FEDERAL COURT OF AUSTRALIA

Weatherall on behalf of the Kooma People #4 Part A v State of Queensland [2014] FCA 662

THE COURT ORDERS THAT:

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 87A 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 proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.    The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1.

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

5.    Subject to paragraphs 8, 9 and 10 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 in the area; and

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

for personal, domestic and non-commercial communal purposes.

6.    Subject to paragraphs 8, 9 and 10 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 and use 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.

7.    Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 3 of Schedule 1 are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

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

(c)     teach on the area the physical and spiritual attributes of the area.

8.    The native title rights and interests are subject to and exercisable in accordance with:

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

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

9.    The native title rights and interests referred to in paragraphs 5(b), 6 and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

10.    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).

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

12.    The relationship between the native title rights and interests described in paragraphs 5, 6 and 7 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.

13.    Upon the determination taking effect:

(a)    The native title is held in trust;

(b)    The Kooma Aboriginal Corporation (ICN: 8053), 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.

Definitions and Interpretation

14.    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;

“Local Government Act” has the meaning in the Local Government Act 2009;

“Local Government Area” has the meaning in the Local Government Act 2009;

“Natural Resources” means:

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

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

that have traditionally been taken and used by the native title holders, 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 (except ochre taken in accordance with the traditional laws and customs of the native title holders) 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);

“Pastoral Respondents” means Hugh Arthur Cameron, Marcia Joyce Cameron, Jeanette Coral Murphy, Owen Douglas Murphy, Kathleen Mary Margaret O’Brien, Neville Laurence O’Brien, Timothy Ernest Perrottet, William Malcolm Perrottet, William James Reynolds, John Charles Denyer Warren and Rosemary Susan Warren.

“Pastoral Respondent Implementation Agreement” means the agreement referred to in paragraph 1 of Schedule 4.

“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).

AND THE COURT MAKES THE FOLLOWING FURTHER ORDER:

15.    In the event that the terms of the Pastoral ILUA Implementation Agreement have not been performed by 31 October 2014 the native title holders (through the Kooma Aboriginal Corporation ICN 8053) or any of the Pastoral Respondents have liberty to apply on 14 days’ notice to a single judge of the Court to address any changes to paragraph 12 above as it relates to the relationship between the native title rights and interests and the other interests of the Pastoral Respondents set out in paragraphs 1 to 9 of Schedule 4 to the determination.

Schedule 1 — DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Parts 1, 2 and 3 below, to the extent that they are within the External Boundary Description as described in Part 4 below, and depicted in the map, excluding the areas described in Schedule 2.

Part 1 — Exclusive Areas:

All of the land and waters described in column 1 of the following table and shown on the determination map described in column 2 of the following table:

Part 2 — Non-Exclusive Areas:

(a)    The land and waters comprised of the lots and part lots listed in column 1 of the table below and shown on the determination map described in column 2.

(b)     The waters within the External Boundary Description including but not limited to:

(i)    Warrego River;

(ii)    Culgoa River;

(iii)    Nebine Creek;

(iv)    Mungallala Creek;

(v)    Wallam Creek;

(vi)    Widgeegoara Creek.

Part 3 — Non-Exclusive Town Areas:

Part 4 – External Boundary Description:

The area covers all the lands and waters within:

    Lot 3 on UL33; and

External Boundary Area A

Commencing at Latitude 28.227229° South, Longitude 146.206520° East and extending north-westerly to the intersection with the centreline of Widgeegoara Creek at Latitude 28.218790° South, then generally northerly and generally north-westerly along the centreline of that creek to a unnamed tributary at Latitude 27.620780° South; then generally north-westerly along that unnamed tributary and other unnamed tributaries passing through the following coordinate points.

Then north-westerly and generally north-easterly passing through the following coordinate points.

Then generally south-easterly passing through the following coordinate points to a point on Paterson Creek south-west of Grassmere Homestead at Latitude 27.541193° South, Longitude 147.137543° East.

Then north-easterly to the junction of Mungallala Creek and Tomoo Creek, south of Ashling Homestead; then south-easterly to the junction of Wallam Creek and Neabul Creek; then easterly to a point south of Beralga Homestead at Latitude 27.754205° South, Longitude 147.982681° East; then generally south-easterly to intersect the eastern bank of the Culgoa River at Longitude 148.247688° East passing through the following co-ordinate points.

