Wyles on behalf of the Gurambilbarra Wulgurukaba People for the GW Mada Claim v State Minister for Queensland
[2025] FCA 833
•24 July 2025
FEDERAL COURT OF AUSTRALIA
Wyles on behalf of the Gurambilbarra Wulgurukaba People for the GW Mada Claim v State Minister for Queensland [2025] FCA 833
File number: QUD 176 of 2020 Judgment of: MCDONALD J Date of judgment: 24 July 2025 Catchwords: NATIVE TITLE – consent determination of native title – agreement of parties – requirements of s 87 of Native Title Act 1993 (Cth) satisfied – orders made giving effect to determination of native title Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 29-5
Native Title Act 1993 (Cth) ss 55, 56, 61, 63, 66, 87, 94A, 190A, 190B, 190C, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) reg 4
Cases cited: Brown on behalf of the Ngarla People v Western Australia [2007] FCA 1025
Farrer on behalf of the Ngarrawanji Native Title Claim Group v Western Australia [2020] FCA 929
Forrest on behalf of the Kakarra Part A Claim Group v Western Australia (No 3) [2025] FCA 425
Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474
Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343
Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v Western Australia [2018] FCA 1591
Wik and Wik Way Native Title Claim Group v Queensland (2009) 258 ALR 306; [2009] FCA 789
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 47 Date of last submission: 17 April 2025 Date of hearing: Determined on the papers Solicitor for the Applicant: North Queensland Land Council Native Title Representative Body Aboriginal Corporation Solicitor for the First Respondent: Crown Law (Qld) Solicitor for the Second Respondent: Australian Government Solicitor Solicitor for the Sixth, Seventh, Eighth and Ninth Respondents: Atherton Tablelands Law Solicitor for the Tenth Respondent: Corrs Chambers Westgarth Solicitor for the Eleventh Respondent: Holding Redlich ORDERS
QUD 176 of 2020 BETWEEN: VIRGINIA WYLES AND OTHERS ON BEHALF OF THE GURAMBILBARRA WULGURUKABA PEOPLE FOR THE GW MADA CLAIM
Applicant
AND: STATE MINISTER FOR THE STATE OF QUEENSLAND
First Respondent
COMMONWEALTH OF AUSTRALIA
Second RespondentGREGORY KEITH BROOKING (and others named in the Schedule)
Sixth Respondent
ORDER MADE BY:
MCDONALD J
DATE OF ORDER:
24 JULY 2025
THE COURT ORDERS BY CONSENT THAT:
1.There be a determination of native title in the terms set out below (Determination).
2.Each party to the proceedings bear its own costs.
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 (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 Gurambilbarra Wulgurukaba People described in Schedule 1 (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 the non‑exclusive rights to:
(a)access, be present on, move about on and travel over the area;
(b)camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
(c)hunt, fish and gather on the land and waters of the area;
(d)access Natural Resources and take, for any purpose, Natural Resources from the area;
(e)take the Water of the area for personal, domestic and non-commercial communal purposes;
(f)conduct ceremonies on the area;
(g)bury Native Title Holders within the area;
(h)maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm;
(i)teach on the area the physical and spiritual attributes of the area;
(j)hold meetings on the area;
(k)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(l)be accompanied on to the area by those persons who, though not Native Title Holders, are:
(i)spouses of Native Title Holders;
(ii)people who are members of the immediate family of a spouse of a Native Title Holder; or
(iii)people who are reasonably required by the Native Title Holders under traditional laws and customs for the performance of ceremonies or cultural activities on the area.
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, remain in, and use the area;
(b)access Natural Resources and take for any purpose, Natural Resources from the area;
(c)maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm; and
(d)be accompanied on to the area by those persons who, though not Native Title Holders, are:
(i)spouses of Native Title Holders;
(ii)people who are members of the immediate family of a spouse of a Native Title Holder; or
(iii)people who are reasonably required by the Native Title Holders under traditional laws and customs for the performance of ceremonies or cultural activities on the area.
8.The native title rights and interests referred to in orders 6 and 7 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 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 (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.
13.The native title is held in trust.
14.The Gurambilbarra Wulgurukaba Aboriginal Corporation (ICN: 9181), 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.
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;
“High Water Mark” has the meaning given in the Land Act 1994 (Qld);
“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;
“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,
but does not include:
(c)crops that are the private personal property of another;
(d)Animals that are the private personal property of another;
(e)minerals as defined in the Mineral Resources Act 1989 (Qld); or
(f)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;
“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).
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 Gurambilbarra Wulgurukaba People. The Gurambilbarra Wulgurukaba People are the biological and adopted descendants of one or more of the following people:
(a)Hilda Ambrym;
(b)Annie, mother of Peter Hegarty;
(c)Emily Underwood; and
(d)Jimmy White.
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 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 the Determination Area existing or entered into before the date 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 clause.
(2)The rights and interests granted by the Commonwealth of Australia pursuant to statute and otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation and including, for the avoidance of any doubt, but not limited to the “Defence Practice Area” otherwise declared and described as “Halifax Bay” in the Schedule to the Declaration of Defence Practice Areas made by the Minister for Defence pursuant to regulation 49 of the Defence Force Regulations 1952 (Cth) on 10 December 1997, and published in Commonwealth of Australia Gazette No. GN 8 on 25 February 1998.
(3)The rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Eastern Tuna and Billfish Fishery, the Eastern Skipjack Fishery and the Southern Bluefin Tuna Fishery.
(4)The rights and interests of the Great Barrier Reef Marine Park Authority and any other person existing by reason of the force of operation of:
(a)the Great Barrier Reef Marine Park Act 1975 (Cth);
(b)the Great Barrier Reef Marine Park Regulations 2019 (Cth);
(c)the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth); and
(d)the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth).
(5)The rights and interests of the Port of Townsville Limited ABN 44 411 774 236, exercisable within its Port Limits, including:
(a)its powers, functions and responsibilities as a port under:
(i)the Transport Infrastructure Act 1994 (Qld) and regulations;
(ii)the Transport Operations (Marine Safety) Act 1994 (Qld) and regulations;
(iii)the Sustainable Ports Development Act 2015 (Qld) and regulations;
(iv)the Transport Operations (Marine Pollution) Act 1995 (Qld) and regulations;
(v)the Government Owned Corporations Act 1995 (Qld) and regulations;
(vi)the Coastal Protection and Management Act 1995 (Qld) and regulations;
(vii)the Planning Act 2016 (Qld) and regulations;
(viii)the Environmental Protection Act 1994 (Qld) and regulations;
(ix)the Land Act 1994 (Qld) and regulations;
(x)the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and regulations;
(xi)the Environment Protection (Sea Dumping) Act 1981 (Cth) and regulations; and
(xii)any other Laws of the State and the Commonwealth applying to the powers, functions and responsibilities of a port,
including but not limited to, its rights and powers to own, use, operate, construct, maintain, and replace Port Facilities, berths, wharves, marinas, basins, channels, facilities, infrastructure, undertake and construct reclamation, dredging, earthworks, revetment and retaining walls, and other improvements within Port Limits in the Determination Area;
(b)the right to navigate and operate ships and boats within Port Limits located in the Determination Area;
(c)the rights of its employees, agents, contractors, lessees, sublessees, and licensees and Port Users to enter upon that part of the Determination Area located within Port Limits to exercise any of the functions, rights and interests referred to in this paragraph; and
(d)under any lease, sublease, licence or lawful authority related to that part of the Determination Area located within Port Limits.
