FEDERAL COURT OF AUSTRALIA

Murphy on behalf of the Waturta Native Title Claim Group v State of Western Australia [2026] FCA 739

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceeding WAD 297/2018 has made a native title determination application (Waturta Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (Native Title Act).

B.    The Applicant, the State and the other Respondents to this proceeding (together, the parties) have reached an agreement as to the terms of a determination which is to be made in relation to the land and waters covered by the Waturta Application (Determination Area). The external boundaries of the Determination Area are described in Part 1 of Schedule 1 to the Determination.

C.    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87 and s 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, in accordance with traditional laws acknowledged and traditional customs observed by them, should be recognised as the native title holders for the Determination Area.

E.    The Applicants have nominated Lalalka Aboriginal Corporation (ICN 11809) pursuant to section 56(2)(a) of the Native Title Act 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 section 87 and section 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 the Determination Area in terms of Attachment “A”.

2.    Lalalka Aboriginal Corporation (ICN 11809) shall hold the determined native title in trust for the native title holders pursuant to section 56(2)(b) of the Native Title Act 1993 (Cth).

3.    There 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 (s 225)

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

Native title holders (s 225(a))

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))

3.    Subject to orders 6 and 7, the nature and extent of the native title rights and interests in relation to each part 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 to 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area (other than those areas identified in Schedule 3) are the following rights or interests:

(a)    the right to access, remain in and use that part;

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

(c)    the right to engage in spiritual and cultural activities on that part; and

(d)    the right to maintain and protect places and objects of significance on that part.

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

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 holders 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 the 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))

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))

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;

(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 interests 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 rights and interests and their exercise, but does not extinguish them.

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

10.    Section 47A and section 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 map at Schedule 6, but not including the Excluded Areas.

Excluded Areas means the land and waters described in Part 2 of Schedule 1 and depicted as such on the map at Schedule 6.

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 maps 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 map in Schedule 6, is as follows:

AREA 1

All those lands and waters commencing at the northeastern corner of the northern severance of Reserve 25051 being a point on the present boundary of Native Title Determination WAD297/2008, WAD498/2011, WAD303/2013 Yilka and Yilka #2 and Sullivan Family (WCD2017/005) and extending westerly along the northern boundary of that native title determination to the northwestern corner of the northern severance of Reserve 25051; Then southwesterly to a northwestern corner of Reserve 22032 at approximate Latitude 27.792948 South, Longitude 122.812923 East being a point on the present boundary of Native Title Determination WAD297/2008, WAD498/2011, WAD303/2013 Yilka and Yilka #2 and Sullivan Family (WCD2017/005); Then southerly and westerly along the boundaries of that native title determination to the intersection with an eastern boundary of Pastoral Lease N049714 (Erlistoun); Then northerly and easterly along the boundaries of that pastoral lease to the easternmost southeastern corner of Pastoral Lease N050400 (Banjawarn); Then generally northwesterly and westerly along the boundaries of that pastoral lease to the intersection with a line joining Latitude 27.315235 South, Longitude 122.241743 East and Latitude 27.420931 South, Longitude 122.186078 East; Then generally northeasterly through the following coordinate points:

Then northerly to the intersection of an eastern boundary of Native Title Determination Application WAD56/2022 Payarri (WC2022/002) with a northern boundary of the Goldfields Representative Aboriginal and Torres Strait Islander Body (RATSIB) area boundary at approximate Longitude 122.339848 East; Then generally easterly and southerly along the boundaries of that RATSIB back to the commencement point.

AREA 2

All those lands and waters commencing at the intersection of a line joining Latitude 27.315235 South, Longitude 122.241743 East and Latitude 27.420931 South, Longitude 122.186078 East with a western boundary of Pastoral Lease N050400 (Banjawarn) and extending southerly and westerly along the boundaries of that pastoral lease to the intersection of a line joining Latitude 27.476376 South, Longitude 122.166356 East and Latitude 27.490654 South, Longitude 122.160773 East with a northern boundary of Pastoral Lease N050400 (Banjawarn); Then generally northeasterly through the following coordinate points:

Then northeasterly back to the commencement point.

