033 of 1998), known as “Wajarri Yamatji (Part A)”.

2.    On 23 April 2018, the Court partially determined the Wajarri Yamatji #1 and #2 Applications (WAD 382 of 2017) known as “Wajarri Yamatji (Part B)”.

3.    On 7 December 2018, the Court 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)”.

4.    The southern part of the Wajarri Yamatji #1 Application was formerly overlapped by the external boundaries of applications WAD 21 of 2019 (Mullewa Wadjari) and WAD 31 of 2019 (Widi Mob) (the Wajarri Yamatji Overlap Area). A new native title determination application WAD 32 of 2018 (Wajarri Yamatji #3 Application) was made on behalf of the Wajarri Yamatji people which covers an area of land and waters within the external boundary of the Wajarri Yamatji Overlap Area. The Wajarri Yamatji #3 Application was made to take advantage of section 47B of the Native Title Act 1993 (Cth) (Native Title Act). A further new native title determination application WAD 611 of 2018 (Wajarri Yamatji #7 Application) was made on behalf of the Wajarri Yamatji people covering part of the area covered by the Wajarri Yamatji Overlap Area. The Wajarri Yamatji #7 Application was made to take advantage of section 47B of the Native Title Act. The southern part of the Wajarri Yamatji #1 Application and all the Wajarri Yamatji #3 and Wajarri Yamatji #7 Applications relate to an area of land and waters the subject of the attached minute of proposed consent determination (the Part F Determination).

5.    The Applicants in all three 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 Overlap Area (the Part F Determination Area). The external boundaries of the Part F Determination Area are described in Schedule One of the Part F Determination.

6.    Pursuant to subsections 87(1), (1A) and (2) of the Native Title Act the parties have filed with the Court this Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to those applications.

7.    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 that native title exists in relation to the land and waters of the Determination Area.

8.    The pastoral respondents have agreed to the terms of the Part F Determination on the basis of having reached agreements with the Applicants in relation to those portions of their respective pastoral leases that are situated within the Part F Determination Area. Following the Part F Determination taking effect, those agreements will be executed and an application will be made for the agreements to be registered as Indigenous Land Use Agreements on the Register of Indigenous Land Use Agreements as body corporate agreements pursuant to s 24BG of the Native Title Act.

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

10.    Pursuant to subsection 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Part F 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.    Pursuant to subsection 67(1) of the Native Title Act, proceedings WAD 28 of 2019, WAD 32 of 2018 and WAD 611 of 2018 be determined together.

2.    In relation to the Part F Determination Area, there be a determination of native title in WAD 28 of 2019, WAD 32 of 2018 and WAD 611 of 2018 as provided for in Attachment A.

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

4.    There be no order as to costs.

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

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 F 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 F 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 F 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 paragraphs 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 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.

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 F 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 F Determination Area referred to in Schedule Four of this determination.

Definitions and interpretation

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

“Part F 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 F Determination Area described in Schedule Three (which areas are 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”;

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

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

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Part F 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 F DETERMINATION AREA

The Part F 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 those lands and waters commencing at Latitude 28.056299 South, Longitude 115.119027 East being a point on the present boundary of Native Title Determination WAD345/2019 Yamatji Nation (WCD2020/001) and extending generally northerly through the following coordinate positions:

Then northeasterly to a western boundary of Lot 11820 as shown on Deposited Plan 238554 being Pastoral Lease N049486 (Yallalong) at Latitude 27.520517 South; Then northerly along the western boundary of that lot to Latitude 27.516409 South, being a point on the present boundary of Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007); Then generally northeasterly, generally northerly, again generally northeasterly and generally southeasterly along the boundaries of that native title determination to the intersection with a southern boundary of Pastoral Lease N049978 (Carlaminda) at approximate Latitude 28.150125 South, Longitude 116.962749 East being a point on the present boundary of Native Title Determination WAD345/2019 Yamatji Nation (WCD2020/001); Then generally southwesterly, generally westerly and generally northwesterly along the boundaries of that native title determination back to the commencement point.

Exclusions

All that land comprising Lot 235 as shown on Deposited Plan 238014.

Note:            Geographic Coordinates provided in Decimal Degrees.