(6)The rights and interests of the Port of Townsville Limited ABN 44 411 774 236 within or beyond the Port Limits to:
(a)dispose of dredge spoil; and
(b)undertake other activities in relation to operation of the Port; as authorised by any law of the State or the Commonwealth.
(7)In clauses 5 and 6:
(a)“Port of Townsville Limited ABN 44 411 774 236” includes its lawful successors;
(b)“Port User(s)” has the meaning given to that term in the Transport Infrastructure Act 1994 (Qld);
(c)“Port Limits” means the limits of the Port of Townsville as described in the Transport Infrastructure (Ports) Regulation 2016 (Qld); and
(d)“Port Facilities” has the meaning given to that term in the Transport Infrastructure Act 1994 (Qld).
(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 Fisheries Act 1994 (Qld);
(b)the Land Act 1994 (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 the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
(g)the Mineral Resources Act 1989 (Qld);
(h)the Planning Act 2016 (Qld);
(i)the Transport Infrastructure Act 1994 (Qld);
(j)the Fire and Emergency Services Act 1990 (Qld) or the Ambulance Service Act 1991 (Qld);
(k)the Marine Parks Act 2004 (Qld);
(l)the Coastal Protection and Management Act 1995 (Qld);
(m)the Transport Operations (Marine Safety) Act 1994 (Qld); and
(n)the Transport Operations (Marine Pollution) Act 1995 (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)coastal waters;
(d)beaches; or
(e)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 the 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 Determination Area covers all the land and waters within the external boundary described as:
Commencing at the intersection of the centreline of Ross River and the High Water Mark of Cleveland Bay and extending northerly along that High Water Mark to the southernmost corner of Lot 302 on SP223346 (also being a point on the High Water Mark of Cleveland Bay), then generally north easterly and generally north westerly along that High Water Mark, across the mouths of any waterways flowing into Cleveland Bay, Rowes Bay, the Coral Sea or Halifax Bay between the seaward extremities at High Water Mark of each of the opposite banks of each such waterway to the centreline of Rollingstone Creek; then north easterly, generally south easterly and generally easterly to Cordelia Rocks (approximately Longitude 146.684407° East, Latitude 18.994857° South), passing through the following coordinate points:
Longitude (°East)
Latitude (°South)
146.504010
18.947719
146.526666
18.965830
146.547891
18.980579
146.571634
18.990652
146.597177
18.997847
146.624158
18.999637
146.654017
18.999646
Then south to Longitude 146.684407° East, Latitude 18.996820° South; then due east along that line of Latitude to its intersection with Longitude 147.110361° East, then south westerly passing through coordinate point Longitude 146.955171° East, Latitude 19.151233° South back to the commencement point.
The Determination Area includes Lot 794 on SP308904.
Exclusions:
The Determination Area excludes:
(a)Cordelia Rocks and an area within a 100m buffer around those rocks;
(b)all land and waters subject to native title determination application QUD623/2016 Gurambilbarra Wulgurukaba People (QC2016/007) as accepted for registration on 4 October 2016. (Rattlesnake Island and Herald Island are specific exclusions); and
(c)the land and waters within the External Boundary which at the time the Determination application are, or had been, the subject of one or more surrenders of native title to which s 24EB(1)(d) of the Native Title Act 1993 (Cth) applies.
Data Reference and source
·Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicant.
·Cadastral data (DCDB) sourced from DoR (QLD), 20 February 2023.
·Rocks and reef locations sourced from Places Names Queensland sourced from DoR (QLD), 20 February 2023.
·High Water Mark is as defined in the Queensland Land Act 1994 (Qld).
·Cordelia Rocks 100m buffer calculated from Complete GBR Reef and Island Features dataset© Great Barrier Reef Marine Park Authority 2014.
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.
SCHEDULE 4: DESCRIPTION OF DETERMINATION AREA
The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, to the extent that they are within the External Boundary and not otherwise excluded by the terms of Schedule 5.
Part 1 – Non-Exclusive Areas (Onshore)
All of the land and waters described in the following table and depicted in green on the determination map in Schedule 6.
Area description (at time of Determination)
Determination Map Sheet Reference
Lot 395 on Plan EP2371
1
Part 2 – Non-Exclusive Areas (Offshore)
(a)All of the land and waters below the High Water Mark and depicted in light blue on the determination map in Schedule 6; and
(b)All of the waters below the High Water Mark described in the following table by lots on plan, or relevant parts thereof, and depicted in pink on the determination map in Schedule 6:
Area description (at time of Determination)
Determination Map Sheet Reference
That part of Lot 792 on Plan SP234641 excluding an area of public works, as described in the second row of the table at paragraph 2 in schedule 5.
3
That part of Lot 793 on Plan SP251250 excluding an area of public works, as described in the second row of the table at paragraph 2 in schedule 5.
3
That part of Lot 794 on Plan SP308904 excluding an area of public works, as described in the second row of the table at paragraph 2 in schedule 5.
3
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 Schedule 4:
(1)The 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 surrenders of native title to which s 24EB(1)(d) of the Native Title Act 1993 (Cth) applies.
(2)The 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).
(3)Specifically, and to avoid any doubt, the land and waters described in (2) above includes 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 s 21 of the Native Title (Queensland) Act 1993 (Qld), apply, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth), including the areas described in the table below and depicted in yellow in the map in Schedule 6:
Area description (at time of Determination)
Determination Map Sheet Reference
1. Inner harbour between the eastern and western breakwaters, Townsville shaded yellow, in determination map, sheet 3, described as:
3
Point No.