Note:    Geographic Coordinates provided in Decimal Degrees.

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

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

Representative Aboriginal/Torres Strait Island Body (RATSIB) areas sourced from National Native Title Tribunal as at 27 June 2024.

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

Native Title Determination WAD139/2024 Wiluna #4 (WCD2025/005) as Determined in the Federal Court on the 30 July 2025.

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

Native Title Determination WAD453/2017, WAD298/2019 Manta Rirrtinya (WCD2018/007) as Determined in the Federal Court on the 13 September 2018.

Native Title Determination WAD6004/2004 Ngaanyatjarra Lands (Part B) (WCD2008/001) as Determined in the Federal Court on the 3 June 2008.

Native Title Determination WAD297/2008, WAD498/2011, WAD303/2013 Yilka and Yilka #2 and Sullivan Family (WCD2017/005) as Determined in the Federal Court on the 27 September 2017.

Native Title Determination Application WAD56/2022 Payarri (WC2022/002) as accepted for registration on the 23 September 2022.

Datum:        Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Geospatial (Landgate) 30th October 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

The following areas within the external boundaries described in Part 1 of this Schedule 1, generally shaded in pink on the map at Schedule 6, being land and waters where native title has been completely extinguished, are not included in the Determination Area:

Lease

Public works

Any public works as that expression is defined in the Native Title Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) and to which s 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the Native title Act applies, within the external boundary of the Determination Area including the land and waters defined in s 251D of the Native Title Act.

SCHEDULE 2

DESCRIPTION OF THE NATIVE TITLE HOLDERS

1.    The native title holding group comprises the persons who hold native title rights and interests in the Determination Area through one or more of the following:

(a)    their own birth or the birth of an ancestor on the claim area; or

(b)    their own or an ancestor's long association with the claim area; or

(c)    having religious, sacred or ritual authority for land within the claim area;

and who have a connection with the Determination Area in accordance with traditional laws and customs.

2.    As at the date of this determination, the persons referred to in paragraph 1 of this description of native title holders include any of the descendants of the following persons who have a connection with the claim area in accordance with traditional laws and customs:

(a)    Biman (Roy Beaman);

(b)    Pangu (father of Scotty Lewis);

(c)    Tom Wunal;

(d)    Lily Wongawol;

(e)    Munggi Munggi and Ngawila;

(f)    Billy Kubuludanu (Billy Polak);

(g)    Walaainga and Tjiku Tjiku;

(h)    Marnupa, Tatijarra Banks and Paddy Longfella Banks;

(i)    Billy Campbell;

(j)    Nukuwara Paddy Bond;

(k)    Waltila Snowy Westlake and Nganuma;

(l)    Maraputa;

(m)    Nellie Yalanga;

(n)    Rangka Rangka;

(o)    Putjiba and Katie Yiningka;

(p)    Yungkututu (Kitty Hill);

(q)    Nguru (Charlie Thorpe) and Mary Marnidi; and

(r)    Roly Hill.

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:

Section 47A area:

Section 47B areas:

SCHEDULE 4

OTHER INTERESTS

The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of this Determination:

Other interests which validly affect the native title rights and interests

Pastoral leases

1.    The following current pastoral leases and the rights and interests of the holders from time to time of those pastoral leases:

Reserves

2.    The interests of persons who have the care, control and management of the following reserves and the interests of people entitled to access and use these reserves for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

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) which are current as at 8 October 2025:

(a)    Exploration Licences

E 38/02205 E 38/02627 E 38/02740 E 38/02741 E 38/02742

E 38/02744 E 38/02965 E 38/03152 E 38/03160 E 38/03185

E 38/03289 E 38/03456 E 38/03738

(b)    Miscellaneous Licences

L 38/00073

4.    Subject to paragraph 5 below, any rights that may exist as at the date of this determination that are held by the holders from time to time of the tenements listed above, that permit the holder of those tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area:

(a)    as may be permitted in accordance with those rights and interests; and

(b)    as are necessary to have access to the area the subject of the tenement for the purpose of exercising the right granted by that interest.

