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[2023] FCA 953
Federal Court of Australia
2023-08-18
Collier J
Original judgment source is linked above.
Counsel for the Applicants: Mr D O'Gorman SC
Solicitor for the Applicants: Susan Walsh of North Queensland Land Council Aboriginal Corporation
Solicitor for the First Respondents: Marita Stinton of Crown Law
Counsel for the First Respondents: Ms EJ Longbottom KC with S Marsh
BETWEEN: JOHN ALVOEN & ORS ON BEHALF OF THE WAKAMAN PEOPLE #3 Applicant
AND: STATE OF QUEENSLAND & ORS Respondent
order made by: COLLIER J DATE OF ORDER: 18 AUGUST 2023
BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth);
BY CONSENT THE COURT ORDERS THAT:
BY CONSENT THE COURT DETERMINES THAT: 3. The determination area is the land and waters described as Lot 2 on Plan LD157, not otherwise excluded by the terms of Schedule 3, and depicted in the map in Schedule 4 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails. 4. Native title exists in the Determination Area. 5. The native title is held by the Wakaman People described in Schedule 1 (the Native Title Holders). 6. Subject to orders 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters in the Determination Area are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (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; and (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 7. 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. 8. The native title rights and interests referred to in order 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 9. 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). 10. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2 (the Other Interests). 11. The relationship between the native title rights and interests described in order 6 and the Other Interests described in Schedule 2 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 12. In this determination, unless the contrary intention appears: "Animal" means any member of the animal kingdom (other than human), whether alive or dead; "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" 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, that have traditionally been taken by the Native Title Holders, (c) but does not include: (i) Animals that are the private personal property of another; (ii) crops that are the private personal property of another; (iii) minerals as defined in the Mineral Resources Act 1989 (Qld); or (iv) 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; and (c) water from an underground water source.
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: 13. The native title is held in trust. 14. The Wakaman Kung Kung Aboriginal Corporation (ICN:9592), 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. LIST OF SCHEDULES Schedule 1 - Native Title Holders vi Schedule 2 - Other Interests in the Determination Area vii Schedule 3 - Areas Not Forming Part of the Determination Area x Schedule 4 - Map of Determination Area xi
SCHEDULE 1 - NATIVE TITLE HOLDERS
SCHEDULE 2 - OTHER INTERESTS IN THE DETERMINATION AREA The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:
SCHEDULE 3 - AREAS NOT FORMING PART OF THE DETERMINATION AREA The following areas of land and waters are excluded from the determination area comprised by Lot 2 on Plan LD157:
BETWEEN: JOHN ALVOEN & ORS ON BEHALF OF THE WAKAMAN PEOPLE #4 Applicant
AND: STATE OF QUEENSLAND & ORS Respondent
order made by: COLLIER J DATE OF ORDER: 18 AUGUST 2023
BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth);
DEFINITIONS AND INTERPRETATION 12. 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" 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, that have traditionally been taken by the Native Title Holders, (c) but does not include: (i) Animals that are the private personal property of another; (ii) crops that are the private personal property of another; (iii) minerals as defined in the Mineral Resources Act 1989 (Qld); or (iv) 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; and (c) water from an underground water source; "Works" has the same meaning as in the Electricity Act 1994 (Qld).
Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT DETERMINES THAT: 13. The native title is held in trust. 14. The Wakaman Kung Kung Aboriginal Corporation (ICN:9592), 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. LIST OF SCHEDULES Schedule 1 - Native Title Holders xvii Schedule 2 - Other Interests in the Determination Area xviii Schedule 3 - External Boundary xxiii Schedule 4 - Description of Determination Area xxv Schedule 5 - Areas Not Forming Part of the Determination Area xxviii Schedule 6 - Map of Determination Area xxix
Schedule 1 - Native Title Holders
Schedule 2 - Other Interests in the Determination Area The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:
Schedule 3 - External Boundary The area of land and waters commencing at the south eastern corner of Lot 262 on OL33, also being a point on the northern bank of the Tate River and extending generally westerly along that river bank to its intersection with the south eastern corner of Lot 813 on SP129930; then southerly across that river to the north western corner of Lot 821 on SP129931; then generally southerly and south westerly along the western boundaries of that lot and Lot 831 on SP129932 to their intersection with the northern bank of Rocky Tate River also being the southern boundary of Lot 424 on OL49; then generally westerly and generally northerly along the southern and western boundaries of that lot, across the Tate River, along the western boundaries of Lot on 262 on OL33, Lot 415 on OL46 and Lot 3795 on SP139718 (Quaker Hill Holding) to the southern boundary of Lot 3 on SP150971 (Aroonbeta); then generally easterly, generally southerly and again generally easterly along the northern and eastern boundaries of again Lot 3795 on SP139718 to its intersection with the western boundary of Lot 801 on SP129929; then east to a point on the western boundary of Lot 328 on OL37 at Latitude 17.351513° South; then generally north easterly, generally northerly and generally north westerly along the western and northern boundaries of that lot, Lot 7 on SP136297 and Lot 285 on OL34 to the southern boundary of Lot 6 on USL21103; then easterly to the western boundary of Lot 4698 on PH801 (Scardons Hill Holding); then northerly and easterly along the western and northern boundary of that lot to its intersection with Indigenous Land Use Agreement QI2005/011 Bar Barrum Small Mining; then south westerly along the boundary of that ILUA to the north western corner of Lot 18 on LD96; then generally south westerly along the north western boundary of that lot to its intersection with the eastern boundary of Lot 771 on SP129928; then south westerly to the north eastern corner of Lot 328 on OL37; then generally south easterly, southerly and generally westerly along the eastern and southern boundaries of that lot to its intersection with the eastern boundary of Lot 262 on OL33; then southerly along the eastern boundary of Lot 262 on OL33 back to the commencement point. The area above excludes any land or waters covered by the Indigenous Land Use Agreement QI2005/011 Bar Barrum Small Mining accepted for registration by the National Native Title Tribunal on 12 March 2007.
Data Reference and source Bar Barrum Small Mining ILUA (QI2005/011) sourced from National Native Title Tribunal April 2023. Cadastre and casement data sourced from Queensland (Department of Resources) April 2023. Rivers / Creeks based on casement data where available, else Watercourse Lines data from (Department of Resources) April 2023.
Reference Datum Geographical coordinates are referenced to the Geocentric 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 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. 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 CP867037 2 Lot 101 on Plan K6921 6 Lot 102 on Plan K6921 6 Lot 103 on Plan K6921 6 Lot 104 on Plan K6921 6 Lot 105 on Plan K6921 6 Lot 106 on Plan K6921 6 Lot 107 on Plan K6921 6 Lot 108 on Plan K6921 6 Lot 109 on Plan K6921 6 Lot 110 on Plan K6921 6 Lot 201 on Plan K6921 6 * Lot 202 on Plan K6921 6 Lot 203 on Plan K6921 6 Lot 204 on Plan K6921 6 Lot 205 on Plan K6921 6 Lot 206 on Plan K6921 6 Lot 207 on Plan K6921 6 Lot 208 on Plan K6921 6 Lot 209 on Plan K6921 6 Lot 210 on Plan K6921 6 Lot 211 on Plan K6921 6 Lot 212 on Plan K6921 6 Lot 213 on Plan K6921 6 * Lot 214 on Plan K6921 6 Lot 215 on Plan K6921 6 Lot 216 on Plan K6921 6 Lot 217 on Plan K6921 6 Lot 218 on Plan K6921 6 Lot 219 on Plan K6921 6 Lot 220 on Plan K6921 6 Lot 302 on Plan K6921 6 Lot 303 on Plan K6921 6 Lot 304 on Plan K6921 6 Lot 305 on Plan K6921 6 Lot 306 on Plan K6921 6 Lot 307 on Plan K6921 6 Lot 308 on Plan K6921 6 Lot 309 on Plan K6921 6 Lot 4 on Plan LD37 2, 3 Lot 40 on Plan LD37 2, 3 Lot 4 on Plan MPH14275 4 Lot 6 on Plan MPH14275 4 Lot 7 on Plan MPH14275 4 Lot 8 on Plan MPH14275 4 Lot 9 on Plan MPH14275 4 Lot 14 on Plan MPH14275 4 Lot 15 on Plan MPH14275 4 Lot 16 on Plan MPH14275 4 Lot 17 on Plan MPH14275 4 Lot 18 on Plan MPH14275 4 Lot 19 on Plan MPH14275 4 Lot 20 on Plan MPH14275 4 Lot 21 on Plan MPH14275 4 Lot 22 on Plan MPH14275 4 Lot 23 on Plan MPH14275 4 Lot 24 on Plan MPH14275 4 Lot 25 on Plan MPH14275 4 * Lot 26 on Plan MPH14275 4 Lot 27 on Plan MPH14275 4 Lot 28 on Plan MPH14275 4 Lot 29 on Plan MPH14275 4 Lot 30 on Plan MPH14275 4 Lot 31 on Plan MPH14275 4 Lot 32 on Plan MPH14275 4 Lot 33 on Plan MPH14275 4 Lot 35 on Plan MPH14275 4 * Lot 36 on Plan MPH14275 4 * Lot 37 on Plan MPH14275 4 Lot 2 on Plan MPH14276 5 Lot 3 on Plan MPH14276 5 Lot 4 on Plan MPH14276 5 Lot 5 on Plan MPH14276 5 Lot 6 on Plan MPH14276 5 Lot 7 on Plan MPH14276 5 Lot 8 on Plan MPH14276 5 Lot 9 on Plan MPH14276 5 Lot 10 on Plan MPH14276 5 Lot 11 on Plan MPH14276 5 Lot 12 on Plan MPH14276 5 Lot 13 on Plan MPH14276 5 Lot 14 on Plan MPH14276 5 Lot 15 on Plan MPH14276 5 Lot 16 on Plan MPH14276 5 Lot 24 on Plan MPH14276 2 Lot 30 on Plan MPH14276 2 Lot 31 on Plan MPH14276 2 Lot 32 on Plan MPH14276 2 * Lot 33 on Plan MPH14276 2 Lot 34 on Plan MPH14276 2 Lot 35 on Plan MPH14276 2 Lot 36 on Plan MPH14276 2 Lot 37 on Plan MPH14276 2 Lot 38 on Plan MPH14276 2 Lot 39 on Plan MPH14276 2 Lot 40 on Plan MPH14276 2 Lot 42 on Plan MPH14276 2 Lot 43 on Plan MPH14276 2 Lot 44 on Plan MPH14276 2 Lot 45 on Plan MPH14276 2 Lot 46 on Plan MPH14276 2 Lot 47 on Plan MPH14276 2 Lot 6 on Plan MPH24899 2 Lot 7 on Plan MPH24899 2 Lot 8 on Plan MPH24899 2 Lot 1411 on Plan MPH24986 2 * Lot 44 on Plan OL29 1 That part of Lot 262 on Plan OL33 excluding former MHL822 on Plan MPH24908 and former MHL835 on Plan MPH24908 1, 6, 7 Lot 285 on Plan OL34 1, 2, 5 Lot 328 on Plan OL37 1, 2, 3, 4, 5 Lot 415 on Plan OL46 1 Lot 424 on Plan OL49 7, 8 Lot 4698 on Plan PH801 1 Lot 811 on Plan SP129930 1 Lot 812 on Plan SP129930 1 Lot 3795 on Plan SP139718 1 Lot 26 on Plan USL21103 3, 4 * Lot 32 on Plan USL21103 3 * Lot 113 on Plan USL21103 2 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: Tate River.
