FEDERAL COURT OF AUSTRALIA

Bell on behalf of the Wakka Wakka People #3 v State of Queensland (No 2) [2022] FCA 370

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 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 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

4.    Native title exists in the Determination Area.

5.    The native title is held by the Wakka Wakka People described in Schedule 1 (the Native Title Holders).

6.    Subject to orders 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 4 are:

(a)    other than in relation to Water, the right 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 the Natural Resources of the Water in the area; and

(iii)    take the Water of the area,

for personal, domestic and non-commercial communal purposes.

7.    Subject to orders 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 4 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 Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

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

(f)    conduct ceremonies on the area;

(g)    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;

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

(l)    be accompanied onto the area by certain persons who, though not Native Title Holders, are:

(i)    spouses of Native Title Holders; or

(ii)    persons required or permitted under the traditional laws acknowledged and traditional customs observed by the Native Title Holders for the performance of, assistance with, or participation in rituals or ceremonies.

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 orders 6(b) 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 2.

12.    The relationship between the native title rights and interests described in orders 6 and 7 and the other interests described in Schedule 2 (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.

DEFINITIONS AND INTERPRETATION

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

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:

14.    The native title is held in trust.

15.    The Wakka Wakka Native Title Aboriginal Corporation (ICN: 8903), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

SCHEDULE 1

NATIVE TITLE HOLDERS

1.    The Native Title Holders are the Wakka Wakka People. The Wakka Wakka People are those people who identify as Wakka Wakka in accordance with traditional laws acknowledged and traditional customs observed by them and who are the descendants of one or more of the following people:

(a)    Jenny Carlo and David Carlo (parents of Princess Carlo);

(b)    Minnie Bly (mother of Thomas Simpson), Ethel and Bill Button (father of Ethel Button);

(c)    Mother of Maggie Hart (grandmother of Crabbie Chapman and Henry Hart);

(d)    Mother of Willie Boy Pickering;

(e)    King Billy and Maria of Boondooma (parents of Tommy Dodd of Taabinga);

(f)    Maggie West;

(g)    Kitty of Boonara;

(h)    MiMi;

(i)    Kitty (mother of Jack Bulong);

(j)    John Bond;

(k)    Kitty (mother of Jenny Lind), Jenny Lind and Mick Buck;

(l)    Boubijan Cobbo;

(m)    Stockman Bligh and Aggie Bligh;

(n)    Tommy (aka Boondoon) and Maggie (parents of Willie Bone), Billy McKenzie (father of Chlorine McKenzie), Chlorine McKenzie;

(o)    Kate/Katie/Kitty Law;

(p)    Emily of Degilbo (mother of Annie);

(q)    Taabinga Harry.

SCHEDULE 2

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 registered on the Register of Indigenous Land Use Agreements:

(a)    Florence Bell, Michael Bond Snr, Patricia Bond, Cynthia Button, Kevin Doolan, Arnold Murray, and Carl Simpson on behalf of the Wakka Wakka People #3 (QI2018/019) and the Gympie Regional Council, registered on 13 December 2018 (the Wakka Wakka People #3 and the Gympie Regional Council Indigenous Land Use Agreement); and

(b)    TEC Coal Pty Ltd and Stanwell Corporation Limited under the Wakka Wakka #2 and Tarong ILUA (QI2008/027), dated 16 March 2009, between Cyril Couchy, David Anthony Beezley, George Bone, Kevin John Doolan, Michael Bond, Oscar Chapman, Robert Lacy, Beryl Gambrill, Pam Peggy Duncan and Patricia Dawn Bond, on their own behalf and on behalf of the Wakka Wakka People, and TEC Coal Pty Ltd and Tarong Energy Corporation Limited, which was registered on the Register of Indigenous Land Use Agreements on 8 September 2009.

2.    The rights and interests of the holders of the following leases or permits granted pursuant to the Land Act 1962 (Qld) or Land Act 1994 (Qld):

(a)    term lease for grazing purposes TL0/235010 over Lot 313 on FY509;

(b)    term lease for grazing purposes TL0/234138 over Lot 5 on MZ21, within Lot 255 on FTY1025;

(c)    term lease for grazing purposes TL0/239788 over Lot A on MZ1179, within Lot 342 on MZ1078;

(d)    term lease for grazing purposes TL0/241719 over Lot A on MZ1067, within Lot 108 on MZ1067;

(e)    term lease for pastoral purposes TL0/231460 over Lot 14 on MZ830, within Lot 220 on FTY998;

(f)    rolling term lease for grazing purposes TL0/212600 over Lot 57 on BO406 and Lot 8 on BO516;

(g)    rolling term lease for grazing purposes TL0/234223 over Lot 18 on BO77;

(h)    rolling term lease for grazing purposes TL0/231052 over Lot 30 on BO560; and

(i)    permit to occupy PO 0/230732 over Lot A on AP14756, within Lot 44 on BO391.

