FEDERAL COURT OF AUSTRALIA

Hatfield on behalf of the Darumbal People v State of Queensland [2023] FCA 1480

ORDERS

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

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 Darumbal People described in Schedule 1 (the Native Title Holders).

6.    Subject to orders 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in 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 on the area;

(c)    hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

(d)    take and share 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 and protect places of importance and areas of significance to the Native Title Holders under their traditional laws and customs;

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

(j)    hold meetings on the area; and

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

7.    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.

8.    The native title rights and interests referred to in order 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

9.    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).

10.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2.

11.    The relationship between the native title rights and interests described in order 6 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, but will not extinguish them.

DEFINITIONS AND INTERPRETATION

12.    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 NTA.

THE COURT DETERMINES THAT:

13.    The native title is held in trust.

14.    The Darumbal People Aboriginal Corporation (ICN: 8405), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA; and

(b)    perform the functions mentioned in s 57(1) of the NTA after becoming a registered native title body corporate.

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

SCHEDULE 1

NATIVE TITLE HOLDERS

The native title holders are the Darumbal People. The Darumbal People are those people:

(a)    who are descendants of the following deceased persons:

(i)    Brothers John McPherson or Harry Bauman;

(ii)    Kate Reid and James Hector;

(iii)    Clara McKenzie;

(iv)    Jack Naylor (Jnr);

(v)    Maria McKenzie;

(vi)    Clara Wallace;

(vii)    Mundabel;

(viii)    Mary Jones;

(ix)    Maggie (Mitchell);

(x)    Yorky; or

(xi)    Kitty Mulway and Pompey of Stanage: and

(b)    who are recognised by the living Darumbal People according to their traditional laws and customs as Darumbal People.

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)    QI2005/021 – Darumbal Area ILUA;

(b)    QI2007/006 – Darumbal Marlborough Nickel Project Area #2 ILUA; and

(c)    QI2012/133 – Arrow Energy and Southern Barada People, Kabalbara People, Jetimarala/Yetimarla People, Darumbal People and Darumbal People #2 LNG Project ILUA.

2.    The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:

(a)    as the owner and operator of any Works within the Determination Area;

(b)    as an electricity entity under the Electricity Act 1994 (Qld), including but not limited to:

(i)    as the holder of a distribution authority;

(ii)    to inspect, maintain and manage any Works in the Determination Area; and

(iii)    in relation to any agreement or consent relating to the Determination Area existing or entered into before the date these orders are made;

(c)    to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this clause.

3.    The rights and interests of Livingstone Shire 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) and under any other legislation, for that part of the Determination Area within the area declared to be its local government area under the Local Government Regulation 2012 (Qld);

(b)    as the:

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

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

(iii)    holder of any estate or interest in land, including as trustee of any Reserves that exist in the Determination Area;

(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 the Determination is 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 3(a), 3(b) or 3(c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in paragraph 3;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 3(c) above; and

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

4.    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.

5.    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.

6.    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); and

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

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

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

7.    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.

8.    So far as confirmed pursuant to s 212(2) of the NTA and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of the 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.    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 a point on the western external boundary of Native Title Determination QUD6131/98 Darumbal People (Part A), a point on the centreline of Deep Creek at Longitude 149.670871° East and extending northerly, generally south-easterly, generally southerly and generally south-westerly along external boundaries of that determination to a point on the centreline of the Fitzroy River at Longitude 150.000846° East, further described as:

Extending northerly to the northern bank of Deep Creek at Longitude 149.670936° East; then generally south-easterly along the bank of that creek to Latitude 22.648481° South; then south-easterly and easterly passing through Longitude 149.674918 East, Latitude 22.649494° South to the eastern boundary of Lot 461 on SP108289 (North Coast Railway) at Latitude 22.649577° South; then generally south-easterly along the boundary of that lot and Railway, eastern boundaries of Lot 450 on SP108288, Lot 412 on SP108287 and Lot 411 on SP108287 to Latitude 22.753829° South; then south-easterly to the western boundary of Lot A on AP21003 at Latitude 22.760286° South; then generally south-easterly along the boundary of that lot and eastern boundaries of the Bruce Highway (St Lawrence Road) to Latitude 22.813725° South; then southerly to the northernmost point of the southern severance of Lot 6 on L1335, a point on the eastern boundary of an unnamed road; then generally south easterly along boundaries of that unnamed road to the western bank of Marlborough Creek at Latitude 22.845037° South; then easterly to the north-western corner of the western severance of Lot 90 on L1255; then generally southerly and easterly along boundaries of that severance to the western boundary of Marlborough Road (Malborough-Sarina Road); Then generally north easterly along boundaries of that road to its intersection with the Northern boundary of again Bruce Highway (St Lawrence Road); then generally easterly and generally south-easterly along northern boundaries of the Bruce Highway (Kunwarara Road) to Longitude 149.978417° East; then southerly to the headwaters of an unnamed tributary at Longitude 149.982871° East, Latitude 22.873777° South; then generally south-easterly along the centreline of that tributary to the centreline of Princhester Creek; then generally southerly along that centreline of that creek to Latitude 22.926027° South; then generally south-easterly passing through the following coordinate points.

