FEDERAL COURT OF AUSTRALIA

Vos, on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia (No 2) [2026] FCA 1343

ORDERS

THE COURT NOTES THAT:

A.    The Applicants in proceeding WAD 597/2018 have made a native title determination application (Tjalkadjara Application) pursuant to section 61 of the Native Title Act 1993 (Cth) (Native Title Act).

B.    The Applicants, 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 Tjalkadjara Application (Determination Area). The external boundaries of the Determination Area are described in 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 Tjalkadjara Aboriginal Corporation (ICN:11898) 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.    Tjalkadjara Aboriginal Corporation (ICN:11898) 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 in the Mining Act 1978 (WA);

(ii)    petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum, Geothermal Energy and Greenhouse Gas Storage Act 1967 (WA); or

(iii)    geothermal energy resources and geothermal energy as defined in the Petroleum, Geothermal Energy and Greenhouse Gas Storage 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)    this 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 of the Native Title Act applies to the parts of the Determination Area set out in Schedule 5.

11.    Section 47B of the Native Title Act applies to the parts of the Determination Area set out in Schedule 6.

Definitions and interpretation

12.    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 7, 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 maps at Schedule 7.

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.

13.    In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 7, 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 in Schedule 7, is as follows:

AREA A

All those land and waters commencing at the northwestern corner of Reserve 25051 being a point on the present boundary of Native Title Determination WAD297/2008, WAD498/2011, WAD303/2013 Yilka, Yilka #2 and Sullivan Family (WCD2017/005) and extending southerly and generally westerly along the boundaries of that native title determination to a northwestern corner of Reserve 22032 at approximate Latitude 27.792948 South, Longitude 122.812924 East; then northeasterly back to the commencement point.

AREA B

All those land and waters commencing at the westernmost northwestern corner of Reserve 22032 being a point on the present boundary of Native Title Determination WAD297/2008, WAD498/2011, WAD303/2013 Yilka, Yilka #2 and Sullivan Family (WCD2017/005) and extending southerly and easterly along the boundaries of that native title determination to the intersection with a northern boundary of Native Title Determination WAD91/2019 Nyalpa Pirniku (WCD2023/002); then generally southwesterly and generally northwesterly along the boundaries of that native title determination to the intersection with an eastern boundary of Pastoral Lease N049714 (Erlistoun); then southerly, westerly and northerly along the boundaries of that pastoral lease to the easternmost southeastern corner of Pastoral Lease N049822 (Nambi) being a point on the present boundary of Native Title Determination WAD142/2018 Darlot (WCD2022/002); then generally northerly along the boundaries of that native title determination to a northeastern corner at approximate Latitude 27.584811 South, Longitude 121.984756 East; then generally northeasterly through the following coordinate points:

Then northeasterly to the intersection of a line joining Latitude 27.490654 South, Longitude 122.160773 East and Latitude 27.476376 South, Longitude 122.166356 East with a northern boundary of Pastoral Lease N050400 (Banjawarn); then easterly and northerly along the boundaries of that pastoral lease to the intersection with a southeastern boundary of Native Title Determination WAD56/2022 Payarri People (WCD2025/008) at approximate Latitude 27.373095 South; then northeasterly along the boundary of that native title determination to the intersection with a northern boundary of Pastoral Lease N050400 (Banjawarn) at approximate Longitude 122.212657 East; then easterly and generally southerly along the boundaries of that pastoral lease to the intersection with a northern boundary of Pastoral Lease N049714 (Erlistoun); then easterly and southerly along the boundaries 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 28th January 2026.

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 WAD56/2022 Payarri People (WCD2025/008) as Determined in the Federal Court on the 4 December 2025.

Native Title Determination WAD142/2018 Darlot (WCD2022/002) as Determined in the Federal Court on the 5 July 2022.

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

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

Native Title Determination Application WAD297/2018 Waturta (WC2018/012) as accepted for registration on the 17 August 2018.

Datum:        Geocentric Datum of Australia 2020 (GDA2020)

Prepared By:    Geospatial (Landgate) 27th February 2026

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 maps at Schedule 7, being land and waters where native title has been completely extinguished, are not included in the Determination Area:

Freehold

CT 2021/468, Lot 56 on DP 218427

Reserves

Public works

The areas the subject of the following works:

a.    Roads

b.    Any other 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 holders comprise those Aboriginal persons who are recognised under traditional law and custom as holding 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 Determination Area; or

(b)    their own or an ancestor's long association with the Determination Area; or

(c)    having religious, sacred or ritual authority for land within the Determination Area;

and who have a connection with the Determination area by the traditional laws and customs acknowledged and observed by them.