3.    The rights and interests of the holders of the following tenements granted pursuant to the Mineral Resources Act 1989 (Qld):

(a)    mineral development licence MDL 200;

(b)    mineral development licence MDL 201; and

(c)    mining lease ML 6674.

4.    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, occupy 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 the performance of their duties; and

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

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

(a)    as the owner and operator of any Works 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 on which these orders are made;

(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.

6.    The rights and interests of Sunwater Limited, including:

(a)    an estate in Sunwater land (vested) in Lot 502 on FY2592;

(b)    rights, interests and responsibilities as owner, occupier and operator of dams (including impoundment areas), weirs, pipelines, barrages, channels, water treatment plants and other such infrastructure located within the Determination Area;

(c)    rights, interests and responsibilities under the Water Act 2000 (Qld) and the Water Supply (Safety and Reliability) Act 2008 (Qld), including as a water service provider, resource operations licence holder and bulk water supplier; and

(d)    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 6 of Schedule 2.

7.    The rights and interests of Stanwell Corporation Limited:

(a)    as the owner and operator of electricity generation and associated facilities in the Determination Area;

(b)    as an electricity entity, as that term is defined in the Electricity Act 1994 (Qld), including:

(i)    as the holder of a generation authority under the Electricity Act 1994 (Qld);

(ii)    rights to enter the Determination Area by its employees, agents or contractors, at any reasonable time, to exercise any of the rights and interests referred to in this paragraph, including to access, inspect, operate, manage, maintain, repair, replace, upgrade or otherwise deal with any electricity generation or associated facilities in the Determination Area; and

(iii)    as the owner and operator of the Wivenhoe Dam - Tarong Power Station Pipeline, including the rights to enter the Determination Area by its employees, agents or contractors, at any reasonable time, to access, inspect, operate, manage, maintain, repair, replace, upgrade or otherwise deal with the said pipeline.

(c)    arising under the

(i)    Cultural Heritage Management Plan - Northern Land Ash Emplacement Project, dated 8 September 2008, between Pam Duncan, Beryl Gambril and George Bone, as Endorsed Aboriginal Parties, and Tarong Energy Corporation Limited, which was approved by a delegate of the Chief Executive under section 107 of the Aboriginal Cultural Heritage Act 2003 (Qld) on 7 May 2009.

8.    The rights and interests of Stanwell Corporation Limited and TEC Coal Pty Ltd arising under the Cultural Heritage Investigation Agreement, dated 8 September 2006, as varied on or about 5 September 2008, between Beryl Gambrill, Pam Duncan, Duncan Cobbo, George Bone, Patty Bond and Michael Bond, as Wakka Wakka No. 2 Aboriginal Parties, and Tarong Energy Corporation Limited.

9.    The rights and interests of Gympie Regional Council, North Burnett Regional Council, and South Burnett Regional Council (jointly ‘Council’):

(a)    under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld), under any other Local Government Act, or under any other legislation, for that part of the Determination Area within the area declared to be their respective Local Government Areas;

(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 any other interest in land;

(iv)    trustee of any Reserves or holder of any interest under access agreements or easements;

(c)    as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination 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;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by Council;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities;

(d)    to enter the land for the purposes described in paragraphs 9(a), 9(b) and 9(c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 9 and paragraph 10 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 9(c) above; and

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

10.    The rights and interests of the State of Queensland, the Gympie Regional Council, North Burnett Regional Council and South Burnett Regional Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.

11.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

12.    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 (Production and Safety) Act 2004 (Qld);

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

(g)    the Planning Act 2016 (Qld);

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

(i)    the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld);

(j)    the Fisheries Act 1994 (Qld);

(k)    the Vegetation Management Act 1999 (Qld); and

(l)    the Stock Route Management Act 2002 (Qld).

