Banjima People v State of Western Australia (No 2)

The Banjima People initiated legal proceedings against the State of Western Australia concerning the validity of exploration licences granted by the State, and their impact on native title rights. The case was heard by the Federal Court of Australia, which was tasked with determining whether the exploration licences met the exclusionary criterion under section 47B(1)(b)(ii) of the Native Title Act 1993 (Cth) and if they extinguished native title rights. Additionally, the court needed to assess the relevance of evidence regarding non-Aboriginal people to the issue of the existence and continuity of traditional laws and customs and the right to exclusive possession.

The court found that the exploration licences did not meet the exclusionary criterion under section 47B(1)(b)(ii) of the Native Title Act 1993 (Cth). The court reasoned that the licences merely conferred a permission or authority to explore the identified land and waters, without any immediate right to use ground disturbing equipment. The court held that such a permission or authority could not, on its own, amount to a use of the land that extinguished or partially extinguished native title. Furthermore, the court held that evidence regarding non-Aboriginal people was not relevant to the issue of the existence and continuity of traditional laws and customs and the right to exclusive possession. The court established the right of exclusive possession based on the evidence of observance of traditional laws and customs by Aboriginal people within the relevant belief system.

The court dismissed the interlocutory application and ordered the parties to file agreed or competing proposed orders reflecting the reasons for judgment published on 12 June 2015 within seven days. Additionally, the State was ordered to pay the Banjima people's costs for its unreasonable act of pursuing the interlocutory application.