Hamlett on behalf of the Wajarri Yamatji People (Part F) v State of Western Australia (No 4)
[2025] FCA 61
•13 February 2025
FEDERAL COURT OF AUSTRALIA
Hamlett on behalf of the Wajarri Yamatji People (Part F) v State of Western Australia (No 4) [2025] FCA 61
File number(s): WAD 28 of 2019
WAD 32 of 2018
WAD 611 of 2018Judgment of: MURPHY J Date of judgment: 13 February 2025 Catchwords: NATIVE TITLE – consent determination – nomination of prescribed body corporate Legislation: Native Title Act 1993 (Cth) ss 47B, 56, 61, 66, 87, 87A, 94A, 225 Cases cited: Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237
Dann on behalf of the Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867
Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945
Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545
Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868
Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869
IS (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215
McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699
Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 59 Date of hearing: 13 February 2025 Counsel for the Applicants: David Yarrow SC Solicitor for the Applicants: Pauline Gartlan of Yamatji Marlpa Aboriginal Corporation Solicitor for the First Respondent: Daniel Gorman of State Solicitors Office ORDERS
WAD 28 of 2019
COLIN HAMLETT & ORS ON BEHALF OF THE WAJARRI YAMATJI #1
BETWEEN: COLIN HAMLETT
First Applicant
ROCHELLE BAUMGARTEN
Second Applicant
ROBIN BODDINGTON (and others named in the schedule)
Third Applicant
AND: STATE OF WESTERN AUSTRALIA
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
SHIRE OF MEEKATHARRA (and others named in the schedule)
Third Respondent
WAD 32 of 2018
COLIN HAMLETT & ORS ON BEHALF OF THE WAJARRI YAMATJI #3
BETWEEN: COLIN HAMLETT
First Applicant
GAVIN EGAN
Second Applicant
DAVID JONES (and others named in the Schedule)
Third Applicant
AND: STATE OF WESTERN AUSTRALIA
First Respondent
SHIRE OF MURCHISON
Second Respondent
WARREGO ENERGY EP512 PTY LTD
Third Respondent
WAD 611 of 2018
GAVIN EGAN & ORS ON BEHALF OF THE WAJARRI YAMATJI #7
BETWEEN: GAVIN EGAN
First Applicant
GEOFFREY MONGOO
Second Applicant
TS (DECEASED)
Third Applicant
AND: STATE OF WESTERN AUSTRALIA
First Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
13 FEBRUARY 2025
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 Act1904 (WA) (repealed) and in the Mining Act1978 (WA);
(ii)petroleum as defined in the Petroleum Act1936 (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 Act1967 (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:
LATITUDE (SOUTH) LONGITUDE (EAST) 28.049022 115.121150 28.043341 115.122045 28.036514 115.123460 28.027829 115.124888 28.019678 115.126694 28.010780 115.128705 28.004679 115.129635 27.999409 115.130354 27.989839 115.132421 27.983516 115.133794 27.975523 115.135446 27.973461 115.136183 27.968013 115.136776 27.961418 115.137888 27.952081 115.139652 27.945253 115.141066 27.935625 115.142288 27.930626 115.143268 27.927493 115.144377 27.919060 115.145783 27.911289 115.146992 27.901681 115.148496 27.894162 115.149684 27.888723 115.150417 27.883481 115.151559 27.875487 115.153212 27.867568 115.154717 27.861635 115.155634 27.854096 115.156543 27.849058 115.156959 27.840324 115.157683 27.835286 115.158099 27.828148 115.158690 27.822156 115.158762 27.815252 115.159050 27.807003 115.159450 27.801945 115.159585 27.796402 115.160043 27.790460 115.160818 27.784748 115.161292 27.777862 115.161862 27.771480 115.162389 27.763018 115.163373 27.754082 115.164822 27.743540 115.166261 27.736030 115.167592 27.727380 115.168307 27.721457 115.169364 27.713884 115.170982 27.707773 115.171772 27.701998 115.172532 27.694993 115.173819 27.686841 115.175628 27.679481 115.176662 27.673299 115.177174 27.673062 115.177193 27.671671 115.177308 27.665708 115.177802 27.659998 115.178276 27.654961 115.178693 27.648325 115.179242 27.640936 115.179853 27.633210 115.180492 27.628087 115.180916 27.621957 115.181422 27.616686 115.182141 27.609380 115.182746 27.602662 115.183301 27.601067 115.183433 27.598839 115.184183 27.593315 115.184923 27.586681 115.185472 27.581390 115.185909 27.574756 115.186458 27.569718 115.186875 27.564689 115.187433 27.563513 115.187529 27.561536 115.188259 27.555119 115.189499 27.549912 115.189929 27.544622 115.190368 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.
