FEDERAL COURT OF AUSTRALIA

Forrest on behalf of the Kakarra Part A Claim Group v State of Western Australia (No 3) [2025] FCA 425

ORDERS

THE COURT NOTES THAT:

A.    The applicants in proceeding WAD 297 of 2020 have made a native title determination application (Kakarra Part A Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (Native Title Act).

B.    The applicants in the Kakarra Part A Application, the State of Western Australia and the other respondents to the Kakarra Part A Application (the parties) have reached an agreement as to the terms of the determination which is to be made in relation to all the land and waters covered by the Kakarra Part A Application (the Determination Area) except for those lands and waters the subject of Lot 238 as shown on Deposited Plan 34251. The external boundaries of the Determination Area are described in Schedule One to the Determination.

C.    The terms of the agreement involve the making of consent orders for a determination pursuant to sections 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area (save for those areas identified in Schedule Four).

D.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, should be recognised as the native title holders for the Determination Area as set out in the determination.

E.    Pursuant to section 87(2) of the Native Title Act, the parties have requested that the Court determine the proceedings that relate to the Determination Area without holding a hearing.

F.    The applicants in the Kakarra Part A Application have nominated the Kakarra Aboriginal Corporation (ICN 10101) pursuant to section 56(2)(a) of the Native Title Act to hold the

determined native title in trust for the native title holders.

G.    Having regard to the need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, negotiations with respect to a potential agreement to be made pursuant to section 47C(1)(b) of the Native Title Act will be addressed subsequent to this determination. Pursuant to section 13(5)(c) of the Native Title Act, the registered native title body corporate and the State will seek to revise this determination to reflect any such agreement.

BEING SATISFIED that a determination of native title in the terms set out in Attachment A is within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to sections 87 and 94A of the Native Title Act and by the consent of the parties:

THE COURT ORDERS THAT:

1.     In relation to the Determination Area, there be a determination of native title in WAD 297 of 2020 in the terms provided for in Attachment A.

2.     The Kakarra Aboriginal Corporation (ICN 10101) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act.

3.     There shall be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ATTACHMENT A

DETERMINATION

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title: section 225 Native Title Act

1.    Subject to paragraph 2, native title exists in the Determination Area in the manner set out in paragraphs 4 and 5 of this determination.

2.    Native title does not exist in those parts of the Determination Area that are identified in Schedule Four.

Native title holders: section 225(a) Native Title Act

3.    The native title in the Determination Area is held by the persons described in Schedule Seven (“Native Title Holders”).

The nature and extent of native title rights and interests and exclusiveness of native title: sections 225(b) and 225(e) Native Title Act

Exclusive rights and interests

4.    Subject to paragraphs 6 and 10, the nature and extent of the native title rights and interests in relation to the Exclusive Area are the right to possession, occupation, use and enjoyment to the exclusion of all others.

Non-exclusive rights and interests

5.    Subject to paragraphs 6, 7 and 10, the nature and extent of the native title rights and interests in relation to the Non-Exclusive Area are that they confer the following non-exclusive rights:

(a)    the right to access, remain in and use the Non-Exclusive Area;

(b)    the right to access, take and use the resources, of the Non-Exclusive Area for any purpose;

(c)    the right to make decisions regarding the use and enjoyment of the land and waters by Aboriginal peoples who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders;

(d)    the right to engage in spiritual and cultural activities including the transmission of spiritual and/or cultural knowledge on the Non-Exclusive Area; and

(e)    the right to maintain and protect places and objects of significance on the Non-Exclusive Area.

Qualifications on the native title rights and interests

6.    Notwithstanding anything in this determination, the native title rights and interests set out in paragraphs 4 and 5:

(a)    are subject to and exercisable in accordance with:

(i)    the laws of the State and the Commonwealth, including the common law; and

(ii)    the traditional laws and customs of the Native Title Holders;

(b)    do not confer exclusive rights in relation to water in any watercourse, wetland or underground water source as is defined in the Rights in Water and Irrigation Act 1914 (WA); and

(c)    do not confer any rights in relation to:

(i)    minerals as defined in the Mining Act 1904 (WA) (repealed) and in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the

(iii)    Petroleum and Geothermal Energy Resources Act 1967 (WA); or

(iv)    geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA).

7.    The native title rights and interests set out in paragraph 5 do not confer:

(a)    possession, occupation, use and enjoyment on the Native Title Holders to the exclusion of all others; or

(b)    a right to control the access to, or use of, the Non-Exclusive Area or its resources.

