Kum Sing on behalf of the Mitakoodi and Mayi People #5 v State of Queensland - [2024] FCA 935 - FCA 2024 case summary — Zoe

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Kum Sing on behalf of the Mitakoodi and Mayi People #5 v State of Queensland

[2024] FCA 935

Federal Court of Australia|2024-08-22|Before: Perry J

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Court

Federal Court of Australia

Decision date

2024-08-22

Before

Perry J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

INTRODUCTION 1 In 2015, the Applicant, on behalf of the Mitakoodi and Mayi People, instituted a claimant native title determination application under s 61 of the Native Title Act 1993 (Cth) in the Federal Court of Australia. 2 The first respondent is the State of Queensland. In addition, there are a large number of respondents to the proceeding, including local councils, companies with mining or exploration activities in the application area, pastoralists, and energy and communication suppliers. Over the course of the proceeding, some parties have withdrawn, including the Commonwealth, while others were joined. 3 The parties have reached agreement as to the existence of native title rights and interests with respect to part of the area covered by the application, being Part A of the native title claim area. As a result, they seek a native title determination under s 87A of the Act that native title rights and interests exist over the lands and waters described in Schedule Four (the Determination Area) of the Proposed Determination and the orders which accompany these reasons, and are held by the Mitakoodi and Mayi People. Sections 87 and 87A of the Act provide a mechanism for achieving a key objective of the Act, being to ensure, where possible, that the just and proper recognition of native title rights and interests is achieved by conciliation and agreement. Specifically, these provisions confer power on the Court to make a determination of native title in relation to the whole, or (relevantly) part of, an area covered by a native title determination application (ss 87 and 87A respectively) where the parties reach agreement and a number of criteria are met (a consent determination). 4 The native title rights set out in the Proposed Consent Determination comprise exclusive and non-exclusive rights. The former are described in Part 1 of Schedule 4 (the exclusive areas) and comprise approximately 730 ha. Exclusive rights are areas (excluding waters) where the native title rights and interests confer exclusive possession, occupation, use and enjoyment on the native title holders to the exclusion of all others are described in Part 1 of Schedule 4. The latter comprise approximately 2,683,974 ha. Non-exclusive rights comprise areas of land and water where non-exclusive native title rights and interests are recognised, that is, where the native title rights and interests do not confer any right of possession, occupation, use and enjoyment or to control access. 5 In both cases, the native title must be exercised in accordance with: (1) the laws of the State of Queensland and of the Commonwealth; (2) the traditional laws acknowledged, and traditional customs observed, by the native title holders; and (3) the terms and conditions of any agreement that appears on the Register of Indigenous Land Use Agreements (ILUAs). 6 Importantly, once made, a native title determination operates against the whole world and does not merely bind the parties to the case in which the determination was made: CG (Deceased) on behalf of the Badimia Poeple v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [44] (North, Mansfield, Jagot and Mortimer JJ); McLennan on behalf of the Jangga People #3 v Queensland [2023] FCAFC 191; (2023) 301 FCR 452 at [26] (Perry J). This is so irrespective of whether the determination is made after a contested hearing and proved on the balance of probabilities or, as here, by consent: Jangga People #3 at [30]-[31] (Perry J). 7 The application relates to an area of land and waters covering approximately 25,700 square kilometres in north-west Queensland. It extends northerly from the Selwyn Range along the Cloncurry, McKinlay, Fullarton, Gilliat, Williams and Flingers Rivers. The southern boundary of the claim traces the watershed between the Lake Eyre Basin and the Cloncurry River catchment. The town of Cloncurry lies within the application area. There are also pastoral stations throughout the application area, including Fort Constantine and Canobie with which members of the claim group have long, intergenerational associations. 8 The area subject to the Proposed Determination is reproduced below for convenience from Schedule 6:

[4]

