FEDERAL COURT OF AUSTRALIA

Williams on behalf of the Wiluna #5 Native Title Claim Group v State of Western Australia [2025] FCA 1178

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 198 of 2024 (Wiluna #5 Application) has made a native title determination application pursuant to s 61 of the Native Title Act 1993 (Cth).

B.    The Applicant and the Respondent have reached agreement as to the terms of a determination which is to be made in relation to the land and waters covered by the Wiluna #5 Application.

C.    The terms of the agreement involve the making of consent orders for a determination pursuant to ss 87 and 94A of the Native Title Act that native title exists in relation to the land and waters of the Determination Area.

D.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group will be recognised as the native title holders for the Determination Area.

E.    The Applicant has nominated Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (ICN: 8156) pursuant to s 56(2)(a) of the Native Title Act to hold the determined native title in trust for the native title holders.

F.    Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (ICN: 8156) has consented in writing to hold the determined native title in trust for the native title holders.

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

THE COURT ORDERS THAT:

1.    There be a determination of native title in terms of the attached Minute of Determination of Native Title.

2.    Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (ICN: 8156) shall hold the determined native title in trust for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth).

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

MINUTE OF DETERMINATION OF NATIVE TITLE

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

Existence of native title (s 225 Native Title Act)

1.    Native title exists in relation to the whole of the Determination Area.

Native title holders (s 225(a) Native Title Act)

2.    The native title in the Determination Area is held by the persons described in Schedule 2 (native title holders).

The nature and extent of native title rights and interests (s 225(b); s 225(e) Native Title Act)

3.    Subject to orders 6 and 7, the nature and extent of the native title rights and interests in relation to the parts of the Determination Area referred to in Schedule 3 is the right to possession, occupation, use and enjoyment of those parts to the exclusion of all others.

4.    Subject to orders 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area, other than those parts of the Determination Area referred to in Schedule 3, are the following rights and interests:

(a)    the right to access, remain in and use the Determination Area;

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

(c)    the right to engage in spiritual and cultural activities in the Determination Area; and

(d)    the right to maintain and protect areas, sites and places of significance in the Determination Area.

Qualifications on native title rights and interests (s 225(b); s 225(e) Native Title Act)

5.    The native title rights and interests in order 4 do not confer possession, occupation, use and enjoyment of those parts of the Determination Area on the native title holder to the exclusion of all others.

6.    The native title rights and interests are subject to and exercisable in accordance with:

(a)    the traditional laws and customs of the native title holders; and

(b)    the laws of the State and Commonwealth, including the common law.

7.    Notwithstanding anything in this Determination:

(a)    there are no native title rights and interests in the Determination Area in or in relation to:

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

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or

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

(b)    the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) at the date of this Determination is the non-exclusive right to take, use and enjoy that water.

The nature and extent of any other interests (s 225(c) Native Title Act)

8.    The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests).

Relationship between native title rights and other interests (s 225(d) Native Title Act)

9.    Except as otherwise provided for by law, the relationship between the native title rights and interests described in orders 3 and 4 and the other interests is as follows:

(a)    the Determination does not affect the validity of those other interests; and

(b)    to the extent of any inconsistency between the other interests described in Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests:

(i)    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 interest to the extent of the inconsistency during the currency of the other interests; and

(ii)    otherwise the other interests co-exist with the native title rights and interests, and for the avoidance of doubt, the doing of an activity required or permitted under those interests prevails over the native title right and interests and their exercise, but does not extinguish them.

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

10.    For the avoidance of doubt, ss 47 and 47B of the Native Title Act apply to the parts of the Determination Area set out in Schedule 5.

Definitions and interpretation

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

Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 6, but not including the Excluded Areas.

Excluded Areas means the land and waters described in Part 2 of Schedule 1.

land and waters respectively have the same meanings as in the Native Title Act.

Native Title Act means the Native Title Act 1993 (Cth).

State means the State of Western Australia.

12.    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the map in Schedule 6, the written descriptions shall prevail.

SCHEDULE 1

DETERMINATION AREA

Part 1 – External boundaries and areas of land and waters where native title exists

The external boundary of the Determination Area, generally shown as bordered in blue on the maps at Schedule 6, is as follows:

All those lands and waters commencing at the westernmost southwestern corner of Pastoral Lease N049934 (Youno Downs) being a point on the present boundary of Native Title Determination WAD29/2019 Yugunga-Nya People Part A (WCD2021/008) and extending generally northeasterly along the boundaries of that native title determination to the southern boundary of Road No. 7583, being the original alignment of the Goldfields Highway (former alignment before road widenings) and being a point on the present boundary of Native Title Determination WAD6164/1998, WAD248/2007, WAD181/2012, WAD108/2016 Wiluna (WCD2013/004); Then generally southeasterly along the boundaries of that native title determination to the intersection with a western boundary of Native Title Determination WAD228/2011, WAD302/2015 Tjiwarl and Tjiwarl #2 (WCD2017/001); Then southerly, westerly, again southerly and again westerly along the boundaries of that native title determination to its westernmost northwestern corner being a corner on the southern boundary of Pastoral Lease N049934 (Youno Downs); Then westerly along the southern boundary of that pastoral lease back to the commencement point.

Note: Geographic Coordinates provided in Decimal Degrees.

Cadastral boundaries sourced from Landgate’s Spatial Cadastral Database dated 28 May 2025.

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

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

Native Title Determination WAD29/2019 Yugunga-Nya People Part A (WCD2021/008) as Determined in the Federal Court on 2 November 2021.

Native Title Determination WAD6164/1998, WAD248/2007, WAD181/2012, WAD108/2016 Wiluna (WCD2013/004) as Determined in the Federal Court on 29 July 2013.

Native Title Determination WAD228/2011, WAD302/2015 Tjiwarl and Tjiwarl #2 (WCD2017/001) as Determined in the Federal Court on 27 April 2017.

Datum: Geocentric Datum of Australia 2020 (GDA2020)

Prepared By: Geospatial (Landgate) 17 July 2025

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.

Part 2 – Excluded Areas

Public Works

1.    Roads

2.    Any public works as defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Acts 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in s 215D of the Native Title Act) and to which s 12J of the TVA or s 23C(2) of the Native Title Act applies.

