FEDERAL COURT OF AUSTRALIA

McLennan on behalf of the Jangga People v State of Queensland [2013] FCA 795

BY CONSENT THE COURT ORDERS THAT:

1.    The orders of the Court made on 9 October 2012 (the orders) are varied by amending Schedule 1 to:

(a)    include in Part 2 a reference to Lot 1 on Plan AP6506;

(b)    delete the reference in Part 2 to Lot 4 (Pt) on Plan SP210553;

(c)    include in Part 2 a reference to “That part of Lot 4 on Plan SP210553 previously described as part of Lot 4 on Plan BL9”; and

(d)    substitute sheets 2, 4 and 5 of the determination map with the corresponding sheets in annexure “LJC10” to the affidavit of Lisa Joan Carmody affirmed on 25 January 2013,

so that the orders be now in the form annexed hereto and marked “A”.

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.    Each party to the proceeding is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

1.    The determination area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1 (the “Determination Area”).

2.    Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.

3.    The native title is held by the Jangga People described in Schedule 3 (the “native title holders”).

4.    Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:

(a)    other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b)    in relation to Water, the non-exclusive rights to:

(i)    hunt, fish and gather from the Water of the area;

(ii)    take and use the Natural Resources of the Water of the area; and

(iii)    take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

5.    Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 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 noncommercial communal purposes;

(f)    conduct ceremonies on the area;

(g)    be buried and bury native title holders, in the ground, 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.

6.    The native title rights and interests 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 paragraph 1 of Schedule 4.

7.    The native title rights and interests referred to in paragraphs 4(b) and 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

8.    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).

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

10.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests described in Schedule 4 (the “other interests”) is that:

(a)    the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and

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

11.    The native title is held in trust.

12.    The Bulganunna Aboriginal Corporation (ICN 7761), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

DEFINITIONS AND INTERPRETATION

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

“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);

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

“Natural Resources” means:

(a)    any animal, plant, fish and bird life found on or in the Determination Area; and

(b)    any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,

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

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

(b)    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);

“stock route” has the same meaning as in the Land Act 1994 (Qld);

“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.

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).

Schedule 1 – DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, to the extent that they are within the external boundary description as described in Part 3 below, and depicted on the determination map, excluding the areas described in Schedule 2.

Part 1 Exclusive areas

All of the land and waters described in the following tables and depicted in dark blue on the determination map.

Part 2 Non-exclusive areas

All of the land and waters described in the following tables and depicted in light blue on the determination map.

Part 3 External boundary description

Commencing at a point on a western boundary of Lot 1 on Plan AP10097 at Latitude 21.349144 S, and extending southerly, westerly, again southerly along the western boundaries of the said Lot 1 on Plan AP10097, Lot 1 on Plan AP14151, Lot 2 on Plan AP10097 and Lot 16 on Plan CP866443, to Latitude 21.385250° S; then generally south westerly through the following coordinate points:

Then south westerly to a northern boundary of Lot 8 on Plan GV807254 (Lenton Downs pastoral holding) at Longitude 148.018360° E, being a point on the boundary of Native Title Determination Application Q6033/99 Wiri People 3 (QC99/34). Then generally westerly and generally southerly along the northern and western boundaries of Lot 8 on Plan GV807254, and the western and southern boundaries of Lot 2 on Plan SP214117 (Dabin Pastoral holding) until Longitude 147.929977° E, also being boundaries of Q6033/99 Wiri People 3 (QC99/34). Then generally southerly, generally westerly, generally northerly and generally south easterly through the following coordinate points back to the commencement point:

Reference data and source:

REFERENCE DATUM – Geographical coordinates are in decimal degrees referenced to the Australian Geodetic Datum (GDA94).

•    External boundary data compiled by and sourced from the Department of Natural Resources & Mines (Queensland) (“DNRM”) Queensland Claim Activity Map dataset.

•    Non freehold cadastral data sourced from MapInfo Australia under license from DNRM (July 2012).

B.    Map of Determination Area

Schedule 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

For the avoidance of doubt, the areas described below are excluded from the Determination Area:

A.    The areas in this Part are excluded from the Determination Area on the grounds that at the time at which the native title determination application was made:

    these areas were the subject of one or more previous exclusive possession acts, as defined in s 23B of the Native Title Act 1993 (Cth), despite the fact that the areas, or parts of them, may have been subject to earlier acts that extinguished native title; and

    in relation to the areas in paragraph 1 of this Part, none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; and

    therefore, in accordance with s 61A of the Native Title Act 1993 (Cth), these areas could not be claimed.