Longitude (°East)
Latitude (°South)
1
146.83618139
19.24113415
2
146.83549668
19.24229979
3
146.83737793
19.24490294
4
146.83736267
19.24508303
5
146.83729779
19.24545223
6
146.83707302
19.24552017
7
146.83699235
19.24573943
8
146.83691174
19.24571192
9
146.83448631
19.25234953
10
146.83435980
19.25230780
11
146.83409384
19.25303569
Extending generally westerly along the High Water Mark from the High Water Mark at Longitude 146.834094° East, Latitude 19.253036° South to the High Water Mark at Longitude 146.833178° East, Latitude 19.252630° South
12
146.83317820
19.25263036
13
146.83310598
19.25282744
Extending generally westerly along the High Water Mark from the High Water Mark at Longitude 146.833106° East, Latitude 19.252827° South to the High Water Mark at Longitude 146.830220° East, Latitude 19.250273° South
14
146.83022033
19.25027340
15
146.82920389
19.24992098
16
146.83323479
19.24369140
17
146.83523337
19.24060268
which includes:
· Lot 449 on Plan SP126597;
· Lot 450 on Plan SP126597;
· Lot 460 on Plan SP242513;
· Lot 461 on Plan SP242513;
· Lot 462 on Plan SP259996; and
· That part of Lot 430 on Plan EP1068 within the External Boundary covered by an area of public works.
2. Section 251D area around Lot 791 on EP2348, shaded yellow, in determination map, sheet 7, described as:
Point No.
Longitude (°East)
Latitude (°South)
1
146.838879383
19.2461674861
2
146.838952003
19.2460006799
3
146.838959780
19.2460037391
4
146.838974500
19.2460110173
5
146.838992584
19.2460222822
6
146.839894640
19.2466566451
7
146.840747203
19.2472562250
8
146.840751220
19.2472591136
9
146.840760350
19.2472658478
10
146.840772585
19.2472764959
11
146.840783797
19.2472881168
12
146.840792216
19.2472984635
13
146.840793908
19.2473006156
14
146.846937961
19.2553752776
15
146.846948525
19.2553907694
16
146.846956188
19.2554047511
17
146.846962539
19.2554193130
18
146.846967530
19.2554343451
19
146.846971122
19.2554497334
20
146.846973288
19.2554653613
21
146.846973650
19.2554732345
22
146.846974012
19.2554811084
23
146.846973288
19.2554968552
24
146.846971122
19.2555124818
25
146.846967530
19.2555278701
26
146.846962540
19.2555429032
27
146.846956188
19.2555574650
28
146.846948525
19.2555714459
29
146.846940525
19.2555834842
30
146.846931552
19.2555948871
31
146.844019728
19.2590060773
32
146.843794142
19.2589834395
33
146.846783771
19.2554811081
34
146.840638072
19.2474042536
which includes:
· That part of Lot 792 on Plan SP234641 covered by an area of public works;
· That part of Lot 793 on Plan SP251250 covered by an area of public works; and
· That part of Lot 794 on Plan SP308904 covered by an area of public works.
7
3. Borrow area adjacent to Lot 773 on Plan SP223346, shaded yellow, in determination map, sheet 5, described as:
Point No.
Longitude (°East)
Latitude (°South)
1
146.84421190000
19.2616364
2
146.84264180000
19.2631985
3
146.84261580000
19.2631958
4
146.84088990000
19.2648981
5
146.84061910000
19.2652111
6
146.83612020000
19.2696875
7
146.83559420000
19.2685599
8
146.83559510000
19.2685589
9
146.84371810000
19.2591777
10
146.84543680000
19.2596437
11
146.84561620000
19.2596923
12
146.84538840000
19.2604613
13
146.84420990000
19.2616236
14
146.84421130000
19.2616284
5
4. Channel extending from Ross River adjacent to Lot 773 on Plan SP223346, shaded yellow, in determination map, sheet 6, described as:
Point No.
Longitude (°East)
Latitude (°South)
1
146.8442057
19.2615989
2
146.8425908
19.2631974
3
146.8425801
19.2631959
4
146.8425675
19.2631939
5
146.8425549
19.2631919
6
146.8425423
19.2631897
7
146.8425302
19.2631875
8
146.8425172
19.2631851
9
146.8425047
19.2631826
10
146.8424922
19.2631800
11
146.8424797
19.2631773
12
146.8424673
19.2631745
13
146.8424549
19.2631716
14
146.8424425
19.2631686
15
146.8424301
19.2631655
16
146.8424178
19.2631623
17
146.8424054
19.2631590
18
146.8423961
19.2631564
19
146.8409918
19.2647802
20
146.8361202
19.2696875
21
146.8355951
19.2685589
22
146.8438800
19.2589907
23
146.8437941
19.2589834
24
146.8467838
19.2554811
25
146.8467416
19.2554257
26
146.8493652
19.2523914
27
146.8493864
19.2523685
28
146.8494300
19.2523297
29
146.8494783
19.2522964
30
146.8495307
19.2522691
31
146.8495863
19.2522483
32
146.8496442
19.2522342
33
146.8497035
19.2522271
34
146.8497632
19.2522272
35
146.8498225
19.2522343
36
146.8498804
19.2522485
37
146.8499359
19.2522694
38
146.8499882
19.2522968
39
146.8500349
19.2523289
40
146.8506975
19.2528458
41
146.8507419
19.2528853
42
146.8507799
19.2529290
43
146.8508119
19.2529770
44
146.8508373
19.2530283
45
146.8508557
19.2530823
46
146.8508669
19.2531381
47
146.8508706
19.2531947
48
146.8508668
19.2532513
49
146.8508555
19.2533071
50
146.8508370
19.2533610
51
146.8508115
19.2534124
52
146.8507795
19.2534602
53
146.8507625
19.2534811
54
146.8461426
19.2588239
55
146.8447094
19.2604813
56
146.8441746
19.2610998
57
146.8441574
19.2611326
58
146.8441366
19.2611635
59
146.8441125
19.2611921
60
146.8440792
19.2612255
61
146.8440762
19.2612285
62
146.8440738
19.2612333
63
146.8440771
19.2612441
64
146.8440828
19.2612548
65
146.8440884
19.2612655
66
146.8440939
19.2612762
67
146.8440993
19.2612870
68
146.8441046
19.2612979
69
146.8441098
19.2613088
70
146.8441149
19.2613197
71
146.8441198
19.2613307
72
146.8441247
19.2613417
73
146.8441295
19.2613528
74
146.8441340
19.2613637
75
146.8441387
19.2613750
76
146.8441431
19.2613862
77
146.8441475
19.2613974
78
146.8441517
19.2614087
79
146.8441558
19.2614200
80
146.8441598
19.2614313
81
146.8441637
19.2614427
82
146.8441675
19.2614541
83
146.8441712
19.2614655
84
146.8441748
19.2614770
85
146.8441783
19.2614884
86
146.8441816
19.2615000
87
146.8441849
19.2615115
88
146.8441879
19.2615227
89
146.8441911
19.2615347
90
146.8441940
19.2615463
91
146.8441968
19.2615580
92
146.8441995
19.2615696
93
146.8442021
19.2615813
94
146.8442045
19.2615931
6
5. Platypus Channel, shaded yellow, in determination map, sheet 2, described as:
Point No.
