Banjima People v State of Western Australia (No 3)

The Banjima People, represented by their traditional custodians, sought a declaration of their native title rights over a large area of land in the Kimberley region of Western Australia. The State of Western Australia contested the claim, arguing that the applicants did not have the requisite connection to the land and that their traditional laws and customs had been irretrievably lost. The case was heard by the Federal Court of Australia, which had jurisdiction to determine native title claims under the Native Title Act 1993 (Cth).

The central legal issues before the court were whether the Banjima People had maintained a connection to their traditional land and whether their traditional laws and customs were still in existence and in force. The court had to consider whether the applicants could demonstrate a continuous connection to the land since British sovereignty, and whether their traditional laws and customs were capable of being recognised by the common law of Australia. The court also had to determine the extent and nature of the native title rights held by the Banjima People, if any.

The court found in favour of the Banjima People, holding that they had maintained a continuous connection to their traditional land and that their traditional laws and customs were still in existence and in force. The court noted that the Banjima People had provided extensive evidence of their connection to the land, including oral histories, cultural practices, and traditional laws and customs. The court also found that the Banjima People's traditional laws and customs were capable of being recognised by the common law, and that they had not been irretrievably lost or extinguished. The court declared that the Banjima People held native title rights over the area in question, including rights to exclusive possession, to use and enjoy the land, and to manage and protect the land's cultural heritage. The court also found that the native title rights were not extinguished by the grant of certain pastoral leases, as the leases did not confer exclusive possession over the land.