Schedule 5 - Areas Not Forming Part of the Determination Area The following areas of land and waters are excluded from the determination area as described in Schedule 4:
Schedule 6 - Map of Determination Area Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BETWEEN: JOHN ALVOEN & ORS ON BEHALF OF THE WAKAMAN PEOPLE #5 Applicant
AND: STATE OF QUEENSLAND & ORS Respondent
order made by: COLLIER J DATE OF ORDER: 18 AUGUST 2023
THE COURT NOTES THAT: A. 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) (Native Title Act) would apply to any park areas within the External Boundary will be addressed after the matter has proceeded to determination. B. The Wakaman People (being the proposed native title holders described in Schedule 1 of the determination) have indicated a desire to enter into negotiations with the State of Queensland in relation to whether section 47C of the Native Title Act would have application to the land and waters within Lot 233 on NPW800 (being a park area which is excluded from the Determination Area) (the park area). C. Subject to paragraph D below, the Applicant and the State of Queensland agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act that s 47C is applicable to the park area, the State of Queensland would not oppose a new application being brought on behalf of the Wakaman People pursuant to s 13(1)(a) of the Native Title Act, for a determination that native title exists in relation to the park area. D. The agreement of the State of Queensland in paragraph C above not to oppose an application for a determination that native title exists in relation to the park area is subject to the Wakaman People and the State of Queensland having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park area. BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth);
BY CONSENT THE COURT ORDERS THAT:
DEFINITIONS AND INTERPRETATION 12. 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" 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, that have traditionally been taken by the Native Title Holders, (c) but does not include: (i) Animals that are the private personal property of another; (ii) crops that are the private personal property of another; (iii) minerals as defined in the Mineral Resources Act 1989 (Qld); or (iv) 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; and (c) water from an underground water source; "Works" has the same meaning as in the Electricity Act 1994 (Qld).
Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT DETERMINES THAT: 13. The native title is held in trust. 14. The Wakaman Kung Kung Aboriginal Corporation (ICN:9592), 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. LIST OF SCHEDULES Schedule 1 - Native Title Holders xliv Schedule 2 - Other Interests in the Determination Area xlv Schedule 3 - External Boundary l Schedule 4 - Description of Determination Area liv Schedule 5 - Areas Not Forming Part of the Determination Area lxii Schedule 6 - Map of Determination Area lxiii
Schedule 1 - Native Title Holders
Schedule 2 - Other Interests in the Determination Area The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:
Schedule 3 - External Boundary The area of land and waters commencing at the intersection of the centreline of the Lynd River and southern bank of the Tate River and extending generally north easterly passing through the following coordinate points: Longitude (East) Latitude (South) 143.739773 17.336163 143.750668 17.304297 143.76309 17.272990 143.776146 17.241940 143.780948 17.229476 143.788665 17.209446 143.800114 17.176555 143.811636 17.143689 143.824256 17.111233 143.829857 17.099354 143.839104 17.079743 143.857558 17.050245 143.881136 17.024715 143.910518 17.006254 143.936499 16.997658 143.963287 16.991937 143.990224 16.986938 144.015879 16.982372 144.041652 16.978514
Then north easterly to intersect with the centreline of the Walsh River at Longitude 144.048308° East; then generally easterly along the centreline of that river to Longitude 144.698988° East; then generally southerly passing through the following coordinate points: Longitude (East) Latitude (South) 144.698239 17.075700 144.699909 17.083264 144.699860 17.086849 144.698927 17.092891 144.702316 17.096427 144.702857 17.103697 144.708996 17.107332 144.707965 17.113913 144.711600 17.119464 144.710617 17.125211 144.708210 17.126881 144.699566 17.126831 144.697159 17.126193 144.692394 17.126831 144.690233 17.130073 144.690233 17.134199 144.694261 17.138620 144.694506 17.140535 144.699181 17.145681
Longitude (East) Latitude (South) 144.710983 17.152724 144.703940 17.161480 144.697087 17.160529 144.683762 17.169095 144.698800 17.173663 144.707176 17.184514 144.715742 17.191366 144.721453 17.202597 144.719168 17.219730
Then south easterly to intersect with a western boundary of QI2005/011 Bar Barrum Small Mining ILUA at Latitude 17.224122° South then south westerly along that ILUA boundary to its intersect with the northern boundary of Lot 4698 on PH801 (Scardons Hill Holding), then westerly, southerly along the northern and western boundaries of that lot, then westerly and south easterly along the northern and western boundaries of Lot 285 on OL34 to intersect with the northern boundary of Lot 7 on SP136297 (Mungana Branch Railway); then generally south westerly and south easterly along the boundaries of that lot to intersect with the southern boundary of Lot 801 on SP129929 (Etheridge Railway); then generally south westerly along that boundary to Latitude 17.351513° South; then westerly to the easternmost north eastern corner of the northern boundary of the easternmost severance of Lot 3795 on SP139718 (Quaker Hill Holding); then generally westerly, northerly and again generally westerly along the northern and eastern boundaries of that lot, crossing any roads to a north eastern corner of Lot 2 on LD157 (Chillagoe); then westerly, northerly, north westerly, south westerly, easterly, southerly, generally north easterly and generally south easterly along the boundaries of that lot to its southernmost corner; then southerly across the Tate River to a north western corner of Lot 424 on OL49; then generally southerly, generally south easterly, generally north easterly and generally northerly along the boundaries of that lot, crossing any roads to its intersect with the southern bank of the Tate River; then north easterly across that river to the south western corner of the south easternmost severance of Lot 262 on OL33; then generally south easterly and generally easterly along southern boundaries of that lot to the western boundary of Lot 423 on OL48; then southerly along the prolongation southerly of the western boundary of that lot to the intersect with the centreline of the Tate River; then generally south easterly along the centreline of that river and the south western bank of Packsaddle Creek to Longitude 144.907218° East, being a point on the western boundary of the QI2005/011 Bar Barrum Small Scale Mining ILUA; then south easterly along that ILUA boundary to its intersect with the western boundary of the Herbert River Drainage Basin Sub-area boundary; then generally southerly along the boundaries of that drainage basin sub-area boundary to Latitude 18.086143° South; then north westerly to the source of the Lynd River at approximately Longitude 144.853977° East, Latitude 18.081474° South; then generally north westerly, generally westerly and again generally north westerly along the centreline of the Lynd River back to the commencement point.
Exclusions Native Title Determination Application QUD350/2017 - Lance Frank, Bradley Thomas & Emma Elizabeth O'Shea (QN2017/005) as filed with the Federal Court on 14 July 2017. Native Title Determination Application QUD351/2017 - James William Malcolm and Janelle Lynette O'Shea (QN2017/006) as filed with the Federal Court on 14 July 2017. Native Title Determination Application QUD746/2015 - Wakaman People #3 (QC2015/011) as accepted for registration on 22 December 2015. Indigenous Land Use Agreement - QI2003/045 Djungan Small Scale Mining and Exploration as accepted for registration 29/11/2004.
Data reference and source Bar Barrum Small Mining ILUA (QI2005/011) from National Native Title Tribunal published 15th May 2023. Cadastre and casement data from Queensland (Department of Resources) published 11th May 2023. Rivers / Creeks based on casement data where available, else Watercourse Lines data from (Department of Resources) published 5th October 2022. Drainage basin sub-area data from State of Queensland (Department of Resources) published 20th October 2022.