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

Datum: Geocentric Datum of Australia 2020 (GDA2020)

Prepared By: Graphic Services (Landgate) 13/07/2021

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 F DETERMINATION AREA

SCHEDULE THREE – EXCLUSIVE AREA (Paragraph 4)

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

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 F Determination Area which, with the exception of public works (as described in clause 8 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

For the avoidance of doubt, unless otherwise specified, the area of the following interests are as they existed as at 30 December 2013 and as contained in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated 30 December 2013. The non-existence of native title is not necessarily a result of the grant or creation of these interests.

1.    Freeholds

The following grants of estates in fee simple:

2.    Reserves

The following reserves:

3.    Leases

4.    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)):

5.    Taking Orders

The land and waters subject to the following taking orders and the rights and interests arising from time to time in respect of those taking orders:

6.    Dampier to Bunbury Natural Gas Pipeline

The land and waters the subject of the Dampier to Bunbury Natural Gas Pipeline, being the land of Pipeline Licence PL 40 and easement E240405 (3134B/358) (which are currently held by the Dampier to Bunbury Natural Gas Pipeline Land Access Minister) for the purpose of access to, and the construction, use and maintenance of, a natural gas pipeline and associated apparatus and appurtenances (Dampier to Bunbury Natural Gas Pipeline) for the transmission and conveyance of natural gas.

7.    Railway

The former Mullewa to Cue Railway constructed pursuant to the Mullewa-Cue Railway Act 1894 (WA) (repealed) and whose line is generally described in the Schedule to this Act.

8.    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 of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of a prior interest (to the extent that the areas were not covered by an interest described in section 47B(1)(b)(i) or (ii) or subject to a resumption process as described in section 47B(1)(b)(iii) of the Native Title Act when the relevant native title determination application was made) is to be disregarded:

SCHEDULE SIX – OTHER INTERESTS (Paragraph 9)

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

1.    Reserves

The following reserves:

2.    Pastoral Leases

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

(b)    Any rights and obligations of the pastoralists pursuant to the pastoral leases referred to in subclause (a) above to adopt and exercise best practice management of the pasture and vegetation resources, livestock and soils within the boundaries of the pastoral leases in order to manage stock and for the management, conservation and regeneration of pasture for permitted uses.

3.    Roads

The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:

4.    Dampier to Bunbury Natural Gas Pipeline

The interests of the Dampier to Bunbury Natural Gas Pipeline Land Access Minister in the land of the Dampier to Bunbury Natural Gas Pipeline Corridor, including State corridor rights, under the Dampier to Bunbury Pipeline Act 1997 (WA), and the interests of any other person in land in the Dampier to Bunbury Natural Gas Pipeline Corridor under sections 34, 36 and 41(2)(b) of the Dampier to Bunbury Pipeline Act 1997 (WA), including the land and waters the subject of taking order H950669. For the avoidance of doubt, those interests include Access Easement 3134/300.

5.    Mining Tenements

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

(a)    Exploration Licences

(b)    General Purpose Leases

(c)    Mining Leases:

(d)    Miscellaneous Licences:

(e)    Prospecting Licences:

6.    Petroleum Interests

The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and / or the Petroleum Pipelines Act 1969 (WA) and the rights and interests of the holders from time to time of those petroleum interests:

7.    Access to Mining and Petroleum Areas

(a)    Without limiting the operation of any other clause in Schedule Six, but subject to clause 7(b) below, the rights of the holders from time to time of a mining tenement or petroleum interest referred to in clause 5 or 6 of Schedule Six to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Part F Determination Area as necessary to have access to the area the subject of the mining tenement or petroleum interest for the purposes of exercising the rights granted by that tenement or interest.

(b)    Nothing in clause 7(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 7(a).