Areas to which ss 47A or 47B of the Native Title Act apply

8.    Sections 47A and 47B of the Native Title Act apply to disregard any prior extinguishment in relation to those parts of the Determination Area identified in Schedule Five.

The nature and extent of any other interests

9.    The nature and extent of the Other Interests are described in Schedule Six.

Relationship between native title rights and other interests

10.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in paragraphs 4 and 5 and the Other Interests described in Schedule Six is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.

Definitions and Interpretation

11.    In this determination, unless the contrary intention appears:

“Determination Area” means the land and waters described in Schedule One and depicted on the maps at Schedule Two;

“Exclusive Area” means those lands and waters of the Determination Area described in Schedule Three (which areas are generally shown as shaded green on the maps in Schedule Two);

“Native Title Act” means the Native Title Act 1993 (Cth);

“Native Title Holders” means the people described in Schedule Seven and referred to in paragraph 3;

“Non-Exclusive Area” means those lands and waters of the Determination Area which are not Exclusive Areas or described in paragraph 2 as an area where native title does not exist (which areas are generally shown as shaded yellow on the maps at Schedule Two);

“Other Interests” means the legal or equitable estates or interests and other rights in relation to the Determination Area described in Schedule Six and referred to in paragraph 9;

“Titles Validation Act” means the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).

12.    In the event of any inconsistency between the written description of an area in Schedule One, Three, Four, Five or Six and the area as depicted on the maps at Schedule Two the written description prevails.

SCHEDULE ONE

DETERMINATION AREA

The Determination Area, generally shown as bordered in blue on the maps at Schedule Two, comprises all land and waters bounded by the following description:

All those land and waters commencing at the intersection of a line joining Latitude 30.163173 South, Longitude 122.917613 East and Latitude 30.131239 South, Longitude 122.942574 East with the Goldfields Representative Aboriginal and Torres Strait Islander Body (RATSIB) area boundary also being a point on the boundary of Native Title Determination WAD298/2020 Kakarra Part B (WCD2023/004); Then generally southwesterly, generally southerly and generally southeasterly along the boundaries of that native title determination to a northern boundary of Native Title Determination WAD6020/1998 Ngadju (WCD2014/004); Then generally westerly along the northern boundaries of that native title determination to a northeastern corner of Native Title Determination WAD6020/1998 Ngadju Part B (WCD2017/002) being the intersection of the southern boundary of Lot 227 as shown on Deposited Plan 238373 with Longitude 121.936620 East; Then generally northwesterly through the following coordinate points:

Then northwesterly to the intersection of a line joining Latitude 30.055662 South, Longitude 121.162068 East and Latitude 29.895316 South, Longitude 120.754843 East with the northern boundary of Lot 42 as shown on Deposited Plan 220358 at approximate Longitude 120.874278 East; Then easterly along the northern boundaries of that lot to a northeastern corner at approximate Latitude 29.942231 South, Longitude 121.088786 East; Then easterly to Latitude 29.940025 South, Longitude 121.126441 East being a point on the present boundary of WAD91/2019 Nyalpa Pirniku (WCD2023/002); Then generally easterly, generally southeasterly, southerly, generally northeasterly and easterly along the boundaries of that native title determination back to the commencement point.

EXCLUSION

All that land comprising Reserve Lease M292214 being Lot 238 as shown on Deposited Plan 34251.

Note:        Geographic Coordinates provided in Decimal Degrees.

All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28th June 2024.

Representative Aboriginal/Torres Strait Island Body (RATSIB) areas sourced from National Native Title Tribunal as at 16 January 2023.

For the avoidance of doubt the application excludes any land and waters already claimed by:

Native Title Determination WAD91/2019 Nyalpa Pirniku (WCD2023/002) as Determined in the Federal Court on 31 October 2023.

Native Title Determination WAD298/2020 Kakarra Part B (WCD2023/004) as Determined in the Federal Court on 29 November 2023.

Native Title Determination WAD6020/1998 Ngadju (WCD2014/004) as Determined in the Federal Court on 21 November 2014.

Native Title Determination WAD6020/1998 Ngadju Part B (WCD2017/002) as Determined in the Federal Court on 17 July 2017.

Native Title Determination Application WAD647/2017 Marlinyu Ghoorlie (WC2017/007) as accepted for registration 31 July 2023.