Leases

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The persons referred to in order 2 of the Determination are those persons from time to time who:

(a)    in accordance with Western Desert traditional laws and customs, have a connection to all or part of the Determination Area through descent (whether from a parent or grandparent from the Determination Area or who died and is buried in the Determination Area), conception and/or birth within the Determination Area, long-term residence within the Determination Area, high ritual knowledge within the Determination Area or responsibility for sites within the Determination Area; and

(b)    are recognised under the traditional laws and customs by the other native title holders as having rights in the Determination Area.

2.    At the date of this Determination, this includes the following persons who are recognised under the relevant traditional laws and customs by the other native title holders as having rights in the Determination Area:

(a)    the descendants of the union of the following people:

(i)    Milpuntu/Jack Abbot and Puku/Amy Abbott;

(ii)    Warilki Anderson and Tjungtawa/Skinny Fannie/Bunnie Stevens;

(iii)    Maitungkata/Paddy Anderson and Kiliya/Amy Anderson;

(iv)    Yingkali Manara/Mickey Ingle and Kurutjuli/Miriam;

(v)    Kunamalaya/Jacky Jackman and Wilunya/Wilana Brown/Jackman;

(vi)    Peter Gogo and Lady Gogo;

(vii)    Ngalama/Old Paul Morgan and Wangu;

(viii)    Lenny Morrison and Fannie Jones/Stevens;

(ix)    Anthony Jones and May Jones;

(x)    Charlie Riley and Biddy Riley;

(xi)    Muddy Patch and Marlala Nanji;

(xii)    Kurril/Scotty/Ted/Packhorse Rennie Tullock and Daisy Garland;

(xiii)    Piparntjukurr and Kiri/Kiri Muru;

(xiv)    Wuli/Jimmy Wongawol and Lily Munda;

(xv)    Nyarraur/Cutline/Ben Brown and Amy Jackman/Brown;

(xvi)    Nanyi-Nanyi/Mr P/Billy Patch and Rosalie Anderson/Patterson; and

(xvii)    Wakukutjara and Yayangarta;

(b)    the descendants of the following people:

(i)    Cyril Bingham;

(ii)    Munga/Margaret Long;

(iii)    Tauwi/Miriam Stewart;

(iv)    Mimpu/Willy Williams;

(v)    Ningara Martin;

(vi)    Mirta-Mirta/Andy Campbell;

(vii)    Kutulan/Hitler Richards;

(viii)    Lorna Redman/Stewart;

(ix)    Nyunyi/Maudie Jackman;

(x)    Ngalyakarnpal/Barbara Anderson;

(xi)    Rosy Grant;

(xii)    Alfie Ashwin;

(xiii)    Gladys Bingham;

(xiv)    Adam Bingham;

(xv)    Christine Bingham;

(xvi)    James Harris;

(xvii)    Winya/Minnie;

(xviii)    Yungkutjuru/Kitty Hill;

(xix)    Tulkiwa/Jeanie Elliot;

(xx)    Molly Long;

(xxi)    Mitjipung/Sandy/Santa Clause;

(xxii)    Kanturangu/Frank Narrier;

(xxiii)    Yarltat/Joe Finch;

(xxiv)    Pangka Wongawol/Riley;

(xxv)    Saxon/Jackson Stevens;

(xxvi)    Yupun;

(xxvii)    Tjiriltjukul;

(xxviii)    Yutunga/Udunga Kianga;

(xxix)    Yinyiyapa/Ruby Jackson/Parker;

(xxx)    Wungkajtu/George Wongajoe;

(xxxi)    Molly Anderson;

(xxxii)    Eddieman/Edmund/Eddie Redman; and

(xxxiii)    Minnie Wongawol;

(c)    the following people and the descendants of their unions with the listed deceased partner:

(i)    Jimmy Patch (deceased) and Maxine Warren;

(ii)    Yalyalyi/Jack Stevens (deceased) and Tilly Gogo/Stevens;

(iii)    Tjupi-Tjupi/Peter Stewart (deceased) and Tjilpi/Great Long; and

(iv)    Yatjuwunga/Peter (deceased) and Katjipil/Daisy Kaddabil;

(d)    the following people and their descendants:

(i)    Firestick/Barry Abbott;

(ii)    Nyapala Morgan;

(iii)    Wendy Redman/Abbott;

(iv)    Nyulkul-Nyulkul/Dusty Stevens;

(v)    Creamy Allison;

(vi)    Monty Allison;

(vii)    Elizabeth Wongyabong; and

(viii)    Shirley Wongyabong.

SCHEDULE 3

WHERE NATIVE TITLE IS EXCLUSIVE POSSESSION

The parts of the Determination Area where native title comprises the rights and interests set out in order 3 are as follows, as shown generally shaded green on the maps in Schedule 6:

Unallocated Crown Land

Pastoral Leases

SCHEDULE 4

OTHER INTERESTS

As at the date of this Determination, the nature and extent of other interests in relation to the Determination Area are as follows:

Pastoral leases

1.    The rights and interests of the holders from time to time of the following pastoral lease:

Reserves

2.    The following reserves:

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

(b)    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

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

Mining interests

3.    The rights and interests of the holders from time to time of the following current mining interests under the Mining Act 1978 (WA):

Other

4.    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 in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4;

5.    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);

6.    The right to access the Determination Area by:

(a)    an employee or agent or instrumentality of the State;

(b)    an employee or agent or instrumentality of the Commonwealth;

(c)    an employee or agent or instrumentality of 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.

7.    So far as confirmed pursuant to s 14 of the TVA as at the date of this Determination, any existing public access to and enjoyment of:

(a)    waterways; or

(b)    beds and banks or foreshores of waterways.

SCHEDULE 5

AREAS TO WHICH SECTIONS 47 AND 47B APPLY

The parts of the Determination Area to which s 47 of the Native Title Act applies (shown generally on the map in Schedule 6 with diagonal lines) is as follows:

The parts of the Determination Area to which s 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests (shown generally on the map in Schedule 6 with diagonal lines) is as follows:

SCHEDULE 6

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

HILL J:

A. INTRODUCTION

1 This proceeding is a native title determination application made under s 61 of the Native Title Act 1993 (Cth) (NTA), known as the Wiluna #5 Application. The parties (the Applicant and the State of Western Australia) have reached agreement on the terms of a determination and the form of orders that are appropriate to provide recognition of the native title rights and interests held by the members of the claim group (who are part of the Wiluna people) over the land and waters covered by this application. The parties have requested that the Court determine the application without holding a hearing, pursuant to s 87(2) of the NTA.