Reference datum Geographical coordinates are referenced to the Geocentric 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 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. 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 1 on Plan AP11289 5 Lot 2 on Plan AP11289 5 Lot 3 on Plan AP11289 5 Lot 3 on Plan AP15588 3 Lot 1 on Plan AP15592 5 Lot 2 on Plan AP15592 5 Lot 700 on Plan AP15595 13 * Lot 1 on Plan AP15682 13 * Lot 2 on Plan AP15682 13 * Lot 3 on Plan AP15682 13 * Lot 217 on Plan AP15747 11 * Lot 15 on Plan AP17228 13 That part of Lot 21 on Plan AP21242 excluding former MHL 702 on Plan MPH1883. 11 That part of Lot 1 on Plan AP3434 excluding former MHPL 1102 on Plan MPH24952, former MHPL 1115 on Plan MPH24952, former MHL 18 on Plan MPH24605, former MHL 19 on Plan MPH24605, former MHL 17 on Plan MPH24605 and former MHL 31 on Plan MPH24610. 18, 19, 20 Lot 1 on Plan BW15 3 Lot 2 on Plan BW17 1, 2, 16, 17, 18, 24 Lot 4 on Plan BW18 2, 4, 5, 17, 18 Lot 5 on Plan BW19 17, 18, 19 Lot 6 on Plan BW21 17, 18, 24, 25 Lot 105 on Plan C4821 14 Lot 116 on Plan C4821 14 Lot 202 on Plan C4821 14 Lot 203 on Plan C4821 14 Lot 206 on Plan C4821 14, 15 Lot 215 on Plan C4821 15 Lot 304 on Plan C4821 15 Lot 316 on Plan C4821 15 Lot 401 on Plan C4822 14 Lot 402 on Plan C4822 14, 15 Lot 403 on Plan C4822 14 Lot 501 on Plan C4822 14 Lot 601 on Plan C4822 15 Lot 602 on Plan C4822 15 Lot 603 on Plan C4822 15 Lot 604 on Plan C4822 15 Lot 605 on Plan C4822 15 Lot 606 on Plan C4822 15 Lot 607 on Plan C4822 15 Lot 608 on Plan C4822 15 Lot 609 on Plan C4822 15 Lot 610 on Plan C4822 15 Lot 611 on Plan C4822 15 Lot 612 on Plan C4822 15 Lot 613 on Plan C4822 15 Lot 614 on Plan C4822 15 Lot 615 on Plan C4822 15 Lot 616 on Plan C4822 15 Lot 617 on Plan C4822 15 Lot 618 on Plan C4822 15 Lot 619 on Plan C4822 15 Lot 620 on Plan C4822 15 Lot 701 on Plan C4822 15 Lot 702 on Plan C4822 15 Lot 703 on Plan C4822 15 Lot 704 on Plan C4822 15 Lot 705 on Plan C4822 15 Lot 706 on Plan C4822 15 Lot 707 on Plan C4822 15 Lot 708 on Plan C4822 15 Lot 709 on Plan C4822 15 Lot 710 on Plan C4822 15 Lot 711 on Plan C4822 15 Lot 712 on Plan C4822 15 Lot 713 on Plan C4822 15 Lot 714 on Plan C4822 15 Lot 715 on Plan C4822 15 Lot 716 on Plan C4822 15 Lot 717 on Plan C4822 15 Lot 718 on Plan C4822 15 Lot 719 on Plan C4822 15 Lot 720 on Plan C4822 15 Lot 801 on Plan C4822 15 Lot 802 on Plan C4822 15 Lot 803 on Plan C4822 15 Lot 804 on Plan C4822 15 Lot 805 on Plan C4822 15 Lot 806 on Plan C4822 15 Lot 807 on Plan C4822 15 Lot 808 on Plan C4822 15 Lot 809 on Plan C4822 15 Lot 810 on Plan C4822 15 Lot 811 on Plan C4822 15 Lot 812 on Plan C4822 15 Lot 813 on Plan C4822 15 Lot 814 on Plan C4822 15 Lot 815 on Plan C4822 15 Lot 816 on Plan C4822 15 Lot 817 on Plan C4822 15 Lot 818 on Plan C4822 15 Lot 819 on Plan C4822 15 Lot 820 on Plan C4822 15 Lot 24 on Plan C5041 12 * Lot 27 on Plan C5041 12 * Lot 28 on Plan C5041 12 * Lot 66 on Plan C5041 13 Lot 129 on Plan C5041 13 Lot 131 on Plan C5041 13 Lot 134 on Plan C5041 13 Lot 136 on Plan C5041 13 Lot 137 on Plan C5041 13 Lot 140 on Plan C5041 13 Lot 180 on Plan C5041 12 * Lot 184 on Plan C5041 12 Lot 203 on Plan C5041 12 Lot 204 on Plan C5041 12 Lot 205 on Plan C5041 12 Lot 229 on Plan C5041 12 Lot 230 on Plan C5041 12 Lot 231 on Plan C5041 12 Lot 232 on Plan C5041 12 Lot 233 on Plan C5041 12 Lot 234 on Plan C5041 12 * Lot 235 on Plan C5041 12 * Lot 236 on Plan C5041 12 Lot 237 on Plan C5041 12 * Lot 300 on Plan C5041 13 * Lot 312 on Plan C5041 13 * Lot 400 on Plan C5041 13 * Lot 401 on Plan C5041 13 * Lot 402 on Plan C5041 13 * Lot 403 on Plan C5041 13 Lot 407 on Plan C5041 13 Lot 408 on Plan C5041 13 Lot 501 on Plan C5041 13 * Lot 502 on Plan C5041 13 * Lot 503 on Plan C5041 13 Lot 504 on Plan C5041 13 * Lot 505 on Plan C5041 13 * Lot 506 on Plan C5041 13 * Lot 507 on Plan C5041 13 * Lot 508 on Plan C5041 13 * Lot 509 on Plan C5041 13 * Lot 510 on Plan C5041 13 Lot 605 on Plan C5041 13 * Lot 606 on Plan C5041 13 Lot 908 on Plan C5041 13 * Lot 5 on Plan C5043 13 * Lot 6 on Plan C5043 13 * Lot 8 on Plan C5048 13 Lot 8 on Plan C5049 13 Lot 4 on Plan C8279 14 Lot 45 on Plan CP851407 5 Lot 2 on Plan CP880994 21, 23 Lot 23 on Plan CP903197 11 Lot 24 on Plan LD105 10, 13 Lot 25 on Plan LD107 11, 13 Lot 51 on LD108 excluding that area of former road (Hill Street) shown on Plan C5041 that falls within the subject lot. 13 Lot 3 on Plan LD109 23 Lot 27 on Plan LD110 7 Lot 38 on Plan LD126 10 Lot 43 on Plan LD129 9, 10 Lot 4 on Plan LD133 23 Lot 4 on Plan LD135 19 Lot 5 on Plan LD140 19 Lot 40 on Plan LD147 10 Lot 5 on Plan LD151 5 Lot 46 on Plan LD151 5, 7 Lot 48 on Plan LD151 5 Lot 2 on Plan LD153 25 Lot 18 on Plan LD154 10, 13 Lot 130 on Plan LD155 10 Lot 4 on Plan LD2 10 Lot 17 on Plan LD28 10, 13 Lot 13 on Plan LD30 4 * Lot 12 on Plan LD31 7 * Lot 16 on Plan LD32 8 Lot 21 on Plan LD92 11, 13 Lot 22 on Plan LD94 10, 13 * Lot 19 on Plan LD98 7 Lot 47 on Plan LD98 7 Lot 34 on Plan LD99 9 Lot 102 on Plan M4872 6 Lot 103 on Plan M4872 6 Lot 110 on Plan M4872 6 Lot 111 on Plan M4872 6 Lot 113 on Plan M4872 6 Lot 114 on Plan M4872 6 Lot 115 on Plan M4872 6 Lot 117 on Plan M4872 6 * Lot 118 on Plan M4872 6 * Lot 119 on Plan M4872 6 * Lot 120 on Plan M4872 6 * Lot 201 on Plan M4872 6 Lot 202 on Plan M4872 6 Lot 203 on Plan M4872 6 Lot 204 on Plan M4872 6 Lot 206 on Plan M4872 6 Lot 207 on Plan M4872 6 Lot 208 on Plan M4872 6 Lot 209 on Plan M4872 6 Lot 210 on Plan M4872 6 Lot 211 on Plan M4872 6 Lot 212 on Plan M4872 6 Lot 213 on Plan M4872 6 Lot 214 on Plan M4872 6 Lot 215 on Plan M4872 6 Lot 216 on Plan M4872 6 Lot 217 on Plan M4872 6 Lot 218 on Plan M4872 6 Lot 219 on Plan M4872 6 Lot 220 on Plan M4872 6 Lot 304 on Plan M4872 6 * Lot 305 on Plan M4872 6 Lot 306 on Plan M4872 6 Lot 307 on Plan M4872 6 * Lot 308 on Plan M4872 6 * Lot 309 on Plan M4872 6 * Lot 310 on Plan M4872 6 * Lot 313 on Plan M4872 6 Lot 314 on Plan M4872 6 Lot 315 on Plan M4872 6 Lot 316 on Plan M4872 6 Lot 317 on Plan M4872 6 Lot 318 on Plan M4872 6 Lot 319 on Plan M4872 6 Lot 320 on Plan M4872 6 * Lot 407 on Plan M4872 7 Lot 408 on Plan M4872 7 Lot 409 on Plan M4872 7 Lot 410 on Plan M4872 7 Lot 411 on Plan M4872 7 Lot 412 on Plan M4872 7 Lot 414 on Plan M4872 7 Lot 415 on Plan M4872 7 Lot 416 on Plan M4872 7 Lot 417 on Plan M4872 7 Lot 501 on Plan M4872 6 * Lot 502 on Plan M4872 6 Lot 503 on Plan M4872 6 Lot 711 on Plan M4872 6 Lot 712 on Plan M4872 6 Lot 713 on Plan M4872 6 Lot 714 on Plan M4872 6 Lot 715 on Plan M4872 6 Lot 716 on Plan M4872 6 Lot 717 on Plan M4872 6 Lot 1342 on Plan MPH15866 11 * Lot 1343 on Plan MPH15866 11 Lot 1347 on Plan MPH15866 11 Lot 1351 on Plan MPH15866 11 * Lot 1367 on Plan MPH15866 11 Lot 1376 on Plan MPH15866 11 Lot 973 on Plan MPH1812 10 * Lot 1 on Plan MPH1960 19 * Lot 1 on Plan MPH24610 19 * Lot 1003 on Plan MPH24672 10 * That part of Lot 1 on Plan MPH24857 excluding former ML2978 on Plan MP40330 8 * Lot 1016 on Plan MPH24933 10 * Lot 1283 on Plan MPH24955 10 * Lot 1 on Plan MPH24973 19 * Lot 425 on Plan MPH24973 19 * Lot 495 on Plan MPH31686 11 * Lot 693 on Plan MPH33391 10 * Lot 1 on Plan MPH34353 13 Lot 2 on Plan MPH34353 13 Lot 7 on Plan MPH40935 13 * Lot 33 on Plan NPW573 30 That part of Lot 233 on Plan NPW800 excluding former MHL 326 on Plan MPH14252, former MHL 327 on Plan MPH14252, former MHL 439 on Plan MPH24673 and former MHL 441 on Plan MPH24673. 4, 5, 6, 7, 9, 10, 11, 12 Lot 137 on Plan OL31 26, 27 Lot 154 on Plan OL32 26, 28 Lot 3708 on Plan PH164 18, 24, 25 Lot 5309 on Plan PH1681 1, 16 Lot 1 on Plan SP101787 5, 7 New Road identified as Road and delineated by stations a-b-c-a & c-e-f-g-h-j-d-c on Plan SP101788 5 ~ Lot 600 on Plan SP101788 4, 5, 8 Lot 4 on Plan SP104550 11 Lot 11 on Plan SP104550 4, 9 Lot 2 on Plan SP116768 25, 29 Lot 250 on Plan SP116768 25, 26, 29, 30 Lot 852 on Plan SP129934 25 Lot 853 on Plan SP129934 25 Lot 50 on Plan SP139184 13 Lot 3 on Plan SP150971 4, 5, 9, 10, 11, 13, 14, 15, 18, 21, 22 Lot 50 on Plan SP150971 10 ~ That part of Lot 49 on Plan SP171527 excluding former MHL 1156 on Plan MPH14278, former MHL 216 on Plan MPH14278, former MHL 217 on Plan MPH14278, former MHL 218 on Plan MPH14278, former MHL 219 on Plan MPH14278, former MHL 220 on Plan MPH14278, former MHL 241 on Plan MPH24842 and former MHL 242 on Plan MPH24842. 10, 11 Lot 2 on Plan SP196221 1, 2, 3, 17 New Road identified as Road and delineated by stations 1-3-11-13-10-15-17-2-1 on Plan SP233811 10 ~ Lot 53 on Plan SP233811 10 Lot 54 on Plan SP233811 10 Lot 55 on Plan SP233811 10 Lot 56 on Plan SP233811 10 Lot 57 on Plan SP233811 10 Lot 59 on Plan SP233811 10, 12, 13 * Lot 60 on Plan SP233811 10, 13 Lot 61 on Plan SP233811 10, 13 Lot 62 on Plan SP233811 11 Lot 63 on Plan SP233811 11, 13 Lot 64 on Plan SP233811 10, 13 New Road identified as Road and delineated by stations 1-3-5-5a-1 shown on Plan SP240372 10, 13 ~ Lot 26 on Plan SP240372 10, 12, 13 Lot 2238 on Plan SP284108 26, 27 Lot 2 on Plan SP299961 1, 2 Lot 5154 on Plan SP332656 excluding any areas described as closed road shown on Plan SP332656 21, 25, 26 New Road identified as New Road Shown on Plan SP332656 excluding any areas described as closed road shown on Plan SP332656 21, 25 Lot 3 on Plan USL21049 10, 13 Lot 13 on Plan USL21050 11 * Lot 11 on Plan USL21076 12 Lot 13 on Plan USL21076 12 * Lot 14 on Plan USL21076 12 * Lot 19 on Plan USL21076 12, 13 * Lot 25 on Plan USL21076 13 * Lot 30 on Plan USL21076 13 * Lot 29 on Plan USL21077 10 * Lot 5 on Plan USL21079 13 * Lot 7 on Plan USL21079 13 * Lot 4 on Plan USL21093 13 * Lot 9 on Plan USL21093 13 * Lot 27 on Plan USL21093 13 * Lot 30 on Plan USL21093 13 * Lot 35 on Plan USL21093 13 * Lot 37 on Plan USL21093 13 * Lot 39 on Plan USL21093 13 * Lot 42 on Plan USL21093 13 * Lot 6 on Plan USL21103 21 Lot 51 on Plan USL21564 5 Lot 52 on Plan USL21564 5 Lot 53 on Plan USL21564 5 Lot 60 on Plan USL21564 5, 6 Lot 71 on Plan USL21564 5 Lot 73 on Plan USL21564 5 Lot 74 on Plan USL21564 5 Lot 17 on Plan USL21569 9 Lot 12 on Plan USL22005 5, 6, 8 Lot 15 on Plan USL22005 5, 7, 8 Lot 85 on Plan USL22005 6, 8 * Lot 110 on Plan USL22005 6 * Lot 125 on Plan USL22005 6, 8 * Lot 133 on Plan USL22005 6, 7 Lot 136 on Plan USL22005 6, 7 Lot 142 on Plan USL22005 8 * Lot 151 on Plan USL22005 8 * Lot 163 on Plan USL22005 8 * Lot 3 on Plan USL22039 5, 6 * Lot 8 on Plan USL22039 5, 6, 7 Lot 15 on Plan USL22039 7 Lot 28 on Plan USL22039 7 Lot 35 on Plan USL22039 7 Lot 48 on Plan USL22039 4 Lot 51 on Plan USL22039 4, 5 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: Tate River Rocky Tate River Walsh River Lynd River Chillagoe Creek Mero Creek Paddock Creek Sandy Tate River
~ denotes areas to which s 24KA of the Native Title Act 1993 (Cth) applies
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:
Schedule 6 - Map of Determination Area Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J 1 Before the Court are three Native Title Determination Applications under the Native Title Act 1993 (Cth) (the Native Title Act). The applications were made by applicants representing Wakaman People, namely Wakaman People #3 (QUD 746/2015), Wakaman People #4 (QUD728/2017) and Wakaman People #5 (QUD178/2018). 2 It is convenient to set out relevant background material prior to turning to the key issues before the Court.
