Federal Court of Australia

Bell on behalf of the Wakka Wakka People #4 v State of Queensland (No 2) [2022] FCA 371

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 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.

2.    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.

3.    The rights and interests of Burnett Water Pty Ltd (as a wholly owned subsidiary of Sunwater Ltd), including:

(a)    as trustee of the Reserve for camping and water in that part of Lot 65 on BON1097 in which native title exists in accordance with paragraph 7 of this Determination;

(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 (or as a wholly owned subsidiary of) 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 3 of Schedule 2.

4.    The rights and interests of North Burnett Regional Council (Council):

(a)    under its 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 its 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; and

(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; and

(d)    to enter the land for the purposes described in paragraphs 4(a), 4(b) and 4(c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 4 and paragraph 5 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 4(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.

5.    The rights and interests of the State of Queensland and the 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.

6.    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.

7.    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).

8.    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 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.

9.    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.

10.    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

External Boundary Description Part 1

Part 1 covers all the lands and waters within the external boundary described as:

Commencing at the intersection of the eastern bank of the Burnett River and the westernmost south-western corner of Lot 47 on C371258 at Latitude 25.273999° South, a point on the northern boundary of North Burnett Regional Council, then generally easterly and generally south-easterly along boundaries of that regional council to its intersection with the northernmost corner of Lot 58 on SP214525; then generally south-easterly along eastern boundaries of that lot, eastern boundaries of Lot 57 on SP214525 and Lot 56 on SP214525 to a corner of that lot at Latitude 25.348393° South; then south-easterly to the eastern boundary of Mount Goonaneman Road at Latitude 25.348804° South; then generally southerly and generally south-easterly along boundaries of that road and northern boundaries of Bullock Head Road to the south-eastern corner of Lot 142 on CK724; then easterly to a point on an eastern boundary of again the North Burnett Regional Council boundary at Latitude 25.379567° South; then generally south-easterly, generally southerly and generally south-westerly along boundaries of that regional council to its intersection with the northern boundary of the Barker & Barambah Creeks Sub Basin Catchment Area, southern boundary of the Lower Burnett River Sub-Basin Catchment Area; then generally westerly along boundaries of that catchment to its intersection with the eastern bank of the Burnett River; then generally northerly, generally easterly and generally north-easterly along banks of that river back to the commencement point.

External Boundary Description Part 2

Part 2 covers all the lands and waters within the external boundary described as:

Commencing at the intersection of the eastern bank of the Burnett River and the northern boundary of the Boyne & Auburn Rivers Sub-Basin Catchment Area, southern boundary of the Lower Burnett River Sub-Basin Catchment Area and extending generally northerly and generally easterly along the eastern and southern banks of the Burnett River to its intersection with a western boundary of the Barker & Barambah Creeks Sub Basin Catchment Area, eastern boundary of the Lower Burnett River Sub-Basin Catchment Area; then generally southerly along boundaries of that catchment area to Latitude 25.872209° South; then south-westerly to a corner of the South Burnett and North Burnett Regional Councils at Longitude 151.653244° East; then generally westerly along boundaries of North Burnett Regional Council to its intersection with a northern boundary of the Boyne & Auburn Rivers Sub Basin Catchment Area, southern boundary of again the Lower Burnett River Sub Catchment Area at Longitude 151.517898° East; then generally northerly and generally westerly along boundaries of the catchment 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:

    QUD6026/2001 Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People as determined by the Federal Court (28 November 2017).

    QUD276/2019 Wakka Wakka People #3 as accepted for registration (29 January 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).

    External boundary description based in part on data sourced from Commonwealth of Australia, NNTT (November 2021)

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

    Watercourse boundaries derived from Cadastral data

    Catchment boundaries sourced from the Drainage basin sub-areas data sourced from State of Queensland, Department of Resources (May 2021).

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

    Road names based on Baseline Roads and Tracks data sourced from State of Queensland, Department of Resources (June 2021)

Reference Datum

Geographical coordinates referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees and 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 as described in Schedule 3 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 47B of the Native Title Act 1993 (Cth) apply

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:

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

Data Reference and source

    Cadastral data sourced from Department of Natural Resources and Mines, Qld (September 2021)

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees.

Prepared by the Department of Resources (13 October 2021).

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 5

AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the determination area as described in Part 1 of Schedule 4 and Part 2 of Schedule 4:

1.    Those land and waters within the External Boundary which at the time the native title determination application was made were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically, and to avoid any doubt, the land and waters described in (1) above includes:

(a)    the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A, 47B or 47C of the Native Title Act 1993 (Cth) applied, and

(b)    the land and 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 to which 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).

