Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868

Mount Augustus National Park

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Colin Hamlett, Rochelle Baumgarten, Wanda Flanagan, GF (deceases), David Jones, Lance Mongoo, Pam Mongoo, Carrum Mourambine, Elizabeth Papertalk, June Pearce, R.S. (deceased), Tim Simpson, Charles Snowball Jnr and David Walgar on behalf of the Wajarri Yamatji People (Applicant) and the State of Western Australia, the Shire of Murchison, Yamatji Marlpa Aboriginal Corporation and Telstra Corporation Limited (Respondents)

Judge: Griffiths J 

Determination

Native title exists in part of the determination area 

It consists of exclusive native title rights and interests. 

Native title holders

Native title is held by the Wajarri Yamatji People.

Exclusive native title rights and interests exist over part of the determination area 

This is the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others. These exclusive rights do not apply to water, nor minerals, petroleum or geothermal energy. 

The areas where exclusive native title exists are described in Schedule 4 as being unallocated Crown land, with the exception of public works as described in Schedule 3. 

Other rights and interests in the determination area include those held:

• under exploratory licences granted for a total of fifteen tenements and a single miscellaneous licence under the Mining Act 1904 and the Mining Act 1978. Right and interests include a right to use portions of existing roads to access and exercise the mining tenement;
• for enforcing the operation of laws, including the Rights in Water and Irrigation Act 1914 (WA);
• by the public, including a public right to fish, a public right to navigate, and a right to use and enjoy any roads which they have a common law right of access to;
• by employees, agents or instrumentalities of the State, local governments or Commonwealth for access;
• by Telstra to manage and maintain their telecommunication facilities; and
• existing public access. 

See Schedule 5 for further information about the non-native title rights and interests. 

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

The Warraji Yamaji Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Warraji Yamatji.

Full text of the determination is available via the URL link above.

Background

Wajarri Yamatji (Part E) falls within a chronology of eight individual native title claims by the Wajarri Yamatji People, resulting in a significant procedural history. The Wajarri Yamatji (Part E) claim area covers 649.75 sq kms of unallocated crown land [10-11]. 

The relevant determination area falls within that detailed in the Wajarri Yamatji Application #2 (WAD 382 of 2017), a large area of Application #2 was considered in Wajarri Yamatji (Part B). The determination area of Wajarri Yamatji (Part E) was not considered since the area was under numerous exploration licences under the Mining Act 1984 [B]. Until 2019 it was undecided as to whether exploration licences constituted a lease, thus extinguishing the native title claimed, in Tjungarrayi v Western Australia [2019] HCA 12 the High Court ruled that such licences did not qualify as 'leases' under s 47(1)(b)(i) of the Native Title Act [E]. 

Wajarri Yamatji (Part E) shares great similarity to Wajarri Yamatji (Part D) and much of Griffiths J's judgment references this determination.

Details of Judgment

The Court ruled, in accordance with s 87 of the Native Title Act, that it was satisfied the determination should be made [18]. The notice period under s 66 of the Native Title Act had been satisfied and the written agreement signed by the parties was within the Court's power to approve [17(a)-(c)]. 

The Court was satisfied that the Wajarri Yamatji Peoples have a sufficient connection to country under s 47B of the Native Title Act. The Yamatji Marlpa Aboriginal Corporation presented documents supporting this, in particular affidavits supporting the connection of three additional apical ancestors added to support this determination [12].

The parties submitted that native title does not exist subject to interests in public works (Schedule 3 [1]). The Court invited the parties to establish the precise location and boundaries of public works (Attachment A [9]).

The parties requested that the Court make the determination without holding a hearing, pursuant to s 87(2) of the Native Title Act. 

Native title exists in parts of the determination area.

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