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

1. By Order of the Federal Court made on 22 August 2024, pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) a determination in relation to Part A of the proceedings was made.

1. This determination relates to the Part B proceeding. The parties have reached an agreement as to the terms of the determination which is to be made in relation to Part B.
2. Pursuant to s 87A(1) and (2) of the Native Title Act 1993 (Cth) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Part B proceedings.
3. The parties acknowledge the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the native title holders for the Determination Area in the manner set out in the determination.

BEING SATISFIED that a determination of native title in the terms set out would be within the power of the Court and it appearing appropriate to the Court to do so, pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

1. There be a determination of native title in relation to Part B of the proceedings in the terms set out below (the determination).
2. The native title is held in trust.
3. The Mitakoodi and Mayi People Native Title Aboriginal Corporation (ICN: 10313), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a) be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth).

1. 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.
2. Native title exists in the Determination Area.
3. The native title is held by the Mitakoodi and Mayi People described in Schedule 1 (the Native Title Holders).
4. Subject to orders 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in 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 for any purpose;

(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) hold meetings on the area;

(i) teach on the area the physical and spiritual attributes of the area;

(j) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;

(k) maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm; and

(l) be accompanied onto the area by certain non-Native Title Holders, being:

(i) immediate family of Native Title Holders, pursuant to the exercise of traditional laws acknowledged and customs observed by the Native Title Holders; and

(ii) people required under traditional laws acknowledged and traditional customs observed by the Native Title Holders for the performance of, or participation in, ceremonies and dance.

1. 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.

1. The native title rights and interests referred to in order 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
2. 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).
3. The nature and extent of any other interests in relation to the Determination Area are set out in Schedule 2.
4. The relationship between the native title rights and interests described in order 8 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, prevail over the native title rights and interests and any exercise of the native title rights and interests, but except as otherwise provided for by law, do not extinguish them.

1. In this determination, unless the contrary intention appears:

"Animal" means any member of the animal kingdom (other than human), whether alive or dead;

"External Boundary" means the area described in Schedule 3;

"Land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth);

"Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

"Local Government Act" has the meaning given in the Local Government Act 2009 (Qld);

"Local Government Area" has the meaning given in the Local Government Act 2009 (Qld);

"Native Title Determination Application" means that part of the Fourth Additional

Further Amended Native Title Determination Application (QUD 556 of 2015) filed on 3 April 2025;

(a) any Animals and Plants found on or in the lands and waters of the Determination Area; and

(b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area, that have traditionally been taken and used by the Native Title Holders,

(c) but does not include:

(i) Animals that are the private personal property of another;

(ii) crops that are the private personal property of another;

(iii) minerals as defined in the Mineral Resources Act 1989 (Qld); or

(iv) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

"Plant" means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen;

(a) water which flows, whether permanently or intermittently, within a river, creek or stream;

(b) any natural collection of water, whether permanent or intermittent; and

(c) water from an underground water source;

Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Schedule 2 - OTHER INTERESTS IN THE DETERMINATION AREA

Schedule 5 - AREAS NOT FORMING PART OF THE DETERMINATION AREA Schedule 6 - MAP OF DETERMINATION AREA

1. The Mitakoodi and Mayi People are Aboriginal People who:

(a) principally identify as Mitakoodi and Mayi People and as belonging to the traditional country of their Mitakoodi and Mayi forebears;

(b) are recognised by other Mitakoodi and Mayi People as the biological descendants of deceased Mitakoodi and Mayi People; and

(c) are the descendants of the following deceased Aboriginal People:

(i) Minnie;

(ii) Thomas 'Tiger' Mitchell;

(iii) Dinah;

(iv) Topsy;

(v) Sophie; and

(vi) Billy Chisholm.

Schedule 2 - OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:

1. The rights and interests of South32 Cannington Proprietary Ltd (ACN 125 530 967) as the holder of exploration permits EPM26847 and EPM26972 granted under the Mineral Resources Act 1989 (Qld).
2. The rights and interests of McKinlay Shire 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 owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made; and

(c) to enter the land for the purposes described in paragraphs 2(a), 2(b) or 2(c) above by its employees, agents or contractors to:

(i) exercise any of the rights and interests referred to in this paragraph 2 and paragraph 3 below;

(ii) use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 2(b) above; and

(iii) undertake operational activities in its capacity as a local government such as feral animal control, erosion control, waste management and fire management.

1. The rights and interests of the State of Queensland and the McKinlay 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.
2. 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 and the Commonwealth, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a) the Aboriginal Land Act 1991 (Qld);

(b) the Land Act 1994 (Qld);

(c) the Forestry Act 1959 (Qld);

(d) the Water Act 2000 (Qld);

(e) the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld);

(f) the Mineral Resources Act 1989 (Qld);

(g) the Planning Act 2016 (Qld);

(h) the Transport Infrastructure Act 1994 (Qld); and

(i) the _Fire Services Act 199_0 (Qld) or Ambulance Service Act 1991 (Qld).

1. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this determination, any existing 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; or

(d) areas that were public places at the end of 31 December 1993.

(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.

The area of land and waters commencing at a point on the external boundary of Native Title Determination QUD579/2005 Kalkadoon People #4 (QCD2011/007) at Longitude 140.395031° East, Latitude 19.212076° South, also being a point on the western bank of Dismal Creek; then extending generally north-easterly and generally northerly along the western banks of that creek to its intersection with the western bank of the Cloncurry River at Latitude 18.896540° South; then continuing generally northerly along the western banks of that river to its intersection with the southern boundary of Native Title Determination QUD29/2019 Gkuthaarn and Kukatj People (QCD2020/002) at Latitude 18.750634° South; then generally easterly along the southern boundary of that application to the point of highest elevation approximately midway between the Flinders River and the Saxby River at Longitude 140.833806° East; then generally southerly along the line of highest elevation approximately midway between those rivers, passing through the following coordinate points:

Then south-westerly to a point easterly of the Cloncurry River at Longitude 141.212571° East, Latitude 20.017431° South; then generally south-easterly and generally southerly in a line easterly of Gilliat River and Gilliat Creek to a point on a ridgeline at Longitude 141.518147° East, Latitude 21.612858° South, being a point on a boundary of Native Title Determination QUD592/2015 Koa People (QCD2021/004), also being a point on the southern boundary of the Cloncurry River sub-catchment, passing through the following coordinate points:

Then generally southerly, generally westerly, again generally southerly, again generally westerly, generally north-westerly and again generally westerly along the southern boundary of that sub-catchment to its intersection with the eastern boundary of Lot 5364 on SP278014 (Starcross Pastoral Holding) at approximate Longitude 140.643438° East; then northerly along the boundary of that lot to its intersection with the external boundary of Native Title Determination QUD579/2005 Kalkadoon People #4 (QCD2011/007) at approximate Latitude 21.570024° South; then generally northerly, westerly, again generally northerly, generally north-easterly, again generally westerly, southerly, again westerly and generally northerly along that external boundary back to the commencement point.

For the avoidance of doubt, the application area does not include any land or waters subject to or within the external boundaries of:

• QUD579/2005 Kalkadoon People #4 (QCD2011/007) as determined by the Federal Court 12 December 2011;
• QUD29/2019 Gkuthaarn and Kukatj People (QCD2020/002) as determined by the Federal Court 29 September 2020; and
• QUD592/2015 Koa People (QCD2021/004) as determined by the Federal Court 6 October 2021.

Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicants.

Cadastral data sourced from Department of Natural Resources, Mines and Energy, Qld (August 2018).

Rivers and creeks are 1:250K Topographic vector data © Commonwealth of Australia (Geoscience Australia) 2015.

Drainage basin sub-area data depicts a subdivision of the major drainage basins (catchment) in Queensland, Dataset sourced from supplied by Department of Natural Resources, Mines and Energy, Qld (20 Feb 2009).