8.    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 F 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 F Determination Area by:

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

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

(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), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their related bodies corporate and successors in title:

(i)    as the owner or operator of telecommunications facilities within the Part F 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:

(f)    So far as confirmed pursuant to subsection 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 F 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:

(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); or

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

MURPHY J:

INTRODUCTION

1    In these applications the parties in:

(a)    Colin Hamlett and others on behalf of the Wajarri Yamatji People v State of Western Australia and others, proceeding WAD 28 of 2019 (WY #1 Application);

(b)    Colin Hamlett and others on behalf of the Wajarri Yamatji People v State of Western Australia and others, proceeding WAD 32 of 2018 (WY #3 Application); and

(c)    Gavin Egan and others on behalf of the Wajarri Yamatji People v State of Western Australia and others, proceeding WAD 611 of 2018 (WY #7 Application);

(collectively, the Wajarri Yamatji Applications) seek a consent determination under s 87 of the Native Title Act 1993 (Cth) (NTA) to recognise the native title rights and interests of the Wajarri Yamatji People in the claim areas in those proceedings.

2    The parties to the Wajarri Yamatji Applications have filed an agreement under s 87 of the NTA signed by all necessary parties (s 87 Agreement) to which is annexed a draft consent determination (the Part F Determination).

3    The proposed Part F Determination provides recognition of the native title rights and interests held by members of the Wajarri Yamatji People in relation the land and waters of the Wajarri Yamatji Applications (Part F Determination Area). The Part F Determination Area covers the lands and waters within the State of Western Australia (State) that are described in Schedule One of the proposed Part F Determination and depicted in the map attached at Schedule Two (to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule Four). It generally comprises that portion of the WY #1 Application which was previously overlapped by the Mullewa Wadjari native title determination application WAD 21 of 2019 (MW Application) and includes the entirety of the claim areas in the WY #3 and WY #7 Applications as they fall within the larger claim area in the WY #1 Application. The key map attached to Schedule Two of the draft determination is reproduced as Annexure 1 to these reasons.

4    The proposed Part F Determination follows on from determinations made in favour of the Wajarri Yamatji in October 2017, April 2018, December 2018 and July 2021 and it represents one more step in approaching three decades of legal process in the National Native Title Tribunal and this Court. The determination in favour of the Wajarri Yamatji People in 2017 was no doubt a significant milestone for them. This determination is another important milestone. It is the final piece of land claimed in the WY #1 Application and represents the culmination of a long fight.

5    The Wajarri Yamatji People and their representatives have displayed strength, resilience and persistence in pursuing their claim since the 1990s, so as to ensure that the Wajarri Yamatji People’s rights and interests in their country are recognised by the Court, and consequently the broader Australian community. They must be congratulated for their dogged pursuit of their legitimate claims.

6    The period spent in legal proceedings is unfortunate but it pales in comparison to the tens of thousands of years over which the Wajarri Yamatji People have forged their connection to their country. European colonisation resulted in conflict, depletion of natural resources, new diseases inflicted on Wajarri Yamatji people, displacement and dispossession of Wajarri Yamatji people from their country, and significant population decline. But the Wajarri Yamatji People adapted, and found ways to remain on their country including by working on stations, or by living in nearby townships and visiting their country to carry on traditional practices.

7    By this determination the Court recognises that despite the conflict, displacement and dispossession, the Wajarri Yamatji People fought to maintain their culture and their connection to their country. This determination is not a gift or bestowal of native title. Rather, it is a formal recognition of something that has always been. It is an acknowledgment by the Court of a simple but profound truth: that this land has never ceased to belong to the Wajarri Yamatji People, and the Wajarri Yamatji People to it.

8    I thank the applicants for their hard work, dedication and persistence in getting to this result. Their community owes them a debt of gratitude.

9    I also thank the other parties, particularly the State, for their hard work and dedication. And I thank Judicial Registrar Ann Daniel for her hard work in case-managing and mediating this proceeding over many years.

MATERIAL RELIED UPON

10    The following materials are before the Court:

(a)    the s 87 Agreement signed by the parties with an annexed draft consent determination in relation to the Part F Determination Area filed 28 November 2024 (the Minute);

(b)    the joint submissions of the applicants in the Wajarri Yamatji Applications (collectively, the WY Applicants) and the State seeking a consent determination of native title in relation to the Part F Determination Area dated 28 November 2024;

(c)    an affidavit of Daniel Michael Gorman, a lawyer employed by the State Solicitor’s office, affirmed 26 July 2021 (Gorman Affidavit) addressing the fact that three indigenous respondents to the WY #1 Application are deceased and therefore unable to consent to the proposed determination;

