Griffiths J
In this matter, Griffiths J made orders by consent recognising the native title rights and interests of the Wajarri Yamatji people in relation to Part A of the claim area. The claim area is approximately 225km east of Carnarvon and approximately 400km north of Perth. It covers approximately 68,743km2 of land and waters in the City of Greater Geraldton and the Shires of Chapman Valley, Cue, Meekatharra, Mount Magnet, Murchison, Northampton, Shark Bay, Upper Gascoyne and Yalgoo. The respondent parties were the Western Australian and Commonwealth governments, the Shires of Meekatharra, Mount Magnet and Yalgoo, Telstra Corporation Limited, 56 pastoral lessees and Yamatji Marlpa Aboriginal Corporation.
The application was separated into Part A and Part B, the latter being overlapped by the Wajarri Yamatji #2, Mullewa Wadjari Community and Widi Mob Applications. The Part A determination area contains 56 pastoral leases as well as areas of Crown reserve and unallocated Crown land. It also includes the area subject to the lease granted to the Commonwealth Scientific and Industrial Research Organisation (CSIRO) pursuant to the Murchison Radio-astronomy Observatory Agreement, as well as a large number of mining tenements.
The Wajarri Yamatji application is the result of the combination between 1999 and 2005 of seven native title determinations filed in the Court or lodged with the National Native Title Tribunal. Since the consolidation, the Wajarri Yamatji Application has been amended four times.
Griffiths J made the following observations at [48]: ‘Under Wajarri Yamatji traditional laws and customs, the determination area is, and has been since prior to sovereignty, the traditional country of the Wajarri Yamatji…While the Wajarri Yamatji attracted the attention of early ethnographers, it is not possible to definitively state the nature and content of the normative body of laws and customs under which rights and interests in land were held at sovereignty. It is likely that they comprised local family groups whose territories (or “runs”) were associated with a series of sites and waterholes (bimara). These ritually and mythologically important sites were the focus of cultural activity including the transmission of knowledge from one generation to the next. The local family group had subsistence rights in respect of the territory comprising that family's run. While the local family groups may have been discrete in terms of their membership, their respective territories were not. There was a degree of overlap. A number of sites and waterholes were known throughout the region.’
His Honour continued at [50]: ‘Today, rights in Wajarri Yamatji country are still localised, but within the proposed determination area decision-making occurs at a sub-group level. The sub-groups are themselves comprised of a number of “station groups”. Authority within the Wajarri society is dependent upon having first-hand knowledge of, and experience of, the country to which one is entitled by birth. [51] For most of the 20th century, Wajarri Yamatji continued to subsist in traditional ways and look after their country while they were engaged in full-time labour on the pastoral stations. They have passed this knowledge on to their family members over successive generations.’
The parties reached an agreement in accordance with s 87A of the Native Title Act 1993 (Cth) (NTA) as to the terms of a determination. Griffiths J noted that the Court may make the relevant order under either s 87 (see ss 87(1)(a)(ii) and (3)) or s 87A of the NTA. The repeal of s 87 (1)(d) of the NTA, means that the Court no longer has to first consider whether the order should be made under s 87A rather than s 87 of the NTA. The parties submitted that where it is possible for an order to be made under both ss 87 and 87A it is preferable to use 87A. This is because the balance of the Wajarri Yamatji Application (i.e. the portion overlapped by the Wajarri Yamatji #2, Mullewa Wadjari Community and Widi Mob Applications) will then be deemed to be amended to remove the area covered by the proposed determination (s 64(1B) NTA) and will also be exempt from the re-application of the registration test (s 190A(1A) NTA). The application will remain registered following the amendment, and the Native Title Registrar will be obliged to amend the Register of Native Title Claims even though the registration test has not been re-applied (s 190(3)(a) NTA).
His Honour was satisfied that the proposed determination was appropriate and within the power of the Court and made orders under s 87A declaring the determination.