Longitude (°East)
Latitude (°South)
1
146.868385844
19.1919757714
2
146.868381274
19.1919865237
3
146.868369815
19.1920121094
4
146.868367177
19.1920173344
5
146.868350748
19.1920471020
6
146.868344214
19.1920570962
7
146.868328832
19.1920805730
8
146.856212106
19.2108688719
9
146.856224192
19.2108793931
10
146.856252214
19.2109084457
11
146.856277466
19.2109397070
12
146.856299753
19.2109729414
13
146.856318905
19.2110078945
14
146.856334780
19.2110442991
15
146.856347252
19.2110818817
16
146.856356231
19.2111203529
17
146.856361647
19.2111594204
18
146.856363455
19.2111987873
19
146.856361646
19.2112381560
20
146.856356232
19.2112772244
21
146.856351799
19.2112981867
22
146.856123089
19.2122571859
23
146.856113657
19.2122844731
24
146.856097784
19.2123208786
25
146.856078631
19.2123558317
26
146.856072273
19.2123659832
27
146.849752721
19.2221627218
28
146.849733195
19.2221906134
29
146.849711548
19.2222170526
30
146.849683522
19.2222461061
31
146.849652013
19.2222734617
32
146.848877977
19.2228840977
33
146.848845931
19.2229072733
34
146.848811935
19.2229277877
35
146.848775140
19.2229459837
36
146.848736816
19.2229610635
37
146.848697252
19.2229729130
38
146.848656754
19.2229814412
39
146.848615626
19.2229865854
40
146.848574182
19.2229883040
41
146.848532740
19.2229865854
42
146.848491612
19.2229814403
43
146.848451112
19.2229729130
44
146.848411600
19.2229610968
45
146.841078723
19.2343267036
46
146.840664806
19.2349681874
47
146.836768617
19.2410061807
48
146.836782203
19.2410309696
49
146.836798079
19.2410673760
50
146.836810555
19.2411049559
51
146.836819535
19.2411434271
52
146.836824951
19.2411824955
53
146.836826760
19.2412218624
54
146.836824950
19.2412612302
55
146.836819536
19.2413002977
56
146.836810555
19.2413387698
57
146.836798081
19.2413763506
58
146.836782205
19.2414127561
59
146.836763048
19.2414477082
60
146.836756661
19.2414579048
61
146.836710642
19.2415292182
62
146.836342583
19.2420995835
63
146.835784698
19.2429641082
64
146.835765178
19.2429919836
65
146.835743538
19.2430184075
66
146.835715509
19.2430474601
67
146.835652008
19.2430980703
68
146.835684922
19.2430740818
69
146.835617016
19.2431192422
70
146.835580216
19.2431374381
71
146.835541888
19.2431525180
72
146.835522104
19.2431584427
73
146.835502319
19.2431643674
74
146.835461815
19.2431728957
75
146.835451949
19.2431744465
76
146.835292187
19.2431979239
77
146.834694609
19.2432857331
78
146.834482648
19.2433168799
79
146.834470974
19.2433466303
80
146.834455584
19.2433813550
81
146.834437201
19.2434147405
82
146.834430862
19.2434248616
83
146.834070458
19.2439836040
84
146.834050915
19.2440115189
85
146.834029249
19.2440379797
86
146.834001220
19.2440670323
87
146.833970632
19.2440936549
88
146.833937717
19.2441176425
89
146.833902727
19.2441388144
90
146.833865927
19.2441570094
91
146.833827597
19.2441720884
92
146.833788028
19.2441839387
93
146.833747525
19.2441924670
94
146.833706391
19.2441976111
95
146.833664943
19.2441993297
96
146.833623495
19.2441976111
97
146.833582361
19.2441924679
98
146.833541857
19.2441839396
99
146.833502288
19.2441720893
100
146.833463958
19.2441570094
101
146.833427158
19.2441388144
102
146.833392169
19.2441176416
103
146.833359254
19.2440936540
104
146.833343959
19.2440803431
105
146.833328665
19.2440670323
106
146.833300637
19.2440379797
107
146.833275381
19.2440067165
108
146.833253089
19.2439734830
109
146.833233933
19.2439385317
110
146.833218055
19.2439021254
111
146.833205581
19.2438645445
112
146.833196600
19.2438260733
113
146.833191186
19.2437870050
114
146.833189376
19.2437476371
115
146.833191185
19.2437082702
116
146.833196602
19.2436692028
117
146.833205581
19.2436307316
118
146.833218056
19.2435931505
119
146.833219318
19.2435898979
120
146.833405945
19.2431142734
121
146.834122105
19.2412890780
122
146.834302630
19.2408290053
123
146.834303962
19.2408257884
124
146.834318937
19.2407918255
125
146.834337671
19.2407576503
126
146.834344246
19.2407475950
127
146.834359595
19.2407241796
128
146.834558723
19.2404147802
129
146.835613222
19.2387805580
130
146.838059984
19.2349885165
131
146.838079510
19.2349606312
132
146.838101155
19.2349341984
133
146.838108558
19.2349260190
134
146.839562412
19.2333578748
135
146.846855145
19.2220545091
136
146.846843107
19.2220440302
137
146.846815081
19.2220149767
138
146.846789828
19.2219837154
139
146.846767540
19.2219504809
140
146.846748385
19.2219155279
141
146.846732512
19.2218791215
142
146.846720037
19.2218415407
143
146.846711059
19.2218030704
144
146.846705645
19.2217640020
145
146.846703836
19.2217246333
146
146.846705645
19.2216852673
147
146.846711059
19.2216461989
148
146.846715488
19.2216252510
149
146.846936601
19.2206940237
150
146.846944191
19.2206662149
151
146.846953626
19.2206389187
152
146.846969500
19.2206025141
153
146.846988654
19.2205675610
154
146.853314677
19.2107607455
155
146.853334206
19.2107328494
156
146.853355856
19.2107064049
157
146.853383879
19.2106773523
158
146.853415368
19.2106500111
159
146.854189238
19.2100393283
160
146.854221301
19.2100161347
161
146.854255317
19.2099956059
162
146.854292110
19.2099774108
163
146.854330432
19.2099623310
164
146.854369990
19.2099504815
165
146.854410487
19.2099419524
166
146.854451611
19.2099368091
167
146.854493051
19.2099350905
168
146.854534491
19.2099368091
169
146.854575615
19.2099419524
170
146.854616112
19.2099504815
171
146.854655593
19.2099622797
172
146.864028447
19.1954289189
173
146.868568333
19.1867944038
174
146.889246779
19.1368314335
175
146.889260945
19.1368006138
176
146.889277485
19.1367708822
177
146.889288624
19.1367542654
178
146.889299763
19.1367376486
179
146.889325003
19.1367063864
180
146.889353013
19.1366773338
181
146.889383582
19.1366507121
182
146.889416475
19.1366267226
183
146.889451442
19.1366055508
184
146.889488220
19.1365873557
185
146.889526524
19.1365722750
186
146.889566067
19.1365604255
187
146.889606545
19.1365518964
188
146.889647650
19.1365467531
189
146.889689073
19.1365450345
190
146.889730495
19.1365467531
191
146.889771600
19.1365518964
192
146.889812079
19.1365604255
193
146.889851621
19.1365722759
194
146.889892245
19.1365883899
195
146.890684884
19.1369446330
196
146.890719344
19.1369617939
197
146.890754313
19.1369829657
198
146.890787205
19.1370069551
199
146.890817775
19.1370335768
200
146.890845785
19.1370626294
201
146.890871026
19.1370938917
202
146.890893302
19.1371271261
203
146.890912447
19.1371620792
204
146.890928313
19.1371984846
205
146.890940782
19.1372360664
206
146.890949755
19.1372745376
207
146.890952461
19.1372940709
208
146.890955167
19.1373136050
209
146.890956976
19.1373529738
210
146.890955168
19.1373923416
211
146.890949755
19.1374314108
212
146.890940781
19.1374698820
213
146.890928314
19.1375074638
2
6. Berth No. 11 Port of Townsville, shaded yellow, in determination map, sheet 4, described as:
Point No.
Longitude (°East)
Latitude (°South)
1
146.843367903
19.229914184
2
146.843527497
19.229488820
3
146.843530542
19.229489732
4
146.843568869
19.229504812
5
146.843605665
19.229523007
6
146.843640653
19.229544179
7
146.843673565
19.229568168
8
146.843704150
19.229594789
9
146.843732177
19.229623842
10
146.843757431
19.229655103
11
146.843779721
19.229688338
12
146.843798876
19.229723290
13
146.843814751
19.229759695
14
146.843827226
19.229797277
15
146.843836205
19.229835748
16
146.843841620
19.229874816
17
146.843843430
19.229914184
18
146.843841620
19.229953551
19
146.843836206
19.229992619
20
146.843827227
19.230031090
21
146.843813160
19.230072766
22
146.841423863
19.236125444
23
146.841097891
19.240712526
24
146.841091745
19.240760541
25
146.841082767
19.240799012
26
146.841070291
19.240836594
27
146.839788389
19.243828560
28
146.839759770
19.243884107
29
146.839737479
19.243917341
30
146.839712222
19.243948603
31
146.839684194
19.243977656
32
146.839653605
19.244004278
33
146.839618254
19.244029876
34
146.838106555
19.245021930
35
146.838074004
19.245041490
36
146.838037204
19.245059685
37
146.837998874
19.245074765
38
146.837959305
19.245086614
39
146.837918801
19.245095144
40
146.837877667
19.245100287
41
146.837836219
19.245102005
42
146.837794770
19.245100287
43
146.837753637
19.245095144
44
146.837713132
19.245086614
45
146.837673564
19.245074765
46
146.837635234
19.245059685
47
146.837598433
19.245041490
48
146.837563442
19.245020318
49
146.837530528
19.244996330
50
146.837499940
19.244969708
51
146.837471911
19.244940655
52
146.837452619
19.244917301
53
146.836083666
19.242875601
54
146.835456246
19.243331906
55
146.835431135
19.243348969
56
146.835404910
19.243364450
57
146.835368109
19.243382645
58
146.835329780
19.243397725
59
146.835290212
19.243409574
60
146.835249708
19.243418103
61
146.835208575
19.243423246
62
146.835167127
19.243424966
63
146.835125678
19.243423246
64
146.835084546
19.243418103
65
146.835044041
19.243409574
66
146.835004474
19.243397725
67
146.834966144
19.243382645
68
146.834929344
19.243364450
69
146.834894354
19.243343278
70
146.834861439
19.243319289
71
146.834830852
19.243292667
72
146.834802822
19.243263615
73
146.834777567
19.243232353
74
146.834763872
19.243211935
75
146.835167127
19.242973274
76
146.836351201
19.241221863
77
146.836148001
19.241103572
78
146.834150803
19.242509383
79
146.833989896
19.242489469
80
146.833989708
19.242490190
81
146.833981129
19.242488383
82
146.833941561
19.242476534
83
146.833903232
19.242461455
84
146.833866432
19.242443259
85
146.833831442
19.242422087
86
146.833798528
19.242398098
87
146.833767940
19.242371477
88
146.833739912
19.242342424
89
146.833714656
19.242311162
90
146.833692365
19.242277928
91
146.833673208
19.242242975
92
146.833657332
19.242206570
93
146.833644856
19.242168989
94
146.833635876
19.242130518
95
146.833630462
19.242091449
96
146.833628652
19.242052082
97
146.833630462
19.242012715
98
146.833635877
19.241973647
99
146.833644857
19.241935176
100
146.833657333
19.241897594
101
146.834203419
19.240544078
102
146.834218195
19.240511375
103
146.834235636
19.240479880
104
146.837829820
19.234781115
105
146.837850435
19.234751184
106
146.837873478
19.234722895
107
146.840087918
19.232483608
108
146.840128783
19.232446915
109
146.840161695
19.232422926
110
146.840196684
19.232401754
111
146.840233481
19.232383559
112
146.840271808
19.232368479
113
146.840311373
19.232356630
114
146.840351874
19.232348102
115
146.840393005
19.232342957
116
146.840434450
19.232341239
117
146.840475896
19.232342957
118
146.840517026
19.232348102
119
146.840557528
19.232356630
120
146.840597092
19.232368479
121
146.840635420
19.232383559
122
146.840672217
19.232401754
123
146.840707205
19.232422926
124
146.840740118
19.232446915
125
146.840770704
19.232473536
126
146.840790634
19.232494196
127
146.840543808
19.232701212
128
146.839932221
19.233642452
129
146.838465441
19.235224541
130
146.834749515
19.240983497
4
Reference datum
Geographical coordinates have been provided by the Port of Townsville and are Geographical coordinates referenced to the Geodetic Datum of Australia 2020 (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 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.
SCHEDULE 6: MAP OF DETERMINATION AREA
REASONS FOR JUDGMENT
MCDONALD J:
Introduction
By an application filed on 5 June 2020 (and last amended on 14 July 2025) (Application) pursuant to s 61(1) of the Native Title Act 1993 (Cth), the Gurambilbarra Wulgurukaba people seek a determination of native title rights and interests over an area comprising land and waters in the vicinity of Townsville in North Queensland (Determination Area). The Application is made by eight named individuals (applicant representatives) who have been authorised by the Gurambilbarra Wulgurukaba claim group (applicant) to make the Application on its behalf. The Application has been referred to as the “GW Mada Application” or the “GW Mada Claim”.