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 1 June 2021.
For the avoidance of doubt the application excludes any land and waters already claimed by:
Native Title Determination WAD6033/1998 Wajarri Yamatji Part A (WCD2017/007) as Determined in the Federal Court on the 19/10/2017.
Native Title Determination WAD6136/1998, WAD286/2018 Nanda People and Nanda #2 (WCD2018/011) as Determined in the Federal Court on the 28/11/2018.
Native Title Determination WAD345/2019 Yamatji Nation (WCD2017/007) as Determined in the Federal Court on the 07/02/2020.
Native Title Determination WAD30/2019 Nanda People (WC2000/013) as accepted for Registration on the 01/03/2001.
Native Title Determination WAD176/2019 Nanda People #3 (WC2019/004) as filed in the Federal Court on the 29/03/2019.
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):
MapInfo or Lot on Plan ID.
Description
UCL 011 (Excluding Hist. Roads 18, 23, 24 and 33) Western Area UCL UCL 030 (Excluding Hist. Roads 18, 19, 21, 23, 29, 31 and 33) Western Area UCL UCL 041 Western Area UCL UCL 133 Western Area UCL UCL 134 Western Area UCL UCL 135 Western Area UCL UCL 136 Western Area UCL UCL 331 Western Area UCL UCL 332 Western Area UCL UCL 382 Western Area UCL UCL 383 Western Area UCL UCL 384 (Excluding Hist. Road 40) Western Area UCL UCL 385 Western Area UCL UCL 386 (Excluding Hist. Road 40) Western Area UCL P040610 12725[1] (Excluding Hist. Roads 05, 06, 19, 26, 27, 29 and 31) Western Area UCL P220469 11826 Western Area UCL P077591 401 (Excluding Hist. Roads 20, 22, 24, 25 and 28) Western Area UCL P077591 403 Western Area UCL P077591 402 (Excluding Hist. Roads 20, 22, 24 and 25) Western Area UCL P031634 11478 (Excluding Hist. Roads 16, 17, 25 and 32) Western Area UCL P077573 501 Western Area UCL P031634 11479 Western Area UCL P077592 419 Western Area UCL P404459 422 (Excluding Hist. Road 30) Western Area UCL UCL 317 (Excluding Hist. Road 39) Central Area UCL UCL 318 Central Area UCL UCL 319 Central Area UCL UCL 320 Central Area UCL UCL 321 Central Area UCL UCL 322 Central Area UCL UCL 323 Central Area UCL UCL 324 (Excluding Hist. Road 37) Central Area UCL UCL 325 (Excluding Hist. Road 39) Central Area UCL UCL 326 Central Area UCL UCL 327 Eastern Area UCL UCL 345 Eastern Area UCL UCL 346 (Excluding Hist. Road 12) Eastern Area UCL UCL 347 Eastern Area UCL UCL 348 Eastern Area UCL UCL 349 Eastern Area UCL UCL 381 Eastern Area UCL UCL 003 Yilgaddy Pool UCL UCL 013 Yilgaddy Pool UCL [1] To the extent within the Determination Area.
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:
Certificate of Title
CT0000100317A
CT111500269
CT122900804
CT125300277
CT126900429
CT128100704
CT131800072
CT132700507
CT152100767
CT154400900
CT160200494
CT160200495
CT189700532
CT189700533
CT189700534
CT189700537
CT189900756
CT189900757
CT189900758
CT189900759
CT189900760
CT189900761
CT189900762
CT189900763
CT195500822
CT195500824
CT210600583
CT274100290
CT274100291
CT279400155
2. Reserves
The following reserves:
Reserve No Purpose 12648 Gravel 14436 Depot Site 14437 Depot Site 17946 Conservation of Flora and Fauna 36656 Emu Proof Fence 38378 Water 38890 Dampier to Bunbury Pipeline Act 1997 40794 Repeater Station Site
3. Leases
Lease No Description / Purpose GE L285080 Grazing (formerly portion of Special Lease SL 3116/02849 and SL 3116/05992) GE M061659 Grazing (subject to portion of Taking Order L767947) GE M867426[2] Cropping and Grazing (formerly portion of Special Leases SL 3116/01925, SL 3116/03178, SL 3116/03179 and SL 3116/03180) 13130/68 Grazing 13131/68 Grazing 13134/68 Grazing 13687/68 Grazing 21755/68 Grazing 21756/68 Grazing 21757/68 Grazing 21758/68 Grazing SL 3116/01925 (Part)[3] Grazing SL 3116/03178 (Part)[4] Grazing SL 3116/05957 Grazing [2] Being the area of Lot 420 on DP 77592, Lot 500 on DP 77573 and Lot 11476 on DP 93327.