Datum:    Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Geospatial (Landgate) 18th September 2024

Use of Coordinates:

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE TWO

MAPS OF THE DETERMINATION AREA

SCHEDULE THREE

EXCLUSIVE AREAS

Areas where native title comprises the rights set out in paragraph 4

Native title comprises the rights and interests set out in paragraph 4 of the determination in relation to the following areas (which areas are generally shown as shaded green on the maps at Schedule Two):

1.    Reserves

The following reserves:

2.    Unallocated Crown Land

The following portions of unallocated Crown land (UCL):

SCHEDULE FOUR

AREAS WHERE NATIVE TITLE DOES NOT EXIST

Paragraph 2

Native title does not exist in relation to land and waters the subject of the following interests within the Determination Area which, with the exception of public works (as described in clause 6 of this Schedule), are generally shown as shaded in pink on the maps at Schedule Two.

For the avoidance of doubt, the non-existence of native title is not necessarily a result of the grant or creation of these interests.

1.    Freeholds

The following grants of estates in fee simple:

2.    Reserves

The following reserves:

3.    Leases

The following leases:

4.    Roads

The following dedicated roads, roads set aside, taken or resumed or roads which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):

5.    Railways

The following railways (including both their current and historical extents) which are to be considered public works (as that expression is defined in the Native Title Act and the Titles Validation Act):

(a)    the Kalgoorlie to Menzies Railway constructed pursuant to the Kalgoorlie - Menzies Railway Act 1896 (WA) and whose line is generally described in the Schedule to that Act.

6.    Public Works

Any other public works as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the Titles Validation Act, section 23C(2) of the Native Title Act or sections 24JA and 24JB(2) of the Native Title Act apply.

SCHEDULE FIVE

AREAS TO WHICH SECTIONS 47A and 47B OF THE NATIVE TITLE ACT APPLY

Paragraph 8

1.    Section 47A

Section 47A of the Native Title Act applies with the effect that any extinguishment by the creation of the following interests (and by the creation of any other prior interests in relation to the area of the following interests) is to be disregarded:

2.    Section 47B

Section 47B of the Native Title Act applies with the effect that any extinguishment over the following areas by the creation of any prior interest is to be disregarded:

For the avoidance of doubt, for the purpose of this Schedule, a "prior interest" does not include a public work as that expression is defined in the Native Title Act and the Titles Validation Act (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act).

SCHEDULE SIX

OTHER INTERESTS

Paragraph 9

The nature and extent of the Other Interests in relation to the Determination Area are as follows.

Land tenure interests registered with the Western Australian Land Information Authority are current as at 21 August 2024. Mining tenements registered with the Department of Mines, Industry Regulation and Safety are current as at 6 September 2024. Petroleum interests registered with the Department of Mines, Industry Regulation and Safety are current as at 6 September 2024. All other interests are current as at the date of the determination.

1.    Reserves10

(a)    The following reserves:

(b)    The rights and interests of persons who have the care, control and management of the reserves identified in subclause (a) above;

(c)    The rights and interests of persons entitled to access and use the reserves identified in subclause (a) above for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights; and

(d)    The rights and interests of persons holding leases over areas of the reserves identified in subclause (a) above.

2.    Unallocated Crown Land

(a)    The rights and interests of the persons who have the care, control and management of, and persons entitled to the access and use of Reserve 04364 to continue to access the following UCL for the purpose of accessing and using Reserve 04364:

(b)    The rights and interests of the public to continue to use and access any water in the following UCL:

3.    Pastoral Leases

(a)    The following pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

4.    Roads

(a)    The following roads and the rights and interests of the persons having the care, control and management of those roads from time to time:

5.    Mining Tenements

(a)    The following mining tenements granted under the Mining Act 1904 (WA) (repealed) and / or the Mining Act 1978 (WA) and the rights and interests of the holders from time to time of those tenements:

(i)    Exploration Licences:

(i)    

(ii)    General Purpose Leases:

(iii)    Mining Leases:

(iv)    Miscellaneous Licences:

(v)    Prospecting Licences:

6.    Petroleum Interests

(a)    The agreement as amended and ratified by the Goldfields Gas Pipeline Agreement Act 1994 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following:

7.    Telstra Corporation Limited and Amplitel Pty Ltd

(a)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their related bodies corporate and successors in title:

(i)    as the owners or operators of telecommunications facilities within the Determination Area;

(ii)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(A)    to inspect land;

(B)    to install, occupy and operate telecommunications facilities; and

(C)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(b)    for their employees, agents or contractors to access their telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(c)    under any lease, licence, permit, access agreement or easement relating to their telecommunications facilities in the Determination Area.