2.3 Progress of Part A to consent determination 15 In 2021 the State of Queensland wrote to the Applicant confirming that, having assessed the connection material filed by the Applicant, it was satisfied that there was a credible basis for it to enter into substantive negotiations towards a consent determination in this Proceeding. At the same time, the State communicated this to the Court and to the other respondent parties. 16 Most of the other respondents confirmed that they were willing to enter into substantive negotiations towards resolving the proceeding by consent. Four respondent parties (the Daniels respondents) did not agree that connection was established with respect to part of the application area (Part B). 17 Following mediation conducted by a Judicial Registrar of the Court, on 25 March 2022, I ordered by consent that the proceeding be divided into Part A and Part B. Part B comprises two lots in the south of the application area: Lot 1 on AL78 and Lot 2038 on PH460, to the extent that they were within the external boundary of the application. Part A comprises the balance of the application area and is the subject of the Proposed Determination. Part B remains on foot and is to be progressed and determined separately. 18 The parties have negotiated and reached agreement on the native title rights and interests recognised in the Proposed Determination on the basis of the connection evidence provided by the Applicant. The State and Applicant have also conducted a detailed analysis of the tenure of Part A of the application area and have reached agreement as to where native title can be recognised. 19 As part of this tenure assessment, the Applicant provided to the State the following further evidence from members of the claim group for the purposes of ss 47A and 47B of the Act: (1) Affidavit of Dean Turner, affirmed on 17 October 2023; (2) Affidavits of Dwayne Turner, affirmed on 17 October 2023 and 28 February 2024; (3) Affidavit of Ronald Major, affirmed on 17 October 2023; (4) Affidavit of Pearl Connelly, affirmed on 18 October 2023; (5) Affidavit of Kay Douglas, affirmed on 19 October 2023; (6) Affidavit of Gregory Cummins, affirmed on 20 October 2023; (7) Affidavit of Brian Douglas, affirmed on 20 October 2023; (8) Affidavit of Tanya Kum Sing, affirmed on 2 February 2024; and (9) Affidavit of Clyde Fogarty, affirmed on 21 February 2024. 20 I note that the other respondent parties confirmed in accordance with Court timetabling orders that they did not seek to be provided with this evidence. 21 The terms of the agreement reached between the parties includes agreements as to the parcels where exclusive native title rights can be recognised by virtue of the operation of ss 47A and 47B of the Act. These sections provide that for the purposes of the Act, any extinguishment of native title rights and interests in relation to an area claimed in a native title claimant application is to be disregarded in certain circumstances, namely: the area has been granted for the benefit of Aboriginal peoples or is expressly held for their benefit (s 47A); or, when the claimant application is made, the area is vacant Crown land occupied by members of the native title claim group (s 47B). 22 The State and Applicant have reached agreement as to the terms of an Indigenous Land Use Agreement (ILUA) to resolve tenure and validity issues arising in relation to the grants of some tenures within Part A of the application area. Pursuant to this ILUA, the Applicant has agreed to surrender native title over several parcels of land. Accordingly, those parcels have been excluded from the Proposed Determination. 23 In relation to other parcels to which the ILUA applies, namely, Lot 151 on CP911698 and Lot 51 on SP265801, the parties have agreed that the Proposed Determination will take effect in relation to those parcels upon registration of the ILUA under Div 3 of Part 2 of the Act [AS [77]]. The Proposed Determination over the remainder of Part A of the application area is agreed to take effect from 22 August 2024. 24 Between 23 and 30 July 2024, the parties signed the consent determination, as I shortly explain.

[6]

3.1 The evidence relied upon in support of connection. 25 The following lay evidence by members of the claim group was relied upon by the Applicant in its submissions, in support of the proposed determination of native title: (1) Affidavit of Alan Joseph Kum Sing, affirmed on 12 October 2020; (2) Affidavit of Dwayne ("Fred") Turner, affirmed on 12 October 2020; (3) Affidavit of Pearl Connelly, affirmed on 12 October 2020(subject to confidentiality orders made by Reeves J on 19 November 2020); (4) Affidavit of Sharn Fogarty, affirmed on 14 April 2020; (5) Affidavit of Alan Joseph Kum Sing, affirmed on 6 November 2020; (6) Affidavit of Pearl Connelly, affirmed on 6 November 2020; (7) Affidavit of Brian Douglas, affirmed on 28 April 2021; (8) Affidavit of Norman Douglas, affirmed on 28 April 2021; and (9) Affidavit of Melita Dawn Dolan, affirmed on 21 October 2021. 26 The Applicant also relied upon an expert anthropological report by Dr Kevin Murphy dated 8 November 2020. Among other things, Dr Murphy was awarded a PhD in anthropology, is a fellow of the Australian Anthropological Society, and has extensive experience as an expert in native title proceedings. The Applicant also relied upon a supplementary expert report prepared by Kate Waters dated 7 June 2021, with respect to the genealogies of Sophie (also known as Sophy and Sophie Monkey) and Tospy (also known as Topsy Wilson and Topsy Patterson), who are among the listed apical ancestors for the Mitakoodi and Mayi People. Ms Waters is a professional historian and cultural heritage specialist, with over 20 years' experience, including in fine-grained historical and genealogical analysis. 27 Additionally, a large number of expert reports have been prepared for the purpose of this application and during the history of former claims over the area by members of the Mitakoodi and Mayi People. These include: (1) Report of Nicolas Heijm, dated 6 July 1999; (2) Report of Paul Gorecki, dated April 2000; (3) Historical Report of Jonathon Richards, dated November 2012; (4) Reports of Daniel Leo, dated 17 August 2016 and 2 April 2017; (5) Reports of Dr Fiona Powell, dated 1 May 2019 and 3 July 2019; (6) Report of Professor David Trigger, dated 12 February 2023; (7) Supplementary Report of Dr Murphy, dated 3 May 2023; and (8) Reports of Wendy Asche, dated February and March 2024.

[7]

3.2 Connection 28 The date of effective sovereignty for the application area is the early 1860's. 29 The connection evidence included multiple expert reports, and affidavits and statements from lay witnesses. I particularly acknowledge the valuable evidence given by members of the claim group as to their continuing connection with the land and waters of Part A of the claim area. This includes evidence as to the native title claim group's deep spiritual association with the land and waters of Part A of the claim area, the particular spiritual significance of the Cloncurry River which runs through the application area, their responsibilities to care for the land and protect sites of significance, their right to speak for country and control access to places, and the importance attached by the native title claim group to ensuring that young people are taught on country about their country and about the laws and customs of their country. 30 Key aspects of Dr Murphy's conclusions in the executive summary to his report, which is helpful to quote at some length, include that: The region of the claim area and its Aboriginal inhabitants were impacted by colonial intrusion from 1864. At that time, the claim area and surrounds to the north, north-west and east was inhabited by people who spoke variants of a language in which the word for language or speech is mayi. People made distinctions between variants of this language by using names, several of which are prefixed with the word mayi. The name Mitakoodi is one spelling of such a name, phonetically spelled Mayi Thakurti; Mayi Yapi is another. The Aboriginal people who inhabited the region of the claim area had an intricate set of beliefs and practices emanating from an ontology in which the land and the features of the landscape; the flora and fauna of the land and waters; celestial and meteorological phenomena; and the spirits of their own ancestors were all interrelated with each other and themselves, and those relationships were given expression in ritual, dance, song, graphic design, story and a complex social structure by which interpersonal relationships were regulated, and through which human connections with country were structured. In native title terminology, people held rights and interests in the land that derived from a body of laws and customs. There was some variation in the specifics of the laws and customs of the society of the region of the claim area before sovereignty, but distinctions deriving from variation in any particular social and cultural characteristic do not align with each other to define a multitude of separate and distinct societies (with the meaning of "society" taken as defined in Native Title case law). Instead, the claim area was part of a broad regional society that contained some internal variation but was a single normative system. Colonial encroachment into the region of the claim area rapidly led to conflict between the Aboriginal inhabitants and the newcomers. In the first few decades after effective sovereignty the Aboriginal inhabitants suffered substantial population decline and disruption of their access to and control of the land and its resources. It quickly became impossible for the Aboriginal inhabitants to continue living autonomously from the settler society, and the surviving Aboriginal population became dependent on the colonial economy….. … It is likely that the laws and customs of the people who occupied the claim area before sovereignty provided for rights of primary ownership of land to be vested in individuals on the basis of membership of a clan, to which they were recruited by patrifiliation, probably mediated by a totemic spiritual conception event. It is likely that people also held secondary rights in country with which they had a matrilateral connection. The normative order was underpinned by a set of rules and expectations about the appropriate forms of interaction between people whose relationships were differentially defined within a universalising kinship system. The kinship system was given simplified expression in a set of four named socio-centric categories known colloquially as 'skin names.' Skin names were commonly used as terms of reference and address, and provided for division into complementary groupings in the enactment of ritual. … Following physical displacement, depopulation and effective dispossession of their lands, language named 'tribes' replaced the smaller clan groups that had previously functioned as foci of land-related group identities, and the former fine-grained distinctions of the clan estate system were dissolved into emergent tribal estates. This occurred in a socio-political context in which Aboriginal people were disempowered in relation to the settler society and the state, and is appropriately apprehended as an adaptation in the face of altered circumstances…. The laws and customs of the Aboriginal society that encompasses the Mitakoodi claim area continued to recognise genealogical descent from ancestors who had owned and occupied the land before colonial intrusion as the fundamental basis on which rights were asserted and accepted. Descent came to be reckoned cognatically rather than patrilineally. Patrilineal descent is structurally exclusive, functioning to limit the extent of land in which any person holds rights. Cognatic descent is structurally inclusive, and without additional mechanisms functions to multiply the areas of land in which a person has rights in land as they trace descent from multiple ancestors from multiple places. The legal recognition of native title effected a change in the socio-political environment within which the laws and customs subsist, and the changed environment has catalysed further adaptation of the laws and customs. It became structurally necessary for the inclusive mechanism of cognatic descent to be tempered by a cross-cutting mechanism that functions to limit the capacity for individuals to have rights and authority in multiple areas of land. This is commonly described as a requirement that each person must "choose" only one claim group with which they maintain primary identification. … The traditional laws and customs of the claimants' society contain a provision that people acquire rights in country by inheritance from their ancestors, and as a matter of principle the claimants accept that people who have been removed from their country for several generations may still hold rights in the claim area, but more is required in order to be recognised as a claim group member than mere assertion based on a speculative interpretation of archival documents. The claimants have a keen sense of the presence of their ancestors on the country, and believe that they inherit the country from those ancestors. The claimants and their forebears have maintained continuous physical presence on the claim area since a time before effective sovereignty. There has been intergenerational transmission of knowledge of stories and places, and of resources and techniques for exploiting them, demonstrating continuity since a time before effective sovereignty. The claimants collectively assert that they hold rights and interests under their traditional laws and customs throughout the claim area. There is substantial evidence of them exercising those rights in the affidavits that some claim group members have filed. The claimants hold a committed belief that they have a right to speak for the country, and this includes a responsibility to protect it generally, as well as a particular responsibility to protect sites of special significance. In my opinion, the rights and interests asserted by the Mitakoodi claimants arise from a body of law and custom which, while it has adapted in response to the forces and events by which the sovereignty of the Crown was imposed, remains traditional in the sense that it derives from the normative system that existed prior to effective sovereignty, and has continuous existence since that time. (Emphasis added.)

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4.1 General principles 31 Section 213 of the Act provides that a determination of native title must be made in accordance with the procedures in the Act. 32 In Jangga People #3, I summarised the general principles relating to consent determinations as follows (at [27]-[29]): in furtherance of the legislative preference for the negotiated resolution of native title claims, the NTA confers power on the Court to make a determination of native title that gives effect to the terms of an agreement between the parties (commonly described as a consent determination). That power may be exercised where the jurisdictional conditions in s 87(1) are met and it appears to the Court that it is appropriate to make an order consistent with the agreement between the parties (s 87(1) and (1A) respectively). While the discretion must be exercised judicially, the parties to an agreement are not required to produce evidence as if in a trial: Ward v Western Australia [2006] FCA 1848 at [8] (North J); Hughes v Western Australia [2007] FCA 365 at [8] (Bennett J). Rather, as Rares J held at [6] in McLennan: The Court has not had a trial to establish the applicant's claim on its merits. Even so, the Court has an important power to make a determination that native title over land and waters exists under s 87 of the Act once all of the parties have signed a written agreement and provided certain other conditions are met. In these proceedings, the State of Queensland has consented to the making of the determination of native title. Before the Court can make the orders recognising native title, it must be satisfied that the consent determination has been reached after proper consideration by the parties, particularly the State, of all of the matters that the Act requires be established. This consensual process depends upon the executive government of each State and Territory in whose jurisdiction the claim is made taking an active role in the litigation. The government must scrutinise carefully any claim for native title in order to seek to protect the interests of the whole community that it represents: Munn v State of Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J. In this regard, as Rares J stated, the State has a public responsibility to ensure that any agreement made under s 87 of the NTA is in the interests of the community it represents, bearing in mind that a determination of native title is a determination in rem… This responsibility is discharged by the State where it is satisfied that there is a credible or cogent basis for concluding that the requirements of s 223 of the NTA are satisfied. Thus Jagot J helpfully explained in Western Bundjalung People v Attorney General (NSW) [2017] FCA 992 at [21]-[22] that: In reconciling its multiple duties the orthodox position which has emerged and been settled for many years is that the State should not require an applicant to prove to it on the balance of probabilities that each of the requirements of s 223 is satisfied. For the State party to discharge its duties not only to the public at large but also to the claim group and to the Court, and to fulfil its fundamental obligations of fidelity to the objects of the NTA and the requirements of the Court Act, it looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities… (Emphasis added.) 33 A determination of native title may be made pursuant to s 87A of the Act, without holding a hearing, where the following conditions are satisfied: (1) the procedural preconditions in s 87A have been satisfied (subs 87A(1)-(3)); (2) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and (3) the Court is satisfied that it is appropriate to make the proposed consent determination (s 87A(4)(b)). 34 I address each of these requirements in turn below.

