McKellar on behalf of the Wongkumara People v State of Queensland

THE MATERIAL RELIED UPON 15 The following materials are before the Court: (a) section 87A Agreements signed by the parties with annexed draft consent determinations in relation to the Queensland Part A Area filed 11 June 2024, the Queensland Part B Area filed 11 June 2024 and the NSW Part A Area filed 19 June 2024; (b) the submissions of the Wongkumara applicant seeking a consent determination of native title in relation to the Queensland Part A and Part B Areas filed 24 June 2024; (c) a statement of agreed facts by the Wongkumara applicant and the Attorney General of NSW in relation to the NSW Part A Area dated 19 June 2024; (d) the joint submissions of the Wongkumara applicant and the Attorney General of NSW seeking a consent determination of native title in relation to the NSW Part A Area dated 19 June 2024 (e) the submissions of the State of Queensland in support of the applications for a consent determination of native title: (i) by the Wongkumara applicant in relation to the Queensland Part A and Part B Areas; and (ii) by the Yandruwandha Yawarrawarrka applicant in relation to the Queensland Part B Area, filed 21 June 2024; (f) the submissions of the Yandruwandha Yawarrawarrka applicant seeking a consent determination of native title in relation to the Queensland Part B Area dated 19 June 2024; and (g) an affidavit of Eduard Neumann, the solicitor for the Wongkumara applicant, sworn 7 June 2024. 16 The parties also rely upon the lay and expert evidence adduced in the hearing of the separate questions ordered by the Court in the Wongkumara and YY Applications, in which lay evidence was heard on country from 9 to 27 May 2022 and expert evidence was heard on 6 and 7 March 2023 (Separate Questions hearing). Some of the parties' submissions in support of the proposed determinations refer in some detail to that evidence.

THE CLAIMANTS AND THEIR COUNTRY 17 The Court's task in dealing with a proposed consent determination under s 87A of the NTA is not to assess and make findings about the matters set out in s 223 of the Act. Even so, it is important to say something about the Wongkumara People and their country as this determination and the reasons which accompany it will stand as a permanent record of the judicial recognition of their native title rights and interests.

The Wongkumara Society 18 The Wongkumara People are the descendants of ancestors who are recognised as having had a connection to the Determination Areas in accordance with the laws and customs of the regional society described by Professor A.P. Elkin as "the Lakes Group" in his paper "The Social Organization of South Australian Tribes" (1931) 2 Oceania 44, 73 and who are recognised and accepted by other Wongkumara People as being native title holders. Those ancestors are: (a) Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and Willy Dutton); (b) Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga; (c) Maggie and Tommy (parents of Nellie Flash and Angelina); (d) Kutji (mother of George Dutton); (e) Tarella and her children Elizabeth and Harry (Fred) Hartnett; (f) Norman Harding; (g) Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis); (h) Jenny (mother of Alf Barlow); and (i) Neddie and Nancy (grandparents of Jimmy Sedeek). The Wongkumara People also include persons who are adopted into the families of the Wongkumara People in accordance with traditional laws and customs, and who are recognised and accepted by other Wongkumara People as being native title holders. 19 Professor Elkin explained that the Lakes Group extended from the Eyre Peninsula in South Australia to south-west Queensland and the western reaches of north-western NSW. The anthropologists who gave expert evidence in the separate questions hearing in the Wongkumara and YY Applications agreed, amongst other things, that: (a) the Lakes Group included the persons who are the Wongkumara apical ancestors and their descendants; (b) the traditional laws and customs of the Lakes Group society were acknowledged and observed by Wongkumara society. Through membership of this group the Wongkumara People acquired rights and interests in land through patrifilial and matrifilial spiritual connections to sites and tracts within the Wongkumara claim area. Rights acquired through patrifiliation were transmissible through successive generations of men. Rights acquired through matrifiliation, being the rights inherited by a woman's children from her, were normally not transmissible beyond her children as the first descending generation. The system of traditional land tenure allowed for exceptions; and (c) since sovereignty succeeding generations of the Wongkumara People have continued to acknowledge and observe traditional laws and customs albeit with significant permissible adaptations and changes. While there has been loss of complexity, for example in relation to the moiety system and male initiation, and other elements have perforce been simplified, including knowledge of mura tracks and sites, rights in country continue to be inherited by succeeding generations on the basis of cognatic descent (being from either male or female forebears).

The effects of European colonisation 20 Effective sovereignty for this part of Queensland began in the years following the Burke and Wills expedition of 1860. The "Dig Tree" left by the expedition members for Burke and Wills is at Nappa Merrie. Burke and Wills died just west of the Wongkumara claim boundary near Innamincka. The first sheep and cattle stations were carved out of the claim area from the late 1860s. 21 Settlement of the area was a contested and often violent frontier for a long period of time, which severely impacted the Wongkumara People. Massacres in the claim area including by the Native Police in the late 19th Century live on in the memory of Wongkumara people. The development of the pastoral industry was dependent on their involvement with Wongkumara people and other First Nations people from surrounding areas. Wongkumara families largely on their country, many around Tibooburra, but with pastoral workers working on cattle and sheep stations sometimes far away from there. 22 Then, in 1938 the sudden removal by the NSW government of Wongkumara families from their camp on the outskirts of Tibooburra, split families up as the pastoral workers did not know of their families' removal until their return to the camp from the stations, or where their families were taken. The removal to and detention of the Wongkumara people at the Aboriginal settlement at Brewarrina and also further afield, with some families ending up at Cherbourg and Woorabinda, continues to be a source of grief for Wongkumara people.