[3]To the extent of Lot 8373 on Plan 31634.
[4]To the extent of Road 30.
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)):
MapInfo No.
General Description[5]
Road 001
Road shown on DP 210522
Road 003
Roads shown on DP 232573
Road 008
Portion of Dartmore Road shown on DP 204813
Road 010
Portion of Dartmore Lake Nerramyne Road shown as Lot 351 on DP 219192
Road 015
Roads shown on DP 202658
Road 016
Road shown on DP 204834
Road 017
Road shown on DP 208959
Road 020
Road No. 12325 shown in/on Government Gazette dated 1 June 1962, Diagram No 52962 and Original Plan 8959
Road 021
Road No. 13660 shown in/on Government Gazette dated 14 June 1968, DP 210929 and DP 210930
Road 023
Portion of Link Road No. 14368 shown in/on Government Gazette dated 21 August 1970 and DP 211488
Road 031
Road shown on DP 202616
Road 032
Road shown on DP 202634 and CPP 506776
Road 033
Road shown on DP 202635 and CPP 506776
Road 034
Portion of Dartmore Lake Nerramyne Road shown on DP 232575
Road 039
Road No. 399 from Mullewa to Yuin shown in/on Government Gazette dated 10 November 1893, CPP 503998, CPP 501694 and Tallering Survey Index Plan
Road 040
Road No. 400 from Bunbenoo towards Coodardy shown in/on Government Gazette dated 10 November 1893 and CPP 506706
Road 054
Road No. 1963 shown in/on Government Gazette dated 2 December 1904, Government Gazette dated 29 September 1905 and CPP 503005
Road 061
Road No. 5083 from Yalgoo to Murgoo shown in/on Government Gazette dated 20 November 1914 and CPP 503007
Road 062
Road No. 5090 from Yalgoo to Walla Walla Siding shown on Government Gazette dated 20 November 1914 and CPP 501697
Road 063
Road No. 5093 from Wurarga to Yuin Reef shown in/on Government Gazette dated 20 November 1914, CPP 501692 and CPP 503007
Road 065
Road No. 6248 from Rabbit Proof Fence to Pindathuna Station shown in/on Government Gazette dated 19 September 1919, CPP 501697 and CPP 503007
Road 068
Roads shown on DP 143813
Road 069
Roads shown on DP 152962
Road 070
Road shown on DP 159046
Road 071
Roads shown on DP 202284
Road 072
Road shown on DP 202285
Road 073
Road shown on DP 202287
Road 074
Road shown on DP 202288
Road 075
Road shown on DP 202291
Road 076
Road shown on DP 202293
Road 077
Road shown on DP 202608
Road 078
Road shown on DP 202615
Road 079
Roads shown on DP 203785
Road 080
Road shown on DP 204117
Road 081
Road shown on DP 204189
Road 082
Road shown on DP 204190
Road 083
Road shown on DP 204305
Road 084
Road shown on DP 204307
Road 085
Road shown on DP 204308
Road 086
Roads shown on DP 204641
Road 087
Roads shown on DP 204644
Road 088
Roads shown on DP 204649
Road 089
Roads shown on DP 204816
Road 090
Roads shown on DP 204818
Road 091
Roads shown on DP 204819
Road 092
Road shown on DP 208254
Road 094
Road shown on DP 226774
Road 095
Road shown on DP 232419
Road 096
Roads shown on DP 232574
Road 097
Road No. 398 from Mullewa to Coolecootier Pool shown in/on Government Gazette dated 10 November 1893, CPP 503027, CPP 503007, CPP 501694, Diagram 52349 (widening) and DP 204189