(d)    an affidavit of Pauline Catherine Gartlan, a lawyer employed by the Yamatji Marlpa Aboriginal Corporation (YMAC), dated 18 June 2021 addressing the nomination of Wajarri Yamatji Aboriginal Corporation as the prescribed body corporate (PBC) and the description of the native title holders in the Minute (First Gartlan Affidavit), annexing:

(i)    a notice of nomination of the Wajarri Yamaji Aboriginal Corporation RNTBC (ICN 7878) (WYAC) to be the PBC pursuant to s 56(2)(a)(i) of the NTA;

(ii)    the written consent of the WYAC to be the PBC pursuant to s 56(2)(a)(ii) of the NTA; and

(e)    an affidavit of Ms Gartlan dated 26 July 2021 addressing the authorisation of the Minute (Second Gartlan Affidavit).

PROCEDURAL HISTORY

11    The Wajarri Yamatji Applications are three of eight native title determination applications that have been made by the Wajarri Yamatji People. They have a complex history.

12    The WY #1 Application relates to claim areas in the Murchison and Gascoyne regions of Western Australia, and covers the majority of the traditional land and waters of the Wajarri Yamatji People. The present WY #1 Application is the result of the combination of many claims, predominantly lodged in the 1990s, the earliest being filed in 1996.

13    WY Applications #2 through #7 were made between 1 August 2017 and 19 December 2018 and all related to areas within the claim area in WY #1 Application. WY #2 Application was designed to attract the operation of ss 47, 47A and/or 47B of the NTA in relation to certain pastoral leases, reserves and areas of unallocated Crown land within the area of the WY #1 Application. The WY #3 Application, a subject of this application, was filed on 5 February 2018, and covers various areas of unallocated Crown land within that portion of the WY #1 Application which was then overlapped by the MW Application.

14    Applications #4 through #7 were all designed to ensure s 47B of the NTA operated in respect of unallocated crown land that had been subject to exploration licences, and were made owing to uncertainty at the relevant times as to whether licences under the Mining Act 1978 (WA) were “leases” in the language of that provision. The WY #7 Application, also a subject of this application, was lodged on 19 December 2018. It covers an area of unallocated Crown land within the external boundaries of the WY #1 Application, the former MW Application and the WY #3 Application. The WY #7 Application was lodged in order to seek the benefit of the application of section 47B of the NTA in relation to an area of unallocated Crown land that was subject to an exploration licence granted under the Mining Act 1978 (WA) at the time when the WY #3 Application was made.

15    The other application was WAD 278 of 2018 (WY (Byro Plains)), filed on 25 June 2018, which covered an area outside of the WY #1 Application, but immediately adjacent to its western boundary.

16    There have been a series of determinations in relation to the claim areas in those applications:

(a)    on 19 October 2017, the majority of the WY #1 Application was the subject of a conditional determination of native title under s 87A of the NTA (WY Part A Determination): see IS (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (IS Part A). This determination covered an area of approximately 68,743 square kilometres of land and waters. It did not, however, include the land and waters of the WY #1 Application that were covered by the WY #2 Application or which were overlapped by the former MW Application and/or the native title determination application in WAD 31 of 2019 (formerly WAD 6193 of 1998) (Widi Mob Application);

(b)    on 23 April 2018, a further portion of the WY #1 and #2 Applications was the subject of a conditional determination of native title made under section 87A of the NTA (WY Part B Determination): see Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 (Hamlett Part B). This determination did not include any areas subject to overlapping native title determination applications, including the WY #3, #4 and #5 Applications, the former MW Application and the Widi Mob Application, or any areas of unallocated Crown land that were covered by the grant of an exploration licence or a prospecting licence granted under the Mining Act 1978 (WA) when the WY #2 Application was made; and

(c)    on 7 December 2018, the WY #4 and #5 Applications were the subject of a conditional determination of native title made under s 87 of the NTA (WY Part C Determination): see Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945;

(d)    on 29 July 2021, the Court made:

(i)    a determination of native title in respect of the WY #6 and the WY (Byro Plains) Applications (WY Part D Determination): see Dann on behalf of the Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867; and

(ii)    a determination of native title in respect of the remaining area of the WY #2 Application (WY Part E Determination): see Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868.

