Knox on behalf of the Yuwaalaraay/Euahlayi People v State of Queensland [2021] FCA 1440 | Case summary

Knox on behalf of the Yuwaalaraay/Euahlayi People v State of Queensland [2021] FCA 1440 | Case summary | Zoe

[14]

BY CONSENT THE COURT DETERMINES THAT: 3. The determination area is the land and waters described in Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails. 4. Native title exists in the Determination Area. 5. The native title is held by the Yuwaalaraay/Euahlayi People described in Schedule 1 (the Native Title Holders). 6. Subject to orders 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are: (a) other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and (b) in relation to Water, the non-exclusive rights to: (i) hunt, fish and gather from the Water of the area; (ii) take the Natural Resources of the Water in the area; and (iii) take the Water of the area, for personal, domestic and non-commercial communal purposes. 7. Subject to orders 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area; (d) take Natural Resources from the land and waters of the area; (e) take the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) bury Native Title Holders within the area; (h) maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm; (i) teach on the area the physical and spiritual attributes of the area; (j) hold meetings on the area; (k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and (l) be accompanied onto the area by certain non-native title holders, being: (i) spouses and other immediate family members of Native Title Holders, pursuant to the exercise of traditional laws and customs; and (ii) people required under the traditional laws acknowledged and traditional customs observed by the Native Title Holders for the performance of, or participation in ceremonies. 8. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders. 9. The native title rights and interests referred to in orders 6(b) and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 10. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 11. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2. 12. The relationship between the native title rights and interests described in orders 6 and 7 and the other interests described in Schedule 2 (the Other Interests) is that: (a) the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and (c) the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests but will not extinguish them except in relation to acts that consist of the construction or establishment of a valid public work, done after this determination where s 24JA of the Native Title Act 1993 (Cth) applies.

[19]

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:

The rights and interests of the holders of the rolling term lease for grazing State forest purposes, Special Lease No. 39/34064 over Lot 18 on Crown Plan BLM765, granted pursuant to the Land Act 1994 (Qld).
The rights and interests of Telstra Corporation Limited ACN 051 775 556: (a) as the owner or operator 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 its telecommunications facilities; (c) for its employees, agents or contractors to access its 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 its telecommunications facilities in the Determination Area.
The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062: (a) as the owner and operator of any "Works" (as that term is defined in the Electricity Act 1994 (Qld)) within the Determination Area; (b) as an electricity entity under the Electricity Act 1994 (Qld), including but not limited to: (i) as the holder of a distribution authority; (ii) to inspect, maintain and manage any Works in the Determination Area; and (iii) in relation to any agreement or consent relating to the Determination Area existing or entered into before the date 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.
The rights and interests of Balonne Shire Council (Council): (a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), 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 its 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, as trustee of any reserves, that exist in the Determination Area; (c) as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to: (i) undedicated but constructed roads except for those not operated by Council; (ii) water pipelines and water supply infrastructure; (iii) sewerage facilities; (iv) drainage facilities; (v) watering point facilities; (vi) recreational facilities; (vii) transport facilities; (viii) gravel pits; (ix) cemetery and cemetery related facilities; and (x) community facilities; (d) to enter the land for the purposes described in paragraphs 4(a), 4(b) and 4(c) above by Council's employees, agents or contractors to:- (i) exercise any of the rights and interests referred to in this paragraph 4 and paragraph 5 below; (ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 4(c) above; (iii) undertake operational activities in its capacity as a local government such as feral animal control, erosion control, waste management and fire management.
The rights and interests of the State of Queensland, and the Balonne 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.
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, including the rights and interests of the holders of permits issued by the trustees of the Reserves.
The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation: (a) the Fisheries Act 1994 (Qld); (b) the Land Act 1994 (Qld); (c) the Nature Conservation Act 1992 (Qld); (d) the Forestry Act 1959 (Qld); (e) the Water Act 2000 (Qld); (f) the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld); (g) the Mineral Resources Act 1989 (Qld); (h) the Planning Act 2016 (Qld); (i) the Transport Infrastructure Act 1994 (Qld); (j) the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld); and (k) the Stock Route Management Act 2002 (Qld).
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.
So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, 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.
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.

[25]

Part 1 - Exclusive Areas All of the land Area description Lot 1 on Plan AP21605 Lot 1 on Plan AP21609 Lot 1 on Plan AP21616 Lot 1 on Plan AP21618 Lot 1 on Plan AP22507 Lot 2 on Plan AP22507 Lot 1 on Plan AP22526 Lot 8 on Plan BLM1156 Lot 54 on Plan BLM1171 Lot 7 on Plan BLM458 Lot 13 on Plan BLM992 Lot 401 on Plan D3061 Lot 402 on Plan D3061 Lot 403 on Plan D3061 Lot 404 on Plan D3061 Lot 405 on Plan D3061 Lot 406 on Plan D3061 Lot 407 on Plan D3061 Lot 408 on Plan D3061 Lot 409 on Plan D3061 Lot 410 on Plan D3061 Lot 30 on Plan D30614 Lot 301 on Plan D3062 Lot 302 on Plan D3062 Lot 303 on Plan D3062 Lot 304 on Plan D3062 Lot 305 on Plan D3062 Lot 306 on Plan D3062 Lot 307 on Plan D3062 Lot 308 on Plan D3062 Lot 309 on Plan D3062 Lot 310 on Plan D3062 Lot 1 on Plan D30626 Lot 32 on Plan D30626 Lot 55 on Plan D30626 Lot 2217 on Plan D30626 Lot 22 on Plan D3063 Lot 23 on Plan D3063 Lot 24 on Plan D3063 Lot 25 on Plan D3063 Lot 26 on Plan D3063 Lot 27 on Plan D3063 Lot 32 on Plan D3063 Lot 33 on Plan D3063 Lot 34 on Plan D3063 Lot 35 on Plan D3063 Lot 36 on Plan D3063 Lot 37 on Plan D3063 Lot 38 on Plan D3063 Lot 39 on Plan D3063 Lot 1 on Plan D30631 Lot 2 on Plan D30631 Lot 3 on Plan D30631 Lot 4 on Plan D30631 Lot 21 on Plan D30631 Lot 507 on Plan D3064 Lot 508 on Plan D3064 Lot 203 on Plan H3101 Lot 204 on Plan H3101 Lot 205 on Plan H3101 Lot 206 on Plan H3101 Lot 207 on Plan H3101 Lot 208 on Plan H3101 Lot 209 on Plan H3101 Lot 301 on Plan H3101 Lot 302 on Plan H3101 Lot 303 on Plan H3101 Lot 304 on Plan H3101 Lot 305 on Plan H3101 Lot 306 on Plan H3101 Lot 307 on Plan H3101 Lot 308 on Plan H3101 Lot 309 on Plan H3101 Lot 310 on Plan H3101 Lot 407 on Plan H3101 Lot 408 on Plan H3101 Lot 409 on Plan H3101 Lot 702 on Plan H3101 Lot 703 on Plan H3101 Lot 704 on Plan H3101 Lot 705 on Plan H3101 Lot 706 on Plan H3101 Lot 707 on Plan H3101 Lot 708 on Plan H3101 Lot 709 on Plan H3101 Lot 710 on Plan H3101 Lot 801 on Plan H3101 Lot 802 on Plan H3101 Lot 803 on Plan H3101 Lot 804 on Plan H3101 Lot 805 on Plan H3101 Lot 806 on Plan H3101 Lot 807 on Plan H3101 Lot 808 on Plan H3101 Lot 809 on Plan H3101 Lot 810 on Plan H3101 Lot 4 on Plan H3106 and waters described in the following table and depicted in dark blue on the determination map contained in Schedule 6: (at the time of the determination) Determination Map Sheet Reference Note 4, 5 8, 9, 11 11, 12, 13 17 ~ 13, 14, 15, 20 20 7 19 ~ 17 ~ 6 ^ 22 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 19 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 18 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 19 ~ 18 ~ 18 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~ 10 ~