Road 114
Road No. 6514 shown in/on Government Gazette dated 24 January 1947, CPP 503007 and CPP 506776
Road 115
Road No. 6515 shown in/on Government Gazette dated 24 January 1947 and CPP503007
Road 117
Road No. 7095 shown in/on Government Gazette dated 11 April 1924, CPP 503027 and CPP 503007
Road 118
Road No. 7169 shown in/on Government Gazette dated 25 September 1936, CPP 501694 and CPP 501697
Road 119
Road No. 7170 shown in/on Government Gazette dated 3 October 1924 and CPP 501696
Road 122
Road No. 7173 shown in/on Government Gazette dated 3 October 1924 and CPP 503007
Road 123
Road No. 7175 shown in/on Government Gazette dated 3 October 1924, CPP 503007 and CPP 501696
Road 124
Road No. 7785 shown in/on Government Gazette dated 11 November 1927 and Diagram 52172. Deviation of part shown in/on Government Gazette dated 21 August 1970 and Original Plan 11488. Road as shown on DP 232420 and Diagram 52035
Road 128
Road No. 8389 shown in/on Government Gazette dated 10 January 1930, Government Gazette dated 2 July 1971 and CPP 503007
Road 131
Road No. 8619 shown in/on Government Gazette dated 19 December 1930, DP 203734, DP 20843 and Diagram 56139
Hist. Road 05
Road shown on DP 204833
Hist. Road 06
Roads shown on DP 204834
Hist. Road 12
Road No. 5084 shown in/on Government Gazette dated 20 November 1914, CPP 503000, CPP 501692 and CPP 501693
Hist. Road 16
Roads shown on DP 201135
Hist. Road 17
Roads shown on DP 201136
Hist. Road 18
Roads shown on DP 204638
Hist. Road 19
Roads shown on DP 204644
Hist. Road 20
Roads shown on DP 204649
Hist. Road 21
Road shown on DP 204651
Hist. Road 22
Roads shown on DP 204663
Hist. Road 23
Roads shown on DP 204664
Hist. Road 24
Roads shown on DP 204666
Hist. Road 25
Roads shown on DP 204668
Hist. Road 26
Roads shown on DP 204697
Hist. Road 27
Roads shown on DP 204698
Hist. Road 28
Roads shown on DP 204805
Hist. Road 29
Roads shown on DP 204814
Hist. Road 30
Roads shown on DP 204816
Hist. Road 31
Roads shown on DP 204817
Hist. Road 32
Roads shown on DP 204818
Hist. Road 33
Roads shown on DP 204830
Hist. Road 37
Road No. 6514 shown in/on Government Gazette dated 14 October 1921 and Public Plan 55/300
Hist. Road 38
Road No. 6514 shown in/on Government Gazette dated 24 January 1947 and Public Plan 55/300
Hist. Road 39
Road No. 6515 shown in/on Government Gazette dated 14 October 1921 and CPP 503007
Hist. Road 40
Road No. 7785 shown in/on Government Gazette 14 September 1928 and Diagram 52035
[5]For the avoidance of doubt, the description of any particular road contained in this column is provided for general information purposes only. The area of the relevant road is, unless otherwise specified, that depicted by the "MapInfo ID" in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated 30 December 2013.
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:
Taking Order
Purpose
L767947
Lease
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:
MapInfo or Lot on Plan ID.