Then generally south-westerly along the eastern bank of that river to its intersection with the Queensland / New South Wales State Border then westerly along that border to Longitude 147.327708° East; then generally north westerly, passing through the following co-ordinate points.

Then north- westerly back to the commencement point.

Note:

The determination area does not include any land or waters not previously claimed.

The determination area does not include any land and waters subject to:

    QUD6027/2001 Gunggari People as determined by the Federal Court 22 June 2012.

Data Reference and source

    External Boundary Part A compiled by Queensland South Native Title Services, based on data sourced from the Commonwealth of Australia, NNTT May 2014.

    Rivers, Creeks and tributaries based on 1:250k Topographic vector data © Commonwealth of Australia, (Geoscience Australia) 2003.

    Culgoa River where possible based on cadastral data sourced from Department of Natural Resources and Mines (Qld) February 2014)

    Lot reference based on cadastral data sourced from Department of Natural Resources and Mines (Qld) May 2014.

Reference datum

Geographical coordinates are based on spatial data 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 to 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.

B.    Map of Determination Area

Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA

The areas in this Schedule 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

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

Public Works Based Exclusions:

1.    The land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is 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).

2.    Specifically, and to avoid any doubt, the land and waters described in paragraph 1 immediately above includes, but is not limited to the whole of the land and waters described as:

(a)    Lot 35 on BLM522;

(b)    Lot 54 on SP135745; and

(c)    Lot 5 on BLM1209.

Schedule 3 — NATIVE TITLE HOLDERS

1.    The native title holders are the Kooma People. The Kooma People are those Aboriginal people who are descended from one or more of the following people:

(a)    Maggie of Bendena;

(b)    Kitty of Bollon;

(c)    Sarah of Fernlee;

(d)    Mary Button of Murra Murra;

(e)    Susan Mitchell;

(f)    Annie Murray;

(g)    Julia Powell; or

(h)    Lucy Sheridan.

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 Grace Weatherall, Cheryl Buchanan, Bill Chapman, Clarence Colliss, Annette Daisy, Brett Leavy, Rosemary Lucas, Angus Mitchell, Jack Nelson and Mick Speedy (‘the Kooma #4 Applicant’); the Kooma Aboriginal Corporation ICN 8053; and Hugh Arthur Cameron, Marcia Joyce Cameron, Jeanette Coral Murphy, Owen Douglas Murphy, Kathleen Mary Margaret O’Brien, Neville Laurence O’Brien, Timothy Ernest Perrottet, William Malcolm Perrottet, William James Reynolds, John Charles Denyer Warren and Rosemary Susan Warren (‘the Pastoral Respondents’) as parties to the Pastoral ILUA Implementation Agreement.

2.    The rights and interests of Renton Mark Bredhauer and Anne Elizabeth Bredhauer under SH 15/3764 comprising part of Lot 4 on BAN100 as shown on the maps at Schedule 1(B) and known as ‘Claverton.’

3.    The rights and interests of Hugh Arthur Cameron and Marcia Joyce Cameron under TL 0/234977 comprising part of Lot 5105 on PH595 as shown on the maps at Schedule 1(B) and known as ‘Rundalua.’

4.    The rights and interests of John Sinclair Leslie Hill under TL 0/217879 comprising Lot 9 on MGL47 known as shown on the maps at Schedule 1(B) and known as ‘Boanbirra.’

5.    The rights and interests of Jeanette Coral Murphy and Owen Douglas Murphy under PH708 (PPH 10/5140) comprising part of Lot 5140 on PH708 as shown on the maps at Schedule 1(B) and known as ‘Sherwood (aka Karatang).’

6.    The rights and interests of Kathleen Mary Margaret O'Brien and Neville Laurence O'Brien under PO 0/214580 comprising Lot 4 on NB2 as shown on the maps at Schedule 1(B) and known as ‘Santa Fe.’

7.    The rights and interests of Timothy Ernest Perrottet and William Malcolm Perrottet under PH 39/3940 comprising Lot 4 on BLM1089 as shown on the maps in Schedule 1(B) and known as ‘Argyle.’

8.    The rights and interests of William James Reynolds under:

(a)    PH 39/924 comprising Lot 924 on SP254476 as shown on the maps in Schedule 1(B) and known as ‘Brenda’; and

(b)    PH 39/3900 comprising Lot 3 on BLM255 as shown on the maps in Schedule 1(B) and known as ‘Brenda East.’

