McKellar on behalf of the Wongkumara People v State of Queensland
[2024] FCA 699
•3 July 2024
FEDERAL COURT OF AUSTRALIA
McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699
File number(s): QUD 851 of 2018 QUD 133 of 2021 Judgment of: MURPHY J Date of judgment: 3 July 2024 Catchwords: NATIVE TITLE – consent determination of native title under s 87A of the Native Title Act 1993 (Cth) Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Native Title Act 1993 (Cth) ss 47C, 56, 57, 66, 81, 87, 87A, 94A, 223, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Crown Land Management Act 2016 (NSW)
Biosecurity Act 2015 (NSW)
National Parks and Wildlife Act 1974 (NSW)
Cases cited: Agius v South Australia (No 6) [2018] FCA 358
Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16
Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237
Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638
Collins on behalf of the Wongkumara People v Harris on behalf of the Palpamudramudra Yandrawandra People [2016] FCA 527
Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282
Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116
King v South Australia [2011] FCA 1386; 285 ALR 454
Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Lovett v Victoria (No 5) [2011] FCA 932
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
McKellar on behalf of the Wongkumara People v State of Queensland [2020] FCA 1394
Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109
Nelson v Northern Territory [2010] 190 FCR 344; 190 FCR 344
Nicholls v State of South Australia [2015] FCA 1407
Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691
Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600
Watson v Western Australia (No 6) [2014] FCA 545
Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 93 Date of hearing: 3 July 2024 Counsel for the Applicant in QUD 851 of 2018: Mr A Tokley KC, Mr J McCarthy KC, Ms S Phillips, Ms L Goodchild, Mr G Kildea and Mr A Flecknoe-Brown Solicitor for the Applicant in QUD 851 of 2018 and the Fourth and Fifth Respondents in QUD 113 of 2021: Eddy Neumann Lawyers Counsel for the Applicant in QUD 133 of 2021: Mr A Neal KC and Mr D Yarrow Solicitor for the Applicant in QUD 133 of 2021 and the Forty-Third and Forty-Fourth Respondents in QUD 851 of 2018: South Australian Native Title Services Limited Counsel for the First Respondent in QUD 851 of 2018 and QUD 133 of 2021: Mr A Duffy KC and Mr D Quayle Solicitor for the First Respondent in QUD 851 of 2018 and QUD 133 of 2021: Crown Law, Queensland Government Solicitor for the Second, Third, Fourth, Fourteenth, Sixteenth, Twentieth, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty-Sixth, Twenty-Seventh, Twenty-Eighth, Twenty-Ninth, and Thirty-First Respondents in QUD 851 of 2018 and the Second, Third, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second, Twenty-Third, and Twenty-Fourth Respondents in QUD 133 of 2021: Ashurst Australia Counsel for the Fifth Respondent in QUD 851 of 2018: Mr H El-Hage SC and Mr E Lee Solicitor for the Fifth Respondent in QUD 851 of 2018: Crown Law, NSW Government Solicitor for the Sixth and Tenth Respondents in QUD 851 of 2018 and the Twenty-Sixth Respondent in QUD 133 of 2021: Holding Redlich Solicitor for the Seventh and Ninth Respondent in QUD 851 of 2018: Chalk and Behrendt Solicitor for the Eleventh Respondent in QUD 851 of 2018: Norton Rose Fulbright Solicitor for the Thirteenth and Forty-Fifth Respondent in QUD 851 of 2018 and the Twenty-Sixth Respondent in QUD 133 of 2021: King & Wood Mallesons Solicitor for the Thirty-Fifth, Thirty-Seventh, Thirty-Eighth, Thirty-Ninth, and Fortieth Respondents in QUD 851 of 2018 and the Twenty-Fifth Respondent in QUD 133 of 2021: Thynne & Macartney Solicitor for the Seventh and Eighth Respondents in QUD 133 of 2021: Doyle Wilson Solicitor for the Ninth Respondent in QUD 133 of 2021: Minter Ellison ORDERS
QUD 851 of 2018 BETWEEN: CLANCY JOHN McKELLAR AND OTHERS ON BEHALF OF THE WONGKUMARA PEOPLE
Applicant
AND: STATE OF QUEENSLAND and others named in the Schedule
Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
3 JULY 2024
QUEENSLAND PART A AREA
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 87A 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.Each party to the proceedings is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
3.The determination area is the land and waters described in Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.
4.Native title exists in the Determination Area.
5.The native title is held by the Wongkumara People described in Schedule 1 (the Native Title Holders).
6.Subject to orders 8, 9 and 10 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 4 are:
(a)other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
(b)in relation to Water, the non-exclusive rights to:
(i)hunt, fish and gather from the Water of the area;
(ii)take the Natural Resources of the Water in the area; and
(iii)take the Water of the area subject to the operation and any vesting effect of State Water Legislation.
7.Subject to orders 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:
(a)access, be present on, move about on and travel over the area;
(b)live and camp on the area and for those purposes to erect shelters and other structures thereon;
(c)hunt, fish and gather on the land and waters of the area;
(d)take the Natural Resources from the land and waters of the area;
(e)take the Water of the area subject to the operation and any vesting effect of State Water Legislation;
(f)conduct rituals, ceremonies and other religious, spiritual and cultural activities on the area;
(g)conduct mortuary related rituals including to 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 harm;
(i)teach on the area the physical and spiritual attributes of the area and its sites and the traditional laws and customs of the Native Title Holders to Native Title Holders or persons otherwise entitled to access the area;
(j)hold meetings on the area;
(k)light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(l)be accompanied onto the area by those persons who, though not Native Title Holders are:
(i)spouses or partners of Native Title Holders;
(ii)people who are members of the immediate family of a spouse or partner of a Native Title Holder; or
(iii)people reasonably required by the Native Title Holders under traditional law and custom, including for the performance of ceremonies or cultural activities in the area.
8.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.
9.The native title rights and interests referred to in orders 6(b) and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
10.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).
11.The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2.
12.The relationship between the native title rights and interests described in orders 6 and 7 and the other interests described in Schedule 2 (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.
DEFINITIONS AND INTERPRETATION
13.In this determination, unless the contrary intention appears:
“Animal” means any member of the animal kingdom (other than human), whether alive or dead;
“External Boundary” means the area described in Schedule 3;
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means:
(a)the common law and the laws of the State of Queensland; and
(b)the common law and the laws of the Commonwealth of Australia;
and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Local Government Act” has the meaning given in the Local Government Act 2009
(Qld);
“Local Government Area” has the meaning given in the Local Government Act 2009
(Qld);
“Natural Resources” means:
(a)any Animals and Plants 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,
thathave traditionally been taken by the Native Title Holders,
(c)but does not include:
i.minerals as defined in the Mineral Resources Act 1989 (Qld) (so far as applicable); or
ii.petroleum as defined in the Petroleum Act 1923 (Qld) and the
PetroleumandGas(ProductionandSafety)Act2004(Qld);
“Plant” means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen;
“Reserve” means a reserve dedicated or taken to be a reserve under the Land Act 1994 (Qld);
“State Water Legislation” means The Rights to Water and Water Conservation and Utilization Act 1910 (Qld), Water Act 1926 (QLD), and Water Act 2000 (QLD);
“Water” means:
(a)water which flows, whether permanently or intermittently, within a river, creek or stream;
(b)any natural collection of water, whether permanent or intermittent;
(c)water from an underground water source.
“Works” has the same meaning as in the Electricity Act 1994 (Qld).
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:
14.The native title is held in trust.
15.The Wangkumarra Kawalanyi Aboriginal Corporation (ICN: 7384), 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.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Schedule 1 – Native Title Holders
The native title holders are the Wongkumara People.
The Wongkumara People are the descendants of ancestors who are recognised as having had a connection to the Determination Area in accordance with the laws and customs of the regional society described by Professor A P Elkin as ‘the Lakes Group’, and who are recognised and accepted by other Wongkumara People as being native title holders. Those ancestors include:
(a)Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and WillyDutton);
(b)Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga;
(c)Maggie and Tommy (parents of Nelli Flash and Angelina);
(d)Kutji (mother of George Dutton);
(e)Tarella and her children Elizabeth and Harry (Fred) Hartnett;
(f)Norman Harding;
(g)Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis);
(h)Jenny (mother of Alf Barlow); and
(i)Neddie and Nancy (grandparents of Jimmy Sedeek).
The Wongkumara People include persons who are adopted into the families of the Wongkumara People in accordance with traditional laws and customs, and who are recognised and accepted by other Wongkumara People as being native title holders.
Schedule 2 – 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 Santos Limited (ABN 80 007 550 923) as a party to the Santos-Wongkumara People ILUA (QI2012/073) registered on the Register of Indigenous Land Use Agreements on 4 January 2013.
2.The rights and interests of Vintage Energy Limited (ACN 609 200 580) as a successor party to the Deed Regarding The Grant of ATP 2021 made pursuant to section 31(1)(b) of the Native Title Act 1993 (Cth) between The State of Queensland and Metgasco Ltd (ACN 088 196 383) (Metgasco) and Wongkumara People concluded on 26 March 2018 and the Conjunctive Ancillary Agreement referred to therein made between Metgasco and Wongkumara People.
3.The rights and interests of the holders of the following lease granted pursuant to the Land Act 1962 (Qld) or the Land Act 1994 (Qld):
(a)term lease for communication purposes TL 242189 over Lot 5 on Survey Plan 184928.
4.The rights and interests of the holders of the following tenements granted pursuant to the Petroleum Act 1923 (Qld) and administered under the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld):
(a)petroleum leases PL 23, PL 24, PL 25, PL 26, PL 33, PL 34, PL 35, PL 36, PL 51, PL 58, PL 59, PL 60, PL 61, PL 62, PL 68, PL 75, PL 76, PL 77, PL 78, PL 79, PL 80, PL 81, PL 82, PL 83, PL 85, PL 85, PL, 87, PL 88, PL 108, PL 111, PL 112, PL 114, PL 129, PL 131, PL 132, PL 133, PL 135, PL 136, PL 137, PL 138, PL 141, PL 142, PL 143, PL 144, PL 145, PL 146, PL 147, PL 148, PL 149, PL 150, PL 151, PL 152, PL 153, PL 154, PL 155, PL 156, PL 158, PL 175, PL 177, PL 181, PL 182, PL 187, PL 193, PL 205, PL 241, PL 244, PL 249, PL 254, PL 255, PL 287, PL 288, PL 301 and PL 302; and
(b)petroleum pipeline licences PPL 6, PPL 8, PPL 13, PPL 14, PPL 16, PPL 17, PPL 18, PPL 31, PPL 35, PPL 36, PPL 37, PPL 38, PPL 39, PPL 40, PPL 46, PPL 47, PPL 62, PPL 64, PPL 65, PPL 66, PPL 67, PPL 68, PPL 69, PPL 78, PPL 80, PPL 81, PPL 82, PPL 94, PPL 96, PPL 98, PPL 101 and PPL 105.