Since the filing of the Application, one of the original applicant representatives has died and has been replaced by another individual. The Application, as subsequently amended, is made by Virginia Wyles, Esalyn Ambrym, Gail Abrym, Brenton Creed, Gavin Kum Sing, Christina George, Pamela Petrina Hegarty and Florence Watson. The respondents to the Application are the State Minister for the State of Queensland (State), the Commonwealth, Gregory Keith Brooking, Neil Ashley Mogensen, Paul Thomas Newman, Starlaw Pty Ltd, Port of Townsville Ltd and Ergon Energy Corporation Ltd.
The parties now jointly seek orders for a determination of native title by consent in relation to the Determination Area pursuant to s 87 of the Native Title Act. A proposed consent determination reflecting an agreement between all parties as to the existence of native title rights and interests in the Determination Area (Agreement) was filed on 14 July 2025. Annexure A to the Agreement contains a draft of the orders sought, which are to the same effect as the orders set out above (Consent Determination Orders).
The Determination Area is described in Schedules 3 and 4 to the Consent Determination Orders and is depicted in the maps in Schedule 6. Areas that are within the external boundaries of the Determination Area but which are excluded from the Determination Area are identified in Schedule 5 to the Consent Determination Orders. The excluded areas include the land and waters that are the subject of the separate native title determination application in action QUD 623 of 2016.
The Determination Area is an area of sea country (including islands) off the coast of Townsville and around Magnetic Island. It is more precisely defined in the Consent Determination Orders but has been generally described by the applicant as the area defined by a boundary starting at the mid-point of the Ross River where it intersects with the high water mark of Cleveland bay; extending northwards along the coast until it reaches the midpoint of Rollingstone Creek; then extending seawards in a generally north east direction, until it intersects with the seaward boundary of the Manbarra people to the north; and then extending directly east until it intersects with a point directly north east of the starting location at Ross River.
For the reasons that follow, I am satisfied that orders to the effect of those sought by the parties should be made. The making of such orders is within the power of the Court and is appropriate in the circumstances of this case.
Procedural background and process towards consent determination
After the Application was filed, it was referred to the Native Title Registrar pursuant to s 63 of the Native Title Act. The Native Title Registrar considered the Application pursuant to s 190A of the Native Title Act and determined that it met the criteria set out in ss 190B and 190C. On 23 September 2020, the Application was notified by the Native Title Registrar pursuant to s 66 of the Native Title Act. The notification period ended on 22 December 2020.
On 26 March 2021, Reeves J made an order referring the matter to a registrar for case management. The applicant provided the State with material pertaining to the connection of the members of the claim group to the Determination Area (Connection Material) in the course of the case management process. All respondents were provided the opportunity to request a copy of the Connection Material and to conduct a review of the material. Only the Commonwealth exercised this option. The remaining respondents either did not engage with the Connection Material or stated that they would adopt the State’s position in relation to connection.
The discussions and negotiations that were encouraged by, and took place in the course of, the case management process resulted in the formation of the Agreement.
Material before the Court
The parties have filed the following documents in support of the Application:
(a)the Agreement, executed on behalf of the applicant and each of the respondents;
(b)written submissions in support of the Agreement, filed by the applicant on 17 April 2025; and
(c)an affidavit of the applicant’s solicitor, Ashley Jan, affirmed on 17 April 2025, in support of the applicant’s submissions, annexing copies of:
(i)a timetable for progressing matters towards a consent determination;
(ii)the Certificate of Registration, Rule Book and membership list for the Gurambilbarra Wulgurukaba Aboriginal Corporation;
(iii)an extract from the website of the Office of the Registrar of Indigenous Corporations;
(iv)a form of nomination and consent;
(v)a funeral notice for Iris Glenbar, one of the individuals originally authorised to make the Application, who died in September 2024;
(vi)a public notice published in the Townsville Bulletin, dated 9 November 2024;
(vii)a notification letter and meeting notice sent to the Gurambilbarra Wulgurukaba community, dated 6 November 2024; and
(viii)a document evidencing the consent of Gavin Kum Sing to act as an applicant representative in the Application, dated 6 December 2024.
Orders made by a registrar of the Court on 22 April 2025 permitted any of the respondents to file written submissions by 28 April 2025 should they wish to do so. None of the respondents has filed any submissions.
The claim group and the authorisation of the applicant representatives
The native title holders for the Determination Area are the Gurambilbarra Wulgurukaba people, who are described in Schedule 1 to the Consent Determination Orders as “the biological and adopted descendants of one or more of”: Hilda Ambrym; Annie, mother of Peter Hegarty; Emily Underwood; and Jimmy White. These apical ancestors are the same as those named in the Application.
Section 61(1) of the Native Title Act provides that a native title determination application may be made by:
A person or persons authorised [as defined by s 251B of the Native Title Act] by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; …
Following a notification process, approximately 56 members of the Gurambilbarra Wulgurukaba people attended a meeting on 6 December 2024, at which the applicant representatives obtained authorisation from the native title claim group in the Application to agree to a draft of the Agreement. A resolution to this effect was passed at the meeting in accordance with an agreed and adopted decision-making process. The applicant representatives are therefore able to seek a native title determination under the Native Title Act.
Connection of the Gurambilbarra Wulgurukaba people to country
The Connection Material provided to the State and the Commonwealth consists of the following:
(a)report of an anthropologist, Daniel Leo, titled “Connection Report about the Gurambilbarra Wulgurukaba People of the Girringun Regional Society – Volume Two: Native Title Claim Group and its Continuity of Connection, Laws & Customs, And Rights & Interests”, dated 2016;
(b)report of Mr Leo titled “Connection Report about the Gurambilbarra Wulgurukaba People of the Girringun Regional Society – Volume One: Introduction, background, historical overview and pre-sovereignty society of the Townsville-Ayr area”, dated 2017;
(c)report of Mr Leo titled “Native Title Connection Report about Gurambilbarra Wulgurukaba Sea Country”, dated 2018;
(d)report of Mr Leo titled “Supplementary Gurambilbarra Wulgurukaba Connection Report”, dated 2018;
(e)report of Mr Leo titled “Addendum to the ‘Native Title Connection Report about Gurambilbarra Wulgurukaba Sea Country’”, dated 2021;
(f)supplementary mapping provided on 24 March 2022; and
(g)witness statements of Hayden Clifford Stewart Saltner dated 28 March 2023, Brian Johnson dated 29 March 2023, and Petrina Pamela Hegarty dated 3 April 2023.
The Connection Material has not been filed in the proceedings, but a summary of the accepted effect of the Connection Material is provided in Annexure A of the applicant’s submissions.
The applicant submits that the Connection Material establishes the acquisition and transfer of Gurambilbarra Wulgurukaba people’s cultural knowledge throughout the twentieth century. From this, it is reasonable to infer that the Gurambilbarra Wulgurukaba people today are descended from a community of people who spoke Gurambilbarra Wulgurukaba language and who used and occupied Gurambilbarra Wulgurukaba country prior to the date of the assertion of sovereignty by the Crown (being 26 January 1788).
The Connection Material identifies the Gurambilbarra Wulgurukaba ancestors in a community of Gurambilbarra Wulgurukaba people in the early days of European contact (ie, from the 1880s), and establishes the Gurambilbarra Wulgurukaba people today, and from soon after first European contact, as an organised society that possesses native title rights and interests in accordance with observed and acknowledged traditional laws and customs. The Connection Material is said to establish the intergenerational transfer of those laws and customs and to support an inference that they, and the rights possessed in accordance with them, have their origins in a pre-sovereignty society. The Gurambilbarra Wulgurukaba people have continued as a society and have continuously observed and acknowledged the traditional laws and customs of that society.
The Connection Material is further said to establish that, despite the impact of sustained settlement in the Determination Area, and the impacts of European settlement on the Gurambilbarra Wulgurukaba population, Gurambilbarra Wulgurukaba people have continued to possess native title in accordance with observed and acknowledged traditional laws and customs. Some of the laws and customs have adapted in response to the impacts of sustained European settlement, but it is still accurate to say that the rights and interests are possessed under the traditional laws and customs of the Gurambilbarra Wulgurukaba people.
Following its assessment of the Connection Material, on 23 June 2023, the State expressed that it was satisfied of the claim group’s connection to the Determination Area. The State’s acceptance of the applicant’s position after its rigorous assessment process enables me to have confidence in the correctness of the submissions made by the applicant. The Court is able to rely on the joint (or, as in this case, uncontested) submissions of the parties in relation to these matters: see, eg, Farrer on behalf of the Ngarrawanji Native Title Claim Group v Western Australia [2020] FCA 929 at [16]. I am satisfied that the State has sufficient information to be in a position to inform the Court that the State considers it appropriate for the Court to make orders to the effect of the Consent Determination Orders: Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 (Lovett) at [37]; Forrest on behalf of the Kakarra Part A Claim Group v Western Australia (No 3) [2025] FCA 425 at [46].
It is appropriate to record here some of the conclusions that are said (without demur) to arise from the Connection Material.
The members of the claim group identify themselves as Gurambilbarra Wulgurukaba, and are recognised by neighbouring groups as such. From first contact (and, by natural inference, since sovereignty), there were Aboriginal people in the area identified as the country of the Gurambilbarra Wulgurukaba people. The Gurambilbarra Wulgurukaba have been a seafaring people, utilising watercraft to access the sea around Townsville and Magnetic Island, and between there and the Palm Islands, since at least 1770. Identification with Gurambilbarra Wulgurukaba language remains an important marker of their identity.
The Gurambilbarra Wulgurukaba people are the southern-most of the groups forming a regional society associated with country extending northwards along the coast from Townsville. Their laws and customs are similar to, and derived from, the wider society known as the groups of the southern rainforest (Girringun) society, which incorporates neighbouring groups including Warrgamay, Girramay, Gulngay, Djiru, Mamu and Jirrbal. The traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and each succeeding generation of that society, and that acknowledgement and observance has continued substantially uninterrupted since sovereignty.
The Gurambilbarra Wulgurukaba people identify themselves as separate from neighbouring groups, with social, cultural and linguistic differences from, as well as similarities to, those groups. Mr Leo has stated that:
“Gurambilbarra” has been accepted as another name for the land-and sea-owning grouping of Magnetic Island and the Townsville area. As such, “Gurambilbarra Wulgurukaba” and “Manbarra Wulgurukaba” are employed to highlight the linguistic, cultural, social and mythological commonalities between the two groupings while nonetheless distinguishing them as separate land- and sea-owning groupings.
Membership of the group is established by tracing back through either biological or adoptive descent to one of the known apical ancestors. The physical connection of the ancestors of the Gurambilbarra Wulgurukaba people to their country is demonstrated by, among other things, shell middens, burial sites, ancient rock art, and fish traps. Mr Leo has concluded that one of the lineages has maintained unbroken physical connection with the Determination Area and the others have maintained physical connection for many decades following earlier periods of interruption to physical connection. Traditional knowledge about identity and culture, and laws and customs, has been transmitted from generation to generation through a tradition of oral communication by elders (including elders from neighbouring groups). Members of the group speak of their spiritual connection to their country in the Determination Area, their obligations to look after this country and their knowledge of the spiritual stories connected with particular places in the Determination Area.
The laws and customs that are observed, and which have been documented in the anthropological reports of Mr Leo, include those relating to local organisation and sea and land tenure; group membership; religious beliefs; a regional system; a section system; punishment for transgressions; totemism; marriage; kinship; naming practices; age- and gender-based knowledge and authority; mythology; dispute settlements; avoidance behaviour; permission; and a system of subsistence based upon hunting, fishing, gathering, and knowledge of the medicinal value of natural resources and material culture.
Requirements of s 87 of the Native Title Act
It is an important purpose of s 87 of the Native Title Act to encourage the parties to resolve native title proceedings without litigation: see, eg, Lovett at [36]; Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v Western Australia [2018] FCA 1591 at [26]; Brown on behalf of the Ngarla People v Western Australia [2007] FCA 1025 at [22]-[23]. Section 87(1) sets out the circumstances in which the Court may make a consent determination in relation to native title rights and interests without holding a hearing. It provides as follows:
87 Power of Federal Court if parties reach agreement
Application
(1)This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a)agreement is reached on the terms of an order of the Federal Court in relation to:
(i)the proceedings; or
(ii)a part of the proceedings; or
(iii)a matter arising out of the proceedings; and
(aa)all of the following are parties to the agreement:
(i)the parties to the proceedings;
(ii)the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and
(b)the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, are filed with the Court; and
(c)the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
The notification day specified in the notice given under s 66 of the Native Title Act, being 22 December 2020, has passed. The requirements of paragraphs (a) and (b) of s 87(1) are met by virtue of the Agreement, a copy of which has been filed with the Court.
To make the orders sought, I must also be satisfied that it is within the Court’s power to make orders in, or consistent with, the terms sought (Native Title Act, s 87(1)(c)) and that it would be appropriate to do so (Native Title Act, s 87(1A)).
Does the Court have the power to make the orders sought?
It is within the power of the Court to make an order under s 87 of Native Title Act if the order “is consistent with s 94A of the [Native Title Act], the rights and interests included in the proposed determination are recognisable by the common law of Australia and there is no other determination in existence over the area the subject of the proposed determination”: Nelson v Northern Territory (2010) 190 FCR 344; [2010] FCA 1343 (Nelson) at 346 [4].
Under s 94A of the Native Title Act, “[a]n order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225”. Section 225 provides:
225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
(Note omitted.)