[27]

Part 2 - Non-Exclusive Areas All of the land and waters described in the following table and depicted in light blue on the determination map contained in Schedule 6: Area description (at the time of the determination) Determination Map Sheet Reference Note Lot 2 on Plan BEL5350 8 Lot 14 on Plan BEL5360 1 Lot 4 on Plan BEL5367 21 Pt Lot 19 on Plan BLM210 17 Lot 7 on Plan BLM324 9, 10 Lot 16 on Plan BLM326 17 Lot 7 on Plan BLM330 17 Lot 6 on Plan BLM382 21 Lot 12 on Plan BLM39 20 That part of Lot 10 on Plan BLM601 excluding the areas formerly described as: 19 Allotment 12 of Section 26 on Plan D30611; Allotment 14 of Section 26 on Plan D30611; Allotment 3 of Section 27 on Plan D30611; Allotment 5 of Section 27 on Plan D30611; Allotment 7 of Section 27 on Plan D30611; Allotment 12 of Section 27 on Plan D30611; Allotment 14 of Section 27 on Plan D30611; Allotment 16 of Section 27 on Plan D30611; and Allotment 18 of Section 27 on Plan D30611. That part of Lot 10 on Plan BLM608 excluding the areas formerly described as Portions 23-25 on Plan BLM211 17 That part of Lot 22 on Plan BLM797 excluding the area formerly described as Portion 22 on Plan BLM211 17 That part of Lot 3 on Plan BLM845469 excluding the areas formerly described as Portions 23-25 on Plan BLM211 and Portion 5 on Plan BLM375 17 Lot 7 on Plan BLM86 21 Lot 21 on Plan BLM912 10 Lot 11 on Plan D30617 19 Lot 20 on Plan D30618 19 That part of Lot 55 on Plan D30622 excluding the area formerly described as Portion 8 on Plan BEL5375 17, 18, 19 That part of Lot 5 on Plan D30626 excluding the area formerly described as Portion 8 on Plan BEL5375 19 Lot 78 on Plan D30626 19 Lot 17 on Plan D3063 19 That part of Lot 5 on Plan D30631 excluding the area formerly described as Portion 8 on Plan BEL5375 19 That part of Lot 20 on Plan D30631 excluding the area formerly described as Portion 8 on Plan BEL5375 19 Lot 509 on Plan D3064 18 Lot 44 on Plan D30640 17 Lot 9 on Plan D3068 19 Lot 266 on Plan FTY344 2 Lot 270 on Plan FTY392 2 Lot 23 on Plan SP260542 11 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:

Ballandool River;
Balonne River;
Bokhara River;
Briarie Creek;
Culgoa River; and
Narran River.

[29]

INTRODUCTION 1 Before the Court is an Amended Native Title Determination Application (the application) filed on 29 July 2021 pursuant to the Native Title Act 1993 (Cth) (the Act) and in accordance with orders of the Court dated 29 July 2021. The applicant is collectively Timothy Knox, William Taylor, Jason Dreise, Jason Wilson, Michael Anderson, Jamie-Lee Taylor and Mayrah Dreise on behalf of the Yuwaalaraay/Euahlayi People. 2 The applicant has applied for a determination of native title under subs 61(1) of the Act in respect of lands and waters in South West Queensland on the Queensland and New South Wales border (determination area). The external boundary of the determination area encircles an area of approximately 124.2290 km2, and encloses townships Dirranbandi and Hebel. The main waterways flowing through the determination area include the Narran River, Bokhara River and Ballandool River, as well as parts of the Balonne and Culgoa Rivers. 3 The determination area is bounded on the east by the Gamilaraay People native title determination application, and on the west, the Kooma People native title determination. Directly north of the determination area is unclaimed territory. The southern boundary for the application is the State border between New South Wales and Queensland (State Border). Directly below the determination area and below the State Border is also currently unclaimed. 4 There are no overlapping or competing native title claims over any part of the determination area. 5 The Yuwaalaraay/Euahlayi 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 determination area and, by those laws and customs, have a connection with the determination area. 6 The applicant on behalf of the Yuwaalaraay/Euahlayi People seeks an order under s 87 of the Act for a determination of native title which gives effect to the terms of the agreement reached between the parties to provide recognition of the native title rights and interests held by the Yuwaalaraay/Euahlayi People in relation to the determination area (Section 87 Agreement). 7 The Section 87 Agreement contains a clause whereby the parties agree to consent to the making of orders in terms of a draft ordered annexed to the Section 87 Agreement (the Draft Consent Determination Orders).

[30]

PROCEDURAL HISTORY 8 The pleading before me is an amended application. This reflects the fact that there was an earlier version of the application brought on behalf of the Yuwaalaraay/Euahlayi People under s 61(1) of the Act. In summary, the procedural history to the application currently before the Court is as follows: the Yuwaalaraay/Euahlayi native title application was filed with the Federal Court on 23 January 2017; the application was accepted for registration under s 190A of the Act, and entered onto the National Native Title Tribunal Register of Native Title Claims; on 14 June 2017 the application was notified pursuant to s 66(3) of the Act, with a notification closing date of 13 September 2017; on 6 February 2018, Jagot J made case management orders; on 10 August 2018 in accordance with the orders made by Jagot J, the applicant provided its Connection Evidence to the State; on 31 October 2018 the State filed a notice indicating that further evidence was required before it could enter negotiations towards a consent determination; on 7 March 2019, Rangiah J made further case management orders; on 29 March 2019 the applicant provided the State with further connection material in compliance with orders made by Rangiah J; on 12 December 2019, the State wrote to the applicant advising that it was prepared to enter into substantive negotiations towards a consent determination. This was communicated to the Court on 18 December 2019; on 15 January 2021, the State wrote to the applicant advising that it considered that the further evidence provided was sufficient to establish that the requirements of ss 47A and 47B of the Act were satisfied for particular land parcels, however further evidence was required for remaining parcels; on 12 February 2021 the applicant provided further evidence to the State; on 26 February 2021 the applicant provided the State with further occupation evidence for the remaining parcels; on 30 March 2021 the applicant and the State reached agreement as to where exclusive native title rights and interests were capable of being recognised within the external boundary of the application; on 20 June 2021 the claim group authorised the applicant to agree to the draft consent determination orders as presented to the claim group meeting. The applicant was also authorised to amend the application, including to reduce the size of the area of the claim; and on 29 July 2021 I made orders granting leave to the applicant to amend the application. Pursuant to those orders, on 29 July 2021 the applicant filed the amended Form 1 Native Title Application currently before the Court. 9 On 11 October 2021 the applicant filed submissions in support of a proposed consent determination. On that same day, the State also filed an agreement under s 87 of the Act, signed by all parties, in which the parties agreed to the making of orders by consent granting native title to the applicant.

[31]

SECTION 87 10 Section 81 of the Act provides that the Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relates to native title. 11 The orders sought by the parties are pursuant to s 87 of the Act, which materially provides: 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). (emphasis in original) 12 Section 87 provides that where all of the 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. 13 Before turning to consideration of these issues it is appropriate to examine evidence before the Court in respect of key aspects of the application, in particular the determination area and the claim group.

[35]

ORDERS SOUGHT 20 The parties to the application have agreed upon on orders they seek in relation to the determination area, and as I have already noted, they have filed an agreement in writing setting out the terms of the agreement reached. 21 The parties ask the Court to make consent orders pursuant to s 87 of the Act acknowledging that native title exists as described in the determination area. The proposed orders sought are lengthy, primarily because of the detail identifying the determination area. Otherwise, the orders sought by the parties include that: Native title exists in the determination area, being 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 (as defined in the agreement) and not otherwise excluded by the terms of Schedule 5 to the Section 87 Agreement reached by the parties. Native title is held by the Yuwaalaraay/Euahlayi People described in Schedule 1 to the Section 87 Agreement reached by the parties. There be non-exclusive rights to engage in activities such as access, be present on, move about on and travel over the area; camp and temporarily live on the area (and build temporary shelter); hunt, fish and gather on the land and waters; take natural resources from the land and waters; take the water of the area for personal, domestic and non-commercial communal purposes; conduct ceremonies; bury native title holders; maintain places of importance and areas of significance for the native title holders; hold meetings; light fires for domestic purposes; be accompanied onto the area by certain non-native title holders. The native title rights and interests are subject to, and exercisable in accordance with, the laws of the State of Queensland and the Commonwealth, and the traditional laws acknowledged and traditional customs observed by the native title holders. Any native title rights and interests 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 as they exist at the date of the determination. Those other interests include the holders of the rolling term lease for grazing State forest purposes, Special Lease No. 39/34064 over Lot 18 on Crown Plan BLM765 granted pursuant to the Land Act 1994 (Qld); Telstra Corporation Limited ACN 051 775 556; Ergon Energy Corporation Limited ACN 087 646 062; Balonne Shire Council, the State of Queensland, members of the public arising under the common law; the Commonwealth of Australia.

[36]

POWER OF COURT AND APPROPRIATENESS OF ORDERS 22 Earlier in this judgment I set out s 87(1) of the Act. In summary s 87(1) requires that: (1) the parties have reached an agreement on the terms of an order in relation to part of the proceedings; (2) the agreement occurred after the end of the period specified in a notice given under s 66 of the Act; (3) the agreement is in writing, signed by or on behalf of the required parties and filed with the Court; and (4) the Court is satisfied that an order in, or consistent with, the terms of the agreement would be within the power of the Court. 23 The applicant submitted that, with respect to the Draft Consent Determination Orders, the first three requirements of s 87(1) (as listed above) are satisfied. 24 With respect to requirement (4) of s 87(1) the applicant submitted that it was within the power of the Court to grant an order in terms of, or consistent with the Draft Consent Determination Orders. 25 In my view, the first three requirements are clearly satisfied here in that: the parties have reached an agreement on the terms of the order; the agreement was reached after notification was completed on 13 September 2017; and the agreement has been reduced to writing and signed or on behalf of each of the parties and filed with the Court. 26 Accordingly, the questions for consideration by me are whether an order consistent with the terms of the agreement the parties have executed is within the power of the Court, and whether it is appropriate to make the orders sought. In doing so it is also appropriate to have regard to s 94A of the Act, to which reference is made in s 87. Section 94A of the 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) 27 In Nelson v Northern Territory of Australia [2010] FCA 1344 (Nelson) at [4], Reeves J explained that an order sought under s 87 of the Act will be within the power of the Court if: (a) it is consistent with s 94A of the Act; (b) the rights and interests included in the proposed determination area are recognised by the common law of Australia; and (c) there is no other determination in existence over the area the subject of the proposed determination. 28 Section 225 of the Act relevantly provides: 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. (emphasis in original) 29 The applicant submitted the following in relation to the requirements of s 225 of the Act: (a) the persons proposed to hold the common or group rights comprising the native title area are set out at Schedule 1 to the Section 87 Agreement; (b) the nature and extent of the native title rights and interests in relation to the determination area are set out at paragraphs [6]-[10] of the Section 87 Agreement; (c) the nature and extent of any other interests in relation to the determination are set out at Schedule 2 to the Section 87 Agreement; (d) the relationship between the rights and interests in paragraphs (b) and (c) above are set out at paragraph [12] of the Section 87 Agreement; 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 - 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 as set out in paragraph [6] of the Section 87 Agreement. 30 The applicant further submitted that: The Draft Consent Determination Orders set out all the details mentioned in s 225 of the Act and are therefore consistent with s 94A of the Act. All of the rights and interests included in the Section 87 Agreement and Draft Consent Determination Orders are capable of being recognised by the common law of Australia. The third requirement outlined by Justice Reeves in Nelson is satisfied because there is no other determination in existence over the area the subject of the proposed determination. Because each of the requirements are satisfied, so long as it appears to the Court to be appropriate to do so, the Court has jurisdiction to grant the orders in terms of, or consistent with, the Draft Consent Determination Orders. 31 In relation to whether it is appropriate to make consent orders in terms of the parties' agreement, in Nelson at [14] Reeves J noted that the central issue to consider is whether there exists a free and informed agreement between the parties. In determining this issue, the process followed by the State, particularly how an assessment of the underlying evidence as to the existence of native title is carried out, was found to be critical. 32 Other critical factors identified by his Honour were: (1) whether the parties have independent and competent legal representation; (2) whether terms of the proposed order are unambiguous and clear; and (3) whether the agreement has been preceded by a mediation process. (See also: Munn on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29], [32], [39] and [40]; Lovett v Victoria [2007] FCA 474 at [32], [39]-[40], [41]-[42] Nangkiriny v Western Australia [2004] FCA 1156 at [6], Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6].) 33 In Anderson on behalf of the Wulli People v Queensland (No 3) [2015] FCA 821 at [153] I summarised principles relevant to the Court's power under s 87(1A) as follows: (a) The Court must exercise caution where any declaratory order involving property rights is sought. (b) Orders that have particular public interest elements require closer examination by the Court than orders which operate solely inter partes. A determination of native title operates against the entire world and has public interest elements. (c) The Court must act judicially and not capriciously having regard to the objects and purposes of the Act. An important object of the Act is that issues and disputes concerning native title be resolved where possible by mediation and agreement rather than by Court determination. (d) It is relevant to consider whether those likely to be affected by an order have had independent and competent legal representation. (e) The State in a very real sense appears in the capacity of parens patriae to look after the interests of the community generally. (f) The Court should be satisfied that the parties who have agreed to compromise the matter are acting in good faith and rationally, particularly the State which is acting on behalf of the community generally. (g) The Court should consider whether native title rights and interests that are sought to be declared are cognisable by the law of Australia or the State. (h) The Court should consider whether native title has, in fact, been extinguished. (i) The Court should be satisfied that all of the requirements of the Act have been complied with, such as ss 94A and 225. (j) The Court should be satisfied that the proposed orders are unambiguous and certain as to the rights declared. 34 The applicant further relies on observations of North J at [36]-[37] in Lovett where his Honour held that: The [Native Title Act] is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 35 The applicant also relies upon Mansfield J in Lander v South Australia [2012] FCA 427 at [12]: Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. See also Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at [38] per Madgwick J: State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land. 36 The applicant submitted that in relation to the 'evidence upon which the parties have based their decision to reach a compromise' referred to in Munn, Greenwood J determined that although it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, the Court ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are 'rooted in reality': Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306 at [16]; Kowanyama People v State of Queensland [2009] FCA 1192 at [23]. 37 The applicant submitted that the summary of material in Annexure A to their submissions and the material in the Affidavit of Deni Frana Jokovic-Wroe affirmed on 11 October 2021 is sufficient to discharge that onus. 38 The applicant further submitted that the parties have freely entered into the Section 87 Agreement informed by their involvement in the claim process, including negotiations, and having had the opportunity to consider and assess the Connection Evidence, being the evidence provided and relied upon by the applicant to satisfy the parties of the applicant's connection and claimed native title rights and interests (Connection Evidence). The applicant submitted that mediation was not required to resolve the matter as between the parties to the Section 87 Agreement. 39 At [59] of the applicant's submissions, the applicant noted that all but one of the parties had the benefit of competent legal representation; with that one party being encouraged by the applicant and the State to seek their own independent legal advice during the course of the proceedings. 40 It is common ground that the State undertook a review of the applicant's Connection Evidence. The Connection Evidence informed the applicant's summary of evidence at Annexure A of their submissions. The State's review of the Connection Evidence included the assessment of further Connection Evidence. The applicant submitted that this was sufficient to demonstrate that the State of Queensland has taken a "real interest" in the proceedings on behalf of the broader community (Munn), and thereby the public interest was protected. 41 The applicant submitted the following: Because the State of Queensland has undertaken a review of the applicant's evidence (including requesting and assessing further evidence that it thought was required) the public interest is protected. The parties have engaged in the claim resolution process rationally, and in good faith and the process by which the parties have reached agreement is consistent with the objects of the Act which encourage parties to take responsibility for resolving proceedings without the need for litigation. The Draft Consent Determination Orders are drafted in terms that are unambiguous and clear. The Draft Consent Determination Orders are appropriate and that the Court should be satisfied that an order under s 87 of the Act would be appropriate to make orders in terms of, or consistent with, the Draft Consent Determination Orders.

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EVIDENCE ON WHICH THE PARTIES RELY 42 In communications to the Court, the applicant expressed its preference to follow the course taken in Ryan (Snr) on behalf of the Warragamay People v State of Queensland [2021] FCA 977, whereby there was no explicit requirement to file lay evidence or anthropological material comprising the connection material in these proceedings. This course was sought on the basis that that material has been provided to the State on a without prejudice basis, for the purpose of informing the State of the continuity and connection requirements and those rights and interests capable of recognition in accordance with s 223 of the Act. The applicant submitted that the position of the State was that the State would not press for the filing of the connection material, but if it was required to be filed, they would not support the applicant's opposition to such requirement. 43 The Orders I made on 8 October 2021 were phrased in broad terms to permit the filing of any additional material the applicant deemed appropriate to file in support of the consent determination. Those orders were as follows: … 3. By 4.00 pm on 11 October 2021, the Applicant and First Respondent are to file any agreement reached by the parties pursuant to section 87 of the Native Title Act 1993 (Cth). 4. By 4.00 pm on 11 October 2021, the Applicant may file: (a) any submissions or evidence in support of the consent determination; and (b) any nomination and documents in support under sections 56 or 57 of the Native Title Act 1993 (Cth). 5. By 4.00 pm on 18 October 2021, any respondent who wishes to do so may file any submissions or evidence in support of the consent determination. 44 The documents filed by the applicant in support of the consent determination are as follows: Outline of submissions on behalf of the applicant in support of a proposed consent determination; and Affidavit of Deni Frana Jokovic-Wroe dated 11 October 2021. 45 The State filed the "Agreement under s 87 of the Native Title Act 1993 (Cth)". 46 I note that during case management, the applicant provided the State with various connection evidence (the Connection Evidence), on a confidential and without prejudice basis, in support of the Yuwaalaraay/Euahlayi People's connection with the claim area. The Connection Evidence comprised of: Yuwaalaraay/Euahlayi People Native Title Determination Application (QUD32 of 2017) Connection Report - Expert Anthropology Report - Prepared for QSNTS by J Kumarage dated 10 August 2018 (the Connection Report); Yuwaalaraay/Euahlayi People Native Title Determination Application (QUD32 of 2017) Supplementary Report - Prepared for QSNTS by J Kumarage dated 28 March 2019 (the Supplementary Connection Report); Supplementary Report on the Unconstrained Right to Take Resources prepared for QSNTS by Jitendra Kumarage dated 11 February 2021; Witness Statement of John Jack Bishop, dated 25 October 2017; Witness Statement of Darcy Washington Snr, dated 27 October 2017; Witness Statement of William Robert Taylor, dated 28 February 2018; Witness Statement of Betty May Condran, dated 11 March 2018; Witness Statement of Timothy Knox dated, 12 June 2018; Witness Statement of Jason Daniel Dreise, dated 12 June 2018; Witness Statement of Victor George Chapman, dated 13 June 2018; Witness Statement of Clem Dodd, dated 20 June 2018; Witness Statement of Michael Anderson, dated 21 June 2018; Witness Statement of Frances Claire Peters Little, dated 21 June 2018; Witness Statement of Mayrah Yarraga Dreise, dated 17 July 2018; Witness Statement of Paulette Whitton, dated 7 August 2018; Witness Statement of Leslie 'Gordon' Lister, dated 20 March 2019; Witness Statement of Jason Wilson, dated 21 March 2019; Witness Statement of Frank Wright, dated 21 March 2019; Further Witness Statement of Timothy Knox, dated 26 March 2019; Further Witness Statement of Jason Dreise, dated 28 March 2019; Unsigned Affidavit of Mayrah Dreise, dated 4 November 2020; Unsigned Affidavit of Jason Dreise, dated 4 November 2020; Unsigned Affidavit of Timothy Knox, dated 5 November 2020; Further Affidavit of Tim Knox, dated 21 March 2021; Affidavit of William Robert Taylor, dated 6 April 2021; and Further Affidavit of Jason Daniel Dreise, dated 16 April 2021. 47 The applicant submitted that the Connection Evidence was assessed by senior counsel and anthropologists engaged by the State in accordance with the Guidelines for preparing and assessing connection material for Native Title Claims in Queensland, dated November 2016. 48 In their submissions, the applicant stated that they had not filed the Connection Evidence, but rather that they were relying upon the Draft Consent Determination Orders attached to the Section 87 Agreement, the Section 87 Agreement itself, and the summary of the Connection Evidence contained in Annexure A to the submissions.

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Annexure A: Summary of Connection Evidence 49 In Annexure A: Summary of Connection Evidence, the applicant noted s 223 of the Act, in particular the definition of 'native title' and 'native title rights and interests': … 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 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. 50 The applicant submitted that the basic principles relevant to s 223 of the Act have been well established following the High Court decision in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58. The applicant also submitted that the State is familiar with the matters that must be addressed in establishing native title, and has had regard to these requirements in assessing the Connection Evidence. 51 In relation to 'Pre-Sovereignty Society', the applicant submitted: 1. In the Connection Report, Kumarage outlines that traditionally, the language named tribe or language group was not a political unit and land ownership did not operate at this broad level at effective sovereignty [Connection Report [861]]. Early reports from the area show that at effective sovereignty, land tenure operated at a local level, below that of the language named tribe or language group [Connection Report [870]]. These local groups extant at effective sovereignty within and to the south of the claim area were Yuwaalaraay speaking, and they collectively occupied country that was and remains identified with the Yuwaalaraay language [Supplementary Connection Report [60]]. 2. At effective sovereignty the forebears of Yuwaalaraay People acknowledged and observed a common set of traditional laws and customs in relation to their lands and waters. The laws and customs of Yuwaalaraay People originate in a time beyond living memory, where the creative all-father figure Baayami, travelled the land, created its features, imbued it with spiritual meaning and gave country, Law and Language to Yuwaalaraay People and their neighbours [Connection Report [1046]]. The regional society of which the Yuwaalaraay are a part of consists of the members of language-identified groups who have broadly similar laws and customs [Supplementary Connection Report [63]]. The kinship networks, social systems, belief systems, mythological and ceremonial networks and linguistic affiliations of the Aboriginal people occupying the claim area at effective sovereignty extended beyond it to include the members of neighbouring groups who spoke different languages [Connection Report [756]]. 52 In relation to 'Contemporary Society', the applicant submitted: 3. While traditionally it was local groups that had ownership of small tracts of country or estates, claimant families today are descended from apical ancestors whose traditional connection were to estates within, or partly within, the claim area [Connection Report [737]]. Yuwaalaraay country is identified by claimants as being associated with all Yuwaalaraay People who have collective rights in the whole claim area, while at the same time, claimants also articulate their rights and interests in land at a family level [Connection Report [855]]. Yuwaalaraay People today belong to families, generally identified by surname, which are associated with particular parts of Yuwaalaraay country [Connection Report [930]]. The contemporary Yuwaalaraay land tenure system is based not only on the origins of a forebear, but also on where grandparents and parents are known to have born, lived, worked and died, and where claimants themselves were born, live, work and carry out subsistence activities such as fishing, hunting and gathering, and have spiritual knowledge of [Connection Report [69]]. The Yuwaalaraay claim group and families today are structured cognatically, where membership can be activated through either parent [Connection Report [959]]. This form of cognatic recruitment, and activation of birthplace and other connections is in accordance with the traditional laws and customs of the region [Connection Report [960]]. Yuwaalaraay People continue to acknowledge and observe a common set of traditional laws and customs in relation to their lands and waters, including 'rules regarding group membership, kinship and marriage, totems, spiritual beliefs and practices, land tenure and protocols of access, hunting, gathering and fishing and other resource use and decision-making' [Connection Report [793]. 53 In relation to 'Continuity of Law and Custom', particularly 'Social Organisation: Kinship, totems and marriage rules', the applicant submitted: 4. Knowledge of and adherence to the key elements of the Yuwaalaraay system of kinship and social organisation has continued from effective sovereignty to the present. Knowledge of totems, and the articulation by claimants of their social relationships and marriage rules in terms of totems, closeness/distance of relationship and surnames is widespread [Connection Report [825]]. Most claimants know their own totem and the totems of their forebears and express their relationships and some cultural beliefs and practices in totemic terms [Connection Report [793]]. Concepts of closeness and distance informing relationships and marriage rules are adaptations of the restrictions based on the section and moiety systems and demonstrates continuity with the laws and customs extant at effective sovereignty [Connection Report [850]]. 54 In relation to 'Beliefs in creative figures as the source of country and law and custom and spiritual presence', the applicant submitted: 5. The claimants and their ancestors' spiritual beliefs and practices underpin their ownership of and rights and interests in their land and waters. Yuwaalaraay People believe in an 'All-Father' figure named Baayami who created the land and waters, gave the people laws and customs and their totems, and with his wives and sons, looks over from a spirit world in the sky [Connection Report [80]]. The belief in Baayami pre-dates sovereignty and the Yuwaalaraay claimant's spiritual beliefs and practices have continued from the time of effective sovereignty to the present [Connection Report [1045]]. The beliefs, mythology and ceremonial practices associated with Baayami are widespread, where Baayami is the most important creative figure in Yuwaalaraay mythology and is considered to be the main source of Law. Claimants know other mythological stories which explain the origin of certain species, material goods of cultural practices. 6. Yuwaalaraay People believe that various ghosts and spirits, little hairy men and other supernatural beings inhabit the landscape, and there are rules regarding appropriate behaviour in country inhabited by such beings [Connection Report [89]]. Rules also exist regarding accessing certain places and areas, for example gender restricted sites. There is an almost universal belief in ancestral spirits inhabiting the landscape, where the spirits of the dead continue to wander the landscape and interact with living people [Connection Report [1104]]. There are various precautions that can be taken to protect oneself from spirits according to claimants, with stories told of what happens when protocols are not followed and how the spirits or ghosts can be malevolent if not treated properly [Connection Report [1109-1110]]. There are certain knowledgeable and senior individuals that are healers and are believed to have the power to communicate with the spirit world, which is a continuation of the traditional roles of the wiringin and female healers at the time of effective sovereignty [Connection Report [1253]]. 55 In relation to 'Cognatic descent as the mechanism for the acquisition of identity along with rights and interests in land', the applicant submitted: 7. For Yuwaalaraay People today, local connections of families to parts of Yuwaalaraay country is a fundamental part of the contemporary land tenure system [Connection Report [928]]. The geographic origins of an ancestor is an indication of the location of their traditional country, which is remembered by claimants and in many cases, descendants have maintained both a long term physical presence in and/or knowledge of that area [Connection Report [928]]. The principles of land tenure and connection to country are the basis for ownership of country and the continuing connection of claimants to country. 8. A cognatic model of acquiring country through either mother or father operates today. This model incorporates features of the system which prevailed at effective sovereignty, where patrifilial, matrifilial, birthplace and residential connections all being part of the system, which highlight the existence and operation of multiple and intersecting pathways of connection and obtaining rights and interests in country [Connection Report [857]]. One recognised and accepted way of obtaining rights and interests in Yuwaalaraay country is through the incorporation to another language named tribe or local group through a combination of factors such as birthplace, marriage, the birth and raising of children and grandchildren, long term residence and ritual, which is part of the normative system of the regional society of which the Yuwaalaraay People belong [Connection Report [992]]. Incorporation continues to be part of the traditional laws and customs of the region and of the Yuwaalaraay People [Connection Report [1039]]. Adoption is another recognised means of gaining membership under the traditional laws and customs of the Yuwaalaraay People [Connection Report [1037]]. 56 In relation to 'Rights and Interests', the applicant submitted: 9. The rights and interests claimed are based on the premise that at effective sovereignty the claimants' ancestors owned the land and waters of the claim area, in accordance with their traditional laws and customs, and that those laws and customs have continued to be acknowledged and observed by the claimants to the present day. The principles of land tenure and connection to country are the basis for ownership of country and the continuing connection of claimants to country [Connection Report [993]]. While the Yuwaalaraay People form part of a regional society who share a common system of traditional laws and customs, only Yuwaalaraay People can assert native title rights and interests in the claim area, where the other members of the regional society do not have these same rights. The Connection Materials demonstrate that the following rights and interests were exercised by Yuwaalaraay People in the claim area in the pre-sovereignty and post-sovereignty period, and continue to be exercised by Yuwaalaraay People today. 