5.    Nothing in paragraph 4 above allows any upgrade, extension, widening, realignment or other improvement to the road or track.

Other

6.    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.

7.    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).

8.    The right to access the Determination Area by an employee, agent or instrumentality of:

(a)    the State;

(b)    the Commonwealth;

(c)    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.

9.    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:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; or

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

SCHEDULE 5

AREAS TO WHICH SECTION 47A and 47B APPLY

Sections 47A and 47B of the Native Title Act apply to disregard any extinguishment by the creation of prior interests in relation to the following areas in the Determination Area:

Section 47A area:

Section 47B areas:

SCHEDULE 6

MAP OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

COLVIN J:

1    On 2 July 2018, an application was brought in this Court for a determination that native title exists in respect of particular land and waters in the Northern Goldfields region of Western Australia on the edge of the Great Victoria Desert. The claim, known as the Waturta Claim, was made in respect of an area that comprises much of Lake Wells as well as land to its west, south and east. Specifically, the area the subject of the Waturta Claim comprises two parcels of unallocated Crown land, the whole of Lake Wells Pastoral Lease N050056, a portion of Prenti Downs Pastoral Lease PL N050653 and two reserves (Waturta Claim Area). Mining tenements have been granted over parts of the Waturta Claim Area.

2    The respondent parties to the Waturta Claim are the State of Western Australia, Regis Resources Limited, APC Minerals Limited, Gold Road (North Yamarna) Pty Limited and NTS Goldfields Ltd.

3    All the parties to the application now consent to a determination of native title. They seek orders pursuant to s 87 of the Native Title Act 1993 (Cth) as to the existence of native title in the land and waters the subject of the Waturta Claim. Also sought is an order that Lalalka Aboriginal Corporation (ICN 11809) hold the determined native title in trust for the native title holders as determined.

4    The terms of the proposed consent determination identify those parts of the area for which a determination of rights to exclusive possession are proposed to be made and those parts where the rights that are proposed to be determined are non-exclusive. It also identifies all the exclusive possession parts as areas to which s 47A and s 47B of the Native Title Act applies (being provisions that deal with land legally set aside by some means for the benefit of aboriginal people under laws made since European settlement and land that remains vacant Crown land). However, the extent of the area that is proposed to be the subject of a consent determination that native title exists excludes part of the Waturta Claim Area. As to the excluded part, the proposed consent determination will operate as a negative determination.

5    As was explained by O'Bryan J in Oobagooma on behalf of the Big Springs Claim Group v State of Western Australia [2025] FCA 592 at [20], in exercising the power conferred by s 87 to make a determination as to the existence of native title by consent, the Court's principal focus is upon the agreement of the parties. The Court does not embark upon its own assessment of the evidence. So, '[i]n a given case, the history of the proceeding, the legal representation of the State, a statement of agreed facts and representations made by the State to the Court, often jointly with the applicant, will be sufficient to satisfy the Court that the State is acting in good faith and rationally in reaching agreement with the applicant'. See also the reasons of Murphy J in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [34]-[36].

6    The Court can exercise the power to make a consent determination in or consistent with the terms proposed without holding a hearing: see s 87(2).

7    For the following reasons, I am satisfied that there should be a consent determination in the terms sought and an order that the native title as determined is held by Lalalka on trust for the native title holders.

Evidence and other material

8    The application for a consent determination is supported by an affidavit from a solicitor acting for the Waturta Claim applicant. His affidavit deals with the formal steps by which authority was obtained from the members of the native title claim group to seek the proposed consent determination and the decision that Lalalka should hold the native title on trust for the native title holders.

