Dallachy on behalf of the Barada Kabalbara and Yetimarala People #1 v State of Queensland - [2024] FCA 1391 - FCA 2024 case summary — Zoe

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Dallachy on behalf of the Barada Kabalbara and Yetimarala People #1 v State of Queensland

[2024] FCA 1391

Federal Court of Australia|2024-12-06|Before: Ms J, Derrington J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-12-06

Before

Ms J, Derrington J

Catchwords

NATIVE TITLE - consent determination - requirements under s 87 of the Native Title Act 1993 (Cth) - agreement of all parties - determination of native title by consent

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - requirements under s 87 of the Native Title Act 1993 (Cth) - agreement of all parties - determination of native title by consent

Judgment (35 paragraphs)

[1]

THE COURT NOTES THAT: A. The agreement of the parties to the Determination is subject to an application to register the proposed Bulgan Tara Yanal Aboriginal Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) having been made, before the date of this Determination. B. Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park areas within the External Boundary will be addressed after the matter has proceeded to determination. C. The Barada Kabalbara Yetimarala People (being the proposed Native Title 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 s 47C of the Native Title Act 1993 (Cth) would have application to any park areas within the External Boundary. D. Subject to recital E 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 1993 (Cth) that s 47C is applicable in respect of any park areas within the External Boundary, the State of Queensland would not oppose: i. an application being brought by the registered native title body corporate, pursuant to ss 13(1)(b) and 13(5) of the Native Title Act 1993 (Cth), to vary the Determination in relation to any such park area which is included in the Determination Area; and ii. an application being brought on behalf of the Barada Kabalbara Yetimarala People pursuant to s 13(1)(a) of the Native Title Act 1993 (Cth) for a determination that native title exists in relation to any such park area which is excluded from the Determination Area. E. The agreement of the State of Queensland in recital D above not to oppose an application to vary the Determination or an application for a determination that native title exists in relation to any park area, is subject to the Applicant 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 each such 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 87 of the Native Title Act 1993 (Cth). BY CONSENT, THE COURT ORDERS THAT:

Subject to Order 2, there be a determination of native title in the terms set out in orders 5-15 and a determination of whether or not native title is held in trust in the terms set out in orders 16 and 17 below (the Determination).
Order 1, and the orders to which it refers, take effect immediately upon the last of the following events: (a) when the proposed Bulgan Tara Yanal Aboriginal Corporation is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); (b) when the Applicant has filed and served: (i) a notice stating that the Bulgan Tara Yanal Aboriginal Corporation has been registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); (ii) a notice specifying the ICN given in the certificate issued under s 32-1(1)(c) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) for the proposed corporation; (iii) a written consent of the Bulgan Tara Yanal Aboriginal Corporation under s 56(2) of the Native Title Act 1993 (Cth).
If Order 1 has not taken effect by 1 March 2025, the matter is to be listed for further directions.
Each party to the proceedings is to bear its own costs. BY CONSENT, THE COURT DETERMINES THAT:
The determination area is the land and waters described in Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.
Native title exists in the Determination Area.
The native title is held by the Barada Kabalbara Yetimarala People described in Schedule 1 (the Native Title Holders).
Subject to orders 10, 11 and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are: (a) other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and (b) in relation to Water, the non-exclusive rights to take the Water of the area for personal, domestic and non-commercial communal purposes.
Subject to orders 10, 11 and 12 below, the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp on the area and for that purpose, erect temporary shelters on the area; (c) take Natural Resources from the land and waters of the area for any purpose; (d) use Natural Resources of the land and waters of the area that are not taken, for any purpose; (e) take the Water of the area for personal, domestic and non-commercial communal purposes; (f) bury Native Title Holders within the area; (g) maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs on the area and protect those places and areas from physical harm; (h) teach on the area the physical and spiritual attributes of the area; (i) hold meetings on the area; and (j) light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purposes of hunting or clearing vegetation.
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.
The native title rights and interests referred to in orders 8(b) and 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
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).
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 relationship between the native title rights and interests described in orders 8 and 9 and the other interests described in Schedule 2 (the Other Interests) is that: (a) the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and (c) the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

[6]