2 For the following reasons, I make the orders and the determination of native title sought by the parties.

3 Material filed: The parties have filed the following material in support of the application:

An affidavit of Malcolm O’Dell from Central Desert Native Title Services Ltd affirmed on 21 August 2025, who is the solicitor for the Applicant;

Affidavits of Annette Williams affirmed on 1 May 2024, of Yvonne Ashwin affirmed on 8 May 2024, and of Nicole Jackman affirmed on 8 May 2024, who together bring the application on behalf of the claim group;

A Statement of Agreed Facts filed on 29 August 2025 (SOAF);

Joint Submissions of the Parties in support of the Minute of Proposed Consent Determination of Native Title, filed on 29 August 2025.

A Minute of Proposed Orders and Determination of Native Title filed on 29 August 2025 (which I will refer to as the “Wiluna #5 Proposed Orders” and “Wiluna #5 Proposed Determination”, as applicable), which are signed by the lawyers for both parties.

B. LEGISLATIVE SCHEME

4 The statutory conditions for making a consent determination of native title are as follows.

5 Approved determinations of native title (NTA s 13): An application may be made to this Court under Pt 3 of the NTA for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)).

6 Applicants for native title determinations (NTA s 61(1)): By s 61(1) of the NTA, a “native title determination application” may be made (relevantly) by:

A person or persons authorised 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, provided the person or persons are also included in the native title claim group.

7 Authorising the applicant (s 251B): By s 251B, all the persons in a native title claim group “authorise” a person or persons to make a native title determination application and to deal with matters arising in relation to it, if (where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind) the persons in the native title claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process (s 251B(a)). The persons authorising the applicant may impose conditions on this authorisation (s 251BA).

8 When more than one person is authorised, those persons are jointly the “applicant” (s 61(2)). The person(s) constituting the applicant may deal with all matters arising under the NTA in relation to a claimant application (s 62A).

9 Native Title Registrar considers application (NTA ss 63, 190A-190C): A copy of an application filed in this Court under s 61 must be given to the Native Title Registrar as soon as practicable (s 63).

10 If the Registrar is given a “claimant application” (as defined in s 253) under s 63, the Registrar must consider the claim made in the application in accordance with s 190A (s 190A(1)). By s 190A(6), the Registrar must accept a claim for registration made in an application given to the Registrar under s 63 if the claim satisfies all of the conditions in ss 190B (dealing mainly with the merits of the claim) and 190C (dealing with procedural and other matters). By s 190B, the Registrar must be satisfied that:

the claim area, the native title group, and the native title rights and interests are identified sufficiently clearly (s 190B(2)-(4));

the factual basis for asserting the claimed native title rights and interests is sufficient to support the assertion (s 190B(5));

prima facie, at least some of the claimed native title rights and interests can be established (s 190B(6));

at least one member of the claim group has or had a physical connection with the claim area (s 190B(7));

the documents do not disclose (and the Registrar is not otherwise aware) that the claimed native title rights and interests have been extinguished (s 190B(9)).

11 Notification by Native Title Registrar (NTA s 66): Once the Registrar is given a copy of an application under s 63, the Registrar also provides copies and gives notice of the application in accordance with s 66. Among other things, a notice under s 66(3) must include a statement to the effect that a person who wants to be a party in relation to the application must notify the Court, in writing, within the period of three months starting on the “notification day” (defined in s 66(8)), or, after that period, get the leave of the Court under s 84(5) to become a party.

12 Only one determination of native title per area (NTA ss 67, 68): By s 67(1), if two or more proceedings relate to native title applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

13 By s 68, if there is an approved determination of native title in relation to a particular area, this Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area, except for an application to revoke or vary the first determination or a review or appeal of that determination.

14 Form of native title determinations (NTA s 94A): By s 94A, an order in which this Court makes a determination of native title must set out the details of the matters mentioned in s 225.

15 Determination of native title (s 225): By s 225, a “determination of native title” is a determination whether or not native title exists in relation to a particular area of land or waters (the “determination area”) and, if it does exist, a determination of the following matters:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title area; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of the NTA); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

16 Native title rights and interests (s 223): “Native title rights and interests” are defined in s 223(1) for the purposes of the NTA as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

17 Pastoral leases held by native title applicants (s 47): Section 47 of the NTA applies when (a) a native title application is made in relation to an area and (b) at the time when the application is made, a pastoral lease is held over the area by any of the persons making the application claiming to hold the native title or any other persons with whom they claimed to hold the title (or by a trustee on trust for any of those persons; or by a company or body corporate whose only shareholders or members are any of those persons) (s 47(1)).

By s 47(2), any extinguishment of the native title rights and interests by the grant of the lease, the creation of any other interest itself in relation to the area, or the doing of any act under the lease or by virtue of holding the interest, must be disregarded for all purposes under the NTA.

By s 47(3), if the determination on the application is that the native title exists and is held by one of the persons mentioned in s 47(1)(b), then:

* the determination does not affect the validity of the lease, or any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned;

* the “non-extinguishment principle” in s 238 applies in relation to the grant of the lease and any other prior act affecting the native title; and

* any person, trustee or company holding the pastoral lease as mentioned in s 47(1)(b) has no procedural rights as holder of the lease in relation to any act, in relation to the land or waters, to which the right to negotiate (in Div 3, Subdiv P) applies.

18 Claimant application in relation to vacant Crown land (s 47B): Section 47B of the NTA applies to a claimant application made in relation to vacant Crown land, provided that one or more members of the native title claim group occupy the area when the application is made (s 47B(1)(c)).

By s 47B(2), any extinguishment of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded for the purposes of the NTA in relation to the application.

By s 47B(3), if the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect the validity of the creation of any prior interest in relation to the area; or any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area.

19 Court’s powers when parties agree (NTA s 87): Section 87 of the NTA sets out the powers of this Court if the parties agree.

