Barker J
This matter has an adversarial history with an application for native title being contested on several grounds. In a hearing of the contested application on 28 August 2013, in Banjima People v State of Western Australia (No 2) [2013] FCA 868 (Banjima No 2), Barker J made orders that the Banjima people were entitled to a determination of native title under the Native Title Act 1993 (Cth) (NTA).
The decision in Banjima No 2 was made by reference to evidence going to connection and extinguishment. The applicants are the Banjima people and the respondents are the State of Western Australia, the Shires of Ashburton and Meekatharra, and 51 others (including Yamatji Marlpa Aboriginal Corporation and various mining entities and pastoral interests).
In Banjima No 2, Barker J invited the claimants to bring forward a minute of proposed determination, which was considered and given effect to in this matter.
Barker J's orders recognise that the Banjima people have exclusive as well as non-exclusive native title rights and interests over identified areas within their traditional lands. The creation of certain freehold interests, reserves, leases, dedicated roads and public works were identified as having completely extinguished native title and were excluded from the determination area.
Rights and interests
The nature and extent of the exclusive native title rights and interests in relation to the Exclusive Area, where ss 47A and 47B applies, including the right to conduct activities necessary to give effect to them are:
the right as against the whole world to possess, occupy, use and enjoy the land and waters of the Exclusive Area;
a right to make decisions about the use of the land and waters of the Exclusive Area by persons who are not members of the Banjima people; and
a right to control the access of others to the land and waters of the Exclusive Area
The nature and extent of the native title rights and interests in relation to the Determination Area (other than the Exclusive Area) are the no-exclusive rights to:
access and move about the land and waters of the Determination Area, be present on the land and waters, live on the land in camps and shelters, and engage in cultural activities on the land and waters including conducting and participating in ceremonies and meetings;
hunt and take fauna, gather and take flora, take fish and take stones, timber, ochre and water;
have access to, maintain and protect places and areas of importance on or in the land and waters of the Determination Area, including rock art, engraving sites, stone arrangements and the like.
Prescribed Body Corporate
Barker J also ordered that the Banjima Aboriginal Corporation is to hold the native title in trust for the Banjima people.