2.    As at the date of this Determination, the persons referred to in paragraph 1 above include, but are not limited to, the descendants of the following persons who had a connection with the Determination Area by the traditional laws and customs acknowledged and observed by them:

(a)    Wunu and his wife Biyuwara (Biddy)

(b)    Biman and Thati

(c)    Pangu (father of Scotty Lewis)

(d)    Annie Green Tuteru/Tuthara

(e)    Tom Wunal

(f)    Nguldard Jim Hennesey

(g)    Lily Wongawol

(h)    Ngaratarikartaly Nellie Warren and her husbands Munggi Munggi and Ngawila

(i)    Turada Skipper Sandy and Paddy Tjinjtjarti

(j)    Billy Kubuludanu (Billy Polak)

(k)    Walaainga and Tjiku Tjiku

(l)    Marnupa and Billy Campbell

(m)    Thatijarra Banks and Paddy Longfellow Banks

(n)    Nukuwarra Paddy Bond and Nyultan Polly Mitchell

(o)    Waltila Snowy Westlake and Nganuma

(p)    Skipper Elliot, Sandy Gray and Billy Kurlu

(q)    Telpha Ashwin

(r)    Maraputa, Nellie Yalanga, Rangka Rangka, Katie Yiningka, Putjipa

(s)    Yungkutu (Kitty Hill)

(t)    Maude Yarlyen

(u)    Billy (husband of Mary Anne)

(v)    Sambo/Tjumpu Tjumpu

(w)    Davey (Dibby Johnson)

(x)    Dimple Sullivan;

(y)    Charlie Winter; and

(z)    Pauline Edwards.

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 7:

Section 47A areas:

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:

Part 1 – 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):

Exploration Licences:

The agreement as amended and ratified by the Poseidon Nickel Agreement Act 1971 (WA) and rights and interests comprised in, conferred under or in accordance with, or pursuant to that agreement, including the following mining tenements:

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.

Telecommunication interests

6.    The rights and interests of Telstra Corporation Limited (ABN 33 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746), their related bodies corporate and any of their successors in title:

(a)    as the owner(s) or operator(s) of telecommunications facilities installed within the Determination area;

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

(i)    to inspect land;

(ii)    to install, occupy or operate telecommunication facilities; and

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

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

(d)    under any lease, licence, permit, access agreement or easement relating to their telecommunication facilities in the Determination area.

Other

7.    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.

8.    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).

9.    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.

10.    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 APPLIES

Section 47A of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to areas within the Determination Area subject to:

SCHEDULE 6

AREAS TO WHICH SECTION 47B APPLIES

Section 47B of the Native Title Act applies to disregard any extinguishment by the creation of prior interests in relation to the following areas of unallocated Crown land in the Determination Area:

SCHEDULE 7

MAPS OF THE DETERMINATION AREA

REASONS FOR JUDGMENT

COLVIN J:

1    In 2018, an application was brought in this Court for a determination that native title exists in respect of an area of approximately 6700 square kilometres of land in the Shire of Laverton in the Goldfields region of Western Australia. The claim, known as the Tjalkadjara Claim, is made in respect of an area to the north of the township of Laverton.

2    The respondent parties to the Tjalkadjara Claim are the State of Western Australia, the Commonwealth of Australia, the Shire of Laverton, Murrin Murrin Operations Pty Ltd, NTS Goldfields Ltd (NTSG), Regis Resources Limited, Minara Pastoral Holdings Pty Ltd, Amplitel Pty Ltd as trustee of the Towers Business Operating Trust, Telstra Corporation Limited, Marie Anne Schutz and Trevor Glenn Schutz, and Betty Hill.

3    All parties now consent to a determination of native title in terms proposed to the Court. 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 Tjalkadjara Claim. Also sought is an order that Tjalkadjara Aboriginal Corporation (ICN:11898) 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 the subject of the Tjalkadjara Claim 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.

5    Some parts of the proposed consent determination are based upon the application of s 47A or s 47B of the Native Title Act, particularly seven parcels of unallocated Crown land and reserves 25058 and 25060.