20 Application (s 87(1)): By s 87(1), s 87 applies if, after the end of the period specified in the s 66 notice:

agreement is reached on the terms of an order in relation to (relevantly) the proceedings (s 87(1)(a));

the parties to the proceedings are all parties to the agreement (s 87(1)(aa));

the terms of the agreement (in writing and signed by or on behalf of the parties) are filed with the Court (s 87(1)(b)); and

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)).

21 Making agreed orders without a hearing (s 87(1A)-(2)): By s 87(1A), the Court may, “if it appears to the Court to be appropriate to do so”, act in accordance with s 87(2) or (3), as relevant. Section 87(2) provides that, “[i]f the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing”.

22 Statement of agreed facts (s 87(8)-(11)): I note s 87(8)-(11) makes provision for the Court to accept a statement of facts that is agreed between only some of the parties. In this case, however, there are no parties other than the Applicant and the State, so the SOAF can be given effect in the usual manner without resort to these provisions.

23 Prescribed body corporate (NTA ss 55-56): By s 55, if the Court proposes to make an approved determination that native title exists, the Court must at the same time, or as soon as reasonably practicable afterwards, make such determinations as are required by (relevantly) s 56.

24 Determination whether native title held on trust (s 56): By s 56(1), the Court must determine whether native title is to be held on trust and, if so, by whom. By s 56(2), if the native title holders nominate a prescribed body corporate to be the trustee of the native title within a specified period and the body corporate provides its written consent, the Court must determine that the prescribed body corporate is to hold the native title rights and interests from time to time comprising the native title in trust for the native title holders. On the making of that determination, the prescribed body corporate holds the rights and interests comprising the native title in trust for the native title holders (s 56(3)). That body corporate (after becoming a “registered native title body corporate”) must also perform any functions given to a registered native title body corporate under the NTA or regulations (s 57(1)).

C. WILUNA #5 APPLICATION

25 Procedural history: The Wiluna #5 Application was lodged on 22 July 2024. On 26 September 2024, a delegate of the Registrar accepted this application for registration under s 190A of the NTA. The Registrar notified this application under s 66 of the NTA. The notice (which is available on the Tribunal’s website) specified a “notification day” of 20 November 2024. As indicated on the notice, the notification period referred to in s 66(8) and (10)(c) therefore ended on 19 February 2025.

26 The background and content of the Wiluna #5 Application is set out in the SOAF as follows.

27 Background and summary: The Wiluna #5 Claim is, in effect, an extension of the current recognised western boundary of the determination in WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 (the Wiluna Determination), a determination of native title in favour of the Wiluna People. The claim is brought on behalf of essentially the same group who were determined to hold native title in respect of the land and waters the subject of the Wiluna Determination and of the determination in BP (Deceased) and Ors v State of Western Australia (WAD241/2004) (the Wiluna #2 Determination). The land and waters covered by the Wiluna #5 Claim (the Claim Area) adjoins the area subject to the area covered by the Wiluna Determination (see SOAF [2]).

28 Claim Area: The Joint Submissions state that parts of the Claim Area border:

(a)    the determination of native title in favour of the Yugunga-Nya People in Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 3) [2021] FCA 1338;

(b)    the application for determination of native title filed by the Yugunga-Nya People in Evelyn Gilla & Ors on behalf of the Yugunga-Nya People #2 and State of Western Australia & Ors (WAD110/2022);

(c)    the determination of native title in favour of the Claim Group in the Wiluna Determination; and

(d)    the determinations of native title in favour of the Tjiwarl People in Narrier v State of Western Australia [2016] FCA 1519.

29 The Joint Submissions state further that the majority of the Claim Area comprises pastoral leases, overlapping most of the Youno Downs Pastoral Lease N049934 and the whole of Ullula Pastoral Lease N049866. The latter was transferred to Tarlka Matuwa Piarku Aboriginal Corporation in October 2023. Mining tenements have been granted over parts of the Claim Area, and there are four parcels of unallocated Crown Land.

30 Members of native title group: The Wiluna #5 Claim Group are persons who:

(a)    have rights in part, or all, of the Claim Area through descent (whether from a parent or grandparent from the area or who died and is buried in the area), conception and/or birth within the area, long-term residence within the area, high ritual knowledge within the area or responsibility for sites within the area; and

(b)    are recognised under the traditional laws and customs by the other native title holders as having rights in the Claim Area.

See SOAF [3].

31 Schedule 2 to the Wiluna #5 Proposed Determination is a description of native title holders which is consistent with:

(a)    the Claim Group described at Attachment A of the Wiluna #5 Application;

(b)    the description of the native title holders in Morgan on behalf of the Wiluna #4 Native Title Claim Group v State of Western Australia [2025] FCA 859 (the Wiluna #4 Determination);

(c)    the description of native title holders in the:

(i)    Wiluna Determination; and

(ii)    Wiluna #2 Determination,

save that Matuwa/Norman Thompson has not been included as a named rightsholder, as he is now deceased.

See SOAF [4].

32 Factual basis of Wiluna #5 Claim: The Wiluna #5 Claim is brought on largely the same factual basis as the Wiluna Determination, Wiluna #2 Determination and the Wiluna #4 Determination; that is:

(a)    it is brought by largely the same people;

(b)    the native title rights and interests claimed are essentially the same;

(c)    it is a claim whose members adhere to, and derive their native title rights and interests from, the laws and customs of the Western Desert Cultural Bloc (Western Desert); and

(d)    under the laws and customs of the Western Desert the recognition of the Claim Group’s connection to Country is the same.

See SOAF [5].

33 Association with Wiluna #5 Claim Area: The Claim Area is within the area traditionally associated with the Western Desert. At sovereignty, the Claim Area was occupied by Western Desert persons (referred to as the “predecessors to the Claim Group”) who were not ancestors of the Claim Group. Under the traditional laws acknowledged and the traditional customs observed by Western Desert persons, the Claim Group and their ancestors acquired native title rights and interests by migration into the Claim Area after effective sovereignty (SOAF [6]).

34 Since the acquisition of British sovereignty, the predecessors to the Claim Group, followed by the Claim Group post-migration and after effective sovereignty, had and have a connection to the Claim Area by their acknowledgement and observance of Western Desert traditional laws and customs (SOAF [7]).