The Determination Areas 23 The three contiguous Determination Areas comprise almost 48,000 sq kms predominantly in the Channel Country, in the area within which the border of Queensland meets the borders of NSW and South Australia, the great majority of which are within Queensland. The NSW Part B Area comprises approximately 5,940 square kilometres, which includes Tibooburra. 24 The Cooper Creek and its tributaries runs through the heart of the Wongkumara claim area. The external boundary of the Wongkumara claim area in the west runs north along the South Australian border from approximately 60 kilometres north of Camerons Corner, branching north-east just below Arrabury Station, past Lake Yamma Yamma to its south, until it reaches the channels of Cooper Creek then running south east in an undulating arc that reaches the Wilson River. The boundary then follows the midline of that river south-west past Nockatunga then running generally south-south west to cross the NSW border approximately 12.5 kilometres east of the Warri Gate. The southern boundary completes a semi-circle passing north of Milparinka heading back north past Fort Grey to meet the South Australian border at the point north of Camerons Corner described above. 25 The Wongkumara claim area has an arid climate with hot summers and moderate winters and includes parts of the Strzelecki and Sturt stony deserts. But it has many semi-permanent and permanent waterholes which drain into the Cooper Creek, and these waterholes have always been very significant to the Wongkumara people who in the past were often named in accordance with the waterhole near which they were born. The Cooper and its tributaries can flood across the generally flat terrain of Channel Country during the summer rainy season delivering immense amounts of water from the Cooper's northern watershed into the Lake Eyre Basin in South Australia. Severe drought can also occur, particularly if the wet season to the north fails. The terrain features some rugged outcrops and low ranges, sandhills with Mitchell grasslands and spinifex pastures. 26 The large pastoral stations in the Determination Areas, including Durham Downs and Nappa Merrie Stations in Queensland Part A, have played a significant role in the lives of Wongkumara People. These days the land and waters of the Determination Areas almost exclusively support the pastoral and mining industries. Pastoralists run cattle on stations which cover almost all of the Queensland Part A and Part B Areas, and the mining industry extracts natural gas from fields in the areas, with a hub at Ballera near Durham Downs Station. Wongkumara people continue to be involved in both industries as a means of accessing their traditional country. 27 The external boundary of the Wongkumara claim area is contiguous with the external boundaries of the following four areas where native title by other First Nations groups have been found to exist: (a) in the east, the native title determination on behalf of the Kullilli People: Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691; (b) in the west, the native title determination on behalf of the Yandruwandha Yawarrawarrka People: Nicholls v State of South Australia [2015] FCA 1407; (c) in the north-east, the native title determination on behalf of the Boonthamurra People: Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600; and (d) in the north-west proximate to the native title determination on behalf of the Mithaka People: Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116. In the south, the southern end of the NSW portion of the Wongkumara claim area is contiguous with a native title determination application in the Malyangapa Combined Proceedings, NSD525/2021.

The Wongkumara claimants and the continuity of practice 28 As I later detail, there is a wealth of material before the Court which explains, amongst other things, who the Wongkumara People are, how Wongkumara society operated pre-sovereignty and how it operates now, the cultural and spiritual practices of the Wongkumara People pre-sovereignty and now, their traditional laws and customs, and the connection between Wongkumara people and their country. The materials include: (a) 53 affidavits by Wongkumara lay witnesses filed in Court and oral testimony given by 20 Wongkumara lay witnesses given over the course of three weeks of on country hearings by the Court in May 2022; (b) 13 reports by anthropologists, archaeologists, linguists and explorers filed in Court, including the joint Report of the Conference of Experts filed 10 February 2023 (Experts' Conference Report) which recorded the outcomes of the expert conference held on 6, 7 and 8 February 2023 in which all five of the parties' expert anthropologists participated; and (c) oral testimony given by all five parties' expert anthropologists given across two days of hearing before the Court in March 2023.