9    Where the Court is asked to exercise the power conferred by s 87, the Court may receive a statement of facts from one of the parties. However, the nature of the power being exercised is such that the Court is not required to receive evidence as to the basis for the consent determination. Whether it is appropriate for there to be a statement of agreed facts as to any matters that bear upon whether native title exists or some evidence as to any of those matters is required is a matter for the Court and will depend the circumstances of the particular case. This approach reflects the overall scheme of the Native Title Act as explained in the Preamble. The legislation is intended to provide for a special procedure for the just and proper ascertainment of native title rights and interest 'which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character'. As I explained in The Nyamal Palyku Proceeding (No 7) [2023] FCA 528 at [102]-[108], the resolution of applications for native title by agreement reached through a process of mediation is the preferred means for resolution of controversies as to the existence of native title.

10    In the present case, the land and waters the subject of the Waturta Claim was the subject of an overlapping claim known as the Tjalkadjara Claim (being proceedings WAD597/2018). The Tjalkadjara Claim overlapped the whole of the Waturta Claim Area, but was in respect of an area of land larger than the Waturta Claim. There was intensive mediation in relation to the overlapping part of the two claims in the period 2021 to 2024. Agreement was unable to be reached at that time.

11    In 2025, orders were made for an on-country hearing to be conducted in October 2025 as to the overlapping claims. Pursuant to case management directions, witness statements and video evidence was filed by the native title applicant in each of the overlapping claims. In September 2025, the Court granted leave to amend the application in respect of the Tjalkadjara Claim so that it no longer overlapped the Waturta Claim: Vos on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia [2025] FCA 1439. At that time, individual respondents associated with the Tjalkadjarra Claim were removed as respondents to the Waturta Claim. Further, on the basis that agreement was considered likely, the Waturta Claim was programmed towards a consent determination. There has been further mediation and, as has been mentioned, the terms of a consent determination are now proposed as to the Waturta Claim Area.

12    There have also been determinations that native title exists in respect of areas that border the Waturta Claim Area. Those determinations have been in favour of the Wiluna People (see WF (deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755, Morgan on behalf of the Wiluna #4 Native Title Claim Group v State of Western Australia [2025] FCA 859 and Williams on behalf of the Wiluna #5 Native Title Claim Group v State of Western Australia [2025] FCA 1178), the Payarri People (Muir & Ors on behalf of the Payarri People and State of Western Australia & Ors [2025] FCA 1456) and the Yilka People (Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703).

13    By their joint submissions in support of the application for a determination as to native title by consent, the applicant and the State have informed the Court that the material that the State has considered in assessing the Waturta Claim includes three anthropological reports concerning the claims made being:

(1)    A report dated July 2018 titled 'Waturta Native Title Claim Preliminary Connection Research' prepared by Dr Pamela McGrath;

(2)    A report dated November 2020 titled 'A Preliminary Report regarding NTSG's Research "Area A" ' prepared by Dr Heather Lynes;

(3)    A report dated June 2022 titled 'Anthropologists' Expert Report for Overlap Area' prepared by Dr Kingsley Palmer and Dr Catherine Wohlan.

14    Witness statements filed in the proceedings have also been considered by the State, in particular statements from Mr Harvey Murray Snr, Mr Harvery Murray Jnr, Mr Kado Muir, Mr Kalman Murphy, Mr Alwyn Anderson and Mr Talbot Muir.

15    The significance of all these matters is that they indicate the extent of the materials available to the parties to provide the basis for an informed resolution of the claims made by way of consensus. The materials provided included those materials that were to be relied upon at the hearing of the claim. Further, the parties have been legally represented by experienced practitioners. There is nothing to suggest that those involved have acted other than in good faith and based upon a rational consideration of the available material. The parties have had access to all that material and a long mediation process to inform their positions.

16    In those circumstances, I am satisfied that it is appropriate to proceed without a statement of agreed facts on the basis of:

(1)    the consent of all respondents;

(2)    the joint submissions of the applicant and the State; and

(3)    the acceptance by the State that the available materials demonstrate a sufficient basis to accept the extent of the proposed determination of native title, including for the purposes of s 47A of the Native Title Act (as to reserved land) and the occupation required for the purposes of s 47B (as to unallocated Crown land), without a statement of agreed facts.