Schedule 2 - Other Interests in the Determination Area The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the Determination: (1) The rights and interests of the holders of tenements and permits granted pursuant to the Mineral Resources Act 1989 (Qld) including: (a) exploration permit for coal EPC 1139; and (b) mining lease ML 1831. (2) The rights and interests of Ross Olive as the holder of the following special lease, issued pursuant to the Land Act 1962 (Qld) and the Forestry Act 1959 (Qld): (a) Special Lease for Primary Industry (Grazing) No 701416846, over Lot 3 on LI807533 being strata title lease within the boundary of Lot 65 on FTY1503. (3) The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their successors in title: (a) as the owners or operators of telecommunications facilities within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (i) to inspect land; (ii) to install, occupy and operate telecommunication facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities; (c) for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties; and (d) under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities in the Determination Area. (4) The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062: (a) as the owner and operator of any Works within the Determination Area; (b) as an electricity entity under the Electricity Act 1994 (Qld), including but not limited to: (i) as the holder of a distribution authority; (ii) to inspect, maintain and manage any Works in the Determination Area; and (iii) in relation to any agreement or consent relating to Works in the Determination Area existing or entered into before the date these orders are made; and (c) to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this clause. (5) The rights and interests of Rockhampton Regional Council, Central Highlands Regional Council, Isaac Regional Council, Livingstone Shire Council and Woorabinda Aboriginal Shire Council (Councils): (a) under their local government jurisdiction and functions under the Local Government Act, under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be within their respective Local Government Area; (b) as the: (i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not; (ii) grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; (iii) holder of any estate or interest in land, including as trustee of any Reserves, under access agreements and easements that exist in the Determination Area; (c) as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to any: (i) gravel pits operated by Councils; (ii) undedicated but constructed roads except for those not operated by Councils; (iii) water pipelines and water supply infrastructure; (iv) drainage facilities; (v) cemetery and cemetery related facilities; (vi) watering point facilities; (vii) recreational facilities; (viii) transport facilities; and (ix) community facilities; and (d) to enter the land for the purposes described in paragraphs 5(a), 5(b) or 5(c) above by their employees, agents or contractors to: (i) exercise any of the rights and interests referred to in this paragraph 5; (ii) use, operate, inspect, maintain, replace, restore, and repair the infrastructure, facilities and other improvements referred to in paragraph 5(c) above; and (iii) undertake operational activities in their capacity as local governments such as feral animal control, erosion control, waste management and fire management. (6) The rights and interests of the State of Queensland, Rockhampton Regional Council, Central Highlands Regional Council, Isaac Regional Council, Livingstone Shire Council and Woorabinda Aboriginal Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads. (7) The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved. (8) The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation: (a) the Aboriginal Land Act 1991 (Qld); (b) the Fisheries Act 1994 (Qld); (c) the Land Act 1994 (Qld); (d) the Nature Conservation Act 1992 (Qld); (e) the Forestry Act 1959 (Qld); (f) the Water Act 2000 (Qld); (g) the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); (h) the Mineral Resources Act 1989 (Qld); (i) the Planning Act 2016 (Qld); (j) the Transport Infrastructure Act 1994 (Qld); and (k) the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld). (9) The rights and interests of members of the public arising under the common law, including but not limited to the following: (a) any subsisting public right to fish; and (b) the public right to navigate. (10) So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act (1993) (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) stock routes; and (d) areas that were public places at the end of 31 December 1993. (11) Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.

[19]