Description
UCL 011 (Excluding Hist. Roads 18, 23, 24 and 33) Western Area UCL UCL 030 (Excluding Hist. Roads 18, 19, 21, 23, 29, 31 and 33) Western Area UCL UCL 041 Western Area UCL UCL 133 Western Area UCL UCL 134 Western Area UCL UCL 135 Western Area UCL UCL 136 Western Area UCL UCL 331 Western Area UCL UCL 332 Western Area UCL UCL 382 Western Area UCL UCL 383 Western Area UCL UCL 384 (Excluding Hist. Road 40) Western Area UCL UCL 385 Western Area UCL UCL 386 (Excluding Hist. Road 40) Western Area UCL P040610 12725[6] (Excluding Hist. Roads 05, 06, 19, 26, 27, 29 and 31) Western Area UCL P220469 11826 Western Area UCL P077591 401 (Excluding Hist. Roads 20, 22, 24, 25 and 28) Western Area UCL P077591 403 Western Area UCL P077591 402 (Excluding Hist. Roads 20, 22, 24 and 25) Western Area UCL P031634 11478 (Excluding Hist. Roads 16, 17, 25 and 32) Western Area UCL P077573 501 Western Area UCL P031634 11479 Western Area UCL P077592 419 Western Area UCL P404459 422 (Excluding Hist. Road 30) Western Area UCL UCL 317 (Excluding Hist. Road 39) Central Area UCL UCL 318 Central Area UCL UCL 319 Central Area UCL UCL 320 Central Area UCL UCL 321 Central Area UCL UCL 322 Central Area UCL UCL 323 Central Area UCL UCL 324 (Excluding Hist. Road 37) Central Area UCL UCL 325 (Excluding Hist. Road 39) Central Area UCL UCL 326 Central Area UCL UCL 327 Eastern Area UCL UCL 345 Eastern Area UCL UCL 346 (Excluding Hist. Road 12) Eastern Area UCL UCL 347 Eastern Area UCL UCL 348 Eastern Area UCL UCL 349 Eastern Area UCL UCL 381 Eastern Area UCL UCL 003 Yilgaddy Pool UCL UCL 013 Yilgaddy Pool UCL [6] To the extent within the Determination Area.
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:
Reserve No. Purpose 00182 Water & Stopping Place for Teams 00292 Water & Camping 00409 Resting & Watering Place for Travellers 00414 Watering Place 00415 Watering Place for Travellers & Stock 00416 Watering Place for Travellers & Stock 01013 Water 01806 Resting Place for Travellers & Stock 02968 Water 04275 Water 08885 Water Act 57 Vic No 20 09701 De Grey Mullewa Stock Route 10933 Hall Site Yuin Miners Union 11808 Trigonometrical Station 11809 Trigonometrical Station 11815 Trigonometrical Station 11816 Trigonometrical Station 11817 Trigonometrical Station 11818 Trigonometrical Station 12300 Vermin Proof Fence 14435 Barrier Fence Support Site 17017 Depot Site 17940 Water Rabbit Department 19392 Public Utility 39136 Trigonometrical Station 48435 Dampier to Bunbury Pipeline Act 1997 48494[7] Rabbit Proof Fence No 3 48372 State Infrastructure Corridor (and Reserve Lease J489237) [7] To the extent that this reserve follows the area of Reserve 12103 (Rabbit Proof Fence No. 3).
2. Pastoral Leases
(a)The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:
Lease No.
Station Name
PL N049424
Wandina
PL N049486
Yallalong
PL N049502
Murgoo
PL N049524
Yuin
PL N049633
Bullardoo
PL N049857
Twin Peaks
PL N049978
Carlaminda
PL N050041
New Forest
PL N050489
Pinegrove
PL N050549
Gabyon
PL N050610
Billabalong
PL N050613
Jingemarra
PL N050667
Tallering
(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:
MapInfo No. or Lot on Plan
General Description[8]
Road 004
Road shown on Public Plan M1002241
Road 007
Road shown on Tallering Temporary Survey Index Plan and DP 64845
Road 030 (part)[9]
Protected Road shown on Public Plan M0501942II
Unnumbered Road
Road Widening – Geraldton to Mt Magnet Road shown on DP 43521
Unnumbered Road
Road Widening – Geraldton to Mt Magnet Road shown on DP 43537
[8]For the avoidance of doubt, the description of any particular road contained in this column is provided for general information purposes only. The area of the relevant road is, unless otherwise specified, that depicted by the "MapInfo ID" in the MapInfo Tenure Information prepared by the Western Australian Land Information Authority dated 30 December 2013.
[9]Excluding the area previously subject to SL 3116/03178.