8.    Other

(a)    Rights and interests, including licences and permissions, held under valid or validated grants from the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4.

(b)    Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA).

(c)    The right to access the Determination Area by an employee, agent or instrumentality of:

(i)    the State;

(ii)    the Commonwealth;

(iii)    any local government authority,

as required in the performance of his or her statutory or common law duty where such access would be permitted to private land.

(d)    So far as confirmed pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) as at the date of this Determination, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    beds and banks or foreshores of waterways;

(iii)    stock routes; or

(iv)    areas that were public places at the end of 31 December 1993

SCHEDULE SEVEN

NATIVE TITLE HOLDERS

Paragraph 3

1.    The native title holders are those persons who:

(a)    hold native title rights and interests in the Determination Area through the following:

(i)    being descended from forebears who were either:

A.    living in the Determination Area at effective sovereignty; or

B.    born in the Determination Area in the historic era; and

(ii)    being born in the Determination Area; and/or

(iii)    growing up within the Determination Area; and/or

(iv)    having long term association with and knowledge of the Determination Area; and

(b)    have a connection with the Determination Area;

in accordance with traditional law and custom.

2.    As at the date of this Determination, the forebears referred to at 1(a)(i) include:

(a)    Noona Roundhead;

(b)    the spouses Miimiidhaanuu (Peter Mimitjunu or King Peter) and Maggie;

(c)    Padalji (Jack Anderson);

(d)    Yambii (Alice Yampi);

(e)    Wipaana (also known as Wiparna, Noorie Weebunner or Maggie Weebunner);

(f)    the spouses Jimmy Teatree and Judaabi (Tutaabii/ Nellie Teatree);

(g)    Morrel;

(h)    Sinclair Beeberwin (father of Don Sinclair);

(i)    the siblings Tuwarn (Linda Smith) and Juwi (Joey Walker);

(j)    Thanang (Minnie Walker);

(k)    Kileen Ngurrnmpurrna (Kyaleen Numbaarn), mother of Timothy Rundle;

(l)    Toby Willis, Victor Willis and Betty Kennedy

(m)    Minnie Nimbud;

(n)    Ungala (Mary Nugget);

(o)    Bowie (mother of Lulu Bilsen);

(p)    Jack Kennedy and Jean Kennedy Woggagi; and

(q)    Thomas Henry Cooper.

REASONS FOR JUDGMENT

MCEVOY J:

1    By an application filed on 16 December 2020 pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the Act), the applicants, on behalf of the Kakarra Part A Native Title claim group, sought a determination of native title rights and interests over approximately 10,889 square kilometres of land and waters in the southern region of Western Australia, located approximately 30 kilometres south east of Kalgoorlie (Kakarra Part A Application or the Application). The parties to the Application now seek orders pursuant to ss 87 and 94A of the Act for a consent determination of native title rights and interests. On 14 March 2025 the applicants filed a minute of proposed consent determination of native title (the Minute) which gives effect to the terms of an agreement reached between the parties. The Minute provides recognition of the native title rights and interests held by the members of the claim group over the land and waters covered by the Application, excluding all the land comprising Reserve Lease M292214, being Lot 238 as shown on Deposited Plan 34251 (Determination Area).

2    The lands and waters of the Determination Area feature salt lakes, such as Lake Yindarlgooda and Lake Goongarrie, and woodlands which feature in the south western part of the area, as well as mulga and spinifex vegetation which dominate the eastern part of the area. The Determination Area also comprises a portion of the Goongarrie National Park and a number of pastoral leases. In addition, a number of reserves have been created and exploration licences, general purpose leases, mining leases, prospecting licences and petroleum interests have also been granted in the Determination Area.

3    The external boundaries of the Determination Area are described in Schedule 1 of the Minute and depicted in the maps in Schedule 2 (not including the excluded areas, being the land and waters described in Schedule 1 and depicted on the maps in Schedule 2).

4    For the reasons that follow, I am satisfied that it is within the power of the court to make the orders sought, and that it is appropriate to do so.