THE PROCEDURAL HISTORY 29 On 4 April 1996, not long after the commencement of the NTA in 1994, the Wongkumara People commenced their efforts to secure recognition of their native title rights and interests in the Determination Areas by lodging the first of nine native title claims over land subject to the present application. Claims by the Wongkumara People for recognition of their native title in the Determination Areas have been continuously on foot since that date. The present Wongkumara Application which consolidated the applications which preceded it, commenced on 11 March 2008 and was numbered QUD 52 of 2008, and later renumbered QUD 851 of 2018 as part of the Court's program to digitise Court files. 30 When it commenced, the Wongkumara Application was made by the following members of the Wongkumara native title claim group: Noelene Margaret Edwards, Clancy McKellar, Iona Dawn Smith, Ernest (Hope) Ebsworth, Rosemary (Rose) Anne Wilson, Margaret Anne Collins, Sharlene Louise Knight and Archie Alfred Ebsworth on behalf of the Wongkumara People. Loretta McKellar, Donald James Dixon, Norman John Hodge and Jacqueline Elizabeth Hill were added as members of the Applicant following an authorisation meeting held on 28 and 29 February 2016 in Dubbo. Sadly, in the sixteen years since the Wongkumara Application was commenced Noelene Edwards, Loretta McKellar and Donald Dixon passed away. 31 The current members of the Wongkumara applicant are Clancy McKellar, Iona Smith, Ernest Ebsworth, Rosemary Wilson, Margaret Collins, Sharlene Knight, Archie Ebsworth, Norman Hodge, and Jacqueline Hill. 32 The Wongkumara Application was notified by the Native Title Registrar between 13 August 2008 and 12 November 2008 and entered on the Register of Native Title Claims on 12 April 2008. On 12 November 2008 parties which responded to the notification by filing a Form 5, including the Commonwealth, the State of Queensland, the Attorney General of New South Wales, local government bodies and parties with pastoral, mining or other interests within the claim area, were joined to the proceeding. 33 In the course of the Wongkumara Application some parties have withdrawn, some have been added, and the joinder of others has been successfully opposed and overlapping claims dismissed: see Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282; Collins on behalf of the Wongkumara People v Harris on behalf of the Palpamudramudra Yandrawandra People [2016] FCA 527; Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638; McKellar on behalf of the Wongkumara People v State of Queensland [2020] FCA 1394. 34 The Wongkumara Application has been amended seven times, including: (a) on 16 April 2008 to amend the description of the external boundaries of the claim area pursuant to orders made on 12 April 2008; (b) on 22 September 2009, to amend the claim area pursuant to Court orders made on 15 September 2009; (c) on 20 May 2022 to, amongst other things, amend the claim area including by reducing part of the application area in NSW to accommodate the claim by the Malyangapa People; and (d) on 24 June 2024 to, amongst other things, provide for the application of s 47C of the NTA to an area within the external boundaries of the NSW Part A Area, as a step relevant to resolution of the proceedings in that area; and to make amendments to the Wongkumara Application to make it consistent with the proposed consent determinations. 35 On 24 May 2019 two Yandruwandha Yawarrawarrka men, Aaron Paterson and Christopher Nicholls, applied to be joined as respondents to the Wongkumara Application. I heard that application on 12 December 2019. I indicated some views in relation to the application, and the joint applicants and the Wongkumara Applicant then agreed to orders to refer the joinder application to mediation. Mediation before a registrar then ensued which resulted in an agreement on 25 May 2020 as to the terms on which they would be joined as respondents. They were then joined as respondents. 36 On 27 October 2020, the Court made orders that Robert Singleton be substituted for Christopher Nicholls as one of the joinder applicants. 37 On 5 November 2020, the Court made orders that the Wongkumara Application be partitioned into: (a) the Part A Area, being the vast majority of the Wongkumara claim area (including the portion within NSW); and (b) the Part B Area, being a portion of the Wongkumara claim area in south-west Queensland lying along the border with South Australia, comprising approximately 6,367 square kms, which it was anticipated would be overlapped by a native title determination application by the Yandruwandha Yawarrawarrka People. 38 On 28 April 2021 the YY Application, which wholly geographically overlapped the Part B Area of the Wongkumara Application, was filed in the Court. 39 On 21 July 2021 the Court set down the following separate questions for hearing: Part A But for any question of extinguishment of native title and the determination of matters required by sub-sections 225(c), (d) and (e) of the Native Title Act 1993 (Cth), are native title rights and interests (as defined in section 223 of the Native Title Act 1993 (Cth)) held in the Part A area by members of the Wongkumara native title claim group under their traditional laws and customs, and if so: (a) which part or parts of the Part A area?; and (b) what is the nature and extent of those rights and interests? Part B But for any question of extinguishment of native title and the determination of matters required by sub-sections 225(c), (d) and (e) of the Native Title Act 1993 (Cth), are native title rights and interests (as defined in section 223 of the Native Title Act 1993 (Cth)) held in the Part B area by: (a) members of the Wongkumara native title claim group under their traditional laws and customs; and if so: (i) which part or parts of the Part B area?; and (ii) what is the nature and extent of those rights and interests?; and/or (b) members of the Yandruwandha Yawarrawarrka native title claim group under their traditional laws and customs; and if so: (i) which part or parts of the Part B area?; and (ii) what is the nature and extent of those rights and interests? 40 On that date the Court also made an order under s.67(1) of the NTA that the YY Application and the Wongkumara Application be dealt with in the same proceeding and determined at the same time. 41 From 9 to 27 May 2022 the Court heard evidence from Wongkumara and Yandruwandha Yawarrawarrka lay witnesses in Tibooburra and Charleville and at numerous sites of cultural and spiritual significance within the Part A and Part B Areas. 42 The parties filed further expert evidence between December 2022 and January 2023. The Wongkumara applicant filed reports by Professor David Trigger and Dr Sandra Pannell, the Yandruwandha Yawarrawarrka applicant filed experts' reports by Kim McCaul and Professor Peter Sutton, the Attorney General of NSW filed reports by Dr Lee Sackett and the State of Queensland filed reports by Dr Andrew Sneddon. 43 A conference of experts was held on 6, 7 and 8 February 2023 at which Professor Trigger, Dr Pannell, Dr Sackett, Dr Sneddon and Mr McCaul were in attendance. At the conference, the experts were able to reach substantial agreement on opinions they outlined in the Experts' Conference Report filed 10 February 2023. 44 On 3 March 2023, based on the lay evidence and the Experts' Conference Report, the State of Queensland and the Wongkumara applicant agreed to enter into substantive negotiations towards a consent determination in relation to the portion of the Part A area within Queensland. 45 On 6 and 7 March 2023 the Court heard expert evidence from Professor Trigger, Dr Pannell, Dr Sackett, Dr Sneddon and Mr McCaul. 46 Following that hearing the Attorney General of NSW and the Wongkumara applicant also entered into negotiations to resolve the proceeding in relation to the portion of the Part A Area within NSW. 47 Then, following a mediation before Judicial Registrar Colbran on 8 March 2023, the Wongkumara and Yandruwandha Yawarrawarrka applicants agreed in principle that both the Wongkumara People and the Yandruwandha Yawarrawarrka People have separate and distinct native title rights and interests in the entirety of the Part B Area. 48 The State of Queensland then agreed to proceed to substantive negotiations towards a consent determination in regard to the Queensland portion of the Part B Area with the Wongkumara and Yandruwandha Yawarrawarrka applicants. 49 During the balance of 2023, with the assistance of Judicial Registrar Grant, the Wongkumara and Yandruwandha Yawarrawarrka applicants engaged in negotiation with the State parties, the Commonwealth and so far as the NSW portion of the Part A Area was concerned, Tibooburra Local Aboriginal Land Council. This process led to agreement about the terms upon which Wongkumara native title rights and interests could be recognised in the Part A and Part B Areas, and the terms upon which the Yandruwandha Yawarrawarrka native title rights and interests could be recognised in the Part B Area, by consent. 50 The parties resolved that for the purposes of the proposed consent determinations the Wongkumara claim area be further partitioned into three areas: (a) the Queensland Part A Area, comprising the land and waters in Part A that are within Queensland; (b) the NSW Part A Area, comprising the land and waters in Part A that are within NSW; and (c) the Queensland Part B Area, comprising the land and waters in Part A within Queensland and overlapped by the claim area in the YY Application. 51 In the case management hearing on 14 June 2024 the Wongkumara applicant and the Attorney General of NSW sought orders by consent in relation to the NSW Part A Area. The proposed orders reflected the fact that the Wongkumara applicant and the Attorney General intended to execute an agreement under s 47C of the NTA on 19 June 2024. They informed the Court that the parcels of land and waters to be listed in the s 47C agreement were to be excluded from the proposed determination of native title for the NSW Part A Area, and that prior to 20 June 2024 the Wongkumara applicant would seek leave to amend its Form 1 application accordingly. Unfortunately the required notice period for that amendment would have the effect of delaying the proposed consent determination and the parties instead decided to further partition the NSW Part A Area so that the consent determinations could go ahead as scheduled, with the area to be covered by the s 47C agreement to be determined on a later date. 52 The Court made orders that day by consent that: 1. Order 1(a) made by Justice Murphy on 12 April 2024 be amended to "In respect to Part A, excluding the parcels referred to in Schedule One to these Orders, at Tibooburra, New South Wales on Wednesday 3 July 2024". 2. The land and waters described in Schedule One of these orders are to be referred to as the "NSW 47C area" or the "NSW Part B determination area". 3. The NSW 47C Area, or the NSW Part B determination area, be determined on a date to be advised by the Court, but not before October 2024. 53 On 24 June 2024 the Court made orders by consent to grant leave for Wongkumara applicant the amend the Wongkumara Application to include the application of the proposed s 47C agreement in Schedules B and E, to amend the native title claim group in respect of Scheule A, to amend the description of native title rights and interests in respect of Schedule E and to amend the amended applications in respect of Schedule S.

