Federal Court of Australia

Waturta Tjalkadjara Proceeding [2025] FCA 1145

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 16.53 of the Federal Court Rules 2011 (Cth), the Second Applicant has leave to amend its Amended Statement of Facts, Issues and Contentions filed on 10 May 2025.

2.    The title of the Tjalkadjara proceeding (WAD 597 of 2018) is amended to read:

VERNA VOS and others on behalf of the Tjalkadjara Native Title Claim Group Applicant

STATE OF WESTERN AUSTRALIA and others

Respondents

3.    The orders of the Court made on:

(a)    17 March 2025 in each of the underlying proceedings, as amended on 15 April 2025 and 18 August 2025;

(b)    8 May 2025 in each of the underlying proceedings, as amended on 12 May 2025 and 28 May 2025; and

(c)    18 August 2025,

are vacated.

4.    Upon the Second Applicant filing an application to reduce the area of lands and waters the subject of the Tjalkadjara claim such that it no longer includes any part of the Waturta claim area:

(a)    Mr Kelman Foley, Mr Ivan Forrest, Ms Geraldine Hogarth, Ms Maria Meredith, Ms Bronwyn Newland, Ms Roslyn Sullivan, Mr Daniel Tucker and Ms Nadine Tucker, being the persons formerly comprising the Tjalkadjara Applicant, are removed as respondent parties to the Waturta proceeding (WAD 297 of 2018); and

(b)    Mr Kado Muir, Mr Kalman Murphy, Ms Jennifer Narrier, Mr Anthony Shaw, Ms Lynette Shaw and Ms Vanessa Thomas, being the persons comprising the Waturta Applicant, are removed as respondent parties to the Tjalkadjara proceeding (WAD 597 of 2018).

5.    There be no order as to costs.

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

ORDERS

THE COURT NOTES THAT the orders for the joint case management of WAD297/2018

and WAD597/2018 have been vacated.

THE COURT ORDERS THAT:

1.    The proceedings be referred for mediation before Registrar Daniel.

2.    There be a further case management hearing at 10.15 am AWST on 30 October 2025.

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

ORDERS

THE COURT NOTES THAT the orders for the joint case management of WAD297/2018

and WAD597/2018 have been vacated.

THE COURT ORDERS THAT:

1.    The proceedings be referred for mediation before Registrar Daniel.

2.    There be a further case management hearing at 10.15 am AWST on 30 October 2025.

3.    On or before 21 October 2025, the applicant do file and serve an affidavit as to the outcome of the claim group meeting proposed to be held on 14 and 15 October 2025.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

COLVIN J:

1    These long running native title proceedings are being heard together and are currently the subject of orders to facilitate the on-country hearing of lay evidence listed for dates in October 2025. They involve two native title claims, one on behalf of the Waturta Native Title Claim Group and the other on behalf of the Tjalkadjara Native Title Claim Group. There is an overlap between the areas the subject of the native title claims being advanced by each of the two native title applicants. Orders have been made for the two claims to be heard together as one proceeding known as the Waturta Tjalkadjara Proceeding.

2    The Tjalkadjara claim group applicant seeks to further amend its amended statement of facts, issues and contentions and also to change the title of the Tjalkadjara proceedings to reflect the current composition of the Tjalkadjara applicant. The proposed amendments would have the effect of removing any issue in the Waturta Tjalkadjara Proceeding concerning the claim by the Waturta claim group to the area of overlap. In consequence, there would be no issue to determine as between the two native title applicants. The remaining issues would concern whether the two claims should each be upheld as separate non-overlapping native title claims.

3    If leave is given to make the amendments, each of the native title applicants seek to proceed with negotiations towards a consent determination.

4    In those circumstances, the two native title applicants invite the Court to make orders vacating the October hearing dates on the basis that these matters might progress, under supervision of the Court, towards consent determinations in circumstances where there is a basis to expect that that outcome might be able to be achieved.

5    The position of each of the State of Western Australia and the Commonwealth is that they neither consent to nor oppose the application. It appears that previous negotiations have concerned the terms upon which a single claim to the whole of the area under claim might be the subject of a consent determination. Therefore, the position now advanced by each of the native title applicants has not been the subject of consideration. Nevertheless, it is the position of both the State and the Commonwealth that, as matters stand, they are not aware of any matter that ought be disclosed that might stand in the way of progressing towards separate consent determinations.

6    No other party opposed the proposed orders.

7    The proposed further amendment to the amended statement of facts, issues and contentions is advanced on the basis of the Tjalkadjara applicant's authority to conduct the proceedings. However, a claim group meeting is required to be convened in order to seek authority to progress to the proposed consent determination. The meeting is scheduled to be held on 14 and 15 October 2025. In the case of the Waturta applicant, a timetable has been proposed to progress towards consent determination.

8    Having regard to the affidavit material that has been filed, the fact that the native title applicants have adopted the common position that there is no longer any issue between them by way of overlapping claims and the submissions that have been provided by the parties today which give rise to a reasonable basis to expect that the matters will be able to proceed to consent determination, I am satisfied that the orders sought should be made and that these two proceedings should proceed by way of mediation and also pursuant to supervised timetables to be in the hands of the registrar.

9    I will make orders in the Waturta Tjalkadjara Proceeding in terms of the draft minute of consent orders that has been provided and executed by those acting for the applicant in the Waturta native title claim and the applicant in the Tjalkadjara native title claim. The effect of those orders will be that the overlap issue is removed, the two native title claims will no longer be heard as one proceeding and the separate court files for each of the two matters will be reinstated.

10    There will be these additional orders which will apply in each of the now separate proceedings being WAD297/2018 and WAD597/2018. Firstly, there will be an order that the proceedings be referred for mediation before Registrar Daniel. Secondly, that there be a further case management hearing at 10.15 am on 30 October 2025. There will be a further order in WAD597/2018 that on or before 21 October 2025, the applicant do file and serve an affidavit as to the outcome of the claim group meeting.

11    The case management hearing will be otherwise adjourned, but there will be a case management hearing that will continue immediately after this hearing to be conducted by Registrar Daniel.

Associate:

Dated:    18 September 2025

SCHEDULE OF PARTIES