17    On 29 July 2021, the Court also made orders amending the WY Part A, WY Part B and WY Part C Determinations to include the three additional apical ancestors: see Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869 (Hamlett No 3). These ancestors were included in the WY Part D and WY Part E Determinations at the time they were made.

18    As a result of the operation of s 64(1B) of the NTA, following the WY Part A, Part B, Part C, Part D and Part E Determinations, the area of the WY #1 Application was deemed to be amended to remove the area covered by those determinations and, accordingly it now only comprises those land and waters within the remaining proposed Part F Determination Area.

Overlap with the Mullewa Wadjari application

19    The Part F Determination Area generally represents that part of the WY #1 Application overlapped by the MW Application claim area. The WY Applicants and MW Applicants reached an in-principle agreement in 2019 to resolve the overlap. A proposed consent determination for the Part F Determination Area, covering the claim areas in the Wajarri Yamatji Applications was filed in June 2021, but the MW Applicant declined to implement that agreement: see Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [3]-[6] (Mortimer J, as her Honour then was).

20    The Court set Separate Questions aimed at resolving the overlap, which were listed for hearing over three weeks with the lay evidence commencing on 8 April 2024. Then, on 26 May 2023 the WY Applicants (and the Nanda Applicants in a related proceeding) filed an interlocutory application for summary judgment against the MW Applicant. The Court heard the application for summary judgment on 7 December 2023 and made orders on 20 December 2023 granting summary judgement: Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No.3) [2024] FCA 1132 (Murphy J). The period by which the MW Applicant was required to file an application for leave to appeal expired on 10 October 2024, and no such application has been made.

21    As a consequence of the above, the MW Application was dismissed, and the Wajarri Yamatji Applications are no longer overlapped by any other native title determination application.

22    Due to the period of time which had elapsed between the filing of the original proposed consent determination for the Part F Determination Area, together with the joinder of new parties to the WY #1 and WY #3 Applications, the parties to the Wajarri Yamatji Applications have agreed to sign and file a new Minute and have provided new joint submissions with respect to the Part F Determination Area.

THE CLAIMANTS AND THEIR COUNTRY

23    The total WY #1 Application native title claim area covers approximately 97,676 square kilometres of land and waters in the areas of the City of Greater Geraldton and the Shires of Chapman Valley, Cue, Meekatharra, Mount Magnet, Murchison, Northampton, Shark Bay, Upper Gayscone and Yalgoo.

24    The Part F Determination Area lies approximately 225km east of Carnarvon and approximately 400km north of Perth. It covers approximately 14,706.54 square kilometres in the southwestern corner of the wider Wajarri Yamatji claim area, bordering Nanda country to the west and Yamatji Nation country to the south. The Murchison River winds through the northern part of the Part F Determination Area and the Greenough River flows south westerly through its southern portion. The township of Yalgoo marks the southeasternmost point of the Part F Determination Area.

25    The claim areas in the WY #3 and WY #7 Applications are entirely within the larger WY #1 Application. The Part F Determination orders provide that the Wajarri Yamatji Applications are to be determined together.

26    Schedule A of the WY #1 Application states that the group on whose behalf the application is made consists of the descendants of fifty-six listed apical ancestors. However, following the filing of the WY #1 Application further anthropological research was conducted to better identify the native title holders. The further research includes the Wajarri Yamatji Connection Report authored by Professor Weiner dated December 2010 and five supplementary anthropological reports authored by Sarah Bell. This research informed the refined list of apical ancestors appearing in the Minute, which is identical to the description of the native title holders in the WY Part A, Part B and Part C Determinations (as amended) and the WY Part D and Part E Determinations. The basis upon which the list of apical ancestors and description of the native title holders was reached is discussed in greater detail in IS Part A at [32]-[40] and Hamlett (No 3) at [9]-[12]. The First Gartlan affidavit describes the process leading to the amendment to include three additional apical ancestors following the first three determinations.