13.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; or

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

14.    The rights and interests of members of the public arising under the common law, including but not limited to the following:

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

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 the Commonwealth.

SCHEDULE 3

EXTERNAL BOUNDARY

The area of land and waters commencing at the intersection of the western bank of the Boyne River and the southern bank of the Burnett River and extending north-easterly to the northern boundary of the Boyne & Auburn Rivers Sub Basin Catchment Area at Longitude 151.224701° East; then generally easterly and generally southerly along boundaries of that catchment area to its intersection with a northern boundary of the South Burnett Regional Council; then generally easterly along boundaries of that regional council to a corner at Longitude 151.653244° East; then north-easterly to the western boundary of the Barker & Barambah Creeks Sub Basin Catchment Area at Latitude 25.872210° South; then generally north-easterly, generally northerly and generally easterly along boundaries of that catchment area to the eastern boundary of the North Burnett Regional Council; then generally southerly along boundaries of that regional council to its intersection with the northern boundary of the Gympie Regional Council; then generally south-easterly, generally southerly, generally easterly and generally southerly along the boundaries of that regional council to its intersection with the eastern boundary of again the Barker & Barambah Creeks Sub Basin Catchment Area at Latitude 25.886767° South; then generally southerly along boundaries of that catchment area to Latitude 26.461603° South; then southerly to a corner on the southern boundary of again the Gympie Regional Council at Longitude 152.370770° East; then generally westerly and generally southerly along boundaries of that regional council, and southern and eastern boundaries of the South Burnett Regional Council to Latitude 26.663401° South; then westerly to the south-eastern boundary of again the Barker & Barambah Creeks Sub Basin Catchment Area at Longitude 152.074389° East; then generally south-westerly along boundaries of that catchment area to its intersection with the southern boundary of again the South Burnett Regional Council; then generally south-westerly and generally north-westerly along boundaries of that regional council to the south-western corner of Lot 94 on Plan BO27; then generally easterly along the southern boundary of that lot and southern boundaries of Lot 18 on Plan BO27 to the southernmost south-western corner of Lot 12 on Plan RP50030; then north-easterly to the headwaters of the Boyne River at Longitude 151.530431° East, Latitude 26.757979° South; then generally northerly, generally north-westerly, generally northerly and generally north-easterly along the centreline of that river to the intersection with the centreline of Lot 16 on SP107475, also Boondooma Lake (formerly the Boyne River) at Latitude 26.216134 South; then generally north-easterly along the centreline of that Lot, centrelines of Lot 18 on SP107475, Lot 13 on Plan SP107477 and Lot 20 on Plan SP142310 to the northern boundary of Lot 20 on Plan SP142310; then westerly along the boundary of that lot to the western bank of the Boyne River; then generally northerly and generally north-westerly along banks of that river back to the commencement point.

Exclusions

This external boundary description does not include any land and waters within the external boundaries of the following native title determinations and native title applications:

    QUD31/2019 – Auburn Hawkwood People as determined by the Federal Court (25 November 2019).

    QUD277/2019 – Wakka Wakka People #4 as accepted for registration (26 November 2021).

    QUD20/2019 – Kabi Kabi First Nation as accepted for registration (3 November 2021).

Data Reference and Source

    External boundary description compiled by Queensland South Native Title Services, based on spatial data sourced from the State of Queensland, Department of Resources (December 2021).

    Cadastral data sourced from State of Queensland, Department of Resources (September 2021).

    Local Government Boundaries (LGA) sourced from State of Queensland, Department of Resources (November 2020).

    Where possible watercourse boundaries were derived from cadastral data elsewhere 1:250K Topographic Vector Data is © Commonwealth of Australia (Geoscience Australia) 2008.

    Centreline of former Boyne River derived from cadastral data sourced from State of Queensland, Department of Resources (September 2021).

    Catchment boundaries sourced from the Drainage Basin Sub-Areas data sourced from State of Queensland, Department of Resources (May 2021).

Reference Datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA 2020), 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.

SCHEDULE 4

DESCRIPTION OF DETERMINATION AREA

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 — Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the determination map contained in Schedule 6:

^ denotes areas to which s 47A of the Native Title Act 1993 (Cth) apply

~ denotes areas to which s 24KA of the Native Title Act 1993 (Cth) apply

“Pt” denotes areas that are part areas as a result of the External Boundary

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the determination map contained in Schedule 6: