FEDERAL COURT OF AUSTRALIA

Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267

ORDERS

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),

BY CONSENT THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out below (the “determination”).

2.    The determination will take effect upon the agreements referred to in paragraph 1 of Schedule 4.A being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the agreements referred to in paragraph 2 above are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order, or such later time as this Court may order, the matter is to be listed for further directions.

4.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

5.    The Shared Country Determination Area comprises all of the land and waters of the Shared Country Area, being land and waters included in the areas described in Schedule 1.A, Part 1, Table 1 and depicted in Schedule 1.B within the Shared Country Boundary but does not include the areas described in Schedule 2, Part 1, Table 1 and Part 2, Table 1. To the extent of any inconsistency between the written description and the map, the written description prevails.

6.    Native title exists in those parts of the Shared Country Determination Area described in Part 2, Table 1 of Schedule 1.A (“the Shared Country Native Title Area”).

7.    Native title does not exist in those parts of the Shared Country Determination Area described in Part 3, Table 1 of Schedule 1.A.

8.    The native title holders in respect of the Shared Country Native Title Area (as described in Schedule 1.A, Part 2, Table 1) are the Barada Barna People and the Widi People, in accordance with the shared traditional laws acknowledged and the traditional customs observed by them.

9.    Subject to paragraphs 10, 11 and 12 below, the nature and extent of the native title rights and interests held by the native title holders referred to in paragraph 8 above 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 for personal, domestic and non-commercial communal purposes;

(d)    take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

(e)    take and use the Water of the area for personal, domestic and non-commercial communal purposes;

(f)    conduct ceremonies on the area;

(g)    be buried and bury native title holders within the area;

(h)    maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;

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

(j)    hold meetings on the area; and

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

10.    The native title rights and interests referred to in paragraph 9 above are subject to and exercisable in accordance with:

(a)    the Laws of the State and the Commonwealth;

(b)    the traditional laws acknowledged and traditional customs observed by the native title holders; and

(c)    the terms and conditions of the agreements referred to in paragraphs 1 and 2 of Schedule 4.A, insofar as those agreements apply to the Shared Country Determination Area.

11.    The native title rights and interests referred to in paragraph 9 above do not confer possession, occupation, use or enjoyment to the exclusion of all others.

12.    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).

13.    The nature and extent of any other interests in relation to the Shared Country Determination Area (or respective parts thereof) are set out in Schedule 4.A.

14.    The relationship between the native title rights and interests described in paragraph 9 above and the other interests described in Schedule 4.A (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 Shared Country Native Title Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and

(c)    the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an interest, prevail over the native title rights and interests and any exercise of the native title rights and interests.

DEFINITIONS AND INTERPRETATION

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

“Barada Barna Claim” means the application for native title made in Federal Court proceeding No. QUD 380 of 2008;

“Barada Barna People” means the native title claim group on whose behalf the native title claim in proceedings No QUD 380 of 2008 is made;

“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 other laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

“Natural Resources” means:

(a)    any animal, plant, fish and bird life found on or in the lands and waters of the Shared Country Native Title Area; and

(b)    any clays, soil, sand, gravel or rock found on or below the surface of the Shared Country Native Title Area,

that have traditionally been taken and used by the native title holders, but does not include:

(a)    animals that are the private personal property of another;

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

(c)    minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“Shared Country Area” means the area within the Shared Country Boundary, excluding any areas in Schedule 2, Part 1 (a), Part 1(b) Table 1 and Part 2, Table 1;

“Shared Country Boundary” means the external boundary described at Schedule 1.A, Part 1, Table 1;

“Shared Country Determination Area” means the Shared Country Area, being land and waters included in the areas described in Schedule 1.A, Part 1, Table 1 and depicted in Schedule 1.B within the Shared Country Boundary but does not include the areas described in Schedule 2, Part 1(a), Part 1(b) Table 1 and Part 2, Table 1;

“Shared Country Native Title Area” means those parts of the Shared Country Determination Area described in Part 2, Table 1 of Schedule 1.A where native title exists;

“Water” means:

(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;

“Widi #2 Claim” means the application for native title made in Federal Court proceeding No. QUD 492 of 2013;

“Widi People” means the native title claim group on whose behalf the native title claim in proceedings No QUD 492 of 2013 is made; and

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).

THE COURT DETERMINES THAT:

16.    Upon the determination taking effect:

(a)    The native title of the Barada Barna People in the Shared Country Native Title Area is to be held in trust by the Barada Barna Aboriginal Corporation (ICN: 8343);

(b)    The native title of the Widi People in the Shared Country Native Title Area is to be held (not in trust) by the Gangali Narra Widi Aboriginal Corporation (ICN: 8363);

(c)    Subject to paragraph 16(a) above, the Barada Barna Aboriginal Corporation (ICN: 8343), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is to:

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

(ii)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

(d)    Subject to paragraph 16(b) above, the Gangali Narra Widi Aboriginal Corporation (ICN: 8363), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(i)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(ii)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

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

Schedule 1 — DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Parts 2 and 3 below, to the extent that they are within the Shared Country Boundary, Barada Barna Boundary and the Widi #2 Boundary described in Part 1 below, but does not include the areas described in Schedule 2.

Part 1 –External Boundaries

Table 1: Shared Country Boundary

The Shared Country area covers all land and waters within the external boundary described as:

Commencing at a point on the southern boundary of Lot 2 on SP214117 at Easting 607842.233, a point on the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application; then north easterly along the boundary of that application to a point at Easting 608395.458. Then generally north easterly passing through the following coordinate points:

Then north easterly to the southern boundary of Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 614453.605; then north easterly along that boundary passing through the following coordinate points:

Then generally north easterly and south easterly passing through the following coordinate points:

Then south easterly to the southern boundary of Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 634833.410; then south easterly along that boundary passing through the following coordinate points:

Then southerly to a coordinate point at Easting 640586.410, Northing 7616008.780; then south easterly to the southern boundary of Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 643743.692; then generally south easterly along that boundary passing through the following coordinate points:

Then generally south easterly, generally north easterly, easterly, and generally north easterly passing through the following coordinate points:

Then north easterly to the southern boundary of Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 672777.104; then generally north easterly along that boundary passing through the following coordinate points:

Then generally easterly and north easterly passing through the following coordinate points:

Then north easterly to a point on the eastern boundary of Lot 3 on WHS25 at Northing 7601823.527; then generally south easterly and south westerly along the boundaries of that lot and eastern boundaries of Lot 8 on WHS379 to Northing 7597986.159; then generally southerly and generally south westerly along a ridgeline passing through the following coordinate points:

Then south easterly to the northernmost north western corner of Lot 79 on FTY1932; then southerly and generally north westerly along the boundaries of that lot and southern boundaries of Lot 1 on AP19298 to Easting 688571.114; then north westerly, generally westerly, generally north westerly and generally south westerly passing through the following coordinate points:

Then generally northerly and generally north westerly passing through the following coordinate points:

Then north easterly back to the commencement point.

The area within the Shared Country Boundary excludes any areas subject to:

Native Title Determination Application QUD372/2006 Widi People of the Nebo Estate #1 (QC2006/014) as accepted for registration (12 August 2014).

Note:

Data Reference and source

    Cadastral data sourced from Queensland Digital Cadastral Database (November 2015)

    Ridgeline interpreted from 1:250,000 Topographic Image © Commonwealth of Australia, Geoscience Australia (2008)

Reference Datum

Geographical coordinates are referenced to Map Grid of Australia 1994 (MGA94) Zone 55, in Eastings and Northings shown to three decimal places and are based on the spatial reference data acquired from the various custodians at the time.

Table 2: Barada Barna Boundary

The Barada Barna area covers all land and waters within the external boundary described below:

Then north easterly toward a point at Easting 608089.26, Northing 7610485.900 until its intersection with a western boundary of Red Hill Road (being a western boundary of Widi People of the Nebo Estate #1 Native Title Application); then southerly along the western boundary of that road and that application boundary to Northing 7607799.584; then generally north easterly along that application boundary through Easting 606317.949, Northing 7608285.445 to Easting 607555.763; then generally south easterly and generally south passing through the following coordinate points:

Then generally north easterly, generally south easterly, and generally north easterly passing through the following coordinate points:

Then south easterly to a point on the southern boundary of Lot 1 on AP19298 at Easting 688571.114; then generally south easterly and generally northerly along the borders of that lot and continuing along the northern borders of Lot 79 on FTY1932 to the northernmost north western corner of Lot 79 on FTY1932. Then north westerly, generally north easterly and generally northerly along a ridgeline passing through the following points:

Then north easterly to a point on the eastern boundary of Lot 8 on WHS379 at Northing 7597986.159; then generally north easterly along that boundary and continuing along the eastern boundary of Lot 3 on WHS25 to Northing 7601823.527. Then generally easterly, generally southerly and generally north westerly passing through the following coordinate points:

Then south easterly back to the commencement point.