1.    Tenure Based Exclusions (ss 23B(2) and 23B(3) Native Title Act 1993 (Cth)):

(a)    Lot 1 on Plan BL55;

(b)    Lot 1 on Plan CP882192;

(c)    Lot 7 on Plan CY23;

(d)    Lot 6 on Plan SM91;

(e)    Lot 2 on Plan CP845104;

(f)    Lot 2 (Pt) on Plan SP171918;

(g)    Lot 1 on Plan CP905226;

(h)    Lot 2 on Plan SP245736;

(i)    Lot 8 on Plan DC133;

(j)    Lot 35 on Plan M7213;

(k)    Lot 36 on Plan M7213;

(l)    Lot 1 on Plan MPH13507;

(m)    Lot 2 on Plan MPH13507;

(n)    Lot 1 on Plan MPH17;

(o)    Lot 3 on Plan BL54;

(p)    Lot 1 on Plan MPH20091;

(q)    Lot 20 (Pt) on Plan HLN250;

(r)    Lot 1 (Pt) on Plan PER2657;

(s)    Lot A on Plan AP20164;

(t)    Lot A on Plan AP20285;

(u)    Lot A (Pt) on Plan AP 7339; and

(v)    Lot A (Pt) on Plan AP14124.

2.    Public Works Based Exclusions:

(a)    The land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or s 23B(7) of the Native Title Act 1993 (Cth) and 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).

(b)    Specifically, and to avoid any doubt, the land and waters described in paragraph 2(a) immediately above includes the whole of the land and waters described as:

(i)    Lot 11 on Plan BL58; and

(ii)    Lot 13 (Pt) on Plan MRY51.

B.    Land and waters specifically excluded from the amended native title determination application filed on 19 July 2004, being:

    Lot 6 on Plan SM99;

    areas subject to application QG6242/98 Wiri People (QC98/05) as entered on the Native Title Register on 24 September 1999;

    areas subject to application QG6251/98 Wiri People 2 (QC98/11) as entered on the Native Title Register on 30 October 2000; and

    areas subject to application QG6033/99 Wiri People 3 (QC99/34) as entered on the Native Title Register on 12 September 2000.

C.    On the basis that native title has been extinguished and is not claimed, the parties have agreed that the excluded areas include any land or waters on which any permanent improvement consisting of:

(i)    a homestead, house, shed or other building;

(ii)    an airstrip;

(iii)    a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters’ tank or other water storage facility; or

(iv)    stock yards and trap yards,

has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral leases:

1.    Pastoral Development Holding 12/5189 comprising Lot 4 on Plan SP116046 and commonly known as Disney;

2.    Pastoral Development Holding 12/3821 comprising Lot 3821 on Plan PH1304 and commonly known as Gunjulla;

3.    Pastoral Development Holding 12/3279 comprising Lot 3279 on Plan PH1787 and commonly known as Ill-I-Ra (aka Bungobine);