35 Traditional connection to Wiluna #5 Claim Area: The Claim Group acknowledges and observes the Western Desert system of traditional laws and customs, which gives rise to the native title rights and interests claimed. The Wiluna Determination recognised that the native title holders in that case, who constitute the Claim Group in this Claim, are members of the Western Desert and adhere to the Western Desert system of traditional laws and customs (WF at [14]) (SOAF [8]).

36 As members of the Western Desert, the Claim Group are governed by a functioning set of laws, rules, customs, practices, and beliefs that allow the members of the Claim Group to live their daily lives according to shared physical, social and cultural norms (SOAF [9]).

37 Under the traditional system of laws and customs of the Western Desert there are multiple pathways that give rise to the recognition of native title rights and interests (Narrier at [377]-[378]). Consistently with other Western Desert claims, the Form 1 to the Wiluna #5 Application describes those pathways as being:

(a)    a person’s birth on the Claim Area;

(b)    the birth of an ancestor on the Claim Area;

(c)    having religious, sacred, ritual, practical and/or historical knowledge of the Claim Area, including by:

(i)    taking responsibility for the Claim Area, including by the maintenance and protection of sacred knowledge about the area and places in it;

(ii)    passing on sacred knowledge about the Claim Area and places within it under approved circumstances;

(iii)    looking after sacred objects relating to places within the Claim Area;

(iv)    being actively present at ritual engagements relating to places within the Claim Area; and

(v)    accepting and asserting roles of cultural heritage protection, landscape management and site custodianship;

(d)    long association with the Claim Area by occupation or use by oneself and/or relevant ancestors;

(e)    the length of time of one’s identification with the Claim Area;

(f)    asserting connection with the Claim Area and having that assertion accepted by others;

(g)    having burial sites of ancestors on the Claim Area; and

(h)    having one’s initiation site on the Claim Area.

See SOAF [10].

38 Native title is held in accordance with the Tjukurrpa: The Claim Area is contiguous to the Determined Area, in which members of the Claim Group have, since sovereignty and at all times since, continued to acknowledge and observe the traditional laws and customs of the Western Desert (SOAF [11]).

39 In respect of the Claim Area, the Claim Group and their ancestors acquired native title rights and interests by migration under Western Desert traditional laws and customs (SOAF [12]).

40 Consistent with other groups in the Western Desert, members of the Claim Group adhere to, and believe in, the Tjukurrpa. The Tjukurrpa is an all-encompassing belief system that guides and dictates, through a strong and enforceable system of laws and customs, relationships as between:

(a)    people (either individually or as part of a wider group); and

(b)    people (either individually or as part of a wider group) and the land and waters to which they are connected.

See SOAF [13].

41 The Claim Group continue to exercise their native title rights and fulfil their cultural responsibilities through use and occupation of the Claim Area in accordance with the Tjukurrpa, including through the:

(a)    interaction they have with each other and the way they interact with the outside world, including by making decisions using a traditional decision-making process (see SOAF [20]-[22], [24](e)-(g) and (j)(iii));

(b)    conduct of ceremony (see SOAF [24](j)(i)-(ii));

(c)    conduct of activities to care for and protect sites of cultural and spiritual significance (see SOAF [19](c));

(d)    conduct of traditional hunting, gathering, and cooking methods (see SOAF [19](b) and [24](b)); and

(e)    intergenerational transfer of knowledge in relation to the Tjukurrpa (see SOAF [18] and [24](c)).

See SOAF [14].

42 Use and occupation of Wiluna #5 Claim Area: The predecessors of the Claim Group members resided in and occupied the Claim Area at effective sovereignty, which occurred around 1890 (SOAF [15]).

43 During the period between about 1925 and 1975, the Claim Group and their ancestors migrated into the Claim Area, mostly from areas to the north east of the Claim Area. By the traditional laws and customs of the Western Desert, the Claim Group came to acquire native title rights and interests in the Claim Area by that migration (SOAF [16]).

44 The Claim Group:

(a)    have maintained a custodial relationship with the Claim Area through their continued use and occupation of that area; and

(b)    continue to observe and acknowledge the same traditional laws and customs in the Claim Area as observed and acknowledged at effective sovereignty by their predecessors, such that successive generations have maintained continued cultural and spiritual connection with the Claim Area.

See SOAF [17].

45 Inter-generational transfer of knowledge: Senior members of the Claim Group continue to share and facilitate the transfer of knowledge to younger generations. Members of the Claim Group visit the Claim Area to teach children how to hunt, gather, and cook in the traditional way. Claim Group members share rules associated with traditional decision-making and the rules associated with proper cultural relationships (SOAF [18]).

46 Traditional physical connection: The Claim Group have a traditional physical connection with the land covered by the Claim Area. The contemporary traditional physical connection of the Claim Group is illustrated by their engagement in the following activities:

(a)    camping on the Claim Area;

(b)    accessing the Claim Area to hunt and gather in accordance with traditional laws and customs, both individually and with other families;

(c)    accessing the Claim Area to care for and protect sites of social, cultural and spiritual significance to the members of the claim group such as rockholes; and

(d)    worrying about the Claim Area, and sites of significance, when not on Country.

See SOAF [19].

47 Traditional decision-making process: Decisions among members of the Western Desert, including among the Claim Group, are made by consensus. This is a process that involves talking about a proposed decision within and between groups and often over time. The process of making important decisions may go through several interrelated conversations and people who are identified as senior persons will be listened to as having more authority on certain questions. It is however ultimately a group decision-making process that makes the final decision on any matter being discussed (SOAF [20]).

48 This process has been used and adopted at all meetings attended by Claim Group including at meetings held in relation to the Wiluna #5 Claim (SOAF [21]).

49 Members of the Claim Group are taught the traditional decision-making process from childhood and understand their role in the decision-making process (SOAF [22]).

50 Native title rights and interests: The Claim Group acknowledges and observes traditional laws and customs, that have their source from the Western Desert, which give rise to the claimed native title rights and interests (SOAF [23]).