The Barada Barna area excludes all land and waters within the external boundaries of the following areas:

1.    Native Title Determination QUD6230/1998 Jangga People (QCD2012/009) as determined by the Federal Court on 9 October 2012, further described as excluding:

    That part west of a line extending southerly passing through the following coordinate points:

2.    Native Title Determination Application QUD372/2006 Wiri People Core Country Claim (QC2006/014) as per the amended application filed in the Federal Court of Australia on 18 December 2006, further described as excluding:

    That part north of a line commencing at the intersection of the southern boundary of Lot 2 on SP214117 and the western boundary of Red Hill Road Reserve and extending south along that road reserve to Latitude 21.629817° South; then extending generally north easterly, generally south easterly and generally easterly passing through the following coordinate points:

3.    Native Title Determination Application QUD6004/2000 Southern Barada and Kabalbara People (QC2000/004) as accepted for registration on 29 April 2002, further described as excluding:

    That part of Lot 9 on KL70 east of the eastern bank of the Connors River;

    That part of Lot 4 on KL210 (Croydon Station) east of the eastern bank of the Connors River and south of the southern bank of Lotus Creek;

    Lot 14 on ROP84;

    Lot 14 on ROP89; and

    Lot 23 on SP100966.

4.    Native Title Determination Application QUD6223/1998 Yuibera People (QC1998/037) as accepted for registration on 08 July 1998, further described as excluding:

    That part of 179 on FTY 1934 being that part of former lot 179 on FTY 1336 as far south as Craigs Road.

Note

Data Reference and source

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

    Cadastre data sourced from Department of Natural Resources and Mines, Qld (February, 2015).

    Rivers and creeks based on casement data (Aug, 2015) where available, else Queensland Topographic Map Cache Service 1:25,000 (2014) data sourced from Department of Natural Resources and Mines, Qld.

Reference datum

Coordinates were provided to the NNTT Geospatial Services and are referenced to the Map Grid of Australia 1994 (MGA94) Zone 55, in Eastings and Northings shown to three decimal places.

Geographical coordinates 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

Use of Coordinates

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.

Table 3: Widi #2 Boundary

The Widi #2 area consists of five distinct, non-contiguous boundaries, covering all land and waters within the external boundaries described as:

Boundary 1:

Commencing at a point on the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 608395.458; then generally north easterly along that boundary passing through the following coordinate points:

Then generally south westerly passing through the following coordinate points:

Then south westerly back to the commencement point of Boundary 1.

Boundary 2:

Commencing at a point on the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 626683.284; then generally north easterly and generally south easterly along that boundary passing through the following coordinate points:

Then generally north westerly, westerly, and generally south westerly passing through the following coordinate points:

Then south westerly back to the commencement point of Boundary 2.

Boundary 3:

Commencing at a point on the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 640459.562; then generally south easterly along that boundary passing through the following coordinate points:

Then north westerly to a coordinate point at Easting 640586.410, Northing 7616008.780; then north westerly back to the commencement point of Boundary 3.

Boundary 4:

Commencing at a point on the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 659188.309; then generally south easterly, easterly, and generally north easterly along that boundary passing through the following coordinate points:

Then generally south westerly, westerly, generally south westerly and generally north westerly passing through the following coordinate points:

Then north westerly back to the commencement point of Boundary 4.

Boundary 5:

Commencing at a point on the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application at Easting 685605.658; then generally north easterly along that boundary passing through the following coordinate points:

Then north easterly along the southern boundary of QUD372/2006 Widi People of the Nebo Estate #1 Native Title Determination Application to a point on the eastern boundary of Lot 3 on WHS25 at Easting 697760.876, Northing 7602508.929. Then south westerly, southerly and south easterly along the eastern boundaries of that lot to Northing 7601823.527; then south westerly, westerly, and south westerly passing through the following coordinate points:

Then south westerly back to the commencement point of Boundary 5.

The Widi #2 area excludes any areas within Boundary 1 – Boundary 5 subject to:

    Native Title Determination Application QUD372/2006 Widi People of the Nebo Estate #1 (QC2006/014) as accepted for registration (12 August 2014).

Note:

Data Reference and source

    Cadastral data sourced from Queensland Digital Cadastral Database (November 2015)

    Ridgeline interpreted from 1:250,000 Topographic Image © Commonwealth of Australia, Geoscience Australia (2008)

Reference Datum

Geographical coordinates are referenced to Map Grid of Australia 1994 (MGA94) Zone 55, in Eastings and Northings shown to three decimal places and are based on the spatial reference data acquired from the various custodians at the time.

Part 2 – Non-exclusive areas

1.    All waterways, natural lakes, creeks and rivers within the External Boundaries as described in Part 1 and depicted in light blue on the determination map that are not included in a lot on plan; and

2.    All of the land and waters described in Tables 1, 2 and 3 below and depicted in light blue on the determination map:

Table 1: Within the Shared Country Boundary

Table 2: Within the Barada Barna Boundary

Table 3: Within the Widi #2 Boundary

Part 3 – Areas within the Determination Area where native title does not exist

All of the land and waters described in the following table and depicted in pink on the determination map:

Table 1: Within the Shared Country Boundary

Table 2: Within the Barada Barna Boundary

Table 3: Within the Widi #2 Boundary

B.    Map of Determination Area

Schedule 2 - AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area.