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Schedule 4 - DESCRIPTION OF DETERMINATION AREA

The Determination Area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the table below, and depicted in light blue on the maps contained in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Area description (at the time of the determination)

Determination

Map Sheet

Reference

Save for any waters forming part of a lot on plan, all rivers, creeks, streams and lakes within the

Determination Area, including but not limited to:

Rangeview Creek and its tributaries

* denotes areas which are located partly within the External Boundary

Schedule 5 - AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area as described in Schedule 4:

1. Those land and waters within the External Boundary which at the time the Native Title Determination Application was made had been the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).
2. Specifically, and to avoid any doubt, the land and waters described in (1) above includes the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

Schedule 6 - MAP OF DETERMINATION AREA

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. On 25 March 2022, I ordered by consent that the Mitakoodi and Mayi Peoples Claim be divided into Part A and Part B. The Applicant sought the division in order to prevent delay in resolving the Part A application, which concerned claims for exclusive and non-exclusive native title over most of the area of the original claim. On 22 August 2024, I determined the Part A application by consent in Kum Sing on behalf of the Mitakoodi and Mayi People #5 v State of Queensland (No 3) [2024] FCA 935 (the Part A determination).
3. The procedural history of the Mitakoodi and Mayi People's claim is set out in my reasons for the Part A determination.
4. The Part B application, with which this determination is concerned, concerns a claim for non-exclusive native title over two remaining lots in the south of the application area: Lot 1 on AL78 and Lot 2038 on PH460, to the extent that they lie within the external boundary of the application. The Part B determination area is covered by pastoral holdings which partially extinguished native title.
5. At the time of the Part A determination, four respondent parties (the Daniels respondents) did not agree that connection was established with respect to Part B. On 14 March 2025, I referred the matter to mediation for the purpose of settling a statement of agreed facts and issues in contention. On 29 April 2025, following the mediation, the Daniels respondents filed a notice indicating they wished to cease to be parties to the Part B proceeding. On 5 May 2025, I granted leave for the Daniels respondents to withdraw as parties with no orders as to costs.
6. The remaining respondents do not contest the connection of the Mitakoodi and Mayi Peoples to the Part B area, paving the way for a consent determination. All remaining parties have executed an agreement on the terms of a proposed determination of native title pursuant to s 87A of the Act, which was filed on 10 December 2025 (Proposed Determination). The applicant has also filed submissions in support of the proposed determination recognising the existence of native title in the area of Part B.
7. The native title rights and interests recognised in the proposed determination are non-exclusive, that is, they do not confer exclusive possession, occupation, use and enjoyment of the land, and they mirror the non-exclusive rights and interests recognised in the Part A determination. Further, the native title holders described in the proposed determination are described in the same way as in the Part A determination.
8. As I explained in the Part A determination at [3] and [6] with respect to consent determinations of native title generally under the Act:

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).

...

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 People 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).

1. The native title claim group comprises Mitakoodi and Mayi People who:

(1) principally identify as Mitakoodi and Mayi People and as belonging to the traditional country of their Mitakoodi and Mayi forebears;

(2) are recognised by other Mitakoodi and Mayi People as the biological descendants of deceased Mitakoodi and Mayi people; and

(3) are the descendants of the following apical ancestors: Minnie; Thomas 'Tiger' Mitchell; Dinah; Topsy; Sophie and Billy Chisholm.

1. The members of the Mitakoodi and Mayi People who, as at the time of the Part B consent determination, are authorised to make the application on behalf of the native title claim group, and comprise the Applicant for the purposes of s 61(2) of the Act are:

(1) Tanya Kum Sing;

(2) Ronald Major;

(3) Norman Douglas;

(4) Kay Douglas; and

(5) Pearl Connelly.

(together, the Applicant).

1. I note that on 27 March 2025, a Registrar made orders for the applicant to be replaced pursuant to s 66B(2) of the Act, so as to enable the removal of four members of the applicant in the Part A determination who did not wish to be part of the Part B determination.
2. There are only three remaining respondents to the proposed Part B determination. They are:

(1) the State of Queensland

(2) McKinlay Shire Council; and

(3) South32 Cannington Proprietary Limited.

1. South32 Cannington Proprietary Limited holds exploration tenements over the area of the proposed determination.

3. THE NATIVE TITLE CLAIM GROUP'S CONNECTION TO THE CLAIM AREA

1. In its submissions, the Applicant relied on all the lay evidence and expert evidence referred to in the Part A determination at [25]-[27]. This evidence was prepared prior to the division of the proceeding into Part A and Part B and was relied upon in support of the Part A determination: Mitakoodi and Mayi (No 3) at [25].
2. The Applicant relied, in particular, on the affidavit of Dwayne ("Fred") Turner affirmed on 12 October 2020 and the affidavit of Pearl Connelly affirmed on 12 October 2020. Each affidavit illustrates the connection of the Mitakoodi and Mayi people, through the story of the Hawk dreaming, to the Selwyn Ranges in the area of the proposed Part B determination. This evidence is helpfully summarised in the applicant's submissions as follows:

18. Fred tells of his initiation ceremony and how his uncle gave him an Eagle Hawk's feather from his mother's country which he wore during it (see pars 13 and 14). Fred goes on to say that there are three main dreaming on his mother's country (the Hawk, Dog and Python). He says he was painted up with the symbols of the dreaming of his country for his ceremony. Fred discusses Hawk dreaming in detail and its connection with the Selwyn Ranges. He tells the story of the Hawk dreaming and gives examples of significant sites and locations throughout the Selwyn ranges, accompanied by photographs (see pars 24, 25 and 26). In Annexure DT14, Fred locates each of the dreaming on a map of Mitakoodi and Mayi Peoples claim (as it was prior to the administrative separation). It can be seen from this map that the song line for the Hawk extends southwards to the Beaudesert Pastoral and cuts through El Rita Pastoral Holding, following the Selwyn Range. The Selwyn Range in the south swings eastwards and divides the El Rita Pastoral holding with the northern part falling within Mitakoodi and Mayi traditional lands.

19. Pearl Connelly tells how an elder called "Spider" told her father of the Hawk dreaming and its connection to the Selwyn Ranges" (see pars 31 and 32). At par 54 she tells the story of the Hawk. At Pars 55 to 69, she provides details of significant sites and locations of places on her country associated with the Hawk. At paragraph 63, Pearl includes photographs (in annexure PC 27) paintings of the Hawk taken at a waterhole which borders the Beaudesert Pastoral Holding (within the proposed determination area). At par 73, Pearl outlines the close association of her family with the Selwyn Range and the Hawk dreaming which runs south through the proposed determination area.

1. The Applicant also relied upon the expert reports referred to in Mitakoodi and Mayi (No 3) in support of the Part A determination, including the expert anthropological report by Dr Kevin Murphy dated 8 November 2020. This report also related to the whole of the claim area, being Part A and Part B. In his report, Dr Murphy expressed the view that:

It is not possible to be precise about boundaries between tribes merely on the basis of maps and descriptions ...

On the basis of the materials discussed above it is evident that the language variety named Mayi Thakurti was and is associated with the southern part of the claim area, and that Mayi Yapi was and is associated with the northern part of the claim area; where the boundary is or should be between them, and between either of them and their neighbours, cannot be divined from the early colonial literature with any degree of precision. In my opinion, the definition of boundaries is something that can and should be by agreement between respective parties.

1. Nonetheless, as the applicant submits, Dr Murphy does not take issue with the native title claim area, including Part B. To the contrary, he is of the opinion that:

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.

(Emphasis added.)

1. Furthermore, the Mitakoodi and Mayi peoples' assertions of traditional ownership of the area of the proposed determination are not contested by other traditional owner groups such as the Yulluna people who have been determined to hold native title nearby.

4. THE REQUIREMENTS FOR MAKING A CONSENT DETERMINATION

1. Section 213 of the Act provides that a determination of native title must be made in accordance with the procedures in the Act.
2. 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] FCA 129; (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...

1. 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)).

1. I address each of these requirements in turn below.

4.2 Are the procedural preconditions for making a consent determination met?

1. 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))...

1. 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.

1. 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 B; and

(3) that agreement is in writing and has been signed by or on behalf of each of the parties.

1. I am satisfied that each of the procedural preconditions arising under s 87A are satisfied for the following reasons.
2. First, I am satisfied that the notification period has ended. The National Native Title Tribunal register records that the Mitakoodi and Mayi Peoples Claim was registered from 16 December 2015 and that notification is "complete".
3. Secondly, there is agreement between the parties about the terms of the Proposed Determination in relation to Part B, and the terms of the proposed orders relate to this proceeding, being the current application.
4. 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...

1. 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 Colin Stanley Hardie, affirmed on 11 December 2025, records that on 30 August 2025, Mr Hardie 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 [3]-[6]. Further, the proposed determination is in writing and is signed by or on behalf of each of the parties to the agreement, with a copy of the signed proposed determination having been filed.

4.3 Are the orders sought within the Court's powers?

1. Section 87A(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".
2. 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.

(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).

1. 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.

1. First, I am satisfied that the application before me was made in accordance with the requirements of Part 3 of the Act, that the application was authorised in a manner that was compliant with the requirements under the Act, and that the application is valid.
2. 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.
3. 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.
4. 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.)

1. I am satisfied that each of these matters are addressed in the Proposed Determination: see cls 5-13 of the Proposed Determination.
2. I am, therefore, satisfied that the proposed consent determination with respect to Part B is within power.

4.4 Is it appropriate to make the determination?

1. 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".
2. The principles applicable to determining this question were helpfully summarised by Halley J 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.)

1. 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.

1. The material relied upon in support of the Proposed Determination satisfies me that:

(1) the parties have had the benefit of legal representation in arriving at agreement about the terms of the determination;

(2) 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;

(3) 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;

(4) the Applicant has entered into the agreement under s 87A of the Act freely and on an informed basis, as is established by the affidavit of Mr Hardie affirmed on 11 December 2025; and

(5) the proposed terms of the consent determination for Part B are unambiguous and certain.

1. 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:

(1) has been actively involved in the proceeding; and

(2) has a rational and proper basis for being satisfied in good faith that there is a credible basis for the consent determination.

1. It follows, in all of the circumstances, that I am satisfied that the orders sought are appropriate.

1. 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...

1. 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".
2. The Applicant has nominated the Mitakoodi and Mayi People Native Title Aboriginal Corporation RNTBC (ICN 10313) to be the prescribed body corporate to hold the native title of the Mitakoodi and Mayi People in trust.
3. In his affidavit affirmed on 11 December 2025, Mr Hardie deposes to the resolution passed by the Mitakoodi and Mayi People #5 claim group meeting on 30 August 2025 in the following terms:

Resolution 6: Authorisation of Prescribed Body Corporate

...

"The Mitakoodi and Mayi claim group authorises Colin Hardie of Just Us Lawyers to nominate the Mitakoodi and Mayi People Native Title Aboriginal Corporation RNTBC (ICN:10313) to be the Registered Prescribed Body Corporate to hold their Native Title rights and interests on trust."

1. The Corporation was registered with the Office of the Registrar of Indigenous Corporations on 2 July 2024 and already holds the native title resulting from the Part A determination on trust for the Mitakoodi and Mayi People. The Corporation is a fully functioning organisation and is not subject to any form of administration or receivership.
2. On 10 December 2025, the Chairperson of the Corporation sent Mr Hardie a letter confirming that the Corporation consents to being the prescribed body corporate to hold the determined native title rights on trust for the Mitakoodi and Mayi native title holders.
3. 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.

1. I am satisfied that the requirements of the Act are met. Further, I am satisfied that it is appropriate that the orders and the determination of native title proposed by the parties should be made.
2. The Court warmly congratulates the parties, their legal representatives, the Native Title Registrars, and all who have contributed to the conclusion of the Section 87A Agreement. The Court also acknowledges their hard work over many years to achieve consent determinations over both Part A and Part B of the area the subject of the native title determination application made on behalf of the Mitakoodi and Mayi People. As I emphasised in Mitakoodi and Mayi (No 3), the rights and interests recognised in the consent determination are not conferred by the Act; nor does the making of this consent determination confer those rights. Rather, the consent determination formally recognises rights and interests of the Mitakoodi and Mayi People which have always existed and which continue to exist today.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.