Then southerly to the centreline of Four Mile Creek at Latitude 22.964409° South; then generally southerly along the centreline of that creek and again the centreline of Princhester Creek to the centreline of Fitzroy River; then generally south-westerly along the centreline of that river to Longitude 150.000846° East, a point on the external boundary of Native Title Determination QUD6131/98 Darumbal People (Part A).

Then generally north-westerly passing through the following coordinate points:

Then north-westerly to a point on the centreline of Deep Creek at Latitude 22.6488878° South and generally westerly along the centreline of that creek back to the commencement point.

Data Reference and source

•    QUD30/2019 Darumbal People (Part B) determination boundary based in part on data sourced from the Commonwealth of Australia, NNTT (March 2023).

•    QUD6131/1998 Darumbal People (Part A) as determined by the Federal Court 21 June 2016.

•    Cadastral data sourced from State of Queensland, Department of Resources (March 2023).

•    Rivers and creeks where possible, are based on cadastral data sourced from State of Queensland, Department of Resources. Elsewhere, rivers and creeks based on 1:250,000 topographic vector data © Commonwealth of Australia (Geoscience Australia) 2008.

Reference datum

Geographical coordinates referenced to the Geocentric Datum of Australia 2020 (GDA2020), 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 table 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.

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:

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 Schedule 4:

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

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 NTA to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the NTA applied; and

(b)    the land and waters on which any public work, as defined in s 253 of the NTA, 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 NTA.

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 NTA 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 NTA, 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 Darumbal People.

2    On 27 March 2013, the Court made orders partitioning the application into two parts, Part A and Part B.

3    A consent determination of native title was made in relation to Part A on 21 June 2016.

4    The parties have now indicated their consent to a determination that the Darumbal People hold native title rights and interests in Part B of the claim area.

5    Part B covers the area set out at Order 3 of the Orders. It encompasses approximately 10,365 ha of land and waters in central Queensland, including the Princhester Conservation Park and the Old Marlborough town site.

6    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.

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    The expression “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 lodged with the National Native Title Tribunal on 27 June 1997, and deemed to be filed in the Federal Court on 30 September 1998.

14    A second application for a determination of native title was filed on behalf of the Darumbal People on 22 January 1999.

15    An area of land in the western part of the Darumbal claim area was the subject of competing assertions of native title rights by the Southern Barada Kabalbara Yetimarala People. In 2011, through a process of mediation, representatives of the Darumbal and the Southern Barada Kabalbara Yetimarala Peoples reached agreement in relation to the boundary between their respective countries and in relation to an area of shared country.

16    On 26 July 2012, the Court ordered that the two Darumbal applications be combined and conducted as one proceeding under file number QUD6131/1998.

17    On 27 March 2013, the application was separated, by order of the Court, into Part A and Part B (the area that was the subject of the wholly overlapping claim by the Barada Kabalbara Yetimarala People).

18    The applicant now seeks determination on behalf of the Darumbal People over land and waters within Part B.

19    The persons comprising the applicant are Alan Douglas Hatfield, Amanda Meredith, Rodney William Mann, Pauline Cora, Vanessa Ross and Warren John Malone.

20    The respondents to the application are the State of Queensland, the Livingstone Shire Council and Ergon Energy Corporation Limited.

21    All parties to the application have reached agreement that native title exists in Part B 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 19 September 2023.

22    The evidence of connection filed by the applicant primarily includes claimant evidence in the form of affidavits and witness statements; and six expert reports prepared by anthropologists Peter Blackwood, Paul Memmott and Lee Sackett.

23    The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect of 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 19 affidavits and 6 outlines of evidence of the following persons:

    Affidavit of Alan Douglas Hatfield filed 12 June 2014;

    Affidavit of Trevor Leslie Hatfield filed 12 June 2014;

    Outline of further evidence of Trevor Leslie Hatfield filed 24 November 2014;

    Outline of further evidence of Trevor Leslie Hatfield filed 28 May 2018;

    Affidavit of Nyoka Myra Hatfield (nee Cora) filed 12 June 2014;

    Outline of further evidence of Nyoka Myra Hatfield (nee Cora) filed 25 November 2014;

    Outline of further evidence of Nyoka Myra Hatfield (nee Cora) filed 28 May 2018;

    Affidavit of Vanessa Ruth Ross filed 12 June 2014;

    Affidavit of Warren John Malone filed 12 June 2014;

    Affidavit of Pauline Joyce Cora filed 12 June 2014;

    Affidavit of Tosie William Cora filed 12 June 2014;