Part 1 - Excluded as PEPAs

(a)    Those land and waters within the external boundaries as described in Part A of Schedule 1 upon 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/or 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).

and

(b)    Not limiting (a) above, the land and waters comprising the lots included in the following tables:-

Table 1: Within the Shared Country Boundary

Table 2: Within the Barada Barna Boundary

Table 3: Within the Widi #2 Boundary

Part 2 - Excluded by agreement

Table 1: Within the Shared Country Boundary

Table 2: Within the Barada Barna Boundary

Table 3: Within the Widi #2 Boundary

Schedule 3 — NATIVE TITLE HOLDERS

Part 1 Barada Barna People

The Barada Barna People are the descendants of one or more of the following people:

(a)    Bob Lotus;

(b)    Lizzy Payne;

(c)    Daisy (wife of Booyah McDonald);

(d)    Maggie (wife of Toby Barker & Peter Darwin & Michael Angus);

(e)    “Polly” Mary (wife of Robert Noble & Bert Fox);

(f)    Lizzie (wife of Paddy Flynn);

(g)    Polly (wife of Thomas Mitchell);

(h)    Lucy Ross;

(i)    Laura (wife of Duke/George Barker, Neddy/Teddy Sauney and Adam Bowen); or

(j)    Charles Budby (father of George “Saltbush” Budby).

Part 2     Widi People

The Widi People are the biological or adopted descendants of one or more of the following people:

(a)    Jean White, mother of Albert Butterworth;

(b)    Mr Clark (“of Suttor Station”) & Jinny (“of Stockton Station”), whose known children are Charlie Clark and Dick Clark;

(c)    Jinny (“of Stockton Station”), whose known child (with Mr Watson) is Charlie Watson;

(d)    Siblings Tommy Emmerson/Iffley and Arthur Emmerson;

(e)    Roger (“of Nebo district”), whose known child is Emily Rogers;

(f)    Neddy Thorney, whose known child is Sarah Mate Mate nee Thorney/Sauney;

(g)    Sophie (“of Nebo”), whose known children are Jack Skeen, William Skeen, Norman Skeen, Elsie Skeen and Mary Skeen;

(h)    Dick (“of Nebo”), whose known child is Sam Murray;

(i)    Billy (“of Nebo”) & Molly (“of Oxford Downs Station”), whose known children are Jessie and Billy Sullivan;

(j)    Harry Monsell Snr (“of Lake Elphinstone”) whose known children are Lily Sullivan, Flora Doyle and Harry Monsell Jnr;

(k)    King (“of Fort Cooper”) & Meg (“of Fort Cooper”), whose known children are Johnny, Mick, Mitchell Dalton, Paddy, Emma and Annie;

(l)    Ida, whose known child is Rene Hess (“from Nebo”); or

(m)    Maggie, whose known children are Norman Brown Snr, George “Duke” Barker and Ina Darwin.

Schedule 4 — OTHER INTERESTS IN THE NATIVE TITLE AREA

A.    Shared Country Native Title Area

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

1.    The rights and interests of the parties under the following agreements:

(a)    the agreement between the Barada Barna People, the Widi #2 People, Barada Barna Aboriginal Corporation (ICN: 8343), Gangali Narra Widi Aboriginal Corporation (ICN: 8363) and Isaac Regional Council dated 4 April 2016 and titled the Barada Barna People, Widi People and Local Government Indigenous Land Use Agreement; and

(b)    the Barada Barna People, Widi People of the Nebo Estate #2 and Ergon Energy ILUA dated 16 February 2016 (“the Shared Country ILUA”).

2.    The rights and interests of the parties under the following registered agreements:

(a)    the State of Queensland, SunWater Limited (ACN 131 034 985), Les Budby, Frank Budby and Cecil Brown Junior on their own behalf and on behalf of the Barada Barna People, and Graham Sauney, Jim Sauney, Nancy Rhiel, Kathy York, Ken Dodd, BT Sauney, Marie M McLennan, Owen McLennan, Colleen Sauney, Joanne Sauney, Thomas Wallace, Antony Morseu, Brad Sauney, Ross Sauney, Lance Sauney, Ian Whirisky, Nikita Sauney, Samantha White, Justine Sauney, Amanda Sauney and Ronald Watson as parties to the Connors River Dam and Pipelines Project ILUA registered on 5 September 2011 (QI2011/009); and

(b)    the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (National Native Title Tribunal number QI2002/049) registered on 15 December 2003 between:

(i)    Enertrade (NQ) Pipeline No.1 Pty Ltd and Enertrade (NQ) Pipeline No.2 Pty Ltd;