51 The Claim Group uses, occupies, and enjoys the Claim Area through the following means:

(a)    frequent camping trips on the Claim Area;

(b)    hunting and gathering bush food on the Claim Area;

(c)    conducting activities on and in consideration of the Claim Area that foster the intergenerational transfer of knowledge;

(d)    conducting activities on the Claim Area in accordance with traditional laws and customs aimed at caring for Country including, but not limited to the:

(i)    cleaning out of rockholes; and

(ii)    burning of Country;

(e)    making decisions about the Claim Area in accordance with traditional decision-making processes;

(f)    dedicating time at meetings to make cultural and heritage related decisions about the Claim Area;

(g)    seeking to ensure non-Aboriginal people recognise and accept the Claim Group as the owners of the Claim Area and ensure that traditional laws and customs are adhered to;

(h)    taking all opportunities to maximise benefit from the Claim Area subject only to ensuring the benefit does not contravene obligations to protect the Tjukurrpa;

(i)    freely taking and using all resources of the Claim Area in accordance with traditional laws and customs including, but not limited to, the:

(i)    making of spears, digging sticks and other tools;

(ii)    use and trade of flora and fauna;

(iii)    use and trade of inorganic resources; and/or

(iv)    production and trade of material resources;

(j)    participating in activities including, but not limited to:

(i)    rituals, ceremonies and site visitation;

(ii)    law business; and

(iii)    heritage surveys and monitoring,

to ensure the maintenance and protection of the Tjukurrpa and places and objects of cultural and spiritual significance on the Claim Area.

See SOAF [24].

52 Occupation (NTA s 47B): At the date the Wiluna #5 Claim was made, one or more members of the Wiluna #5 Claim Group occupied those portions of the Claim Area comprising the four parcels of unallocated Crown land, by visiting the areas to hunt, share knowledge, and to maintain and protect sites such that s 47B of the NTA applies to those areas (SOAF [25]).

D. CONSIDERATION

53 This section considers whether the requirements for making a consent determination of native title, summarised in section B above, are met in this proceeding.

54 Authorisation of Applicant: The first requirement is whether the Applicant has been properly authorised to bring this application, within ss 61(1) and 251B of the NTA. For the following reasons, I am satisfied that the Applicant has been properly authorised.

Mr O’Dell states in his affidavit that there was a meeting of the Claim Group held on 5 September 2023 at the Moonlight Hall in Wiluna, Western Australia. At this meeting, the Claim Group agreed with, and endorsed by consensus, the bringing of the Wiluna #5 Claim based on the boundaries and content as depicted in the Form 1 – Native Title Application that was subsequently filed. This meeting authorised (relevantly) the bringing of the Wiluna #5 Application, and the matters contained in the Wiluna #5 Proposed Determination (as long as the determination was substantially in the form as the Form 1 for the application).

Mr O’Dell states that, based on his extensive experience in the desert regions of Western Australia (which dates back before he commenced his current role in 2007), decisions are made by consensus under the Western Desert system of traditional laws and customs. Mr O’Dell believes that the decisions made at the meeting on 5 September 2023 were made in accordance with that traditional decision-making process.

Ms Williams, Ms Ashwin and Ms Jackman each state in their affidavits that they are members of the native title claim group, and that they believe that the native title claim group includes all the persons who, according to their traditional laws and custom, hold the common or group rights and interests claimed in the Wiluna #5 Application. They state that they attended a meeting in Wiluna attended by lawyers from Central Desert Native Title Services Ltd, and that (in their opinion as senior knowledge holders) that the decision-making process under traditional law and custom was followed at that meeting. (It can be inferred that this is the September 2023 meeting referred to in the O’Dell affidavit.) They all state that no conditions were placed on the authorisation given to them (cf s 251BA).

55 Preconditions in NTA s 87(1): The next requirement is the preconditions in s 87(1) of the NTA for making a determination without a hearing. Again, I am satisfied that these preconditions have been met.

The notification period ended on 19 February 2025: see [25] above, which means that any consent determination would be made “after the end of the [notification] period”, as required by s 87(1).

It is apparent from the Wiluna #5 Proposed Orders and Proposed Determination that agreement has been reached on the terms of an order to resolve the proceedings (s 87(1)(a)); that all the parties to the proceeding are parties to this agreement (noting that the Commonwealth Minister has not sought to intervene) (s 87(1)(aa)); and that the terms of the agreement have been put in writing and filed with the Court (s 87(1)(b)).

56 I am also satisfied that an order in these terms is within the power of the Court for the purposes of s 87(1)(c) of the NTA. Section 87(1)(c) requires consideration of the other restrictions or requirements in the NTA applicable to any determination of native title: Freddie v Northern Territory [2017] FCA 867 at [15] (Mortimer J); Dodd on behalf of the Middamia Native Title Claim Group v State of Western Australia [2024] FCA 214 at [21] (Burley J); Oobagooma on behalf of the Big Springs Claim Group v State of Western Australia [2025] FCA 592; (2025) 309 FCR 515 at [77] (O’Bryan J); cf Nelson v Northern Territory [2010] FCA 1343; (2010) 190 FCR 344 at [4] (Reeves J). Those requirements include s 61 (authorisation), s 225 (form of determination) and ss 55-56 (prescribed body corporate), which are considered elsewhere in this section. In addition to those requirements:

I am satisfied that the Claim Area does not overlap with any other application for determination of native title (cf s 67), and is not the subject of a previously approved determination of native title (cf s 68). The application has been notified in accordance with s 66 of the NTA, and no party has sought to be joined to the application. Ms Williams, Ms Ashwin and Ms Jackman (all senior knowledge holders) each state their belief that none of the area covered by the Wiluna #5 Application is covered by an approved determination of native title, and further that none of the native title rights and interests claimed have been extinguished.

I am also satisfied that the rights and interests set out in the Wiluna #5 Proposed Determination are rights and interests which the Australian common law is able to recognise (cf s 223(1)(c)). The Claim Group’s native title rights and interests as described in the Proposed Determination are essentially the same as the native title rights and interests determined in the Wiluna Determination, the Wiluna #2 Determination and the Wiluna #4 Determination (see SOAF [5](c)).

57 I will defer for the moment whether it is “appropriate” to make the orders and determination of native title sought (see s 87(1A) and (2)): see [63]-[75] below.

