FEDERAL COURT OF AUSTRALIA
Dallachy on behalf of the Barada Kabalbara and Yetimarala People #1 v State of Queensland (Consent Determination) [2024] FCA 1391
File numbers: QUD 13 of 2019 Judgment of: SARAH C DERRINGTON J Date of judgment: 6 December 2024 Catchwords: NATIVE TITLE – consent determination – requirements under s 87 of the Native Title Act 1993 (Cth) – agreement of all parties – determination of native title by consent Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 32-1(1)(c)
Native Title Act 1993 (Cth) ss 13, 23B, 23C, 24IB, 24JA, 47, 47A, 47B, 47C, 55, 56, 57, 61, 61A, 66, 67, 87, 94A, 190A, 212, 223, 225, 251D, 253
Native Title (Queensland) Act 1993 (Qld) ss 18, 20, 21)
Cases cited: Budby on behalf of theBarada Barna People v Native Title Registrar [2014] FCA 801
Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 52 Date of last submissions: 3 October 2024 Date of hearing: 6 December 2024 Solicitor for the Applicant Ms Z Harmaniakova and Sidonie Berke of Queensland South Native Title Services Solicitor for the First Respondent: Ms J Patterson of Crown Law ORDERS
QUD 13 of 2019 BETWEEN: SAM DALLACHY, ELIZABETH DOYLE, JUANITA MASON, SKYE MULLER, NORMAN ROSS, DEBORAH SANTO, VANESSA SAUNDERS, MICHAEL SMITH, CLAUDINE WALSH, AND DAVINA TILBEROO SNR ON BEHALF OF THE BARADA KABALBARA YETIMARALA PEOPLE (and others named in the Schedule)
Applicant
AND: STATE OF QUEENSLAND
First Respondent
CENTRAL HIGHLANDS REGIONAL COUNCIL
Second Respondent
ISAAC REGIONAL COUNCIL (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
6 DECEMBER 2024
THE COURT NOTES THAT:
A.The agreement of the parties to the Determination is subject to an application to register the proposed Bulgan Tara Yanal Aboriginal Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) having been made, before the date of this Determination.
B.Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park areas within the External Boundary will be addressed after the matter has proceeded to determination.
C.The Barada Kabalbara Yetimarala People (being the proposed Native Title…
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- Case
- [2024] FCA 1391
- Decision Date
CaseChat Overview and Summary
The Court found that the BKY People were indeed the native title holders for the specified area, based on their ancestral connections and ongoing practices. The Court acknowledged the BKY People's cultural and spiritual ties to the land, their historical presence, and the transmission of their rights through generations. The Court also determined the specific rights of the BKY People, including their rights to possess, occupy, and use the land, as well as their rights to access natural resources and conduct cultural practices. The Court further clarified that these rights were subject to existing laws and interests, such as mining leases and public access rights.
The Court's decision recognised the BKY People's native title and outlined the specific rights and limitations associated with it. The Court also appointed a body corporate to manage the native title rights on behalf of the BKY People. The determination area was defined, and the coexistence of native title rights with other interests was addressed, ensuring that the BKY People's rights were protected while allowing for the continuation of other lawful activities in the area.
Orders
Orders of the court
1. Subject to Order 2, there be a determination of native title in the terms set out in orders 5-15 and a determination of whether or not native title is held in trust in the terms set out in orders 16 and 17 below (the Determination).
2. Order 1, and the orders to which it refers, take effect immediately upon the last of the following events:
(a) when the proposed Bulgan Tara Yanal Aboriginal Corporation is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);
(b) when the Applicant has filed and served:
(i) a notice stating that the Bulgan Tara Yanal Aboriginal Corporation has been registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);
(ii) a notice specifying the ICN given in the certificate issued under s 32-1(1)(c) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) for the proposed corporation;
(iii) a written consent of the Bulgan Tara Yanal Aboriginal Corporation under s 56(2) of the Native Title Act 1993 (Cth).