Conditions to be met

17    The following conditions must be met before a determination of native title may be made pursuant to s 87 based upon the agreement of the parties. They are:

(1)    Notice of the application for determination of native title must have been given as required by s 66 of the Native Title Act and the notice period must have expired.

(2)    The agreement of the parties must relate to an area which is included in the area covered by the application.

(3)    The terms of the proposed agreement must be in writing and signed by or on behalf of each of the parties and filed with the Court.

(4)    There must have been no previous determination of the extent of native title over the area (or the order must be justified as a variation of the previous determination pursuant to s 13(1)(b) of the Native Title Act).

(5)    The Court must be satisfied that an order in the proposed terms would be within the power of the Court. In that regard, the Federal Court has jurisdiction as to matters arising under the Native Title Act and must make any determination of native title in accordance with the procedures in the Act (see s 213). Those procedures require any determination of native title to set out the matters stated in s 225 (see s 94A). They require the determination to reflect the state of the common law as to the nature and extent of such interests and for there to be a factual basis for the making of an order and the determination must specify:

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

(b)    the nature and extent of the native title rights and interests;

(c)    the nature and extent of any other interests;

(d)    the relationship between the native title interests and any other interests; and

(e)    whether the native title rights and interests confer possession, occupation, use and enjoyment to the exclusion of all others.

(6)    It must appear to the Court that it is appropriate to make the order.

(7)    If a determination of the existence of native title is to be made based on agreement then (as required by s 55 of the Native Title Act) the Court must at the same time or as soon as practicable thereafter make the determination required by s 56 as to how the native title interest will be held.

18    For the following reasons, I am satisfied as to each of the above matters.

19    First, the Waturta Claim was filed on 2 July 2018. It was notified and accepted for registration pursuant to s 190A of the Native Title Act on 17 August 2018. The notification period ended on 18 December 2018.

20    Second, the proposed consent determination relates to the whole of the Waturta Claim Area and does not include any land or waters outside that area.

21    Third, the proposed consent determination is recorded in writing, signed by or on behalf of all the parties and has been filed with the Court.

22    As to the applicant for the Waturta Claim, the remaining persons comprising the applicant at the time of the application for a consent determination are Mr Kalman Murphy, Mr Kado Muir, Mr Anthony Shaw, Ms Lynette Shaw and Ms Vanessa Thomas. A meeting of the claim group members was held on 5 November 2025. It was convened by giving formal notice to those who had been identified as claim group members, being some 41 people. The notice of the meeting stated that it was to (a) provide an update on the progress of the Waturta Claim; (b) seek authorisation for a consent determination of native title in respect of the Waturta Claim; and (c) obtain instructions about setting up a prescribed body corporate for the native title holders. The notice included a description of the native title holders the subject of the application in respect of the Waturta Claim.

23    The meeting was held at the Leonora Bowls Club and was attended by 15 people. They included four of the persons comprising the applicant. There were also legal representatives in attendance. The evidence establishes that a detailed explanation was provided to those in attendance of the terms of the proposed consent determination. The explanation identified the extent of the exclusive area, the non-exclusive area and the excluded area. A resolution agreeing to the proposed consent determination was passed at the meeting by consensus. A resolution was also passed to authorise the creation of Lalulka and for it to be sought to be the prescribed body corporate for the native title holders and for it to be nominated to hold in trust the native title as determined. The meeting also agreed the terms of a proposed rule book for the administration of the native title rights and interests by Lalulka as trustee.

24    By the above matters, the authority of the applicant to consent has been demonstrated

25    As I have mentioned a consent to the proposed orders has been filed. The consent is signed on behalf of the applicant and all present respondents.

26    Fourth, there have been no previous determinations over the Waturta Claim Area. As has been explained the overlapping Tjalkadjarra Claim has been amended to exclude any claim to the Waturta Claim Area.