58 Form of determination (NTA s 225): The next requirement is that a determination of native title must determine the matters set out in s 225(a) to (e) of the NTA (set out in [15] above). For the following reasons, I am satisfied that the Wiluna #5 Proposed Determination will determine those matters.

The Wiluna #5 Proposed Determination will define the “Determination Area” in [11] and Schs 1 and 6, being the land and waters within the external boundary described in Pt 1 of Sch 1 and depicted on the maps at Sch 6, but not including the “Excluded Areas” described in Pt 2 of Sch 1.

The native title holders will be described in Sch 2 of the Wiluna #5 Proposed Determination (s 225(a)). This description is consistent with the description of the native title holders in other related claims (such as Wiluna, Wiluna #2 and Wiluna #4): see [31] above.

The Wiluna #5 Proposed Determination will describe the nature and extent of native title rights and interests in relation to the Determination Area in [3] and Sch 3 (exclusive rights) and [4]-[5] (non-exclusive rights) (s 225(b)), subject to the qualifications in [6] and [7] (s 225(e)).

The Wiluna #5 Proposed Determination will set out the nature and extent of other interests in Sch 4 (s 225(c)), and the relationship between native title rights and interests and other interests in [9] (s 225(d)).

59 In addition, Sch 5 to the Wiluna #5 Proposed Determination will set out the parts of the Determination Area to which ss 47 and 47B of the NTA apply.

60 Prescribed body corporate (NTA ss 55-56): If the Court proposes to make a determination that native title exists, it must ensure that the appropriate steps have been taken for the appointment of a prescribed body corporate under s 56 of the NTA, and that this body corporate is a prescribed body corporate. Regulation 4(2) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) sets out the requirements for prescribed bodies corporate.

61 Mr O’Dell’s affidavit establishes the following matters.

At the September 2023 meeting, the Claim Group authorised the nomination of a prescribed body corporate to hold the native title in the Wiluna #5 determination area, and for this to be the same prescribed body corporate as for the Wiluna Determination. That prescribed body corporate is Tarlka Matuwa Piarku Aboriginal Corporation RNTBC (ICN: 8156) (TMPAC), which is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).

On 19 March 2023, Mr Bradley Wongawol, as a representative of the “common law holders” (within s 56(2)(a) of the NTA) in the Wiluna #5 Application, nominated TMPAC to be the prescribed body corporate for the purpose of s 56(2)(a) of the NTA to hold the native title rights and interests in trust for the common law holders. At a director’s meeting on the same day, TMPAC’s directors consented to hold in trust the native title held by the Wiluna #5 common law native title holders to be determined by the Court in this proceeding (see NTA s 56(2)(a)(i) and (ii)). Mr O’Dell gives evidence that Mr Wongawol is accepted as a member of the Claim Group.

62 In summary, the Court has received a written nomination from a representative of the native title holders nominating TMPAC to be the trustee of the native title in the Wiluna #5 determination, and a written consent of TMPAC to that nomination. TMPAC is registered under the CATSI Act, and is the prescribed body corporate for other native title holders in related applications. I am therefore satisfied that the Court has power to make the determinations sought by the parties under s 56 of the NTA: see Oobagooma at [97].

63 Whether it is appropriate to make the determination (NTA s 87(1A)): The remaining precondition for making a native title determination under s 87 of the NTA without holding a hearing is whether the Court is satisfied that it is “appropriate” to make the orders and determination of native title sought (see s 87(1A) and (2)).

64 “Appropriate” – general principles: The discretion in s 87(1A) is to be exercised flexibly and judicially, having regard to the purposes of s 87 specifically and the NTA generally. A key statutory purpose is the resolution of issues concerning native title by mediation and agreement, rather than by Court determination: see, for example, Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]-[23] (Bennett J); Freddie at [17]; Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591 at [25]-[26] (Barker J); Oobagooma at [12]-[16]; McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191; (2023) 301 FCR 452 at [92] (Sarah C Derrington and Colvin JJ).

65 The consent determination mechanism does not substitute a trial, in effect, conducted by State parties for a trial before the Court: equally, the Court is not required to receive evidence and make findings, or form a concluded view on whether the legal requirements for proving native title have been met. Instead, the Court must be satisfied that the State, with the benefit of competent legal representation, is satisfied of the cogency of the evidence on which the Applicant relies; that is, that the State has sufficient information to be in a position to inform the Court that, from the State’s perspective (in the capacity of parens patriae to look after the interests of the community generally), it is appropriate for the Court to make the determination: see Oobagooma at [18]-[20], citing Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30] (Emmett J) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] (North J); Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577 at [51] (the Court); McLennan at [90]-[91].

66 In Wyles on behalf of the Gurambilbarra Wulgurukaba People for the GW Mada Claim v State Minister for Queensland [2025] FCA 833 at [37], McDonald J stated that the Court can be satisfied that it is appropriate to make the orders sought if:

(a)    there exists a free and informed agreement between the parties, which involves the State having taken steps to satisfy itself that there is a credible basis for the making of the determination;

(b)    the parties have independent and competent legal representation;

(c)    the terms of the proposed order are unambiguous and clear; and

(d)    the agreement has been preceded by a mediation process.

67 In assessing those matters, the Court may rely on statements in the Joint Submissions: Gilla (No 3) at [39]-[40]; First Peoples of the Millewa-Mallee Native Title Claim Group v State of Victoria [2025] FCA 799 at [34] (Bennett J); as well as statements in the SOAF. In addition, the Court may adopt any finding of the Court in other proceedings (NTA s 86(1)(a)), meaning that a relevant finding made in another native title proceeding could well provide a credible basis for the State accepting a claim in this proceeding.

68 Material considered by the State: In this case, the Joint Submissions state that the State considered the following material (referred to as the “Connection Material”) in its assessment of the Claim Group’s “connection” to the Claim Area and the requirement of “occupation” for the application of s 47B of the NTA:

(a)    the anthropological report prepared by Amelia Brashaw in August 2024, provided to the State in relation to the Wiluna #5 Claim;

(b)    the supplementary anthropological report prepared by Amelia Brashaw in April 2025, provided to the State in relation to the Wiluna #5 Claim;

(c)    the Affidavit of Lena Long, affirmed on 13 May 2024, provided to the State in relation to the Wiluna #5 Claim;

(d)    the Affidavit of Bradley Wongawol, affirmed on 13 May 2024, provided to the State in relation to the Wiluna #5 Claim;

(e)    the anthropological report prepared by Dr Lee Sackett in May 2009, provided to the State in relation to the application for determination of native title filed by the Claim Group (that was determined in the Wiluna Determination);

(f)    the joint submissions filed on 8 July 2013 by the native title applicant and the State in the WF proceedings (which led to the Wiluna Determination); and

(g)    the Wiluna Determination.