5.The rights and interests of the holders of the following tenements granted pursuant to the Petroleum and Gas (Production and Safety) Act 2004 (Qld):
(a)authorities to prospect ATP 752, ATP 1189, ATP 2021 ATP 2023;
(b)potential commercial areas PCA 155, PCA 206, PCA 248, PCA 250, PCA 251, PCA 268, PCA 269, PCA 270, PCA 271, PCA 272, PCA 273, PCA 274, PCA 275, PCA 276, PCA 277, PCA 278, PCA 279, PCA 280 and PCA 281;
(c)petroleum leases PL 495, PL 496, PL 502, PL 508, PL 509, PL 513, PL 1013, PL 1014, PL 1016, PL 1026, PL 1035, PL 1046, PL 1047, PL 1051, PL 1054, PL 1055, PL 1056, PL 1057, PL 1058, PL 1060, PL 1072, PL 1073, PL 1075, PL 1076, PL 1078, PL 1079, PL 1080, PL 1085, PL 1087, PL 1090, PL 1091, PL 1092, PL 1094, PL 1105, PL 1107, PL 1108, PL 1118 and PL 1120; and
(d)petroleum pipeline licences PPL 111, PPL 113, PPL 127, PPL 128, PPL 142, PPL 169, PPL 187, PPL 190, PPL 2017, PPL 2031, PPL 2035, PPL 2036, PPL 2039, PPL 2042, PPL 2044, PPL 2045, PPL 2046, PPL 2050, PPL 2053, PPL 2054, PPL 2055, PPL 2067 and PPL 2071.
6.The rights and interests of the holder of the following easements that exist within the Determination Area:
(a)easements in land described as Lot 5 on Crown Plan CR9;
(b)easements in land described as Lot 450 on Survey Plan 274333; and
(c)easements in land described as Lot 415 on Crown Plan 835115.
7.The rights and interests of Telstra Corporation Limited ACN 051 775 556, Amplitel Pty Ltd as trustee for the Towers Business Operating Trust ABN 75 357 171 746 and any of their successors in title:
(a)as the owner(s) or operator(s) of telecommunications facilities 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, occupy and 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, access agreement, permit or easement relating to their telecommunications facilities in the Determination Area.
8.The rights and interests of Essential Energy ABN 37 428 185 226 and any of its successors in title as follows:
(a)as the owner(s) or operator(s) of telecommunications facilities within the Determination Area;
(b)created pursuant to the Telecommunications Act 1997 (Cth), Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under those Acts including rights:
(i)to inspect land;
(ii)to install, occupy and operate telecommunication facilities; and
(iii)to alter, remove, replace, maintain, repair and ensure the proper functioning of its 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;
(d)under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities or as either or both owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure in the Determination Area;
(e)as the owner(s) or operator(s) of any “Works” as the term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(f)as an electricity entity under the Electricity Act 1994 (Qld) and any regulations under that Act, including but not limited to:
(i)as the holder of a distribution authority;
(ii)to access, use, inspect, maintain, repair, replace, upgrade or otherwise deal with any Works in the Determination Area;
(iii)in relation to any agreement or consent relating to the Determination Area existing or entered into before the date on which these orders are made; and
(iv)to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph.
(g)The Applicant acknowledges that, by the operation of s 23B of the Native Title Act 1993 (Cth), native title has been extinguished over:
(i)land upon which, or waters over which, overhead powerlines and associated infrastructure owned and operated by Essential Energy (being a public work as defined in s 253 of the Native Title Act (Cth) (“Powerlines”) have been constructed (“Powerline Locations”); and
(ii)any adjacent land or waters in accordance with section 251D of the Native Title Act 1993 (Cth) (Adjoining Land) being:
(A)in relation to land adjoining 33kV Powerlines a total of 30 metres (ie.15 metres either side of the Powerlines); and
(B)in relation to land adjoining 19.1kV Powerlines a total of 20 metres (ie.10 metres either side of the Powerlines).
(h)Despite paragraph (g), but subject to paragraphs (i) and (j) below, Essential Energy has no objection to the native title holders exercising the rights set out in orders 6 and 7 over the Powerline Locations or on the Adjoining Land as if native title rights had not been extinguished by the matters acknowledged in paragraph (g);
(i)The native title holders:
(i)must not camp or erect any shelter on the Powerline Locations or the Adjoining Land;
(ii)must comply with any reasonable direction of Essential Energy in respect of the Powerline Locations or Adjoining Land;
(iii)acknowledge that Essential Energy may erect, install, extend, alter, upgrade, replace, maintain and /or remove the Powerlines or construct new powerlines in the same position as the existing Powerlines or on the Adjoining Land; and
(iv)agree that Essential Energy:
(A)may exercise all of its statutory rights in respect of the Powerline Locations and the Adjoining Land without having to comply with the procedural requirements in the Native Title Act 1993 (Cth);
(B)is not liable to compensate the native title holders when exercising its statutory, or other, rights.
(j)Paragraphs (g), (h) and (i) do not apply where native title has been wholly extinguished over the Powerline Locations or Adjoining Land for reasons other than as set out in paragraph (g);
(k)Nothing in paragraphs (a) to (j) detracts from Essential Energy’s statutory obligations in relation to the preservation of Aboriginal cultural heritage, including but not limited to any such obligations under the Aboriginal Cultural Heritage Act 2003 (Qld), insofar as there may be any places or objects within the Powerline Locations or Adjoining Land to which such obligations apply.
9.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 an electricity entity under the Electricity Act 1994 (Qld), including but not limited to:
(i)as the holder of a distribution authority;
(ii)to inspect, maintain and manage any Works in the Determination Area; and
(iii)in relation to any agreement or consent relating to the Determination Area existing or entered into before the date on which these orders are made; and
(iv)to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph.
10.The rights and interests of Bulloo Shire Council, Barcoo Shire Council and Quilpie Shire Council:
(a)under their local government jurisdiction and functions under the Local Government Act, under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be their respective Local Government Area;
(b)as the:
(i)lessors under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;
(ii)grantors of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not;
(iii)party to any agreement with a third party which relates to land and waters in the Determination Area; and
(iv)holders of any estate or any other interest in land, including as trustee of any Reserves or holder of any interest under access agreements and easements that exist in the Determination Area;
(c)as the owners and operators of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:
(i)undedicated but constructed roads except for those not operated by the Bulloo Shire Council or Barcoo Shire Council or Quilpie Shire Council;
(ii)water pipelines and water supply infrastructure;
(iii)drainage facilities;
(iv)watering point facilities;
(v)recreational facilities;
(vi)transport facilities;
(vii)gravel pits operated by the Bulloo Shire Council or Barcoo Shire Council or Quilpie Shire Council;
(viii)cemetery and cemetery-related facilities;
(ix)community facilities; and
(d)to enter the land for the purposes described in paragraphs 10(a), 10(b)or 10(c) above by its employees, agents or contractors to:-
(i)exercise any of the rights and interests referred to in this paragraph 10 and paragraph 11 below;
(ii)use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 10(c) above;
(iii)undertake operational activities in its capacity as a local government such as feral animal control, erosion control, waste management and fire management.
11.The rights and interests of the State of Queensland and the Bulloo Shire Council, Barcoo Shire Council and Quilpie 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.
12.The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.
13.The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:
(a)the Fisheries Act 1994 (Qld);
(b)the Land Act 1994 (Qld), the Land Act 1962 (Qld) or the Land Act 1910 (Qld);
(c)the Nature Conservation Act 1992 (Qld);
(d)the Forestry Act 1959 (Qld);
(e)the Water Act 2000 (Qld);
(f)the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld);
(g)the Mineral Resources Act 1989 (Qld);
(h)the Planning Act 2016 (Qld);
(i)the Electricity Act 1994 (Qld);
(j)the Transport Infrastructure Act 1994 (Qld); and
(k)the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).
14.The rights and interests of members of the public arising under the common law or statute, including but not limited to any subsisting public right to fish.
15.So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act (1993)(Qld) as at the date of this determination, any existing rights of the public to access and enjoy the following places in the Determination Area:
(a)waterways;
(b)beds and banks or foreshores of waterways;
(c)stock routes;
(d)areas that were public places at the end of 31 December 1993.
16.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 of Queensland and the Commonwealth.
Schedule 3 – External Boundary
Longitude (East) Latitude (South) 142.070851 29.067132 142.127754 29.173404 142.181228 29.265766 142.265688 29.434242 142.268777 29.522812 142.234171 29.611863 142.168201 29.676568 142.102589 29.710339 Commencing at a point on the Queensland-New South Wales state border at approximately 12.5 kilometres east of Warri Gate at Longitude 142.058008° East (being the southernmost south western corner of Native Title Determination QUD80/2009 Kullilli People (QCD2014/013)) and extending easterly along that state border / native title determination to Longitude 142.069035° East; then generally south easterly and generally south westerly passing through the following coordinate points:
Then south westerly towards Longitude 142.025721° East, Latitude 29.732544° South until the intersection with Latitude 29.728573° South; then generally westerly passing through the following coordinate points:
Longitude (East) Latitude (South) 142.029479 29.719029 142.013346 29.702040 141.999498 29.690333 141.978225 29.676056 141.951242 29.651643 141.938821 29.645932 141.928542 29.642791 141.913837 29.640935 141.897562 29.640507 141.884427 29.643933 141.873577 29.648787 141.851733 29.661779 141.834030 29.670774 141.826035 29.671773
Longitude (East) Latitude (South) 141.814614 29.670916 141.802193 29.667490 141.790758 29.663569 141.789547 29.664237 141.786797 29.664487 141.784107 29.664947 141.779527 29.664717 141.774317 29.666147 141.768027 29.663417 141.767807 29.663227 141.766797 29.661697 141.766257 29.661357 141.765877 29.661027 141.765477 29.659677 141.764427 29.657657 141.759877 29.655437 141.758187 29.654207 141.756897 29.653657 141.756507 29.653657 141.755857 29.653437 141.751207 29.653467 141.747717 29.653047 141.747587 29.652487 141.746848 29.651851 141.743944 29.651785 141.733950 29.646075 141.724384 29.642077 141.714676 29.637651 141.701827 29.630085 141.693689 29.622375 141.686694 29.614095 141.682268 29.602816 141.678699 29.591395 141.673987 29.585970 141.663137 29.578260 141.650573 29.574691 141.633299 29.573263 141.610741 29.571407 141.593038 29.573263 141.575335 29.576832
Longitude
(East)
Latitude
(South)
141.555205 29.580973 141.536217 29.587112 141.523939 29.594107 Then south westerly to the intersection of Latitude 29.604657° South with a line joining Longitude 141.576353° East, Latitude 29.667311° South and 141.487649° East, Latitude 29.581761° South; then generally north passing through the following coordinate points:
Longitude (East) Latitude (South) 141.487649 29.581761 141.402004 29.481402 141.317402 29.377142 141.289243 29.258230 141.270827 29.178328 141.251329 29.094196 141.228200 28.999080 141.228065 28.998526 141.191280 28.847244 Then generally northerly then south easterly passing through the following coordinate points:
Longitude (East) Latitude (South) 141.233320 28.813999 141.282063 28.637447 141.322871 28.299364 141.342708 26.972536 141.292129 26.661892 141.352920 26.607857 141.494427 26.462533 141.545642 26.389800 141.614921 26.283148 141.667053 26.175879 141.690468 26.145581 141.707335 26.138916 141.748280 26.115033 141.785812 26.057029 141.877936 25.971729 141.901199 25.964327 141.919266 25.971975
Longitude (East) Latitude (South) 142.265169 26.239222 142.263627 26.243824 142.257636 26.260799 142.254460 26.269928 142.251682 26.277469 142.244169 26.287055 142.238022 26.294431 142.233425 26.299299 142.221301 26.306252 142.197418 26.319394 142.197716 26.319578 142.197811 26.337508 142.199140 26.358768 142.200703 26.378504 142.205784 26.439826 142.211763 26.471052 142.238932 26.495309 142.273484 26.515464 142.310915 26.540658 142.346187 26.562973 142.385777 26.582409 142.424648 26.607603 142.457041 26.632797 142.522545 26.673107 142.543421 26.684625 142.575093 26.694702 142.600287 26.706220 142.644197 26.735733 142.662193 26.751569 142.680908 26.771724 142.693865 26.792600 142.705383 26.810595 142.714021 26.834350 142.725538 26.886178 142.734176 26.937286 142.742814 27.007109 142.752892 27.083412 142.783125 27.140278 142.814077 27.201464 142.828474 27.220180
Then south easterly to the centreline of Wilson River at Longitude 142.921279° East, being a point on a northern external boundary of Native Title Determination QUD80/2009 Kullilli People (QCD2014/013); then generally south westerly along that native title determination external boundary back to the commencement point.