[s 47A denotes [s 47B denotes [s 232 & All of the land Area description Lot 3 on Plan AP15793 Lot 1 on Plan AP15943 Lot 11 on Plan CNS414 That part of former Portion 2V on Plan C408 Lot 65 on Plan FTY1503 Lot 9 on Plan FTY1819 Lot 9 on Plan KL118 Lot 12 on Plan KL123 Lot 4 on Plan KL210 Lot 4 on Plan KL32 Lot 5 on Plan LR146 Lot 185 on Plan MC348 Lot 1 on Plan MC813349 Lot 2 on Plan MC813349 Lot 16 on Plan NPW598 Lot 694 on Plan PH1362 Lot 4237 on Plan PH471 Lot 4317 on Plan PH491 Lot 16 on Plan ROP104 Lot 21 on Plan ROP106 Lot 10 on Plan ROP109 Lot 5 on Plan ROP124 Lot 6 on Plan ROP140 Lot 25 on Plan ROP143 Lot 1 on Plan ROP25 Lot 7 on Plan ROP65 Lot 11 on Plan ROP69 Lot 4 on Plan ROP75 Lot 7 on Plan ROP75 Lot 14 on Plan ROP84 Lot 2 on Plan ROP88 Lot 23 on Plan SP100966 Lot 1 on Plan SP103568 That part of former Lot 3 on Plan ROP132 Lot 7 on Plan SP118531 Lot 6 on Plan SP214946 Lot 24 on Plan SP271662 Lot 4973 on Plan SP275117 Lot 2 on Plan TT422 An area identified Save for any Anabranch; Brussels Creek; Clarke Creek; Connors River; Crooked Creek; Deep Creek; Develin Creek; Fitzroy River; Granite Creek; Isaac River; Mackenzie River; Magdalen Creek; Mamelon Creek; Melaleuca Creek; Montrose Creek; Roper Creek; Sarsfield Creek; Styx River; Tooloombah Creek; Unnamed Creek Waterhole; and Yatton Creek. areas to which s 47A of the Native Title Act 1993 (Cth) apply] areas to which s 47B of the Native Title Act 1993 (Cth) apply] s 238 denotes areas to which s 232 and s 238 of the Native Title Act 1993 (Cth) apply]Part 2 - Non-Exclusive Areas and waters described in the following table and depicted in light blue on the determination map contained in Schedule 6: (at the time of the determination) Determination Map Sheet Reference Note 9 9 3 Lot 21 on Plan FTY1202 excluding 1, 2 * 7 * 7, 8 4 5 * 4, 5 * 4 20 10 * 10 10 17, 18, 19 * 7, 13, 22 10 10 * 9 9 7 22 13 9 9 8 12 7 7 8 7 7, 8 7 Lot 33 on Plan SP114963 excluding 15 * 17, 20 14 7 * 10 * 16 * as Road and formerly described as New Road delineated by stations 120-78-86-88-124-125-89-87-129-128-131-130-79-135-120 as shown on Plan SP214946 14 # 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: Keymap, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18. 19, 20, 21 Adjacent to Lot 25 on Plan MC590, Anglewood Road and Tooloombah Creek;

[23]

INTRODUCTION

Mr Sam Dallachy, and others on behalf of the Barada Kabalbara Yetimarala (BKY) People, (applicant) seeks consent determinations under s 87 of the Native Title Act 1993 (Cth) (NTA) in proceeding QUD13/2019 and proceeding QUD15/2019 (the proceedings) to recognise the native title rights and interests of the BKY People. The persons comprising the representative applicant in each proceeding are Samuel (Sam) Dallachy, Lalu Asela, Elizabeth Doyle, Juanita Mason, Skye Muller, Norman Ross, Deborah Santo, Vanessa Saunders, Michael Smith, Davina Tilberoo Snr, and Claudine Walsh.
The area the subject of the applications for the proceedings consists of approximately 7,807 square kilometres and forms an irregular shape between the Styx River in the north east, the Fitzroy River in the south, the Peak Ranges in the west and Lotus Creek in the north.
The parties, being the applicant, the State of Queensland, and the respondents in each proceeding, have filed two agreements under s 87 of the NTA each of which has a draft consent determination as an annexure (draft determinations).The applicant relies on the Section 87 Agreements, filed 30 September 2024, and written submissions and other material, to satisfy the Court of the appropriateness of the orders sought in the draft determinations as proposed.
For the reasons that follow, the Court is satisfied that it is within the power of the Court to make the orders sought in the draft determinations as proposed, and that it is appropriate to do so.
As will be explained, the Court's task in reaching the required state of satisfaction to make determinations of native title under s 87 of the NTA is based on the parties' free and informed agreement and so does not require judicial determination of the issues in the application. In making such a determination, the Court recognises that rights and interests have existed under the traditional laws and customs of the BKY People for millennia. The effect of the determinations is that the Australian community will collectively recognise that those rights which existed at sovereignty, and which survived that fundamental change in legal regime, are recognised, enforced and protected pursuant to the NTA. For that reason, and consistent with the Preamble to the NTA, it is appropriate to record some of the history, prior rights and interests, and rich and diverse culture of the BKY People that was in evidence before this Court in what is described as the Connection Material.