THE REQUIREMENTS UNDER SECTION 87A OF THE NTA 54 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)); (i) the Court may make an order in, or consistent with, the terms of the proposed determination without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that: (A) the order would be within the power of the Court (subs (4)(a)); and (B) it would be appropriate to do so (subs (4)(b)); and (j) in considering whether to make an order under subs (4) the Court has taken into account any objection made by the other parties to the proceeding (subs (8)). 55 Putting to one side the questions arising under s 87A(4), I am satisfied that each of the requirements of s 87A have been met in the present applications for consent determinations. I note that: (a) both the Wongkumara Application and the YY Application are applications for determination of native title filed in the Court (subs (1)(a)); (b) the notification period under s 66 of the NTA ended on 12 November 2008 for the Wongkumara Application, and on 7 December 2021 for the YY Application (subs (1)(b)); (c) the parties have reached agreement as to proposed determinations of native title in relation to part of the area claimed in the Wongkumara Application and also part of the area claimed in the YY Application (subs (1)(b)); (d) the parties' submissions recount all of the signatories to each of the s 87A Agreements, and I am satisfied that they comprise all of the necessary parties (subs 1(c)); (e) the terms of each proposed determination are in writing, and annexed to the relevant s 87A Agreement which is signed by or on behalf of all necessary parties (subs (1)(d)); (f) all necessary parties have had notice of each proposed consent determination, as evidenced by their signatures to the relevant s 87A Agreement (subs (3)); and (g) there are no objections to the proposed determinations by the other parties to either the Wongkumara Application or the YY Application (subs (8)). 56 The balance of the Court's consideration thus turns upon whether the Court has the power to make the orders sought (s 87A(4)(a)) and whether it is appropriate to make the orders sought (s 87A(4)(b)). I address those matters below.

The power to make the orders sought - s 87A(4)(a) 57 In relation to the question of power under s 87A(4)(a) of the NTA I am satisfied that: (a) the Court has jurisdiction to hear and determine the Wongkumara Application and the YY Application (s 81); (b) the terms of the proposed determinations are within the power of the Court, in the sense that the native title rights and interests that are proposed to be declared properly reflect the characteristics of native title rights and interests set out in s 223 of the NTA and the terms confer native title rights and interests recognisable by the common law of Australia. Those requirements, as considered in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422, were summarised by North J in Lovett v Victoria (No 5) [2011] FCA 932 at [22] as follows: In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present. The rights and interests recognised by the common law are those native title rights and interests that existed at sovereignty, which survived that fundamental change in the legal regime, and can now, by resort to the NTA, be enforced and protected: Yorta Yorta at [77]; (c) none of the Determination Areas are the subject of a previously approved determination of native title (s 68); and (d) the only other native title determination applications before the Court that cover any part of the area the subject of the proposed determinations in the Wongkumara Application is the YY Application which relates only to the Queensland Part B Area. Orders under s 67(1) of the NTA in relation to those two applications have already been made. No other proceedings exist which would otherwise require further orders to be made under s 67(1). In relation to the Queensland Part B Area the proposed consent determination seeks a single determination of native title made in a single proceeding, being the combined Wongkumara and YY Applications for that area, with that determination recognising native title rights for the Wongkumara People and the Yandruwandha Yawarrawarrka People over the area. 58 I also consider that the proposed consent determinations comply with s 94A of the NTA by setting out the details of each of the matters required to be described under s 225 of the Act. 59 First, I am satisfied having regard to the terms of each proposed determination, the submissions filed by the parties, and in relation to the NSW Part A Area the agreed facts between the Wongkumara applicant and the Attorney General of NSW, that there is probative material against which the Court can assess whether the matters set out in s 225 can be stated in the proposed determinations: see Agius v South Australia (No 6) [2018] FCA 358 at [68] (Mortimer J, as her Honour then was). 60 Second, in relation to the matters required to be described under s 225: (a) the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)) are described: (i) in the proposed determination for the Queensland Part A Area - in Order 5 and Schedule 1; (ii) in the proposed determination for the NSW Part A Area - in Orders 11 and 12; and (iii) in the proposed determination for the Queensland Part B Area; (A) in relation to the native title to be held by the Wongkumara People - in Order 5 and Section A of Schedule 1; and (B) in relation to the native title to be held by the Yandruwandha Yawarrawarrka People - in Order 8 and Section B of Schedule 1. That is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15]; (b) the nature and extent of the native title rights and interests in relation to the Determination Areas (s 225(b)) is described: (i) in the proposed determination for the Queensland Part A Area - in Orders 6 and 7, being the various exclusive and non-exclusive native title rights and interests described in Part 1 and Part 2 of Schedule 4, subject to Orders 8, 9 and 10; (ii) in the proposed determination for the NSW Part A Area - in Orders 13 and 14, being the various exclusive and non-exclusive native title rights and interests described in Part 1.1, Part 1.2 and Part 1.3 of Schedule One, subject to Orders 15, 16 and 17; and (iii) in the proposed determination for the Queensland Part B Area; (A) in relation to the native title to be held by the Wongkumara People - the non-exclusive native title rights and interests described in Order 6, subject to Orders 10, 11 and 12; and (B) in relation to the native title to be held by the Yandruwandha Yawarrawarrka People - the non-exclusive native title rights and interests described in in Order 9, subject to Orders 10, 11 and 12. (c) the nature and extent of any other interests in relation to the Determination Areas (s 225(c)) is described: (i) in the proposed determination for the Queensland Part A Area - in Order 11 and Schedule 2; (ii) in the proposed determination for the NSW Part A Area - in Order 18 and Schedule Five; and (iii) in the proposed determination for the Queensland Part B Area - in Order 13 and Schedule 2; (d) the relationship between the native title rights and interests and the other interests (s 225(d)) is described: (i) in the proposed determination for the Queensland Part A Area - in Order 12; (ii) in the proposed determination for the NSW Part A Area -- in Order 19, subject to Orders 20, 21 and 22; and (iii) in the proposed determination for the Queensland Part B Area - in Order 14; (e) 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 (s 225(d)) is described: (i) in the proposed determination for the Queensland Part A Area - in Order 6(a) in respect of the land described in Part 1 of Schedule 4, subject to Orders 8, 9 and 10; (ii) in the proposed determination for the NSW Part A Area - in Order 13(a) in respect of the land described in Part 1.1 subject to Orders 15, 16 and 17; and (iii) in the proposed determination for the Queensland Part B Area - proposed Order 11 does not confer exclusive possession, occupation, use and enjoyment on either the Wongkumara or the Yandruwandha Yawarrawarrka People; and (f) in relation to the requirement in the preamble to s 225 to identify the "particular area" to which the determination relates, the three Determination Areas are described: (i) in the proposed determination for the Queensland Part A Area - in Order 3 and 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; (ii) in the proposed determination for the NSW Part A Area - in Order 6 and Schedule One and depicted in the maps at Part 1.6 of that Schedule, and also by: (A) recognising the extinguishment of native title in the "extinguished area" described in Schedule Two and depicted on the maps at Part 2.5 of that Schedule; and (B) excluding the lands and waters in Part 2 of Schedule Three (NSW Excluded Area) which is to be the subject of an agreement under s 47C (the contents of which have been agreed) and will be the subject of a later determination; and (iii) in the proposed determination for the Queensland Part B Area in Order 3 and 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. 61 In regard to the Queensland Part A and Part B Areas it is submitted that the State undertook research to determine the extent of any extinguishment in the proposed Determination Areas, including as a result of grants of tenure and extinguishment by public works. The State's tenure analysis was circulated to the other parties and agreement was reached between the Wongkumara Applicant, the YY Applicant, the State and the relevant respondents regarding the identification of other interests, the effect of any extinguishment and the application of s 47B of the NTA within the proposed Determination Area. The areas identified in the proposed determinations include those areas which the parties have agreed are not subject to the Wongkumara Application or the YY Application on the basis that native title has been wholly extinguished in respect of them. 62 I should also note two particular matters in relation to the NSW Part A Area. First, the s 87A Agreement in relation to this Determination Area provides that to facilitate the resolution of the proceeding the s 87A Agreement was made in conjunction with an Indigenous Land Use Agreement, known as the "Kawalanyi Land Use Agreement ILUA". The ILUA is between the Wongkumara Applicant, the Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 (being the registered native title body corporate which will hold the determined native title on trust); the Attorney General of New South Wales; the Minister administering the Crown Land Management Act 2016 (NSW); the Minister administering the National Parks and Wildlife Act 1974 (NSW); the Minister administering the Biosecurity Act 2015 (NSW); and the Chief Executive Officer of Local Land Services. The parties jointly submitted that the ILUA is an important part of the compromise between the parties and it provides for both immediate and long-term benefits for the Wongkumara People and has been prepared with significant input from the Wongkumara applicant. 63 Second, as noted above, in accordance with the s 87A Agreement in relation to the NSW Part A Area, the NSW Excluded Area is to be the subject of an agreement under s 47C of the NTA (the contents of which have been agreed), and the Wongkumara applicant and the Attorney General of NSW have agreed to execute a further agreement under s 87 of the NTA in respect of that area. Accordingly, the NSW Excluded Area is not part of the proposed determination for the NSW Part A Area. The parties' joint submissions state that the s 47C agreement is an important part of the resolution of the proceedings. It covers a significant area (approximately 5,940 square km within the Sturt National Park) and the effect of the agreement will be that any extinguishment of native title rights and interests within the s 47C area will be disregarded, thus enabling the Wongkumara People to exercise native title rights and interests within that area.