9.    The rights and interests of John Charles Denyer Warren and Rosemary Susan Warren under PPH 10/5244 comprising part of Lot 5244 on PH1377 as shown on the maps in Schedule 1(B) and known as ‘Kalyan’.

10.    The rights and interests of Telstra Corporation Limited ACN 051 755 566:

(a)    as the owner or operator of telecommunications facilities installed 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 existing and new telecommunication facilities, including cabling, customer terminal sites, customer radio sites and ancillary facilities;

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities including cabling, customer terminal sites, customer radio sites, and ancillary facilities;

(c)    for its employees, agents or contractors to access the Determination Area for the purposes of exercising the rights in (i)(ii)and (iii) above in respect of telecommunication facilities in and in the vicinity of the Determination Area;

(d)    under any licences, leases, access agreements or easements relating to its telecommunications facilities in the Determination Area.

11.    The rights and interests of the Paroo Shire Council, Balonne Shire Council, Maranoa Regional Council and Murweh Shire Council (“the Councils”) as the local governments for that part of the Determination Area within their respective Local Government Areas, including:

(a)    their powers, functions, responsibilities and jurisdiction under Local Government Acts;

(b)    their rights and interests in land or waters within the Determination Area including under any lease, license, access agreement, easement or reserve in the Determination Area;

(c)    the rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;

(d)    the rights under any agreements between the Councils and third parties which relate to land or water in the Determination Area; and

(e)    the rights of their employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d).

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

13.    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.

14.    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 as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(a)    stock routes;

(b)    beds, banks and foreshores of waterways and

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

15.    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 Commonwealth.

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

REASONS FOR JUDGMENT

The application

1    The application before the Court is for a determination of native title on behalf of the Kooma People. The application was filed on 18 November 2011 by Grace Weatherall, Cheryl Buchanan, Bill Chapman, Clarence Collis, Annette Daisy, Brett Leavy, Rosemary Lucas, Angus Mitchell, Jack Nelson and Mick Speedy (“the applicant”) and is known as Kooma People #4.

2    The Court will make orders declaring that the Kooma people were and remain the traditional owners of the land in the claim area. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has existed since before European settlement.

3    On 9 April 2014, I made orders dividing the claim area into two parts: Kooma People #4 Part A and Kooma People #4 Part B. Consequently, an amended native title determination application (“the application”) was filed on 11 June 2014. The determination application before the Court today relates to the area covered by Part A.

4    The present claim area was the subject of a number of former native title determination applications, including QUD 6031 of 1998 (Kooma People), QUD 6012 of 2002 (Kooma People #2) and QUD 6013 of 2002 (Kooma People #3). Those applications have been dismissed, so that there are no claims which overlap Part A.

5    The determination is in respect of the land and waters of an area of approximately 31,865 square kilometres in southwest Queensland, and is identified in Schedule 1 of the agreement (“the agreement”) under s 87A of the Native Title Act 1993 (Cth). The claim area includes the area between the towns of Cunnamulla in the west, Charleville in the north, St George to the east and the New South Wales border. The towns of Dirranbandi and Hebel are included in the claim area, as is the town of Bollon.

6    The State of Queensland, Telstra Corporation, the Balonne Shire Council, the Murweh Shire Council, the Maranoa Regional Council and various pastoralists are respondents to the application.

The Kooma people, their society and history

7    The evidence relied upon by the applicant consists of 10 affidavits sworn by the members of Kooma People ranging in age from 42 to 75 years and various historical records, ethnographic accounts and anthropological reports.

8    The affidavits were given by Cozette Branfield, Herbert Wharton, Grace Weatherall, William Hooper, Jack Nelson, Geoffrey Drury, Cowboy Clarence Colliss, Lawrence Anderson, Bill Speedy and Cheryl Buchanan.

9    The most recent of anthropological reports dated 5 August 2011 was prepared by Dr Anna Kenny. There is also a linguistic report prepared by Mr Paul Black and an archaeology report by Mr Tony Eales.

10    I cannot adequately summarise all of the evidence before the Court in the space available to me. That evidence is thorough. The experts’ reports and the affidavits are important, not only for the case, but as a record of the history of the Kooma People, and deserve to be read in full. I will briefly summarise some of the material.