[24]

THE BARADA KABALBARA YETIMARALA PEOPLE

The BKY People are described in Schedule 1 of the draft determinations. They are descendants (including through raising up) of one or more of the following people:
Barada woman (spouse of Johnny and Charlie Budby), who her descendants refer to as Kitty;
Lucy and/or Jimmy Barber;
Kitty (aka Kitty Eaglehawk);
Yatton Boney;
Maggie (mother of Jack Mack and Gypsy Tyson); and
King Boco.
While a Court in giving effect to a proposed consent determination under s 87A of the NTA need not undertake an assessment of the matters set out in s 223, it is important to say something about the BKY People and their country, considering the effect of a consent determination as creating "a permanent record of the judicial recognition of their native title rights and interests": McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 at [17] (Murphy J).
The BKY People's traditional laws and customs are derived from the wider regional society, known as the Birri Gubba (BG) society, from before sovereignty. The localised area attributed to the BKY People began from the confluence at the Fitzroy and the Mackenzie Rivers in the south, ran along the Broadsound Range to the north, including Apis Creek, Tooloombah and Lotus Creek, and stretched north-westerly to include the Isaac River and Clive Station, and west toward Cotherstone Station.
The BKY People held beliefs in the spiritual character of the land, which beliefs existed before effective sovereignty. Dr Alison Pembroke, in her report 'Barada Kabalbara Yetimarala People: Supplementary Connection Report", filed on 7 February 2020, explores these beliefs as deriving from the broader BG society (at 200-201): [The BKY People] share a number of spiritual beliefs in beings said to inhabit the landscape and govern behaviour; they share a belief sorcery that traces back to the pre-sovereign society; they engage in traditional subsistence activities; they continue to acknowledge and observe a number of traditional food taboos; they bestow upon their children names relating to kin and country (including name repetition); they subscribe to a system of traditional kinship classification; they acknowledge the authority of the group's elders, particular in dispute resolution and decision-making.
After effective sovereignty, and consistent with the impacts of colonisation, life for Aboriginal families - including those of the BKY People - became challenging. Extreme violence from white settlers moving into the region, government restrictions on Aboriginal people, including their removal to government-run missions, and disease denote the oppressive circumstances under which Aboriginal people lived. There were, however, Aboriginal families of the BKY People that remained on country, working and living on pastoral stations such as Croydon Station and Yatton Station. Dr Lee Sackett, in his report, "Barada Kabalbara Yetimarala Native Title Claim: Anthropologist's Report", filed on 5 June 2018, described how the enduring presence of the BKY People living on country maintained a connection to the land (at 30-31): [W]hile physical connection with the claim area diminished across time, claimants nonetheless regarded themselves as vitally linked to it. It was where their ancestors, and by extension they themselves, were from. Such connection was, at least as some claimants saw it, enduring and unseverable. The connection was made real by claimants' beliefs regarding the spirits of their ancestors occupying and maintaining the claim area …. That is, claimants' own connections for the most part were centred on and through descent from ancestors who had had direct physical connections with country. In my view, these cultural/spiritual connections came across very much as continuous, generation-to-generation associations. (Emphasis added.)
The contemporary BKY People are determined by their descent from apical ancestors, born around or before sovereignty, and recognise cognatic descent as the primary means by which rights to country are acquired.
Based on the information provided, I observe that the submissions before the Court provide that the Connection Material establishes:
1. that the BKY People are a localised land-holding group within the BG regional society, which society is comprised of tribal groups, including Wiri, Yuwibara, Barada, Gia, Ngaro, Juru, Bindal, Birri, and Jangga. The society is united by its shared language and practice of traditional laws and customs, including systems of recruitment to land-owning groups and land tenure, regional and section divisions, totemism, marriage, kinship, knowledge and authority, naming practices, cultural protocols, mythology and permission;
2. that the contemporary BKY People are local descendants of the southern localised Barada tribal group, which group recognises certain families as continuing to have the collective rights to speak for country. The contemporary BKY People are determined by their descent from their apical ancestors born at or around sovereignty, who are associated with areas on or near the lands and waters identified in the draft determinations;
3. that despite their membership within the BG society, the land rights held by the BKY People are characterised as those of a 'core rights holding territorial group', which group can grant permission to those seeking to access and exploit their territory. The association of land rights to tribal groups within the BG society was determined by their local association to land and waters, and the BKY People (as the local subgroup) are the people with the landed rights and interests for the Determination Area;
4. that land rights within the BG society were gained through patrifiliation, male initiation, matrimonies, matri-totems and a four section system. Prior to sovereignty, the BKY People primarily gained rights to the Determination Area through patrilineal descent, but that means of transmission has gradually shifted to recognise rights by cognatic descent in modern times;
5. that filiation is the means by which the BKY People acquire rights and interests to land and knowledge of country.
6. that the connection of the BKY People to their country is informed by their spiritual connection to the lands and waters, which is passed down by generations through oral histories, and comprises the group's mythology and identity. Elders of the BKY People continue to teach spiritual and physical attributes of their country, which speaks to features of the environment or other important spiritual sites on country. This includes: creation stories about the water on country, from sites such as Broadsound Ranges, Mount Archer, Rockhampton, Mount Morgan and Gogango Ranges; and telling stories about places on country to avoid due to the presence of angry spirits, such as the Yunji;
7. notwithstanding the significant impacts of colonisation, the common identity of the BKY People and their connection to country has been maintained, with observance and practice of their traditional laws and customs still occurring today. Examples of this continuity include: retention of language; ongoing beliefs of ancestors' occupation of the Determination Area; maintenance of the Determination Area; filiation as the mechanism for passing local mythology between generations and the transmission of spiritual knowledge by Elders; and the families of BKY People who remained on country continuing to work and live on pastoral stations, sustaining the group's connection to country;