4.    Pastoral Development Holding 30/682 comprising Lot 682 on Plan CP906890 and commonly known as Suttor Creek;

5.    Pastoral Holding 12/3366 comprising Lot 3366 on Plan PH1455 and commonly known as Amphion;

6.    Pastoral Holding 12/5282 comprising Lot 5282 on Plan PH1570 and commonly known as Bingeringo;

7.    Pastoral Holding 5/667 comprising Lot 667 on Plan PH1321 and commonly known as Mount Lookout;

8.    Pastoral Holding 12/5417 comprising Lot 10 on Plan BL49 and commonly known as Avon Downs;

9.    Pastoral Holding 12/5280 comprising Lot 3 on Plan SP147546 and commonly known as Billiwallah;

10.    Pastoral Holding 12/5059 comprising Lot 5059 on Plan PH386 and commonly known as Bundoba;

11.    Pastoral Holding 66/624 comprising Lot 5060 on Plan PH387 and commonly known as Camberwell;

12.    Pastoral Holding 12/691 comprising Lot 691 on Plan PH1291 and commonly known as Yacamunda;

13.    Pastoral Holding 12/3978 comprising Lot 3978 on Plan PH772 and commonly known as Dooyne;

14.    Pastoral Holding 12/642 comprising Lot 10 on Plan BL58 and commonly known as Frankfield;

15.    Pastoral Holding 5/5431 comprising Lot 4 on Plan SM7 and commonly known as Glen Easter;

16.    Pastoral Holding 5/5042 comprising Lot 7 on Plan SM92 and commonly known as Mount Wyatt;

17.    Pastoral Holding 5/5432 comprising Lot 5 on Plan SM7 and commonly known as Sellheim;

18.    Pastoral Holding 5/1496 comprising Lot 1496 on Plan CP851494 and commonly known as Glendon;

19.    Pastoral Holding 12/3291 comprising Lot 1 on Plan SP147546 and commonly known as Goodoawada;

20.    Pastoral Holding 12/3235 comprising Lot 3235 on Plan PH752 and commonly known as Old Twin Hills;

21.    Pastoral Holding 12/5269 comprising Lot 5269 on Plan PH1533 and commonly known as Waminda;

22.    Pastoral Holding 12/656 comprising Lot 656 on Plan SP138788 and commonly known as Lanark;

23.    Pastoral Holding 12/2522 comprising Lot 1 on Plan AY31 and commonly known as Larne;

24.    Pastoral Holding 11/2835 comprising Lot 1 on Plan MRY54 and commonly known as McGregor Creek;

25.    Pastoral Holding 11/668 comprising Lot 10 on Plan SM79 and Lot 6 on Plan SM86 and commonly known as Mount McConnel;

26.    Pastoral Holding 11/3323 comprising Lot 1 on Plan CY20 and commonly known as Panitya;

27.    Pastoral Holding 5/2208 comprising Lot 1 on Plan DK244 and commonly known as Pinang;

28.    Pastoral Holding 0/221638 comprising Lot 18 on Plan SP208194 and commonly known as Teviot Brook;

29.    Pastoral Holding 5/4779 comprising Lot 4779 on Plan PH1806 and commonly known as Ukalunda;

30.    Pastoral Holding 12/3309 comprising Lot 3309 on Plan PH1532 and commonly known as Urella;

31.    Pastoral Holding 12/3615 comprising Lot 3615 on Plan PH681 and commonly known as Wyarra (aka Why Not);

32.    Preferential Pastoral Holding 5/4969 comprising Lot 3 on Plan CP851492 and commonly known as Arundel;

33.    Preferential Pastoral Holding 11/3404 comprising Lot 9 on Plan MRY36 and commonly known as Danae;

34.    Preferential Pastoral Holding 12/5068 comprising Lot 5068 on Plan PH449 and commonly known as Durdham;

35.    Preferential Pastoral Holding 5/4970 comprising Lot 5 on Plan SM84 and commonly known as Gunnadoo (aka Cramoise);

36.    Preferential Pastoral Holding 12/5086 comprising Lot 5086 on Plan SM100 and commonly known as Kenilworth;

37.    Preferential Pastoral Holding 12/5078 comprising Lot 5078 on Plan PH955 and commonly known as Llanarth;

38.    Preferential Pastoral Holding 11/3459 comprising Lot 1 on Plan MRY40 and commonly known as Startlemere;

39.    Preferential Pastoral Holding 12/5070 comprising Lot 5070 on Plan PH1056 and commonly known as Rossmore;

40.    Preferential Pastoral Holding 12/5088 comprising Lot 5088 on Plan SM101 and commonly known as Warrigal;

41.    Preferential Pastoral Holding 12/3408 comprising Lot 1 on Plan AY27 and commonly known as Wilandspey;

42.    Stud Holding 12/637 comprising Lot 637 on Plan PH1980 and commonly known as Elgin Downs;

43.    Term Lease (pastoral) 0/232176 comprising Lot 1 on Plan SM15 and commonly known as Avalon;

44.    Term Lease (pastoral) 0/232169 comprising Lot 1510 on Plan SP171920 and commonly known as Cerito;

45.    Term Lease (pastoral) 0/232171 comprising Lot 3540 on Plan PH2135 and commonly known as Rosetta Creek;

46.    Term Lease (pastoral) 0/232167 comprising Lot 3388 on Plan PH2112 and commonly known as Bilyana;

47.    Term Lease (pastoral) 0/232179 comprising Lot 3570 on Plan PH2142 and commonly known as Bungobine;

48.    Term Lease (pastoral) 0/232154 comprising Lot 636 on Plan PH2182 and commonly known as Eaglefield;

49.    Term Lease (pastoral) 0/232153 comprising Lot 1816 on Plan PH1315 and commonly known as Emin;

50.    Term Lease (pastoral) 0/232178 comprising Lot 2 on Pan SM9 and Lot 1 on Plan SM10 and commonly known as Bobby Dazzler Creek;