For the avoidance of any doubt, the application excludes any area subject to:
·Native Title Determination QUD80/2009 Kullilli People (QCD2014/013) as determined by the federal court on 2 July 2014.
·Native Title Determination SAD6024/1998 Yandruwandha/Yawarrawarrka Native Title Claim (SCD2015/003) as determined by the federal court on 16 December 2015.
·Native Title Determination QUD435/2006 Boonthamurra People Native Title Claim (QCD2015/008) as determined by the federal court on 25 June 2015.
Note
Data Reference and source
·Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicants.
·State borders derived from cadastre data sourced from the Department of Resources, Qld, February 2022.
·Wilson River centreline based on Major watercourse lines – Queensland topographic data sourced from © State of Queensland (Department of Resources) 2021, October 2021, else casement data where available.
Reference datum
Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.
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 of 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.
Prepared by Spatial Information, Department of Resources (31 January 2024)
Schedule 4 – Description of Determination Area
The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.
Part 1 — Exclusive Areas
All of the land and waters described in the following table and depicted in Dark Blue on the determination map contained in Schedule 6:
Area description (at the time of the determination)
Determination Map Sheet Reference
Note
Lot 1 on Plan AP21535
16, 17, 18
Lot 604 on Plan CP899701
12
Lot 608 on Plan N4231
12
Lot 502 on Plan N4231
12
~
Lot 503 on Plan N4231
12
~
Lot 504 on Plan N4231
12
~
Lot 507 on Plan N4231
12
~
Lot 508 on Plan N4231
12
~
Lot 509 on Plan N4231
12
~
~ denotes areas to which s 47B of the Native Title Act 1993 (Cth) apply
Part 2 — Non-Exclusive Areas
All of the land and waters described in the following table and depicted in Light Blue on the determination map contained in Schedule 6:
Area description (at the time of the determination)
Determination Map Sheet Reference
Note
Lot A on Plan BI1
11, 12
Lot 6 on Plan BI15
10
Area description (at the time of the determination)
Determination Map Sheet Reference
Note
Lot 10 on Plan BI16
9
Lot 3 on Plan BI22
3, 5, 7, 9, 11, 12
Lot 415 on Plan CP835115
5, 6
Lot 1 on Plan CR7
15
Lot 2 on Plan CR7
15
Lot 5315 on Plan CR842918
5, 8, 13
Lot 5 on Plan CR9
5, 13, 14, 15, 16,
17, 18
Lot 1 on Plan CU2
1
Lot 3 on Plan M5729
11, 12
Lot 609 on Plan N4231
12
Lot 1 on Plan PE1
1, 5, 6
Lot 2187 on Plan PE842912
5, 6
Lot 468 on Plan PH1653
5, 13
Lot 5355 on Plan PH1842
1
Lot 2528 on Plan PH429
5
Lot 1 on Plan SP133822
1, 2, 3, 5, 7, 9
Lot 2 on Plan SP133822
7
Lot 2 on Plan SP184928
3, 5, 7, 9, 10
Lot 5 on Plan SP184928
10
Lot 6 on Plan SP196201
1, 3, 4
Lot 447 on Plan SP196201
3, 4
Lot 1 on Plan SP209773
5, 8, 13, 16, 18,
19
Lot 2 on Plan SP209773
19
Lot 439 on Plan SP231072
1
Area description (at the time of the determination)
Determination Map Sheet Reference
Note
Lot 446 on Plan SP274331
1, 2, 3
Lot 450 on Plan SP274333
5
Lot 424 on Plan SP307646
3
Lot 4 on Plan SP310346
11
Lot 4 on Plan WLA10
4
Lot 2 on Plan WLA14
3
Lot 3 on Plan WLA14
3
Save for any waters forming part of a lot on plan, all rivers, creeks, streams and lakes within the External Boundary described in Schedule 3, including but not limited to:
(i) Cooper Creek
(ii) Goonaghooheeny Billabong
(iii) Wilson River
Schedule 5 – Areas Not Forming Part of the Determination Area
The following areas of land and waters are excluded from the determination area as described in Part 1 of Schedule 4 and Part 2 of Schedule 4:
1.Those land and waters within the External Boundary which at the time the native title determination application was made were or had been the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) 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 Previous Exclusive Possession Acts described in 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, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied.
(b)the land and 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).
3.Those land and waters within the External Boundary on which, at the time the native title determination application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.
4.Those land and waters within the External Boundary which, at the time the native title determination application was made, were the subject of one or more Pre- existing Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title.
Schedule 6 – Map of Determination Area
ORDERS
QUD 851 of 2018 BETWEEN: CLANCY JOHN McKELLAR AND OTHERS ON BEHALF OF THE WONGKUMARA PEOPLE
Applicant
AND: STATE OF QUEENSLAND and others named in the Schedule
Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
3 JULY 2024
NEW SOUTH WALES PART A AREA
BEING SATISFIED that a determination of native title in the terms sought by the parties is within the power of the Court and it appearing to the Court that it is appropriate to do so by agreement of the parties under sections 87A(1) and 87A(4) and in accordance with section 94A of the Native Title Act 1993 (Cth):
THE COURT NOTES THAT:
A.On 11 March 2008, the Applicant in proceeding QUD 851 of 2018 made a native title determination application in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia, which has been amended on 16 April 2008, 26 August 2009, 2 September 2009, 12 September 2016 and 20 May 2022.
B.The parties who have an interest in this determination have reached an agreement as to the terms of a proposed determination of native title to be made by agreement pursuant to section 87A, and in accordance with section 94A, of the Native Title Act 1993 (Cth) in relation to a part of the land or waters of Part A that are wholly within the jurisdictional limits of New South Wales (the “NSW Part A determination area”), being that:
(1)native title exists in relation to a part of the NSW Part A determination area (the “native title area”); and
(2)native title has been extinguished in relation to the remainder of the NSW Part A determination area (the “extinguished area”).
C.In accordance with section 87A(2) of the Native Title Act 1993 (Cth) the parties have filed a minute of proposed determination of native title by agreement.
D.The Applicant has nominated Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the common law holders.
E.Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 has consented in writing to hold the determined rights and interests comprising the native title in trust for the common law holders and to perform the functions of a registered native title body corporate under the Native Title Act 1993 (Cth).
BY AGREEMENT THE COURT ORDERS THAT:
1.There be a determination of native title in the terms set out below.
2.The determination takes effect upon the date on which the agreement referred to in paragraph 1 of Schedule Four (agreements) is registered on the Register of Indigenous Land Use Agreements, pursuant to section 199B of the Native Title Act 1993 (Cth).
3.In the event that the agreement referred to in Order 2 above is not registered on the Register of Indigenous Land Use Agreements on or before 12 months, or at such later time as this Court may order, the matter is to be listed before the Court for a case management hearing.
4.On the determination of native title taking effect, Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 is to hold the determined native title in trust for the common law holders pursuant to section 56(3) of the Native Title Act 1993 (Cth) and is to:
(a)be the prescribed body corporate for the purposes of section 57(1) of the Native Title Act 1993 (Cth); and
(b)perform the functions set out in section 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).
5.Each party to the proceeding is to bear its own costs.
BY AGREEMENT THE COURT DETERMINES THAT:
6.Native title exists in relation to the native title area described in Schedule One (native title area) and depicted in the maps at Part 1.6 (maps of the native title area) of that Schedule.
7.Any extinguishment of native title in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) is to be disregarded in accordance with section 47A(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist in relation to that land or waters.
8.Any extinguishment of native title in relation to the land or waters described in Part 1.1 (Exclusive native title area) of Schedule One (native title area) is to be disregarded in accordance with section 47B(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist and to be exclusive in relation to those areas.
9.Native title has been extinguished in relation to the extinguished area, described in Schedule Two (extinguished area) and depicted on the maps at Part 2.5 (maps of extinguished areas) of that Schedule, being subject to a previous exclusive possession act attributable to the State of New South Wales in accordance with section 20 of the Native Title (New South Wales) Act 1994 (NSW) and to which none of sections 47A, 47B or 47C of the Native Title Act 1993 (Cth) apply.
10.To the extent of any inconsistency between the written description in Schedule One (native title area) and Schedule Two (extinguished area) and the maps in either Schedule, the written description prevails.
Native title holders
11.The native title holders are the ‘Wongkumara People’. The Wongkumara People are the descendants of ancestors who are recognised as having had a connection to the application area in accordance with the laws and customs of the regional society described by Professor A P Elkin as “the Lakes Group”, and who are recognised and accepted by other Wongkumara People as being native title holders. Those ancestors include:
(a)Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and Willy Dutton);
(b)Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga;
(c)Maggie and Tommy (parents of Nellie Flash and Angelina);
(d)Kutji (mother of George Dutton);
(e)Tarella and her children Elizabeth and Harry (Fred) Hartnett;
(f)Norman Harding;
(g)Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis);
(h)Jenny (mother of Alf Barlow); and
(i)Neddie and Nancy (grandparents of Jimmy Sedeek).
12.The Wongkumara People also include persons who are adopted into the families of the Wongkumara People in accordance with traditional laws and customs, and who are recognised and accepted by other Wongkumara People as being native title holders.
Nature and extent of native title rights and interests in the native title area
13.Subject to paragraphs 15 and 17, the native title rights and interests in respect of the land and waters identified in Part 1.1 (Exclusive native title area), the native title rights and interests are as follows:
(a)other than in relation to water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others;
(b)in relation to water, the non‐exclusive right to:
(i)hunt, fish and gather from the water of the area;
(ii)take the natural resources of the water in the area; and
(iii)take the water of the area, subject to the operation and any vesting effect of the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).
14.Subject to paragraphs 15, 16 and 17, the nature and extent of the native title rights and interests in relation to the non-exclusive native title area identified in Part 1.2 (Crown land in the non-exclusive native title area) and Part 1.3 (the national park estate in the non-exclusive native title area) are the following non- exclusive native title rights:
(a)access, be present on, move about on and travel over the area;
(b)live and camp on the area and for those purposes to erect shelters and other structures thereon;
(c)hunt, fish and gather on the land and waters of the area;
(d)take the natural resources from the land and waters of the area;
(e)take the water of the area, subject to the operation and any vesting effect of the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW);
(f)conduct rituals, ceremonies and other religious, spiritual and cultural activities on the area;
(g)conduct mortuary related rituals including to 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 on the area and protect those places and areas from harm;
(i)teach on the area the physical and spiritual attributes of the area and its sites and the traditional laws and customs of the native title holders to native title holders or persons otherwise entitled to access the area;
(j)hold meetings on the area;
(k)light fires on the area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;
(l)be accompanied on to the area by those persons who, though not native title holders, are:
(i)spouses or partners of native title holders;
(ii)people who are members of the immediate family of a spouse or partner of a native title holder; or
(iii)people reasonably required by the native title holders under traditional law and custom including for the performance of ceremonies or cultural activities on the area.
General qualifications on native title rights and interests
15.Native title does not exist in:
(a)minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and
(b)petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW).