WAKAMAN PEOPLE #3: GENERAL BACKGROUND 3 The Wakaman People #3 application was originally filed on 24 August 2015. On 9 June 2017, Reeves J granted leave to replace the then Wakaman People #3 applicant (John Alvoen, Rodney Riley, Francis Deemal, William Thomas and Robyn Hooley) with a new applicant comprising John Alvoen, Rodney Riley, Shenda Evans, William Thomas and Robyn Hooley. 4 On 30 June 2017, the applicant filed an Amended Form 1 Native Title Determination Application reflecting the new applicant. A related non-claimant application by GAG Crystalbrook Station Pty Ltd (QUD143/2015) was discontinued by orders made on 2 December 2022. A Further Amended Claimant Application was filed on 24 June 2023. 5 Current respondents to the Wakaman People #3 native title application are: The State of Queensland; Mareeba Shire Council; Penny McClymont; and Rex McClymont. 6 The Wakaman People #3 claim group are Wakaman People, being descendants (including through adoption or raising up in accordance with traditional laws and customs) of one or more of the following people: (1) Alex Chillagoe (father of Bethel Andrews, Jane Wallace, Mildred McLeod and Jessima York); (2) Bujulimba (mother of Phil Alpin Snr and grandmother of Phil Alpin Jnr); (3) Charlie (father of Larkin aka Larkie Ferguson and Jackie Hackett); (4) Geramutami; (5) Jaingkali aka Nellie Hackett aka Minnie Chillagoe; (6) Jessie Croydon and her son Jerry Croydon; (7) Jinnie Denford (mother of Alick Brown and May Ezzy aka May Brown); (8) Kandjuldi and Ngululinjeir (parents of Charlie Oak Park aka Charlie Leftbridge); (9) Maggie (mother of Charlie Brown and Bob Brown); (10) Margaret Maude (mother of Albert Thomas, Louise Malthouse, Maude Ludwick and Agnes Henry); (11) Maude Byrne; (12) Mick McTavish Snr (father of Jessie Chong and Fred Fulford, and grandfather of Daisy Thomas); (13) Micky Atherton aka Micky Cameron Snr (father of Roley Cameron and Micky Atherton Jnr); (14) Mitchell Dodd; (15) Nellie (mother of Ruby Riley nee Alpin, Phil Alpin Jnr and Herbert Alpin aka Herbert Brown); (16) Rosie Rosendale (mother of Leo Rosendale, husband of Elma Marr); (17) Spider (father of Maggie and grandfather of Harold Jackson, Jubilee Jackson, Phoebe Jackson and Maggie Fox); or (18) William and Emily Fulford (parents of Henry Fulford). (Wakaman apical ancestors) 7 The native title applicant in Wakaman People #3 has applied for determination of native title under s 61(1) of the Native Title Act in respect of lands and waters in north Queensland. As at the date of judgment, the land and waters the subject of the application can be described as Lot 2 on Plan LD157, excluding the following: 1. Those land and waters within the Lot 2 on Plan LD157 which at the time the native title determination application was made were, or had been, the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth). 2. Specifically, and to avoid any doubt, the land and waters described in (1) above includes: (a) the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; (b) the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth). 3. Those land and waters within the Lot 2 on Plan LD157 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 Lot 2 on Plan LD157 which, at the time the native title determination application was made, were the subject of one or more Preexisting Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title. (Wakaman People #3 Determination Area). 8 The Wakaman People #3 Determination Area is represented by the following map:
WAKAMAN PEOPLE #4: GENERAL BACKGROUND 9 The Wakaman People #4 application was filed on 19 December 2017 in response to the lodgment of two non-claimant applications - QUD350/2017 and QUD351/2017 - by members of the O'Shea family. I note that the non-claimant application in QUD350/2017 was discontinued by Orders made on 20 April 2023, and the non-claimant application in QUD351/2017 by James William O'Shea and Janelle Lynette O'Shea was amended pursuant to Orders made on 10 May 2023 to specifically exclude any area subject to the Wakaman People #4 application. 10 The Wakaman People #4 native title applicant comprises: John Alvoen; William Thomas; Robyn Hooley; Raelene Madigan; and Carol Payne. 11 The respondents to the Wakaman People #4 application are: The State of Queensland; Mareeba Shire Council; Bradley Thomas O'Shea; Emma Elizabeth O'Shea; James William O'Shea; Janelle Lynette O'Shea; Lance Frank O'Shea; Ergon Energy Corporation Limited; and Telstra Corporation Limited. 12 The Wakaman People #4 claim group are the Wakaman People, being descendants (including through adoption or raising up in accordance with traditional laws and customs) of the Wakaman apical ancestors. 13 The native title applicant in Wakaman People #4 has applied for a determination of native title under s 61(1) of the Native Title Act in respect of lands and waters in north Queensland. As at the date of judgment, the external boundaries of the area claimed can be described as follows: The area of land and waters commencing at the south eastern corner of Lot 262 on OL33, also being a point on the northern bank of the Tate River and extending generally westerly along that river bank to its intersection with the south eastern corner of Lot 813 on SP129930; then southerly across that river to the north western corner of Lot 821 on SP129931; then generally southerly and south westerly along the western boundaries of that lot and Lot 831 on SP129932 to their intersection with the northern bank of Rocky Tate River also being the southern boundary of Lot 424 on OL49; then generally westerly and generally northerly along the southern and western boundaries of that lot, across the Tate River, along the western boundaries of Lot on 262 on OL33, Lot 415 on OL46 and Lot 3795 on SP139718 (Quaker Hill Holding) to the southern boundary of Lot 3 on SP150971 (Aroonbeta); then generally easterly, generally southerly and again generally easterly along the northern and eastern boundaries of again Lot 3795 on SP139718 to its intersection with the western boundary of Lot 801 on SP129929; then east to a point on the western boundary of Lot 328 on OL37 at Latitude 17.351513° South; then generally north easterly, generally northerly and generally north westerly along the western and northern boundaries of that lot, Lot 7 on SP136297 and Lot 285 on OL34 to the southern boundary of Lot 6 on USL21103; then easterly to the western boundary of Lot 4698 on PH801 (Scardons Hill Holding); then northerly and easterly along the western and northern boundary of that lot to its intersection with Indigenous Land Use Agreement QI2005/011 Bar Barrum Small Mining; then south westerly along the boundary of that ILUA to the north western corner of Lot 18 on LD96; then generally south westerly along the north western boundary of that lot to its intersection with the eastern boundary of Lot 771 on SP129928; then south westerly to the north eastern corner of Lot 328 on OL37; then generally south easterly, southerly and generally westerly along the eastern and southern boundaries of that lot to its intersection with the eastern boundary of Lot 262 on OL33; then southerly along the eastern boundary of Lot 262 on OL33 back to the commencement point. The area above excludes any land or waters covered by the Indigenous Land Use Agreement QI2005/011 Bar Barrum Small Mining accepted for registration by the National Native Title Tribunal on 12 March 2007. 14 The following areas of land and waters are excluded: 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, including but not limited to, the whole of the land and waters described as: (i) Lot 21 on LD144; 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 Preexisting Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title. (Wakaman People #4 Determination Area) 15 The Wakaman People #4 Determination Area is represented holistically by the following map:
WAKAMAN PEOPLE #5: GENERAL BACKGROUND 16 The Wakaman People #5 application was filed on 26 March 2018 by: John Alvoen; William Thomas; Robyn Hooley; Raelene Madigan; and Carol Payne. 17 As at the date of judgment the respondents to the Wakaman People #5 application are: The State of Queensland; Mareeba Shire Council; Tablelands Regional Council; Ergon Energy Corporation Limited; Telstra Corporation Limited; Australian Finegrain Marble Pty Ltd; John Anthony Foote; Janelle Florance Foote; Eugene John Matthews; Heather Jean Matthews; Penny Renee McClymont; Rex Edward McClymont; Robert O'Shea; and White River Resources Pty Ltd. 18 The Wakaman People #5 claim group are Wakaman People, being descendants (including through adoption or raising up in accordance with traditional laws and customs) of the Wakaman apical ancestors. 19 On 24 March 2023 Sarah C Derrington J made the following orders: 1. The proceedings remain in case management before a Judicial Registrar - Native Title. 2. QUD178/2018 be partitioned into two parts, as follows - a) that part of QUD178/2018 comprised in Lot 58 on SP233811 (the Part B Area); and b) the balance of QUD178/2018 (the Part A Area). 3. The proceedings be tentatively listed before Justice Collier for a consent determination hearing on 18 August 2023 in Chillagoe as follows: a) QUD746/2015 (Wakaman People #3) and QUD728/2017 (Wakaman People #4), pursuant to s 87 of the Native Title Act 1993 (Cth); b) the Part A Area of QUD178/2018 (Wakaman People #5), pursuant to s 87A of the Native Title Act 1993 (Cth). 4. The Part B Area of QUD178/2018 is adjourned to the Northern call over on 25 August 2023. 5. At least seven days prior to the next Northern call over, the Applicant is to file and serve a progress report after consultation with the respondents. 20 The area identified as Part B by Sarah C Derrington J is not the subject of this judgment. 21 The external boundary of the claim the subject of present determination represents the Part A Area identified in her Honour's orders, and is as follows: The area of land and waters commencing at the intersection of the centreline of the Lynd River and southern bank of the Tate River and extending generally north easterly passing through the following coordinate points: Longitude (East) Latitude (South) 143.739773 17.336163 143.750668 17.304297 143.76309 17.272990 143.776146 17.241940 143.780948 17.229476 143.788665 17.209446 143.800114 17.176555 143.811636 17.143689 143.824256 17.111233 143.829857 17.099354 143.839104 17.079743 143.857558 17.050245 143.881136 17.024715 143.910518 17.006254 143.936499 16.997658 143.963287 16.991937 143.990224 16.986938 144.015879 16.982372 144.041652 16.978514
Then north easterly to intersect with the centreline of the Walsh River at Longitude 144.048308° East; then generally easterly along the centreline of that river to Longitude 144.698988° East; then generally southerly passing through the following coordinate points: Longitude (East) Latitude (South) 144.698239 17.075700 144.699909 17.083264 144.699860 17.086849 144.698927 17.092891 144.702316 17.096427 144.702857 17.103697 144.708996 17.107332 144.707965 17.113913 144.711600 17.119464 144.710617 17.125211 144.708210 17.126881 144.699566 17.126831 144.697159 17.126193 144.692394 17.126831 144.690233 17.130073 144.690233 17.134199 144.694261 17.138620 144.694506 17.140535 144.699181 17.145681
Longitude (East) Latitude (South) 144.710983 17.152724 144.703940 17.161480 144.697087 17.160529 144.683762 17.169095 144.698800 17.173663 144.707176 17.184514 144.715742 17.191366 144.721453 17.202597 144.719168 17.219730
Then south easterly to intersect with a western boundary of QI2005/011 Bar Barrum Small Mining ILUA at Latitude 17.224122° South then south westerly along that ILUA boundary to its intersect with the northern boundary of Lot 4698 on PH801 (Scardons Hill Holding), then westerly, southerly along the northern and western boundaries of that lot, then westerly and south easterly along the northern and western boundaries of Lot 285 on OL34 to intersect with the northern boundary of Lot 7 on SP136297 (Mungana Branch Railway); then generally south westerly and south easterly along the boundaries of that lot to intersect with the southern boundary of Lot 801 on SP129929 (Etheridge Railway); then generally south westerly along that boundary to Latitude 17.351513° South; then westerly to the easternmost north eastern corner of the northern boundary of the easternmost severance of Lot 3795 on SP139718 (Quaker Hill Holding); then generally westerly, northerly and again generally westerly along the northern and eastern boundaries of that lot, crossing any roads to a north eastern corner of Lot 2 on LD157 (Chillagoe); then westerly, northerly, north westerly, south westerly, easterly, southerly, generally north easterly and generally south easterly along the boundaries of that lot to its southernmost corner; then southerly across the Tate River to a north western corner of Lot 424 on OL49; then generally southerly, generally south easterly, generally north easterly and generally northerly along the boundaries of that lot, crossing any roads to its intersect with the southern bank of the Tate River; then north easterly across that river to the south western corner of the south easternmost severance of Lot 262 on OL33; then generally south easterly and generally easterly along southern boundaries of that lot to the western boundary of Lot 423 on OL48; then southerly along the prolongation southerly of the western boundary of that lot to the intersect with the centreline of the Tate River; then generally south easterly along the centreline of that river and the south western bank of Packsaddle Creek to Longitude 144.907218° East, being a point on the western boundary of the QI2005/011 Bar Barrum Small Scale Mining ILUA; then south easterly along that ILUA boundary to its intersect with the western boundary of the Herbert River Drainage Basin Sub-area boundary; then generally southerly along the boundaries of that drainage basin sub-area boundary to Latitude 18.086143° South; then north westerly to the source of the Lynd River at approximately Longitude 144.853977° East, Latitude 18.081474° South; then generally north westerly, generally westerly and again generally north westerly along the centreline of the Lynd River back to the commencement point. Exclusions Native Title Determination Application QUD350/2017 - Lance Frank, Bradley Thomas & Emma Elizabeth O'Shea (QN2017/005) as filed with the Federal Court on 14 July 2017. Native Title Determination Application QUD351/2017 - James William Malcolm and Janelle Lynette O'Shea (QN2017/006) as filed with the Federal Court on 14 July 2017. Native Title Determination Application QUD746/2015 - Wakaman People #3 (QC2015/011) as accepted for registration on 22 December 2015. Indigenous Land Use Agreement - QI2003/045 Djungan Small Scale Mining and Exploration as accepted for registration 29/11/2004. (Wakaman People #5 Determination Area) 22 The Wakaman People #5 Determination Area is represented holistically by the following map:
INTER-RELATIONSHIP OF CLAIMS, AND NON-CLAIMANT APPLICATIONS 23 The relationship between Wakaman People #3, Wakaman People #4 and Wakaman People #5 can be summarised as follows: Wakaman People #3 and Wakaman People #4 are located within (although excluded from) a much larger area covered by Wakaman People #5; Wakaman People #3 and Wakaman People #4 are adjacent to each other, and Wakaman People #5 surrounds them both; and Wakaman People #3 and Wakaman People #4 were responsive to non-claimant applications. 24 Further, and as I have already observed, Wakaman People #5 was partitioned into two parts, namely: that part of QUD178/2018 comprised in Lot 58 on SP233811, namely the Part B Area (I note that the Part B has been adjourned to the Northern call over on 25 August 2023); and the balance of QUD178/2018, namely the Part A Area (the subject of the present reasons for judgment). 25 Relevant non-claimant applications were: QUD143/2015, which was overlapped entirely by Wakaman People #3; QUD350/2017, which was overlapped entirely by Wakaman People #4; and QUD351/2017, which was overlapped in part by Wakaman People #4 and also extended to the east of the Wakaman People #4 most northern boundary. 26 It is not in dispute that these non-claimant applications have been resolved, in that: QUD143/2015 was discontinued on 2 December 2022; QUD350/2017 was discontinued on 20 April 2023; and QUD351/2017 was amended by Orders made on 10 May 2023 pursuant to Federal Court Rules 2011 (Cth) r 8.21, with the amended application filed on 1 June 2023 such that the area it covers was reduced and no longer overlaps with Wakaman People #4.
WAKAMAN PEOPLE #3, WAKAMAN PEOPLE #4 AND WAKAMAN PEOPLE #5: AGREEMENTS 27 The Wakaman People held a claim group meeting on 12 May 2022. Following that meeting a Further Statement of Agreed Facts as to connection was signed by the applicant and the State in each proceeding, and filed in the Court on 2 June 2022. I note that this Further Statement of Agreed Facts should be read with earlier Statements of Agreed Facts filed in the proceedings on 6 August 2020 and 31 May 2021. 28 Pursuant to these statements of agreed facts the applicant and the State agreed, inter alia, that the Wakaman apical ancestors, more probably than not, held rights and interests in the Wakaman People #3, Wakaman People #4 and Wakaman People #5 determination areas, under pre-sovereignty laws and customs acknowledged and observed by the Aboriginal people associated with those areas prior to and as at effective sovereignty. They also agreed, in summary: prior to sovereignty and at effective sovereignty, the Wakaman People in the Wakaman People #3, Wakaman People #4 and Wakaman People #5 determination areas were united in and by their acknowledgement and observance of a body of laws and customs; there has been continuity in the acknowledgement and observance of at least some of the pre-sovereignty laws and customs by the Wakaman People and their ancestors; although the pre-sovereignty laws and customs have undergone varying degrees of loss, change and adaptation, the contemporary system of laws and customs under which rights and interests in the land and waters of determination areas are held remains rooted in the pre-sovereignty normative system; and by their continued acknowledgement and observance of at least some of the pre-sovereignty laws and customs, the Wakaman People have a connection to the determination areas. 29 In an affidavit filed on 26 July 2023, Ms Susan Walsh, the lawyer with carriage of the Wakaman native title determination applications since July 2020 for the applicant in each proceeding, deposed: 20. … Since 2 June 2022, the Applicant, State and active tenure respondent parties have been engaging in confidential and without prejudice discussions for progressing issues towards consent determinations of the Wakaman claims pursuant to an agreed timetable. This has involved analysis and reaching agreement in principle with respect to tenure and public works extinguishment; how the respondent parties' interests are to be recognised in the consent determinations; and reaching in principle agreement on the form of s 87/s 87 A agreements and consent determinations for the Wakaman claims. 30 It is not in dispute that on 18 April 2023 the applicants, the State and the tenure respondent parties reached, in principle, agreement on draft s 87/s 87A agreements and consent determinations for the Wakaman claims. 31 On or before 17 May 2023 final amended draft agreements and consent determinations were circulated by the State for execution by the parties (including Uwoykand Corporation Pty Ltd, then a respondent to QUD178/2018, but which has since been removed as a party: Alvoen on behalf of the Wakaman People #5 v State of Queensland (No 4) [2023] FCA 837). 32 On 24 July 2023 the following documents were filed and served by the State: agreement under s 87 of the Native Title Act signed on behalf of all of the parties for the Wakaman People #3 claim; agreement under s 87 of the Native Title Act signed on behalf of all of the parties for the Wakaman People #4 claim; and agreement under s 87A of the Native Title Act signed on behalf of all of the parties for the Wakaman People #5 claim.
RELEVANT LEGISLATION 33 Section 81 of the Native Title Act provides: Jurisdiction of the Federal Court The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court. 34 Sections 87 of the Native Title Act empowers the Federal Court to make orders in relation to the whole of a claimed area. The agreements, and determinations currently sought, in respect of the Wakaman People #3 Determination Area and the Wakaman People #4 Determination Area concern the whole area now encompassed by those claims. 35 Section 87 provides: 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. When a registered native title claimant is taken to be a party to the agreement (1AA) The requirements that a party to the proceedings that is a registered native title claimant be a party to the agreement and sign the terms of the agreement are satisfied if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms - those persons are parties to the agreement and sign the terms. (1AB) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1AA)(a). A failure to comply with this subsection does not invalidate the agreement or any signature. Power of Court (1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with: (a) whichever of subsection (2) or (3) is relevant in the particular case; and (b) if subsection (5) applies in the particular case - that subsection. Agreement as to order (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Agreement as to part of proceedings (3) If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates. Orders about matters other than native title (4) Without limiting subsection (2) or (3), if the order under that subsection does not involve the Court making a determination of native title, the order may give effect to terms of the agreement that involve matters other than native title. (5) Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title. (6) The jurisdiction conferred on the Court by this Act extends to: (a) making an order under subsection (2) or (3) that gives effect to terms of the agreement that involve matters other than native title; and (b) making an order under subsection (5). (7) The regulations may specify the kinds of matters other than native title that an order under subsection (2), (3) or (5) may give effect to. Agreed statement of facts (8) If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court. (9) Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court. (10) In considering whether to make an order under subsection (2), (3) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include: (a) the applicant; and (b) the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached. (11) In considering whether to accept under subsection (10) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (9). (12) A reference in subsections (8) to (11) to the parties to the proceeding includes a reference to the Commonwealth Minister if the Commonwealth Minister is intervening in the proceeding at the time a statement of facts is agreed. 36 Section 87A of the Native Title Act empowers the Federal Court to make orders in relation to part of a claimed area. The agreement, and determination currently sought, in respect of the Wakaman People #5 Determination Area, concerns Part A of the claim area as previously explained. Section 87A provides: 87A Power of Federal Court to make determination for part of an area Application (1) This section applies if: (a) there is a proceeding in relation to an application for a determination of native title; (b) at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) that is part of, but not all of, the area covered by the application; and (c) all of the following are parties to the agreement: (i) the applicant; (ii) each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made; (iv) each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made; (v) each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made; (vi) each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made; (vii) the Commonwealth Minister, if the Commonwealth Minister is a party to, or is intervening in, the proceeding at the time the agreement is made; (viii) if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made; (ix) any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and (d) the terms of the proposed determination are in writing and signed by or on behalf of each of those parties. Note: For agreements reached in relation to the whole of the area covered by the application, see section 87. When a registered native title claimant is taken to be a party to the agreement (1A) The requirements that a registered native title claimant be a party to the agreement and sign the terms of the proposed determination are satisfied if: (a) a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or (b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms - those persons are parties to the agreement and sign the terms. (1B) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1A)(a). A failure to comply with this subsection does not invalidate the agreement or any signature. Proposed determination may be filed with the Court (2) A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court. Certain parties to the proceeding to be given notice (3) The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. Orders may be made (4) The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that: (a) an order in, or consistent with, the terms of the proposed determination would be within its power; and (b) it would be appropriate to do so. Note: As the Court's order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders). (5) Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that: (a) the order would be within its power; and (b) it would be appropriate to do so. (6) The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5). (7) The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to. Objections (8) In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings. Agreed statement of facts (9) If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court. (10) Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court. (11) In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include: (a) the applicant; and (b) the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached. (12) In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10). (13) A reference in subsections (9) to (12) to the parties to the proceeding includes a reference to the Commonwealth Minister if the Commonwealth Minister is intervening in the proceeding at the time a statement of facts is agreed. 37 Section 87 of the Native Title Act provides that, where all parties to a proceeding holding an interest in the area of a proposed determination agree on the terms of a consent order, the Court may, if it appears to be appropriate to do so, make an order in those terms without conducting a hearing. The key issues are whether, in the circumstances of the case, the Court has power to order that native title exists in respect of the determination area, and whether it is appropriate to do so. 38 Similarly, under s 87A of the Native Title Act the Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that an order in, or consistent with, the terms of the proposed determination would be within its power; and it would be appropriate to do so. Section 87A(1)(c) lists required parties to an agreement under s 87A.
ORDERS SOUGHT 39 The orders sought in the Wakaman matters are in the following terms.