51.    Term Lease (pastoral) 0/233595 comprising Lot 1943 on Plan SP221555 and commonly known as Verbena;

52.    Term Lease (pastoral) 0/231890 comprising Lot 3450 on Plan PH2118 and commonly known as Caerphilly;

53.    Term Lease (pastoral) 0/231889 comprising Lot 7 on Plan MRY39 and Lot 9 on Plan MRY50 and commonly known as Moonlight Creek;

54.    Term Lease (pastoral) 0/234678 comprising Lot 5305 on Plan SP240414 and commonly known as Mount Dilligen;

55.    Term Lease (pastoral) 0/234631 comprising Lot 3 on Plan SM93 and commonly known as Scartwater;

56.    Term Lease (pastoral) 0/234397 comprising Lot 3272 on Plan SP237696 and commonly known as Wirralie; or

57.    Term Lease (pastoral) 0/235359 comprising Lot 689 on Plan SP251696 and commonly known as Suttor Creek North.

Schedule 3 – NATIVE TITLE HOLDERS

The native title holders are the Jangga people, being the descendants of one or more of the following people:

(a)    Charlie Tiers;

(b)    Dick Hegarty, also known as Dinduk;

(c)    Pompey Earl;

(d)    Mick Havilah (also known as Mick Cotherstone) or his brother Johnny Havilah;

(e)    Albert Twist;

(f)    Dick Cook and his wife / partner Lilly Cook;

(g)    Charlie Pinkipie and his wife / partner Judy Pinkipie; or

(h)    Billy (also known as King Billy) and his wife / partner Clara (also known as Queen Clara).

Schedule 4 – OTHER INTERESTS IN THE DETERMINATION AREA

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

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

(a)    the Jangga Protected Areas indigenous land use agreement (body corporate agreement) between Colin McLennan, Thomas Brown, Dorothy Hustler, Marie McLennan, James Gaston, and Tyrone Tiers on their own behalf and on behalf of the Jangga people, the Bulganunna Aboriginal Corporation (ICN 7761), the State of Queensland, and the Bulganunna Aboriginal Corporation RNTBC, which was authorised by the native title claim group on 15 August 2012 and executed by Colin McLennan on 21 August 2012, Thomas Brown on 20 August 2012, Dorothy Hustler on 14 September 2012, Marie McLennan on 23 August 2012, James Gaston on 20 August 2012 and Tyrone Tiers on 14 September 2012, the Bulganunna Aboriginal Corporation (ICN 7761) on 30 August 2012, and the State of Queensland on 6 September 2012 and 17 September 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(b)     the Jangga People – Ergon Energy agreement between Colin McLennan, Thomas Brown, Dorothy Hustler, Marie McLennan, James Gaston, and Tyrone Tiers on their own behalf and on behalf of the Jangga people, the Bulganunna Aboriginal Corporation (ICN 7761), Ergon Energy Corporation Limited (ACN 087 646 062), and the Bulganunna Aboriginal Corporation RNTBC which was authorised by the native title claim group on 15 August 2012 and executed by Colin McLennan on 21 August 2012, Thomas Brown on 20 August 2012, Dorothy Hustler on 14 September 2012, Marie McLennan on 23 August 2012, James Gaston on 30 August 2012 and Tyrone Tiers on 14 September 2012, the Bulganunna Aboriginal Corporation (ICN 7761) on 30 August 2012, and Ergon Energy Corporation Limited on 13 September 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(c)    the Jangga People and Charters Towers Regional Council, Isaac Regional Council and Whitsunday Regional Council indigenous land use agreement (QI2007/007) between Thomas Brown, James Gaston, Dorothy Hustler, Colin McLennan, Marie McLennan and Tyrone Tiers as the registered native title claimants for Native Title Determination Application QUD6230/98 Jangga People and Isaac Regional Council, Charters Towers Regional Council and Whitsunday Regional Council entered on the Register of Indigenous Land Use Agreements on 11 February 2010;