The requisite standard of satisfaction 64 To decide whether it is appropriate to make the orders sought it is necessary to understand the requisite standard of satisfaction. The Court has expressed the requisite standard in numerous decisions which I recently summarised in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]-[37], as follows: [33] The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is "appropriate" takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J. [34] It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J. [35] The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a "credible", "rational", "sufficient" or "cogent" basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]-[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J. [36] The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44]. [37] As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A: In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court's function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act's emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed. The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8]. Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State's agreement that there is a credible and rational basis for the determination proposed: Freddie at [18]. The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited. 65 This approach is equally apposite when the agreement is made pursuant to s 87A rather than s 87: Austin at [37].

The material supporting the making of the consent determinations 66 The State parties have a duty to be satisfied that there is a "credible" or "cogent" basis for each of the proposed consent determinations: Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] (Jagot J). The credible evidence standard is one that requires significantly less than the evidence thought necessary to justify judicial determination under the civil standard: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [38] (North J), citing Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 (Emmett J); see also Watson v Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J). The Court must consider the material before it for the limited purpose of being satisfied that the State parties are acting rationally and in good faith in agreeing to the proposed consent determinations: Munn at [29]-[30]. 67 The circumstances and procedural history of the Wongkumara Application and YY Application mean that these determinations differ from many other proposed consent determinations pursuant to s 87 or s 87A, because here both the Court and the State parties have had the benefit of considering the substantial evidence adduced in the Separate Question hearing. As a result, there is an abundance of material to satisfy the Court that the State parties acted rationally and in good faith in entering into the relevant s 87A Agreements and agreeing to the relevant proposed consent determinations. 68 Because these reasons are focused on the Wongkumara Application I have focussed on the material in relation to the Wongkumara People. But in relation to the Queensland Part B Area there is also material which shows that the State of Queensland has a rational basis for agreeing to the proposed consent determination recognising the native title rights and interests of the Yandruwandha Yawarrawarrka People in that area. I have summarised some of that material in separate reasons for the YY Application.

The lay evidence 69 In the hearing of the lay evidence between 9 and 27 May 2022 twenty Wongkumara people gave evidence on country. The Court viewed numerous sites of significance and heard evidence from the Wongkumara lay witnesses: (a) in and proximate to Tibooburra, including the old Aboriginal camp at Thompsons Creek, the Aboriginal burial ground, the Three Brothers, and the White Lady; (b) sites en route to Durham Downs, including Karmona rock site, the remains of old gunyahs; a tool making site, and a women's site; (c) at Durham Downs Station, including the Aboriginal burial ground and old camp, the markers and path to the corroboree ground; the corroboree ground, ochres and waterhole; and the Standing Stones; and (d) other sites, including the old Innamincka campground, Nappa Merrie and sites including the Sandhill and Waterhole, Coonaberry caves and the Stone Goanna. 70 The Wongkumara lay witnesses gave evidence of matters including the Wongkumara People being a bounded entity descended from their apical ancestors, their descent from one or more of the Wongkumara apical ancestors, their ongoing observation of traditional laws and customs, the spiritual and mythological significance of sites in the claim area, the manner in which they transmit their knowledge to the next generations of Wongkumara people, the Wongkumara group's identity; the importance of the Wongkumara language to their group identity; their knowledge of the Wongkumara claim area, and the demarcation of Wongkumara country from the country of other First Nations groups. They sought to differentiate the Wongkumara claim area from the area in which the neighbouring Yandruwandha group have traditional rights and interests. 71 Wongkumara people, including members of the Ebsworth, Dixon, McGlashan, Knight, McKellar, Monaghan, Barker, Johnson/Edwards and Hodge families provided affidavits and gave evidence on behalf of the Wongkumara People regarding the manner in which their families have maintained their knowledge of the claim area, the places of birth of their immediate antecedents and their laws and customs, how their knowledge of and connection to the claim area had been maintained despite the forced removal of Wongkumara people from their traditional camping ground at Tibooburra in 1938 to the government run Aboriginal settlement at Brewarrina and elsewhere. 72 Their evidence was that the claimants, their families and their forebears occupied and found work within the Wongkumara claim area following European colonisation. They said that they maintained their connection with Wongkumara country and thereby overcame their removal from Tibooburra in 1938 because some pastoral workers continued to live and work on Wongkumara country, and when they could they arranged for their families to visit and taught them about their country. Other Wongkumara people gradually managed to leave Brewarrina and other government settlements to which they had been taken and they settled in places like Bourke and Dubbo from where they could travel to Wongkumara country as work opportunities and recreation allowed, including to work in the pastoral industry and more latterly, in the mining industry. 73 The Wongkumara witnesses ranged in ages from their 80s to their 20s, and they each recounted their connection to the Determination Areas including through participation in the various claims for recognition of their native title filed by Wongkumara people commencing in 1996 and on foot continuously since then to the present proceeding. There is a rational basis for the State parties to see their evidence as credible. 74 During the on country hearing seven Yandruwandha Yawarrawarrka lay witnesses gave evidence in relation to the Queensland Part B area. The Court viewed numerous sites of significance and heard evidence from the Yandruwandha Yawarrawarrka witnesses including with respect to their knowledge of Yandruwandha Yawarrawarrka country, their descent from one or more of the Yandruwandha Yawarrawarrka apical ancestors, their ongoing observation of traditional laws and customs, the spiritual and mythological significance of sites in the Yandruwandha Yawarrawarrka claim area and the manner in which they transmit their knowledge to the next generations of Yandruwandha Yawarrawarrka people. They sought to differentiate the Yandruwandha Yawarrawarrka claim area from the Queensland Part A Area in which the Wongkumara asserted traditional rights and interests. There is a rational basis for the State parties to see their evidence as credible. 75 On 25 October 2022, at the request of the parties, the Court expressed a preliminary view regarding the evidence of the lay witnesses. The Court expressed a preliminary preference for the evidence of the Wongkumara lay witnesses, in particular the evidence of Clancy McKellar which was supported by some other Wongkumara lay witnesses, to that of the Yandruwandha Yawarrawarrka lay witnesses. The thrust of Mr McKellar's evidence in relation to traditional rights and interests in the Queensland Part B Area was that it is "shared" country between the Wongkumara and the Yandruwandha Yawarrawarrka. 76 It was rational for the State parties to take the lay evidence into account in deciding to consent to determinations that recognise that: (a) the Wongkumara People have native title rights and interests in the Queensland Part A and NSW Part A Areas; and (b) both the Wongkumara People and the Yandruwandha Yawarrawarrka have native title rights and interests in the Queensland Part B Area.

The expert evidence 77 In 2022 and early 2023 the parties filed the expert reports to which I have referred. 78 In the Experts' Conference Report filed 10 February 2023 and in their oral testimony in early March 2023 there was no disagreement between the experts that the Wongkumara were part of a wider cultural bloc described by Professor Elkin as the "Lakes Group", which extended from the Eyre Peninsula in South Australia to south- west Queensland and the western reaches of north-western New South Wales. There was no disagreement between the experts that the Wongkumara People held native title rights and interests in the Queensland and NSW Part A Areas. The essential difference between the experts was that four of them (Professor Trigger, Dr Pannell, Dr Sackett, Dr Sneddon) considered that both the Wongkumara People and the Yandruwandha People held native title rights and interests in the Queensland Part B Area, whereas Mr McCaul considered that only the Yandruwandha Yawarrawarrka People did so. Professor Trigger, Dr Pannell, Dr Sneddon and Dr Sackett agreed that: (a) The Lakes Group is the relevant pre-sovereignty society for the purposes of the Queensland and NSW Part A areas and the Queensland Part B area (comprising the entirety of the Wongkumara claim area). (b) The Queensland and NSW Part A areas and the Queensland Part B area fall within the geographical extent of the society. (c) At sovereignty, persons acquired rights and interests in land through patrifilial and matrifilial spiritual connections to sites and tracts within the Application Area. Rights acquired through patrifiliation were transmissible through successive generations of men. Rights acquired through matrifiliation, being the rights inherited by a woman's children from her, were normally not transmissible beyond her children as the first descending generation. The system of traditional land tenure allowed for exceptions. (d) Since sovereignty: (i) succeeding generations of the Wongkumara People have continued to acknowledge and observe traditional laws and customs with significant permissible adaptations and changes; and (ii) while there has been loss of complexity, for example in relation to the moiety system and male initiation, and other elements have perforce been simplified, including knowledge of mura tracks and sites, rights in country continue to be inherited by succeeding generations on the basis of cognatic descent (being from either male or female forebears). (e) Key structural elements in the relationship to country have been reproduced over the generations as evident from the Wongkumara claimants' beliefs about the spiritual properties in the land and their connections to that spirituality. Spiritual beliefs about the landscape include the mura tracks of the Rainbow Snake forming the Coopers Creek and its tributaries, the Bronze-Winged Pigeon track, the Course of the Three Brothers with a pivotal site in Tibooburra, the White Lady site at Mt Poole station, the Pelican mura track and many others. As well, there is a shared belief in the need to care for country which manifests in maintaining the structural integrity of sites in accordance with traditional laws and customs and also transmitting knowledge of the mythological values of the Wongkumara Claim area to younger Wongkumara people and others involved in activities on that country. (f) That part of the regional Lakes Groups society which pertains to the Queensland and NSW Part A Areas includes the persons who are the Wongkumara apical ancestors and their descendants and in the Queensland Part B area also includes at least some Yandruwandha apical ancestors and their descendants. (g) The Wongkumara claimants, on the basis of the principle of ancestral connections to country as identified for the Lakes Group generally by Elkin, are the relevant holders of rights and interests in Part A and Part B. At least some Yandruwandha apical ancestors and their descendants also hold rights and interests in Part B. (h) From the data available to the experts, there are no other persons in the Lakes Group region with traditional rights and interests in Part A and Part B. While laws and customs are broadly acknowledged and observed in common across the regional Lakes Group society, it is only persons with ancestral connections to Part A and Part B who inherit traditional rights and interests from their forebears. (i) In relation to the Wongkumara claim area, the extant rights and interests are those that facilitate the possession, occupation, use and enjoyment of the claim area to the fullest extent in accordance with the traditional law and customs of the Wongkumara claim group. This includes the right to speak for and make decisions about the country. (j) In relation to Yandruwandha Yawarrawarrka claim area, the extant rights and interests are those that facilitate the possession, occupation, use and enjoyment of the claim area to the fullest extent in accordance with the traditional law and customs of the Yandruwandha Yawarrawarrka claim group. This includes the right to speak for and make decisions about the country. These rights and interests are held at least by those Yandruwandha Yawarrawarrka persons identified in #3 below. (k) The Wongkumara claimants, on the basis of, inter alia, their ancestral connections to country as identified for the Lakes Group generally by Elkin, hold rights and interests in the Queensland Part A and NSW Part A Areas. (l) From the data and records available, there are no other persons in the Lakes Group region with traditional rights and interests in the Queensland portion. (m) That traditional Aboriginal societies were not sharply bounded but characterised by zones of transition. 79 In relation to the Queensland Part B Area, Professor Trigger, Dr Pannell, Dr Sackett and Dr Sneddon opined that that area lay within the geographical extent of the Lakes Group society and that the Wongkumara People had traditional rights and interests in that area for the same reasons as they did in relation to the Queensland and NSW Part A Areas, but that some Yandruwandha apical ancestors and their descendants have traditional rights and interests in that area as well. It may be recalled that that was also the thrust of Mr McKellar's evidence in relation to the Queensland Part B Area. Mr McCaul took a different view. He opined that the Queensland Part B Area is Yandruwandha Yawarrawarrka country. 80 It was rational for the State parties to take the expert evidence into account in deciding to consent to determinations that recognise that: (a) the Wongkumara People have native title rights and interests in the Queensland Part A and NSW Part A Areas; and (b) both the Wongkumara People and the Yandruwandha Yawarrawarrka have separate and distinct native title rights and interests in the Queensland Part B Area.