16.The native title rights and interests described in paragraphs 13(b) and 14 do not confer:
(a)any right of possession, occupation, use and enjoyment of the land or waters in the native title area to the exclusion of all others; and
(b)any right to control public access to or use the land or waters in the native title area.
17.The native title rights and interests in relation to the land or waters in the native title area are subject to and exercisable in accordance with:
(a)the laws of the State of New South Wales and of the Commonwealth;
(b)the traditional laws acknowledged and traditional customs observed by Wongkumara People; and
(c)the terms and conditions of the agreements referred to in Schedule Four (agreements).
The nature and extent of any other interests
18.The other interests in relation to the native title area are the rights described in Schedule Five (other interests in the native title area).
Relationship between native title rights and interests and other interests
19.Subject to paragraphs 20, 21 and 22, the relationship between the native title rights and interests in relation to land or waters in the native title area and the other interests, described in Schedule Five (other interests in the native title area), in relation to those areas is that:
(a)the other interests continue to have effect;
(b)the other interests co-exist with Wongkumara People’s native title;
(c)Wongkumara People do not have the right to control access to or the use of the land or waters by the holders of the other interests; and
(d)to the extent of any inconsistency, the other interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the other interests, while they are in existence, prevail over but do not extinguish native title and any exercise of those native title rights and interests.
20.The relationship between the native title rights and interests in relation to the land or waters in the native title area and the Aboriginal Land Council interests set out at Item 1(a) of Schedule Five (other interests in the native title area) is that the Aboriginal Land Council interests continue to have effect.
21.The relationship between the native title rights and interests in relation to the land or waters in the native title area and the Aboriginal Land Council interests set out at Item 1(b) of Schedule Five (other interests in the native title area) is that:
(a)pursuant to section 36(9) of the Aboriginal Land Rights Act 1983 (NSW), the Aboriginal Land Council interests shall be subject to the native title rights and interests existing in relation to the land or waters in the native title area immediately before the transfer, meaning that the native title rights and interests have full effect and may be exercised; and
(b)the land or waters in the native title area may only be dealt with by the Aboriginal Land Council in accordance with the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993 (Cth).
22.The relationship between the native title rights and interests in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) and the Aboriginal Land Council Interests described at Item 1(c) of Schedule Five (other interests in the native title area) is that:
(a)the Aboriginal Land Council interests continue to have effect;
(b)the non-extinguishment principle described in section 238 of the Native Title Act 1993 (Cth) applies to the grant or vesting of the Aboriginal Land Council interests and any prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act 1993 (Cth);
(c)the native title rights and interests continue to exist in their entirety, but have no effect in relation to the Aboriginal Land Council interests;
(d)the Aboriginal Land Council interests, and any activity that is required or permitted by or under and done in accordance with the Aboriginal Land Council interests, may be exercised and enjoyed in their entirety notwithstanding the existence of the native title rights and interests;
(e)the native title rights and interests may not be exercised on land or waters the subject of the Aboriginal Land Council interests while those Aboriginal Land Council interests exist;
(f)if the Aboriginal Land Council interests or their effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and
(g)if the Aboriginal Land Council interests or their effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.
DEFINITIONS AND INTERPRETATION
23.In this approved determination of native title, unless the contrary intention appears:
Aboriginal Land Council means the New South Wales Aboriginal Land Council or any Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 (NSW) for a Local Aboriginal Land Council area, within the meaning of that Act that is within the land and waters in the native title determination area, and includes Tibooburra Local Aboriginal Council.
Aboriginal Land Council interests means the rights and interests set out in Item 1 of Schedule Five (other interests in the native title area)
animal means any member of the animal kingdom (other than human), whether alive or dead.
application area means the land and waters within the external boundaries of the native title determination application filed by the registered native title claimants on behalf of the Wongkumara People on 11 March 2008, as amended.
extinguished area means the land or waters described in Schedule Two (extinguished area).
laws of the State of New South Wales and of the Commonwealth include the relevant statutes, regulations, planning instruments and other subordinate legislation of the jurisdiction, and the common law.
native title and native title rights and interests means the rights and interests described in paragraph 13 of the determination.
native title area means the land or waters described in Schedule One (native title area).
native title determination application means the native title determination application filed on 11 March 2008 by the Applicant in the Federal Court and given the number QUD 851 of 2018, as amended.
native title holders and Wongkumara People means the persons described in paragraph 11 of the Application Area.
natural resources means:
(a)any animals and plants found on or in the lands and waters of the native title area; and
(b)any clays, soil, sand, gravel or rock found on or below the surface of the native title area;
that have traditionally been taken by the native title holders;
(c)but does not include:
(i)minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and
(ii)petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW)
NSW Part A determination area means the land or waters within the external boundaries described in Schedule Three (NSW Part A determination area).
plant means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen.
Wongkumara People has the same meaning as native title holders.
Wangkumarra Kawalanyi Aboriginal Corporation means Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).
24.If a word or expression is not defined in these orders or this determination of native title, but is defined in the Native Title Act 1993 (Cth), the Native Title (New South Wales) Act 1994 (NSW) or the Interpretation Act 1987 (NSW), then it has the meaning given to it in those statutes, whichever is relevant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE ONE (NATIVE TITLE AREA)[1]
[1] the “as at date” for the dataset in which the parties have relied on for all parcels referred to in the consent determination is March 2024.
1.Subject to Schedule Two (extinguished area) of this approved determination of native title, the native title area comprises all the land or waters described in the respective tables in:
(a)Part 1.1 (Exclusive native title area);
(b)Part 1.2 (Crown land in the non-exclusive native title area);
(c)Part 1.3 (the national park estate in the non-exclusive native title area);
(d)Part 1.4 (waters in the non-exclusive native title area); and
(e)Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies);
hatched in blue (Part 1.1), light blue (Parts 1.2, 1.3 and 1.4), or light orange (Part 1.5) and depicted on the maps at Part 1.6 (maps of the native title area) of this Schedule to the extent they fall within land and waters covered by the native title determination application.
2.To the extent of any inconsistency between the description of the land or waters in this Schedule One (native title area) and the description of the land or waters in Schedule Two (extinguished area), the description in Schedule Two prevails.
Part 1.1 (Exclusive native title area)
Prior extinguishment has been disregarded, pursuant to section 47B of the Native Title Act 1993 (Cth), in relation to all the land or waters described in the table below and depicted on the maps at Part 1.6 (maps of the native title area) to the approved determination of native title hatched in blue to the extent they fall within the land and waters covered by the native title determination application:
ID Area description (as at March 2024) Notes and Map Reference 1. 92 1/820406 NNTT ID 275 2. 93 2/820406 NNTT ID 276 3. 94 3/820406 NNTT ID 277
ID Area description (as at March 2024) Notes and Map Reference 4. 95 4/820406 NNTT ID 278 5. 96 5/820406 NNTT ID 279 6. 97 6/820406 NNTT ID 280 7. 98 7/820406 NNTT ID 281 8. 99 8/820406 NNTT ID 282 9. 100 9/820406 NNTT ID 283 10. 138 19/3/758976 NNTT ID 141 11. 139 21/3/758976 NNTT ID 143
Essential Energy: Infrastructure (2/1/1992)
12. 246 4/820405 NNTT ID 262 13. 250 8/820405 NNTT ID 266 14. 258 16/820405 NNTT ID 274 15. 259 1/820404 NNTT ID 248 16. 260 2/820404 NNTT ID 249 17. 261 3/820404 NNTT ID 250 18. 262 4/820404 NNTT ID 251 19. 263 5/820404 NNTT ID 252 20. 264 6/820404 NNTT ID 253 21. 265 7/820404 NNTT ID 254 22. 266 8/820404 NNTT ID 255 23. 267 9/820404 NNTT ID 256 24. 268 10/820404 NNTT ID 257 Part 1.2 (Crown land in the non-exclusive native title area)
State ID Area description (as at March 2024) Notes and Map Reference 1. 8 5576/768478 NNTT ID 233 2. 17 - Part Part of 3559/765911 NNTT ID 215 The non-exclusive native title area comprises the part of the land, subject to Reserve 72,200 for monument and public recreation (notified on 2
May 1947).
Essential Energy: Infrastructure (2/1/1994) The remaining land within that portion is the extinguished area. 3. 29 7301/1150180 NNTT ID 199
State ID Area description (as at March 2024) Notes and Map Reference 4. 30 7300/1150180 NNTT ID 007 5. 47 1/763992 NNTT ID 206 6. 48 2/763992 NNTT ID 207 7. 49 6698/762526 NNTT ID 205 8. 50 - Part 474/760131
The extinguished area comprises the public work and land necessary for or incidental to operation of the public work.
The remaining land is the non-exclusive native title area.
NNTT ID 195 9. 51 - Part 474/760130
The extinguished area comprises the public work and land necessary for or incidental to operation of the public work.
The remaining land is the non-exclusive native title area.
NNTT ID 194
Essential Energy: Infrastructure (11/9/1995)
10. 55 4/756243 NNTT ID 094 11. 56 5/756243 NNTT ID 095 12. 58 7/756243 NNTT ID 096 13. 59 - Part 3941/914830
The native title area for portions, 3941/914830, 3942/914831 and
cadastral number 169511104 comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on these parcels of land.
NNTT ID 302
State ID Area description (as at March 2024) Notes and Map Reference 14. 59 - Part 3942/914831
The native title area for portions, 3941/914830, 3942/914831 and
cadastral number 169511104 comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on these parcels of land.
NNTT ID 303 15. 59 - Part Cadastral number 169511104
The native title area for portions, 3941/914830, 3942/914831 and
cadastral number 169511104 comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on these parcels of land.
NNTT ID U15 State ID Area description (as at March 2024) Notes and Map Reference 16. 61 - Part 1/914529
The native title area for portion, 1/914529, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the
operation of the public work situated on this parcel of land.
NNTT ID 299 17. 62 - Part 7305/1178848
The native title area for portion, 7305/1178848, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on this parcel of land.
NNTT ID 013 18. 73 - Part 12/756228
The native title area for portion,12/756228, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on this parcel of land.
NNTT ID 029
Essential Energy: Infrastructure (11/9/1995)
State ID Area description (as at March 2024) Notes and Map Reference 19. 78 - Part 1/1066218
The native title area for portion,1/1066218, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work (hospital) and the land necessary for or incidental to the operation of the public work situated on this parcel of land.
NNTT ID 001
Essential Energy: Infrastructure (1/1/1995)
20. 79 11/820404 NNTT ID 258
Essential Energy: Infrastructure (3/1/1975
21. 84 7311/1182485 NNTT ID 027
Essential Energy: Infrastructure (11/9/1995)
22. 86 - Part 7314/1182485
The native title area comprises the land within the boundaries 7314/1182485,
excluding Mount Stuart Boundary Road.
The extinguished area comprises the part of Mount Stuart Boundary Road within that portion.
NNTT ID 030 23. 101 6822/47926 NNTT ID 053 24. 131 12/3/758976 NNTT ID 134
Land held by Tibooburra Local Aboriginal Land Council. See also Schedule Five, Table 1(b).
Essential Energy: Infrastructure (2/1/1989)
State ID Area description (as at March 2024) Notes and Map Reference 25. 132 13/3/758976 NNTT ID 135
Land held by Tibooburra Local Aboriginal Land Council. See also Schedule Five, Table 1(b).