27    In 2017, in IS Part A, the first consent determination relating to Wajarri Yamatji country, Griffiths J described (at [46]-[54]) the physical and spiritual connection the Wajarri Yamatji People have always had with their country. His Honour noted that Wajarri Yamatji people refer to their traditional lands as their “country” or barna in the Wajarri language. Wajarri barna is believed to have retained an active spiritual potency despite the many social and economic upheavals that resulted from European colonisation. The spirits of deceased Wajarri enforce correct behaviour on country and protect against trespass of inappropriate people on specific sites of importance. For most of the 20th century, Wajarri Yamatji continued to subsist in traditional ways and look after their country while they were engaged in full-time labour on the pastoral stations. They have passed this knowledge on to their family members over successive generations. His Honour’s words stand as a permanent record of the judicial recognition of the Wajarri Yamatji connection to country, which apply equally to the Part F Determination Area which is, and has been for tens of thousands of years, the barna of the Wajarri Yamatji People.

THE REQUIREMENTS OF SECTION 87 OF THE NTA

28    Section 87 of the NTA prescribes the following preconditions before the Court can make a consent determination of native title:

(a)    the period specified in the notice given under s 66 of the NTA has ended (s 87(1));

(b)    there is an agreement for a proposed determination of native title in relation to the proceeding (s 87(1)(a));

(c)    the terms of the proposed determination, in writing signed by or on behalf of all of the parties, is filed with the Court (s 87(1)(b));

(d)    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)); and

(e)    it appears appropriate to the Court to make the orders sought (ss 87(1A) and 87(2)).

29    The requirements of s 87 that may be satisfied solely by the parties have been met in the proposed Part F Determination. I note that:

(a)    the notification period under s 66 of the NTA ended on:

(i)    20 November 1995 with respect to the WY #1 Application;

(ii)    1 August 2018 with respect to the WY #3 Application; and

(iii)    9 July 2019 with respect to the WY #7 Application;

(b)    the parties have reached agreement as to a proposed determination of native title; and

(c)    the terms of the proposed Part F Determination are in writing, and are annexed to the s 87 Agreement which is signed by or on behalf of all necessary parties. This material has been filed with the Court.

30    The balance of the Court’s consideration thus turns upon whether the Court has the power to make the orders sought (s 87(1)(c)) and whether it is appropriate to make the orders sought (s 87(1A) and 87(2)). I address those matters below.

The power to make the orders sought– s 87(1)(c)

31    I am satisfied an order in, or consistent with, the proposed Part F Determination would be within the power of the Court.

32    First, the Court has jurisdiction to hear and determine the Wajarri Yamatji Applications: s 81 of the NTA.

33    Second, the native title rights and interests that are proposed to be declared properly reflect the characteristics of native title rights and interests set out in s 223 of the NTA and the terms confer native title rights and interests recognisable by the common law of Australia. Those requirements, as considered in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422, were summarised by North J in Lovett v Victoria (No 5) [2011] FCA 932 at [22] as follows:

In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present.

34    The rights and interests recognised by the common law are those native title rights and interests that existed at sovereignty, which survived that fundamental change in the legal regime, and can now, by resort to the NTA, be enforced and protected: Yorta Yorta at [77].

35    Third, the proposed Part F Determination is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the NTA) and there remains no approved determination in relation to the area the subject of the proposed determination (s 68 of the NTA).

36    Fourth, 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 Part F Determination which would otherwise require orders to be made under s 67(1) of the NTA.

37    Fifth, the requirements of s 87 in respect of the Wajarri Yamatji Applications are otherwise satisfied.

38    I also consider that the proposed Part F Determination complies with s 94A of the NTA by setting out the details of each of the matters required to be described under s 225 of the Act.