6    In McLennan on behalf of the Jangga People #3 v Queensland [2023] FCAFC 191; (2023) 301 FCR 452 at [92] (Sarah C Derrington and Colvin JJ), we described the unique nature of the jurisdiction to make a consent determination in the following terms:

When the Court makes a determination of native title by consent, it makes a determination of a special kind that reflects the exceptional nature of the legislation. It is not concerned with adjudicating common law rights. It is concerned with adjudicating whether there are traditional rights and interests that are recognised by the common law. The NTA responds to the need for a 'special procedure...to be available for the just and proper ascertainment of native title rights and interests 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': see the Preamble to the [Native Title Act} NTA. In consequence, the legislation prefers agreement as the means of resolving controversies as to whether such native title rights exist…

See also Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 at [63] (Wilcox, French and Weinberg JJ).

7    As was explained by O'Bryan J in Oobagooma on behalf of the Big Springs Claim Group v Western Australia [2025] FCA 592; (2025) 309 FCR 515 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 Mortimer J (as the Chief Justice then was) in Agius v State of South Australia (No 6) [2018] FCA 358 at [68]-[77] and Murphy J in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [34]-[36].

8    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).

9    For the following reasons, I am satisfied that there should be a consent determination without a hearing in the terms sought and there should also be an order that the native title as determined is held by the Tjalkadjara Aboriginal Corporation on trust for the native title holders.

Evidence and other material

10    The application for consent determination is supported by two affidavits deposed by a lawyer for NTSG, representing the applicant and also by an affidavit from Ms Sophie Leipoldt an anthropologist employed by NTSG. These affidavits depose to the steps that were taken in obtaining the authority from members of the native title claim group to amend the description of apical ancestors for the purposes of the claim, to seek the proposed consent determination and to approve Tjalkadjara Aboriginal Corporation as the holder of the native title on trust for the native title holders.

11    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 upon 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; (2023) 296 FCR 169 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.

12    As will be explained, the facts in this case were the subject of preparation for a trial of overlapping claims. Therefore, the Court can be confident that relevant factual material was available to the parties and has been considered in reaching agreement as to the proposed determination.

13    The land and waters the subject of the Tjalkadjara Claim overlapped a claim known as the Waturta Claim (being proceedings WAD 297 of 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.

14    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 November 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 Waturta Claim were removed as respondents to the Tjalkadjara Claim. A consent determination has been made in respect of the Waturta Claim: Murphy on behalf of the Waturta Native Title Claim Group v State of Western Australia [2026] FCA 739. There has been further mediation and, as has been mentioned, the terms of a consent determination are now proposed as to the area the subject of the Tjalkadjara Claim.

15    There have also been determinations that native title exists in respect of areas that border the Tjalkadjara Claim Area. These determinations have been in favour of the Yilka People (Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703), the Nyalpa Pirniku People (Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294), the Darlot People (Harrington-Smith on behalf of the Darlot Native Title Claim Group (No 2) [2022] FCA 764) and, as has been mentioned, the Waturta People.

16    Those determinations have been made on the basis of a recognised cultural zone that includes the area the subject of the Tjalkadjara Claim that is known as the Western Desert Cultural Bloc (WDCB). I accept the joint submission of the parties that it is widely acknowledged that members of the WDCB acknowledge and observe a system of traditional laws and customs which provides that its members obtain rights and interests in particular lands and waters via multiple pathways. Those pathways are reflected in the terms of the proposed consent determination (and are described below).

17    The statutory language as to what must be demonstrated in order for a determination of native title to be made requires, amongst other things, the requisite connection with the land to be by traditional laws acknowledged and traditional customs observed. In addition, where s 47B is relied upon, the statutory requirement of occupation must be met. The State has considered the following material in its assessment whether there is a proper basis for the State consenting to the proposed determination:

(1)    an anthropological report entitled Anthropological Report on the Tjalkadjara Native Title Claim prepared by Dr Kevin Murphy dated 24 April 2019;

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

(3)    research memoranda with respect to additional apical ancestors prepared by Ms Leipoldt dated 1 October 2025 and 15 January 2026;

(4)    witness statements of:

(a)    Harvey Murray Senior dated 6 August 2025;

(b)    Harvey Murray Junior dated 6 August 2025;

(c)    Geraldine Hogarth dated 7 August 2025;

(d)    Kelman Foley dated 7 August 2025;

(e)    Maria Meredith dated 8 August 2025;

(f)    Jeff Barnard dated 8 August 2025;

(g)    Elton Polak dated 7 August 2025 and 2 October 2025;

(h)    Verna Vos dated 14 August 2025;

(i)    Daniel Tucker dated 15 August 2025; and

(j)    Susan Murray dated 19 August 2025.

18    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 include 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.

19    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

20    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. The applicant must be authorised as required by s 251B and any conditions on that authority imposed by s 251BA of the Native Title Act must be met.

(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.

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

22    First, the Tjalkadjara Claim was filed at the end of 2018. It was notified and accepted for registration pursuant to s 190A of the Native Title Act. The notification period ended on 7 August 2019.

23    Second, the proposed consent determination relates to the whole of the area now the subject of the Tjalkadjara Claim and does not include any land or waters outside that area.

24    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. There is no reason to doubt the joint submissions by the parties to the effect that they have engaged in an informed process aided by their lawyers to reach agreement as to the terms of the proposed determination.

25    As to the applicant for the Tjalkadjara Claim, the persons comprising the applicant are Ms Verna Vos, Ms Maria Meredith, Mr IF (deceased), Mr Elton Polak and Mr Graham Edwards. A meeting of the claim group members was convened at the Kalgoorlie Overland Hotel on 9 and 10 June 2026 for the purpose of authorising the consent determination and the appointment of the Tjalkadjara Aboriginal Corporation. The affidavits to which I have referred depose to the steps taken to notify all those interested. Ms Leipoldt has deposed to the consultation activities undertaken with those who would be affected by changes to the descriptions of named apical ancestors for the purposes of the claim. Evidence as to the number and identity of those who attended the conduct of the meeting, the process for decision-making and the resolutions that were approved at the meeting has been provided. Minutes as to what occurred at the meeting are before the Court.

26    I am satisfied that the authority of the applicant to consent has been demonstrated.

27    Fourth, there have been no previous determinations over the area the subject of the Tjalkadjara Claim. As has been explained, the area of the Tjalkadjarra Claim was amended to exclude any overlap with the Waturta Claim (which is now the subject of a determination of native title).

28    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.

29    The joint submissions in support of the proposed consent determination set out the findings that the State and the applicant submit are supported by the material to which reference has been made. Not all that material is before the Court on the application for a consent determination. For reasons that have been given, there is no need for that material to be before the Court nor is there a need for the Court to make findings. The Court can act on the basis of the consent of the parties, supported as it is by the State advancing the position that there is a credible basis for the claim. There is no reason to doubt the existence of a proper basis for the consent of a kind that has been accepted by the authorities as the basis upon which a consent determination may be made. There is a sufficient basis for the Court to accept that the claim group for the Tjalkadjara Claim is a society that acknowledges and observes Western Desert Law and custom, centred on the tjukurrpa and does so by way of long association with the land and waters the subject of the Tjalkadjara Claim.

30    The terms of the description of the native title holders conforms with the requirements of s 94A of the Native Title Act. It identifies the native title holders with sufficient particularity to determine who holds those rights and interests: Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 at [15] (Wilcox, North and Weinberg JJ). It does so by reference to apical ancestors and by specifying pathways by which native title rights and interests may be held according to traditional law and custom, namely through:

(1)    their own birth or the birth of an ancestor on the area of the Tjalkidjara Claim; or

(2)    their own or an ancestor's long association with the area of the Tjalkadjara Claim; or

(3)    having religious, sacred or ritual authority for land within the area of the Tjalkadjara Claim

and connection with the area of the Tjalkadjara Claim by the traditional laws and customs acknowledged and observed by them.

31    The parties jointly submit that effective sovereignty as to the area the subject of the Tjalkadjara Claim occurred between 1890 and 1900 and at that time and all times since then there has been a body of persons united in and by their acknowledgement and observance of laws and customs, with some regional variations, which at all times have been continuously acknowledged and observed in the area.

32    As to the extent of other interests, the State has conducted searches of land tenure, mining and petroleum registries to determine the extent of those other interests within the area the subject of the Tjalkadjara Claim and those interests have been included in the terms of the proposed consent determination. The Court can rely on appropriate assurances as to these matters: Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [31] (Emmett J).

33    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.

34    Seventh, on the evidence to which I have referred, 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 v State of Western Australia [2020] FCAFC 69; (2020) 276 FCR 203 arises.

35    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. Those 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. The determination 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 the native title holders for the Tjalkadjara Claim now and into the future. 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 Tjalkadjara Claim has been advanced.

36    There will be orders in the terms proposed by the parties by way of a consent determination of native title for the Tjalkadjara Claim.

Associate:

Dated:    14 September 2026

SCHEDULE OF PARTIES