In this matter the Court ordered that:
No determination is made in respect of the excluded area. Proceedings WAD 6033 of 1998 and WAD 382 of 2017, to the extent that they cover that area, continue in case management before a Registrar of the Court.
Pursuant to sub-section 67(1) of the Native Title Act 1993 (Cth), proceedings WAD 6033 of 1998 and WAD 382 of 2017, to the extent that they cover the Part B Determination Area, be determined together.
In relation to the Part B Determination Area, there be a determination of native title in terms of the Part B Determination as provided for in Attachment A. The Part B Determination is to take effect immediately upon the making of a determination under section 56(1) or section 57(2) of the NTA as the case may be.
By 18 July 2018, a representative of the common law holders of the native title rights and interests shall indicate whether they intend to have the native title rights and interests held in trust and, if so, by whom.
If a prescribed body corporate is nominated in accordance with order 4, it will hold the native title rights and interests referred to in order 3 in trust for the common law holders of the native title rights and interests.
There be no determination in relation to:
the balance of the area covered by the Wajarri Yamatji #2 Application (which includes the area covered by the Wajarri Yamatji #4 Application); or
the Wajarri Yamatji Application to the extent that it covers that area.
Both proceedings be adjourned to a directions hearing on a date to be fixed.
There be no order as to costs.
[1] The proceedings concern applications made under s 61 of the Native Title Act 1993 (Cth) (NTA) for a determination of native title applications WAD6033/1998 (Wajarri Yamatji #1 Application) and WAD382/2017 (Wajarri Yamatji #2 Application). The applications are together known as the Wajarri Yamatji Applications. [2] The applicant in the Wajarri Yamatji Applications, the State of Western Australia and other respondents required under s 87A of the NTA to be parties to the proposed determination have reached an agreement as to the terms of a determination and form of orders that is appropriate to provide recognition of the native title rights and interests held by members of the Wajarri Yamatji in relation to part of the land and waters covered by the Wajarri Yamatji Applications (Determination Area).
[3] On 19 October 2017, the Wajarri Yamatji #1 Application was the subject of a determination of native title made under s 87A NTA: see I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215. The Wajarri Yamatji Part A Determination covered an area of approximately 68,743 square kilometres of land and waters in the Murchison and Gascoyne regions of Western Australia.2
The Wajarri Yamatji Part B Determination Area covers approximately 12,252 square kilometres of land and waters. The Wajarri Yamatji #2 Application covers approximately 14,234 square kilometres of land and waters. The whole of the Wajarri Yamatji #2 Application overlaps with the larger Wajarri Yamatji #1 Application. TheWajarri Yamatji Part B Determination Area covers areas of unallocated Crown land, Aboriginal-held pastoral leases and reserves for the benefit of Aboriginal People. It encompasses three Aboriginal communities (Pia Wadjari, Burringurrah and Buttah Windee) and two reserves located in the Weld Range (Wilgie Mia and Little Wilgie).
Griffiths J: [22] Indigenous people of the Mid-West, roughly, those of the Murchison and Gascoyne districts, use the term 'Yamatji', which means 'person', to describe themselves and recognise that they share some aspects of culture and law in common. Thus, Wajarri Yamatji translates to Wajarri person/people. [23] The Wajarri Yamatji form part of an overarching Wajarri society, which also encompasses those Nharnuwangga Wajarri persons whose native title rights and interests were recognised in Clarrie Smith v State of Western Australia [2000] FCA 1249. Griffiths J sets out the Wajarri Yamatji evidence in support of their claim in paragraphs [23] – [50] of his Honour’s reasons for judgment. [57] – [60] His Honour found that s 87A of the NTA was satisfied and that it was appropriate that the order be made [75].
[51] The Court was informed that the Wajarri Yamatji Applicant would not be in a position to seek a determination that their native title be held in trust by a prescribed body corporate at the time the Wajarri Yamatji Part B Determination is made. Accordingly, the determination of native title will not take effect until a prescribed body corporate is nominated under s 56 NTA.
Griffiths J concluded stating: [84] ‘I am satisfied 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 Wajarri Yamatji Part B Determination Area which complies with s 225 of the Native Title Act.’ [85] His Honour was satisfied that it was appropriate to make the proposed order by consent under s 87A of the NTA.