3.    Those land and waters within the External Boundary on which, at the time the native title determination application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

4.    Those land and waters within the External Boundary which, at the time the native title determination application was made, were the subject of one or more Pre-existing Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title.

SCHEDULE 6

MAP OF DETERMINATION AREA

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant seeks a determination of native title pursuant to ss 61 and 225 of the Native Title Act 1993 (Cth) (the Act) on behalf of the Wakka Wakka People (the Wakka Wakka People #4 claim).

2    The claim is for the determination of native title over the lands and waters in the central and southern regions of the Burnett River catchment.

3    On 13 October 2017, the Court made orders to administratively partition the Wakka Wakka People #4 claim into two parts (Part A and Part B), which was further divided into Part C on 1 November 2021. Part A covers the area set out at Order 3 of the Orders, as described in Schedule 4 in so far as those areas are within the External Boundary and are not otherwise excluded by the areas described in Schedule 5 (‘the determination area’).

4    The parties have indicated their consent to a determination that the Wakka Wakka People are the holders of native title in the area covered by Part A of the claim area.

5    The Court is satisfied, for the reasons below, that it is within the power of the court to make the orders sought, and that it is appropriate to do so.

6    There will also be a determination of native title in respect of Parts A and B of the adjoining Wakka Wakka People #3 claim. The area covered by that claim is to the south of the Wakka Waka People #4 claim.

The Native Title Act

7    The preamble to the Act recognises, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited the country prior to European settlement and that the Aboriginal peoples were progressively dispossessed of their lands. It records that the Constitution was amended, by the overwhelming vote of the people of Australia, to enable laws such as the Act to be passed and to facilitate recognition by our shared legal system of native title rights and interests.

8    Section 3 of the Act outlines the main objects of the Act as being: to protect and recognise native title, to establish ways in which future dealings affecting native title may proceed and to set the standard for those dealings, to establish a mechanism for determining claims to native title and to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

9    Section 87A of the Act provides a mechanism for achieving a key objective of the Act, the resolution of claims for native title by agreement. The agreement of the parties to the terms of the proposed orders is consistent with that objective.

10    Section 61 of the Act provides that an application for a determination of native title may be made by a person or persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed.

11    Native title is defined in s 223(1) of the Act as follows:

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

12    Section 225 of the Act describes what is meant by a “determination of native title”:

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 or 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.

…

The application

13    The application for a determination of native title was filed in the Federal Court on 10 February 2012. On 13 October 2017, the Wakka Wakka People #4 claim was separated, by order of the Court, into Part A (the area uncontested by the Indigenous respondent parties) and Part B (the area contested by the Indigenous respondent parties). On 2 November 2021, I ordered that the Wakka Wakka People #4 application be further separated into Part C, to comprise the area the subject of Crown-to-Crown grants subject to further negotiations between the applicant and the State of Queensland.

14    The Wakka Wakka People #4 Part A application seeks determination on behalf of the Wakka Wakka People over land and waters within the determination area.

15    The persons comprising the applicant are: Florence Bell, Michael Bond (Snr), Patricia Bond, James Chapman, Gary Cobbo, Marissa Cobbo, Robert Lacey, Stephen Pickering, Carl Simpson, Cheryl Smith, Sidney Smith, Katrina Watson, Robert West, Edwin James MiMi, Irene Simpson and Shane Dynevor (Jnr).

16    The respondents to the application are: the State of Queensland, North Burnett Regional Council, Burnett Water Pty Ltd, Telstra Corporation Limited, Ergon Energy Corporation Limited, Ronald Kirk and the Commonwealth of Australia.

17    All parties to the application, except the Commonwealth of Australia and Ronald Kirk who do not hold interests in the Wakka Wakka People #4 Part A claim, have reached agreement that native title exists in Part A of the determination area and as to the nature and extent of those native title rights and interests. That agreement, made under s 87A(1)(b) of the Act, was filed in the Federal Court on 25 March 2022.

18    The evidence of connection filed by the applicant primarily includes claimant evidence in the form of affidavits and witness statements; and two expert reports prepared by anthropologist Dr Kingsley Palmer.

19    It is appropriate to record that the parties were assisted in resolving aspects of the claim by the provision of a joint expert report prepared by the Honourable John Mansfield AM QC and Mr Kim McCaul.