(ii)    Harriet Tanna, Gibson Gela, Alison Douglas, Celeste Walsh, Les Budby, Norman Brown, Lynnette Brown, Albert Brown, Frank Budby, Nicole Muller and May James, together known as Barada Barna Kabalbara & Yetimarla #4 Registered Native Claimants on their own behalf and on behalf of the Barada, Barna, Kabalbara and Yetimarla #4 Native Title Claim Group;

(iii)    Tyrone Tiers, Marie McLennan, Colin McLennan, Thomas Brown, James Gaston, Paul Butterworth, Dorothy Hustler together known as Jangga People Registered Native Title Claimants on their own behalf and on behalf of the Jangga People Native Title Claim Group;

(iv)    Norman Johnson, Eric Blay, Pansy Colonel (Emmerson), Christopher Dunrobin, Effie Collins, Len Watson, Eileen Pegler, Marilyn Duncan, Harry Johnson, Oswald Skeen, Michael Watson together known as Wiri #2 Registered Native Title Claimants on their own behalf and on behalf of the Wiri #2 Native Title Claim Group; and

(v)    Daisy Carlo, Graham Bell, Les Budby, Ron Dallachy, Graham Sauney, Jim Butterworth, Vivienne Schwartz, Grace Lenoy, Patricia Brimble, Linda Budby, Ian Dodd, Joan Macey, Enoch Tranby, Cynthia Tyson, Thomas Tyson on their own behalf and on behalf of their Combined Nebo Inland Group.

3.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(a)    as the owner or operator of telecommunications facilities installed within the Shared Country Native Title Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Shared Country Native Title Area in performance of their duties; and

(d)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Shared Country Native Title Area.

4.    The rights and interests of Ergon Energy Corporation (ACN 087 646 062):

(a)    as the owner and operator of any “works” as that term is defined in the Electricity Act 1994 (Qld) within the Shared Country Native Title Area;

(b)    as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(c)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)    rights in relation to any agreement relating to the Shared Country Native Title Area existing or entered into before the date on which these orders are made;

(ii)    rights to enter the Shared Country Native Title Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

(iii)    to inspect, maintain and manage any works in the Shared Country Native Title Area.

5.    The rights and interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233):

(a)    as the owner and operator of works within the meaning of the Electricity Act 1994 (Qld) (Works);

(b)    as an electricity entity under the Electricity Act 1994 (Qld) including rights to enter and pass through the Shared Country Native Title Area to access, use, maintain, repair, replace, upgrade or otherwise deal with Works; and

(c)    under any lease, licence, easement, permit or agreement within the Shared Country Native Title Area.

6.    The rights and interests of SunWater Limited (ACN 131 034 985) (SunWater) and Eungella Water Pipeline Pty Ltd (ACN 070 999 236) (Eungella Water Pipeline):

(a)    SunWater in Lot 2 on SP214117 (Easement in Gross 711550803);

(b)    Eungella Water Pipeline in Lot 2 on SP214117 (Easement in Gross 703257016);

7.    The rights and interests of:

(a)    Aurizon Network Pty Ltd (ACN 132 181 116) in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld); and

(b)    Aurizon Network Pty Ltd (ACN 132 181 116), Aurizon Property Pty Ltd (ACN 145 991 724) or Aurizon Operations Limited (ACN 124 649 967) under any lease, licence, easement, permit or agreement within the Shared Country Native Title Area.

8.    The rights and interests of Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of the Exploration Permit for Coal numbered 951.

9.    The rights and interests of:

(a)    Peabody West Burton Pty Ltd (ACN 117 316 695) as the holder of an interest in EPC 682 and EPC 836 granted pursuant to the Mineral Resources Act 1989 (Qld);

(b)    Peabody West Walker Pty Ltd (ACN 117 316 739) as the holder of an interest in EPC 657 and EPC 712 granted pursuant to the Mineral Resources Act 1989 (Qld);

(c)    Peabody (Burton Coal) Pty Ltd (ACN 077 679 513) as the holder of an interest in EPC 857 and ML 70109 granted pursuant to the Mineral Resources Act 1989 (Qld); and

(d)    Peabody Energy Australia PCI Rush Pty Ltd (ACN 128 817 461) as the holder of an interest in EPC 1607 granted pursuant to the Mineral Resources Act 1989 (Qld).

10.    The rights and interests of the holder from time to time of mining lease ML 4738 granted under the Mining Act 1968-1975 (Qld) and administered under the Mineral Resources Act 1989 (Qld), and who at the date of this determination is comprised of Queensland Coal Pty Limited (ACN 000 003 921), Nippon Steel & Sumitomo Metal Australia Pty Ltd (ACN 001 445 049), Marubeni Coal Pty Ltd (ACN 009 932 236) and Sumisho Coal Development Queensland Pty Ltd (ACN 082 435 149).

11.    The rights and interests of the holder from time to time of exploration permits for coal EPCs 1635, 1860 and 1981 granted under the Mineral Resources Act 1989 (Qld), and who at the date of this determination is Rio Tinto Exploration Pty Limited (ACN 000 057 125).

12.    The rights and interests of the State of Queensland and Isaac Regional Council to access, use, operate, maintain and control the dedicated roads in the Shared Country Native Title Area and the rights and interests of the public to use and access the roads.

13.    The rights and interests of Isaac Regional Council:

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Shared Country Native Title Area within the area declared to be its respective local government area;

(b)    as the:

(i)    lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;

(ii)    grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not;

(iii)    holder of any estate or interest in land, as trustee of any reserves, that exist in the Shared Country Native Title Area;

(c)    as the owner and operator of infrastructure, and those facilities and other improvements located in the Shared Country Native Title Area validly constructed or established on or before the date on which these orders are made, including but not limited to:

(i)    undedicated but constructed roads except for those not operated by Council;

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities; and

(v)    recreational facilities.

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

(i)    exercise any of the rights and interests referred to in paragraph 19 above;

(ii)    inspect, maintain and repair the infrastructure, facilities and other improvements referred to in subparagraph (c) above; and

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

14.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a)    the Land Act 1994 (Qld);

(b)    the Nature Conservation Act 1992 (Qld);

(c)    the Forestry Act 1959 (Qld);

(d)    the Water Act 2000 (Qld);

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

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

(g)    the Fisheries Act 1994 (Qld);

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

(i)    the Sustainable Planning Act 2009 (Qld).

15.    The rights and interests of members of the public arising under the common law, including but not limited to any subsisting public right to fish.

16.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Shared Country Native Title Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    coastal waters;

(d)    beaches;

(e)    stock routes; and

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

17.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

B.    Barada Barna Native Title Area

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

1.    The rights and interests of the parties under the following agreements:

(a)    the Dipperu National Park Indigenous Land Use Agreement dated 18 March 2016;

(b)    the agreement between the Barada Barna People, Barada Barna Aboriginal Corporation (ICN: 8343), Central Highlands Regional Council, Isaac Regional Council and Mackay Regional Council dated 1 March 2016 and titled the Barada Barna People and Local Government Indigenous Land Use Agreement;

(c)    the Barada Barna People and Ergon Energy ILUA dated 16 February 2016;

(d)    the Barada Barna People/Logan Creek and Cherwell ILUA dated 14 March 2016;

(e)    the Barada Barna People/Oben Park (aka Harrybrandt West) ILUA dated 7 March 2016;

(f)    the Barada Barna People/Killarney ILUA dated 11 March 2016; and

(g)    the Moranbah Indigenous Land Use Agreement between the Barada Barna People, Barada Barna Limited (ACN 142 559 135), the Minister for Economic Development and the State of Queensland dated 2 December 2015.

2.    The rights and interests of the parties under the following registered agreements:

(a)    the State of Queensland, SunWater Limited (ACN 131 034 985), Les Budby, Frank Budby and Cecil Brown Junior on their own behalf and on behalf of the Barada Barna People, and Graham Sauney, Jim Sauney, Nancy Rhiel, Kathy York, Ken Dodd, BT Sauney, Marie M McLennan, Owen McLennan, Colleen Sauney, Joanne Sauney, Thomas Wallace, Antony Morseu, Brad Sauney, Ross Sauney, Lance Sauney, Ian Whirisky, Nikita Sauney, Samantha White, Justine Sauney, Amanda Sauney and Ronald Watson as parties to the Connors River Dam and Pipelines Project ILUA registered on 5 September 2011 (QI2011/009); and

(b)    the SunWater Limited (ACN 131 034 985); Eungella Water Pipeline Pty Ltd (ACN 070 999 236); Harriet Tanna, Gibson Gela, Alison Douglas, Celeste Walsh, Les Budby, Norman Brown, Lynette Brown, Albert Brown, Frank Budby, Nicole Muller, May James on their own behalf and on behalf of the BBKY Native Title Group; Allan Fisher, Heather Tilberoo, Gracelyn Smallwood, Algon Walsh Junior, Colin McLennan, David Miller, Frank Fisher, Patrick Walsh on their own behalf and on behalf of the Birri Native Title Group; Colin McLennan, James Gaston, Thomas Brown, Tyrone Tiers, Dorothy Hustler, Marie McLennan on their own behalf and on behalf of the Jangga Native Title Group; Christopher Dunrobin, Len Watson, Michael Watson, Norman Abraham Johnson, Oswald Skeen, Effie Collins, Eileen Pegler, Pansy (Emmeron) Colonel, Marilyn Duncan on their own behalf and on behalf of the Wiri #2 Native Title Group; Graham Sauney, Rick Wilson on their behalf and on behalf of Wiri #3 Native Title Group as parties to the Burdekin Pipeline ILUA registered on 17 March 2006 (QI2005/013).

(c)    the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (National Native Title Tribunal number QI2002/049) registered on 15 December 2003 between:

(i)    Enertrade (NQ) Pipeline No.1 Pty Ltd and Enertrade (NQ) Pipeline No.2 Pty Ltd;

(ii)    Harriet Tanna, Gibson Gela, Alison Douglas, Celeste Walsh, Les Budby, Norman Brown, Lynnette Brown, Albert Brown, Frank Budby, Nicole Muller and May James, together known as Barada Barna Kabalbara & Yetimarla #4 Registered Native Claimants on their own behalf and on behalf of the Barada, Barna, Kabalbara and Yetimarla #4 Native Title Claim Group;

(iii)    Tyrone Tiers, Marie McLennan, Colin McLennan, Thomas Brown, James Gaston, Paul Butterworth, Dorothy Hustler together known as Jangga People Registered Native Title Claimants on their own behalf and on behalf of the Jangga People Native Title Claim Group;

(iv)    Norman Johnson, Eric Blay, Pansy Colonel (Emmerson), Christopher Dunrobin, Effie Collins, Len Watson, Eileen Pegler, Marilyn Duncan, Harry Johnson, Oswald Skeen, Michael Watson together known as Wiri #2 Registered Native Title Claimants on their own behalf and on behalf of the Wiri #2 Native Title Claim Group; and

(v)    Daisy Carlo, Graham Bell, Les Budby, Ron Dallachy, Graham Sauney, Jim Butterworth, Vivienne Schwartz, Grace Lenoy, Patricia Brimble, Linda Budby, Ian Dodd, Joan Macey, Enoch Tranby, Cynthia Tyson, Thomas Tyson on their own behalf and on behalf of their Combined Nebo Inland Group.

3.    The rights and interests of Telstra Corporation Limited ACN 051 775 556:

(a)    as the owner or operator of telecommunications facilities installed within the Barada Barna Native Title Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Barada Barna Native Title Area in performance of their duties; and

(d)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Barada Barna Native Title Area including in relation to Trustee Lease no 714628684 from Isaac Regional Council as Trustee to Telstra Corporation Limited of Lease A in Lot 24 in SP158749 on SP237600.

4.    The rights and interests of Ergon Energy Corporation (ACN 087 646 062):

(a)    as the owner and operator of any “works” as that term is defined in the Electricity Act 1994 (Qld) within the Barada Barna Native Title Area;

(b)    as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(c)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)    rights in relation to any agreement relating to the Barada Barna Native Title Area existing or entered into before the date on which these orders are made;

(ii)    rights to enter the Barada Barna Native Title Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

(iii)    to inspect, maintain and manage any works in the Barada Barna Native Title Area.

5.    The rights and interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233):

(a)    as the owner and operator of works within the meaning of the Electricity Act 1994 (Qld) (Works);

(b)    as an electricity entity under the Electricity Act 1994 (Qld) including rights to enter and pass through the Barada Barna Native Title Area to access, use, maintain, repair, replace, upgrade or otherwise deal with Works; and

(c)    under any lease, licence, easement, permit or agreement within the Barada Barna Native Title Area.

6.    The rights and interests of SunWater Limited (ACN 131 034 985) (SunWater) and Eungella Water Pipeline Pty Ltd (ACN 070 999 236) (Eungella Water Pipeline):

(a)    SunWater in:

(i)    Lot 18 on SP208194 (Easement in Gross 711426891); and

(ii)    Lot 23 on SP158749 (Easement in Gross No. 712091365)

(b)    Eungella Water Pipeline in:

(i)    Lot 18 on SP208194 (Easement in Gross 703081919);

(ii)    Lot 23 on GV148 (Easement in Gross No. 712201917 and Easement in Gross 711445437); and

(iii)    Lot 23 on SP158749 (Easement in Gross No. 703378535, Easement in Gross No. 712091266, and Easement in Gross No. 712091354).

7.    The rights and interests of:

(a)    Aurizon Network Pty Ltd (ACN 132 181 116) –

(i)    in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld);

(ii)    in relation to the watercourse crossing in the area of Lot 1 on SP 162566.

(b)    Aurizon Property Pty Ltd (ACN 145 991 724) as trustee of the reserve over Lot 72 on SP 137467; and

(c)    Aurizon Network Pty Ltd (ACN 132 181 116), Aurizon Property Pty Ltd (ACN 145 991 724) or Aurizon Operations Limited (ACN 124 649 967) under any lease, licence, easement, permit or agreement within the Barada Barna Native Title Area.

8.    The rights and interests of Anglo Coal (Grosvenor) Pty Ltd as holder of:

(a)    mining lease ML 70378 granted pursuant to the Mineral Resources Act 1989 (Qld);

(b)    mineral development licence MDL 273 granted pursuant to the Mineral Resources Act 1989 (Qld);

(c)    mineral development licence MDL 274 granted pursuant to the Mineral Resources Act 1989 (Qld); and

(d)    exploration permit EPC 552 granted pursuant to the Mineral Resources Act 1989 (Qld).

9.    The rights and interests of Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd as joint holders of:

(a)    exploration permit EPC 548 granted pursuant to the Mineral Resources Act 1989 (Qld);

(b)    exploration permit EPC 602 granted pursuant to the Mineral Resources Act 1989 (Qld); and

(c)    mineral development licences MDL 277 and MDL 377 granted pursuant to the Mineral Resources Act 1989 (Qld).

10.    The rights and interests of Moranbah North Coal Pty Ltd as holder of exploration permit EPC 706 granted pursuant to the Mineral Resources Act 1989 (Qld).

11.    The rights and interests of Anglo Coal (German Creek) Pty Ltd, Mitsui German Creek Investment Pty Limited and Jena Pty Ltd as joint holders of mining lease ML 1831 granted pursuant to the Mining Act 1968-1979 (Qld).

12.    The rights and interests of Moranbah North Coal Pty Ltd, NS Moranbah North Pty Ltd, Mitsui Moranbah North Investment Pty Ltd, NS Coal (Moranbah North) Pty Ltd, Jfema Moranbah North Pty Ltd and Kobelco Trading Australia Pty Ltd (formerly Shinsho Moranbah Coal Pty Ltd) as joint holders of mining lease 70108 granted pursuant to the Mineral Resources Act 1989 (Qld).

13.    The rights and interests of Anglo Coal (Grosvenor) Pty Ltd and Exxaro Australia Pty Ltd as the current lessees under Term Lease No.233945 over Lot 23 on Plan GV 148.

14.    The rights and interests of North Queensland Pipeline No.1 Pty Ltd and North Queensland Pipeline No.2 Pty Ltd in:

(a)    Petroleum Pipeline Licence #89; and

(b)    Easement in gross 709575803 (on Lot 18 on SP208194).

15.    The rights and interests of:

(a)    Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of the Exploration Permits for Coal numbered 667, 719, 722, 951, 1036 and 1052; and

(b)    Vale Coal Exploration Pty Ltd as holder of the Exploration Permits for Coal numbered 858 and 1146.

16.    The rights and interests of:

(a)    Peabody BB Interests Pty Ltd (ACN 116 402 352) as the holder of an interest in EPC 721, EPC 676, EPC 688 and EPC 850 granted pursuant to the Mineral Resources Act 1989 (Qld);

(b)    Peabody Coppabella Pty Ltd (ACN 095 976 042) as the holder of an interest in EPC 649, EPC 1199, MDL 494, ML 70161, ML 70163 and ML 70319 granted pursuant to the Mineral Resources Act 1989 (Qld);

(c)    Peabody West Burton Pty Ltd (ACN 117 316 695) as the holder of an interest in EPC 682 granted pursuant to the Mineral Resources Act 1989 (Qld);

(d)    Peabody West Walker Pty Ltd (ACN 117 316 739) as the holder of an interest in EPC 657 and EPC 666 granted pursuant to the Mineral Resources Act 1989 (Qld);

(e)    Peabody Moorvale West Pty Ltd (ACN 117 316 686) as the holder of an interest in MDL 495 granted pursuant to the Mineral Resources Act 1989 (Qld);

(f)    Millennium Coal Pty Ltd (ACN 089 566 021) as the holder of an interest in MDL 135 and MDL 137 granted pursuant to the Mineral Resources Act 1989 (Qld);

(g)    Peabody (Burton Coal) Pty Ltd (ACN 077 679 513) as the holder of an interest in ML 70109, ML 70256, ML 70257, ML 70258, ML 70259 and ML 70260 granted pursuant to the Mineral Resources Act 1989 (Qld); and

(h)    Peabody Energy Australia PCI Rush Pty Ltd (ACN 128 817 461) as the holder of an interest in EPC 1607 granted pursuant to the Mineral Resources Act 1989 (Qld).

17.    The rights and interests of the holder from time to time of mining lease ML 4738 granted under the Mining Act 1968-1975 (Qld) and administered under the Mineral Resources Act 1989 (Qld), and who at the date of this determination is comprised of Queensland Coal Pty Limited (ACN 000 003 921), Nippon Steel & Sumitomo Metal Australia Pty Ltd (ACN 001 445 049), Marubeni Coal Pty Ltd (ACN 009 932 236) and Sumisho Coal Development Queensland Pty Ltd (ACN 082 435 149).