Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia

The Federal Court was asked to make a determination of native title in respect of an area of land in Western Australia, pursuant to the Native Title Act 1993 (Cth). The Court was asked to determine whether native title existed in the area, and if so, to identify the holders of the native title and the nature and extent of the rights and interests of the native title holders. The Wajarri Yamatji People sought a determination of native title over a large area of land in Western Australia. The State of Western Australia did not oppose the determination of native title, but sought a declaration that native title did not exist in relation to certain areas within the larger area. The Court found that native title existed in the area, but did not exist in relation to certain areas within the larger area. The Court found that the Wajarri Yamatji People were the holders of the native title. The Court found that the native title rights and interests of the Wajarri Yamatji People included the right to possess, occupy, use and enjoy the land and water to the exclusion of all others, and the right to conduct cultural activities on the land and water. The Court found that the native title rights and interests were subject to and exercisable in accordance with the laws of Western Australia and the Commonwealth, including the common law, and the traditional laws and customs of the Wajarri Yamatji People. The Court found that the native title rights and interests did not confer exclusive rights in relation to water in any watercourse, wetland or underground water source, and did not confer any rights in relation to minerals, petroleum, geothermal energy resources and geothermal energy, or water captured by the holders of other interests. The Court found that the native title rights and interests did not prevent the doing of any activity required or permitted to be done by or under other interests, but that other interests prevailed over the native title rights and interests but did not extinguish them. The Court made a determination of native title in terms of the Part B Determination, which sets out the nature and extent of the native title rights and interests of the Wajarri Yamatji People, and the areas in which native title does not exist. The Court made orders for the determination to take effect immediately upon the making of a determination under section 56(1) or section 57(2) of the Native Title Act, and for the common law holders of the native title rights and interests to indicate whether they intended to have the rights and interests held in trust. The Court made orders for the balance of the area covered by the Wajarri Yamatji #2 Application, and the Wajarri Yamatji Application to the extent that it covered that area, to be adjourned to a directions hearing on a date to be fixed. The Court made no order as to costs.