57 In relation to 'Access be present on, move about on and travel over the area', the applicant submitted: 10. As Kumarage opines, the right to occupy the claim area arises from the ownership of the land and waters by the Yuwaalaraay People in accordance with their laws and customs [Connection Report [1001]]. Claimants continue to demonstrate a physical and spiritual connection to Yuwaalaraay country as demonstrated in the following statements: Betty Condran: "I spent a lot of my time with Granny Ginnie, so a lot of the time I was in Queensland, in and around Dirranbandi to Goodooga and Hebel getting these bush foods from her country." (Witness Statement of Betty Condran (11 March 2018) [35]) John Jack Bishop: "'There are also tribal burial grounds just out of Goodooga Reserve ... I still go in and check that site to make sure it is okay and not being disturbed, but it is not as well looked after as it was in the old days, with lots of cattle damaging the area. This is no good. Cattle should not be allowed in there. Spirits are still at that place - if you were to go there at night, you would see them. I remember one of the previous white fella owners tried to tell me that I couldn't go to the burial grounds, and I said to him, 'That's my country, you can't keep me out.' These days, the owners know me, and they say, 'That's okay Bisho, you can go.' Whenever white people have come in and interfered with these burial grounds, they have got sick and died. This is because the old spirits have caught them and punished them for doing the wrong thing." (Witness Statement of John Jack Bishop (25 October 2017) [67]) 58 In relation to 'Camp, and live temporarily on the area and build temporary shelters', the applicant submitted: 11. Kumarage states that the rights of the Yuwaalaraay People to camp on, erect shelters on and live on their country at effective sovereignty arose from their ownership of the land and waters in accordance with their traditional laws and customs [Connection Report [1006]], and claimants continue to assert that they have these rights as can be seen in the following statements: Betty Condran: "I remember in Goodooga building small bush shelters, a bower shade, as taught to us by Granny Ginnie and Granny Katie, to help keep cool during the heat of summer at Christmas. It was like a pergola, with four large sticks as upright posts and bushes and leaves in netting for a roof The posts were the trunk from a young tree that we would bury into the ground, and make a shade that was about eight foot high, and big enough to have a table underneath. The posts would stay in the ground for a long time but as the leaves and branches started to die-off, we would need to get new leaves and branches for shade. In other words, the frame would usually stay in place year after year and we would just have to replace the leaves and branches. We would always sweep them out using brooms that were just branches from trees. After sweeping the floor, Granny Ginnie would tell me to fetch some water from the river using a bucket, and we would sprinkle water on the ground to make it hard like concrete. We would decorate our bower shade with coloured crepe paper and newspaper to make it look pretty. To this day, I decorate my carport and house with coloured paper to make it look pretty." (Witness Statement of Betty Condran (11 March 2018) [38]) Darcy Washington Senior: "When we travelled for a weekend or longer, my brothers and I would camp at a lagoon or on the river. I remember fishing at Lake Bokhara and camping at Pilgra Lagoon. We would camp at Pilgra Lagoon on our way to Hebel when we would go to Hebel to visit people - like the Chapmans - or to pick up supplies." (Witness Statement of Darcy Washington Senior (27 October 2017) [66]) Clem Dodd: "Throughout my life as I've worked on properties all over my Yuwaalaraay and Gamilaraay country, I've always camped along the rivers. I don't need to ask to do that as it's my country, I have the right to be there. We'd be travelling over country and we'd just pull up and camp for the night. We'd sleep under the stars in the summer and in the winter you'd put a tarp up with a big log fire. As long as the long fellas (the snakes) didn't come out you'd be ok." (Witness Statement of Clem Dodd (20 June 2018) [70]) 59 In relation to 'Hunt, fish and gather on the land and waters of the area and take natural resources from the land and waters of the area', the applicant submitted: 12. The right to hunt, fish and gather other natural resources from the land and waters is derived from the ownership of the land and waters in accordance with the claimants' traditional laws and customs [Connection Report [1326]]. Claimants continue to hunt, fish and gather on their traditional country: Mayrah Dreise: "We trade ochre for the purposes of dance and ceremony. It is not to be traded any further than that. We trade the ochred on the dance grounds. We don't trade at the ochre pits. We collect the ochres ourselves and trade on the dance grounds because that is more of a common ground for the groups. My father taught me about trading ochre on Yuwaalaraay country. He taught me what my Nanna taught him." (Affidavit of Mayrah Dreise (nee Hubbert) (4 November 2020) [23]) Frances Peters Little: "Hunting and gathering are part of our life, people go out and get Kangaroo and Porcupine all the time, and they'll catch a few sheep and goat too, there are plenty around here. Porcupine tastes good, you boil it up or cook it on the fire ... Living on country in Lightning Ridge I'm always going out and getting bush tucker, whenever I'm out I'm always looking for things, little fruits and things like bush oranges. Only the other day I went out to get some bush oranges from down the road, they are all going crazy at the moment." (Witness Statement of Frances Peters Little (21 June 2018) [106-107]) 60 In relation to 'Conduct ceremonies on the area', the applicant submitted: 13. As Kumurage opines, at effective sovereignty the claimants' ancestors had the right to conduct and attend ceremonies, meetings and other gatherings on their country. These rights to land arose from the responsibilities that the claimants' ancestors had to celebrate the creative period, to teach young men and women about the laws of the group, to inculcate young men into the esoteric knowledge of the group and to maintain good relations with neighbouring groups [Connection Report [1226]]. The following statements demonstrate the ongoing practice amongst contemporary claimants of conducting ceremonies within the claim area: Jason Dreise: "Today we still do smoking ceremonies on country, it's for cleansing and we mostly use sandlewood, but if you can't get any of that you can use whatever you can find on country. I've smoked rooms when deceased people have left us, it's about cleansing and letting the spirits know that the person needs to go and you need to look after them. You can use any bush, but it's best to use sandalwood if you can get it." (Witness Statement of Jason Daniel Dreise (12 June 2018) [70]) Mayrah Dreise (nee Hubbert): "Yuwaalaraay People do smoking ceremonies and welcome to countries all the time, including before we dance. Margaret Crump, Billie Scott, Walbira Murray (other Yuwaalaraay women) and myself did one in January this year (2020) when we danced at the Old Camp. We all got together and did a welcome to country and a smoking before we did the dancing." (Affidavit of Mayrah Dreise (nee Hubbert) (4 November 2020) [11]) "Yuwaalaraay People have a dance gathering every year at Currawillinghi Station. This normally happens in November, and I am going out to country this November (2020) to attend. Some of the other Yuwaalaraay families that attend are the Knox's, Murray's and Eckfords. We all camp there for the weekend, do dances and exchanges. We exchange personal stories and sometimes we exchange artwork, ochre or bush tucker - it depends on what people have got. I have personally done artwork which I have exchanged with these other families. Our ancestors and spirits are everywhere, they are all over our country. There are often eagles at the dance grounds at Currawillinghi, protecting the site." (Affidavit of Mayrah Dreise (nee Hubbert) (4 November 2020) [52]) 61 In relation to 'Burials', the applicant submitted: 14. Kumarage opines that the forebears of the claimants buried their dead and conducted mortuary rituals at effective sovereignty in accordance with their traditional laws and customs, and the claimants' current beliefs and practices in relation to death and funerals are a continuation of the laws and customs extant at effective sovereignty [Connection Report [1237]]. Tim Knox: "It is only for Yuwaalaraay to do smoking ceremonies on Yuwaalaraay country. For example, in 2013 when we repatriated ancestral remains back to Yuwaalaraay country in Dirranbandi, smoking ceremonies were performed by Yuwaalaraay people. It is important for Yuwaalaraay people to be buried on country. For the ancestral remains of a woman and baby, the smoking was done by Mayrah Driese and other women. For the ancestral remains of a man, the smoking ceremony was led by Mayrah's husband Jason Driese, who is a Yuwaalaraay man through his mother Lyla Driese, who is a descendant of Jack Simpson. I remember Jason was singing in Yuwaalaraay when he did that smoking ceremony. Jason has taught my sons and other young Yuwaalaraay boys these songs too, and when the smoking ceremony was happening they were signing with him ... We still carry out smoking ceremonies for burials. For my brother Wayne about six years ago, Jason and Mayrah did a smoking ceremony when we were leaving the town hall carrying his coffin, and then again when he was buried, in Dirranbandi. This was approved by Mum so that his spirit passed with the smoke." (Witness Statement of Tim Knox (12 July 2018) [72-73]) William Taylor: "At paragraph [4] of the Previous Affidavit, I referred to my Dad being buried back on country in Dirranbandi. It is important for Yuwaalaraay to be buried back on Yuwaalaraay country if they are able to. By this I mean that someone might die in a place a long way from Yuwaalaraay country, so it may not be practical for them to be buried back on country. Your country is where your spirit belongs. My home is also Dirranbandi. I hope to be buried on country in Dirranbandi when I die. That is my right as a Yuwaalaraay person." (Witness Statement of William Taylor (28 February 2018) [67]) 62 In relation to 'Maintaining places of importance and areas of significance, and protect those places and areas from physical harm', the applicant submitted: 15. Claimants continue to maintain and protect places of significance within the claim area. Access protocols and rules of behaviour are still observed by claimants as prescribed by their traditional laws and customs, including the restriction of access to certain sites by certain categories of people. This is exemplified by the claimant's participation in the recording and protection of significant areas and sites: Frances Peters Little: "I have a responsibility to make sure my knowledge continues and country is protected. It's about who lived before me, and before them and then even older. It's not just my life time that matters, it's about my old people that have been around for a very long time, that's where I get my identity from and my responsibilities ... The rivers, plants, sky and animals are all part of our country, it's our responsibility to make sure they are all being looked after, because if they aren't then our country will suffer. Today I am sad when I see a river starving or plants dying. It is important to protect the animals of our country because they are the spirits of our ancestors and must be protected. This is what Mum and Nanny told me." (Witness Statement of Frances Peters Little (21 June 2018) [74-76]) Tim Knox: "At paragraph [20] of the Previous Affidavit, I also referred to fencing burial sites. It goes without saying that it is important to protect these places so they aren't destroyed. However, it is more than protecting the remains of our old people. Our history is in those places and the spirits of our old people are still around there. Those spirits need to be respected and protected because they still look after us, even though they have left their bodies. If you did something wrong to those places something bad could happen. You just would never think about doing anything wrong. When you're there you feel the presence of the old people ... In addition to fencing, cleaning and checking up on burial sites, another way we protect them is by not telling people who aren't Yuwaalaraay where the burial sites are. This reduces the chances of strangers being at the burial grounds in the first place. (Witness Statement of Tim Knox (12 July 2018) [42-45]) 63 In relation to 'Teach on the area the physical and spiritual attributes of the area', the applicant submitted: 16. Kumarage documents older men and women teaching younger members of the community about sites, mythology, laws and customs regarding accessing sites. These elder men and women themselves learnt about country from their ancestors [Connection Report [1236]]. The following statements demonstrate the continued practice of teaching: Mayrah Dreise (nee Hubbert): "On the other side of the road to the burial ground are two dance grounds. One of the dance grounds was destroyed by the Council in 2012. They didn't consult us about it. They should have consulted the Yuwaalaraay elders. There is now only one dance ground there. Me and other Yuwaalaraay women all go there and visit the dance ground every time we go on country, which we do every year. We show the dance grounds to our kids. It is an important site to protect because it is a sacred site." (Affidavit of Mayrah Dreise (nee Hubbert) (4 November 2020) [42]) "Every time I go out on country, I visit Police Lagoon on the Balonne River, heading out of Dirranbandi towards the dump, on the right hand side. We have to make sure we clean out the sides of the Balonne River where the reeds are so that the yellow belly can come in and spawn, so that there are clean passages and areas for them to come through and it's not dirty. Police Lagoon is one of the main spots that the yellow belly go to. There is another spot, just up past the pump station up the Balonne River, on the town side of the river, past the boat ramp. You need to walk on someone's private property to do it, but we still do it anyway. I do this every time I go out there, which we try to do every year, and have done so for the past 20 years. We have to make sure these places are kept clean for the yellow belly. I have shown my children these spots and taught them the process. My father initially taught me and his mum taught him. The only time you can't do it is when it's in drought." (Affidavit of Mayrah Dreise (nee Hubbert) (4 November 2020) [45]) Michael Anderson: "I remember when I was only young, not long before my grandfather Bertie Eckford passed away, he took me out bush, I remember I had to sit and listen to the old men's stories and songs. I learnt a lot from grandfather Bertie, who took me on his horse. I have taught and continue teaching my sons all of these songs and stories. When they were younger I took him to the Narran, Barwon and Namoi rivers, showed them sites on our country and told them the stories and songs I was taught. They have been to those rivers all their lives, and they still come back now." (Witness Statement of Michael Anderson (21June 2018) [7]) 64 In relation to 'Hold meetings on the area', the applicant submitted: 17. As Kumarage states, the Yuwaalaraay claimants have the right to hold and attend meetings, ceremonies and cultural activities on the claim area, and these rights are derived from the traditional laws and customs of the pre-sovereignty society. Claimants continue to hold meetings including in relation to site protection, native title and water management on the claim area [Connection Report [1233]]. Betty Condran: "Family gatherings on country, like in Dirranbandi or Hebel or Goodooga were always so much fun. We would have a good feed of bush tucker and then dance. Some of the singing was in language and a traditional corroboree, but other times we would be waltzing to music being played on mouth organs or piano accordions or guitars. Sometimes we even had an old wind-up gramophone to play music on. We would be dancing so hard that dust would fly up in the air. We have the right to do these activities because it is in our blood and I have been shown the correct way to do things in accordance with our rules by Granny Ginnie and don't need permission from white fellas, in accordance with our tradition. I have always followed that, like if I was out hunting and there was a fence, I ignored that fence and broke it and went it for bush tucker anyway." (Witness Statement of Betty Condran (11 March 2018) [143-144]) Paulette Whitton: "Over about the last four years we have started having family reunions on country at Hebel. They are a great way for family to get together and talk about what we all know, and be on our country together ... When we meet we talk, we laugh, share stories and yarns, we cook and eat our meals together, it's about family being together on country. We also take everyone out to Currawillinghi which is a special place for our family, and we spend time out there experiencing our country together and making sure things are being taken care of. We'll keep an eye out for scar trees and we visit the Yuwaalaraay grave sites to pay our respects." (Witness Statement of Paulette Whitton (7 August 2018) [34-36]) 65 In relation to 'Light fires on the area', the applicant submitted: 18. As Kumarage outlines, since effective sovereignty, Yuwaalaraay People have continued to exercise the right to light fires for domestic purposes on their country, and the claimants today continue to exercise this right, including to light fires for cooking while camping on the claim area or for corroborees [Connection Report [1331]]: Betty Condran: "To cook meat, we were taught by Granny Ginnie to cook on the fire by digging a big hole, and cooking the meat in the coals, that was wood that had burned down to coals, and then putting leaves over it, and then covering it with dirt. This was called dhawumali. The leaves would make sure the dirt would stay off the meat. Sometimes we would also use rocks to help cook the meat. We would do this by heating rocks in the fire and then putting them in the hole with the meat to keep the heat in." (Witness Statement of Betty Condran (11 March 2018) [129]) John Jack Bishop: "We were also taught how to hunt and cook emu. We ate it even though it was our meat. We would usually just shoot the emu in the head and then dig a big hole and burn a big fire down to coals and put some rocks in the fire too. We would pull the rocks out and put the hot rocks inside the emu to cook the insides and put the emu in the hole with the ashes to cook the outside. You never wasted any meat and would give meat to old people for a feed." (Witness Statement of John Jack Bishop (25 October 2017) [125]) 66 In relation to 'Accompanied onto the area by certain non-native title holders', the applicant submitted: 19. As Kumarage outlines, claimants assert the right to be accompanied by certain non-native title holders, such as family members, pursuant to the exercise of traditional laws acknowledged and customs observed by them [Connection Report [1258]]. Examples of use by non-native title holders and the requirements surrounding this use is demonstrated in the following statements: William Taylor: "Even once permission is granted, we prefer for visitors to be accompanied by Yuwaalaraay people when on our country. This is because we may want to keep an eye on them and make sure they don't go into places where we restrict access. It is also so we can talk to the spirits and introduce the visitors to the spirits. That introduction will make sure the visitor is safe and that the spirits are happy." (Witness Statement of William Taylor (28 February 2018) [35]) Jason Dreise: "I have also taken many groups of high school students there from Ipswich. I have taken groups of about 20 students who wanted to learn about indigenous culture and we took them there and to the old camp and we took them canoeing and fishing there and just sharing culture. When I took them to Hebel, we got permission from Michael Anderson and he showed us into NSW to Currawillinghi and Lightening Ridge and Angledool mission and talked about where my grandmother lived, and the things that occurred there, what it was like. They would come annually and continued to, even after we moved from Dirranbandi after 2015. They continued to seek our permission to come onto our country." (Witness Statement of Jason Dreise (4 November 2020) [28]) 67 In concluding the evidence, the applicant submitted: 20. Kumarage opines that all of the rights and interests claimed by the Yuwaalaraay People today are based on the understanding that the claim area was owned by the ancestors of the claim group in accordance with their traditional laws and customs and that the claimants continue to observe and acknowledge those traditional laws and customs today. These rights and interests are cognatically acquired through principles of recruitment that are founded on and adapted from the pre-sovereignty traditional laws and customs of the Yuwaalaraay People, demonstrating continuity of connection and practice of law and custom [Connection Report [1040]].

[39]

CONSIDERATION 68 I now make the following observations. 69 First, I am satisfied on the material before me that the Section 87 Agreement in this proceeding has been entered into freely, and that the parties have either obtained independent legal advice or have had the opportunity to obtain legal advice. I note the submission of the applicant that all except one party (who were encouraged to seek legal advice) sought independent legal advice through the duration of this proceeding. There has been no suggestions of bad faith by any party regarding action or inaction of any other party during the period of negotiation. 70 Second, I accept the proposition that the Section 87 Agreement and orders sought by the parties endeavour to balance the interests of the applicant together with the respondents. I accept that because the State of Queensland undertook a review of the evidence provided by the applicant, which included requesting and assessing further evidence that it thought was required, that the public interest is protected. As I noted earlier in this judgment, the applicant asserts (and the respondents accept) that, in relation to the determination area, where the parties agree that exclusive native title exists, the nature and extent of the native title rights and interests in relation to the determination area are the rights to: (a) other than in relation to water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and (b) in relation to water, the non-exclusive rights to: (i) hunt, fish and father from the water of the area; (ii) take the natural resources of the water in the area; and (iii) take the water of the area, for personal, domestic and non-commercial communal purposes. 71 The applicant also asserts (and the respondents accept) that members of the claim group, being prospective native title holders, have non-exclusive native title rights to: (a) access, be present on, move about on and travel over the determination 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 determination area; (d) take natural resources from the land and waters of the determination area; (e) take the water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the determination area; (g) bury native title holders within the determination 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 determination area; (j) hold meetings on the determination area; (k) light fires on the determination area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and (l) be accompanied onto the determination area by certain non-native title holders, being: (i) spouses and other immediate family members of native title holders, pursuant to the exercise of traditional laws and customs; and (ii) people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in ceremonies. 72 The parties accept that the native title rights and interest in the determination area do not confer on the native title holders rights of possession, occupation, use or enjoyment to the exclusion of all others in relation to the water of the area. 73 Third, I note that the orders sought by the parties express the native title rights to be subject to the laws of the State of Queensland and the Commonwealth. The native title rights and interests are to be subject to the traditional laws acknowledged and traditional customers observed by the native title holders. The orders sought by the parties also express that 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). 74 The orders sought by the parties further stipulate that the nature and extent of any other interests in relation to the determination area (or respective parts thereof) are as they exist at the date of the determination. Those other interests include the holders of the rolling term lease for grazing State forest purposes, Special Lease No. 39/34064 over Lot 18 on Crown Plan BLM765 granted pursuant to the Land Act 1994 (Qld); Telstra Corporation Limited ACN 051 775 556; Ergon Energy Corporation Limited ACN 087 646 062; Balonne Shire Council, the State of Queensland, members of the public arising under the common law; the Commonwealth of Australia. 75 Finally, I note the submission that, at a meeting held in Dirranbandi on 20 June 2021, the claim group authorised the applicant to agree to the Draft Consent Determination Orders as presented to the meeting, subject to any necessary further technical amendments. The applicant was also authorised to amend the application, including to reduce the size of the area claimed by expressly removing non-claimable areas.

Knox on behalf of the Yuwaalaraay/Euahlayi People v State of Queensland

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