THE MATERIAL BEFORE THE COURT

5    The following documents have been filed in support of the Application:

(a)    the Minute, which has been signed by each of the parties to the proceeding;

(b)    joint submissions of the applicants and the State of Western Australia in support of the Minute dated 14 March 2025;

(c)    an affidavit of the applicants’ solicitor, Ms Brooke Creemers, affirmed 13 March 2025 (Creemers affidavit) in support of the Minute and the nomination of the Kakarra Aboriginal Corporation RNTBC (ICH: 10101) (Kakarra Aboriginal Corporation) as the prescribed body corporate for the purposes of s 56(2) of the Act, which affidavit annexes true copies of:

(i)    an extract of the outcomes of the Kakarra Part A claim group meeting held on 20 September 2024 (Authorisation Meeting);

(ii)    the notice of the Authorisation Meeting;

(iii)    the amended notice of the Authorisation Meeting;

(iv)    an email from Emiko Watanabe to Gary Cooper, Maria Bandry, Victoria Cooper and Norman Cooper (together, the Coopers), with attachment;

(v)    an email from Brooke Creemers to the Coopers, with attachment;

(vi)    the attendance list of the Authorisation Meeting;

(vii)    Schedule A of the Kakarra Part A Application;

(viii)    Schedule 7 of the Minute;

(ix)    the outcomes of the Kakarra Part A claim group meeting held 1 December 2022;

(x)    a letter from Fergus Stewart to the Kakarra Aboriginal Corporation, with attachment;

(xi)    the consent of the Kakarra Aboriginal Corporation to its nomination as prescribed body corporate; and

(d)    an affidavit of the registered contact person for the Kakarra Aboriginal Corporation, Mr Fabian Ponton, affirmed 12 March 2025 (Ponton affidavit) in support of the nomination of the Kakarra Aboriginal Corporation as the prescribed body corporate for the purposes of s 56(2) of the Act, which affidavit annexes true copies of:

(i)    the notice of meeting for the Kakarra Aboriginal Corporation Special General Meeting and Annual General Meeting;

(ii)    the letter received from the applicants in relation to the recognition of the Coopers;

(iii)    the special resolutions passed at the Kakarra Aboriginal Corporation special general meeting as extracted from the meeting minutes;

(iv)    the Consent to Nomination of the Kakarra Aboriginal Corporation as the prescribed body corporate for Kakarra Part A common law holders; and

(v)    the current rule book of the Kakarra Aboriginal Corporation.

6    The joint submissions of the applicants and the State are similar in content and form to the joint submissions filed in the native title determination in Forrest on behalf of the Kakarra Part B Claim Group v State of Western Australia [2023] FCA 1461 (McEvoy J) (Kakarra Part B determination). This is because the application for the Kakarra Part B determination was made by the same applicants as the Kakarra Part A Application, on behalf of a claim group which is almost identical, other than one additional forebear to the Kakarra Part A Application, Thomas Henry Cooper. The prescribed body corporate nominated for the Kakarra Part A common law holders is also the same as the prescribed body corporate in the Kakarra Part B determination. In that context, these reasons are in similar terms to the reasons for the Kakarra Part B determination.

PROCEDURAL BACKGROUND AND THE PROCESS TOWARDS A CONSENT DETERMINATION

7    The Application is made by Dennis Forrest, JM (deceased, name withheld for cultural reasons), Michael Tucker, Yvonne Oliver, Shayne Warmdean, Travis Tucker and Tom Graham on behalf of the Kakarra Part A claim group.

8    The respondent parties to the Kakarra Part A Application are the State, the City of Kalgoorlie Boulder, the Shire of Menzies, Gascoyne Mining Pty Ltd, GPM Resources Pty Ltd, St Barbara Limited, St Ives Gold Mining Company Pty Ltd, David Shane Morey, Eric Wiliam Morey, Riversgold (Australia) Pty Ltd, Silver Lake (Integra) Pty Limited, Silver Lake Resources Limited, Amplitel Pty Ltd and Telstra Corporation Limited.

9    Pursuant to s 190A of the Act, the Kakarra Part A Application was assessed against the provisions of ss 190B and 190C of the Act by a delegate of the Native Title Registrar. The Kakarra Part A Application was notified by the Native Title Registrar pursuant to s 66 of the Act, and the notification period referred to in ss 66(8) and 66(10) of the Act ended on 15 September 2021.

10    The Kakarra Part A and Kakarra Part B Applications were originally authorised as one application but were brought as two separate applications for two reasons. First, it was apparent that the Kakarra Part B Application area was going to be overlapped by what became the application brought in proceeding WAD 281 of 2020 (the Upurli Upurli Nguratja Application). The overlap between the Upurli Upurli Nguratja Application and the Kakarra Part B Application was resolved at mediation, where it was agreed that the respective applications would be amended so that the eastern boundary of the Kakarra Part B Application and the western boundary of the Upurli Upurli Nguratja Application met at the western boundary of the Cundeelee Reserve.