11    The holders of the native title rights and interests are the Kooma People. The Kooma People are those Aboriginal people who are descended from one or more of the following ancestors:

(a)    Maggie of Bendena;

(b)    Kitty of Bollon;

(c)    Sarah of Fernlee;

(d)    Mary Button of Murra Murra;

(e)    Susan Mitchell;

(f)    Annie Murray;

(g)    Julia Powell; or

(h)    Lucy Sheridan.

12    The evidence establishes that at sovereignty, the Kooma People were a people with a distinct dialect and territory. They were linked to neighbouring groups through language and social and cultural practices, but were recognised as the exclusive occupants of their own territory under the laws and customs of the region.

13    The Kooma People were, at the time of first contact, a distinct group that derived their rights to the country through patrilineal descent, totemic associations and birth place. Their rights under their traditional laws and customs included speaking for country, occupying the country and using natural resources of the country and the right to take care of the country.

14    Sustained contact between Europeans and Kooma People started to occur within the claim area from the mid 1840s. The first documented European contacts with Kooma People in the claim area were by the explorer, Thomas Mitchell, in 1846 and then Edmund Kennedy in 1847. Mitchell stated that:

Their food consisted of fish of the river, ducks and the small indigenous melon, Cucumber pubescents, which grew in such abundance, that the whole country seemed stewed with the fruit, then ripe, and of which the natives eat great quantities, and were very fond.

15    The Kooma People were described in early ethnographic and other accounts by various names and spellings, including “Guwamu” and “Koamu”, amongst others.

16    In the 1850s, squatters started to occupy land in the claim area. Kooma People were recorded as actively and fiercely resisting the intrusion of white settlers.

17    Although Kooma People fought the incursion into their country, eventually they had to adapt to the new circumstances, taking up work and residence in pastoral leases or in townships. Many Kooma families found employment and lived on pastoral stations. Nearly all the Kooma apical ancestors worked on or near pastoral stations and townships in the region. Through work and residence on or near pastoral leases, Kooma People maintained a continued connection to the land.

18    By the end of the 19th century, the majority of Kooma People appear to have been incorporated into the pastoral industry or as station workers living in camps located on the pastoral stations. Blake wrote about this period:

As pastoralists moved their sheep and cattle onto hunting grounds and waterholes, Aboriginals were forced to camp near station homesteads. In return for tasks undertaken, such as mustering by the men and cleaning and cooking by the women, they were issued with meagre rations.

19    In 1919, a new regulation was introduced under the Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld) that increased the award wage for Aboriginal labour in the pastoral industry to two-thirds of the European station hand’s award. This resulted in loss of employment for Aboriginal employees on pastoral stations and triggered the movement of Aboriginal people to fringe camps. The fringe camps were known as “Yumbas”.

20    However, many Kooma People remained on pastoral stations. Kooma People continued working and camping at stations such as Boatman, Bonna Vonna, Murra Murra, Clifton, Bendena, Cubby and Yennerman.

21    Many Kooma People, such as Bill Chapman, Will Wharton, David Mitchell, Cowboy Clarence Colliss, Bill Hooper and others, have told their stories of living and working on pastoral stations in the 1950s and 1960s.

22    Hazel McKellar’s book, “Woman from No Where” tells the story of her grandmother, Granny (Susan) Mitchell. Herb Wharton has documented his life and association with his country in his book “Yumba Days”.

23    Contemporary Kooma People continue to live on or near their country. They continue to assert their identity as Kooma People and to acquire and pass on knowledge about their country. In particular, many Kooma People have been able to take up residence on Murra Murra and Bendee Downs Station or visit it on a regular basis.

24    The evidence establishes that the Kooma People have occupied the land in the claim area since before sovereignty and that there continues to be a thriving society of Kooma People.

The rights and interests

25    The native title rights and interests of the Kooma People that are claimed under their traditional laws and customs in relation to the land and waters described in Part 1 of Schedule 1 of the agreement (the exclusive areas) 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 in the area; and

(iii)    take and use the Water of the area

for personal, domestic and non-commercial communal purposes.

26    The native title rights and interests of the Kooma People that are claimed under their traditional laws and customs in relation to the land and waters described in Part 2 of Schedule 1 of the Agreement are 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 and use 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.

27    In relation to Lot 53 on SP135745 in the town of Bollon, the native title rights and interests of the Kooma People that are claimed in relation to the land described in Part 3 of Schedule 1 of the Agreement are non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

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

(c)    teach on the area the physical and spiritual attributes of the area.