Wakaman People #3 40 The parties ask the Court to make consent orders pursuant to s 87 of the Native Title Act acknowledging that native title exists in favour of the Wakaman People in the Wakaman People #3 Determination Area. Orders sought include that the Wakaman People have non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (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; and (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 41 Further, the proposed orders include: Native title rights and interests are subject to and exercisable in accordance with the Laws of the State and the Commonwealth; and the traditional laws acknowledged and traditional customs observed by the native title holders; The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others; and 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). 42 Other interests in the Wakaman People #3 Determination Area are proposed to continue to have effect. Those other interests can be summarised as: Rights and interests of the public including any subsisting public right to fish and navigate; Rights of the public to enjoy waterways, beds and banks or foreshores of waterways, or stock routes; Any other rights and interests of the State of Queensland or Commonwealth of Australia held or existing by operation of law; Rights and interests of parties to Small Scale Mining & Exploration Activities - Wakaman People ILUA QI2007/036 registered on 25 August 2008 on the Register of Land Use Agreements; Rights and interests of the holders of a rolling term lease PH9/3761 Chillagoe Holding over Lot 2 on Plan LD157 (also known as Crystalbrook Station); Specified rights and interests of the Mareeba Shire Council under its local government jurisdiction and pursuant to its functions under various State Acts; The rights and interests of the State of Queensland and Mareeba Shire Council to access, use, operate, maintain and control the dedicated roads in the Wakaman People #3 Determination Area and the rights and interests of the public to use and access the roads; and Rights and interests of the State of Queensland or any other person existing by reason of the force and operation of legislation (being the Fisheries Act 1994 (Qld); the Land Act 1994 (Qld); the Nature Conservation Act 1992 (Qld); the Forestry Act 1959 (Qld); the Water Act 2000 (Qld); the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); the Mineral Resources Act 1989 (Qld); the Planning Act 2016 (Qld); the Transport Infrastructure Act 1994 (Qld); and the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).
Wakaman People #4 43 The parties ask the Court to make consent orders pursuant to s 87 of the Native Title Act acknowledging that native title exists in favour of the Wakaman People in the Wakaman People #4 Determination Area. Orders sought include that the Wakaman People have non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (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; and (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 44 Further, the proposed orders include: Native title rights and interests are subject to and exercisable in accordance with the Laws of the State and the Commonwealth; and the traditional laws acknowledged and traditional customs observed by the native title holders; The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others; and 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). 45 Other interests in the Wakaman People #4 Determination Area are proposed to continue to have effect. Those other interests can be summarised as: Rights and interests of the public including any subsisting public right to fish and navigate; Rights of the public to enjoy waterways, beds and banks or foreshores of waterways, or stock routes; Any other rights and interests of the State of Queensland or Commonwealth of Australia held or existing by operation of law; Rights and interests of parties to Small Scale Mining & Exploration Activities - Wakaman People ILUA QI2007/036 registered on 25 August 2008 on the Register of Land Use Agreements; Rights and interests of the holders of the following interests granted pursuant to the Land Act 1962 (Qld) or Land Act 1994 (Qld): rolling term lease for pastoral purposes PH9/3795 over Lot 3795 on SP139718 (also known as Quaker Hill); rolling term lease for pastoral purposes PH9/4698 over Lot 4698 on PH801 (also known as Scardons Hill); occupational licence OL9/285 over Lot 285 on OL34; occupational licence OL9/415 over Lot 415 on OL46; occupational licence OL9/44 over Lot 44 on OL29; occupational licence OL9/262 over Lot 262 on OL33; occupational licence OL9/424 over Lot 424 on OL49; and occupational licence OL9/328 over Lot 328 on OL37. Rights and interests of Telstra Corporation Limited (ACN 051 775 556) and its successors in title as the owner or operator of telecommunications facilities within the area, or created pursuant to various post and telecommunications legislation, and for their employees, agents or contractors to access their telecommunications facilities in the area in the performance of their duties; Rights and interests of Ergon Energy Corporation (ACN 087 646 062) as the owner and operator of any works in the area; as the electricity entity under the relevant State legislation; and to enter the area by its employees, agents or contractors to exercise any rights and interests; Specified rights and interests of the Mareeba Shire Council under its local government jurisdiction and pursuant to its functions under various State Acts; The rights and interests of the State of Queensland and Mareeba Shire Council to access, use, operate, maintain and control the dedicated roads in the Wakaman People #4 Determination Area and the rights and interests of the public to use and access the roads; and Rights and interests of the State of Queensland or any other person existing by reason of the force and operation of legislation (being the Fisheries Act 1994 (Qld); the Land Act 1994 (Qld); the Nature Conservation Act 1992 (Qld); the Forestry Act 1959 (Qld); the Water Act 2000 (Qld); the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); the Mineral Resources Act 1989 (Qld); the Planning Act 2016 (Qld); the Transport Infrastructure Act 1994 (Qld); and the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).
Wakaman People #5 46 As I noted earlier in this judgment, the parties seek orders in Wakaman People #5 pursuant to s 87A of the Native Title Act. 47 The agreement between the parties notes the following: A. 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) (NTA) would apply to any park areas within the External Boundary will be addressed after the matter has proceeded to determination. B. The Wakaman People (being the proposed native title holders described in Schedule 1 of the determination) have indicated a desire to enter into negotiations with the State of Queensland in relation to whether section 47C of the NTA would have application to the land and waters within Lot 233 on NPW800 (being a park area which is excluded from the Determination Area) (the park area). C. Subject to paragraph D below, the Applicant and the State of Queensland agree that, if agreement is reached in accordance with s 47C(1)(b) of the NTA that s 47C is applicable to the park area, the State of Queensland would not oppose a new application being brought on behalf of the Wakaman People pursuant to s 13(1)(a) of the NTA, for a determination that native title exists in relation to the park area. D. The agreement of the State of Queensland in paragraph C above not to oppose an application for a determination that native title exists in relation to the park area is subject to the Wakaman People and the State of Queensland having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to the park area. 48 The introduction of s 47C into the Native Title Act in 2020 was explained by Colvin J in Ward, on behalf of the Pila Nature Reserve Traditional Owners v State of Western Australia [2022] FCA 689. There his Honour said: 7 The Native Title Legislation Amendment Act 2021 (Cth) enacted the Native Title Legislation Bill 2020 (Cth) (2020 Bill), which came into effect on 25 March 2021 and introduced s 47C into the Native Title Act. A statement of compatibility with human rights was prepared for the purposes of the 2020 Bill. It included the following: ... the Bill will extend the circumstances in which the past extinguishment of native title may be disregarded and subsequently recognised, thereby promoting the right to enjoy and benefit from culture ... Native title is often extinguished over areas of state, territory and national parks . This means that native title may be unable to be recognised, even where traditional owners maintain strong connections to traditional lands and waters. The insertion of new section 47C recognises the cultural significance that national parks and reserves hold for many native title holders and is strongly supported by Indigenous stakeholders. Many native title holders maintain traditional connections to areas covered by national, state and territory parks , and the exercise of native title rights would generally not interfere or be inconsistent with the protection of these areas - for example, rights to carry out ceremonies or to be buried on country. The amendment may create opportunities for native title parties and governments to agree to joint or co-management arrangements for parks and reserves. This would further promote the right to enjoy and benefit from culture, including by providing greater opportunities for traditional owners to play a role in the management of parks and to live and work on traditional lands. 8 In the second reading speech for the introduction of the 2020 Bill into the House of Representatives, the Attorney-General said: The purpose of this amendment is simply to provide parties with more flexibility to disregard historical extinguishment and will allow for more opportunities for native title to be recognised over areas where important connection to country exists for traditional owners. 9 As now proclaimed, s 47C provides for the possibility of an agreement to be made in relation to an onshore place that comprises the whole or part of a 'park area' (as defined). The Reserve is a park area for the purposes of the provision. An agreement for the purposes of s 47C may be made between an applicant for a native title group and whichever of the Commonwealth, the State or the Territory under whose law the park was set aside. 49 I understand that it is because the applicant and the State wish to enter into negotiations in relation to whether s 47C of the Native Title Act would have application to the land and waters within Lot 233 on NPW800 (being a park area which is excluded from the Wakaman People #5 determination area). I further understand that, for present purposes, I need not have further regard to issues of native title concerning the land and waters within Lot 233 on NPW800. 50 Turning back to the orders sought, the orders sought include that the Wakaman People have non-exclusive rights in the Wakaman People #5 Determination Area to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (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; and (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 51 Further, the proposed orders include: Native title rights and interests are subject to and exercisable in accordance with the Laws of the State and the Commonwealth; and the traditional laws acknowledged and traditional customs observed by the native title holders; The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others; and 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). 52 Other interests in the Wakaman People #5 Determination Area are proposed to continue to have effect. Those other interests can be summarised as: Rights and interests of the public including any subsisting public right to fish and navigate; Rights of the public to enjoy waterways, beds and banks or foreshores of waterways, or stock routes; Any other rights and interests of the State of Queensland or Commonwealth of Australia held or existing by operation of law; The rights and interests of the parties under the following agreements registered on the Register of Land Use Agreements: • Wakamin [sic] People and Australian Fine Grain Marble Pty Ltd #2 ILUA QI2002/035 registered on 28 October 2002; and • Small Scale Mining & Exploration Activities - Wakaman People ILUA QI2007/036 registered on 25 August 2008. The rights and interests of the holder from time to time of mining leases ML 20221, ML 20294, ML 20323, ML 20337, ML 20338, ML 20351, ML 20352, ML 20361, ML 20498, ML 20501, ML 20506, ML 20507, ML 20508, ML 20513, ML 20515 and ML 20516 granted pursuant to the Mineral Resources Act 1989 (Qld), which is currently Australian Finegrain Marble Pty Ltd (ACN 29 010 554 168). Rights and interests of the holders of the following interests granted pursuant to the Land Act 1962 (Qld) or Land Act 1994 (Qld): • rolling term lease for pastoral purposes PH9/2438 Fischer Holding over Lot 5 on BW19 (also known as Bullockhead); • rolling term lease for pastoral purposes PH9/3708 over Lot 3708 on PH164 (also known as Blackman Gap); • rolling term lease for pastoral purposes PH9/2238 over Lot 2238 on SP284108 (also known as Munderra); • rolling term lease PH9/5518 over Lot 2 on BW17 (also known as Lawarra); • rolling term lease TL0/231506 over Lot 2 on SP196221 (also known as Blackdown); • term lease for pastoral purposes TL0/220641 over Lot 4 on BW18 (also known as Pratt); • rolling term lease for pastoral purposes PH9/5154 over Lot 5154 on SP332656 (also known as Whitewater); • rolling term lease for pastoral and low-key tourism purposes PH9/4808 Powis Holding over Lot 2 on SP299961; • rolling term lease for pastoral purposes TL0/236412 over Lot 250 on SP116768 (also known as Sundown); and • occupational licence OL09/154 over Lot 154 on OL32; Rights and interests of Telstra Corporation Limited (ACN 051 775 556) and its successors in title as the owner or operator of telecommunications facilities within the area, or created pursuant to various post and telecommunications legislation, and for their employees, agents or contractors to access their telecommunications facilities in the area in the performance of their duties; Rights and interests of Ergon Energy Corporation (ACN 087 646 062) as the owner and operator of any works in the area; as the electricity entity under the relevant State legislation; and to enter the area by its employees, agents or contractors to exercise any rights and interests; Specified rights and interests of the Mareeba Shire Council and Tablelands Regional Council under their local government jurisdiction and pursuant to their functions under various State Acts; Rights and interests of the State of Queensland, Mareeba Shire Council and Tablelands Regional Council to access, use, operate, maintain and control the dedicated roads in the Wakaman People #5 Determination Area and the rights and interests of the public to use and access the roads; 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; and Rights and interests of the State of Queensland or any other person existing by reason of the force and operation of legislation (being the Fisheries Act 1994 (Qld); the Land Act 1994 (Qld); the Nature Conservation Act 1992 (Qld); the Forestry Act 1959 (Qld); the Water Act 2000 (Qld); the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); the Mineral Resources Act 1989 (Qld); the Planning Act 2016 (Qld); the Transport Infrastructure Act 1994 (Qld); and the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).