20    The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance: Sampi v Western Australia [2005] FCA 777 at [48]. The claimant evidence of connection is comprised of 22 affidavits and witness statements of the following persons:

(a)    Statement of Patricia Dawn Bond dated 10 August 2016

(b)    Statement of Robert George Lacey dated 2 September 2016

(c)    Statement of Loretta May Chapman dated 25 July 2016

(d)    Statement of Yvonne Frances Chapman dated 26 July 2016

(e)    Statement of Clem Michael Shadford dated 30 September 2016

(f)    Statement of Robert West dated 1 September 2016

(g)    Statement of Glenys Fredericksen dated 5 October 2016

(h)    Statement of Margaret Kay MiMi dated 3 July 2016

(i)    Statement of Rodney Samuel Hill dated 2 July 2016

(j)    Affidavit of Selina Hill dated 14 March 2015

(k)    Statement of John Wragge dated 18 August 2016

(l)    Statement of Robert Alan Bond dated 6 August 2016

(m)     Statement of Lance Bligh dated 27 September 2016

(n)    Statement of Cynthia Button dated 9 August 2016

(o)    Statement of William (Billy) Button dated 9 August 2016

(p)    Affidavit of Thomas Daniels dated 30 April 2014

(q)    Affidavit of Fred Cobbo dated 28 March 2014

(r)    Affidavit of Beryl Gambrill (dec) dated 16 June 2012

(s)    Statement of Arnold Murray dated 16 September 2016

(t)    Statement of Terry Willmot Snr dated 19 August 2016

(u)    Statement of Edward MiMi dated 15 February 2019

(v)    Statement of Melissa Bond dated 3 February 2019.

21    The applicant also relies on the following reports prepared by anthropologist Dr Kingsley Palmer:

(a)    Wakka Wakka Native Title Application QUD6032/1999 QC 99/33 - Anthropologist’s Report (March 2010) (‘Connection Report’); and

(b)    Wakka Wakka People #4 QUD91/2012 and Wakka Wakka People #5 QUD93/2012 Native Title Applications – Anthropologist’s Responsive Report (May 2014) (‘Supplementary Connection Report’).

22    The applicant’s connection materials also include a genealogical report prepared by Anthony Eales, a Research Officer at QSNTS: Wakka Wakka People #4 QUD91/2012 and Wakka Wakka People #5 QUD93/2012 Native Title Applications – Genealogies (May 2014).

23    In the Connection Report, Dr Palmer considers there to be ‘a substantial continuity of law and custom’ that, ‘can reasonably be supposed to extend back to the time of sovereignty within the application area’ at [431]. Dr Palmer also concludes at paragraph [319]:

Wakka Wakka society, as it is observable today is based upon and is rooted in a customary system which is likely to have been in operation at the time of sovereignty.

24    Dr Palmer observes that the Wakka Wakka People have continued to observe customary ritual practices, which have been handed down to the present generation by their forebears, including with respect to totemic and spiritual beliefs, sites, bush tucker, dispute resolution and decision making, as well as a common understanding that members of the Wakka Wakka society shared a common language style, typified by a shared term for the word ‘no’.

25    Dr Palmer concludes that there is a substantial continuity of the laws and customs that have been observed and practiced by Wakka Wakka People that can reasonably be supposed to extend back to the time of sovereignty within the claim area.

26    The Wakka Wakka People are the descendants of the following persons:

(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.

27    The evidence filed, including Dr Palmer’s anthropological reports and the witness statements and affidavits provided by the claimants, provide cogent evidence of the continuity of the traditional laws and customs of the Wakka Wakka People extending back to the time of sovereignty within the claim area. The evidence supports the claim that the traditional laws acknowledged and the traditional customs observed give the Wakka Wakka People the right to possess, occupy, use and enjoy the land and waters in the claim area.

The agreement reached between the parties

28    Section 87A(4) of the Act gives the Court the power to make an order consistent with the terms of a proposed determination of native title agreed between the parties to the proceeding without holding a hearing in relation to the application if the Court considers that:

(a)    an order in, or consistent with the terms of the proposed determination would be within its power; and

(b)    it would be appropriate to do so.