69 The anthropological material referred to in (a) and (b) above is self-evidently probative. Ms Long and Mr Wongawol are both members of the Claim Group, and therefore can provide relevant evidence (cf the affidavits referred to in (c) and (d) above). The anthropological material and joint submissions filed in WF, and the Wiluna Determination, are relevant to this proceeding, given the connection between the claim groups, and commonality between the basis of the claims, in that proceeding and this (see SOAF [2]-[12]; cf the materials referred to in (e) to (g) above).

70 Continuing connection to Country: The Joint Submissions submit that the following conclusions drawn in WF at [14] about the Western Desert Society and the Tjukurrpa apply equally to the Claim Group and their relationship to the Claim Area in this proceeding:

(a)    the applicants are members of the broader Western Desert cultural bloc, the relevant “society” for native title purposes;

(b)    the applicants are an identifiable subset of the wider Western Desert cultural bloc who have rights and responsibilities to the land in the proposed determination area in accordance with Western Desert law and custom;

(c)    the applicants’ fundamental belief in the Tjukurrpa (“the Dreaming” or “simply the Law”) is the source of Western Desert law and custom to which the applicants adhere, and governs their religious practices, social rules, systems of land tenure and other aspects of their lives; and

(d)    the Western Desert system of law and custom remains vital for the applicants who have an intimate knowledge of the law and custom including an extensive knowledge of Western Desert dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader Western Desert (with associated restrictions on women, young men and children).

71 The Joint Submissions submit further that the material identified in [68] above supports the following conclusions:

(a)    The Claim Area is located in the west of the area known as the “Western Desert Cultural Bloc”;

(b)    The concept of the Tjukurrpa (also known as “the Law” or “the Dreaming”) is a central feature of the belief system of members of the Western Desert, including the Claim Group, which encompasses all aspects of their lives. For the Claim Group, a fundamental belief in the Tjukurrpa provides an understanding of all that is. It is the source of the laws and customs to which the Claim Group adhere, and governs their religious practices, social rules, systems of land tenure and other aspects of their lives. The Tjukurrpa explains the formation of the landscape, and is evidenced by particular features of the landscape;

(c)    During the period between about 1925 and 1975, the Claim Group and their ancestors migrated into the Claim Area, mostly from areas to the north east of the Claim Area. Over time the Claim Group came to acquire native title rights and interests in the Claim Area by migration, which is recognised as a means of acquiring native title rights and interests by the traditional laws and customs of the Western Desert;

(d)    Members of the Claim Group visit the Country of the Claim Area to conduct a number of activities, including camping, caring for Country activities such as cleaning out rockholes, hunting and gathering bush foods, and activities aimed at inter-generational transfer of knowledge.

72 The Joint Submissions state that the State’s view is that the material identified in [68] above is sufficient to demonstrate that:

(a)    the Wiluna #5 Claim has a credible basis;

(b)    the Claim Area is within the area traditionally associated with the Western Desert and the Claim Group migrated into the Claim Area and acquired rights and interests under the traditional laws acknowledged and traditional customs observed by members of the Western Desert; and

(c)    the Claim Group have a connection with the Claim Area by the traditional laws acknowledged and the traditional customs observed by them and by their predecessors, which acknowledgement and observance has continued substantially uninterrupted since the assertion of British sovereignty.

73 As to para (b) above, previous cases have accepted that native title rights and interests can be acquired under traditional law and customs through ancestors migrating into the relevant claim area, at least where those persons share the same Western Desert traditional laws and customs as the previous occupants: see WF at [14](j) and Narrier at [660]-[663], [779].

74 Application of NTA ss 47, 47B: The Joint Submissions state that the State has also accepted that the material identified in [68] above provides sufficient evidence:

(a)    of occupation to support the application of s 47B NTA to the parcels of unallocated Crown Land identified in the Wiluna #5 Proposed Determination as parcels UCL 001, UCL 002, UCL 003, and UCL 004; and

(b)    to support the application of s 47 NTA to the pastoral lease identified as PN049866 – Ululla on the basis that the lease is held by TMPAC, the prescribed body corporate nominated to hold the native title in trust for the common law holders, whose members are the members of the native title claim group (cf NTA s 47(1)(b)(i)).

75 Conclusions on whether “appropriate” to make determination: I accept the parties’ submission that the Applicant and the State have each played an active role, and been legally represented, throughout negotiations towards resolution of the proceedings. The State (acting on behalf of the community generally), having regard to the requirements of the NTA and through a rigorous assessment process, has satisfied itself that the proposed determination is justified in all the circumstances. The State has conducted searches of land tenure, mining and petroleum registries to determine the nature and extent of “other interests” within the proposed determination area. I find that the terms of the Wiluna #5 Proposed Determination are unambiguous and clear. I am therefore satisfied of the matters summarised in Wyles at [37]: see [66] above.

76 Costs: The Wiluna #5 Proposed Orders include an order that there be no order as to costs. However, this order does not seem necessary, given s 85A(1) of the NTA.

E. CONCLUSION

77 I am satisfied that the Wiluna #5 Proposed Orders and Proposed Determination should be made. The native title rights and interests of the Wiluna people over the land and waters that are the subject of this application should be formally recognised in the proposed consent determination under the NTA.

78 It is important to observe that this determination of native title does not create native title in the Claim Area. Instead, it constitutes the recognition by the Australian legal system of the Wiluna people’s long-held native title in the Claim Area which has existed, according to the traditional laws and customs of the Wiluna people, since long before this determination today and before the assertion of British sovereignty over the land and waters of Australia: see Oobagooma at [112]; WF at [39].

79 The parties and their representatives are to be congratulated on bringing this matter to a conclusion by way of agreement.

Associate:

Dated:    24 September 2025