(a)    I am satisfied having regard to the terms of the proposed Part F Determination and the submissions and evidence filed by the parties that there is probative material against which the Court can assess whether the matters set out in s 225 can be stated in the proposed determinations: see Agius v South Australia (No 6) [2018] FCA 358 at [68] (Mortimer J, as her Honour then was); and

(b)    in relation to the matters required to be described under s 225:

(i)    the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)) are described in Paragraph 3 and Schedule Seven of the proposed Part F Determination, and as noted, the description of the native title holders in the Minute is identical to the description of the native title holders in the WY Part A, Part B, Part C, Part D and Part E Determinations. That is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15] (Wilcox, North and Weinberg JJ);

(ii)    the nature and extent of the native title rights and interests in relation to the Part F Determination Area (s 225(b)) is described in Paragraphs 4 and 5, subject to Paragraphs 6 and 7;

(iii)    the nature and extent of any other interests in relation to the Part F Determination Area (s 225(c)) is described in Paragraph 9 and Schedule Six;

(iv)    the relationship between the native title rights and interests and the other interests (s 225(d)) is described in Paragraph 10;

(v)    whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others (s 225(d)) is described in Paragraph 4, subject to Paragraphs 2, 6 and 10; and

(vi)    in relation to the requirement in the preamble to s 225 to identify the “particular area” to which the determination relates, the Part F Determination Area is described in Schedule One and depicted in the maps attached to Schedule Two, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule Four.

Whether it is appropriate to make the orders sought

39    Section 87(1A) provides:

The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

(a) whichever of subsection (2) or (3) is relevant in the particular case; and

(b) if subsection (5) applies in the particular case – that subsection.

40    In the present case, subsection (2) is the relevant subsection and subsection (5) does not apply. Subsection 87(2) provides:

If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

41    The key words in in s 87(1A) are “… if it appears to the Court to be appropriate…”. To decide whether it is appropriate to make the orders sought it is necessary to understand the requisite standard of satisfaction.

42    The Court has expressed the requisite standard in numerous decisions, which I summarised in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]-[37] as follows. Those remarks were made in the context of an agreement under s 87A of the NTA but they are equally applicable to an agreement under s 87:

[33]    The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is “appropriate” takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J.

[34]    It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J.

[35]    The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a “credible”, “rational”, “sufficient” or “cogent” basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]–[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

[36]    The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44].

[37]    As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A:

In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court’s function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act’s emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.

The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). 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 of 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 Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].

Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State’s agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].

The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

43    In McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 at [66] I expanded upon the requirement for a credible or cogent basis for a State party’s agreement under s 87A (which is equally applicable to an agreement under s 87) as follows:

The State parties have a duty to be satisfied that there is a “credible” or “cogent” basis for each of the proposed consent determinations: Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] (Jagot J). The credible evidence standard is one that requires significantly less than the evidence thought necessary to justify judicial determination under the civil standard: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [38] (North J), citing Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 (Emmett J); see also Watson v Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J). The Court must consider the material before it for the limited purpose of being satisfied that the State parties are acting rationally and in good faith in agreeing to the proposed consent determinations: Munn at [29]-[30].

The material supporting the making of the consent determination

44    The material filed with the Court is sufficient to conclude that it is appropriate to make the proposed Part F Determination.

45    First, the joint submissions show that the State has played an active role in the negotiation of the proposed Part F Determination and ensuring that the Minute otherwise complies with the requirements of the NTA. In doing so the State, acting on behalf of the community generally and having regard to the requirements of the NTA, has satisfied itself that the determination is justified in all the circumstances.

46    Second, as set out in IS Part A at [30]-[31], between 10 December 2010 and 12 September 2017, YMAC (on behalf of the WY #1 Applicant) provided the State with various materials, on a without prejudice basis, in support of the Wajarri Yamatji People's connection with the WY #1 Application area (connection material). Further, as discussed at paragraph [12] of Hamlett Part B, in addition to that material, YMAC also provided certain affidavits in support of the WY Part B Determination. The connection material is, in the State’s view, sufficient to demonstrate that, in respect of the Part F Determination Area, the Wajarri Yamatji Applications have a “credible or cogent basis” and that the Wajarri Yamatji People are bound together by a normative system of laws and customs which, on the basis of known fact and reasonable inference, has continued to be observed by them in a substantially uninterrupted manner since prior to the declaration of sovereignty over Western Australia.

47    Third, the State accepted that Wajarri Yamatji People have maintained a physical presence in the Part F Determination Area since the acquisition of British sovereignty and evidence of their continuing physical or spiritual involvement in the Part F Determination Area was sufficient to enable the State to conclude that this connection had not been severed. Accordingly, the State was satisfied that the connection material presented was sufficient to establish that the Wajarri Yamatji People hold rights and interests in the Part F Determination Area.