29    The conditions under s 87A of the Act that enable the Court to make the determination without a hearing are:

    There is a proceeding in relation to an application for a determination of native title: s 87A(1)(a);

    At any stage of the proceeding after the end of the period specified in the notice given under s 66 of the Act, agreement is reached on a proposed determination of native title in relation to an area that is part of, but not all of, the area covered by the application: s 87A(1)(b);

    Certain persons are parties to the agreement, including ‘each person who holds an interest in relation to the land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made’: s 87A(1)(c);

    The terms of the proposed determination are in writing and signed by or on behalf of those parties: s 87A(1)(d);

    The court is satisfied that an order in, or consistent with, the terms of the proposed determination, would be within its power and the court considers it appropriate to make the orders sought: s 87A(4).

30    In considering whether it is appropriate to make the orders sought, the Court’s role is confined to considering the evidence filed for the purpose of determining whether the parties have entered into an agreement that has been freely made on an informed basis: Nangkiriny (on behalf of the Karajarri People) v State of Western Australia (2002) 117 FCR 6 at [14]. The Court is not required to make a judicial determination of the merits of the claim: Button (on behalf of the Koa People) v State of Queensland [2021] FCA 1190. In considering the appropriateness of the orders, the court is directed to consider whether the parties to the agreement have acted rationally and in good faith: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [30].

31    The Court must also be satisfied that the State, which bears the responsibility for ensuring that the interests of the community are protected, ‘has taken a real interest in the proceeding’.

32    The Court is satisfied that the parties to the s 87A agreement have entered into the agreement freely on an informed basis and have acted in good faith. The State of Queensland is satisfied that the claim group is an appropriate one to be recognised as holders of native title rights and interests, that it is appropriate to recognise the rights and interests proposed and that it is appropriate for the State to enter into the determination. I am also satisfied that the State has taken a ‘real interest’ in the proceeding on behalf of the broader community, demonstrated in particular by the steps taken by the State to thoroughly review the applicant’s connection material and request further evidence as it considered was required.

33    The requirements of the Act have been satisfied:

    There is a proceeding in relation to an application for a determination of native title: s 87A(1)(a).

    The period for notification of the application under s 66 of the Act has ended, and the parties to the proposed determination have recorded their agreement as to the terms of a determination of native title in relation to Part A of the application area: s 87A(1)(b) and (c). The court is satisfied that the Commonwealth (the seventh respondent) and Mr Ronald Kirk (the sixth respondent) do not hold interests in Part A of the claim and are not required to be parties to the agreement.

    The parties to the proposed determination have recorded their agreement in a signed Minute of Consent: s 87A(1)(d).

    An order in terms of the Minute or consistent with the Minute would be within the Court’s power because:

•    The application has been made in accordance with s 61 of the Act;

•    The application is for a determination of native title in relation to an area for which there are no other approved determinations of native title: s 13(1)(a); and

•    the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87A(4).

34    In addition, it is appropriate for the Court to make the orders sought because:

(1)    The parties have freely entered into the agreement on an informed basis, having had the opportunity to consider and assess the evidence relied upon by the applicant.

(2)    The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared.

(3)    There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application.

(4)    The State has played an active role in the negotiation of the determination, and in doing so, has taken an interest in the proceeding on behalf of the community and has given appropriate consideration to the connection material.

35    The terms of the proposed determination also satisfy the requirements of s 225 of the Act.

Prescribed Body Corporate

36    Section 55 of the Act relevantly provides that if the Federal Court proposes to make an approved determination of native title, and the determination is that native title exists at the time of making the determination, the Federal Court must, at the same time or as soon as practicable after it makes the determination, make a determination under ss 56 and 57 of the Act.

37    Section 56(1) of the Act requires that the Court must determine whether the native title is to be held in trust, and if so, by whom. The applicant has consented to orders determining that the native title is to be held in trust. The applicant seeks orders that the Wakka Wakka Native Title Aboriginal Corporation (ICN: 8903) is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act. The applicant relies on the eighth affidavit of Phoebe Frederick which annexures a copy of a letter from Patricia Bond, a Wakka Wakka person and a member of the applicant claim group, formally nominating the Wakka Wakka Native Title Aboriginal Corporation as the prescribed body corporate.

38    I am satisfied that the Wakka Wakka Native Title Aboriginal Corporation is a prescribed body corporate within reg 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

39    It is appropriate to determine that the Wakka Wakka Native Title Aboriginal Corporation is to be the prescribed body corporate for the purpose of s 57 of the Act and perform the functions prescribed in s 57(3) of the Act.

Conclusion

40    The Court will make orders in accordance with the orders agreed by the parties.

Associate:    

Dated:    12 April 2022

SCHEDULE OF PARTIES