11    Secondly, the Kakarra Part A Application was filed separately because the Kakarra Part A Application area at the time of filing partly overlapped by the Maduwongga Native Title Claim (proceeding number WAD 186 of 2017). Following judgment on a separate question in Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270 (Jackson J), the Maduwongga Native Title Claim was dismissed on 28 April 2023. Were it not for these overlaps, the Kakarra Part A and Kakarra Part B Applications would have been filed as one application.

12    Parts of the Determination Area border:

(a)    the determination of native title made in Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294 (Abraham J);

(b)    the determination of native title made in Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (Marshall J); and

(c)    the determination of native title made in the Kakarra Part B determination.

THE CLAIMANTS AND THEIR COUNTRY

13    Schedule 7 of the Minute describes the native title holders for the Determination Area. The description reflects traditional law and custom with respect to the acquisition of rights and interests in the Determination Area. Each of the Kakarra Part A claimants have a connection to the country of the Determination Area through these pathways, as did their predecessors at the acquisition of British sovereignty.

14    The native title holders are those persons who, in accordance with traditional law and custom:

(a)    hold native title rights and interests in the Determination Area through the following:

(i)    being descended from forebears who were either:

(A)    living in the in the Determination Area at effective sovereignty; or

(B)    born in the Determination Area in the historic era; and

(ii)    being born in the Determination Area; and/or

(iii)    growing up in the Determination Area; and/or

(iv)    having long term association with and knowledge of the Determination Area; and

(b)    have a connection with the Determination Area.

15    As at the date of this consent determination the forebears referred to in [14] above include:

(a)    Noona Roundhead;

(b)    the spouses Miimiidhaanuu (Peter Mimitjunu or King Peter) and Maggie;

(c)    Padalji (Jack Anderson);

(d)    Yambii (Alice Yampi);

(e)    Wipaana (also known as Wiparna, Noorie Weebunner or Maggie Weebunner);

(f)    the spouses Jimmy Teatree and Judaabi (Tutaabii/ Nellie Teatree);

(g)    Morrel;

(h)    Sinclair Beeberwin (father of Don Sinclair);

(i)    the siblings Tuwarn (Linda Smith) and Juwi (Joey Walker);

(j)    Thanang (Minnie Walker);

(k)    Kileen Ngurrnmpurrna (Kyaleen Numbaarn), mother of Timothy Rundle;

(l)    Toby Willis, Victor Willis and Betty Kennedy;

(m)    Minnie Nimbud;

(n)    Ungala (Mary Nugget);

(o)    Bowie (mother of Lulu Bilsen);

(p)    Jack Kennedy and Jean Kennedy Woggagi; and

(q)    Thomas Henry Cooper.

16    There are some differences between the description of the native title holders in the Kakarra Part A Application and the description of native title holders in the Minute and in these reasons. The Creemers affidavit explains that the reasons for these differences are:

(a)    the description of the “pathways” to connection and giving rise to rights and interests in country as set out in the Minute at Schedule 7 better reflect the application of traditional laws and customs of the Determination Area; and

(b)    the inclusion of additional named forebears has ensured those recognised by the claim group as being common law holders are properly described.

17    In any event, the proposed amendments have been accepted and agreed to by the State.

18    The description of the native title holders in Schedule 7 of the Minute (except for the inclusion of Thomas Henry Cooper) was authorised at the Authorisation Meeting. As has been mentioned, the description of native title holders in Schedule 7 of the Minute is identical to the description of native title holders in the Kakarra Part B determination, except that the Kakarra Part B description of native title holders does not include Thomas Henry Cooper as a named forebear. The evidence before the court explains that this is because:

(a)    the Coopers did not initially seek to be involved (either formally by joining as respondent parties, or otherwise) in the Kakarra Part B Application or the Upurli Upurli Nguratja Application; and

(b)    the Kakarra Part A claim group has recognised the Coopers (and other descendants of Thomas Henry Cooper) as having rights and interests in the Determination Area on the basis that they have rights and interests in, and connection to, the Gindalbie area, which is only in the Determination Area.

19    At the time the Kakarra Part A Application was filed, the Coopers were not named, by reference to a forebear, as being part of the claim group. The Coopers filed a Notice of Intention to Become a Party to the Kakarra Part A Application on 14 September 2021 and were joined as respondents to the Application on 29 September 2021. At a meeting in October 2023, members of the Kakarra Part A claim group invited the Coopers to join and be part of the claim group. Recognition of the Coopers as part of the Kakarra Part A claim group was then expressly made at the claim group meeting on 7 December 2023 and confirmed at the Authorisation Meeting.