POWER OF THE COURT AND APPROPRIATENESS OF ORDERS SOUGHT 53 Section 94A of the Native Title Act provides: Order containing determination of native title An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title). (emphasis in original) 54 Key concepts for present purposes are those set out in ss 223, 224 and 225 of the Native Title Act. These sections provide as follows: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. Statutory rights and interests (3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests. Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act. … 224 Native title holder The expression native title holder, in relation to native title, means: (a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust - the prescribed body corporate; or (b) in any other case - the person or persons who hold the native title. 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: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests. 55 The Wakaman People assert that, under the traditional laws which they acknowledge, and the traditional customs which they observe, they possess rights and interests in relation to the Wakaman People #3 Determination Area, the Wakaman People #4 Determination Area, and the Wakaman People #5 Determination Area (collectively: Wakaman Determination Areas). They further assert that, by those laws and customs, they have a connection with the Wakaman Determination Areas as native title holders. 56 Concluded agreements have been presented to the Court. In such circumstances the Court takes a more limited approach to analysis of the evidence in the proceedings, and the degree to which the parties are required to provide material referable to the satisfaction of the Court. As Mortimer J explained in Freddie v Northern Territory [2017] FCA 867 in the context of an application for a determination of native title following a s 87 agreement: 15. In order to be satisfied that the orders sought are within the power of the Court, consideration must be given to other restrictions or requirements in the Native Title Act. For example, the area covered by the orders must not overlap with any other application for determination of native title (s 67(1)); similarly, the area covered by the orders cannot have been the subject of a previously approved determination of native title (s 68). Further, the orders sought will only be within power if they set out the details of the matters required by s 225 (see s 94A) and if they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c)). 16. The Court's function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court… 17. The Court's function under s 87, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that: A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character… 18. The concept of "appropriateness" in s 87(1A) also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State's agreement that there is a credible and rational basis for the determination proposed. 19. The discretionary evaluation of whether orders are appropriate is a wide one, but the Court must focus on the individual circumstances of each proposed determination: see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (North J). 20. I accept it is also important to see the exercise of the judicial power in s 87 in the context of the Court's jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act. In exercising the discretion under s 87, the Court should pursue the objectives there set out, of promoting "just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible... 21. Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties' agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report. That is not to suggest an expert report is always necessary, but if one has been produced and it forms part of the material upon which the State (or Territory) has relied in agreeing to a determination, it is likely to be appropriate for such a report to be before the Court. Such reports, if filed and relied on by the Court, provide an opportunity for the Court to record at least some of the material establishing connection to the claim area in a publicly accessible form. However there is no need to provide the Court with all of the evidence of the primary facts substantiating native title. Again, that is because the premise of s 87, and the Native Title Act's emphasis on conciliation, is that the parties have freely and on an informed basis come to an agreement… 22. In Brown v Northern Territory of Australia [2015] FCA 1268 at [23], Mansfield J described the task to be undertaken by the Court in the following way: The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. 23. The State, in particular, comes to an agreement under s 87 only after discharging its public responsibilities to ensure the agreement is in the interests of the community it represents. This must involve, but it is not limited to, satisfaction by the State that there is a sufficient basis to put forward the agreement to the Court as one which is capable of satisfying the requirements of s 225 of the Native Title Act. A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties' agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J. 24. The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ). 57 I respectfully adopt these comments, and in that context make the following observations and findings.
Does the Court have power to make the consent determinations sought in each of these proceedings? 58 First, it is not in dispute that the native title determination application in each claim is properly made. 59 Second, it is not in dispute that the native title determinations are in relation to areas for which there is no approved determination of native title within the meaning of s 13(1)(a) of the Native Title Act. 60 Third, I am satisfied that there are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determinations which would otherwise require orders to be made under s 67(1) of the Native Title Act. 61 Fourth, the form of the orders proposed in each of the proceedings complies with ss 94A and 225 of the Native Title Act. 62 I am satisfied that the Court has power to make the determinations sought.
Is it appropriate that the Court make the consent determinations sought in each of these proceedings?
Authority 63 Section 61 of the Native Title Act permits the making of a native title determination application by a person or persons authorised by all the persons 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. I am satisfied that the applicant in each Wakaman proceeding was authorised to bring the determination application, because: Each member of the applicant in each proceeding is a member of the claim group; and The applicant in each proceeding was properly authorised by the Wakaman People claim group, and further properly authorised to agree to each agreement pursuant to s 87 / s 87A of the Native Title Act. In particular I note the following evidence of Ms Walsh in her affidavit filed 26 July 2023 where she deposed: Authorisation meetings of 20 May 2023 in Mareeba 23. I seek leave to refer to paragraphs 43 to 45 of the first Walsh affidavit which describes the steps taken in advance of three authorisation meetings for the Wakaman People claim group on 20 May 2023. A true and correct copy of the authorisation meeting notice dated 28 April 2023 which I caused to be sent by pre-paid post and email to all Wakaman claim group members on NQLC's database is annexed to this affidavit and marked "SW156". As I stated in the first Walsh affidavit, I was present throughout the three authorisation meetings held on 20 May 2023 in Mareeba, as were NQLC Senior Legal Officers, Louise Keepa and Julia Taylor, NQLC Legal Officer, Ashley Jan and NQLC anthropologist, Luis Lopez. 24. At the first. second and third authorisation meetings held on 20 May 2023, the claim group members authorised the amendment of the claim group descriptions and the description of the claimed native title rights and interests in each of the three Wakaman claims, the evidence for which is set out in at paragraphs 46 to 76 of the first Walsh affidavit. On 21 June 2023, Justice Rangiah granted the Applicant leave to amend the Form 1 native title determination applications for the Wakaman claims so that the description of native title claim group and the claimed native title rights and interests aligned with the proposed Wakaman #3, Wakaman #4 and Wakaman #5 determinations. 25. The purpose of the third authorisation meeting, in addition to authorising the amending of the Wakaman claims, was for the members of the Wakaman People claim group to consider authorising proposed s 87 / s 87A agreements and consent determinations for the Wakaman claims and the nomination of a prescribed body corporate to hold and manage the native title rights. 26. I am informed by Luis Lopez and do believe that of the Wakaman People in attendance at the third authorisation meeting held on 20 May 2023, there were no persons there who were not entitled to vote at the third authorisation meeting. 27. I was present throughout the third authorisation meeting and provided information and confidential legal advice to, and answered questions from, the Wakaman People claim group members present at the meeting about the drafts 87/87A agreements and consent determinations. I ensured that sufficient copies of a consolidated version of the draft s 87/87A agreements and consent determinations were tabled for discussion and available to be read through by the persons in attendance at the third authorisation meeting, as I provided information and advice and answered questions about the draft s87A/s 87A agreements and consent determinations. I also arranged for three A3 size maps to be prepared by an external mapping consultant which showed an overview of the areas over which native title rights and interests are proposed to be recognised in each of the three Wakaman claim areas and ensured that sufficient copies of these maps were tabled for consideration by the meeting attendees. Authorisation of the drafts s 87/s 87A agreements and consent determinations 28. At the third authorisation meeting of 20 May 2023, I observed the Wakaman People claim group members present to pass a series of resolutions to convey their agreement and authorisation for the making of the draft s 87/s 87A agreements and consent determinations: 1. Confirming the decision-making process 1.1 This third authorisation meeting is for the members of the Wakaman People as described in resolutions 3.1 above from the first and second authorisation meetings. 1.2 Draft s 87/s 87A agreements and native title consent determinations under the Native Title Act 1993 (Cth) have been tabled at this meeting (draft s 87/87A agreements and consent determinations). 1.3 There is no process of decision-making that, under traditional laws and customs must be complied with in relation to authorising things under the Native Title Act such as draft s 87/87A agreements and consent determinations, amending native title claims or nominating a prescribed body corporate under the Native Title Act, although Wakaman People do have regard to their traditional laws and customs when making decisions about these kinds of matters. 1.4 The Wakaman People present at this third authorisation meeting agree to and adopt the following process of decision-making: 1.1.1 decisions will be made by way of resolutions; 1.1.2 a resolution will be considered to have been passed by this meeting when a majority of those persons present agree to the resolution by a show of hands. 2. Sufficient notice and representativeness of persons attending the meeting 2.1 The Wakaman People present at this third authorisation meeting acknowledge that they: 2.1.1 were given sufficient notice of the time, place, and subject matter of today's meeting, and 2.1.2 are sufficiently representative of the Wakaman People to make important decisions about their native title. 29. I observed that all members of the Wakaman People claim group present at the third authorisation meeting voted in favour of the resolutions at [27] above. 30. From my own knowledge of the composition of the Wakaman People claim group and on information from Luis Lopez, I do believe that there were representatives from all of the family groups who make up the Wakaman People native title claim group at the third authorisation meeting of 20 May 2023, with the exception of one family. Luis Lopez informs me and I do believe that members of this one family are on NQLC's database and receive meeting notices but are generally not active in attending Wakaman claim group meetings. Luis Lopez informs me and I do believe that the one family who did not have a representative at the third authorisation meeting also did not attend the 23-24 November 2017, 24 March 2021 and 12 May 2022 meetings or the first or second authorisation meetings held on 20 May 2023. Ms Walsh gave evidence that she and Ms Julia Taylor gave the legal advice to the Wakaman claim group members at the third authorisation meeting held on 20 May 2023 concerning the nomination of a prescribed body corporate to hold and manage the native title rights and interests of the Wakaman people in the event that native title was granted.