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 toBunbury 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 Act1978 (WA) and the rights and interests of the holders from time to time of those tenements:
(a) Exploration Licences
Tenement ID
E 0902299
E 0902390
E 0902391
E 0902397
E 0902823
E 5901151-I
E 5901989
E 5902077
E 5902137-I
E 5902140-I
E 5902152
E 5902170
E 5902239
E 5902240
E 5902295
E 5902321
E 5902363
E 5902364
E 5902397
E 5902407
E 5902408
E 5902415
E 5902437
E 5902451
E 5902454
E 5902455
E 5902456
E 5902458
E 5902526
E 5902543
E 5902549
E 5902580
E 5902616
E 5902652
E 5902653
E 5902654
E 5902702
E 5902703
E 5902705
E 5902748
E 5902831
E 7003732-I
E 7005051
E 7005298
E 7005382
E 7005383
E 7005464
E 7005705
E 7005732
(b) General Purpose Leases
Tenement ID
G 7000192
(c) Mining Leases:
Tenement ID
M 5900041
M 5900057
M 5900384
M 5900474
M 5900476
M 5900477
M 5900565
M 5900594
M 7000128
M 7000389
M 7000483
M 7000606
M 7000896-I
M 7001062-I
(d) Miscellaneous Licences:
Tenement ID
L 5900156
L 5900165
L 5900166
L 5900180
L 7000060
L 7000069
(e) Prospecting Licences:
Tenement ID Tenement ID Tenement ID P 5902086 P 5902134 P 5902323 P 5902087 P 5902138
6. Petroleum Interests
The following petroleum interests granted under the Petroleum and Geothermal Energy Resources Act1967 (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:
Interest Tenement Type EP 512 Exploration Permit PL 40 Pipeline Licence PL 43 Pipeline Licence PL 129 Pipeline Licence Easement J273182 Easement to operate, inspect, maintain and repair the Midwest High-Pressure Natural Gas Pipeline
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 Act1914 (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:
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;
D.for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Part F Determination Area in performance of their duties; and
E.under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Part F Determination Area.
(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) Act1995 (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:
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 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
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.
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).
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.
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.
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.
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.
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.
I thank the applicants for their hard work, dedication and persistence in getting to this result. Their community owes them a debt of gratitude.
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
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
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.
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.
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.
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.
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.
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 CDetermination): 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.
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.
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
The material filed with the Court is sufficient to conclude that it is appropriate to make the proposed Part F Determination.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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
I have made orders in accordance with the draft Minute.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 13 February 2025
ANNEXURE 1 – MAP
SCHEDULE OF PARTIES
WAD 28 of 2019
Applicants
Fourth Applicant:
ROBERT BUDD
Fifth Applicant:
PATRICIA NOLA COUNCILLOR
Sixth Applicant:
ANTHONY DANN
Seventh Applicant:
GAVIN EGAN