[28]

The path to agreement between the parties

On 17 August 2016, Collier J made orders for a connection assessment process between the applicant and the State. Other than the State, no other respondent parties sought to independently assess the Connection Material prepared by the applicant. Following review of the Connection Material, the applicant provided on a confidential and without prejudice basis to the State on 19 May 2017 and 25 June 2018. The applications became the subject of trial programming orders of Rangiah J dated 5 February 2019 and 4 September 2020.
The Orders of Rangiah J dated 4 September 2020 ordered that the Separate Question in each application, as defined in Order 1 of the Orders dated 5 February 2019, are to be heard together. By Orders of Sarah C Derrington J dated 24 August 2021, the applications were ordered to be heard together. Pursuant to the programming orders, the applications were subject to two tranches of on-country hearings:
a preservation of evidence hearing in November 2021, held on 2 to 4 November 2021; and
a hearing in November 2022, held on 14 to 18 November and on 21 November 2022.
After the on-country hearings, the State and applicant participated in court-ordered mediation on 2 February 2023, 10 March 2023 and 19 June 2023, with a sub-conclave of experts on 5 April 2023. On 3 July 2024, a statement of agreed facts between the State and applicant was filed. It documented the agreement reached in relation to specific issues, including the claim group description and native title rights and interests proposed to be recognised. At a meeting held on 24 June 2023, the native title claim group authorised amendments to the claim group description to reflect the agreement reached in the statement of agreed facts.
On 21 July 2023, Sarah C Derrington J made orders vacating the outstanding programming orders, and ordered that the matter continue in case management before Judicial Registrar Grant. Pursuant to the Orders of Sarah C Derrington J dated 8 August 2023, granting leave, the further amended applications were filed by the applicant on 10 August 2023. On 13 May 2023, the Native Title Registrar accepted the amended applications for registration under s 190A of the NTA, and details of the applications were entered on the Register.
Following the case management process, all parties to both applications reached agreement that native title exists over the Determination Area. Subsequently, the relevant parties executed the Section 87 Agreements to which the draft determinations are annexed. The applicant seeks determination of native title in the terms of the proposed orders agreed to by the relevant parties, as set out in the draft determinations.
The applications for the determinations of native title are supported by the following materials:
the applicant's written submissions in support of the applications, and supplementary submissions filed subsequently;
the summary of the Connection Material that is Annexure B to the applicant's written submissions;
a copy of the draft determination as proposed which is Annexure A to the Section 87 Agreement for the BKY#1 Application (Annexure C); and
a copy of the draft determination as proposed which is Annexure A to the Section 87 Agreement for BKY#2 Application (Annexure D).