    Affidavit of Rodney William Mann filed 12 June 2014;

    Outline of further evidence of Rodney William Mann filed 27 November 2014;

    Outline of further evidence of Rodney William Mann filed 28 May 2018;

    Affidavit of Pamela Meredith filed 12 June 2014;

    Affidavit of Amanda Melanie Meredith filed 12 June 2014;

    Affidavit of Roeina Sarah Vea Vea filed 12 June 2014;

    Affidavit of Selena Michele Edmund filed 12 June 2014;

    Affidavit of Kristina Ann Hatfield filed 12 June 2014;

    Affidavit of Tanya Maree Mitchell filed 12 June 2014;

    Affidavit of Barry John Mann filed 12 June 2014;

    Affidavit of Malcolm Lyle Mann filed 12 June 2014;

    Affidavit of Cephra Maria Roma filed 12 June 2014;

    Affidavit of Naticia Carleigh Jeanine Meredith filed 12 June 2014;

    Affidavit of Cecil Williams filed 11 August 2023.

24    The applicant also relies on the following expert reports:

    Peter Blackwood and Paul Memmott, ‘Darumbal Native Title Claim’ (Anthropologists’ Expert Report);

    Peter Blackwood and Paul Memmott, ‘Darumbal Native Title Claim’ (Anthropologists’ Expert Report, Supplementary to Conference of Experts, 2-3 October 2014);

    Peter Blackwood, ‘Review of anthropological evidence and lay evidence regarding Darumbal Native Title Rights and Interests in Part B’;

    Dr Lee Sackett and Peter Blackwood, ‘Barada Kabalbara Yetimarala (BKY) and Darumbal Native Title Claims: Joint Anthropologists’;

    Dr Lee Sackett and Peter Blackwood, ‘Barada Kabalbara Yetimarala People #2 (QUD439/2013) and Darumbal People Part B (QUD6131/1998) Native Title Claims: Agreed Border and Reciprocal Rights and Interests Report’; and

    Peter Blackwood, ‘Darumbal Native Title Claim QUD30/2019 Part B: Supplementary Anthropological report regarding Darumbal native title rights and interests in Part B’.

25    In the Anthropologists’ Expert Report, Mr Blackwood and Professor Memmott explain that the Darumbal society has:

… persisted like an unbroken cable, anchoring successive generations of country to their forebears, such that even with the disruption accorded by colonisation that there has been an identity that has remained stable throughout and that persists to this day, having been passed on through each generation.

26    Mr Blackwood and Professor Memmott observe that the Darumbal 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.

27    Mr Blackwood and Professor Memmott conclude that the claimants:

[C]ontinue to acknowledge and observe those laws and customs which gave rise to rights and interests in land among indigenous groups who occupied the [Application] area at the time of sovereignty.

28    They were also of the opinion that:

[T]here has been continuity of the three key laws and customs which united the language groups which occupied the claim area at the time of sovereignty as a native title society, through to the Darumbal native title society of today.

29    These three key laws and customs are the laws set out in the myths of their shared cosmology; collective ownership of the land through the relationship between groups and their country allocated to them in the time of their foundation myths; and the laws of filiation by which membership of the group and its sub-divisions passes from generation to generation, and validates anew for each generation the group's possession of its country, its sites, its rites and its language.

30    The Darumbal People are the descendants of the following persons:

    Brothers John McPherson or Harry Bauman;

    Kate Reid and James Hector;

    Clara McKenzie;

    Jack Naylor (Jnr);

    Maria McKenzie;

    Clara Wallace;

    Mundabel;

    Mary Jones;

    Maggie (Mitchell);

    Yorky;

    Kitty Mulway and Pompey of Stanage; and

who are recognised by the living Darumbal People according to their traditional laws and customs as Darumbal People.

31    The evidence filed, including Mr Blackwood and Professor Memmott’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 Darumbal People extending back to before the time of sovereignty. The evidence supports the claim that the traditional laws acknowledged and the traditional customs observed give the Darumbal People the rights and interests set out in paragraph 6 of the Orders.

The agreement reached between the parties

32    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:

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

    it would be appropriate to do so.

33    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).

34    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 at [5]. 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].

35    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: cf Munn at [29].

36    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 B of the application area: s 87A(1)(b) and (c). The Court is satisfied that the Commonwealth (the second respondent) does not hold interests in Part B of the claim and is not required to be party 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).

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

    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.

    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.

    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.

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

Prescribed Body Corporate

39    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.

40    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 Darumbal People Aboriginal Corporation RNTBC (ICN 8405) 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 an affidavit of Xingyin Yi which annexures a copy of a letter from Rodney William Mann, a Darumbal Person and a member of the applicant claim group, formally nominating the Darumbal People Aboriginal Corporation as the prescribed body corporate.

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

42    It is appropriate to determine that the Darumbal People 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

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

Associate:    

Dated:    1 December 2023