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4.2 Are the procedural preconditions for making a consent determination met? 35 The procedural requirements under s 87A were summarised by Murphy J in Paterson on behalf of the Yandruwandha Yawarrawarrka People v State of Queensland [2024] FCA 700 at [31]: Section 87A of the NTA prescribes the following preconditions before the Court can make a consent determination of native title: (a) there is a proceeding in relation to an application for determination of native title (subs (1)(a)); (b) the specified notice period under s 66 has ended (subs (1)(b)); (c) agreement is reached as to a proposed determination of native title in relation to an area (the determination area), that is part of, but not all of, the area covered by the native title determination application (subs (1)(b)); (d) the necessary parties are all parties to the agreement (subs 1(c)); (e) the terms of the proposed determination are in writing and signed by or on behalf of all the necessary parties (subs (1)(d)); (f) the requirements regarding a registered native title claimant being a party to the agreement and signing the terms of the proposed determination are satisfied (subs (1A) and (1B)); (g) the proposed determination of native title is filed with the Court (subs (2)); (h) the Chief Executive Officer of the Court has given notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court (subs (3))… 36 With respect to s 87A(1)(d), s 87A(1A) makes provision for how the native title Applicant enters into the agreement, given that a number of persons may jointly be the "applicant" which is authorised to act on behalf of all of the persons in the native title claim group: see s 61(2) and s 251B of the Act. Those persons, who are jointly the Applicant, also comprise the "registered native title claimant": see the definition of "registered native title claimant" in s 253. Section 87A(1A) provides that: The requirements that 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. 37 The Applicant submits that the preconditions of s 87A of the Act are met, given: (1) the notification period for the application has ended; (2) there is agreement between the parties about the terms of the Proposed Determination in relation to Part A; and (3) that agreement is in writing and has been signed by or on behalf of each of the parties. 38 I am satisfied that each of the procedural preconditions arising under s 87A are satisfied for the following reasons. 39 First, I am satisfied that the notification period has ended. 40 Secondly, there is agreement between the parties about the terms of the Proposed Determination in relation to Part A, and the terms of the proposed orders relate to this proceeding, being the current application. 41 Thirdly, with respect to the requirement under s 87A(1)(d) that the agreement be in writing and signed by or on behalf of the parties, I note that s 61(1) of the Act permits the making of a native title determination application by those persons who are: …authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed… 42 Section 62A(1) of the Act relevantly provides that in the case of a claimant application, the applicant may deal with all matters arising under the Act in relation to the application. This includes consenting to a determination of native title pursuant to s 87A of the Act. The affidavit of Ms Reid, affirmed on 12 August 2024, records that on 9 June 2024, MPS Law properly notified and convened a Native Title Claim Group Meeting of the Mitakoodi and Mayi People to authorise the Applicant to agree to the proposed consent determination, and that a resolution was passed by the native title claim group using the agreed and adopted decision-making method which provided that authorisation: at [6]-[11].

