McKellar on behalf of the Budjiti People v State of Queensland

[2015] FCA 601

FEDERAL COURT OF AUSTRALIA

McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601

Citation:	McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601
Parties:	DINNY MCKELLAR, MELISSA BRYAN, PHILLIP EULO, MARGARET HEARN, CAROLYN HOOPER and ELIZABETH MCNIVEN v STATE OF QUEENSLAND, BULLOO SHIRE COUNCIL, PAROO SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, BRIDGEFIELD PTY LIMITED, DELHI PETROLEUM PTY LTD, MOONIE PIPELINE COMPANY PTY LTD, ORIGIN ENERGY CSG LIMITED, SANTOS LIMITED, VAMGAS PTY LTD, GEOFF BARTON, BUNDOONA NOMINEES PTY LTD, FAY MARY COONEY, GRANT PATRICK COONEY, EILEEN JEAN EASTON, GORDON CHARLES EASTON, RANDALL KENNETH NEWSHAM and GREGORY NOEL VICARY SHERWIN
File number:	QUD 53 of 2007
Judge:	MANSFIELD J
Date of judgment:	23 June 2015
Catchwords:	NATIVE TITLE – consent determination – requirement under s 87 of the Native Title Act 1993 (Cth) – resolution by agreement of claim for determination of native title
Legislation:	Native Title Act 1993 (Cth)
Cases cited:	Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229
Date of hearing:	23 June 2015
Date of last submissions:	17 June 2015
Place:	Currawinya Woolshed
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	84
Solicitor for the Applicants:	P Bishop on behalf of Queensland South Native Title Services
Solicitor for the State of Queensland:	G Morrison on behalf of Crown Law for the State of Queensland

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 53 of 2007

BETWEEN:

DINNY MCKELLAR
First Applicant

MELISSA BRYAN
Second Applicant

PHILLIP EULO
Third Applicant

MARGARET HEARN
Fourth Applicant

CAROLYN HOOPER
Fifth Applicant

ELIZABETH MCNIVEN
Sixth Applicant

AND:

STATE OF QUEENSLAND
First Respondent

BULLOO SHIRE COUNCIL
Second Respondent

PAROO SHIRE COUNCIL
Third Respondent

ERGON ENERGY CORPORATION LIMITED
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

BRIDGEFIELD PTY LIMITED
Sixth Respondent

DELHI PETROLEUM PTY LTD
Seventh Respondent

MOONIE PIPELINE COMPANY PTY LTD
Eighth Respondent

ORIGIN ENERGY CSG LIMITED
Ninth Respondent

SANTOS LIMITED
Tenth Respondent

VAMGAS PTY LTD
Eleventh Respondent

GEOFF BARTON
Twelfth Respondent

BUNDOONA NOMINEES PTY LTD
Thirteenth Respondent

FAY MARY COONEY
Fourteenth Respondent

GRANT PATRICK COONEY
Fifteenth Respondent

EILEEN JEAN EASTON
Sixteenth Respondent

GORDON CHARLES EASTON
Seventeenth Respondent

RANDALL KENNETH NEWSHAM
Eighteenth Respondent

GREGORY NOEL VICARY SHERWIN
Nineteenth Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	23 JUNE 2015
WHERE MADE:	CURRAWINYA WOOLSHED

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth)

BY CONSENT THE COURT ORDERS THAT:

1.There be a determination of native title in the terms set out below (the Determination).

2.The Determination will take effect upon the agreements referred to in paragraph 1(a)-(q) of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

3.In the event that the agreements referred to in paragraph 2 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

4.Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

5.The Determination Area is the land and waters described in Schedule 1A and depicted on the map attached to Schedule 1B.

6.Native title exists in relation to the Determination Area described in Part 1 of Schedule 1.

7.The native title is held by the Budjiti People described in Schedule 3 (the native title holders).

8.Subject to paragraphs 9, 10 and 11 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1A  are the non-exclusive rights to:

(a)access, be present on, move about on and travel over the area;

(b)camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

(c)hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

(d)take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

(e)take and use the Water of the area for personal, domestic and non-commercial communal purposes;

(f)conduct ceremonies and hold meetings on the area;

(g)be buried and bury native title holders within the area;

(h)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;

(i)teach on the area the physical and spiritual attributes of the area;

(j)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(k)be accompanied onto the area by certain non-native title holders, being:

(i)spouses and other immediate family members of native title holders, pursuant to the exercise of traditional laws and customs; and

(ii)people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in ceremonies.

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

(a)the Laws of the State and the Commonwealth; and

(b)the traditional laws acknowledged and traditional customs observed by the native title holders.

10.The native title rights and interests referred to in paragraph 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

11.There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

12.The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

13.The relationship between the native title rights and interests described in paragraph 8 and the other interests described in Schedule 4 (the other interests) is that:

(a)the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and

(c)the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

14.The Applicant (through the Prescribed Body Corporate), the State of Queensland, or any other Respondent Party have liberty to apply to the Court on 14 days’ notice to establish the precise location and boundaries of any public works and adjacent land and waters referred to in Schedule 2.

DEFINITIONS AND INTERPRETATION

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

“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);

“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

“Local Government Act” has the same meaning as in the Local Government Act 2009 (Qld);

“Local Government Area” has the same meaning as in the Local Government Act 2009 (Qld);

“Natural Resources” means:

(a)     any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and

(b)     any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area

that have traditionally been taken and used by the native title holders, but does not include:

(a)     animals that are the private personal property of another;

(b)     crops that are the private personal property of another; and

(c)     minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“Plant” has the same meeting as in the Nature Conservation Act 1992 (Qld);

“Reserves” means reserves that are dedicated or taken to be reserves under the Land Act 1994 (Qld);

“Water” means:

(a)     water which flows, whether permanently or intermittently, within a river, creek or stream;

(b)     water from an underground water source; and

(c)     any natural collection of water, whether permanent or intermittent.

Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

THE COURT DETERMINES THAT:

16.The native title is held in trust.

17.The Budjiti Aboriginal Corporation (ICN: 8210), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b)perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Schedule 1 – DETERMINATION AREA

A.       Description of Determination Area

The Determination Area comprises all of the following land and waters described in Part 1 of Schedule 1A to the extent that they fall within the External Boundary described in Part 2 of Schedule 1A and depicted in the Map at Schedule 1B, excluding the areas described in Schedule 2.

Part 1 – Non-Exclusive Areas

(a)       The land and waters comprised of the lots and part lots listed below:

That part of Lot 8 on CP892351 that falls within the External Boundary 

Lot 10 on WN123

Lot 15 on NPW591

Lot 1 on WN125

Lot 2 on WN125

That part of Lot 4 on WN234 that falls within the External Boundary

That part of Lot 4 on CP880081 that falls within the External Boundary 

Lot 1 on WN19

That part of Lot 5 on SP126466 that falls within the External Boundary

That part of Lot 5213 on PH1110 that falls within the External Boundary

That part of Lot 1 on SP271973 that falls within the External Boundary

Lot 1306 on SP274642

That part of Lot 2 on WN7 that falls within the External Boundary

Lot 1 on WN101

Lot 6 on WELL5382

Lot 8 on WELL5382

Lot 301 on Y2521

Lot 302 on Y2521

Lot 303 on Y2521

Lot 304 on Y2521

Lot 305 on Y2521

Lot 307 on Y2521

Lot 308 on Y2521

Lot 309 on Y2521

Lot 401 on Y2521

Lot 402 on Y2521

Lot 403 on Y2521

Lot 404 on Y2521

Lot 405 on Y2521

Lot 407 on Y2521

Lot 408 on Y2521

Lot 409 on Y2521

Lot 410 on Y2521

Lot 501 on Y2521

Lot 502 on Y2521

Lot 503 on Y2521

Lot 504 on Y2521

Lot 505 on Y2521

Lot 507 on Y2521

Lot 508 on Y2521

Lot 509 on Y2521

Lot 510 on Y2521

Lot 2 on WN120

That part of Lot 1295 on PH1617 that falls within the External Boundary

That part of Lot 21 on HU53 that falls within the External Boundary

That part of Lot 2 on WN122 that falls within the External Boundary

Lot 9 on W51224

Lot 26 on WN185

Lot 7 on WELL5389

Lot 35 on W51224

Lot 33 on WN147

Lot 5 on WN216

Lot 32 on AP15633

That part of Lot 46 on SP132689 excluding previous Allotments 6 & 7 of Section 9, Allotment 10 of Section 10 on plan E1813 and an area identified as road to be closed (part of Shea Street) and delineated by station numbers 5-16-14-8-5 on SP132689 .