3. If Order 1 has not taken effect by 1 March 2025, the matter is to be listed for further directions.
4. Each party to the proceedings is to bear its own costs.
BY CONSENT, THE COURT DETERMINES THAT:
5. The determination area is the land and waters described in Schedule 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.
6. Native title exists in the Determination Area.
7. The native title is held by the Barada Kabalbara Yetimarala People described in Schedule 1 (the Native Title Holders).
8. Subject to orders 10, 11 and 12 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 take the Water of the area for personal, domestic and non-commercial communal purposes.
9. Subject to orders 10, 11 and 12 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) camp on the area and for that purpose, erect temporary shelters on the area;
(c) take Natural Resources from the land and waters of the area for any purpose;
(d) use Natural Resources of the land and waters of the area that are not taken, for any purpose;
(e) take the Water of the area for personal, domestic and non-commercial communal purposes;
(f) bury Native Title Holders within the area;
(g) 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 physical harm;
(h) teach on the area the physical and spiritual attributes of the area;
(i) hold meetings on the area; and
(j) light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purposes of hunting or clearing vegetation.
10. 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.
11. The native title rights and interests referred to in orders 8(b) and 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
12. 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).
13. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2.
14. The relationship between the native title rights and interests described in orders 8 and 9 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
15. 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 the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Local Government Act” has the 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” includes:
(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,
taken or used by the Native Title Holders in accordance with their traditional laws and customs,
(c) but does not include:
(i) Animals that are the private personal property of any person;
(ii) minerals as defined in the Mineral Resources Act 1989 (Qld); or
(iii) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (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);
"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; and
(d) tidal water;
“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:
16. The native title is held in trust.
17. Bulgan Tara Yanal Aboriginal Corporation, 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
LIST OF SCHEDULES
Schedule 1 – Native Title Holders
Schedule 2 – Other Interests in the Determination Area
Schedule 3 – External Boundary
Schedule 4 – Description of Determination Area
Schedule 5 – Areas Not Forming Part of the Determination Area
Schedule 6 – Map of Determination Area
Schedule 1 – Native Title Holders
(1) The native title holders are the Barada Kabalbara Yetimarala People. The Barada Kabalbara Yetimarala People are the descendants (including through adoption or raising up) of one or more of the following people:
(a) Barada woman (spouse of Johnny and Charlie Budby), who her descendants refer to as Kitty;
(b) Lucy and/or Jimmy Barber;
(c) Kitty (aka Kitty Eaglehawk);
(d) Yatton Boney;
(e) Maggie (mother of Jack Mack and Gypsy Tyson); and
(f) King Boco.
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 the holders of tenements and permits granted pursuant to the Mineral Resources Act 1989 (Qld) including:
(a) exploration permit for coal EPC 1139; and
(b) mining lease ML 1831.
(2) The rights and interests of Ross Olive as the holder of the following special lease, issued pursuant to the Land Act 1962 (Qld) and the Forestry Act 1959 (Qld):
(a) Special Lease for Primary Industry (Grazing) No 701416846, over Lot 3 on LI807533 being strata title lease within the boundary of Lot 65 on FTY1503.
(3) The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their successors in title:
(a) as the owners or operators 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.
(4) The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:
(a) as the owner and operator of any Works 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 Works in the Determination Area existing or entered into before the date these orders are made; and
(c) to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this clause.
(5) The rights and interests of Rockhampton Regional Council, Central Highlands Regional Council, Isaac Regional Council, Livingstone Shire Council and Woorabinda Aboriginal Shire Council (Councils):
(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 within their respective Local Government Area;
(b) as the:
(i) lessor 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) grantor 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) holder of any estate or interest in land, including as trustee of any Reserves, under access agreements and easements that exist in the Determination Area;
(c) as the owner and operator 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 any:
(i) gravel pits operated by Councils;
(ii) undedicated but constructed roads except for those not operated by Councils;
(iii) water pipelines and water supply infrastructure;
(iv) drainage facilities;
(v) cemetery and cemetery related facilities;
(vi) watering point facilities;
(vii) recreational facilities;
(viii) transport facilities; and
(ix) community facilities; and
(d) to enter the land for the purposes described in paragraphs 5(a), 5(b) or 5(c) above by their employees, agents or contractors to:
(i) exercise any of the rights and interests referred to in this paragraph 5;
(ii) use, operate, inspect, maintain, replace, restore, and repair the infrastructure, facilities and other improvements referred to in paragraph 5(c) above; and
(iii) undertake operational activities in their capacity as local governments such as feral animal control, erosion control, waste management and fire management.