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4.3 Are the orders sought within the Court's powers? 43 Section 87(4)(a) of the Act permits the Court to make an order consistent with the terms of a proposed determination of native title without holding a hearing if the Court considers that "an order in, or consistent with, the terms of the proposed determination would be within its power". 44 When making a determination of native title, s 213(1) of the Act requires: If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act. 45 Those procedures in the Act include: (1) the application to the Federal Court was made under Part 3 of the Act (s 13(1)); and (2) the application for a determination of native title is "in relation to an area for which there is no approved determination of native title", or revokes or varies an approved determination of native title (ss 13(1) and 68). 46 Further, as the Full Court explained in Commonwealth v Clifton [2007] FCAFC 190; (2007) 164 FCR 355 at [44]-[46]: the rules that govern the making of a native title determination are found in Div 1 of Pt 3 of the Act. That Division prescribes who may make such an application (s 61), proscribes the making of an application in relation to an area for which there is an approved determination of native title (s 61A) and specifies the form of the application and the information that must be included in the application (s 61(3), (4) and (5)) or in an accompanying affidavit (s 62). It requires any application under s 61, and any accompanying affidavit, to be given to the Native Title Registrar (s 63) who must give notice of the application to persons likely to be interested in the application (s 66). The Division proscribes the amendment of an application where the amendment would increase the area claimed beyond that of which the Native Title Registrar will have given notice (s 64). Part 4 of the Act governs the way in which the Federal Court is to exercise its jurisdiction to hear and determine applications concerning native title. Importantly, unless the Court orders to the contrary after taking into account the matters identified in s 86B(4), every application under s 61 must be referred by the Court to the NNTT for mediation. As mentioned above, s 67 of the Act recognises that two or more applications may be made to the Court for a determination of native title in respect of the same area. It provides a procedure for dealing with applications concerning the same area. It requires that they be dealt with in the one proceeding. 47 First, I am satisfied that the application before me was made in accordance with the requirements of Part 3 of the Act. I am satisfied that the application was authorised in a manner that was compliant with the requirements under the Act and is a valid application. 48 Secondly, the Proposed Determination area is not the subject of any previous approved determination of native title: s 68 of the Act. There is also no overlap with any other application for determination, which would otherwise require orders to be made under s 67(1) of the Act. 49 Thirdly, I am satisfied that there has been compliance with Part 4 of the Act which (relevantly) sets out the rules for processing native title applications in the Federal Court and making determinations relating to native title. 50 In particular, s 94A requires that "[a]n order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225". Section 225, in turn, 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: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title area; 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.) 51 I am satisfied that each of these matters are addressed in the Proposed Determination: see cls 7-16 of the Proposed Determination. 52 I am, therefore, satisfied that the proposed consent determination is within power.

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4.4 Is it appropriate to make the determination? 53 For the Court to make an order in, or consistent with, the terms of the Section 87A Agreement, the Court must be satisfied that it is appropriate to do so: ss 87A(4)(b). As Mortimer J (as her Honour then was) explained in Freddie v Northern Territory [2017] FCA 867 at [19], "[t]he discretionary evaluation of whether orders are appropriate is a wide one, but the Court must focus on the individual circumstances of each proposed determination". 54 The principles applicable to determining this question were helpfully summarised by Halley J recently in Madrill on behalf of the members of the Amapete, Apwetyerlaneme, Atnweale and Warrtharre Landholding Groups v Northern Territory of Australia [2024] FCA 529 at [27]-‍[31] as follows: The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. The power in s 87 of the Act must be exercised flexibly and with regard to the purpose for which the section is designed: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J). The primary task of the Court is to determine whether there is an agreement between the parties and whether that agreement was freely entered into on an informed basis: Nangkiriny v Western Australia (2002) 117 FCR 6; [2002] FCA 660 at [14] (North J); Ward v State of Western Australia [2006] FCA 1848 at [9] (North J); Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Bennett J). The Court must be satisfied, however, that the relevant 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 at [29] (Emmett J). The state has a public responsibility to ensure that its agreement to the order proposed is in the interests of the community it represents and there is a sufficient basis for concluding that the proposed determination is capable of satisfying the requirements of s 225 of the Act: Davey on behalf of the Mayala #2 Native Title Claim Group v State of Western Australia [2019] FCA 1137 at [18] (Bromberg J). The Court is not required to embark upon an inquiry as to the merits of the claim to satisfy itself that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The Court will, however, consider evidence for the limited purpose of determining whether the state has made a rational decision and is acting in good faith: Munn at [29-[30]. In Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801, Bromberg J stated at [45]-[46] that in determining whether the requirements in s 87(2) of the Act have been met, the Court would need to have an understanding of the process that led to the agreement and, in particular, how the state or territory went about assessing the underlying evidence as to the existence of native title, which would require the Court to consider whether: (a) the parties have independent and competent legal representation: Munn at [29]; Lovett at [39] - [40]; (b) the terms of the proposed order are "unambiguous and certain as to the rights declared": Munn at [32]; and (c) the agreement has been preceded by a mediation process: Nangkiriny at [6]; Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847 at [6] (Branson J); Lovett at [41]-[42]. (Emphasis omitted.) (See also, eg, Freddie at [21] - [24].) 55 Regarding the interests of the community, which the State represents, Mortimer J (as her Honour then was) explained in Agius v State of South Australia (No 6) [2018] FCA 358 at [72]: The State comes to an agreement under s 87 or s 87A only after discharging its public responsibilities to ensure the agreement is in the interests of the community it represents. The indigenous people of South Australia are of course part of the community whose interests the State considers. As Jagot J said in Yaegl #2 [v Attorney-General of New South Wales [2017] FCA 993] at [16]: it would be wrong to conceive of the State's duty as one of protecting the public interest as if the public interest excluded the legitimate interests of native title claimants; claimants are part of the community for which the State is responsible and to whom it owes its duties and to conceive of the public interest as if it were in opposition to native title rights and interests is contrary to the provisions of the NTA, particularly the stated object in the Preamble. 56 The material relied upon in support of the Proposed Determination satisfies me that: (a) the parties have had the benefit of legal representation in arriving at agreement about the terms of the determination; (b) having engaged in an independent assessment of the connection material provided by the Applicant, there was a proper basis for the State's conclusion that there was a credible basis on which to commence negotiations for an agreement to resolve the proceeding under the Act; (c) the Application has been subject to Court-annexed mediation, giving the Court oversight of the proceedings, the engagement of the parties, and their consideration of the materials; (d) the State has conducted searches of land tenure of Part A of the application area which has been subjected to detailed analysis by the State and the Applicant and has resulted an agreement as to where native title exists and where native title has been extinguished; and (f) the Applicant has entered into the agreement under s 87A of the Act freely and on an informed basis, as is established by the affidavits of Ms Reid affirmed on 31 July 2024 and 12 August 2024. 57 Furthermore, in light of the material relied upon in support of the consent orders sought including the lay evidence of members of the claimant group and the expert evidence of Dr Murphy, I am satisfied that the State, acting on behalf of the broader community, including the Mitakoodi and Mayi People, has been actively involved in the proceeding and has a proper basis for being satisfied that there is a credible basis for the consent determination. 58 Therefore, in all of the circumstances, I am satisfied that the orders sought are appropriate.

[13]

NOMINATION OF A PRESCRIBED BODY CORPORATE 59 If the Court proposes to make an approved determination of native title, the Court must also make a determination of "whether the native title is to be held in trust, and, if so, by whom" at the same time, or as soon as practicable thereafter: ss 55 and 56(1) of the Act. Section 56(2) relevantly sets out the steps the Court must take in making the determination, including: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be the trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders… (Emphasis in original.) 60 Under s 56(3), on the making of a determination under s 56(2)(b), "the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders". 61 The Applicant has nominated the Mitakoodi and Mayi People Native Title Aboriginal Corporation (ICN 10313) to be the prescribed body corporate to hold the native title of the Mitakoodi and Mayi People in trust. 62 In her affidavit affirmed on 31 July 2024, Ms Reid deposes to the resolution passed by the Mitakoodi and Mayi People #5 claim group meetings on 7-9 June 2024 in the following terms: Resolution 5 - Nomination of the PBC The members of the Mitakoodi and Mayi #5 native title claim group present at the meeting: CONFIRM that is it the Mitakoodi and Mayi Native Title Holders' intention that their determined native title be held in trust. NOMINATE the Mitakoodi and Mayi People Native Title Aboriginal Corporation, once it is incorporated, to be the prescribed body corporate for the proposed consent determination and to hold the Mitakoodi and Mayi Naïve Title Holders' determined native title in trust. AUTHORISE AND INSTRUCT MPS Law as the legal representatives for the claim group to be the Mitakoodi and Mayi Native Title Holders' representative for the purpose of doing all things necessary to give effect to this resolution. AUTHORISE, AGREE AND INSTRUCT the Mitakoodi and Mayi People Native Title Aboriginal Corporation, once it is incorporated and upon request by MPS Law, to provide its written consent to be the native title body corporate for the proposed consent determination. (Resolution 5) 63 On 19 June 2024, and in accordance with Resolution 5, MPS Law convened an incorporation meeting for the Corporation. This meeting was attended by all of the initial members and initial directors, as nominated at the meeting on 8 June 2024, together with Ms Reid and other solicitors from MPS Law. At the meeting, the initial members passed a resolution authorising the proposed rule book and the application for registration of the corporation. On 2 July 2024, the Office of the Registrar of Indigenous Corporations registered the Corporation. 64 Subsequently, two directors of the Corporation executed a statement which confirmed that, for the purposes of s 56 of the Act, the Corporation: (1) accepted the nomination to be the prescribed body corporate; and (2) consented to holding the Mitakoodi and Mayi People's native title in trust for the native title holders upon a determination of native title being made by the Court in the Mitakoodi and Mayi People #5 Part A native title application. 65 Accordingly, I am required by s 56(2)(b) of the Act to make the orders appointing the Corporation to undertake the roles and perform the functions specified in the determination.

[15]

SCHEDULE OF PARTIES QUD 556 of 2015 Applicants Second Applicant: PEARL CONNELLY Third Applicant: KAY DOUGLAS Fourth Applicant: NORMAN DOUGLAS Fifth Applicant: RONALD MAJOR Sixth Applicant: SHARN FOGARTY Seventh Applicant: CLYDE FOGARTY Eighth Applicant: JUSTIN ASSE Ninth Applicant: KRISTAL CHAPMAN Respondents Second Respondent: CARPENTARIA SHIRE COUNCIL Third Respondent: CLONCURRY SHIRE COUNCIL Fourth Respondent: MCKINLAY SHIRE COUNCIL Fifth Respondent: AURIZON OPERATIONS LIMITED ACN 124 649 967 Sixth Respondent: AURIZON PROPERTY PTY LTD ACN 145 991 724 Seventh Respondent: TELSTRA CORPORATION LIMITED ACN 051 775 556 Eighth Respondent: BLACK ROCK MINERALS PTY LTD Ninth Respondent: CHINOVA RESOURCES CLONCURRY MINES PTY Tenth Respondent: ERNEST HENRY MINING PTY LTD Eleventh Respondent: EXCO RESOURCES LTD Twelfth Respondent: MMG DUGALD RIVER PTY LTD ABN 19 083 405 556 Thirteenth Respondent: MOUNT ISA MINES LIMITED ACN 009 661 447 Fourteenth Respondent: MOUNT MARGARET MINING PTY LTD ACN 150 366 Fifteenth Respondent: SOUTH32 CANNINGTON PROPRIETARY LIMITED Sixteenth Respondent: A. A. COMPANY PTY LTD ACN 010 317 067 Seventeenth Respondent: MARGARET ELEANOR ALLISON Eighteenth Respondent: WILLIAM FRANCIS ALLISON Nineteenth Respondent: ANDREW WILLIAM JESSE DANIELS Twentieth Respondent: JEFFREY ROBERT JAMES DANIELS Twenty First Respondent: LUKE WILLIAM JESSE DANIELS Twenty Second Respondent: SAMUEL DONALD JAMES DANIELS Twenty Third Respondent: KLAYTON ROMAN JOHN DOUGLAS Twenty Fourth Respondent: SALLY-ANN DOUGLAS Twenty Fifth Respondent: THE NORTH AUSTRALIAN PASTORAL COMPANY PTY LTD ACN 009 591 511 Twenty Sixth Respondent: PARAWAY PASTORAL COMPANY LIMITED ACN 122 572 641 Twenty Seventh Respondent: COLIN CLYDE SAUNDERS Twenty Eighth Respondent: JUDITH ROSE SAUNDERS Twenty Ninth Respondent: SHILLONG PTY LTD ABN 30 050 399 347 Thirtieth Respondent: VENLOCK PTY LTD ACN 010 198 893 Thirty First Respondent: JENNIFER JOAN WINDUS Thirty Second Respondent: WILLIAM GEORGE WINDUS Thirty Third Respondent: WONDOOLA PTY LTD ACN 009 736 805 Thirty Fourth Respondent: MIM RESOURCE DEVELOPMENT PTY LIMITED Thirty Fifth Respondent: NORTH WEST QUEENSLAND WATER PIPELINE PTY LTD ACN 070 999 218 Thirty Sixth Respondent: VIVA ENERGY AUSTRALIA PTY LTD ACN 004 610 459 Thirty Seventh Respondent: AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST ABN 75 357 171 746 Thirty Eighth Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062