20    By an amended interlocutory application dated 7 February 2025, the applicants sought, amongst other things, an order pursuant to s 84(8) of the Act that the Coopers cease to be respondent parties to the Kakarra Part Application. That application was granted and an order was made removing the Coopers as respondent parties to the Kakarra Part A Application: see Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia (No 2) [2025] FCA 140 (McEvoy J).

21    Section 61(1) of the Act permits the making of a native title determination application by those persons who are authorised (as defined by s 251B of the Act) by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed.

22    The Act vests in the persons jointly comprising the applicants the carriage of the Kakarra Part A Application meaning that the applicants may deal with all matters arising under the Act in relation to the application pursuant to s 62A of the Act. This includes consenting to a determination of native title pursuant to s 87 of the Act.

23    The Kakarra A claimants have considered and confirmed the authorisation of the applicants to act in that capacity and to enter into the Minute. On that basis, the applicants are authorised by the native title holders to consent to the proposed determination of native title rights and interests set out in the Minute.

THE CONNECTION OF THE KAKARRA PART A CLAIMANTS TO COUNTRY

24    An application for a native title determination under s 87 of the Act is founded on the free and informed consent to the agreement by all parties. It does not require the court to determine all the issues in the application: Ryan (Snr) on behalf of the Warrgamay People v State of Queensland [2021] FCA 977 at [34] (Murphy J) (Ryan). Nevertheless, this determination and these reasons are a permanent record for the Kakarra Part A claimants of the recognition by Australian law of their native title rights. Accordingly, it is appropriate to record certain matters about the Kakarra Part A claimants and their country.

25    The joint submissions note that the State considered the following material in its assessment of the connection of the Kakarra Part A claimants to the Determination Area, and the requirement of “occupation” for the application of ss 47A and 47B of the Act:

(a)    Preliminary Anthropological Report on the Kakarra Applications in the Eastern Goldfields Region, authored by Ms Olivia Norris and Mr Robin Stevens dated 15 January 2021 (preliminary report);

(b)    A short Anthropological Report in Response to the State of Western Australia’s queries regarding the Kakarra Part A Claim, authored by Ms Olivia Norris and Mr Robin Stevens dated 4 August 2022;

(c)    Supplementary Anthropological Report Regarding the Kakarra Part B Claim For Consideration By the Anthropologists Working on the Upurli Upurli Nguratja Claim, authored by Ms Olivia Norris and Mr Robin Stevens dated 29 July 2022;

(d)    Joint Report in relation to Kakarra Part B (WAD298/2020) and Upurli Upurli Nguratja (WAD281/2020), authored by Dr Scott Cane, Mr Robin Stevens, Ms Olivia Norris, and Mr Thomas Rossiter, dated 30 September 2022;

(e)    affidavits from the following Kakarra Part A claimants:

(i)    Mr John Walter Graham affirmed 15 January 2021; and

(ii)    Mr Travis Tucker sworn 14 January 2021; and

(f)    witness statements of the following Kakarra Part A claimants:

(i)    Mr Dennis Forrest dated 29 August 2022; and

(ii)    Mr Michael Tucker dated 30 August 2022,

(collectively, the Connection Material).

26    The State has agreed to the Minute on the basis that the Connection Material evidences the connection of the Kakarra Part A claim group to the Determination Area.

27    The State has accepted that the Connection Material provides sufficient evidence of occupation to support the application of s 47A of the Act to disregard any extinguishment by the creation of prior interests in relation to areas within the Determination Area subject to Lease 50522 granted for the purpose of "Use and Benefit of Aboriginal people, landscape and cultural heritage protection".

28    The State has also accepted the application of s 47B of the Act to disregard any extinguishment by the creation of prior interests in relation to the areas of land referred to in Part 2 Schedule 5 to the Minute.

29    The applicants and the State jointly submit that the Connection Material supports the following propositions concerning the connection to country of the Kakarra Part A claim group:

(a)    The Determination Area is located in an area known as “the Western Desert” or the “Western Desert Cultural Bloc”, as defined anthropologically and in the Nangaanya-ku Determination: Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489 at [27] (Griffiths J). The preliminary report refers to the work of early researchers in the 20th century including Daisy Bates, A.P Elkin, Ronald and Catherine Berndt, and Norman Tindale, who all reported socia-cultural features within the Kakarra Part A Application area consistent with what is now understood as the Western Desert Cultural Bloc. For example, anthropologists Ronald and Catherine Berndt documented the lands and waters east of Kalgoorlie including the Kakarra Part A Determination Area as part of the Western Desert: as outlined in the preliminary report at [106]-[108].

(b)    The preliminary report states that the relevant “society” which gives rise to the traditional laws and customs of the Kakarra Part A claim group is that of the Western Desert Cultural Bloc, and in particular, the south-western “fringe” or “extent” of the Western Desert Cultural Bloc, or sometimes referred to as the Western Desert Cultural Bloc transition zone: as outlined in the preliminary report at [142], [325], [345].

(c)    The concept of Tjukurrpa (that is “the Dreaming” or “the Law”) is a central feature of the belief system of members of the Western Desert Cultural Bloc, including the Kakarra Part A claimants, which encompasses many aspects of their lives. For Kakarra Part A claimants, a belief in the Tjukurrpa provides an understanding of the source of many of their traditional laws and customs.

(d)    The Kakarra Part A claimants are the descendants of Aboriginal people who occupied the Determination Area early last century, as well as the descendants of Aboriginal people from country to the north and the east of the Determination Area who began settling within it between the 1920s and the 1950s.

(e)    Historical events such as the establishment of the Indian Pacific Railway, and the nearby Karonie Ration Depot brought people from the surrounding desert country into the Determination Area, joining people already resident there. Traditional laws and customs in relation to the acquisition of native title rights and interests were continuous, retained normative force, and were adhered to throughout this period. Consequently, people from other parts of the Western Desert came to hold native title rights and interests in the Determination Area in conjunction with the remaining descendants of the original inhabitants, in a manner consistent with traditional law and custom.

(f)    Many of the Kakarra Part A claimants spent at least part of their lives living in the Determination Area, on Yindi Station, Pinjin Station, Gindalbie, and Lake Goongarrie, or lived in close proximity to the Determination Area in Kalgoorlie. They, and their forebears before them, used the country of the Determination Area for its resources, including for commercial purposes, and as a source of material and spiritual sustenance. Today, the Kakarra Part A claimants continue to access and use the country of the Determination Area, including for living and camping, hunting and gathering, and to care for and protect their country, including through learning, and teaching young people the Tjukunpa and country of the Determination Area.

(g)    The country of the Determination Area is traversed by a number of Tjukurrpa tracks or songlines, and includes places at which ceremonies have been performed, burial places, and places where the Kakarra Part A claimants interact with the spirits of the country, to protect country, the spirits and themselves. The Kakarra Part A claimants have responsibilities under traditional law and custom to the wider Western Desert society to care for, and protect, the Tjukurrpa of the Determination Area and other places of significance.

30    On the basis of these realities, the applicants and the State submit that the Connection Material establishes the continuity of traditional laws and customs, and the recognition of native title rights and interests within the Determination Area, from British sovereignty until the present day.

31    The State’s position is that the Connection Material is sufficient to demonstrate that:

(a)    the Kakarra Part A Application has a credible basis;

(b)    the Kakarra Part A claim group and their predecessors have maintained a presence in, and a connection to, the Determination Area in accordance with traditional laws and customs since the acquisition of British sovereignty; and

(c)    the continuing physical and spiritual involvement of the Kakarra Part A claim group in the Determination Area is such that their connection to the area has not been severed.

32    The applicants and the State jointly submit that the Connection Material supports the application of the findings in relation to the Determination Area, and that the court adopt these findings in relation to the Kakarra Part A Application.

THE REQUIREMENTS OF SECTION 87

33    The proposed determination is to be made under s 87 of the Act. Section 87 of the Act is designed to encourage the parties to take responsibility for resolving proceedings without litigation: Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591 at [26] (Barker J) (Tex); Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22] (Bennett J) and the cases there cited.

34    Pursuant to s 87(1), the court may make a determination of native title by consent without a hearing where:

(a)    the period specified in the notice given under s 66 of the Act has ended (s 87(1));

(b)    there is a written agreement between the parties for a proposed determination of native title in relation to the proceeding, and that agreement is signed by, or on behalf of all the parties, and filed with the court (s 87(1)(a), (aa) and (b) of the Act);

(c)    the court is satisfied that an order in, or consistent with, those terms would be within the power of the court (s 87(1)(c)); and

(d)    the court is satisfied that it is appropriate to make the orders sought pursuant to
ss 87, 87(1A) and 87(2) of the Act.