[29]

Recent amendments of parties to the BKY Applications

On 14 September 2023, Judicial Registrar Grant made orders granting the following pastoral respondents leave to withdraw as respondents to the BKY#1 Application:
John Samuel Jones;
Leone Gale Philipson;
Neville John Philipson;
Kelvin Roy Sibson;
Dale Kelvin Sibson;
Lynette Estelle Sibson;
Edward George Smith;
Elizabeth Joan Smith;
Russell Charles Smith;
Craig Lynton Wight;
Mark Lynton Wight;
Rachel Gay Wight; and
Robert Lynton Wight.
On 4 December 2023, the applicant filed an interlocutory application seeking the removal of Peabody BB Interests Pty Ltd, Orion Gold NL, Nippon Steel & Sumitomo Metal Australia Pty Ltd ACN 001 445 049, Anglo Coal (Foxleigh) Pty Ltd ACN 125 986549, CAML Resources Pty Ltd ACN 080 649 029, Brian Lloyd Pownall, John Charles Pownall, Judith Louise Pownall and GML Resources NL as respondents to the BKY #1 Application.
On 6 December 2023, Judicial Registrar Grant granted leave to Peabody BB Interests Pty Ltd to withdraw as a respondent to the BKY#1 Application, and listed the interlocutory application for hearing on 15 December 2023. On 14 December 2023, the applicant advised that it no longer sought orders removing Nippon Steel & Sumitomo Metal Australia Pty Ltd ACN 001 445 049, Anglo Coal (Foxleigh) Pty Ltd ACN 125 986 549 and CAML Resources Pty Ltd ACN 080 649 029 as respondents to the BKY#1 Application.
On 15 December 2023, Judicial Registrar Grant made Orders to remove Orion Gold NL, Brian Lloyd Pownall, John Charles Pownall and Judith Louise Pownall as respondents to the BKY#1 Application and to remove GWM Resource NL as respondent to the BKY#2 Application.
On 26 March 2024, Mrs Jean Doreen Moran filed an interlocutory application seeking to be joined as a party to both applications. An interlocutory hearing was held on 26 April 2024 and Mrs Moran's application was dismissed on 2 May 2024 by Sarah C Derrington J: Dallachy on behalf of the Barada Kabalbara and Yetimarala People v State of Queensland [2024] FCA 444.

[30]

Whether the Court has power to make the proposed orders

The Court has the power pursuant to s 87 of the NTA to make an order in, or consistent with, terms agreed to by the parties withhold holding a hearing if the requirements of s 87(1) of the NTA are satisfied.
Pursuant to s 87(1) of the NTA, the Court may make such an order, without hearing, where:
the period specified in the notice given under s 66 of the NTA has ended (s 87(1));
there is an agreement for a proposed determination of native title in relation to the proceeding (s 87(1)(a));
the terms of the proposed determination, in writing signed by or on behalf of all of the parties, is filed with the Court (s 87(1)(b)); and
the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)).
Having regard to the material before the Court, it is satisfied that:
the notice period specified in s 66 of the NTA ended long ago, on 19 February 2014; and
there is agreement on the proposed determinations of native title in relation to the proceedings, that the terms of the draft determinations as proposed are in writing, have been signed on behalf of all of the relevant parties, and have been filed with the Court, on 30 September 2024.
An order under s 87 of the NTA will be within power (s 87(1)(c)) if: it is consistent with s 94A of the NTA; the rights and interests included in the draft determinations as proposed are recognisable by the common law of Australia; and there is no other native title determination in existence over the area the subject of the draft determination as proposed: Kngwarrey on behalf of the member of the Irrkwal, Ntewerrek, Aharreng, Arrty/Amatyerr and Areyn Landholding Groups v Northern Territory of Australia [2011] FCA 428 at [7].
Section 94A provides that an order by which the Court makes a determination of native title must set out details of the matters mentioned in s 225 of the NTA. Section 225 provides: 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:
who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
the nature and extent of native title rights and interests in relation to the determination area; and
the nature and extent of any other interests in relation to the determination area; and
the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
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.
"Native Title" and "native title rights and interests" are defined in s 223(1) of the NTA as the: … communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land and waters, where:
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
the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
the rights and interests are recognised by the common law of Australia.
The Court is satisfied as to each of the matters in s 225, being that:
the persons holding the common or group rights comprising the native title are identified as the BKY People in Order 7 of the respective draft determinations. The BKY People are descendants of the ancestors identified in Schedule 1 to the respective draft determinations, in accordance with the traditional laws and customs of the BKY People (s 225(a));
the nature and extent of the native title rights and interests in relation to the Determination Area are set out in Orders 8, 9 and 10 of the respective draft determinations (s 225(b));
the nature and extent of any "other interests" in relation to the Determination Area are identified in Orders 13 and 14 as those set out in Schedule 2 to the respective draft determinations (s 225(c));
the relationship between the rights and interests relevant to subs 225(b) and (c) are described in Orders 8 and 9 of the respective draft determinations and the other interests described in Schedule 2 of the respective draft determinations are set out in Order 14 of the respective draft determinations. The respective draft determinations identify all "other interests" in relation to the Determination Area and establish that, to the extent of any inconsistency between those other interests and the determined native title, the other interests will prevail. Specified areas over which native title rights and interests will not be recognised are identified in Schedule 5 to the respective draft determinations. Recitals A to D of the respective draft determinations confirm the area over which the applicant and the State have not yet reached agreement as to the applicability of s 47C of the NTA (s 225(d)); and
the relevant parties agree that native title exists in relation to the land and waters identified in the respective draft determinations as proposed, but that the nature and extent of those native title rights and interests is different in relation to particular areas. Pt 1 of Schedule 4 to the draft determination for the BKY #1 Application identifies the areas over which the parties to the BKY #1 Application are satisfied that exclusive native title exists, and the exclusive rights which are to be recognised are described in Order 8 of the draft determination for the BKY #1 Application (s 225(e)). Pt 2 of Schedule 4 to the draft determination for the BKY #1 Application identifies the areas over which non-exclusive native title rights and interests are to be recognised for the BKY#1 Application, and the non-exclusive rights which are to be recognised are described in Order 9 of the draft determination for the BKY #1 Application. Schedule 4 to the draft determination for the BKY #2 Application identifies the areas over which the parties to the BKY #2 Application are satisfied non-exclusive native title rights and interests are to be recognised for the BKY#2 Application, and the non-exclusive rights which are to be recognised are described in Order 8 of the draft determination for the BKY #2 Application. Schedule 5 to each draft determination identifies the areas which the relevant parties agree are areas not forming part of the Determination Area.
The Court is satisfied that the native title rights and interests included in the draft determinations as proposed are capable of being recognised by the common law of Australia.
Finally, the Court is satisfied that there is no other native title determination in existence over Determination Area, and that there are no other proceedings before the Court relating to native title determination applications that cover any part of the area subject to the draft determinations as proposed, and which would otherwise require orders to be made under s 67(1) of the NTA.
The Court is satisfied that the orders sought are consistent with the terms of the parties' agreement as reflected in the draft determinations, and are within the Court's power to pronounce.

[31]

Whether the proposed orders are appropriate to be made

Section 87(1A) provides: The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:
whichever of subsection (2) or (3) is relevant in the particular case; and
if subsection (5) applies in the particular case - that subsection.
In the present case, subsection (2) is the relevant subsection and subsection (5) does not apply. Subsection 87(2) provides: 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.
The wording of s 87(1A) and (2) provide that the question for the Court is whether it is appropriate to make the order in the terms of the agreement reached between the parties, and the primary focus of the section is such an agreement. As Murphy J said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarlli People v State of Western Australia [2019] FCA 508 at [19]-[22]: [19] In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court's function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act's emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibility and with regard to the purpose for which the provisions are designed. [20] The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8]. [21] Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State's agreement that there is a credible and rational basis for the determination proposed: Freddie at [18]. [22] The requirement of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.
The matters to be taken into account include whether: there exists a free and informed agreement between the parties after having had the benefit of independent and competent legal representation in the proceeding; the State has taken a 'real interest' in the proceeding on behalf of the broader community; it appears the agreement was freely entered into without duress, fraud or misrepresentation; whether there is evidence before the Court which justifies the order 'for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally': Munn v Queensland [2001] FCA 1229; 115 FCR 109 at [30]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[40].
The Court is satisfied that the Section 87 Agreements reflect free and informed agreement between the relevant parties. They were arrived at through a case management process overseen by experienced Judges and a Judicial Registrar of this Court. All parties have had the benefit of independent and competent legal representation.
The State has also taken a 'real interest' in the proceedings on behalf of the broader community, as evidenced, inter alia, by its participation in the two on-country hearings, and given appropriate consideration to the Connection Material.
The Connection Material referred to at Annexure A to the applicant's submissions in support of the draft determinations as proposed is sufficient evidence of the existence of native title, as defined by s 223 of the NTA, and included: No # Document Date Filed Expert Material 1 Barada Kabalbara Yetimarala Native Title Claim: Anthropologist's Report (Sackett - 2017) 5 June 2018 2 Barada Kabalbara Yetimarala People: Supplementary Connection Report (Pembroke - 2020) 7 February 2020 3 Barada Kabalbara Yetimarala Peoples Historical Report (Skyring 2021) 13 August 2021 4 Barada Kabalbara Yetimarala People: Further Supplementary Report (Pembroke 2021) 6 August 2021 5 Barada Kabalbara Yetimarala Native Title Claim: Supplementary Anthropological Report (Sackett 2021) 6 August 2021 6 Barada Kabalbara Yetimarala People: "Southern Extension" Land Holding Report (Pembroke 2023) 4 June 2023 Affidavits 7 Outline of Evidence of Jason Everett Butler 9 November 2022 8 Outline of Evidence of Nicole Louise Muller 7 November 2022 9 Affidavit of Elywn Margaret Hornagold 20 October 2022 10 Supplementary Affidavit of Elwyn Margaret Hornagold 20 October 2022 11 Outline of Evidence of Courtney Smith 20 October 2022 12 Affidavit of Jeffrey Douglas Smith 20 October 2022 13 Affidavit of Samuel John Dallachy 20 October 2022 14 Affidavit of Norman Cedric Ross 20 October 2022 15 Updated Outline of Evidence of Michael Martin Hick 20 October 2022 16 Outline of Evidence of Lorna Dawn Smith 20 October 2022 17 Affidavit of Rodney Jarro 20 October 2022 18 Affidavit of Trevor Hatfield 20 October 2022 19 Affidavit of Graham Ian Sauney 21 October 2022 20 Affidavit of Linda Dooley 21 October 2022 21 Supplementary Affidavit of Frederick Conway 24 August 2021 22 Affidavit of Natascha Sommer Annexing Affidavit of Randolph Powder 1 November 2021 23 Sealed Affidavit of Sheree Sharma Annexing Supplementary Affidavit of Randolph Power 1 November 2021 24 Affidavit of Davina Lyn Tilberoo 1 November 2021 25 Affidavit of Frederick Conway 1 November 2021 26 Supplementary Affidavit of Davina Lyn Tilberoo 1 November 2021

[33]

The prescribed body corporate

Where the Court proposed to make a determination that native title exists, it must determine whether the native title is to be held in trust and if so by whom: s 55 and 56(1) of the NTA.
The Court may determine that the native title is to be held in trust if the common law holders have been given a nomination of the kind referred to in s 56(2)(a). On 1 October 2024, Margaret Hornagold, a member of the BKY People, sent a letter addressed to Judicial Registrar Grant to formally nominate Bulgan Tara Yanal Aboriginal Corporation to be the prescribed body corporate for the purposes of s 56(2)(a) of the NTA, once the Corporation is registered by the Office of the Registrar of Indigenous Corporations.
On 29 November 2024, Bulgan Tara Yanal Aboriginal Corporation was registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) under ICN 10423. At the pre-incorporation meeting on 23 September 2024, the proposed initial members and initial directors of the then proposed Bulgan Tara Yanal Aboriginal Corporation passed a resolution that, once registered, the directors will provide written consent to the nomination from the BKY People that the Bulgan Tara Yanal Aboriginal Corporation be determined to be the trustee prescribed body corporate for proposed determinations of native title on behalf of the BKY People. This step, as well as other steps, are provided for in the Order 2 of the draft determinations, as proposed.
It is therefore appropriate to make Orders 2, 16 and 17 of the draft determination for the BKY #1 Application and Orders 2, 15 and 16 of the draft determination for the BKY #2 Application. CONCLUSION 52 For the BKY People, the Section 87 Agreements and the orders herein vindicate their claim for judicial recognition as the people who have always held native title rights and interests in the Determination Area. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington..

Dallachy on behalf of the Barada Kabalbara and Yetimarala People #1 v State of Queensland

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