Evidence 64 Extensive lay evidence has been given in all three proceedings. On 14 March 2019, Reeves J ordered that all three Wakaman claims be set down for hearing in respect of separate questions in the following terms: (a) but for any question of extinguishment of native title, does native title exist in relation to any, and if so what, land and waters of the claim areas for the Wakaman proceedings? (b) in relation to that part of the claim area where the answer to (a) above is in the affirmative: i. who are the persons, or each group of persons, holding the common or group rights comprising native title? ii. what is the nature and extent of the native title rights and interests? 65 A preservation of evidence hearing was conducted by me via Microsoft Teams on 26 August 2020 and 30 September 2020, where evidence was given by William Thomas. 66 Subsequently evidence was given, in person, in and around Chillagoe, and in Mareeba and Cairns, from 2 November 2020 until 27 November 2020. 67 On-country evidence was given during that period in and around Mungana, Redcap, Tate River and the old Fischerton/Tate township, and in and around Chillagoe by the following indigenous witnesses: Maxine Gosam; Glenis Grogan; Marlene See; Edward Thomas (Jnr); and William Thomas. 68 Evidence was also given during that period in Mareeba and Cairns by the following indigenous witnesses: Allira Alvoen; Deborah Alvoen; John Alvoen; Jack Brumby; Elizabeth Cashmere; Francis Deemal; Tanya Flower; Maxine Gosam; Glenis Grogan; Robyn Hooley; Eileen Ludwick; Raelene Madigan; Carol Payne; Chris Richardson; Eric Rosendale; Marlene See; Edward Thomas (Jnr); William Thomas; and Gail Wason. 69 Evidence was further given during that period in Cairns by: various pastoral respondents, and indigenous respondents Rodney Chong and Carol Chong, who are members of the claim group. 70 I also note affidavits were filed in the proceedings on various dates, being evidence of the following claim group members: Allira Alvoen; Deborah Alvoen; John Alvoen; Lynette Brown; Jack Brumby; Roley Cameron; Elizabeth Cashmere; Fred Chong; Jade Clayton; Francis Deemal; Jan Drenth; Tanya Flower; Margaret Freeman; Maxine Gosam; Winston Gosam; Glenis Grogan; Alan Holt; Robyn Hooley; Nerridean Keyes; Eileen Ludwick; Raelene Madigan; Carol Payne; Hans Pearson; Rodney Riley; Eric Rosendale; Marlene See; David Sievers; Margaret Sievers; Edward Thomas (Jnr); William Thomas; Alan Wason; and Gail Wason. 71 Finally I note affidavits were filed in the proceedings by indigenous witness Lillian Freeman. 72 In addition to the lay evidence given at the hearings, the applicant in each Wakaman proceeding relied upon the following expert evidence in support of their claims of connection: "A connection report about the Wakaman People" by consultant anthropologist Mr Daniel Leo dated August 2017 (vol. 1 of 2) and filed on 30 April 2019; "A connection report about the Wakaman People" by Mr Daniel Leo dated August 2017 (vol. 2 of 2 - Appendices) and filed on 30 April 2019; "Supplementary report about the native title claim group for the Wakaman People" by Mr Daniel Leo dated September 2017 and filed on 30 April 2019; "Response to three questions raised in relation to Wakaman connection reports" by Mr Daniel Leo dated June 2018 and filed on 30 April 2019; and "Becoming Wakaman: Further Supplementary Report Focused on Understanding Land Tenure Adaptation from Effective British Sovereignty to the present (29-119)" by Mr Daniel Leo dated October 2019 and filed on 15 October 2019. 73 In respect of connection issues, I note evidence of Mr Leo from his connection report dated August 2017, including: • 942. In conclusion, many of the numerous interviewees spoke of growing up hearing their elders - especially a parent or grandparent - tell of being 'Wakaman', and thus, they themselves were Wakaman. Depending on the age of the interviewee, this variously dates from the 1940s through to the 1970s. Moreover, their elders spoke of particular places in 'Wakaman country', and they were usually locations where that elder, and/or that elder's parents, were born and raised. In short, the numerous interviewees knew that they were 'of' that country, that they 'came from' that country, in a physical sense as much as a spiritual one, and in a personal sense as much as an ancestral one. They also knew they their 'mob' or 'tribe', the 'Wakaman', were the Aboriginal people of and from that country. Even those Wakaman People forcible removed and then forcible kept away from country, such as Jenny Pearson, evidently maintained a life-long 'Wakaman' identity. • 943. As for the extent of country, many of those with interrupted physical connection to country only expressed a knowledge that 'Wakaman country' meant Chillagoe and the surrounding district, plus a few other specific areas, such as Almaden and Fossilbrook. As for those with a continuous physical connection, they spoke of an area encompassing much of the Lynd-Tate catchment, the lower to mid Walsh catchment, and the upper Red River. Almost all interviewees evidenced that the Mungana-Chillagoe-Fischerton area was core country, though for some they were particularly attached to the upper Lynd, especially the Fossilbrook area (in terms of the former station, and a major creek by that name). In my view, this is supportive of the earlier findings set out in SECTIONS 2.6 and 4.22 above. • 1012. In conclusion, it is clear that a substantial cohort of the Wakaman People maintained a continuous physical connection to Wakaman Country. This is particularly so for the Thomas-Brumby and Chong Branches of the McTavish Descent Group. This helps to explain why in subsequent SECTIONS about cultural and spiritual continuity it is their knowledge and lived experiences that make up a bulk of accounts. Nonetheless, the Madigan Branch (Maude DG), the Freeman Descent Group, Cameron Branch (Cameron DG) and Jaingkali Descent Group have also maintained a continuous physical connection. As for the other branches and/or descent groups, it is important to stress, in my view, that for almost all of them, their physical connection was forcibly broken. That is to say, their ancestors were forcibly removed and kept from their country by government authorities. • 1106. In my view, the range of cultural practices set out above evidence the strength of the Wakaman People's connection to their Wakaman Country. It is also highly supportive the view that Wakaman People have Laws & Customs pertaining to a Land Tenure Sytem (see SECTION 8.2.1). This is because such Laws & Customs: underpin their considerable resource use across large swaths of Wakaman Country; are the basis for their various cultural heritage management and land management activities; generates the requirement to seek permission to visit country; and engenders rules pertaining to speaking and disclosing certain culturally privileged knowledge about Wakaman Country and particular places therein. • 1185. In my view, the range of spiritual practices set out above evidence the strength of the Wakaman People's connection to their Wakaman Country. It is also highly supportive the view that Wakaman People have Laws & Customs pertaining to a Religious System insofar as it provides a spiritual basis for connection to country (see SECTION 8.2.3), and what is more, provides a spiritual basis for the Land Tenure System (see SECTION 8.2.1). This is evidenced by the belief in Wakaman Country being populated with various supernatural beings and creatures, and most especially, by deceased ancestors and kin. Wakaman People can thus feel and sense their Wakaman Country. They also interact with country and its beings through 'calling-out', 'baptisms/blessings' and 'smoking ceremonies'. Through these practices they control the granting of spiritual permission to access and use country, especially highly culturally significant (and spiritually dangerous) places.
Agreement 74 In the present case it is clear that the parties have reached the s 87/s 87A agreements freely and on an informed basis (see comments of Bennett J in Brown on behalf of the Ngarla People v State of Western Australia [2007] FCA 1025 at [23]). 75 In particular I am satisfied that the State has taken steps to satisfy itself that there is a credible basis for the applications, or is satisfied as to the cogency of the evidence upon which applicants rely: Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [21], Clancy on behalf of the Auburn Hawkwood People and State of Queensland [2019] FCA 1908 at [9]. As Mortimer J observed in Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 2) (Kuuku Ya'u determination) [2021] FCA 1464: 92 If the State signs a s 87A agreement, and agrees to recognise the existence of native title in the determination area, then the Court is entitled to proceed on the basis that the State has made a reasonable and rational assessment of the material to which it has been given access. The Court will give considerable weight to the position taken by the State, on behalf of all members of its community. 76 The applicants submit that the respondents other than the State have had the opportunity to independently assess the evidence relied on by the applicants, and to accept the State's assessment that there is a sufficient evidential basis to establish the Wakaman People's maintenance of connection according to their respective traditional laws and customs in the areas in question. Noting the length of time during which the proceedings have been on foot, the extent of the consultation, and the legal representation of other respondents, I accept this submission. 77 Finally I note the recognition given in the proposed orders to other interests in the Wakaman Determination Areas. 78 I am satisfied that the connection material before the Court demonstrates that the agreement of the parties to the making of the determinations in these proceedings is "rooted in reality" and has a credible basis: see Robertson J in Clancy on behalf of the Auburn Hawkwood People and State of Queensland [2019] FCA 1908 at [26].
PRESCRIBED BODY CORPORATE 79 Pursuant to s 56 of the Native Title Act, the claim group nominated one prescribed body corporate, to hold the native title rights and interests of the Wakaman People in trust, namely Wakaman Kung Kung Aboriginal Corporation, ICN 9592. In this context I note evidence of Ms Susan Walsh in her affidavit filed 26 July 2023 where she deposed as follows: 32. I observed the Wakaman People claim group members pass resolutions at the third authorisation meeting held on 20 May 2023 to convey their authorisation for the nomination of the Wakamin Native Title Aboriginal Corporation (WNT AC) as their prescribed body corporate to hold the native title rights and interests in trust for the Wakaman People Common Law Holders, provided certain conditions were satisfied, as set below: 5. Nomination of Trustee Prescribed Body Corporate 5.1 The Wakaman People present at this third authorisation meeting resolve that the Wakamin Native Title Aboriginal Corporation (ICN: 9592) is to be the prescribed body corporate (Wakaman prescribed body corporate) for the Wakaman #3, Wakaman #4 and Waka man #5 draft s87/87A agreements and consent determinations, provided the conditions set out in [5.2] are satisfied. 5.2 The conditions to be satisfied by the Wakaman prescribed body corporate are: 5.2.1 the name of the corporation must be changed to the Wakaman Kung Kung Aboriginal Corporation, with registration of this name change being made and registered pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act); 5.2.2 the rule book for the corporation must be amended to: 5.2.2.1 include the description of the Wakaman People native title holders as authorised today; and 5.2.2.2 otherwise meet the requirements of the Native Title Act 1993 (Cth), Native title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and the CATSI Act. 5.3 The Wakaman People present at this third authorisation meeting resolve: 5.3.1 that the Wakaman prescribed body corporate is to hold the native title rights and interests in trust for the Wakaman People common law holders pursuant to s 56(2)(b) ands 56(3) of the Native Title Act 1993 (Cth); 5.3.2 to authorise and instruct the Principal Legal Officer of North Queensland Land Council or other NQLC Legal Officer, as the legal representative of the Wakaman People native title holders, to nominate in writing pursuant to s 56(2)(a)(i) of the Native Title Act 1993 (Cth) that the Wakaman prescribed body corporate is to be trustee of the native title. 5.4 The Wakaman People present at this third authorisation meeting require that the Wakaman prescribed body corporate, within five days of a request from the Principal Legal Officer or other Legal Officer of the NQLC, to give to the NQLC a written consent that satisfies the requirements of s 56(2)(a)(iij of the Native Title Act 1993 (Cth). 33. I observed that all members of the Wakaman People claim group present at the third authorisation meeting voted in favour of the resolutions at [32] above 80 I further note that the nominations of the prescribed body corporate were annexed to this affidavit of Ms Walsh, and that Ms Walsh further gave evidence of the change of name of the body corporate and the new rule book as resolved at the claim group meeting of 20 May 2023.
CONCLUSION 81 In summary, I am satisfied that the proposed consent determinations satisfy the requirements of ss 94A and 225 of the Native Title Act because: the persons holding the common or group rights comprising the native title are properly identified; the nature and extent of the native title rights and interests in relation to the proposed determination areas are properly described; the nature and extent of any other interests in relation to the proposed determination areas are properly described; the relationship between the rights asserted and interests claimed is appropriately addressed; and the proposed consent determinations state that the native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others. 82 I am satisfied that the consent orders proposed by the parties: are in pursuance of agreements under ss 87 and 87A of the Native Title Act which have been freely made by the parties on an informed basis; and are within the power of the Court to make; and are appropriate for the Court to make. 83 The determinations in this matter have been the outcome of many years of hard work and dedicated effort by members of the claim group, the applicants in all three matters, the respondent parties to these orders, and the many witnesses including expert anthropologist Mr Daniel Leo. Sadly, members of the claim group have passed on since the proceedings were initiated, however there are also many elders present and able to attend judgment in these proceedings. 84 It is also entirely appropriate to acknowledge the hard work put in to these matters by the legal practitioners who have supported the parties reach this outcome. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.
SCHEDULE OF PARTIES QUD 746 of 2015 Respondents First Respondent: STATE OF QUEENSLAND Second Respondent: MAREEBA SHIRE COUNCIL Ninth Respondent: REX MCCLYMONT Tenth Respondent: PENNY MCCLYMONT
QUD 728 of 2017 Respondents First Respondent: STATE OF QUEENSLAND Second Respondent: MAREEBA SHIRE COUNCIL Third Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Fourth Respondent: TELSTRA CORPORATION LIMITED Seventh Respondent: BRADLEY THOMAS O'SHEA Eight Respondent: EMMA ELIZABETH O'SHEA Ninth Respondent: LANCE FRANK O'SHEA Tenth Respondent: JANELLE LYNETTE O'SHEA Eleventh Respondent: JAMES WILLIAM O'SHEA
QUD 178 of 2018 Respondents First Respondent: STATE OF QUEENSLAND Second Respondent: MAREEBA SHIRE COUNCIL Third Respondent: TABLELANDS REGIONAL COUNCIL Fourth Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Fifth Respondent: TELSTRA CORPORATION LIMITED Eleventh Respondent: JOHN ANTHONY FOOTE Twelfth Respondent: JANELLE FLORANCE FOOTE Fifteenth Respondent: EUGENE JOHN MATTHEWS Sixteenth Respondent: HEATHER JEAN MATTHEWS Seventeenth Respondent: PENNY RENEE MCCLYMONT Eighteenth Respondent: REX EDWARD MCCLYMONT Twentieth Respondent: ROBERT O'SHEA Twenty Fifth Respondent: WHITE RIVER RESOURCES PTY LTD Twenty Ninth Respondent: AUSTRALIAN FINEGRAIN MARBLE PTY LTD
Alvoen on behalf of the Wakaman People
State of Queensland