Eighth Applicant:
GF (DECEASED)
Ninth Applicant:
COLIN HAMLETT
Tenth Applicant:
DAVID JONES
Eleventh Applicant:
LANCE MONGOO
Twelfth Applicant:
PAM MONGOO
Thirteenth Applicant:
CARRUM MOURAMBINE
Fourteenth Applicant:
EP (DECEASED)
Fifteenth Applicant:
JUNE PEARCE
Sixteenth Applicant:
MAX PRIOR
Seventeenth Applicant:
ARTHUR RYAN
Eighteenth Applicant:
CHARLES SNOWBALL JNR
Nineteenth Applicant:
TS (DECEASED)
Twentieth Applicant:
DAVID WALGAR
Respondents
Fourth Respondent:
SHIRE OF MOUNT MAGNET
Fifth Respondent:
SHIRE OF YALGOO
Sixth Respondent:
YAMATJI MARLPA ABORIGINAL CORPORATION
Seventh Respondent:
AILSA LYNETTE ARITI
Eighth Respondent:
ROSS VINCE ARITI
Ninth Respondent:
BAGDEN PTY LTD
Tenth Respondent:
KYLIE ANN BLEECHMORE
Eleventh Respondent:
TIMOTHY ROY BLEECHMORE
Twelfth Respondent:
JOANNE MAREE CLEWS
Thirteenth Respondent:
ROSS MONTAGUE COLLINS
Fourteenth Respondent:
GEMMA LEE CRIPPS
Fifteenth Respondent:
HELEN MARGARET CRIPPS
Sixteenth Respondent:
MICHAEL THOMAS CRIPPS
Seventeenth Respondent:
DANIEL GERARD CRONIN
Eighteenth Respondent:
DAIN PTY LTD
Nineteenth Respondent:
KENNETH JAMES DARNELL
Twentieth Respondent:
FEYSVILLE PTY LTD
Twenty-First Respondent:
EMMA-JANE FOULKES-TAYLOR
Twenty-Second Respondent:
H M J FOULKES-TAYLOR
Twenty-Third Respondent:
J F FOULKES-TAYLOR
Twenty-Fourth Respondent:
ROSS EDMUND FOULKES-TAYLOR
Twenty-Fifth Respondent:
HAMILTON DEVELOPMENTS VIC PTY LTD
Twenty-Sixth Respondent:
DONALD RAYMOND HAMMARQUIST
Twenty-Seventh Respondent:
DANIEL JOHN HASTIE
Twenty-Eighth Respondent:
JASON GARY HASTIE
Twenty-Ninth Respondent:
JOHN DOUGLAS HAYES
Thirtieth Respondent:
S B HAYES
Thirty-First Respondent:
BARBARA WENDY JACKSON
Thirty-Second Respondent:
TOM STALEY JACKSON
Thirty-Third Respondent:
JOSEPH MAYNARD JENOUR
Thirty-Fourth Respondent:
LEANNE GAYE JENOUR
Thirty-Fifth Respondent:
LIAM TIMOTHY JOHNS
Thirty-Sixth Respondent:
WILLIAM EDWARD JOHNS
Thirty-Seventh Respondent:
JUDAL PASTORAL CO PTY LTD
Thirty-Eighth Respondent:
KAROO BUSH PTY LTD
Thirty-Ninth Respondent:
KIMBERLY PTY LTD
Fortieth Respondent:
M KIRKHAM
Forty-First Respondent:
LASTSTAR INVESTMENTS PTY LTD
Forty-Second Respondent:
LAVER PTY LTD
Forty-Third Respondent:
LOTON INVESTMENTS PTY LTD
Forty-Fourth Respondent:
CATHERINE ANN MARETT
Forty-Fifth Respondent:
DAVID JOHN MARETT
Forty-Sixth Respondent:
SOPHIE IRENE MARETT
Forty-Seventh Respondent:
DAMIEN CHARLES MCKEOUGH
Forty-Eighth Respondent:
LEANE ALYS MCKEOUGH
Forty-Ninth Respondent:
MT AUGUSTUS STATION (1980) PTY LTD
Fiftieth Respondent:
ANGELA MARIETHERESE MULCAHY
Fifty-First Respondent:
ANTHONY BENEDICT VANDELEUR MULCAHY
Fifty-Second Respondent:
CAITLIN VANDELEUR MULCAHY
Fifty-Third Respondent:
MICHAEL LAWRENCE VANDELEUR MULCAHY
Fifty-Fourth Respondent:
OAKVILLE NOMINEES PTY LTD
Fifty-Fifth Respondent:
OKU PTY LTD
Fifty-Sixth Respondent:
LESLIE MATTHEW PRICE
Fifty-Seventh Respondent:
JOCELYN CHRISTABEL PUMPA
Fifty-Eighth Respondent:
JOSHUA LEIGH PUMPA
Fifty-Ninth Respondent:
RAINSTAR HOLDINGS PTY LTD
Sixtieth Respondent:
REVIVE NOMINEES PTY LTD
Sixty-First Respondent:
ELLEN CECELIA ROWE
Sixty-Second Respondent:
K E SEIVWRIGHT
Sixty-Third Respondent:
M V SEIVWRIGHT
Sixty-Fourth Respondent:
SENGHOO AUSTRALIA PTY LTD
Sixty-Fifth Respondent:
BROOKE MARTINA SMITH
Sixty-Sixth Respondent:
DARREN PETER SMITH
Sixty-Seventh Respondent:
SMITH-WRIGHT PTY LTD
Sixty-Eighth Respondent:
M T TRANT
Sixty-Ninth Respondent:
KERRY RAYMOND WARK
Seventieth Respondent:
MARY SUSANNA WARK
Seventy-First Respondent:
WARREGO ENERGY EP512 PTY LTD
Seventy-Second Respondent:
AMPLITEL PTY LTD
Seventy-Third Respondent:
TELSTRA CORPORATION LIMITED
WAD 32 of 2018
Applicants
Fourth Applicant:
GEOFFREY MONGOO
Fifth Applicant:
JUNE PEARCE
Sixth Applicant:
ERIC SIMPSON
Seventh Applicant:
TS (DECEASED)
Eighth Applicant:
DAVID WALGAR
Ninth Applicant:
GAVIN EGAN
Tenth Applicant:
COLIN HAMLETT
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