(6) The rights and interests of the State of Queensland, Rockhampton Regional Council, Central Highlands Regional Council, Isaac Regional Council, Livingstone Shire Council and Woorabinda Aboriginal Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.
(7) The rights and interests 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.
(8) 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 Aboriginal Land Act 1991 (Qld);
(b) the Fisheries Act 1994 (Qld);
(c) the Land Act 1994 (Qld);
(d) the Nature Conservation Act 1992 (Qld);
(e) the Forestry Act 1959 (Qld);
(f) the Water Act 2000 (Qld);
(g) the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld);
(h) the Mineral Resources Act 1989 (Qld);
(i) the Planning Act 2016 (Qld);
(j) the Transport Infrastructure Act 1994 (Qld); and
(k) the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).
(9) The rights and interests of members of the public arising under the common law, including but not limited to the following:
(a) any subsisting public right to fish; and
(b) the public right to navigate.
(10) So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (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; and
(d) areas that were public places at the end of 31 December 1993.
(11) Any other rights and interests:
(a) held by the State of Queensland or Commonwealth of Australia; or
(b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.
Schedule 3 – External Boundary
The area of land and waters commencing:
at a point on the centreline of Deep Creek at Latitude 22.648868° South and extending generally southerly along the centreline of that creek to Latitude 22.653981° South; then generally south-easterly passing through the following coordinate points.
Longitude East
Latitude South
149.675294
22.655683
149.679702
22.659262
149.681907
22.664493
149.682458
22.668623
149.696785
22.691749
149.710286
22.715427
149.715797
22.722585
149.725716
22.745987
149.734257
22.764433
149.740870
22.778474
149.743786
22.786444
149.745278
22.793342
149.750513
22.808760
149.753820
22.820323
149.757677
22.832988
149.759330
22.842073
149.763463
22.851984
149.765943
22.858867
149.768423
22.871807
149.770357
22.881902
149.775862
22.910627
149.778342
22.915307
149.783302
22.928523
149.786057
22.932928
149.789363
22.936507
149.791016
22.939811
149.791016
22.945317
149.793483
22.950570
149.793221
22.956330
149.794598
22.960735
149.799558
22.966241
149.802853
22.971491
149.805334
22.976720
149.806242
22.978019
149.809752
22.983036
149.826894
23.013645
149.835348
23.028724
149.837505
23.032571
149.843556
23.043364
149.844603
23.045232
Then south-easterly to the centreline of Ten Mile Creek at Longitude 149.862628° East, Latitude 23.071708° South; then generally south-westerly generally westerly and generally south-westerly along the centreline of that creek to an unnamed tributary at Longitude 149.740323 East, Latitude 23.112651 South; then generally south-westerly along that tributary to its headwaters at Longitude 149.722372° East, Latitude 23.145727° South; then south-westerly to a further unnamed tributary at Longitude 149.719945° East, Latitude 23.150827° South; then generally easterly, generally southerly and generally south-easterly along the centreline of that tributary and the centreline of Melaleuca Creek to its intersection with the Fitzroy River; then generally southerly, generally north westerly and generally south westerly along centrelines of that river and the Mackenzie River to its intersection with the northern boundary of the Lumburra Bimbi Pty Ltd Cultural Heritage Body Area at Latitude 23.128176° South; then southerly and north-westerly along the northern boundary of that cultural heritage body area passing through Longitude 148.977465° East, Latitude 23.130550° South, to intersect the eastern boundary of the Nogoa River Drainage Sub-Basin at Latitude 22.957063° South; then generally north westerly along the eastern boundary of that drainage sub-basin to Latitude 22.777609° South; then generally north easterly passing through the following coordinate points.
Longitude
East
Latitude
South
148.153145
22.771715
148.160946
22.764387
Then north-easterly to the headwaters of Scott Creek at Longitude 148.172445° East, Latitude 22.756611° South and generally north-easterly and generally easterly along the centreline of that creek to longitude 148.275325°, a point on the external boundary of QUD 380/2008 Barada Barna People Determination Area; then generally southerly, generally easterly, generally north-easterly and generally south easterly along the external boundary of that determination to the eastern boundary of Isaac River Drainage Sub Basin at Latitude 22.376116° South, further described as:
Generally southerly, generally easterly and generally north-easterly passing through the following coordinate points.
Longitude East
Latitude South
148.278218
22.720751
148.278638
22.765907
148.290790
22.780471
148.319278
22.848854
148.325274
22.879887
148.338207
22.907929
148.377532
22.903505
148.435588
22.897696
148.470689
22.893158
148.509535
22.887628
148.539859
22.881405
148.576541
22.872326
148.609824
22.865651
148.656609
22.855084
148.683799
22.853626
148.706230
22.845623
148.730928
22.837430
148.752192
22.828478
148.773534
22.820693
148.776674
22.818899
148.786793
22.818786
148.795732
22.825136
148.800745
22.821561
148.805203
22.823856
148.811513
22.822611
148.817212
22.823133
148.824724
22.817183
148.837372
22.817038
148.846740
22.808134
148.856210
22.806851
148.857562
22.813285
148.863350
22.820254
148.867785
22.820789
148.880320
22.812432
148.873892
22.804885
148.875741
22.801345
148.887172
22.804729
148.903005
22.806299
148.906783
22.805082
148.906036
22.796882
148.909781
22.793319
148.913280
22.772168
148.923239
22.760908
148.922443
22.749190
148.929363
22.746761
148.933007
22.736163
Then north easterly to a western boundary of Lot 23 on SP100966 at Latitude 22.73099° South; then northerly, north easterly and south easterly along the boundaries of that lot to Latitude 22.721963° South; then generally northerly passing through the following coordinate points.
Longitude East
Latitude South
148.948599
22.721315
148.953638
22.720081
148.953657
22.719877
148.954187
22.714211
148.957929
22.710647
148.955908
22.701876
148.959349
22.677208
148.957952
22.667843
148.971050
22.655956
Then northerly to the southern boundary of Lot 14 on ROP84 at Longitude 148.970980° East; then westerly and north-easterly along boundaries of that lot to Latitude 22.650313° South; then generally north-easterly and generally easterly passing through the following coordinate points
Longitude East
Latitude South
148.970950
22.648921
148.980853
22.634727
148.988415
22.633460
149.003085
22.643245
149.013378
22.656016
149.032413
22.661639
149.041212
22.658595
149.045573
22.654435
149.050072
22.659655
149.056353
22.657229
149.067881
22.667634
149.068448
22.667627
149.072934
22.667569
149.079908
22.669237
149.097702
22.676041
149.108449
22.676486
149.110299
22.673530
149.115416
22.677567
Then easterly to the northern bank of Isacc River at Longitude 149.127714 East; then generally north westerly along northern and eastern banks of that river and Connors River to the southernmost point of Lot 22 on SP119064; then northerly along the boundary of that lot to Latitude 22.589541° South; then north-westerly and westerly passing through the following coordinate points.
Longitude East
Latitude South
149.050923
22.589285
149.047680
22.583463
Then westerly to western boundary of Lot 22 on SP119064 at latitude 22.584219° South; then southerly along the boundary of that lot to the northern bank of Connors River; then generally south-westerly and generally north-westerly along boundaries of that river to a southern boundary of again Lot 22 on SP119064; Then easterly along that southern boundary to Longitude 149.017117° East; then generally northerly passing through the following coordinate points.
Longitude East
Latitude South
149.017079
22.563328
149.014504
22.559842
149.010077
22.559312
149.010555
22.548751
149.001643
22.543585
149.001584
22.539482
148.995769
22.530173
149.002037
22.527163
149.003249
22.523630
149.003804
22.518346
149.005587
22.510701
149.004854
22.503674
149.002254
22.498429
148.995239
22.493239
148.989536
22.491551
148.991849
22.476863
Then northerly to a southern boundary of Lot 4 on KL210 at Longitude 148.995359° East, then westerly along the boundary of that lot to an eastern boundary of again Connors River; then generally northerly, generally easterly, again generally northerly and generally south easterly along boundaries of that river and southern boundaries of Lotus Creek to the northern boundary of Lot 8 on RP614441 at Longitude 149.344646° East; then westerly along the boundary of that lot to Longitude 149.242579° East; then generally easterly passing through the following coordinate points.
Longitude East
Latitude South
149.342893
22.505818
149.345064
22.506049
149.350008
22.506575
149.352419
22.503097
149.364753
22.502056
149.370059
22.505420
Then easterly to the eastern boundary of the Isaac River Drainage Sub Basin at Latitude 22.506416° South, again a point on the external boundary of QUD 380/2008 Barada Barna People Determination Area.
Then generally southerly along the boundary of that sub basin to a corner at Longitude 149.374004° East, Latitude 22.517414° South; then south-easterly to the headwaters of Granite Creek at Longitude 149.375942° East, Latitude 22.518359° South; then generally southerly and generally easterly along the centreline of that creek to its intersection with the centreline of Styx River; then generally south-easterly along the centreline of that river and the centreline of Deep Creek back to the commencement point.
EXCLUSIONS
To avoid any doubt the determination area does not include any land and waters subject to:
· QUD380/2008 Barada Barna People as determined by the Federal Court 29 June 2016;
· QUD6131/1998 Darumbal People as determined by the Federal Court 21 June 2016;
· QUD30/2019 Darumbal People as determined by the Federal Court 01 December 2023;
· QUD15/2019 Barada Kabalbara Yetimarala People #2 as accepted for registration 25 October 2019;
· QUD17/2019 Western Kangoulu People as accepted for registration 06 September 2017; and
· QUD33/2019 Gaangalu Nation as accepted for registration 18 December 2019.
DATA REFERENCE AND SOURCE
· External boundary description compiled by Queensland South Native Title Services based on spatial data sourced from Commonwealth of Australia, National Native Title Tribunal (February 2024).
· Lumburra Bimbi Pty Ltd Cultural Heritage Body boundary coordinate positions based on Cultural Heritage Body Boundaries – Queensland data sourced from State of Queensland, Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander (October 2023).
· Cadastral data sourced from State of Queensland. Department of Natural Resources (February 2024).
· Watercourses are wherever possible based on cadastral data; else Watercourse lines - Queensland - by area of interest (August 2023).
· Drainage Sub-Basin data sourced from State of Queensland, Department of Resources (October 2022).
Reference Datum
Geographical coordinates are referenced to the Geocentric Datum of Australia (GDA2020) in decimal degrees.
Use of Coordinates
Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
External boundary description prepared by Queensland South Native Title Services (March 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 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 AP15793
9
s 47B
Lot 2 on Plan AP15793
9
s 47B
Lot 1 on Plan LR146
17, 20
s 47A
Lot 30 on Plan MC204
11
s 232 & s 238
Lot 29 on Plan MUR4062
11
s 232 & s 238
Lot 17 on Plan ROP108
9
s 47B
Lot 18 on Plan ROP108
9
s 47B
Lot 19 on Plan ROP108
9
s 47B
Lot 64 on Plan USL42116
11
[s 47A denotes areas to which s 47A of the Native Title Act 1993 (Cth) apply]
[s 47B denotes areas to which s 47B of the Native Title Act 1993 (Cth) apply]
[s 232 & s 238 denotes areas to which s 232 and s 238 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 3 on Plan AP15793
9
Lot 1 on Plan AP15943
9
Lot 11 on Plan CNS414
3
That part of Lot 21 on Plan FTY1202 excluding
former Portion 2V on Plan C408
1, 2
*
Lot 65 on Plan FTY1503
7
*
Lot 9 on Plan FTY1819
7, 8
Lot 9 on Plan KL118
4
Lot 12 on Plan KL123
5
*
Lot 4 on Plan KL210
4, 5
*
Lot 4 on Plan KL32
4
Lot 5 on Plan LR146
20
Lot 185 on Plan MC348
10
*
Lot 1 on Plan MC813349
10
Lot 2 on Plan MC813349
10
Lot 16 on Plan NPW598
17, 18, 19
*
Lot 694 on Plan PH1362
7, 13, 22
Lot 4237 on Plan PH471
10
Lot 4317 on Plan PH491
10
*
Lot 16 on Plan ROP104
9
Lot 21 on Plan ROP106
9
Lot 10 on Plan ROP109
7
Lot 5 on Plan ROP124
22
Lot 6 on Plan ROP140
13
Lot 25 on Plan ROP143
9
Lot 1 on Plan ROP25
9
Lot 7 on Plan ROP65
8
Lot 11 on Plan ROP69
12
Lot 4 on Plan ROP75
7
Lot 7 on Plan ROP75
7
Lot 14 on Plan ROP84
8
Lot 2 on Plan ROP88
7
Lot 23 on Plan SP100966
7, 8
Lot 1 on Plan SP103568
7
That part of Lot 33 on Plan SP114963 excluding
former Lot 3 on Plan ROP132
15
*
Lot 7 on Plan SP118531
17, 20
Lot 6 on Plan SP214946
14
Lot 24 on Plan SP271662
7
*
Lot 4973 on Plan SP275117
10
*
Lot 2 on Plan TT422
16
*
An area identified as Road and formerly described as New Road delineated by stations 120-78-86-88-124-125-89-87-129-128-131-130-79-135-120 as shown on Plan SP214946
14
#
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:
Anabranch;
Brussels Creek;
Clarke Creek;
Connors River;
Crooked Creek;
Deep Creek;
Develin Creek;
Fitzroy River;
Granite Creek;
Isaac River;
Mackenzie River;
Magdalen Creek;
Mamelon Creek;
Melaleuca Creek;
Montrose Creek;
Roper Creek;
Sarsfield Creek;
Styx River;
Tooloombah Creek;
Unnamed Creek Adjacent to Lot 25 on Plan MC590, Anglewood Road and Tooloombah Creek;
Waterhole; and
Yatton Creek.
Keymap, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18. 19, 20, 21
[# denotes areas to which s 24KA of the Native Title Act 1993 (Cth) apply]
[* denotes area which is partly within the external boundary]
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; and
(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
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
After effective sovereignty, and consistent with the impacts of colonisation, life for Aboriginal families – including those of the BKY People – became challenging. Extreme violence from white settlers moving into the region, government restrictions on Aboriginal people, including their removal to government-run missions, and disease denote the oppressive circumstances under which Aboriginal people lived. There were, however, Aboriginal families of the BKY People that remained on country, working and living on pastoral stations such as Croydon Station and Yatton Station. Dr Lee Sackett, in his report, “Barada Kabalbara Yetimarala Native Title Claim: Anthropologist’s Report”, filed on 5 June 2018, described how the enduring presence of the BKY People living on country maintained a connection to the land (at 30-31):[W]hile physical connection with the claim area diminished across time, claimants nonetheless regarded themselves as vitally linked to it. It was where their ancestors, and by extension they themselves, were from. Such connection was, at least as some claimants saw it, enduring and unseverable. The connection was made real by claimants’ beliefs regarding the spirits of their ancestors occupying and maintaining the claim area …. That is, claimants’ own connections for the most part were centred on and through descent from ancestors who had had direct physical connections with country. In my view, these cultural/spiritual connections came across very much as continuous, generation-to-generation associations.(Emphasis added.) The contemporary BKY People are determined by their descent from apical ancestors, born around or before sovereignty, and recognise cognatic descent as the primary means by which rights to country are acquired. Based on the information provided, I observe that the submissions before the Court provide that the Connection Material establishes:(a)that the BKY People are a localised land-holding group within the BG regional society, which society is comprised of tribal groups, including Wiri, Yuwibara, Barada, Gia, Ngaro, Juru, Bindal, Birri, and Jangga. The society is united by its shared language and practice of traditional laws and customs, including systems of recruitment to land-owning groups and land tenure, regional and section divisions, totemism, marriage, kinship, knowledge and authority, naming practices, cultural protocols, mythology and permission;(b)that the contemporary BKY People are local descendants of the southern localised Barada tribal group, which group recognises certain families as continuing to have the collective rights to speak for country. The contemporary BKY People are determined by their descent from their apical ancestors born at or around sovereignty, who are associated with areas on or near the lands and waters identified in the draft determinations;(c)that despite their membership within the BG society, the land rights held by the BKY People are characterised as those of a ‘core rights holding territorial group’, which group can grant permission to those seeking to access and exploit their territory. The association of land rights to tribal groups within the BG society was determined by their local association to land and waters, and the BKY People (as the local subgroup) are the people with the landed rights and interests for the Determination Area; (d)that land rights within the BG society were gained through patrifiliation, male initiation, matrimonies, matri-totems and a four section system. Prior to sovereignty, the BKY People primarily gained rights to the Determination Area through patrilineal descent, but that means of transmission has gradually shifted to recognise rights by cognatic descent in modern times;(e)that filiation is the means by which the BKY People acquire rights and interests to land and knowledge of country.(f)that the connection of the BKY People to their country is informed by their spiritual connection to the lands and waters, which is passed down by generations through oral histories, and comprises the group’s mythology and identity. Elders of the BKY People continue to teach spiritual and physical attributes of their country, which speaks to features of the environment or other important spiritual sites on country. This includes: creation stories about the water on country, from sites such as Broadsound Ranges, Mount Archer, Rockhampton, Mount Morgan and Gogango Ranges; and telling stories about places on country to avoid due to the presence of angry spirits, such as the Yunji;(g)notwithstanding the significant impacts of colonisation, the common identity of the BKY People and their connection to country has been maintained, with observance and practice of their traditional laws and customs still occurring today. Examples of this continuity include: retention of language; ongoing beliefs of ancestors’ occupation of the Determination Area; maintenance of the Determination Area; filiation as the mechanism for passing local mythology between generations and the transmission of spiritual knowledge by Elders; and the families of BKY People who remained on country continuing to work and live on pastoral stations, sustaining the group’s connection to country;(h)the BKY People continue to practise behaviours associated with spiritual and totemic beliefs, which are an important symbol of group identity and uniting people to their traditional lands. This includes: the ongoing ancestral ceremonial use of fire for cultural purposes, which continues in modern times, being regularly used in smoking ceremonies on country; the significance of corrobboree at Mt Bora, particularly as a male-only site of spiritual importance; cautions to avoid spiritually dangerous places such as Bluchers Lagoon without Elders; and Dreamtime stories about the totemic significance of wild animals, such as turtles;(i)that, further, in relation to traditional land and waters, the BKY People continue to exercise various other rights in and over the Determination Area, including rights to: access, be present on, move about on and travel over the area; camp on the area and for that purpose, erect temporary shelters on the area; take natural resources from the land and waters of the area for any purpose; use natural resources of the land and waters of the area that are not taken, for any purpose; take the water of the area for personal, domestic and non-commercial communal purposes; bury native title holders within the area; maintain places of importance and areas of significance and protect those places and areas from physical harm; teach on the area the physical and spiritual attributes of the area; the right to hold meetings on the area; and light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purposes of hunting or clear vegetation;(j)that the exercise of those various rights reflects the BKY People’s occupation of the Determination Area, exploitation of natural resources, management of country and continuing connection to the land and waters within the Determination Area. By those rights, the group holds the right to possess, occupy, use, and enjoy the Determination Area to the exclusion of all others by their traditional laws and customs.THE DETERMINATION AREA