Essential Energy: Infrastructure (2/1/1966)
26. 133 14/3/758976 NNTT ID 136
Essential Energy: Infrastructure (2/1/1992)
27. 137 18/3/758976 NNTT ID 140 28. 153 1/6/758976 NNTT ID 178
Essential Energy: Infrastructure (2/1/1992)
29. 154 2/6/758976 NNTT ID 179 30. 155 3/6/758976 NNTT ID 180
Essential Energy: Infrastructure (2/1/1975)
31. 156 4/6/758976 NNTT ID 181
Essential Energy: Infrastructure (2/1/1975)
32. 157 5/6/758976 NNTT ID 182
Essential Energy: Infrastructure (2/1/1975)
33. 158 6/6/758976 NNTT ID 183
Essential Energy: Infrastructure (2/1/1991)
34. 159 7020/6/758976 NNTT ID 037
Essential Energy: Infrastructure (2/1/1992)
35. 176 1/7/758976 NNTT ID 184
Essential Energy: Infrastructure (2/1/1992)
36. 177 2/7/758976 NNTT ID 185 37. 178 3/7/758976 NNTT ID 186
Essential Energy: Infrastructure (2/1/1975)
State ID Area description (as at March 2024) Notes and Map Reference 38. 179 4/7/758976 NNTT ID 187
Essential Energy: Infrastructure (1/1/1901)
39. 180, 181,
182
7316/1182485 NNTT ID 032
Essential Energy: Infrastructure (1/9/1992)
40. 183 8/7/758976 NNTT ID 188 41. 184 9/7/758976 NNTT ID 189 42. 185 10/7/758976 NNTT ID 190 43. 187 – Part,
190 – Part
7316/1182485 NNTT ID 033
Essential Energy: Infrastructure (1/1/1901 and 2/1/1991)
44. 187 – Part,
189 – Part,
190 – Part
7317/1182485 NNTT ID 033
Essential Energy: Infrastructure (1/1/1901, 2/1/1989 and 2/1/1991)
45. 205 22/2/758976 NNTT ID 121
Essential Energy: Infrastructure (2/1/1992)
46. 206 23/2/758976 NNTT ID 122 47. 233 1/820401 NNTT ID 239 48. 234 2/820401 NNTT ID 240 49. 235 3/820401 NNTT ID 241 50. 237 5/820401 NNTT ID 242 51. 269 27/725376 NNTT ID 073 52. 273 20/756228 NNTT ID 080 53. 278 1039/765270 NNTT ID 212 54. 722 Cadastral number 168667521 NNTT ID 038
State ID Area description (as at March 2024) Notes and Map Reference 55. 739 - Part 1/914827
The native title area for portion, 1/914827, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on this parcel of land.
NNTT ID 300 56. 740 - Part 1/914828
The native title area for portion, 1/914828, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on this parcel of land.
NNTT ID 301 57. 741 7307/1182485 NNTT ID 023
Essential Energy: Infrastructure (2/1/1992)
58. 746 7308/1182485 NNTT ID 024 59. 747 7309/1182485 NNTT ID 025
Essential Energy: Infrastructure (1/1/1995)
60. 748 7312/1182485 NNTT ID 028
Essential Energy: Infrastructure (1/1/1995)
61. 750 2/1/759057 NNTT ID 192
State ID Area description (as at March 2024) Notes and Map Reference 62. 759 7320/1182485 NNTT ID 036
Essential Energy: Infrastructure (1/1/1995)
63. 760 7306/1182485 NNTT ID 022 64. 761 7311/1182485
Parcel now comprises part of State ID 84.
NNTT ID 027
Essential Energy: Infrastructure (11/9/1995)
65. 762 7318/1182485 NNTT ID 034 66. 763 7319/1182485 NNTT ID 035
Part 1.3 (the national park estate in the non-exclusive native title area)
State ID Area description (as at March 2024) Notes and Map Reference 1. 44 Cadastral number 168553414 NNTT ID U14 2. 719 5579/768479 NNTT ID 236 3. 720 Cadastral number 103827457 NNTT ID U07 4. 721 Cadastral number 100203757 NNTT ID U04 5. 724 Cadastral number 103846063 NNTT ID U09 6. 726 Cadastral number 100181534 NNTT ID U02 7. 728 Cadastral numbers 168553413 (Part),
168553414 (Part)
NNTT ID U13
State ID Area description (as at March 2024) Notes and Map Reference 8. 732 Cadastral number 103506328 NNTT ID U05 9. 733 Cadastral number 105689288 NNTT ID U010 10. 737 Cadastral number 100181531 NNTT ID U01 11. 738 Cadastral number 103827455 NNTT ID U06 12. Unidentified Cadastral Number 100181551 NNTT ID U03
Part 1.4 (waters in the non-exclusive native title area)
Save for any waters forming part of a lot on a plan or cadastre listed in Schedule One (native title area) of this approved determination of native title (including by application of the ad medium filum aquae rule), all waters, rivers, creeks, streams and lakes to the extent they fall within the land and waters covered by the NSW Part A determination area in Part 1 of Schedule Three.
Part 1.5 (land or waters to which section 47A of the Native Title Act 1993
(Cth) applies)
Prior extinguishment has been disregarded pursuant to section 47A of the Native Title Act 1993 (Cth) in relation to all the land or waters described in the table below and depicted on the maps at Part 1.6 (maps of the native title area) to the approved determination of native title hatched in light orange to the extent they fall within the land and waters covered by the native title determination application.
State ID Area description (as at March 2024) Notes and Map Reference 1. 76 24/756228 NNTT ID 083
Land held by Tibooburra Local Aboriginal Land Council.
See also Schedule Five, Table 1(c).
2. 130 19/1/758976 NNTT ID 106
Land held by Tibooburra Local Aboriginal Land Council.
See also Schedule Five, Table 1(c).
3. 249 7/820405 NNTT ID 265
Land held by Tibooburra Local Aboriginal Land Council pursuant to Western Lands Lease number 14245.
See also Schedule Five, Table 1(c).
SCHEDULE TWO (EXTINGUISHED AREA)[2]
[2] The “as at date” for the dataset in which the parties have relied on for all parcels referred to
in the consent determination is March 2024.
The extinguished area comprises:
(a)the land or waters described in the respective tables in the following Parts:
(i)Part 2.1 (Crown land in which native title has been extinguished);
(ii)Part 2.2 (Public works); and
(iii)Part 2.3 (Freehold);
hatched in pink on the maps at Part 2.5 (maps of extinguished areas) of this Schedule Two to the extent they fall within the land and waters in the native title determination area;
(b)all dedicated roads within the land and waters in the native title determination area;
(c)any land or waters which would otherwise be within the native title area:
(i)on which there is or has been constructed or established valid public works (including any adjacent land or waters as described in section 251D of the Native Title Act 1993 (Cth)) which were constructed or established prior to 23 December 1996 or were commenced to be constructed or established on or before that date, including any land or waters upon which a public road is or was commenced to be constructed or established, on or before 23 December 1996;
(ii)on which there is or has been constructed or established public works, or on which public works were in the process of being constructed or established at the date of the determination, where:
(A)such public works were constructed or established after 23 December 1996, or commenced to be constructed or established on or after that date; and
(B)the requirements of s 24JA of the Native Title Act 1993 (Cth) are satisfied as to mean that s 24JB applies (or applied) to validate that public work.
(d)the beds of any watercourse within any part of the lands listed in Schedule One (native title area) or part thereof (including all shingle, gravel, sand-beds and alluvium), which by application of the ad medium filum aquae rule, is:
(i)part of a freehold estate; or
(ii)land specified in section 13.3(5)(a) of the Crown Land Management Act 2016 (NSW) which satisfies the conditions set out in section 13.3(5)(b) of the Crown Land Management Act 2016 (NSW).
Part 2.1 (Crown land in which native title has been extinguished)
ID Area description (as at March 2024) Note 1. 1 5568/768477 NNTT ID 225 2. 2 5571/768477 NNTT ID 228 3. 3 5578/768478 NNTT ID 235 4. 4 5569/768477 NNTT ID 226 5. 5 5572/768477 NNTT ID 229 6. 6 5577/768478 NNTT ID 234 7. 7 1111/762408 NNTT ID 203
Essential Energy: Infrastructure (1/1/1995)
8. 9 5575/768478 NNTT ID 232 9. 10 5574/768478 NNTT ID 231 10. 11 839/762120 NNTT ID 197 11. 12 5573/768477 NNTT ID 230 12. 13 1112/762404 NNTT ID 202
Essential Energy: Infrastructure (2/1/1994 and 1/1/1995)
13. 14 11//DP1248843 and
12//DP1248843
(comprising former 4798/769018)
NNTT ID’s 041 and 042 14. 15 1989/764118 NNTT ID 208 15. 17 - Part 3559/765911 NNTT ID 215 The non-exclusive native title area comprises the part of the land, subject to Reserve 72,200 for monument and public recreation (notified on 2 May 1947).
The remaining land within that portion is the extinguished area.
Essential Energy: Infrastructure (2/1/1994) 16. 21 3558/765910 NNTT ID 214
Essential Energy: Infrastructure (2/1/1992)
17. 22 3557/765909 NNTT ID 213
Essential Energy: Infrastructure (2/1/1992)
18. 23 2/1130157 NNTT ID 004
Essential Energy: Infrastructure (5/9/1995)
19. 24 25/1223458 including road casement (formerly 843/762124) NNTT ID 040 20. 25 842/762123 NNTT ID 199
Essential Energy: Infrastructure (2/1/1994 and 1/1/1995)
21. 26 841/762122 NNTT ID 198 22. 28 6755/822055 NNTT ID 286 23. 31 6757/822055 NNTT ID 288 24. 33 6753/822055 NNTT ID 284 25. 40 2/832569 NNTT ID 295
Essential Energy: Infrastructure (5/9/1995)
26. 41 4621/768083 NNTT ID 221
Essential Energy: Infrastructure (5/9/1995)
27. 42 4627/768087 NNTT ID 224 28. 43 4626/768087 NNTT ID 223
29. 45, 57 4800/769097 NNTT ID 237
Essential Energy: Infrastructure (2/1/1994)
30. 50 - Part 474/760131
The extinguished area comprises the public work and land necessary for or incidental to operation of the public work.
The remaining land is the non-exclusive native title area.
NNTT ID 195 31. 51 - Part 474/760130
The extinguished area comprises the public work and land necessary for or incidental to operation of the public work.
The remaining land is the non-exclusive native title area.
NNTT ID 194 32. 59 - Part 3941/914830
The native title area for portions, 3941/914830, 3942/914831 and
cadastral number 169511104 comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on these parcels of land.
NNTT ID 302
33. 59 - Part 3942/914831
The native title area for portions, 3941/914830, 3942/914831 and
cadastral number 169511104 comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the
operation of the public work situated on these parcels of land.
NNTT ID 303 34. 59 - Part Cadastral number 169511104
The native title area for portions, 3941/914830, 3942/914831 and
cadastral number 169511104 comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on these parcels of land.
NNTT ID U15 35. 61 - Part 1/914529
The native title area for portion, 1/914529, comprises the land situated outside of the footprint of the public work.
The extinguished area comprises the public work and the land necessary for or incidental to the operation of the public work situated on this parcel of land.
NNTT ID 299 36. 62 - Part 7305/1178848
Land comprising the public work, and land necessary for or incidental to the public work, is within Extinguished Area.
NNTT ID 013 37. 73 - Part 7313/1182485 (formerly 12/756228)
The extinguished area comprises the public work and land necessary
for or incidental to operation of the public work.
The remaining land is the non-exclusive native title area.
NNTT ID 029 38. 77 2909/765069 NNTT ID 211 39. 78 - Part 1/1066218
The extinguished area comprises the public work and land necessary for or incidental to operation of the public work.
The remaining land is the non-exclusive native title area.
NNTT ID 001
Essential Energy: Infrastructure (1/1/1995)
40. 80 22/756228 NNTT ID 082 40. 80 22/756228 NNTT ID 082 41. 82 21/756228 NNTT ID 081 42. 83 1/820402 NNTT ID 247
Essential Energy: Infrastructure (2/1/1992)
43. 86 – Part 7314/1182485
The non-exclusive native title area comprises all land within the parcel, except for Mt Stuart Boundary Road.
The extinguished area comprises Mt Stuart Boundary Road.
NNTT ID 030 44. 87 7315/1182485 (formerly 37/756228) NNTT ID 031
Essential Energy: Infrastructure (11/9/1995)
45. 88 7300/1131251 NNTT ID 005 46. 91 6505/769323 NNTT ID 238
Essential Energy: Infrastructure (2/1/1975)
47. 102 6823/47926 NNTT ID 054
Essential Energy: Infrastructure (2/1/1975)
48. 103 28/720962 NNTT ID 071
Essential Energy: Infrastructure (2/1/1985)
49. 104 26/720962 NNTT ID 070
Essential Energy: Infrastructure (2/1/1989)
50. 105 44/725379 NNTT ID 074
Essential Energy: Infrastructure (2/1/1974 and 2/1/1989)
51. 106 31/1/758976 NNTT ID 115
Essential Energy: Infrastructure (2/1/1974)
52. 107 1/1/758976 NNTT ID 097
Essential Energy: Infrastructure (2/1/1992)
53. 121 7326/1179054 (formerly 16/1/758976) NNTT ID 014
Essential Energy: Infrastructure (2/1/1992)
54. 127 22/1/758976 NNTT ID 109
Essential Energy: Infrastructure (2/1/1992)
55. 128 21/1/758976 NNTT ID 108
Essential Energy: Infrastructure (2/1/1992)
56. 129 20/1/758976 NNTT ID 107
Essential Energy: Infrastructure (2/1/1992)
57. 134 15/3/758976 NNTT ID 137
Essential Energy: Infrastructure (2/1/1992)
58. 135 16/3/758976 NNTT ID 138
Essential Energy: Infrastructure (2/1/1992)
59. 136 17/3/758976 NNTT ID 139
Essential Energy: Infrastructure (2/1/1992)
60. 148 5/3/758976 NNTT ID 127
Essential Energy: Infrastructure (2/1/1975)
61. 168 13/4/758976 NNTT ID 153
Essential Energy: Infrastructure (2/1/1966)
62. 171 10/4/758976 NNTT ID 150 63. 172 32/44245 NNTT ID 049
Essential Energy: Infrastructure (2/1/1993)
64. 173 33/44245 NNTT ID 050 65. 174 34/44245 NNTT ID 051 66. 175 35/44245 NNTT ID 052 67. 186 11/43581 NNTT ID 045 68. 188 12/43581 NNTT ID 046 69. 192 39/705024 NNTT ID 065
Essential Energy: Infrastructure (2/1/1984)
70. 193 40/705024 NNTT ID 066
Essential Energy: Infrastructure (2/1/1984)
71. 194 41/705024 NNTT ID 067
Essential Energy: Infrastructure (2/1/1984)
72. 195 42/705024 NNTT ID 068 73. 196 43/705024 NNTT ID 069 74. 199 11/2/758976 NNTT ID 118
Essential Energy: Infrastructure (2/1/1991)
75. 200 10/2/758976 NNTT ID 117 76. 204 21/2/758976 NNTT ID 120
Essential Energy: Infrastructure (2/1/1992)
77. 207 24/2/758976 NNTT ID 123 78. 208 1/5/758976 NNTT ID 156
Essential Energy: Infrastructure (2/1/1992)
79. 209 2/5/758976 NNTT ID 157 80. 223 22/5/758976 NNTT ID 175
Essential Energy: Infrastructure (2/1/1992)
81. 224 21/5/758976 NNTT ID 174
Essential Energy: Infrastructure (2/1/1992)
82. 238 6/820401 NNTT ID 244 83. 239 7/820401 NNTT ID 245 84. 240 8/820401 NNTT ID 246 85. 242 31/43581 NNTT ID 048
Essential Energy: Infrastructure (2/1/1981)
86. 243 1/820405 NNTT ID 259
Essential Energy: Infrastructure (2/1/1990)
87. 244 2/820405 NNTT ID 260 88. 245 3/820405 NNTT ID 261 89. 247 5/820405 NNTT ID 263
Essential Energy: Infrastructure (2/1/1990)
90. 248 6/820405 NNTT ID 264 91. 254 12/820405 NNTT ID 270
Essential Energy: Infrastructure (2/1/1990) Tibooburra Aboriginal
Corporation
92. 255 13/820405 NNTT ID 271
Essential Energy: Infrastructure (2/1/1990)
93. 256 14/820405 NNTT ID 272
Essential Energy: Infrastructure (2/1/1990)
94. 257 15/820405 NNTT ID 273 95. 271 6760/822084 NNTT ID 291 96. 272 6759/822084 NNTT ID 290 97. 274 1/1130157 NNTT ID 003
Essential Energy: Infrastructure (1/1/1994)
98. 731 Part of Silver City Highway (Formerly 46/1126917) 99. 735 6699/762525 NNTT ID 204
Essential Energy: Infrastructure (2/1/1994 and 11/9/1995)
100. 739 - Part 1/914827
The extinguished area comprises the public work and land necessary for or incidental to operation of the public work.
The remaining land is the non-exclusive
NNTT ID 300 native title area. 101. 740 - Part 1/914828 NNTT ID 301 102. 745 7310/1182485 NNTT ID 026
Essential Energy: Infrastructure (1/1/1997)
I also consider that the proposed consent determinations comply with s 94A of the NTA by setting out the details of each of the matters required to be described under s 225 of the Act.
First, I am satisfied having regard to the terms of each proposed determination, the submissions filed by the parties, and in relation to the NSW Part A Area the agreed facts between the Wongkumara applicant and the Attorney General of NSW, that there is probative material against which the Court can assess whether the matters set out in s 225 can be stated in the proposed determinations: see Agius v South Australia (No 6) [2018] FCA 358 at [68] (Mortimer J, as her Honour then was).
Second, in relation to the matters required to be described under s 225:
(a)the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)) are described:
(i)in the proposed determination for the Queensland Part A Area – in Order 5 and Schedule 1;
(ii)in the proposed determination for the NSW Part A Area - in Orders 11 and 12; and
(iii)in the proposed determination for the Queensland Part B Area;
(A)in relation to the native title to be held by the Wongkumara People - in Order 5 and Section A of Schedule 1; and
(B)in relation to the native title to be held by the Yandruwandha Yawarrawarrka People - in Order 8 and Section B of Schedule 1.
That is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15];
(b)the nature and extent of the native title rights and interests in relation to the Determination Areas (s 225(b)) is described:
(i)in the proposed determination for the Queensland Part A Area – in Orders 6 and 7, being the various exclusive and non-exclusive native title rights and interests described in Part 1 and Part 2 of Schedule 4, subject to Orders 8, 9 and 10;
(ii)in the proposed determination for the NSW Part A Area - in Orders 13 and 14, being the various exclusive and non-exclusive native title rights and interests described in Part 1.1, Part 1.2 and Part 1.3 of Schedule One, subject to Orders 15, 16 and 17; and
(iii)in the proposed determination for the Queensland Part B Area;
(A)in relation to the native title to be held by the Wongkumara People - the non-exclusive native title rights and interests described in Order 6, subject to Orders 10, 11 and 12; and
(B)in relation to the native title to be held by the Yandruwandha Yawarrawarrka People - the non-exclusive native title rights and interests described in in Order 9, subject to Orders 10, 11 and 12.
(c)the nature and extent of any other interests in relation to the Determination Areas (s 225(c)) is described:
(i)in the proposed determination for the Queensland Part A Area – in Order 11 and Schedule 2;
(ii)in the proposed determination for the NSW Part A Area – in Order 18 and Schedule Five; and
(iii)in the proposed determination for the Queensland Part B Area - in Order 13 and Schedule 2;
(d)the relationship between the native title rights and interests and the other interests (s 225(d)) is described:
(i)in the proposed determination for the Queensland Part A Area – in Order 12;
(ii)in the proposed determination for the NSW Part A Area -– in Order 19, subject to Orders 20, 21 and 22; and
(iii)in the proposed determination for the Queensland Part B Area – in Order 14;
(e)whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others (s 225(d)) is described:
(i)in the proposed determination for the Queensland Part A Area – in Order 6(a) in respect of the land described in Part 1 of Schedule 4, subject to Orders 8, 9 and 10;
(ii)in the proposed determination for the NSW Part A Area – in Order 13(a) in respect of the land described in Part 1.1 subject to Orders 15, 16 and 17; and
(iii)in the proposed determination for the Queensland Part B Area – proposed Order 11 does not confer exclusive possession, occupation, use and enjoyment on either the Wongkumara or the Yandruwandha Yawarrawarrka People; and
(f)in relation to the requirement in the preamble to s 225 to identify the “particular area” to which the determination relates, the three Determination Areas are described:
(i)in the proposed determination for the Queensland Part A Area – in Order 3 and Schedule 4 and depicted in the map attached to Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5;
(ii)in the proposed determination for the NSW Part A Area – in Order 6 and Schedule One and depicted in the maps at Part 1.6 of that Schedule, and also by:
(A)recognising the extinguishment of native title in the “extinguished area” described in Schedule Two and depicted on the maps at Part 2.5 of that Schedule; and
(B)excluding the lands and waters in Part 2 of Schedule Three (NSW Excluded Area) which is to be the subject of an agreement under s 47C (the contents of which have been agreed) and will be the subject of a later determination; and
(iii)in the proposed determination for the Queensland Part B Area in Order 3 and described in Schedule 4 and depicted in the map attached to Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.
In regard to the Queensland Part A and Part B Areas it is submitted that the State undertook research to determine the extent of any extinguishment in the proposed Determination Areas, including as a result of grants of tenure and extinguishment by public works. The State’s tenure analysis was circulated to the other parties and agreement was reached between the Wongkumara Applicant, the YY Applicant, the State and the relevant respondents regarding the identification of other interests, the effect of any extinguishment and the application of s 47B of the NTA within the proposed Determination Area. The areas identified in the proposed determinations include those areas which the parties have agreed are not subject to the Wongkumara Application or the YY Application on the basis that native title has been wholly extinguished in respect of them.
I should also note two particular matters in relation to the NSW Part A Area. First, the s 87A Agreement in relation to this Determination Area provides that to facilitate the resolution of the proceeding the s 87A Agreement was made in conjunction with an Indigenous Land Use Agreement, known as the “Kawalanyi Land Use Agreement ILUA”. The ILUA is between the Wongkumara Applicant, the Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 (being the registered native title body corporate which will hold the determined native title on trust); the Attorney General of New South Wales; the Minister administering the Crown Land Management Act 2016 (NSW); the Minister administering the National Parks and Wildlife Act 1974 (NSW); the Minister administering the Biosecurity Act 2015 (NSW); and the Chief Executive Officer of Local Land Services. The parties jointly submitted that the ILUA is an important part of the compromise between the parties and it provides for both immediate and long-term benefits for the Wongkumara People and has been prepared with significant input from the Wongkumara applicant.