(d)    the Jangga/Amphion and Bingeringo ILUA between the Applicant and Neil Alan Angus, Narelle Gaye Angus and Luke Gregg Angus, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(e)    the Jangga/Arundel ILUA between the Applicant and Susan Bessie Shann and Harry Athol Shann, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(f)    the Jangga/Avalon, Cerito, Mount Lookout and Rosetta Creek ILUA between the Applicant and Edward Peter Mason, Mora Ellen Mason and Valda Ann Mason, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(g)    the Jangga/Avon Downs ILUA between the Applicant and Richard Hugh Simmons and Robyn Jane Simmons, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(h)    the Jangga/Billiwallah ILUA between the Applicant and William Dale Appleton and Kristine Margaret Appleton, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(i)    the Jangga/Bilyana, Bungobine, Eaglefield and Emin ILUA between the Applicant and Edward Peter Mason, Mora Ellen Mason, Valda Ann Mason, Eagle Field Pastoral Company Pty Ltd, Rhodes Creek Pastoral Company Pty Ltd, Emin Pastoral Company Pty Ltd and Bilyana Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(j)    the Jangga/Bobby Dazzler Creek ILUA between the Applicant and Mora Ellen Mason, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(k)    the Jangga/Bundoba, Camberwell, Verbena and Yacamunda ILUA between the Applicant and John Barry Scott, Coral May Scott, Owen Bryon Scott and Gavin Wayne Scott, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(l)    the Jangga/Caerphilly ILUA between the Applicant and Blue Sky Trading (NQ) Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(m)    the Jangga/Danae ILUA between the Applicant and Robert Andrew Andison, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(n)    the Jangga/Disney ILUA between the Applicant and Paul Joseph Kirkwood, Margaret Agnes Kirkwood and Timothy John Kirkwood, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(o)    the Jangga/Dooyne ILUA between the Applicant and Coovin Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(p)    the Jangga/Durdham ILUA between the Applicant and Daniel John Turley and Marie Ann Turley, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(q)    the Jangga/Elgin Downs ILUA between the Applicant and Elgin Downs Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(r)    the Jangga/Frankfield ILUA between the Applicant and Frankfield Pastoral Company CQ Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(s)    the Jangga/Glen Easter, Mount Wyatt and Sellheim ILUA between the Applicant and Dooruna Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(t)    the Jangga/Glendon ILUA between the Applicant and George William Nicolson, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(u)    the Jangga/Goodoawada, Old Twin Hills and Waminda ILUA between the Applicant and Edwin Francis Dennis, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(v)    the Jangga/Gunjulla ILUA between the Applicant and Stratford Pastoral Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(w)    the Jangga/Gunnadoo (aka Cramoisie) ILUA between the Applicant and Central (Qld) Holdings Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(x)    the Jangga/Ill-I-Ra (aka Bungobine) ILUA between the Applicant and John Peter Pastega and Helen Pastega, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(y)    the Jangga/Kenilworth ILUA between the Applicant and Kelvin Cedric Maloney, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(z)    the Jangga/Lanark ILUA between the Applicant and New Twin Hills Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(aa)    the Jangga/Larne ILUA between the Applicant and Brian Allan Corbett and Lorraine Ellen Corbett, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(bb)    the Jangga/Llanarth ILUA between the Applicant and William Terrence Kenny, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(cc)    the Jangga/McGregor Creek ILUA between the Applicant and Colin Deane Hewitt and Linda Elizabeth Hewitt, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(dd)    the Jangga/Moonlight Creek ILUA between the Applicant and Robert Duckett and Lillian Mary Duckett, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(ee)    the Jangga/Mount Dillingen ILUA between the Applicant and Margaret Mary Flohr and Ross William Flohr, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(ff)    the Jangga/Mount McConnel ILUA between the Applicant and Meryl Elizabeth Glenwright, Dawn Elizabeth Glenwright and Jon Alan Glenwright, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(gg)    the Jangga/Panitya and Startlemere ILUA between the Applicant and Christopher William Allingham, Lorna Patricia Allingham and Ainslie Bruce Mackenzie Templeton, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(hh)    the Jangga/Pinang ILUA between the Applicant and Jonathon Charles Philip and Margaret Elvey Philp, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(ii)    the Jangga/Rossmore ILUA between the Applicant and Beryl Angus Hall, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(jj)    the Jangga/Scartwater ILUA between the Applicant and Reginald Jospeh Pedracini, Beverley Isabell Jane Pedracini and Ian Benjamin Pedracini, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(kk)    the Jangga/Suttor Creek ILUA between the Applicant and Henry Raymond Gillham and William Raymond Gillham, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(ll)    the Jangga/Teviot Brook ILUA between the Applicant and Allan Gordon Homer Williams, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(mm)    the Jangga/Ukalunda ILUA between the Applicant and George Edward Whalan and Marion Catherine Whalan, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(nn)    the Jangga/Urella ILUA between the Applicant and Dale Gordon Frincis Dennis and Lorissa Dennis, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(oo)    the Jangga/Warrigal ILUA between the Applicant and Richard McAulay Powell, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(pp)    the Jangga/Wilandspey ILUA between the Applicant and Ralph Eric Martel, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;

(qq)    the Jangga/Wirralie ILUA between the Applicant and Joyce Iris Crocker, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate; and

(rr)    the Jangga/Wyarra (aka Why Not) ILUA between the Applicant and Stephen John Plath and Jennifer Maria Plath, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.

2.    The rights and interests of the holders of any authorities, licences, permits or allocations under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.

3.    The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act, including the following leases and permits:

4.    The rights and interests of the State of Queensland and the holders of any leases, agreements, licences, permits or authorities pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of:

(a)    Wilandspey Conservation Park; and

(b)    Blackwood National Park.

5.    The rights and interests of the State of Queensland and any other person (as applicable) existing under or by reason of the force and operation of the Forestry Act 1959 (Qld) and any subordinate legislation, declarations or management plans made under that Act.

6.    The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld) or under the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld) in the Determination Area as may be current as at the date of the determination.

7.    The rights and interests of Xstrata Coal Queensland Pty Ltd (ACN 098 156 702):

(a)    as the holder of mining leases ML 4748, ML 4771, ML 4774 and ML 4761 granted under the Mineral Resources Act 1989 (Qld);

(b)    as the holder of exploration permits EPC 727, EPC 976 and EPC 977 granted under the Mineral Resources Act 1989 (Qld);

(c)    as lessee under pastoral holding PDH 5/3807 on Lot 3 on Plan SP171922;

(d)    arising under the Cultural Heritage Management Plan Implementation Agreement - Suttor Creek Mining Lease between Xstrata Coal Queensland Pty Ltd and the Applicant dated 30 November 2004;

(e)    arising under the Deed Regarding the Grant of Mining Lease Surface Area pursuant to s 31 of the Native Title Act 1993 (Cth) for ML 4761 between Xstrata Coal Queensland Pty Ltd, ICRA NCA Pty Limited, Sumisho Coal Australia Pty Ltd, Itochu Coal Resources Australia Pty Limited, the Applicant and the State of Queensland dated 13 December 2005 (the “Section 31 Deed”) and associated “Ancillary Agreement” as defined in the Section 31 Deed between Xstrata Coal Queensland Pty Ltd, ICRA NCA Pty Limited, Sumisho Coal Australia Pty Ltd, Itochu Coal Resources Australia Pty Limited and the Applicant; and

(f)    arising under the Suttor Creek Access Road Agreement between Xstrata Coal Queensland Pty Ltd and Colin McLennan, Thomas Brown, Dorothy Hustler, Marie McLennan, and James Gaston on their own behalf and on behalf of the Jangga People Native Title Claim Group dated 6 February 2004, and under the Deed of Confirmation and Assumption for the Suttor Creek Access Road between Xstrata Coal Queensland Pty Ltd, Paul Butterworth and Tyrone Tiers dated 30 November 2004.

8.    The rights and interests of Ergon Energy Corporation Limited (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 Determination 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 Determination Area existing or entered into before the date of the determination;

(ii)    rights to enter the Determination 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 Determination Area.

9.    The rights and interests of Queensland Electricity Transmission Corporation Limited (ACN 078 849 233) trading as Powerlink Queensland as an electricity entity exercising statutory functions, power or rights, and as the owner and operator of electricity transmission facilities and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area in order to access, use, maintain, repair, replace, upgrade, or otherwise deal with those facilities and infrastructure in accordance with the law.