I am satisfied that the requirements of s 225 and consequently s 94A of the Native Title Act are met because I am satisfied that the Consent Determination Orders:
(a)in order 5, state that the persons holding native title rights and interests in the Determination Area are the Gurambilbarra Wulgurukaba people described in Schedule 1 to the Consent Determination Orders;
(b)in orders 6-10, set out the nature and extent of the native title rights and interests in relation to the Determination Area;
(c)in Schedule 2, set out the nature and extent of any other interests in relation to the Determination Area;
(d)in order 12 and Schedule 2, consider the relationship between the rights and interests described in orders 6-10 and those described in Schedule 2;
(e)in order 6 and part 1 of Schedule 4, describe the areas within the Determination Area in which native title rights and interests are held non-exclusively by the Gurambilbarra Wulgurukaba people in relation to land and waters; and
(f)in order 7 and part 2 of Schedule 4, describe the areas within the Determination Area in which native title rights and interests are held non-exclusively by the Gurambilbarra Wulgurukaba people in relation to waters.
Having regard to the rights and interests which are identified in the Consent Determination Orders, I am satisfied that they are rights and interests that are capable of being recognised by the common law of Australia. I am also satisfied that there are no other determinations in existence over the Determination Area.
The Court therefore has the power to make orders, or consistent with, the terms sought.
Is it appropriate for the Court to make the orders sought?
In relation to s 87 of the Native Title Act, North J in Lovett said as follows (at [36]-[37]):
The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the [Native Title Act] on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The [Native Title Act] is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. …
Justice Reeves identified additional relevant considerations in Nelson (at 348 [14]), stating that:
… the process followed by the State party respondent, particularly how it goes about assessing the underlying evidence as to the existence of native title, is critical. Other critical factors, all directed to the processes that lead to the agreement and what was agreed, that have been previously identified by the Court include: whether the parties have independent and competent legal representation: Munn at [29], [39] and [40] and Lovett at [39]-[40]; whether the terms of the proposed order are unambiguous and clear: Munn at [32]; and whether the agreement has been preceded by a mediation process: Nangkiriny v Western Australia [2004] FCA 1156 at [6]; Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] and Lovett at [41]‑[42].
Having regard to these principles, I will be able to decide that it is appropriate to make the orders sought in this matter if I am satisfied that:
(a)there exists a free and informed agreement between the parties, which involves the State having taken steps to satisfy itself that there is a credible basis for the making of the determination;
(b)the parties have independent and competent legal representation;
(c)the terms of the proposed order are unambiguous and clear; and
(d)the agreement has been preceded by a mediation process.
On the material before me, I am satisfied that the parties entered into the Agreement freely and that, in doing so, they were informed by their involvement in an extended case management process which included negotiations and detailed analysis of the Connection Material. Whilst the Connection Material was not filed with the Court, in circumstances where the State has considered the Connection Material in detail and where no party has made any submission to the contrary, I find that the summary provided in Annexure A of the applicant’s written submissions and the information produced in the affidavit of Ashley Jan is sufficient to demonstrate that the Agreement is “rooted in reality”: see Wik and Wik Way Native Title Claim Group v Queensland (2009) 258 ALR 306; [2009] FCA 789 at 310 [16].
I am satisfied that the State has taken steps to ensure that there is a credible basis for the Consent Determination Orders, having taken an active role in the negotiation process which led to the formation of those orders.
The parties were legally represented throughout this process. I am satisfied that their representatives were independent and competent. I am also satisfied that the terms of the Consent Determination Orders are clear and unambiguous.
Accordingly, I find that, in addition to the Court having the power to make the orders sought, it is also appropriate for the Court to do so.
Nomination of a prescribed body corporate
If the Court proposes to make an approved determination as to the existence of native title, it must determine “whether the native title is to be held in trust, and if so, by whom”: Native Title Act, ss 55, 56(1). The steps that the Court should take in making this determination are set out in s 56(2) of the Native Title Act, which in broad terms requires that the common law native title holders nominate a prescribed body corporate to hold the native title in trust.
The parties propose that the native title be held in trust by the Gurambilbarra Wulgurukaba Aboriginal Corporation, as a prescribed body corporate under s 56(2)(b) and (3) of the Native Title Act.
I am satisfied that the Gurambilbarra Wulgurukaba Aboriginal Corporation meets the requirements of reg 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and is therefore a prescribed body corporate. In particular:
(a)the Gurambilbarra Wulgurukaba Aboriginal Corporation was incorporated and is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) and so is an Aboriginal and Torres Strait Island corporation;
(b)the Gurambilbarra Wulgurukaba Aboriginal Corporation has among its objectives, as set out in cl 3(a) of its Rule Book, being and performing the functions of a prescribed body corporate pursuant to a determination under s 56 of the Native Title Act;
(c)all members of the Gurambilbarra Wulgurukaba Aboriginal Corporation are, and will in the future continue to be, persons who have native title rights and interests in relation to the Determination Area because, under cl 6.2.2 of the Rule Book, eligibility for membership is limited to “Common Law Holders”, who are at least 15 years of age, and that term is defined, in Schedule 1 to the Rule Book, in such a way that it refers to the Native Title Holders as defined in the Consent Determination Orders; and
(d)the Gurambilbarra Wulgurukaba Aboriginal Corporation meets the “Indigeneity requirement” in s 29-5 of the CATSI Act because its membership is limited to native title holders, who must all be Aboriginal or Torres Strait Islander persons.
At the meeting held on 6 December 2024, the native title claim group nominated the Gurambilbarra Wulgurukaba Aboriginal Corporation to be its registered native title body corporate for the purpose of these proceedings. The directors of the Corporation accepted the role and the obligations associated with this nomination at a meeting held on 11 April 2025. I am therefore satisfied that the requirements of s 56(2)(b) of the Native Title Act are met and it is appropriate to make orders 14 and 15 of the Consent Determination Orders.
Conclusion
The Agreement and the Consent Determination Orders, which give effect to it, acknowledge that the Gurambilbarra Wulgurukaba people have always held, and continue to hold, native title rights and interests in the Determination Area.
For the reasons that I have explained, I make the Consent Determination Orders in the terms set out at the beginning of these reasons.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. Associate:
Dated: 24 July 2025
SCHEDULE OF PARTIES
QUD 176 of 2020 Authorised representatives of the Gurambilbarra Wulgurukaba People for the GW Mada Claim
VIRGINIA WYLES
CHRISTINA GEORGE
BRENTON CREED
FLORENCE WATSON
PAMELA PETRINA HEGARTY
GAIL AMBRYM
ESALYN AMBRYM
GAVIN KUM SING
Respondents
Seventh Respondent:
NEIL ASHLEY MOGENSEN
Eighth Respondent:
PAUL THOMAS NEWMAN
Ninth Respondent:
STARLAW PTY LTD
Tenth Respondent:
PORT OF TOWNSVILLE LIMITED
Eleventh Respondent:
ERGON ENERGY CORPORATION LIMITED ACN 087 646 062
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