Second, as noted above, in accordance with the s 87A Agreement in relation to the NSW Part A Area, the NSW Excluded Area is to be the subject of an agreement under s 47C of the NTA (the contents of which have been agreed), and the Wongkumara applicant and the Attorney General of NSW have agreed to execute a further agreement under s 87 of the NTA in respect of that area. Accordingly, the NSW Excluded Area is not part of the proposed determination for the NSW Part A Area. The parties’ joint submissions state that the s 47C agreement is an important part of the resolution of the proceedings. It covers a significant area (approximately 5,940 square km within the Sturt National Park) and the effect of the agreement will be that any extinguishment of native title rights and interests within the s 47C area will be disregarded, thus enabling the Wongkumara People to exercise native title rights and interests within that area.
The requisite standard of satisfaction
To decide whether it is appropriate to make the orders sought it is necessary to understand the requisite standard of satisfaction. The Court has expressed the requisite standard in numerous decisions which I recently summarised in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]-[37], as follows:
[33]The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is “appropriate” takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J.
[34]It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J.
[35]The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a “credible”, “rational”, “sufficient” or “cogent” basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]–[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.
[36]The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44].
[37]As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A:
In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court’s function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act’s emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.
The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].
Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State’s agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].
The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.
This approach is equally apposite when the agreement is made pursuant to s 87A rather than s 87: Austin at [37].
The material supporting the making of the consent determinations
The State parties have a duty to be satisfied that there is a “credible” or “cogent” basis for each of the proposed consent determinations: Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] (Jagot J). The credible evidence standard is one that requires significantly less than the evidence thought necessary to justify judicial determination under the civil standard: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [38] (North J), citing Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 (Emmett J); see also Watson v Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J). The Court must consider the material before it for the limited purpose of being satisfied that the State parties are acting rationally and in good faith in agreeing to the proposed consent determinations: Munn at [29]-[30].
The circumstances and procedural history of the Wongkumara Application and YY Application mean that these determinations differ from many other proposed consent determinations pursuant to s 87 or s 87A, because here both the Court and the State parties have had the benefit of considering the substantial evidence adduced in the Separate Question hearing. As a result, there is an abundance of material to satisfy the Court that the State parties acted rationally and in good faith in entering into the relevant s 87A Agreements and agreeing to the relevant proposed consent determinations.
Because these reasons are focused on the Wongkumara Application I have focussed on the material in relation to the Wongkumara People. But in relation to the Queensland Part B Area there is also material which shows that the State of Queensland has a rational basis for agreeing to the proposed consent determination recognising the native title rights and interests of the Yandruwandha Yawarrawarrka People in that area. I have summarised some of that material in separate reasons for the YY Application.
The lay evidence
In the hearing of the lay evidence between 9 and 27 May 2022 twenty Wongkumara people gave evidence on country. The Court viewed numerous sites of significance and heard evidence from the Wongkumara lay witnesses:
(a)in and proximate to Tibooburra, including the old Aboriginal camp at Thompsons Creek, the Aboriginal burial ground, the Three Brothers, and the White Lady;
(b)sites en route to Durham Downs, including Karmona rock site, the remains of old gunyahs; a tool making site, and a women’s site;
(c)at Durham Downs Station, including the Aboriginal burial ground and old camp, the markers and path to the corroboree ground; the corroboree ground, ochres and waterhole; and the Standing Stones; and
(d)other sites, including the old Innamincka campground, Nappa Merrie and sites including the Sandhill and Waterhole, Coonaberry caves and the Stone Goanna.
The Wongkumara lay witnesses gave evidence of matters including the Wongkumara People being a bounded entity descended from their apical ancestors, their descent from one or more of the Wongkumara apical ancestors, their ongoing observation of traditional laws and customs, the spiritual and mythological significance of sites in the claim area, the manner in which they transmit their knowledge to the next generations of Wongkumara people, the Wongkumara group’s identity; the importance of the Wongkumara language to their group identity; their knowledge of the Wongkumara claim area, and the demarcation of Wongkumara country from the country of other First Nations groups. They sought to differentiate the Wongkumara claim area from the area in which the neighbouring Yandruwandha group have traditional rights and interests.
Wongkumara people, including members of the Ebsworth, Dixon, McGlashan, Knight, McKellar, Monaghan, Barker, Johnson/Edwards and Hodge families provided affidavits and gave evidence on behalf of the Wongkumara People regarding the manner in which their families have maintained their knowledge of the claim area, the places of birth of their immediate antecedents and their laws and customs, how their knowledge of and connection to the claim area had been maintained despite the forced removal of Wongkumara people from their traditional camping ground at Tibooburra in 1938 to the government run Aboriginal settlement at Brewarrina and elsewhere.
Their evidence was that the claimants, their families and their forebears occupied and found work within the Wongkumara claim area following European colonisation. They said that they maintained their connection with Wongkumara country and thereby overcame their removal from Tibooburra in 1938 because some pastoral workers continued to live and work on Wongkumara country, and when they could they arranged for their families to visit and taught them about their country. Other Wongkumara people gradually managed to leave Brewarrina and other government settlements to which they had been taken and they settled in places like Bourke and Dubbo from where they could travel to Wongkumara country as work opportunities and recreation allowed, including to work in the pastoral industry and more latterly, in the mining industry.
The Wongkumara witnesses ranged in ages from their 80s to their 20s, and they each recounted their connection to the Determination Areas including through participation in the various claims for recognition of their native title filed by Wongkumara people commencing in 1996 and on foot continuously since then to the present proceeding. There is a rational basis for the State parties to see their evidence as credible.
During the on country hearing seven Yandruwandha Yawarrawarrka lay witnesses gave evidence in relation to the Queensland Part B area. The Court viewed numerous sites of significance and heard evidence from the Yandruwandha Yawarrawarrka witnesses including with respect to their knowledge of Yandruwandha Yawarrawarrka country, their descent from one or more of the Yandruwandha Yawarrawarrka apical ancestors, their ongoing observation of traditional laws and customs, the spiritual and mythological significance of sites in the Yandruwandha Yawarrawarrka claim area and the manner in which they transmit their knowledge to the next generations of Yandruwandha Yawarrawarrka people. They sought to differentiate the Yandruwandha Yawarrawarrka claim area from the Queensland Part A Area in which the Wongkumara asserted traditional rights and interests. There is a rational basis for the State parties to see their evidence as credible.
On 25 October 2022, at the request of the parties, the Court expressed a preliminary view regarding the evidence of the lay witnesses. The Court expressed a preliminary preference for the evidence of the Wongkumara lay witnesses, in particular the evidence of Clancy McKellar which was supported by some other Wongkumara lay witnesses, to that of the Yandruwandha Yawarrawarrka lay witnesses. The thrust of Mr McKellar’s evidence in relation to traditional rights and interests in the Queensland Part B Area was that it is “shared” country between the Wongkumara and the Yandruwandha Yawarrawarrka.
It was rational for the State parties to take the lay evidence into account in deciding to consent to determinations that recognise that:
(a)the Wongkumara People have native title rights and interests in the Queensland Part A and NSW Part A Areas; and
(b)both the Wongkumara People and the Yandruwandha Yawarrawarrka have native title rights and interests in the Queensland Part B Area.
The expert evidence
In 2022 and early 2023 the parties filed the expert reports to which I have referred.
In the Experts’ Conference Report filed 10 February 2023 and in their oral testimony in early March 2023 there was no disagreement between the experts that the Wongkumara were part of a wider cultural bloc described by Professor Elkin as the “Lakes Group”, which extended from the Eyre Peninsula in South Australia to south- west Queensland and the western reaches of north-western New South Wales. There was no disagreement between the experts that the Wongkumara People held native title rights and interests in the Queensland and NSW Part A Areas. The essential difference between the experts was that four of them (Professor Trigger, Dr Pannell, Dr Sackett, Dr Sneddon) considered that both the Wongkumara People and the Yandruwandha People held native title rights and interests in the Queensland Part B Area, whereas Mr McCaul considered that only the Yandruwandha Yawarrawarrka People did so. Professor Trigger, Dr Pannell, Dr Sneddon and Dr Sackett agreed that:
(a)The Lakes Group is the relevant pre-sovereignty society for the purposes of the Queensland and NSW Part A areas and the Queensland Part B area (comprising the entirety of the Wongkumara claim area).
(b)The Queensland and NSW Part A areas and the Queensland Part B area fall within the geographical extent of the society.
(c)At sovereignty, persons acquired rights and interests in land through patrifilial and matrifilial spiritual connections to sites and tracts within the Application Area. Rights acquired through patrifiliation were transmissible through successive generations of men. Rights acquired through matrifiliation, being the rights inherited by a woman’s children from her, were normally not transmissible beyond her children as the first descending generation. The system of traditional land tenure allowed for exceptions.
(d)Since sovereignty:
(i)succeeding generations of the Wongkumara People have continued to acknowledge and observe traditional laws and customs with significant permissible adaptations and changes; and
(ii)while there has been loss of complexity, for example in relation to the moiety system and male initiation, and other elements have perforce been simplified, including knowledge of mura tracks and sites, rights in country continue to be inherited by succeeding generations on the basis of cognatic descent (being from either male or female forebears).
(e)Key structural elements in the relationship to country have been reproduced over the generations as evident from the Wongkumara claimants’ beliefs about the spiritual properties in the land and their connections to that spirituality. Spiritual beliefs about the landscape include the mura tracks of the Rainbow Snake forming the Coopers Creek and its tributaries, the Bronze-Winged Pigeon track, the Course of the Three Brothers with a pivotal site in Tibooburra, the White Lady site at Mt Poole station, the Pelican mura track and many others. As well, there is a shared belief in the need to care for country which manifests in maintaining the structural integrity of sites in accordance with traditional laws and customs and also transmitting knowledge of the mythological values of the Wongkumara Claim area to younger Wongkumara people and others involved in activities on that country.
(f)That part of the regional Lakes Groups society which pertains to the Queensland and NSW Part A Areas includes the persons who are the Wongkumara apical ancestors and their descendants and in the Queensland Part B area also includes at least some Yandruwandha apical ancestors and their descendants.
(g)The Wongkumara claimants, on the basis of the principle of ancestral connections to country as identified for the Lakes Group generally by Elkin, are the relevant holders of rights and interests in Part A and Part B. At least some Yandruwandha apical ancestors and their descendants also hold rights and interests in Part B.
(h)From the data available to the experts, there are no other persons in the Lakes Group region with traditional rights and interests in Part A and Part B. While laws and customs are broadly acknowledged and observed in common across the regional Lakes Group society, it is only persons with ancestral connections to Part A and Part B who inherit traditional rights and interests from their forebears.
(i)In relation to the Wongkumara claim area, the extant rights and interests are those that facilitate the possession, occupation, use and enjoyment of the claim area to the fullest extent in accordance with the traditional law and customs of the Wongkumara claim group. This includes the right to speak for and make decisions about the country.
(j)In relation to Yandruwandha Yawarrawarrka claim area, the extant rights and interests are those that facilitate the possession, occupation, use and enjoyment of the claim area to the fullest extent in accordance with the traditional law and customs of the Yandruwandha Yawarrawarrka claim group. This includes the right to speak for and make decisions about the country. These rights and interests are held at least by those Yandruwandha Yawarrawarrka persons identified in #3 below.
(k)The Wongkumara claimants, on the basis of, inter alia, their ancestral connections to country as identified for the Lakes Group generally by Elkin, hold rights and interests in the Queensland Part A and NSW Part A Areas.
(l)From the data and records available, there are no other persons in the Lakes Group region with traditional rights and interests in the Queensland portion.
(m)That traditional Aboriginal societies were not sharply bounded but characterised by zones of transition.