27    Fifth, for reasons that have been given, there is a proper basis in the informed agreement of the parties for the proposed consent determination. The terms of the proposed determination specify the native title holders, the nature and extent of their rights and interests, their relationship with other interests and the extent to which those rights and interests are exclusive.

28    The joint submissions in support of the proposed consent determination explain the nature of the traditional laws acknowledged and the traditional customs observed by reference to established Western Desert law and custom. This is a system of law and culture that has been adjudicated by this Court and accepted in many previous decisions. It is an ancient system that imposes obligations that continue to be recognised and observed amongst groups of Western Desert people. For reasons that have been given, the agreement of the parties is a sufficient basis to accept that the claim group for the Waturta Claim Area is a society that acknowledges and observes Western Desert Law and custom and does so by way of long association with the land and waters the subject of the Waturta Claim.

29    The terms of the description of the native title holders conforms with the requirements of s 94A of the Native Title Act. However, the description in the proposed consent determination departs from those in the application in two respects. First, in the application the description referred to 'individual' native title rights and interests. The proposed determination deletes the word 'individual'. Second, the apical ancestors for the purposes of identified members of the claim group remain unchanged but the list of persons specifically identified as descendants of those apical ancestors (and therefore whose descendants may be claim group members) has been expanded.

30    As to these matters, the affidavit of the solicitor deposes in support of the application to the following:

I am aware from reading the files that the changes to the list of ancestors have been made as a result of information provided in the course of mediation proceedings between the Applicant in the Waturta Application and the Applicant in the Tjalkadjara native title determination application (WAD597 of 2018) during the period from around August 2022 to July 2024. At the time of the mediation proceedings, the external boundaries of the Tjalkadjara native title determination application wholly overlapped the external boundaries of the Waturta Application.

All of these additional ancestors were considered by the participants of the mediation proceedings and were agreed to be included in the list of ancestors at a meeting of the Waturta claim group following the mediation proceedings and also held on 22 October 2024. I am aware from reading the files that prior to agreeing to the inclusion of the additional ancestors, the Applicant in the Waturta Application and the Waturta claim group considered existing anthropological research material and legal advice from Cross Country.

The expanded description of named ancestors…is consistent with the recognition of the Waturta claim group of the entitlements of their descendants to native title rights and interests under the traditional laws and customs of the Western Desert…

31    I am satisfied that these amendments to the description of native title holders are by way of clarification, informed by additional evidence that has become available during the conduct of the proceedings, and do not alter the nature of the application or the overall scope of the Waturta Claim.

32    Sixth, for reasons I have given I consider it appropriate for the proposed consent determination to be made. The joint submissions identify no other matter that would bear upon an assessment as to whether it was appropriate to make the orders sought in the exercise of the power conferred by s 87 of the Native Title Act.

33    Seventh, on the evidence to which I have made reference concerning Lalulka, it is appropriate to make the orders sought as to the prescribed body corporate and the holding of native title rights and interests on trust. The application in the present case is not a determination in respect of rights and interests that have been the subject of a previous determination applied to an adjoining area. Therefore, no issue of the kind considered in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 arises.

34    Finally, I observe that a determination of native title is a significant legal and cultural event. It recognises for the purposes of Australian law the continuation of rights and interests in respect of particular land and waters which rights and interests derive their existence from traditional laws long acknowledged and customs long observed that confer a deep connection with an area of land in Australia. It recognises that those matters reach back well before the establishment of this Court and the institutions of the government of which it is part. It describes the nature and extent of those rights and interests. It does not create them nor does it make the connection which is fundamental to them. Rather, it determines the existence of them. They were there before the determination to be made today, but by order of the Court they now receive the recognition and legal protection afforded by a determination of this Court. The determination made today enables those rights and interests to be fully enjoyed by native title holders for the Waturta Claim. It provides certainty, also, as is stated in the Preamble to the Native Title Act, it is a determination that seeks to rectify past injustices and to ensure recognition and status that is the deserved aspiration of the native title holders on whose behalf the Waturta Claim has been advanced.

Associate:

Dated:    12 June 2026

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