McKellar on behalf of the Wongkumara People v State of Queensland

INTRODUCTION 1 In this application the applicant, Clancy John McKellar and others on behalf of the Wongkumara People, seeks consent determinations under s 87A of the Native Title Act 1993 (Cth) (NTA) to recognise the native title rights and interests of the Wongkumara People in part of the claim area in proceeding QUD 851 of 2018 (the Wongkumara Application). The proposed determinations cover approximately 47,978 square kilometres located predominantly in the Channel Country in south-west Queensland and including an area in far north-western New South Wales. 2 The parties have filed three agreements under s 87A of the NTA signed by all necessary parties (s 87A Agreements) each of which has a draft consent determination as an annexure. The three proposed determinations relate to three contiguous parts of the claim area in the Wongkumara Application (Determination Areas) which are described below. 3 First, the land and waters within the State of Queensland that are described in Schedule 4 and depicted in the map attached to Schedule 6 of the draft determination (to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5) being the area described as "Queensland Part A" (Queensland Part A Area). The key map attached to Schedule 6 of the draft determination for the Queensland Part A Area is reproduced as Annexure 1 to these reasons. 4 Second, the land and waters within the State of New South Wales that are described in Schedule One and depicted in the maps at Part 1.6 of that Schedule of the draft determination being the area described as "NSW Part A" (NSW Part A Area). The key map from Part 1.6 of Schedule One of the draft determination for the NSW Part A Area is reproduced as Annexure 2 to these reasons. 5 Third, the lands and waters within the State of Queensland that are described in Schedule 4 and depicted in the map attached at Schedule 6 of the draft determination (to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5) being the area described as "Queensland Part B" (Queensland Part B Area). The key map attached to Schedule 6 of the draft determination for the Queensland Part B Area is reproduced as Annexure 3 to these reasons. 6 A map which shows the three areas together is reproduced at Annexure 4 to these reasons. 7 The proposed determinations in relation to the Queensland Part A Area and the NSW Part A Area recognise that the Wongkumara People hold native title rights and interests in relation to those areas, and that no other First Nations groups do so. It is, though, necessary to understand that the proposed determination in relation to the Queensland Part B Area is a single determination, but one which recognises the separate and distinct native title rights of both the Wongkumara People and Yandruwandha Yawarrawarrka Peoples. This part of the claim area in the Wongkumara Application (Wongkumara claim area) is wholly geographically overlapped by the claim area in the native title determination application brought by the Yandruwandha Yawarrawarrka People in proceeding QUD 133 of 2021 (the YY Application). 8 In these reasons I will not say much about the proposed determination that the Yandruwandha Yawarrawarrka People hold native title rights and interests in relation to the Queensland Part B Area. These reasons focus on the proposed determinations of native title in favour of the Wongkumara People and I will hand down separate reasons in relation to the YY Application. 9 Wongkumara country has a diverse topography. It has an arid climate and large parts of it are rugged and stark, including parts of the Strzelecki and Sturt Stony deserts. But it also includes numerous waterholes which have sustained the Wongkumara People for tens of thousands of years, and vast swathes of the country are flooded by the Cooper Creek and its tributaries during the summer rainy season. There is only one residential area in the whole of Wongkumara country; the small township of Tibooburra. It is a beautiful country and it is not difficult to see why the Wongkumara People have stayed connected with and cared for their country for so long. 10 In recent history doing so has not been easy for Wongkumara people. In 1938 the NSW government forcibly carted Wongkumara people in trucks from their camp on the outskirts of Tibooburra, to an Aboriginal settlement at Brewarrina and other settlements even further afield. At that time, as now, many Wongkumara people were working as pastoral workers on remote cattle stations, and they did not know that their families had been taken away until they returned to the camp, or where their families had been taken. One can only imagine the utter devastation and sorrow they must have felt upon losing their spouses, children, parents, siblings, other kin and friends in that way, and also the grief, loss and dislocation those who were taken away would have felt by being removed from their families and friends and from the country with which they were so connected. They were different times, but it is hard to fathom the lack of humanity involved in that decision. 11 Even so, those Wongkumara people who stayed behind to live and work on the cattle and sheep stations were able to maintain their connection with Wongkumara country. When they could they brought their families onto their country. They showed their children the places of cultural and spiritual significance, and told them the stories about those places, which they then did with the children of the next generation. And some of the Wongkumara families who were taken to Brewarrina and elsewhere gradually managed to leave, and to dwell and work as close to Wongkumara country as was possible, including through work in the pastoral industry and the mining industry. By doing so they were also able to maintain their connection with Wongkumara country, and to show and teach their children about the significant places for them to pass on to later generations. 12 By these consent determinations the Court recognises that despite massacres of Wongkumara people perpetrated by colonists eager to take over their land, despite the dispossession and systematic removal of Wongkumara people from their country, and despite the forced dispersal of the Wongkumara People, they have managed to maintain their culture and a deep and enduring connection to their country. That is a testament to their strength, their commitment and their love of country. It is important to understand that by these determinations the Court does not grant native title to the Wongkumara People; instead, it is a recognition that the land and waters of the Determination Areas are and always have been Wongkumara country. The orders do though provide for a fresh relationship between the Wongkumara People, their native title rights and interests and their country. 13 For the reasons I now turn to explain, I am satisfied that it is within the power of the Court to make the orders sought in relation to the three Determination Areas to which I have referred, and that it is appropriate to do so. 14 This outcome, by orders made approximately 28 years after the Wongkumara People first lodged their native title claim in 1996, has taken far too long. Sadly, the passage of time has meant that some of the old people who started the first Wongkumara native title claim are no longer with us. The Wongkumara People have faced many hardships and setbacks along the path to these orders, and these determinations of native title reflect their determination and hard work over a long period of time. The named applicants in the Wongkumara Application, and those named applicants who went before, deserve the respect of their communities and our congratulations. The orders reflect the hard and effective work of all parties, particularly the Wongkumara applicant, the Yandruwandha Yawarrawarrka applicant, and the State parties - the State of Queensland and the Attorney General of NSW - and their willingness to compromise. They also reflect the hard work of Judicial Registrar Simon Grant in case-managing the proceedings and assisting in reaching a mediated outcome. They too deserve our thanks and congratulations.