10.    The rights and interests of Isaac Regional Council, Charters Towers Regional Council and Whitsunday Regional Council including any rights the Councils, their employees, agents or contractors have:

(a)    under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within their local government area, as defined in the Local Government Act 2009 (Qld);

(b)    as the:

(i)    lessor under any leases which were entered into as at the date of the determination;

(ii)    grantor of any licences or other rights and interests which were granted as at the date of the determination;

(iii)    holder of any estate or interest in land, and as trustee of any reserves, that exist in the Determination Area as at the date of the determination;

(c)    as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the determination, including but not limited to:

(i)    dedicated roads operated by Council;

(ii)    gravel pits operated by Council;

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

(iv)    water pipelines and other water supply infrastructure;

(v)    drainage facilities;

(vi)    cemetery and cemetery related facilities; and

(d)    to enter the land described in paragraph 10 to:

(i)    exercise any of the rights and interests referred to in paragraph 10;

(ii)    inspect, maintain and repair the infrastructure, facilities and other improvements referred to in sub-paragraph 10(c); 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.

11.    The rights and interests of QCoal Pty Ltd (ACN 010 911 234) and any Related Body Corporate or any Related Entity (as those terms are defined in the Corporations Act 2001 (Cth)):

(a)    as the holder of exploration permits EPC 614, EPC 739 and EPM 18546 granted under the Mineral Resources Act 1989 (Qld);

(b)    as the lessee under term lease described as TL 0/235359 over Lot 689 on Plan SP251696;

(c)    arising under the Cultural Heritage Management Plan between Byerwen Coal Pty Ltd and Colin McLennan, James Gaston, Thomas Brown, Tyrone Tiers, Dorothy Hustler and Marie McLennan on their own behalf and on behalf of the Jangga People dated 23 June 2011; and

(d)    arising under the Deed Regarding the Grant of Mining Leases 70434 and 70436 pursuant to section 31(1)(b) of the Native Title Act 1993 (Cth) between the State of Queensland, the Jangga People and Byerwen Coal Pty Ltd dated 21 July 2011 (the “Section 31 Deed”) and associated “Ancilliary Agreement” as defined in the Section 31 Deed between Byerwen Coal Pty Ltd and the Jangga People.

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

(a)    as the owner or operator of telecommunications facilities within the Determination 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 telecommunications 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 Determination Area in performance of their duties; and

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

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

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

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

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

2.    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 or the Commonwealth.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    On 9 October 2012, I made a consent determination in these proceedings: McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082. Subsequently, the State of Queensland ascertained that there were three errors in the conveyancing descriptions forming part of the consent determination. It is generally the responsibility of the State or Territory Government party to ascertain and properly identify the title details of the lands intended to be affected by, or excluded from, a consent determination for inclusion in it. The State applied, by an interlocutory application filed on 2 July 2013, to correct those errors. All of the parties consent to the corrections being made.

The errors

2    The State identified that one parcel, Lot 1 on Plan AP6506, which was within the external boundary of the determination area, should have been included as an area over which non-exclusive native title rights and interests were recognised. However, that parcel was mistakenly omitted from being so described.

3    The second parcel, being part of Lot 4 on Plan SP210553, was incompletely described. The third parcel, being Lot 2 on Plan SP245736, was listed as an area excluded in schedule 2 of the determination. However, that parcel was identified on the determination map included in the orders made on 9 October 2012 by its former lot numbering.

Consideration

4    Under r 39.05(f) of the Federal Court Rules 2011 (Cth) the Court may vary or set aside a judgment or order after it has been entered, if the party in whose favour it was made consents. Here, all parties, including the applicant, consent.

5    I raised with the parties whether it might be better to make the order pursuant to s 13(5)(b) of the Native Title Act 1993 (Cth). However, the State pointed out that this would involve the necessity of undertaking the notification procedure in ss 61, 63 and 66 of the Act for the reasons given by North J in Lovett v Victoria (No 4) (2011) 195 FCR 198 at 200 [7]-[9]. Given the relatively minor nature of the variations in the scheme of the consent determination as a whole, and the consent of all the parties, it is manifestly in the interests of justice that a speedy and efficient procedure be utilised with the minimum of expense.

6    Accordingly, I am satisfied by the evidence in the affidavit of Lisa Joan Carmody affirmed on 25 January 2013 (but filed on 2 July 2013) that a variation should be made in the form of the amended order annexed to her affidavit. I will settle the final form of that order in chambers as I suggested in the course of argument today.

Associate:

Dated:    8 August 2013

SCHEDULE

QUD 6230 of 1998

BETWEEN:

COLIN MCLENNAN, THOMAS BROWN, JAMES GASTON, DOROTHY HUSTLER, MARIE MCLENNAN AND TYRONE TIERS ON BEHALF OF THE JANGGA PEOPLE

Applicant

AND: