FEDERAL COURT OF AUSTRALIA

McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699

ORDERS

QUEENSLAND PART A AREA

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 Wongkumara 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 subject to the operation and any vesting effect of State Water Legislation.

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)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(c)    hunt, fish and gather on the land and waters of the area;

(d)    take the Natural Resources from the land and waters of the area;

(e)    take the Water of the area subject to the operation and any vesting effect of State Water Legislation;

(f)    conduct rituals, ceremonies and other religious, spiritual and cultural activities on the area;

(g)    conduct mortuary related rituals including to 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 harm;

(i)    teach on the area the physical and spiritual attributes of the area and its sites and the traditional laws and customs of the Native Title Holders to Native Title Holders or persons otherwise entitled to access the area;

(j)    hold meetings on the area;

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

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

(i)    spouses or partners of Native Title Holders;

(ii)    people who are members of the immediate family of a spouse or partner of a Native Title Holder; or

(iii)    people reasonably required by the Native Title Holders under traditional law and custom, including for the performance of ceremonies or cultural activities in the area.

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

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

(b)    the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

9.    The native title rights and interests referred to in 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:

“Animal” means any member of the animal kingdom (other than human), whether alive or dead;

“External Boundary” means the area described in Schedule 3;

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

“Laws of the State and the Commonwealth” means:

(a)    the common law and the laws of the State of Queensland; and

(b)    the common law and the laws of the Commonwealth of Australia;

and    includes    legislation,    regulations,    statutory    instruments,    local planning instruments and local laws;

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

(Qld);

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

(Qld);

“Natural Resources” means:

(a)    any Animals and Plants found on or in the lands and waters of the Determination Area; and

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

that have traditionally been taken by the Native Title Holders,

(c)    but does not include:

i.    minerals as defined in the Mineral Resources Act 1989 (Qld) (so far as applicable); or

ii.    petroleum as defined in the Petroleum Act 1923 (Qld) and the

Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“Plant” means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen;

“Reserve” means a reserve dedicated or taken to be a reserve under the Land Act 1994 (Qld);

“State Water Legislation” means The Rights to Water and Water Conservation and Utilization Act 1910 (Qld), Water Act 1926 (QLD), and Water Act 2000 (QLD);

“Water” means:

(a)    water which flows, whether permanently or intermittently, within a river, creek or stream;

(b)    any natural collection of water, whether permanent or intermittent;

(c)    water from an underground water source.

“Works” has the same meaning as in the Electricity Act 1994 (Qld).

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 Wangkumarra Kawalanyi Aboriginal Corporation (ICN: 7384), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

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 Wongkumara People.

The Wongkumara People are the descendants of ancestors who are recognised as having had a connection to the Determination Area in accordance with the laws and customs of the regional society described by Professor A P Elkin as ‘the Lakes Group’, and who are recognised and accepted by other Wongkumara People as being native title holders. Those ancestors include:

(a)    Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and WillyDutton);

(b)    Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga;

(c)    Maggie and Tommy (parents of Nelli Flash and Angelina);

(d)    Kutji (mother of George Dutton);

(e)    Tarella and her children Elizabeth and Harry (Fred) Hartnett;

(f)    Norman Harding;

(g)    Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis);

(h)    Jenny (mother of Alf Barlow); and

(i)    Neddie and Nancy (grandparents of Jimmy Sedeek).

The Wongkumara People include persons who are adopted into the families of the Wongkumara People in accordance with traditional laws and customs, and who are recognised and accepted by other Wongkumara People as being native title holders.

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 Santos Limited (ABN 80 007 550 923) as a party to the Santos-Wongkumara People ILUA (QI2012/073) registered on the Register of Indigenous Land Use Agreements on 4 January 2013.

2.    The rights and interests of Vintage Energy Limited (ACN 609 200 580) as a successor party to the Deed Regarding The Grant of ATP 2021 made pursuant to section 31(1)(b) of the Native Title Act 1993 (Cth) between The State of Queensland and Metgasco Ltd (ACN 088 196 383) (Metgasco) and Wongkumara People concluded on 26 March 2018 and the Conjunctive Ancillary Agreement referred to therein made between Metgasco and Wongkumara People.

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

(a)    term lease for communication purposes TL 242189 over Lot 5 on Survey Plan 184928.

4.    The rights and interests of the holders of the following tenements granted pursuant to the Petroleum Act 1923 (Qld) and administered under the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld):

(a)    petroleum leases PL 23, PL 24, PL 25, PL 26, PL 33, PL 34, PL 35, PL 36, PL 51, PL 58, PL 59, PL 60, PL 61, PL 62, PL 68, PL 75, PL 76, PL 77, PL 78, PL 79, PL 80, PL 81, PL 82, PL 83, PL 85, PL 85, PL, 87, PL 88, PL 108, PL 111, PL 112, PL 114, PL 129, PL 131, PL 132, PL 133, PL 135, PL 136, PL 137, PL 138, PL 141, PL 142, PL 143, PL 144, PL 145, PL 146, PL 147, PL 148, PL 149, PL 150, PL 151, PL 152, PL 153, PL 154, PL 155, PL 156, PL 158, PL 175, PL 177, PL 181, PL 182, PL 187, PL 193, PL 205, PL 241, PL 244, PL 249, PL 254, PL 255, PL 287, PL 288, PL 301 and PL 302; and

(b)    petroleum pipeline licences PPL 6, PPL 8, PPL 13, PPL 14, PPL 16, PPL 17, PPL 18, PPL 31, PPL 35, PPL 36, PPL 37, PPL 38, PPL 39, PPL 40, PPL 46, PPL 47, PPL 62, PPL 64, PPL 65, PPL 66, PPL 67, PPL 68, PPL 69, PPL 78, PPL 80, PPL 81, PPL 82, PPL 94, PPL 96, PPL 98, PPL 101 and PPL 105.

5.    The rights and interests of the holders of the following tenements granted pursuant to the Petroleum and Gas (Production and Safety) Act 2004 (Qld):

(a)    authorities to prospect ATP 752, ATP 1189, ATP 2021 ATP 2023;

(b)    potential commercial areas PCA 155, PCA 206, PCA 248, PCA 250, PCA 251, PCA 268, PCA 269, PCA 270, PCA 271, PCA 272, PCA 273, PCA 274, PCA 275, PCA 276, PCA 277, PCA 278, PCA 279, PCA 280 and PCA 281;

(c)    petroleum leases PL 495, PL 496, PL 502, PL 508, PL 509, PL 513, PL 1013, PL 1014, PL 1016, PL 1026, PL 1035, PL 1046, PL 1047, PL 1051, PL 1054, PL 1055, PL 1056, PL 1057, PL 1058, PL 1060, PL 1072, PL 1073, PL 1075, PL 1076, PL 1078, PL 1079, PL 1080, PL 1085, PL 1087, PL 1090, PL 1091, PL 1092, PL 1094, PL 1105, PL 1107, PL 1108, PL 1118 and PL 1120; and

(d)    petroleum pipeline licences PPL 111, PPL 113, PPL 127, PPL 128, PPL 142, PPL 169, PPL 187, PPL 190, PPL 2017, PPL 2031, PPL 2035, PPL 2036, PPL 2039, PPL 2042, PPL 2044, PPL 2045, PPL 2046, PPL 2050, PPL 2053, PPL 2054, PPL 2055, PPL 2067 and PPL 2071.

6.    The rights and interests of the holder of the following easements that exist within the Determination Area:

(a)    easements in land described as Lot 5 on Crown Plan CR9;

(b)    easements in land described as Lot 450 on Survey Plan 274333; and

(c)    easements in land described as Lot 415 on Crown Plan 835115.

7.    The rights and interests of Telstra Corporation Limited ACN 051 775 556, Amplitel Pty Ltd as trustee for the Towers Business Operating Trust ABN 75 357 171 746 and any of their successors in title:

(a)    as the owner(s) or operator(s) 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 telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c)    for their employees, agents or contractors to access their telecommunication 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 their telecommunications facilities in the Determination Area.

8.    The rights and interests of Essential Energy ABN 37 428 185 226 and any of its successors in title as follows:

(a)    as the owner(s) or operator(s) of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Telecommunications Act 1997 (Cth), Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under those Acts including rights:

(i)    to inspect land;

(ii)    to install, occupy and operate telecommunication facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for their employees, agents or contractors to access their telecommunication facilities in and in the vicinity of the Determination Area in the performance of their duties;

(d)    under any lease, licence, access agreement, permit or easement relating to their telecommunications facilities or as either or both owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure in the Determination Area;

(e)    as the owner(s) or operator(s) of any “Works” as the term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(f)    as an electricity entity under the Electricity Act 1994 (Qld) and any regulations under that Act, including but not limited to:

(i)    as the holder of a distribution authority;

(ii)    to access, use, inspect, maintain, repair, replace, upgrade or otherwise deal with any Works in the Determination Area;

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

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

(g)    The Applicant acknowledges that, by the operation of s 23B of the Native Title Act 1993 (Cth), native title has been extinguished over:

(i)    land upon which, or waters over which, overhead powerlines and associated infrastructure owned and operated by Essential Energy (being a public work as defined in s 253 of the Native Title Act (Cth) (“Powerlines”) have been constructed (“Powerline Locations”); and

(ii)    any adjacent land or waters in accordance with section 251D of the Native Title Act 1993 (Cth) (Adjoining Land) being:

(A)    in relation to land adjoining 33kV Powerlines a total of 30 metres (ie.15 metres either side of the Powerlines); and

(B)    in relation to land adjoining 19.1kV Powerlines a total of 20 metres (ie.10 metres either side of the Powerlines).

(h)    Despite paragraph (g), but subject to paragraphs (i) and (j) below, Essential Energy has no objection to the native title holders exercising the rights set out in orders 6 and 7 over the Powerline Locations or on the Adjoining Land as if native title rights had not been extinguished by the matters acknowledged in paragraph (g);

(i)    The native title holders:

(i)    must not camp or erect any shelter on the Powerline Locations or the Adjoining Land;

(ii)    must comply with any reasonable direction of Essential Energy in respect of the Powerline Locations or Adjoining Land;

(iii)    acknowledge that Essential Energy may erect, install, extend, alter, upgrade, replace, maintain and /or remove the Powerlines or construct new powerlines in the same position as the existing Powerlines or on the Adjoining Land; and

(iv)    agree that Essential Energy:

(A)    may exercise all of its statutory rights in respect of the Powerline Locations and the Adjoining Land without having to comply with the procedural requirements in the Native Title Act 1993 (Cth);

(B)    is not liable to compensate the native title holders when exercising its statutory, or other, rights.

(j)    Paragraphs (g), (h) and (i) do not apply where native title has been wholly extinguished over the Powerline Locations or Adjoining Land for reasons other than as set out in paragraph (g);

(k)    Nothing in paragraphs (a) to (j) detracts from Essential Energy’s statutory obligations in relation to the preservation of Aboriginal cultural heritage, including but not limited to any such obligations under the Aboriginal Cultural Heritage Act 2003 (Qld), insofar as there may be any places or objects within the Powerline Locations or Adjoining Land to which such obligations apply.

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

(a)    as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(b)    as 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 on which these orders are made; and

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

10.    The rights and interests of Bulloo Shire Council, Barcoo Shire Council and Quilpie Shire Council:

(a)    under their local government jurisdiction and functions under the Local Government Act, 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 their respective Local Government Area;

(b)    as the:

(i)    lessors 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)    grantors 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)    party to any agreement with a third party which relates to land and waters in the Determination Area; and

(iv)    holders of any estate or any other interest in land, including as trustee of any Reserves or holder of any interest under access agreements and easements that exist in the Determination Area;

(c)    as the owners and operators 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 the Bulloo Shire Council or Barcoo Shire Council or Quilpie Shire 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 the Bulloo Shire Council or Barcoo Shire Council or Quilpie Shire Council;

(viii)    cemetery and cemetery-related facilities;

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 10(a), 10(b)or 10(c) above by its employees, agents or contractors to:-

(i)    exercise any of the rights and interests referred to in this paragraph 10 and paragraph 11 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 10(c) above;

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

11.    The rights and interests of the State of Queensland and the Bulloo Shire Council, Barcoo Shire Council and Quilpie Shire 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.

12.    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.