Exercise of the discretion under s 87A 81 The State parties submitted that on the basis of the totality of the evidence filed and heard, and following the referral to mediation on 7 March 2023 and the subsequent negotiations case managed by Judicial Registrar Grant, they came to accept that there is a credible basis for consent determinations of native title rights and interests in the Queensland Part A and Part B Areas and the NSW Part A Area leading to the orders now proposed to the Court and the vacation of the trial. 82 The State parties have been legally represented throughout both the Wongkumara and the YY Applications, they fully participated in the proceedings including by cross-examining the lay and expert witnesses, they adduced their own expert evidence, and played an active role in the negotiation of the proposed consent determinations. Their active participation in the proceedings and the views they expressed in their written submissions in relation to the evidence before the Court show that they have taken a "real interest" in the proceedings in the interests of the community generally and have given careful consideration to the evidence and other relevant matters. 83 There is probative material before the Court from which I am satisfied that there is a credible basis for the State parties' decision to consent to the proposed determinations of native title, and that their decision to do so was reached rationally and in good faith. I am accordingly satisfied that it is appropriate to make the proposed consent determinations of native title in relation to the Queensland Part A Area, the NSW Part A Area and the Queensland Part B Area without continuing the hearing of these proceedings (s 87A(4)): see King v South Australia [2011] FCA 1386; 285 ALR 454 at [21]-[23] (Keane CJ), referring to Nelson v Northern Territory [2010] 190 FCR 344; 190 FCR 344 at [12]-[13] (Reeves J). 84 I have made the orders in the terms proposed by the parties.

NOMINATION OF A PRESCRIBED BODY CORPORATE 85 Where the Court proposes to make a determination that native title rights and interests exist, under s 56(1) of the NTA the Court must also make a determination as to whether those rights and interests are to be held on trust and if so, by whom. 86 In his affidavit Mr Neumann deposed as to a meeting of the Wongkumara native title claim group on 17 April 2024 in Dubbo, at which he was present, at which a resolution was passed nominating the Wangkumarra Kawalanyi Aboriginal Corporation ICN 7384 (WKAC), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), to hold the determined Wongkumara native title on trust, and to be the Registered Native Title Body Corporate for the Wongkumara People who hold native title rights and interests in the Queensland Part A, NSW Part A, Queensland Part B, and proposed NSW Part B (or s 47C) Areas. 87 He further deposed that at the meeting those Wongkumara persons present who are members of the WKAC passed a resolution that the WKAC accept the nomination to hold the determined Wongkumara native title on trust, and to be the Registered Native Title Body Corporate for the Wongkumara People who hold native title rights and interests in the Queensland Part A, NSW Part A, Queensland Part B, and proposed NSW Part B (or s 47C) Areas. Mr Neumann exhibited a copy of a resolution of WKAC dated 17 April 2024 signed by two directors, Clancy McKellar and Renae McKellar. 88 In the reasons which focus on the YY Application, I have set out the evidence which shows that a meeting of the Yandruwandha Yawarrawarrka native title holders in Brisbane on 24 November 2023 resolved to nominate Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) RNTBC (ICN 3840) (YYTLOAC), incorporated under the CATSI Act, to be the Prescribed Body Corporate to hold any determined native title of the Yandruwandha Yawarrawarrka People in the Queensland Part B Area, as agent of the proposed native title holders rather than as a trustee, and to require the YYTLOAC to consent to the nomination within five days of a request from the Principal Legal Officer of South Australia Native Title Services Limited. 89 The draft determination in relation to the Queensland Part A Area seeks a determination that: (a) the native title of the Wongkumara People is held on trust for them; and (b) WKAC is to: (i) be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA; and (ii) perform the functions set out in s 57(1) of the NTA after becoming a registered native title body corporate. 90 The draft determination in relation to the NSW Part A Area seeks a determination that upon the determination of native title taking effect WKAC is to hold the determined native title in trust for the common law holders pursuant to s 56(3) of the NTA; and is to: (a) be the prescribed body corporate for the purpose of s 57(1) of the NTA; and (b) perform the functions set out in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (NT PBC Regulations). 91 The proposed consent determination in relation to the Queensland Part B Area seeks orders that: (a) the native title of the Wongkumara People is held on trust for them by WKAC, which is to be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA and to perform the functions mentioned in s 57(1) of the NTA and the NT PBC Regulations; and (b) the native title of the Yandruwandha Yawarrawarrka People is not held on trust. The YYTLOAC is to: (i) be the prescribed body corporate for the purpose of ss 57(2) of the NTA; and (ii) perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate. 92 It is appropriate to make the orders appointing WKAC and YYTLOAC to undertake the roles and perform the functions specified in the draft determinations.

CONCLUSION 93 For these reasons I have made each of the consent determinations as proposed by the parties. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy.

SCHEDULE OF PARTIES QUD 851 of 2018 Applicants Second Applicant IONA DAWN SMITH Third Applicant ERNEST (HOPE) EBSWORTH Fourth Applicant ROSEMARY (ROSE) ANNE WILSON Fifth Applicant: MARGARET COLLINS Sixth Applicant: CHARLENE LOUISE KNIGHT Seventh Applicant: ARCHIE ALFRED EBSWORTH Eighth Applicant: DONALD JAMES DIXON (DECEASED) Ninth Applicant: LORETTA MCKELLAR (DECEASED) Tenth Applicant: NORMAN JOHN HODGE Eleventh Applicant: JACQUELINE ELIZABETH HILL Respondents Second Respondent AIRSERVICES AUSTRALIA ABN 59 698 720 886 Third Respondent BARCOO SHIRE COUNCIL Fourth Respondent BULLOO SHIRE COUNCIL Fifth Respondent ATTORNEY GENERAL FOR NEW SOUTH WALES Sixth Respondent QUILPIE SHIRE COUNCIL Seventh Respondent NSW ABORIGINAL LAND COUNCIL Ninth Respondent TIBOOBURRA ABORIGINAL LAND COUNCIL Tenth Respondent ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Eleventh Respondent ESSENTIAL ENERGY ABN 37 428 185 226 Thirteenth Respondent TELSTRA CORPORATION LIMITED ACN 051 775 556 Fourteenth Respondent ALLIANCE PETROLEUM AUSTRALIA PTY LTD ABN 60 004 559 951 Sixteenth Respondent BASIN OIL PTY LTD ABN 30 001 152 049 Twentieth Respondent DELHI PETROLEUM PTY LTD ABN 65 009 815 632 Twenty-Second Respondent MAWSON PETROLEUM PTY LTD ABN 65 009 815 632 Twenty-Third Respondent REEF OIL PTY LTD ABN 70 000 646 800 Twenty-Fourth Respondent SANTOS (BOL) PTY LTD ABN 35 000 670 575 Twenty-Fifth Respondent SANTOS (NARNL COOPER) PTY LTD ABN 75 004 761 255 Twenty-Sixth Respondent SANTOS AUSTRALIAN HYDROCARBONS PTY LTD ABN 83 010 850 487 Twenty-Seventh Respondent SANTOS LIMITED ABN 80 007 550 923 Twenty-Eighth Respondent SANTOS PETROLEUM PTY LTD ABN 95 000 146 369 Twenty-Ninth Respondent SANTOS QNT PTY LTD ABN 33 083 077 196 Thirty-First Respondent VAMGAS PTY LTD ABN 76 006 245 110 Thirty-Fifth Respondent WILLIAM JOHN CALDWELL Thirty-Seventh Respondent GEORGINA PASTORAL COMPANY LIMITED ACN 003 963 862 Thirty-Eighth Respondent STUART ALEXANDER MACKENZIE Thirty-Ninth Respondent JILL A PEGLER Fortieth Respondent ROSS M PEGLER Forty-Third Respondent AARON CHARLES PATERSON Forty-Fourth Respondent ROBERT DARREN SINGLETON Forty-Fifth Respondent AMPLITEL PTY LTD AS TRUSTEE FOR THE TOWERS BUSINESS OPERATING TRUST ABN 75 357 171 746

QUD 133 of 2021 Applicants Second Applicant ROBERT DARREN SINGLETON Respondents Second Respondent BULLOO SHIRE COUNCIL Third Respondent BARCOO SHIRE COUNCIL Fourth Respondent ERNEST HOPE EBSWORTH Fifth Respondent NORMAN JOHN HODGE Sixth Respondent TELSTRA CORPORATION LIMITED (ABN 33 051 775 556) Seventh Respondent NAPPA MERRIE HOLDINGS PTY LTD AS TRUSTEE Eighth Respondent VINTAGE ENERGY LTD ABN 56 609 200 580 Ninth Respondent APA (SWQP) PTY LIMITED ABN 67 066 656 219 Tenth Respondent EAST AUSTRALIAN PIPELINE LIMITED ABN 33 064 629 009 Eleventh Respondent GORODOK PTY LTD ABN 30 057 156 751 Twelfth Respondent ALLIANCE PETROLEUM AUSTRALIA PTY LTD ABN 60 004 559 951 Thirteenth Respondent BASIN OIL PTY LTD ABN 30 001 152 049 Fourteenth Respondent BRIDGE OIL DEVELOPMENTS PTY LTD ABN 30 001 152 049 Fifteenth Respondent DELHI PETROLEUM PTY LTD ABN 65 007 854 686 Sixteenth Respondent MAWSON PETROLEUM PTY LTD ABN 65 009 815 632 Seventeenth Respondent REEF OIL PTY LTD ABN 70 000 646 800 Eighteenth Respondent SANTOS (BOL) PTY LTD ABN 35 000 670 575 Nineteenth Respondent SANTOS (NARNL COOPER) PTY LTD ABN 75 004 761 255 Twentieth Respondent SANTOS AUSTRALIAN HYDROCARBONS PTY LTD ABN 83 010 850 487 Twenty-First Respondent SANTOS LIMITED ABN 80 007 550 923 Twenty-Second Respondent SANTOS PETROLEUM PTY LTD ABN 95 000 146 369 Twenty-Third Respondent SANTOS QNT PTY LTD ABN 33 083 077 196 Twenty-Fourth Respondent VAMGAS PTY LTD ABN 76 006 245 110 Twenty-Fifth Respondent ARRABURY PASTORAL COMPANY PTY LTD ACN 009 658 851 Twenty-Sixth Respondent ERGON ENERGY CORPORATION LIMITED ACN 087 646 062

1. the "as at date" for the dataset in which the parties have relied on for all parcels referred to in the consent determination is March 2024.
2. The "as at date" for the dataset in which the parties have relied on for all parcels referred to in the consent determination is March 2024.