28    The non-exclusive native title rights and interests referred to in [9](b), [10] and [11] above do not confer possession, occupation, use or enjoyment to the exclusion of all others. All of the rights described in [9]-[11] above are subject to and exercisable in accordance with the laws of the State and the Commonwealth and the traditional laws acknowledged and traditional customs observed by the native title holders.

29    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).

Section 87A

30    Section 87A of the Act empowers the Court to make a determination over part of a claim area in accordance with the orders agreed between the parties without conducting a hearing. The policy reflects the Act’s objective of resolving claims by agreement and without the need for litigation.

31    The Court is able to make a determination by consent without a hearing under s 87A if the following conditions are met:

(a)    each of the parties to the proceeding have reached agreement on a proposed determination of native title in respect of the claim area: ss 87A(1)(b) and 87A(1)(c);

(b)    the period specified in the notice given under s 66 of the Act has ended: s 87A(1)(b);

(c)    the terms of the proposed determination agreement are in writing and have been signed by or on behalf of each of those parties, and a copy filed with the Court: ss 87A(1)(d) and 87A(2);

(d)    the Registrar has given notice of the filing of the proposed determination to the other parties to the proceeding: s 87A(3);

(e)    the Court is satisfied that an order in, or consistent with, those terms would be within its power: s 87A(4)(a); and

(f)    the Court considers that making such an order would be appropriate: s 87A(4)(b).

32    The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.

33    The Court accepts that State and Territory governments have scrutinised applications for native title in a manner consistent with the scrutiny that you expect those governments to give in relation to claims by non-Aborigines asserting significant rights over such land: Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J. Generally, State and Territory governments have the responsibility of ensuring that the community’s interests are protected by involving themselves in a process which can assess the underlying evidence as to the existence of native title.

34    These principles have been considered and applied in many decisions of this Court. I consider that it is appropriate to follow them in the present proceeding.

35    Section 94A of the Act requires the Court to set out details of the matters mentioned in s 225 when making a determination of native title. Section 225 of the Act defines a determination of native title as follows:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land and waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

36    I accept, by reference to the s 87A agreement, that s 225(a) of the Act is satisfied. I also accept that the agreement complies with the requirements of s 225(b)-(e) of the Act.

37    I am satisfied that the requirements of s 87A of the Act have been fulfilled. I note that:

(a)    the period specified notice given under s 66 of the Act ended on 26 September 2012: s 87A(1)(b);

(b)    the parties have reached agreement on a proposed determination of native title in respect of part of the area covered by the application: s 87A(1)(b);

(c)    the parties have recorded their agreement and filed a copy of its terms with the Court on 20 June 2014: ss 87A(1)(d) and 87A(2);

(d)    an order in, or consistent with, the terms proposed in the parties’ agreement is within the Court’s power because:

(i)    the application is valid and made in accordance with s 61 of the Act;

(ii)    the application is for a determination of native title in relation to part of an area in which there has been no approved determination of native title: s 13(1)(a); and

(iii)    the s 87A agreement filed by the parties complies with ss 94A and 225 of the Act: s 87A(4).

38    I consider that it is appropriate that the Court make a determination in terms of the parties’ agreement because:

(a)    each party is legally represented;

(b)    the State of Queensland, acting on behalf of the community generally, has played an active role in the negotiation of the proposed determination and is satisfied that the determination is justified in all the circumstances; and

(c)    the parties have agreed upon the nature and extent of native title rights and interests in relation to Part A of the claim area.

Prescribed Body Corporate

39    Section 55 of the Act requires the Court to make such determinations as are required by ss 56 and 57 at the same time as or as soon as practicable after the determination. Order 13 of the s 87A agreement signed by the parties seeks a determination that the Kooma Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 56(1) of the Act to perform the functions set out in s 57(1).

40    The nomination is supported by the affidavit of Peter Bishop sworn 21 May 2014. Mr Bishop deposes that on 16 May 2014, Annette Daisy, a Kooma person and member of the applicant, formally nominated the Kooma Aboriginal Corporation to be the prescribed body corporate for the purposes of s 56(2)(a) of the Act. Mr Bishop further deposes that the Kooma Aboriginal Corporation has consented to such nomination.

41    Accordingly, the Court determines that the Kooma Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 56(1) of the Act.

42    For the reasons outlined above, I will make orders in terms of the agreement reached by the parties.

Associate:

Dated:    25 June 2014