Lot 1 on AP5785

That part of Lot 2 on AP5785 excluding former Allotment 8 of Section 9 on plan E1813

Lot 101 on E1811

Lot 804 on E1813

Lot 7 on WN187

That part of Lot 1673 on PH2276 that falls within the External Boundary

That part of Lot 2828 on PH276 that falls within the External Boundary

That part of Lot 2829 on PH307 that falls within the External Boundary

That part of Lot 23 on NPW450 excluding an area identified as Lot 15 on NL8025469

Lot 4904 on SP207172

Lot 1 on SP207172

Lot 4907 on PH2235

That part of Lot 2669 on PH2064 that falls within the External Boundary

Lot 1803 on PH635

Lot 4903 on SP271327

Lot 3 on WY11

That part of Lot 11 on CP855300 that falls within the External Boundary

That part of Lot 10 on CP855300 that falls within the External Boundary

Lot 2 on NL24

Lot 1 on WY15

Lot 103 on C2561

Lot 104 on C2561

Lot 105 on C2561

Lot 106 on C2561

Lot 107 on C2561

Lot 108 on C2561

Lot 109 on C2561

Lot 110 on C2561

Lot 201 on C2561

Lot 202 on C2561

Lot 204 on C2561

Lot 205 on C2561

Lot 206 on C2561

Lot 207 on C2561

Lot 208 on C2561

Lot 209 on C2561

Lot 210 on C2561

Lot 1 on NL24

Lot 5096 on PH550

Lot 5098 on PH547

Lot 1 on NL13

Lot 12 on NL25

Lot 1 on AP19910

Lot 1 on NL7

Lot 2 on NL7

Lot 3 on NL7

Lot 13 on H2346

Lot 11 no NL12

Lot 1 on H2344

Lot 2 on H2344

Lot 3 on H2344

Lot 4 on H2344

Lot 5 on H2344

Lot 6 on H2344

Lot 7 on H2344

Lot 8 on H2344

Lot 10 on H2344

Lot 3 on H2341

Lot 4 on H2341

Lot 7 on H2341

Lot 8 on H2341

Lot 9 on H2341

Lot 10 on H2341

Lot 12 on H2341

Lot 13 on H2341

Lot 14 on H2341

Lot 16 on H2341

Lot 17 on H2341

Lot 18 on H2341

Lot 21 on H2341

Lot 22 on H2341

Lot 23 on H2341

Lot 203 on H2341

Lot 907 on H2341

Lot 908 on H2341

Lot 909 on H2341

Lot 807 on H2341

Lot 808 on H2341

Lot 14 on NL26

Lot 1 on AP19910

Lot 8 on WELL534

Lot 7 on W5165

That part of Lot 1 on KU77 that falls within the External Boundary

Lot 2 on WY12

Lot 2 on SP271973

Lot 3 on SP271973

Lot 1257 on PH1992

Lot 4852 on PH1531

That part of Lot 36 on WN217 that is not subject to the Eulo Telecommunications Facility, which is a public work as defined in paragraph 2(b) of schedule 2

Lot 3 on WY802468

That part of Lot 102 on H2341 that is not subject to the Hungerford Telecommunications Facility, which is a public work as defined in paragraph 2(b) of schedule 2

(b)       The waters within the External Boundary Description including but not limited to:

(i)Paroo River;

(ii)Bow Creek;

(iii)Bundilla Creek;

(iv)Mirraparoo Creek; and

(v)Yowah Creek.

Part 2 - External Boundary of the Determination Area

The External Boundary of the Determination Area commences at a point on the Queensland – New South Wales State Border at Longitude 143.684697° East, a point on the Kullilli People Native Title Determination external boundary, and extending generally northerly and generally north-easterly along that external boundary to Latitude 27.686700° South, further described as:

Generally northerly and generally north-easterly along a ridgeline to Longitude 144.067132° East, Latitude 28.175252° South, about 32 km south-easterly of Thargomindah and about 3 km easterly of Dynevor Downs No. 9 Bore passing through the following coordinate points.

Longitude East			Latitude South
143.684528			28.997830
143.684328			28.996186
143.684424			28.992798
143.685031			28.988488
143.685773			28.984522
143.686906			28.980666
143.687782			28.977100
143.689501			28.973185
143.690183			28.969850
143.691130			28.966916
143.691476			28.962493
143.692596			28.957433
143.692932			28.951920
143.692811			28.946524
143.693144			28.940896
143.692972			28.936591
143.692976			28.930678
143.692847			28.924422
143.692798			28.919600
143.692286			28.914149
143.691318			28.908587
143.690095			28.903658
143.688352			28.898848
143.685427			28.893012
143.684660			28.888080
143.684282			28.882973
143.685335			28.877627
143.686198			28.872799
143.689203			28.867210
143.691114		28.862948
143.694719		28.858790
143.698459		28.855148
143.704422		28.852180
143.708772		28.850715
143.714753		28.849583
143.719763		28.848975
143.726019		28.849219
143.732736		28.849977
143.739245		28.849473
143.745550		28.848110
143.749368		28.845615
143.753442		28.842832
143.757112		28.838501
143.759038		28.835789
143.761405		28.831581
143.763446		28.827261
143.764444		28.822949
143.766487		28.812429
143.767145		28.806741
143.767622		28.802375
143.767629		28.796634
143.767186		28.791470
143.765968		28.787000
143.764231		28.782764
143.762374		28.779562
143.760045		28.774698
143.757978		28.770062
143.754799		28.764859
143.752077		28.759826
143.749542		28.754045
143.748446		28.748599
143.747397		28.741659
143.746894		28.737127
143.746384		28.731849
143.746671		28.728058
143.748055		28.723169
143.750031		28.718965
143.751690		28.715566
143.753734		28.711534
143.756108		28.708015
143.758355		28.704785
143.759305		28.702138
143.759926		28.699148
143.760929		28.695295
143.761014		28.690817
143.759996		28.686748
143.758664		28.683944
143.756356		28.681146
143.753005		28.678356
143.749057		28.674422
143.746812		28.671452
143.743392		28.668260
143.740426		28.664893
143.737578		28.660263
143.735972		28.656083
143.735741		28.652525
143.736942		28.648900
143.738474		28.645847
143.740714		28.641813
143.742317		28.639506
143.745393		28.634490
143.748414		28.630508
143.750591		28.626877
143.753222		28.622955
143.756172		28.618342
143.757688		28.613682
143.759075		28.609194
143.759942		28.604768
143.760357		28.600746
143.760443		28.596325
143.760917		28.591729
143.760552		28.587828
143.759476		28.584448
143.757490		28.581304
143.754200		28.578054
143.751568		28.575546
143.748540		28.572410
143.746229		28.569383
143.743980		28.565953
143.743931		28.561189
143.743833		28.557917
143.744054		28.554299
143.744210		28.550279
143.743455		28.546610
143.742306		28.542370
143.741227		28.538933
143.740461		28.534001
143.738717		28.529133
143.735025		28.524795
143.731928		28.521314
143.728439		28.517664
143.724758		28.514474
143.721406		28.511511
143.719619		28.508711
143.719328		28.505785
143.719367		28.503201
143.720049		28.499752
143.719566		28.497172
143.719473		28.494359
143.720100		28.491944
143.721571		28.489293
143.723622		28.486007
143.725483		28.483296
143.730376		28.477579
143.732763		28.475324
143.734897		28.473759
143.737292		28.472193
143.740598		28.470620
143.744032		28.468989
143.746820		28.467535
143.750827		28.464522
143.753337		28.461577
143.755325		28.458521
143.757638		28.455348
143.759882		28.451773
143.761610		28.448776
143.763724		28.445260
143.764999		28.442553
143.766526		28.438983
143.767800		28.436104
143.769330		28.432821
143.771764		28.428672
143.774341		28.425899
143.777120		28.423754
143.780037		28.422299
143.783213		28.420727
143.785997		28.419043
143.788581		28.417131
143.790699		28.414017
143.793009		28.410556
143.796342		28.405252
143.798128		28.401508
143.800035		28.396845
143.801748		28.392356
143.803064		28.387295
143.803286		28.383447
143.803252		28.380060
143.804643		28.375917
143.807336		28.371650
143.810357		28.367726
143.813637		28.363513
143.817821		28.358662
143.823189		28.355008
143.827399		28.352683
143.831996		28.349839
143.837056		28.347795
143.842106		28.344775
143.846842		28.342791
143.852358		28.340687
143.858596		28.339209
143.865286		28.337325
143.871844		28.335155
143.878076		28.333104
143.884966		28.331794
143.891924		28.330656
143.898632		28.330439
143.905270		28.329704
143.911524		28.329834
143.916752		28.331406
143.921970		28.332116
143.927380		28.332424
143.931859		28.330843
143.936729		28.329318
143.942183		28.327616
143.947441		28.326030
143.952121		28.324964
143.956728		28.323268
143.960489		28.321520
143.963401		28.319663
143.966185		28.317865
143.970071		28.315657
143.973632		28.313508
143.977189		28.310956
143.979246		28.308301
143.980069		28.305942
143.980179		28.303989
143.980287		28.301807
143.980123		28.298478
143.979836		28.295897
143.979226		28.293547
143.977765		28.290801
143.976170		28.287655
143.974317		28.284797
143.971024		28.281262
143.969035		28.277830
143.966845		28.273883
143.964654		28.269879
143.963704		28.266269
143.963140		28.261912
143.964877		28.253516
143.966530		28.249543
143.969369		28.246883
143.972218		28.245199
143.975982		28.243681
143.979959		28.244055
143.983926		28.243340
143.987238		28.242398
143.989898		28.241289
143.992419		28.239435
143.994219		28.237012
143.995632		28.235050
143.998284		28.233252
144.001953		28.232605
144.005348		28.232676
144.010200		28.232462
144.015049		28.230539
144.018990		28.227889
144.022418		28.224745
144.025653		28.221945
144.028630		28.218684
144.030572		28.215992
144.032385		28.212553
144.035556		28.208316
144.038534		28.203388
144.041963		28.199842
144.044164		28.196289
144.047076		28.193143
144.050247		28.189365
144.053612		28.185704
144.056718		28.182846
144.060467		28.180679
144.064480			28.178227

Then generally northerly to the Bulloo Developmental Road passing through the following coordinate points.

Longitude East	Latitude South
144.067132	28.175252
144.069204	28.171584
144.070758	28.168316
144.071344	28.162744
144.070377	28.158600
144.069022	28.155490
144.067536	28.153241
144.063660	28.149140
144.060558	28.146423
144.056746	28.143243
144.052287	28.140349
144.047439	28.137853
144.042010	28.134721
144.036970		28.131075
144.033222		28.127493
144.029928		28.123050
144.026959		28.116311
144.024829		28.111529
144.022763		28.106461
144.021021		28.101682
144.019345		28.095523
144.017927		28.089424
144.016120		28.084127
144.015607		28.078262
144.015355		28.069869
144.015878		28.062285
144.016206		28.055791
144.017051		28.049991
144.018283		28.045514
144.018868		28.040344
144.020422		28.035581
144.022109		28.031279
144.024049		28.027898
144.027156		28.024752
144.030390		28.022180
144.033107		28.020010

Then generally north-easterly passing to the west of Lake Bindegolly, Lake Toomaroo and Lake Hutchinson passing through the following coordinate points.

Longitude East	Latitude South
144.037635	28.017619
144.041968	28.015169
144.046432	28.011916
144.051737	28.007976
144.055824	28.004647
144.059132	28.000576
144.061186	27.996242
144.062341	27.992080
144.063042	27.987213
144.063577	27.982574
144.065166	27.976100
144.067013	27.969109
144.070464	27.960166
144.072960	27.954662
144.073595	27.952926
144.075898	27.946637
144.078584	27.940159
144.083270	27.933666
144.083270	27.933666
144.086476	27.928798
144.091226	27.922828
144.097974	27.916909
144.104917	27.911391
144.111542	27.907648
144.123066	27.903487
144.132656	27.898820
144.140634	27.894672
144.146163	27.890131
144.152462	27.884729
144.157604	27.880591
144.162102	27.876511
144.166148	27.872033
144.169547	27.867098
144.173466	27.862791
144.177318	27.858084
144.180849	27.853951
144.185025	27.849643
144.189590	27.846308
144.196085	27.841650
144.202390	27.838366
144.210497	27.834046
144.215706	27.829907
144.219429	27.825601
144.222699	27.820552
144.226225	27.814814
144.230261	27.807244
144.234367	27.801219
144.238280	27.795481
144.242965	27.789455
144.247588	27.784002
144.253889	27.779001
144.259740	27.774745
144.265721	27.771176
144.270677	27.768927
144.279494	27.764834
144.285154	27.761209
144.291070	27.756839
144.294986	27.751674
144.299097	27.747366
144.303463	27.742314
144.306285	27.738469
144.308913	27.733823
144.311410	27.729063
144.313327	27.724019
144.315170	27.715940
144.315859	27.709926
144.316286	27.702425
144.316390	27.694982
144.317077	27.687880
144.317073	27.686700

Then generally south-easterly passing through Longitude 144.395150° East, Latitude 27.770780° South to a Longitude 144.438022° East, Latitude 27.806769° south, point about 1.98km westerly of the locality of Jandell; then south easterly along a line drawn to Longitude 144.472591°East, Latitude 27.832120° South for a distance of about 4.4 km to its intersection with a cliff face; then generally south-easterly, generally south-westerly and generally southerly along that cliff face to its southernmost point; then southerly to another cliff face at Longitude 144.479280° East, Latitude 27.871070; then generally westerly, generally south-westerly and easterly along that cliff to its southernmost point at Longitude 144.469760° East; then south-easterly to another cliff face at Longitude 144.472900° East, 27.878470° South; then generally southerly along that cliff  to its southernmost point; then generally south-easterly, generally southerly and generally easterly to a point on the Paroo River passing through the following coordinate points.

Longitude East	Latitude South
144.476048	27.888583
144.483538	27.890888
144.494465	27.898343
144.541671	27.932153
144.549326	27.937894
144.551240	27.944274
144.553154	27.950015
144.559533	27.962773
144.564637	27.971704
144.574205	27.975532
144.579947	27.974894
144.584412	27.973618
144.588240	27.973618
144.590792	27.975532
144.591429	27.979359
144.594619	28.000411
144.595895	28.005514
144.597171	28.013170
144.600998	28.024014
144.604188	28.028480
144.609929	28.029756
144.615033	28.030394
144.625240	28.028480
144.631619	28.024014
144.636722	28.020187
144.641188	28.018911
144.647567	28.018911
144.802583	28.052083
144.978013	28.073135
145.014375	28.075048
145.054564	28.075048
145.077205	28.071676
145.084547	28.070583

Then generally northerly and generally easterly to a point on the ridge of the Moriarty Range through the following coordinate points.

Longitude East	Latitude South
145.107728	28.065531
145.117882	28.055269
145.140498	28.032016
145.142409	28.026357
145.146280	28.020110
145.149297	28.018035
145.150289	28.017347
145.151050	28.016450
145.151685	28.014640
145.152560	28.013509
145.188688	27.966813
145.229548	27.911742
145.252048	27.859635
145.272182	27.787984
145.273959	27.722850
145.279880	27.671924
145.285208	27.635803
145.286986	27.604420
145.290539	27.586656
145.296460	27.570076
145.305934	27.542245
145.312448	27.513230
145.316593	27.474149
145.316693	27.424651
145.320344	27.425977
145.323176	27.429517
145.328131	27.432702
145.330609	27.433410
145.334149	27.432702
145.349017	27.430225
145.370612	27.426685
145.379107	27.427039
145.400347	27.422083
145.404949	27.422083
145.408843	27.423145
145.412736	27.424915
145.415569	27.427039
145.420170	27.430933
145.422976	27.434386

Then generally southerly along that ridgeline to a point about 4 km south of Koomerang Station passing through the following coordinate points.

Longitude East		Latitude South
145.420285		27.435168
145.416293		27.436097
145.413202		27.437137
145.411336		27.438116
145.411325		27.438128
145.410286		27.439368
145.409988		27.439724
145.409606		27.441214
145.409806		27.443160
145.409990		27.443431
145.410011		27.443637
145.411565		27.445922
145.414859		27.447915
145.419119		27.449848
145.423641		27.452925
145.425585		27.455953
145.426878		27.458466
145.428245		27.461197
145.429816		27.464908
145.430248		27.465938
145.430455		27.470060
145.429436		27.473613
145.427131		27.478487
145.424049		27.481932
145.420771		27.484805
145.416330		27.486766
145.412088		27.490672
145.407563		27.493260
145.403851		27.494878
145.400700		27.497179
145.399161		27.499302
145.397753		27.502283
145.397634		27.505204
145.397771		27.507722
145.397715		27.510299
145.396824		27.513794
145.395415		27.516719
145.393622		27.519759
145.391633		27.522742
145.388742		27.525557
145.385203		27.527458
145.382310		27.529757
145.380643		27.532339
145.379429		27.535721
145.379373		27.538297
145.379895		27.540242
145.381258		27.543158
145.381439		27.543488
145.381546		27.543718
145.383025		27.546421
145.384118		27.550649
145.384261		27.555114
145.383951		27.558837
145.383576		27.562445
145.382171		27.566342
145.380893		27.569724
145.379423		27.573508
145.377442		27.578438
145.376619		27.582906
145.376117		27.587030
145.375809		27.591554
145.376788		27.595330
145.376986		27.595544
145.377076		27.595890
145.379406		27.598401
145.382831		27.601253
145.387155		27.603129
145.390568		27.605455
145.393356		27.607403
145.395186		27.609825
145.395796		27.612960
145.394968		27.616283
145.393946		27.618634
145.391890		27.620874
145.388676		27.623288
145.385780		27.624729
145.381537		27.627949
145.377806		27.630365
145.375753		27.633406
145.374152		27.636618
145.373197		27.640228
145.373335		27.643090
145.374312		27.646178
145.374474		27.646339
145.374600		27.646738
145.376669		27.648793
145.379252		27.650273
145.382606		27.650778
145.384885		27.651917
145.385292		27.653071
145.385105		27.654846
145.382918		27.656456
145.378029		27.659220
145.373071		27.660954
145.368756		27.661998
145.364700		27.663328
145.361160		27.664828
145.358330		27.666784
145.355889		27.669196
145.353772		27.672063
145.351465		27.676367
145.350513		27.681007
145.349045		27.685249
145.348218		27.689086
145.347331		27.693612
145.347026		27.698765
145.346851		27.704147
145.347512		27.709355
145.348109		27.714449
145.349162		27.720629
145.349947		27.724691
145.350280		27.727896
145.350100		27.731561
145.349534		27.735857
145.348577		27.739066
145.347303		27.743708
145.346283		27.746918
145.345712		27.749955
145.346044		27.752816
145.347405		27.755158
145.347488		27.755283
145.347693		27.755635
145.349637		27.758549
145.352003		27.761092
145.355191		27.764820
145.356538		27.768641
145.357323		27.772360
145.358113		27.774381
145.358753		27.776019
145.358700		27.779397
145.358325		27.783120
145.358985	27.787813
145.360676	27.792387
145.360842	27.792646
145.360923	27.792864
145.366235	27.801092
145.368959	27.806179
145.371869	27.809032
145.374136	27.812345
145.384022	27.819928
145.386700	27.823866
145.387427	27.825342
145.388141	27.826815
145.390226	27.831381
145.390378	27.831848
145.391498	27.835572
145.392607	27.839920
145.392830	27.840305
145.392854	27.840397
145.396111	27.846196
145.397472	27.849008
145.398384	27.852096
145.398468	27.857936
145.398163	27.862803
145.397272	27.866699
145.396128	27.871455
145.396149	27.875789
145.396217	27.878955
145.396234	27.883880
145.396440	27.887886
145.397037	27.892923
145.397504	27.897903
145.397776	27.902310
145.398305	27.906431
145.398509	27.909523
145.398908	27.913186
145.400599	27.918046
145.402612	27.922505
145.403593	27.926681
145.404705	27.931774
145.405947	27.937037
145.407190	27.942759

Then generally southerly to a point easterly of Moonjaree Waterhole passing through the following coordinate points.

Longitude East	Latitude South
145.407592	27.947165
145.407419	27.953637
145.407952	27.958788
145.407129	27.963028
145.407725	27.967835
145.408385	27.972157
145.408396	27.976135
145.408345	27.980085
145.409453	27.983861
145.410495	27.987235
145.410711	27.987868
145.407908	28.004193
145.398034	28.045334

Then generally south westerly and generally southerly to the Queensland – New South Wales Border at Longitude 145.132100° East passing through the following coordinate points.

Longitude East	Latitude South
145.398034	28.045334
145.379923	28.121724
145.373615	28.158371
145.346582	28.249686
145.303929	28.379450
145.288310	28.424206
145.263380	28.500202
145.250464	28.534145
145.224632	28.592418
145.189488	28.678928
145.159752	28.749517
145.128880	28.817442
145.109421	28.834853
145.102764	28.860457
145.097643	28.884525
145.094570	28.909106
145.100715	28.946488
145.111469	28.974141
145.127344	28.991552

Then westerly along that State Border back to the commencement point.

Note:

The Determination Area does not include any land and waters subject to:

·QUD80/2009 Kullilli People as determined by the Federal Court 02 July 2014

Reference Datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time

Data Reference and source

·Topographic features based on the 250K topographic vector data SG55-13 Toompine and SH55-01 Eulo © Commonwealth of Australia (Geoscience Australia) 2006.

·Cadastral data sourced from the Department of Natural Resources and Mines (QLD) 2015

·Application boundary compiled by Queensland south Native title Services based in part on data sourced from Commonwealth of Australia, NNTT (March 2015).

·Kullilii determination external boundary sourced from Commonwealth of Australia, NNTT (March 2015).

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.

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

B.       Map of Determination Area

Schedule 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA
The following areas of land and waters are excluded from the Determination Area.

1.Those land and waters within the External Boundary, which at the time the native title determination application was made:

(a)were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth); and

(b)to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied at the time of the native title determination application.

are excluded from the Determination Area as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.Specifically, and to avoid any doubt, the land and waters described in (1) above includes:

(a)the tenure based exclusions under ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies;

(b)the land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth); and

(c)but is not limited to, the whole of the land and waters described as:

(i)Lot 14 on E1813;

(ii)Lot 15 on E1813;

(iii)Lot 8 on WN108;

(iv)Lot 11 on SP256402;

(v)Lot 12 on SP256402;

(vi)Lot 1 on CP867479;

(vii)that part of Lot 23 on NPW450 identified as Lot 15 on NL8025469;

(viii)Lot 3 on WN226;

(ix)Lot 36 on WN217 that is subject to the Eulo Telecommunications Facility, which is a public work as defined in paragraph 2(b) of Schedule 2;

(x)Lot 20 on HU802463;

(xi)Lot 10 on CP867479;

(xii)Lot 14 on NL802466;

(xiii)Lot 44 on WN223;

(xiv)Lot 15 on NL802467; and

(xv)that part of Lot 102 on H2341 that is subject to the Hungerford Telecommunications Facility, which is a public work as defined in paragraph 2(b) of schedule 2.

Schedule 3 – NATIVE TITLE HOLDERS

1.The native title holders are the Budjiti People.  The Budjiti People are the biological descendants of one or more of the following people:

(a)       Jessie Brooks;

(b)       Lizzie Brooks; or

(c)       Gypsy Brooks.

Schedule 4 – OTHER INTERESTS IN THE DETERMINATION AREA

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

1.        The rights and interests of the parties under the following agreements:

(a)the agreement between Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) and the State of Queensland, which was authorised by the native title claim group on 19 April 2015 and executed by Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) (the Currawinya National Park, Lake Bindegolly National Park Protected Areas Indigenous Land Use Agreement), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the Registered Native Title Body Corporate;

(b)Indigenous Land Use Agreement between Bulloo Shire Council and Dinny McKellar, Phillip Eulo, Margaret Hearn, Carolyn Hooper and Melissa Bryan on behalf of the Budjiti People QUD53/200 which was authorised by the native title claim group on 19 April 2015;

(c)Indigenous Land Use Agreement between Ergon Energy Corporation Limited and Dinny McKellar, Phillip Eulo, Margaret Hearn, Carolyn Hooper and Melissa Bryan on behalf of the Budjiti People QUD53/200 which was authorised by the native title claim group on 19 April 2015;

(d)the Budjiti People/Yakara ILUA authorised on 19 April 2015;

(e)the Budjiti People/Boodgherree ILUA authorised on 19 April 2015;

(f)the Budjiti People/Bulloo Downs ILUA authorised on 19 April 2015;

(g)the Budjiti People/Bundoona ILUA authorised on 19 April 2015;

(h)the Budjiti People/Dynevor Downs ILUA authorised on 19 April 2015;

(i)the Budjiti People/Humeburn ILUA authorised on 19 April 2015;

(j)the Budjiti People/Jandell and Kyeenee ILUA authorised on 19 April 2015;

(k)the Budjiti People/Kilcowera and Zenoni ILUA authorised on 19 April 2015;

(l)the Budjiti People/Merimo ILUA authorised on 19 April 2015;

(m)the Budjiti People/Moombidary ILUA authorised on 19 April 2015;

(n)the Budjiti People/Thargo (aka Besm) ILUA authorised on 19 April 2015;

(o)the Budjiti People/Wathopa ILUA authorised on 19 April 2015;

(p)the Budjiti People/Wiralla ILUA authorised on 19 April 2015;

(q)the Budjiti People/Wombula and Yenloora ILUA authorised on 19 April 2015;

(r)the deed of agreement between Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) and Michael Connolly, Stephen Hagan, Judy Conlon, Brenda Fisher, Elizabeth McAvoy and Kayleen Hopkins for themselves and as the Kullilli Bulloo River Aboriginal Corporation Directors dated 4 March 2015; and

(s)the deed of agreement between Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) and Ronald Herbert McKellar and Maureen Alison McKellar on behalf of the Kunja People dated 5 March 2015.

2.The rights and interests of Santos Limited, Vamgas Pty Ltd, Bridgefield Pty Ltd, Moonie Pipeline Company Pty Ltd, Delhi Petroleum Pty Ltd, and Origin Energy Resources Limited as joint holders of Petroleum Pipeline Licence 6 granted under the Petroleum Act 1923 (Qld).

3.The rights and interests of the holders of any authority, permit, lease or licence made, granted, issued or entered into under the Land Act 1994 (Qld).

4.        The rights and interests of Telstra Corporation Limited:

(a)as the owner or operator 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 rights:

(i)to inspect land;

(ii)to install and operate existing and new telecommunication facilities, including cabling, customer terminal sites, customer radio sites and ancillary facilities;

(iii)to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities including cabling, customer terminal sites, customer radio sites, and ancillary facilities;

(c)for its employees, agents or contractors to access the Determination Area for the purposes of exercising the rights in (i), (ii)and (iii) above in respect of telecommunication facilities in and in the vicinity of the Determination Area;

(d)under any licences, leases, access agreements or easements relating to its telecommunications facilities in the Determination Area.

(e)The rights and interests in Term Lease 0/238257 over Lot 3 on WY802468.

5.        The rights and interests of Ergon Energy Corporation ACN 087 646 062:

(a)as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(b)as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(c)created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made;

(ii)rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

(iii)to inspect, maintain and manage any Works in the Determination Area.

6.The rights and interests of the State of Queensland, the Bulloo Shire Council and the Paroo Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.

7.The rights and interests respectively of the Bulloo Shire Council and Paroo Shire Council as the local government for that part of the determination area within their respective Local Government Area, including:

(a)its powers, functions, responsibilities and jurisdiction under a Local Government Act;

(b)its rights and interests under any interest in land or waters within the Determination Area including under any lease, license, access agreement, easement or reserve in the Determination Area;

(c)its rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owner and operator of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;

(d)its rights under any agreements between the local government and third parties which relate to land or water in the Determination Area; and

(e)the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d).

8.The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

9.The rights and interests of members of the public arising under the common law, including but not limited to the following:

(a)any subsisting public right to fish; and

(b)the public right to navigate.

10.So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(a)waterways;

(b)beds and banks or foreshores of waterways;

(c)stock routes; and

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

11.      Any other rights and interests:

(a)held by the State of Queensland or Commonwealth of Australia; or

(b)existing by reason of the force and operation of the Laws of the State and the Commonwealth.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 53 of 2007

BETWEEN:

DINNY MCKELLAR
First Applicant

MELISSA BRYAN
Second Applicant

PHILLIP EULO
Third Applicant

MARGARET HEARN
Fourth Applicant

CAROLYN HOOPER
Fifth Applicant

ELIZABETH MCNIVEN
Sixth Applicant

AND:

STATE OF QUEENSLAND
First Respondent

BULLOO SHIRE COUNCIL
Second Respondent

PAROO SHIRE COUNCIL
Third Respondent

ERGON ENERGY CORPORATION LIMITED
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

BRIDGEFIELD PTY LIMITED
Sixth Respondent

DELHI PETROLEUM PTY LTD
Seventh Respondent

MOONIE PIPELINE COMPANY PTY LTD
Eighth Respondent

ORIGIN ENERGY CSG LIMITED
Ninth Respondent

SANTOS LIMITED
Tenth Respondent

VAMGAS PTY LTD
Eleventh Respondent

GEOFF BARTON
Twelfth Respondent

BUNDOONA NOMINEES PTY LTD
Thirteenth Respondent

FAY MARY COONEY
Fourteenth Respondent

GRANT PATRICK COONEY
Fifteenth Respondent

EILEEN JEAN EASTON
Sixteenth Respondent

GORDON CHARLES EASTON
Seventeenth Respondent

RANDALL KENNETH NEWSHAM
Eighteenth Respondent

GREGORY NOEL VICARY SHERWIN
Nineteenth Respondent

JUDGE:	MANSFIELD J
DATE:	23 JUNE 2015
PLACE:	CURRAWINYA WOOLSHED

REASONS FOR JUDGMENT

1. This application was first made on 20 February 2007, and has since been amended to reflect the final decision of the Budjiti People about their claim. It is an application under s 61 of the Native Title Act 1993 (Cth) (the NT Act) for the recognition of the Budjiti People as the holders of native title rights and interests over their country.

2. The lands and waters of the Budjiti claim covers a total area within the external boundary of approximately 16730km² (the Claim Area). The Claim Area is situated in Southwest Queensland centred in the Paroo River extending roughly between the Queensland/New South Wales border in the south to Dynevor Lakes in the north, from Mt Bindegolly in the west to Moonjaree Waterhole in the east and includes the towns of Eulo and Hungerford.

3. That part of the Claim Area which is subject to the proposed determination i.e. where non-exclusive native title can be determined to exist, comprises a total area of approximately 11000km².

4. There are no overlapping or competing native title claims over any part of the Claim Area or any indigenous respondents opposing the Budjiti claim.

   Claim Group

5. The native title claim group is the Budjiti People.  They are the biological descendants of Jessie Brooks, Gypsy Brooks and Lizzie Brooks.

6. For the reasons which follow, I am well satisfied that the Court should make a determination over the whole of the area of the Budjiti claim, under s 87 of the NT Act. It provides that where the parties to proceedings that hold an interest in the proposed determination area agree on the terms of a consent order the Court may, if it appears to be appropriate to do so, make an order in those terms without conducting a hearing: Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 (Gunditjmara).

7. When making an order under s 87, it is not necessary to examine at length whether the agreement between the parties is grounded on a factual basis which would satisfy the Court at a hearing of the application: Gunditjmara.  The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis.

8. It is clear that the State of Queensland has taken steps to satisfy itself that there is a credible basis for the application. Nevertheless, s 87 of the NT Act requires the Court to be satisfied as to the appropriateness of the proposed orders. As native title rights are rights in rem, attaching to the land and having effect as against the whole world, the Court has an oversight function to ensure that there is a proper basis for recognition of the those rights:  Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229.

9. As I have indicated, the materials that have been filed and served on all respondent parties including the State to date in this matter are more than sufficient to demonstrate that their application has a credible basis. I am also satisfied that the procedural requirements of s 87(1) are met. In particular, the Determination to be made is consistent with s 94A of the NT Act and there has been no previous determination of native title in the claim area.

10. Section 94A requires the proposed orders to set out details of the matters mentioned in s 225 of the Act. Section 225 defines a determination of native title as:

    a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

    (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; 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 this Act); 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 interest confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

11. The terms “Native title” and “Native title rights and interests” are defined in s 223(1) of the Act 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.

12. There is an extensive list of the material before the Court to support the conclusions that I have reached.  It is contained in the Annexure A to the written submissions on behalf of the Budjiti People.  I shall not repeat it.  It includes statements and affidavits of members of the Budjiti People, and a series of anthropological reports of Dr Kevin Murphy, and of Professor David Trigger and Dr Andrew Sneddon.

13. In addition, I have had the benefit of hearing directly from a number of the persons whose affidavits and statements are relied upon.  Between 11 and 15 August 2014, the Court heard evidence both at Charleville, and at Eulo, and on various sites of special cultural or historical significance to the Budjiti People about their background, their genealogical lines, about their community, their upbringing and education into Budjiti cultural and social practices, and about the stories attaching to particular places on their country.  Those witnesses included (in the order in which they gave evidence) Elizabeth (Liz) McNiven, Dinny McKellar, Philip Eulo, Millie Shillingsworth, Gordon Sullivan, Mick McNiven, LoranMcNiven, Nina Prasad, Ruby Eulo, Doreen McNiven, Ethel Hooper, Burt McKellar, Judy Shillingsworth, Beatrice Eulo, Grace Brown, Mareia Brown, Margie Hearn and Frank Kavenough.

14. It is not necessary to refer in detail to that evidence.  It was consistently genuine and impressive.  Obviously, some of those people had a greater knowledge or experience of Budjiti laws and customs and stories than others.  Some had more opportunity to be exposed to and to learn them than others.  There was clearly a structural social group of Budjiti People who were preserving and continuing to pass to younger generations their stories and their cultural and social practices as a communal group, and to preserve and maintain their country and knowledge of it.

15. It is appropriate to say a little more about the history of this claim and the evidence.

16. The explorer Thomas Mitchell travelled through the region from the Warrego River east to Cooper Creek in 1846.   Settlement of the Budjiti lands through pastoralism followed in the 1860s. Pastoral stations established during this period within Budjiti country included Tinnenburra (1859), Eulo (1862), Currawinya (1862), Caiwarro (1862) and Dynevor Downs (1871).

17. At the time the Crown acquired legal sovereignty over the Claim Area, in the 1850s to 1870s there was a body of Aboriginal people who were associated with the land and waters of the Claim Area.

18. Those Aboriginal people were or have been variously described as:

    ·Poidgerry named by Myles in Curr, 1886

    ·Badjeri in Howitt, 1904 

    ·Byjerri in Mathews, 1898

    ·Baddyeri in Mathews, 1905

    ·Badjiri in Tindale, 1974

    ·Badjidi and Badjedi in Tennant-Kelly, n.d. 

19. Contemporary claimants refer to themselves as the Budjiti People.  They also refer to themselves as the Paroo River People.   They assert rights over traditional country that includes Eulo and areas to the north of the township.  They are the traditional owners of country between Moonjaree Waterhole, located between Eulo and Cunnamulla, and Lake Bindegolly.  Their country includes Hungerford, Lake Wyara, Lake Numalla, Lake Thorlinda and Cuttaburra Creek. Budjiti People consider their lands go south of the Claim Area to include Waanaring, Yantabulla and Enngonia.

20. The neighbours of the Budjiti People are the Kullilli to the west, Mardigan to the north and Kunja to the east.  To the south of the Budjiti People are the Barkandji People and to the southeast are the Murrawarri. 

21. The Budjiti People comprise the biological descendants of the three acknowledged apical ancestors referred to above.

22. Jessie Brooks, (born around 1878) is identified as a member of the Budjiti Aboriginal society of South-West Queensland, in the oral history of her descendants.  This is supported by some documentary evidence. In the correspondence regarding the rejection of Charles Betters (a non-Aboriginal man) proposal of marriage to Jessie, Jessie is described as “a native of the Paroo about Caiwarro”. This area is in the claimed Budjiti country, which reinforces the idea of Jessie as Budjiti.  Jessie and Charles were never married due to prevention by government authorities. Jessie's relationship with Charles went from 1902-1903, and they had one daughter named Rose.  Rose Betters married Charles McNiven, a Murrawarri man, and had seven children: Charles, Thomas, Kathleen, Doreen, Lorna, Percy, and Nancy.

23. Jessie Brooks also had an Aboriginal spouse named Toogler. According to oral history of the family, he was a Parundji or Barkandji man, originally from NSW Paroo River country (south of the Budjiti Claim area).  Toogler and Jessie Brooks had two children - Bob and Clara.  Bob was known as “Bob Toogler”, “Bob Tuglar”, or “Bob Barrett”, among other variants. He is not known to have had any children.  Bob Toogler and his sister Clara Hart (nee Toogler; Jessie’s daughter) were recorded speaking Budjiti language by linguist Gavan Breen in 1969, 1971, and 1972. Breen notes that Bob Toogler was the most fluent of all present-day “Badjiri” speakers.  Clara Toogler had children with three different fathers - Bertie Reynolds, George Hart, and Jimmy Eulo. Jimmy Eulo’s father was also named Jimmy Eulo (Snr.); he was previously named as an apical ancestor on the Budjiti Claim. However, evidence from Ruby Eulo (Jimmy Eulo Jnr's daughter) and Ruby’s nephew Phillip Eulo, shows that Jimmy Eulo Snr was not a Budjiti man. 

24. Jessie Brooks was clearly a Budjiti woman, who held rights and interests in the Budjiti Claim Area, and consequently her biological descendants also hold rights and interests in the Claim Area.

25. Lizzie Brooks is commonly regarded as Jessie Brooks’ sister.  However, research has revealed no evidence that the two were biologically related.  Nothing is known of their parents. Lizzie and Jessie could possibly have been classificatory sisters, and as such, Dr Murphy recommends they be treated “analytically as apical ancestors in their own rights”.

26. The identification of Lizzie Brooks as a Budjiti woman is supported by the oral history of her descendants. In terms of documentary evidence, McKeown refers to “one independent source … in support of the claim that these women [the Brooks sisters] were Budjiti” – a recording made by the linguist Gavan Breen on the 15 July 1972, where Mary McKellar is speaking Budjiti. 

27. Lizzie had three daughters (to unknown fathers) - Jessie, May and Ethel.  There is speculation that Lizzie may have had a fourth daughter, named Gypsy.  It is unknown whether Lizzie and Gypsy were mother and daughter, or whether Gypsy was the daughter of an unnamed sister of Lizzie.  Lizzie’s daughter Jessie (Jintu) is remembered by living Budjiti Claimants, including her grandson Danny or Dinny McKellar and Lorna McNiven (Jessie Brooks’ granddaughter).  Jessie had a son named Jack Barrett, to a man also named Jack Barrett. She also had a daughter with Jack Gwydir named Mary. Mary used the surname Barrett, and was more commonly known as “Nin”. Mary (Nin) married and had eight children with Alf McKellar (a Kunja man). 

28. Lizzie’s daughter May had five children with a man named Charlie Martin, and three children with a man named Norman Turner (according to genealogies compiled by Gorecki [2009]). One of Lizzie’s daughters, Doris Turner, refers to her mother by the name of “Nell Brooke” in a 2005 publication. 

29. The existence of Lizzie’s third daughter Ethel Brooks is widely accepted by descendants of Lizzie’s other daughters, Jessie and May. The oral history of the family holds that Ethel moved to Sydney as a young woman. Her death certificate confirms this information, marrying Norman Coleman in Sydney. 

30. The claim that Lizzie was a Budjiti woman is not known to be disputed by any Budjiti People, or by any others from neighbouring Aboriginal groups in South-West Queensland.

31. It is unknown whether Gypsy Brooks was the daughter of Lizzie Brooks, or the daughter of an unnamed sister (classificatory or otherwise) of Lizzie and Jessie Brooks.  Gypsy Brooks is identified as a Budjiti woman through the oral history of her descendants. There is general acceptance of Gypsy as Budjiti among the Budjiti Claim group.  Dr Murphy concludes that it is more likely than not that Gypsy Brooks was a Budjiti ancestor, "on the basis that the descendants of Lizzie and Jessie Brooks acknowledge that Gypsy was related to Lizzie and Jessie, although they are not sure how, and that [Gypsy’s] descendants identify as Budjiti on the basis of their oral family history”. 

32. Budjiti native title claim group members acquire rights to land passed through their mothers and fathers linking back to one of the three apical ancestors; Jessie Brooks, Lizzie Brooks and Gypsy Brooks. These rights are contingent on the recognition by members of the Budjiti People.

1. There is evidence which shows that the Budjiti People have enjoyed and exercised their traditional rights over the claim area.

2. Aboriginal people were living around Currawinya Lakes and the Paroo River at least 14,000 years ago.  There are occupation sites, camping places, ceremonial grounds and tool manufacture sites located within the application area. Camp sites were selected for their closeness to foods and resources. Bow Creek has stone artefact scatters. It is also a place where crayfish and yabbies are found in the creek and where pigweed, which is a source of vitamin C, is located.  Reeds commonly found in the area would have been woven into baskets.

3. There are also places of cultural significance where the ancestral beings manifested themselves in the natural features of the landscape. The Stone Man, a rocky outcrop in Caiwarro Waterhole is one such place which is known to many Budjiti People and which Budjiti People frequently visit. 

4. People travelled across the landscape following walking trails linked by springs and waterholes. The routes enabled people to utilise food resource places, to access sacred sites, to visit relatives at distant locations and to gather at ceremonial grounds. Claimants recall how their parents and grandparents would follow these routes. Judy Shillingsworth remembered how her mother Ruby and her grandmother, Clara Toogler, would travel up and down the Paroo River.  One walking route went from Caiwarro to Yantabulla and Enngonia, all localities where Budjiti People resided.  A trail went west from Turn Turn Station to Molesworth Waterhole on Kullilli country, enabling Budjiti People to visit their neighbours for trade and for ceremony.  

5. Budjiti People remained on their lands providing an integral part in the pastoral industry. Several older claim group members grew up at Currawinya and Caiwarro Stations. They lived with their family who were the cooks, the drovers, the station hands and the maids.  Trips were regularly taken onto country to impart knowledge, to hunt, fish and gather bush foods and to visit places of significance.  For example Mick McNiven attended school in Cunnamulla but would return to country on weekends to join his mother at Caiwarro Station. As an adult he lived for many years with his partner at Yalata Station.

6. Today a small group of claimants live in the township of Eulo which is located inside the application area. Those claimants are Dinny McKellar, Lorna McNiven, Keith (Dulla) McKellar and Nina Prasad.  Today, Budjiti People travel into the Claim Area to visit their family who live at Eulo.

7. The establishment of the townships of Eulo and Hungerford resulted in a group of Aboriginal people living at the edge of both townships in temporary structures. Budjiti People and other land holding groups were gathered together in these fringe camps.  Several claimants remembered growing up in either Top Camp or Bottom Camp on the edge of the town.  Several of the senior claimants appear in the School attendance handbook for Eulo. 

8. Temporary shelters were utilised by claimants on camping trips onto the Claim Area. A bough shelter would be used by Judy Shillingsworth and her family when they camped at Caiwarro Waterhole.  Claimant Dinny McKellar and his siblings would construct humpies laying cane grass onto a wooden frame. Dinny was shown how to make these waterproof dwellings by his grandmother Jintu (Jessie) and his grandfather Charlie Turner.  Bruce Shillingsworth learnt how to build a gunyah from his mother, Ruby Eulo on camping trips.  He recalled seeing the frames of abandoned gunyahs that had been erected by his mother during winter.  Phillip Eulo also remembers as a child sleeping outside around the fire in a humpy and his grandfather teaching him how to make a windbreak out of hopbush.  Philip still does this today. 

9. Budjiti People who live in the Claim Area at Eulo and in the nearby towns of Enngonia and Cunnamulla frequently access the Claim Area to fish, camp and to harvest plants.  Marcia Kay Brown, a resident of Cunnamulla, has said that she fishes on the Paroo at Eulo as, “It is a place where I feel entitled to go and where I feel at home”.  People regularly return to favoured fishing places. Nina Prasad fishes at the same locations on the river that were once visited by her mother.

10. Traditionally food gathering and hunting occurred in gender groups. Millie Shillingsworth remembered how the men went hunting and fishing as a group.  The women went out separately to forage for bush foods and to fish. Today trips on country occur in family groups. Marcia Kay Brown takes her family to Eulo to fish.  Elizabeth (Liz) McNiven stops to collect bush medicine with her family when travelling on her Budjiti country.  Judy Shillingsworth hunts with her grandchildren for any wild meat such as emu, kangaroo or goannas. 

11. Children are taken onto country from a young age, learning how to gather a wide variety of bush foods and to fish.  Dinny McKellar has described some of the bush skills he has imparted onto his grandchildren including the reading of animal tracks and knowing how to find the path back.  

12. Food that is caught is often cooked and eaten on country. Dinny McKellar eats fish at his camp preparing it by rolling it in mud and cooking it on the coals.  With larger catches food is taken back to the community and shared with family. Nina Prasad takes any excess fish that she catches back to town to be shared with the old people who no longer are able to fish. 

13. Fires are used for such things as cooking, rituals and for ceremonies on the claim area.

14. Nina Prasad lights a small fire if she feels afraid when fishing. She wards off any malevolent spirits with the fire, as taught to her by her mother.  Smoky fires will be lit when people visit sites in case bad spirits are lingering at the site or someone has inadvertently brought a bad spirit to the place.  

15. Dinny McKellar recalls when his children were young and living at home he would smoke the house if they were getting bad dreams. Today, when his grandchildren visit he will also make a fire and smoke the house if they can’t sleep. He also does this at the campfire at night when camping - collecting a few dogwood branches and throwing them on the fire to smoke his camp.

16. Many Budjiti People light cooking fires when camping within the Claim Area. Phillip Eulo uses fire to cook fish, he learnt this from his grandmother and mother.  Phillip recalls that one way of cooking fish in the fire was to “... roll it in mud and put them in the hot ashes. When the mud is hard and cracked the fish is cooked”.  Bruce Shillingsworth cooks catfish and johnny cakes over a fire near the Caiwarro homestead.  If Sam Eulo finds an echidna by the Paroo River, he will sometimes light a fire and cook it.  Cooking fires are also lit by Dinny McKellar when he goes camping in Currawinya with his cousin Dulla McKellar. 

17. A number of Budjiti People recall activities with their parents and grandparents on the waterways and lakes found within Budjiti country. Dinny McKellar was taken to Lake Wyara and Lake Numalla by his grandparents to collect swan eggs.  The flowering of the gidgee trees was a signal that the swans were laying. Lorna McNiven remembered how she went on a rowboat with her parents to fish in Caiwarro Waterhole.

18. Fish from the lakes and the Paroo River has featured in the diet of generations of Budjiti People. Analysis of material at archaeological sites in the application area found evidence that people included in their diets both fish and shellfish.  The practice of utilising the waterways and lakes continues to the present today. As stated by Lorna McNiven, “Budjiti People are always fishing on the Paroo”. Nina Prasad goes fishing two or three days a week when the fish are biting.  Dinny McKellar goes fishing and sometimes takes his cousin Dulla McKellar with him.  Favoured fishing locations would be revisited several times a year.

19. Seasonal events such as the flooding of the Paroo River are remembered by many witnesses as times of celebrations. People would walk upstream to meet the flood waters after rains as they signalled when fish stocks along the Paroo would be replenished and there would be food for everyone.  Today people return to the river after heavy rains. Sam Eulo returns with his whole family, including his mother Ruby Eulo, to Caiwarro after a fresh flow of water passes down the Paroo.

20. These activities require care and respect as the landscape contains potential dangers. A story recounted to Philip Eulo was how Grandma Toogler had to swim back from an island on Lake Numulla after collecting swan eggs. The creature Muddan-gaddah had caused the lake to rise.  Whilst fishing Nina Prasad and Rhonda Cavanough heard the slapping of the Muddan-gaddah in the river. They packed up and returned home as they were wary of the creature.

21. Smoking ceremonies involving burning leaves of the dogwood bush or sandalwood bush are used as protection by the Budjiti People. Millie Shillingsworth for example, smokes herself when near the Paroo River to ward off the Muddan-guddah.  Smoking is a means of calling on the good spirits to offer protection to the performer of the ritual. Dinny McKellar conducted a smoking ceremony so that he would be safe when he swam amongst the reeds to collect swan eggs.  The spirits would also bring good fortune. Dinny was taught to smoke his fishing line so that the ancestors would know who he was and assist with a catch.

22. Budjiti People perform other rituals when out on country. Judy Shillingsworth throws dirt into the water and calls out “Gouyoo Gouyoo” before throwing in her line. She learnt this from her mother Ruby as well as her grandmother.  The same ritual is performed by Nina Prasad to attract the fish.  Nina Prasad spits on her bait just as her mother once did.

23. Lorna McNiven remembers when Budjiti People used to meet with neighbouring groups.  They used to have ceremonies at the lakes, it had to be when there was an abundance of food. There would be meetings or ceremonies or anything after there had been “a big wet” and the lakes would be full of fish and birds.  Millie Shillingsworth also recalls being told about a big ceremonial ground up at Caiwarro. In her outline of evidence she says that she remembers her “Granny saying that all the tribes have different ceremonial sites and the different tribes would meet and exchange things. Aunty Kate told me about ceremonies on Caiwarro, the men would all get out there and have a big feed and dance and do a corroboree and exchange things. Granny used to say it was men’s business, it was a meeting place”.

24. Traditionally Aboriginal people would travel across the landscape, telling events and stories associated with the landscape. Dinny McKellar acquired many narratives from walking on Budjiti country with his grandparents. The story of the stone people at Caiwarro Waterhole was told to Dinny by his grandmother Jessie.  At Lake Thorlinda, Jessie would call out in language asking permission to collect duck eggs.  Dinny repeats this ritual when visiting the lakes with his grandchildren, speaking to the spirits.  Dinny was told by his family not to approach some places as they were dangerous sites, such as the women’s area at the Granites. 

25. When Sam Eulo returns to his country with his mother Ruby, she relays past events associated with the land. At a fish trap at Caiwarro, Ruby recalled how fish were caught off the rocks by hand.  Sam learnt of the Muddan-gaddah and how it travels up and down the Paroo River, visiting different waterholes.  Another story given to Sam is how swimming in the Paroo will cause your hair to go grey prematurely.

26. Gordon Sullivan returns to the fresh and salt water lakes in Currawinya National Park with his family. The younger children are introduced to country.  Similarly Liz McNiven has taken her three children when they were young onto country and has told them stories that she learnt herself growing up. The trip in 1991 gave an opportunity for Ben, Akazia and Kaiwarra to learn from their Budjiti elders and experience some of their cultural heritage.

27. Claimants are given skills in interpreting the environment. A difference in colours of saps on eucalypt trees determines whether you had found a food or a medicine. Millie Shillingsworth’s mother Ruby Eulo told her not to eat the red sap on gum trees as it was a medicine, which plants were poisonous and which ones can be eaten.  Quinine trees can be located in the scrub by looking for bright green leaves, a skill that Liz McNiven received from her cousin Mack John (Max) Sullivan. 

28. Claimants were also taught how to read animal tracks found in the sandy regions of Budjiti country. Sam Eulo learnt to distinguish between the tracks of a goanna and an echidna from his mother.  From a young age Dinny McKellar was taught how to track.  He was taught that emus will avoid imprinting their toes into the ground when nesting.  Dinny also learnt to look for the claw marks of an echidna to determine the direction it was taking.

29. Budjiti People fulfil responsibilities of caring for the land by visiting and maintaining sites. Dinny McKellar regularly rides his motorbike to Injamala Waterhole and other significant places close to Eulo to ensure no damage has occurred.  He removes any rubbish left lying around. Similarly Liz McNiven will stop at an old camping place at Sheep Station Creek when travelling with her mother to ensure that everything is in order.

30. They engage with Councils and Government agencies to ensure that cultural sites are protected. Dinny McKellar and Keith (Dulla) McKellar participate in cultural heritage work to check that areas are clear of sites and artefacts before the Paroo Shire or Main Roads commence works within the Claim Area.  Mick McNiven also works with a Ranger at Currawinya National Park to protect sites.  Any dead animals discovered in any of the rockholes are removed. If Mick finds any dirt or muck accumulated in a rock well, he will use a pannikin to scoop out the material, thus ensuring the animals have clean drinking water.

31. Cultural site protection includes teaching the younger generation the significance of different places. Phillip Eulo has shown his grandchildren mud springs and waterholes on his country, sharing stories with them.  The association of Caiwarro Waterhole as the residing place of the Muddan-gaddah is known to many Budjiti People who have been taken to the site. Dinny McKellar considers that the creature itself will no longer inhabit the waterway should the oral traditions be no longer passed down to younger people.

32. Jessie Brooks, a Budjiti apical ancestor, is buried on country on Gunamurra station.  Two much older graves are located nearby.  Smoking ceremonies have been performed at Jessie's grave by her descendants to assist in settling her spirit. 

33. Several Budjiti People are buried at Eulo in the cemetery including Thomas (Tommy) McNiven.  Thomas's remains were transferred from Canberra by his sister Lorna McNiven so that her brother could be buried on country.

34. There are a number of massacre sites within the Claim Area. Mick McNiven has described one such place where seventy Budjiti People perished near a spring between Currawinya Homestead and the lakes area.  The ongoing care of these places are important to Budjiti People. They believe the spirits of their ancestors remain on country and it is important for their graves to be protected. 

35. Decision makers for country are aware they carry a responsibility toward country. Lorna McNiven describes the pull to return to country being one of the last of her generation.  Ruby Eulo has left a legacy for the group ensuring that her daughters Millie and Judy have received her knowledge over time.  They are able to make decisions for country as they have received the required training. 

36. Traditionally people would ask permission prior to going onto country. An example today of this custom, is when Kunja people call on Dinny McKellar prior to going hunting in the Budjiti Claim area.  Today Budjiti younger members of the group ask their elders to identify which areas should be avoided on country and where the best hunting grounds and fishing locations are to be found. 

37. Advice is also sought from Budjiti elders regarding objects found on country. When Phillip Eulo found a bluestone axe head at a site near Eulo, he called his aunt Ruby Eulo to ascertain what should be done with the object. Ruby advised him that it was best left on country.

38. Budjiti People harvest native flora for medicinal purposes. The tobacco bush is applied topically to treat ant bites.  Claimants use the bark of the Quinine tree (Alstonia constricta) found in Eulo Common to treat rashes, and for cancer treatment.  These trees have been harvested by Budjiti People over many generations, as evidenced by the scarring of the bark. The dogwood also carries medicinal properties. Liz McNiven collects fresh dogwood leaves at Moonjaree Waterhole when travelling to Cunnamulla to share with older family members suffering from coughs and chest complaints.

39. The process of acquiring the knowledge to use these medicinal plants has been described by Liz McNiven. Her aunt Katie Eulo, who was a senior elder of the group, instructed John Mack (Max) Sullivan to teach Liz about the plant.  How to identify the trees, the method of removing the bark without killing the tree, and how to prepare the medicines were all imparted onto the novice.

40. Traditionally people from neighbouring language groups would be invited onto Budjiti country to participate in ceremony and to trade. Invitations would be sent using message sticks.  The visitors would travel along walking routes. One route entered Budjiti country from the east through Moonjaree Waterhole. Another came from Tinnenburra to Injamala Waterhole following Six (6) Mile Creek, also known as Bow Creek.  Dinny McKellar’s grandmother, Jintu (Jessie) participated in a ceremony at Injamala Waterhole in the 1940s.

41. A large ceremony ground is located on Caiwarro Station. Budjiti People would meet with other tribes to dance, sing and to exchange items.

42. When claimants bring non-Budjiti People onto country, a smoking ceremony is performed for those visitors. Dinny McKellar explained that this custom stemmed from the time when ceremonies were traditionally held on country.  Dinny’s grandfather Charlie Turner told him that if a visitor wished to dance a new ceremony, the visitor remained respectfully silent until they had been smoked by their hosts.

43. A contemporary visit onto country by non-claim group members occurred in 1991 when Budjiti People accompanied photographers Wesley Stacey and Narelle Perroux and the archaeologist Robert Neale on an AITSIS funded trip. Places visited within the application area included Caiwarro Station, Currawinya Station, Eulo, Boorara Station and the Paroo River.  The Budjiti People that participated in the trip included Charles McNiven, Tom McNiven, Lorna McNiven, Doreen Lord, Mick McNiven, Lorna McNiven and Liz McNiven.  The photographs recorded Budjiti visiting sites and performing cultural activities. Stories were shared about the sites allowing younger people to learn from their elders and graves were visited and smoked. At Caiwarro, Robert Neale registered a grave and other cultural sites.

44. That recital of some of the available material shows clearly that:

    (a)at the time of sovereignty, the ancestors of the Budjiti People comprised a society (the pre-sovereignty society) united in and by their acknowledgment and observance of a body of accepted laws and customs (traditional laws and customs);

    (b)pursuant to the traditional laws and customs the pre-sovereignty society held rights and interests in the Claim Area;

    (c)the pre-sovereignty society has substantially maintained its identity and existence from generation to generation by the acknowledgment and observance of the traditional laws and customs which have continued to be acknowledged and observed substantially uninterrupted by each successive generation to the present time;

    (d)the Budjiti People possess rights and interests in the Claim Area under the traditional laws and customs acknowledged and observed by them; and

    (e)by the traditional laws and customs still observed and acknowledged by the Budjiti People, they have a connection with the Claim Area.

1. In the light of that assessment, I am well satisfied that, in terms of s 87(1A) it is appropriate to make the Determination. The parties, with the benefit of that material, consent. It is an informed agreement between the parties. The process followed by the State, particularly how an assessment of the underlying evidence as to the existence of native title is carried out, has been thorough and professional. The parties have independent and competent legal representation.

2. The parties agree that native title exists in relation to the Claim Area and that the native title rights and interests are held non-exclusively by the Budjiti People.

3. The nature and extent of the native title rights and interests in relation to the Claim Area where native title is recognised are the rights to:

   (a)access, be present on, move about on and travel over the application area;

   (b)camp, and live temporarily on the application area as part of camping, and for that purpose build temporary shelters;

   (c)hunt, fish and gather on the land and waters of the application area for personal, domestic and non-commercial communal purposes;

   (d)take, use, share and exchange natural resources from the land and waters of the application area for personal, domestic and non-commercial communal purposes;

   (e)take and use the water of the application area for personal, domestic and non-commercial communal purposes;

   (f)light fires on the application area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;

   (g)conduct ceremonies and hold meetings on the application area;

   (h)teach on the area the physical and spiritual aspects of the application area;

   (i)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs, and protect those places and areas from physical harm;

   (j)be buried and bury native title holders within the application area; and

   (k)be accompanied onto the application area by certain non-native title holders, being:

   (i)spouses and other immediate family members of the native title holders, pursuant to the exercise of traditional laws and customs; and

   (ii)people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in, ceremonies.

4. Those rights and interests are rights and interests that are capable of recognition by the common law of Australia.

5. The proposed consent determination contains determination maps that include all of the area that the parties agree is land and waters where native title exists within the Claim Area.

6. I note that the Budjiti People propose that the native title rights and interests be held by the Budjiti Aboriginal Corporation as trustee pursuant to s 56 of the NT Act, so the proposed determination contains orders pursuant to ss 56 and 57 of the NT Act.

7. I accordingly consider it appropriate to make the orders in paragraph 17 of the proposed determination that the Budjiti Aboriginal Corporation be determined to be the prescribed body corporate for the purposes of s 56(1) of the NT Act to perform the functions mentioned in s 57(1) of the NT Act after becoming a registered native title body corporate. I am satisfied that that body is a prescribed body corporate, in accordance with Regulation 4 of the Native Title (Prescribed Body Corporate) Regulations (1999) and that Melissa Bryan is a Budjiti person, and a member of the group of persons jointly comprising the applicant in these proceedings, so that the nomination made by her in her letter to the Court dated 19 April 2015 is a written nomination in accordance with s 56(2) of the NT Act.

8. In all the circumstances, I am well satisfied that it is appropriate to make a Determination that the Budjiti People hold the native title rights and interests over the claim area as its traditional owners, in accordance with the proposed determination.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:       23 June 2015