In relation to the Queensland Part B Area, Professor Trigger, Dr Pannell, Dr Sackett and Dr Sneddon opined that that area lay within the geographical extent of the Lakes Group society and that the Wongkumara People had traditional rights and interests in that area for the same reasons as they did in relation to the Queensland and NSW Part A Areas, but that some Yandruwandha apical ancestors and their descendants have traditional rights and interests in that area as well. It may be recalled that that was also the thrust of Mr McKellar’s evidence in relation to the Queensland Part B Area. Mr McCaul took a different view. He opined that the Queensland Part B Area is Yandruwandha Yawarrawarrka country.
It was rational for the State parties to take the expert evidence into account in deciding to consent to determinations that recognise that:
(a)the Wongkumara People have native title rights and interests in the Queensland Part A and NSW Part A Areas; and
(b)both the Wongkumara People and the Yandruwandha Yawarrawarrka have separate and distinct native title rights and interests in the Queensland Part B Area.
Exercise of the discretion under s 87A
The State parties submitted that on the basis of the totality of the evidence filed and heard, and following the referral to mediation on 7 March 2023 and the subsequent negotiations case managed by Judicial Registrar Grant, they came to accept that there is a credible basis for consent determinations of native title rights and interests in the Queensland Part A and Part B Areas and the NSW Part A Area leading to the orders now proposed to the Court and the vacation of the trial.
The State parties have been legally represented throughout both the Wongkumara and the YY Applications, they fully participated in the proceedings including by cross-examining the lay and expert witnesses, they adduced their own expert evidence, and played an active role in the negotiation of the proposed consent determinations. Their active participation in the proceedings and the views they expressed in their written submissions in relation to the evidence before the Court show that they have taken a “real interest” in the proceedings in the interests of the community generally and have given careful consideration to the evidence and other relevant matters.
There is probative material before the Court from which I am satisfied that there is a credible basis for the State parties’ decision to consent to the proposed determinations of native title, and that their decision to do so was reached rationally and in good faith. I am accordingly satisfied that it is appropriate to make the proposed consent determinations of native title in relation to the Queensland Part A Area, the NSW Part A Area and the Queensland Part B Area without continuing the hearing of these proceedings (s 87A(4)): see King v South Australia [2011] FCA 1386; 285 ALR 454 at [21]-[23] (Keane CJ), referring to Nelson v Northern Territory [2010] 190 FCR 344; 190 FCR 344 at [12]-[13] (Reeves J).
I have made the orders in the terms proposed by the parties.
NOMINATION OF A PRESCRIBED BODY CORPORATE
Where the Court proposes to make a determination that native title rights and interests exist, under s 56(1) of the NTA the Court must also make a determination as to whether those rights and interests are to be held on trust and if so, by whom.
In his affidavit Mr Neumann deposed as to a meeting of the Wongkumara native title claim group on 17 April 2024 in Dubbo, at which he was present, at which a resolution was passed nominating the Wangkumarra Kawalanyi Aboriginal Corporation ICN 7384 (WKAC), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), to hold the determined Wongkumara native title on trust, and to be the Registered Native Title Body Corporate for the Wongkumara People who hold native title rights and interests in the Queensland Part A, NSW Part A, Queensland Part B, and proposed NSW Part B (or s 47C) Areas.
He further deposed that at the meeting those Wongkumara persons present who are members of the WKAC passed a resolution that the WKAC accept the nomination to hold the determined Wongkumara native title on trust, and to be the Registered Native Title Body Corporate for the Wongkumara People who hold native title rights and interests in the Queensland Part A, NSW Part A, Queensland Part B, and proposed NSW Part B (or s 47C) Areas. Mr Neumann exhibited a copy of a resolution of WKAC dated 17 April 2024 signed by two directors, Clancy McKellar and Renae McKellar.
In the reasons which focus on the YY Application, I have set out the evidence which shows that a meeting of the Yandruwandha Yawarrawarrka native title holders in Brisbane on 24 November 2023 resolved to nominate Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) RNTBC (ICN 3840) (YYTLOAC), incorporated under the CATSI Act, to be the Prescribed Body Corporate to hold any determined native title of the Yandruwandha Yawarrawarrka People in the Queensland Part B Area, as agent of the proposed native title holders rather than as a trustee, and to require the YYTLOAC to consent to the nomination within five days of a request from the Principal Legal Officer of South Australia Native Title Services Limited.
The draft determination in relation to the Queensland Part A Area seeks a determination that:
(a)the native title of the Wongkumara People is held on trust for them; and
(b)WKAC is to:
(i)be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA; and
(ii)perform the functions set out in s 57(1) of the NTA after becoming a registered native title body corporate.
The draft determination in relation to the NSW Part A Area seeks a determination that upon the determination of native title taking effect WKAC is to hold the determined native title in trust for the common law holders pursuant to s 56(3) of the NTA; and is to:
(a)be the prescribed body corporate for the purpose of s 57(1) of the NTA; and
(b)perform the functions set out in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (NT PBC Regulations).
The proposed consent determination in relation to the Queensland Part B Area seeks orders that:
(a)the native title of the Wongkumara People is held on trust for them by WKAC, which is to be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA and to perform the functions mentioned in s 57(1) of the NTA and the NT PBC Regulations; and
(b)the native title of the Yandruwandha Yawarrawarrka People is not held on trust. The YYTLOAC is to:
(i)be the prescribed body corporate for the purpose of ss 57(2) of the NTA; and
(ii)perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate.
It is appropriate to make the orders appointing WKAC and YYTLOAC to undertake the roles and perform the functions specified in the draft determinations.
CONCLUSION
For these reasons I have made each of the consent determinations as proposed by the parties.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 3 July 2024
ANNEXURE 1
ANNEXURE 2
ANNEXURE 3
ANNEXURE 4
SCHEDULE OF PARTIES
QUD 851 of 2018 Applicants
Second Applicant
IONA DAWN SMITH
Third Applicant
ERNEST (HOPE) EBSWORTH
Fourth Applicant
ROSEMARY (ROSE) ANNE WILSON
Fifth Applicant:
MARGARET COLLINS
Sixth Applicant:
CHARLENE LOUISE KNIGHT
Seventh Applicant:
ARCHIE ALFRED EBSWORTH
Eighth Applicant:
DONALD JAMES DIXON (DECEASED)
Ninth Applicant:
LORETTA MCKELLAR (DECEASED)
Tenth Applicant:
NORMAN JOHN HODGE
Eleventh Applicant:
JACQUELINE ELIZABETH HILL
Respondents
Second Respondent
AIRSERVICES AUSTRALIA ABN 59 698 720 886
Third Respondent
BARCOO SHIRE COUNCIL
Fourth Respondent
BULLOO SHIRE COUNCIL
Fifth Respondent
ATTORNEY GENERAL FOR NEW SOUTH WALES
Sixth Respondent
QUILPIE SHIRE COUNCIL
Seventh Respondent
NSW ABORIGINAL LAND COUNCIL
Ninth Respondent
TIBOOBURRA ABORIGINAL LAND COUNCIL
Tenth Respondent
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
Eleventh Respondent
ESSENTIAL ENERGY ABN 37 428 185 226
Thirteenth Respondent
TELSTRA CORPORATION LIMITED ACN 051 775 556
Fourteenth Respondent
ALLIANCE PETROLEUM AUSTRALIA PTY LTD ABN 60 004 559 951
Sixteenth Respondent
BASIN OIL PTY LTD ABN 30 001 152 049
Twentieth Respondent
DELHI PETROLEUM PTY LTD ABN 65 009 815 632
Twenty-Second Respondent
MAWSON PETROLEUM PTY LTD ABN 65 009 815 632
Twenty-Third Respondent
REEF OIL PTY LTD ABN 70 000 646 800
Twenty-Fourth Respondent
SANTOS (BOL) PTY LTD ABN 35 000 670 575
Twenty-Fifth Respondent
SANTOS (NARNL COOPER) PTY LTD ABN 75 004 761 255
Twenty-Sixth Respondent
SANTOS AUSTRALIAN HYDROCARBONS PTY LTD ABN 83 010 850 487
Twenty-Seventh Respondent
SANTOS LIMITED ABN 80 007 550 923
Twenty-Eighth Respondent
SANTOS PETROLEUM PTY LTD ABN 95 000 146 369
Twenty-Ninth Respondent
SANTOS QNT PTY LTD ABN 33 083 077 196
Thirty-First Respondent
VAMGAS PTY LTD ABN 76 006 245 110
Thirty-Fifth Respondent
WILLIAM JOHN CALDWELL
Thirty-Seventh Respondent
GEORGINA PASTORAL COMPANY LIMITED ACN 003 963 862
Thirty-Eighth Respondent
STUART ALEXANDER MACKENZIE
Thirty-Ninth Respondent
JILL A PEGLER
Fortieth Respondent
ROSS M PEGLER
Forty-Third Respondent
AARON CHARLES PATERSON
Forty-Fourth Respondent
ROBERT DARREN SINGLETON
Forty-Fifth Respondent
AMPLITEL PTY LTD AS TRUSTEE FOR THE TOWERS BUSINESS OPERATING TRUST ABN 75 357 171 746
QUD 133 of 2021 Applicants
Second Applicant
ROBERT DARREN SINGLETON
Respondents
Second Respondent
BULLOO SHIRE COUNCIL
Third Respondent
BARCOO SHIRE COUNCIL
Fourth Respondent
ERNEST HOPE EBSWORTH
Fifth Respondent
NORMAN JOHN HODGE
Sixth Respondent
TELSTRA CORPORATION LIMITED (ABN 33 051 775 556)
Seventh Respondent
NAPPA MERRIE HOLDINGS PTY LTD AS TRUSTEE
Eighth Respondent
VINTAGE ENERGY LTD ABN 56 609 200 580
Ninth Respondent
APA (SWQP) PTY LIMITED ABN 67 066 656 219
Tenth Respondent
EAST AUSTRALIAN PIPELINE LIMITED ABN 33 064 629 009
Eleventh Respondent
GORODOK PTY LTD ABN 30 057 156 751
Twelfth Respondent
ALLIANCE PETROLEUM AUSTRALIA PTY LTD ABN 60 004 559 951
Thirteenth Respondent
BASIN OIL PTY LTD ABN 30 001 152 049
Fourteenth Respondent
BRIDGE OIL DEVELOPMENTS PTY LTD ABN 30 001 152 049
Fifteenth Respondent
DELHI PETROLEUM PTY LTD ABN 65 007 854 686
Sixteenth Respondent
MAWSON PETROLEUM PTY LTD ABN 65 009 815 632
Seventeenth Respondent
REEF OIL PTY LTD ABN 70 000 646 800
Eighteenth Respondent
SANTOS (BOL) PTY LTD ABN 35 000 670 575
Nineteenth Respondent
SANTOS (NARNL COOPER) PTY LTD ABN 75 004 761 255
Twentieth Respondent
SANTOS AUSTRALIAN HYDROCARBONS PTY LTD ABN 83 010 850 487
Twenty-First Respondent
SANTOS LIMITED ABN 80 007 550 923
Twenty-Second Respondent
SANTOS PETROLEUM PTY LTD ABN 95 000 146 369
Twenty-Third Respondent
SANTOS QNT PTY LTD ABN 33 083 077 196
Twenty-Fourth Respondent
VAMGAS PTY LTD ABN 76 006 245 110
Twenty-Fifth Respondent
ARRABURY PASTORAL COMPANY PTY LTD ACN 009 658 851
Twenty-Sixth Respondent
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
3