48    The State also accepted that the Wajarri Yamatji People 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 parts of the Part F Determination Area (the Exclusive Area). The Exclusive Area is described in Schedule Three of the Minute and finds an evidential basis in the connection material, which meets the requirements of section 47B of the NTA.

49    Fourth, the State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the Part F Determination Area, and those interests are included in the proposed determination: see Minute, Schedule Six. Accordingly, the WY Applicants and the State submit 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 Part F Determination Area which complies with section 225 of the NTA.

50    Fifth, the s 87 Agreement (and its predecessor agreement which the MW Applicant then declined to implement) was negotiated in a case management process with the assistance of a Registrar who is experienced in dispute resolution in native title cases. I am satisfied that the mediated outcome was the result of a fair process in which all relevant parties were given a voice and an opportunity to consider their interests.

51    Finally, the WY Applicants and the State have informed the Court that they are satisfied that the proposed Part F Determination is appropriate, and all other respondents have been consulted and given opportunities to participate in the process as it has progressed. All respondents consent to the Part F Determination, except for three deceased indigenous respondents who were unable to provide consent and whose interests, in my view, are not affected by the proposed determination.

AUTHORISATION OF THE APPLICANTS

52    Section 61(1) of the NTA 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...”, and s 62A of the NTA 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.” The power granted by s 62A of the NTA includes consenting to a determination of native title pursuant to section 87 of the NTA.

53    The Second Gartlan Affidavit deposed as to:

(a)    a meeting of the Wajarri Yamatji native title claim group held on 20-22 March 2021 in Geraldton (including by reference to the First Gartlan Affidavit) at which the claim group resolved to authorise, direct and instruct the applicants in the Wajarri Yamatji Applications to finalise and authorise the proposed consent determination for the area known as the “Overlap Area”. The Overlap Area in that resolution was the area of the WY #1 claim which was at that time overlapped by the MW claim area and was previously overlapped by the Widi Mob claim area, which area includes the WY #3 and WY #7 claims; and

(b)    a meeting of the WY Applicants held on 22 July 2021 in Geraldton, which meeting resolved to agree to the proposed Part F Determination for the Overlap Area with the description of native title holders being the Wajarri Yamatji revised group as resolved by the Wajarri Yamatji claim group at the claim group meeting on 21 March 2021.

54    On the basis of that evidence I am satisfied that the applicants are authorised to consent to the Court making a determination in the terms of the Minute.

NOMINATION OF A PRESCRIBED BODY CORPORATE

55    The Minute (at order 3) provides for the nomination of WYAC to hold the native title in the Part F Determination Area in trust for the Wajarri Yamatji People pursuant to s 56(2)(b) of the NTA. WYAC is the PBC for the WY Part A, Part B, Part C, Part D and Part E Determinations.

56    The First Gartlan Affidavit deposed as to:

(a)    a meeting of the Wajarri Yamatji native title claim group from 20-22 March 2021 in Geraldton the resolved to nominate the Meenangu Wajarri Aboriginal Corporation (MWAC) as the PBC for Wajarri Yamatji determinations of native title. The claim group also decided to consent to the proposed Part F Determination subject to resolution of the overlap with the Mullewa Wadjari applicant;

(b)    a special general meeting of the members of MWAC on 30 May 2021 in Geraldton:

(i)    endorsed the resolution made at the Wajarri Yamatji native title claim group of 20-22 March 2021 that MWAC should be the PBC for Wajarri Yamatji native title holders; and

(ii)    resolved that MWAC will be the PBC for the various Wajarri Yamatji native title applications, including WY #1, #3 and #7 Applications; and

(c)    on 18 June 2021 a delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations registered the change of the name of WMAC to WJAC.

57    On the basis of that evidence I am satisfied that WJAC has been validly nominated as the PBC and will hold the Part F Determination Area on trust for the Wajarri Yamatji People.

58    It is therefore appropriate to make Order 3 of the Minute to record the Court’s determination that:

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

59    I have made orders in accordance with the draft Minute.

Associate:

Dated:    13 February 2025

ANNEXURE 1 – MAP

SCHEDULE OF PARTIES