Griffiths J
The Court ordered that there be a determination of native title in relation to the Part C Determination Area. The Determination is to take effect immediately upon nominating and establishing a prescribed body corporate.
On 19 October 2017, the Court partially determined an application for a determination of native title in respect of WAD 6033 of 1998 by the Wajarri Yamatji people(WY #1 Application). The 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. On 23 April 2018, the Court partially determined the WY #1 Application and another related application for a determination of native title WAD 382 of 2017 (WY #2 Application). This Part B Determination covered an area of 12, 260 square kilometres of land and waters in the same regions of WA. The present case concerns two separate native title determination applications by the Wajarri Yamatji people: WAD 44 of 2018 (WY #4 Application) filed on 9 February 2018, and WAD 157 of 2018 (WY #5 Application) filed on 20 April 2018. The two applications, Part C, cover part of the area covered by the balance of the WY #1 and WY #2 Applications. The respondent parties were the State of Western Australian and the Shire of Murchison.
Additional apical ancestors
Schedule A to the Form 1 for the WY #4 and #5 Applications contains a list of forty-seven apical ancestors, which differs from the description in Schedule Six, which includes additional qualifications of identification and acceptance as Wajarri Yamatji in accordance with traditional law and customs, and an additional four apical ancestors due to further anthropological research. The Wajarri Yamatji claim group endorse Schedule Six.
Connection to country
His Honour held that the connection of the Wajarri Yamatji to Wajarri Yamatji country as described in the Part B Determination applies equally to the Part C Determination.
The Court was satisfied on the evidence that the applicants were authorised to consent to the proposed determination (at [28]). No issues arose regarding the satisfaction of s 87 of the NTA ([29]-[37]).
Appropriateness
Griffiths J then turned to the question of ‘appropriateness’ under s 87(1A). His Honour reiterated the true construction of s 87 to be in the context of mediation, meaning that occasionally it will be ‘appropriate for the court to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title’ (quoting North J in Ward v State of Western Australia [2006] FCA 1848). Additionally, his Honour found that appropriateness will likely be met where the Court is satisfied that the relevant government respondent is satisfied, through legal representation, that the applications have a ‘credible or cogent basis’ (at [43]-[45]), as well as where the State plays an active role in the negotiation (Emmett J in Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229).
Rights and interests
The nature and extent of the native title rights and interests are the exclusive rights to possession, occupation, use and enjoyment of the land and waters.
Prescribed body corporate
The determination is to take effect once the applicants nominate a prescribed body corporate, at which time orders will be sought that the Wajarri Yamatji #1 Application will be dismissed to the extent that it overlaps with the Part C Determination Area.