13.    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 Fisheries Act 1994 (Qld);

(b)    the Land Act 1994 (Qld), the Land Act 1962 (Qld) or the Land Act 1910 (Qld);

(c)    the Nature Conservation Act 1992 (Qld);

(d)    the Forestry Act 1959 (Qld);

(e)    the Water Act 2000 (Qld);

(f)    the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety) Act 2004 (Qld);

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

(h)    the Planning Act 2016 (Qld);

(i)    the Electricity Act 1994 (Qld);

(j)    the Transport Infrastructure Act 1994 (Qld); and

(k)    the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).

14.    The rights and interests of members of the public arising under the common law or statute, including but not limited to any subsisting public right to fish.

15.    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;

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

16.    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 of Queensland and the Commonwealth.

Schedule 3 – External Boundary

Commencing at a point on the Queensland-New South Wales state border at approximately 12.5 kilometres east of Warri Gate at Longitude 142.058008° East (being the southernmost south western corner of Native Title Determination QUD80/2009 Kullilli People (QCD2014/013)) and extending easterly along that state border / native title determination to Longitude 142.069035° East; then generally south easterly and generally south westerly passing through the following coordinate points:

Then south westerly towards Longitude 142.025721° East, Latitude 29.732544° South until the intersection with Latitude 29.728573° South; then generally westerly passing through the following coordinate points:

Then south westerly to the intersection of Latitude 29.604657° South with a line joining Longitude 141.576353° East, Latitude 29.667311° South and 141.487649° East, Latitude 29.581761° South; then generally north passing through the following coordinate points:

Then generally northerly then south easterly passing through the following coordinate points:

Then south easterly to the centreline of Wilson River at Longitude 142.921279° East, being a point on a northern external boundary of Native Title Determination QUD80/2009 Kullilli People (QCD2014/013); then generally south westerly along that native title determination external boundary back to the commencement point.

For the avoidance of any doubt, the application excludes any area subject to:

    Native Title Determination QUD80/2009 Kullilli People (QCD2014/013) as determined by the federal court on 2 July 2014.

    Native Title Determination SAD6024/1998 Yandruwandha/Yawarrawarrka Native Title Claim (SCD2015/003) as determined by the federal court on 16 December 2015.

    Native Title Determination QUD435/2006 Boonthamurra People Native Title Claim (QCD2015/008) as determined by the federal court on 25 June 2015.

Note

Data Reference and source

    Application boundary compiled by National Native Title Tribunal based on information or instructions provided by the applicants.

    State borders derived from cadastre data sourced from the Department of Resources, Qld, February 2022.

    Wilson River centreline based on Major watercourse lines – Queensland topographic data sourced from © State of Queensland (Department of Resources) 2021, October 2021, else casement data where available.

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are 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 of 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.

Prepared by Spatial Information, Department of Resources (31 January 2024)

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 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:

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 or had been 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 or 47B of the Native Title Act 1993 (Cth) applied.

(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

ORDERS

NEW SOUTH WALES PART A AREA

BEING SATISFIED that a determination of native title in the terms sought by the parties is within the power of the Court and it appearing to the Court that it is appropriate to do so by agreement of the parties under sections 87A(1) and 87A(4) and in accordance with section 94A of the Native Title Act 1993 (Cth):

THE COURT NOTES THAT:

A.    On 11 March 2008, the Applicant in proceeding QUD 851 of 2018 made a native title determination application in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia, which has been amended on 16 April 2008, 26 August 2009, 2 September 2009, 12 September 2016 and 20 May 2022.

B.    The parties who have an interest in this determination have reached an agreement as to the terms of a proposed determination of native title to be made by agreement pursuant to section 87A, and in accordance with section 94A, of the Native Title Act 1993 (Cth) in relation to a part of the land or waters of Part A that are wholly within the jurisdictional limits of New South Wales (the “NSW Part A determination area”), being that:

(1)    native title exists in relation to a part of the NSW Part A determination area (the “native title area”); and

(2)    native title has been extinguished in relation to the remainder of the NSW Part A determination area (the “extinguished area”).

C.    In accordance with section 87A(2) of the Native Title Act 1993 (Cth) the parties have filed a minute of proposed determination of native title by agreement.

D.    The Applicant has nominated Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the common law holders.

E.    Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 has consented in writing to hold the determined rights and interests comprising the native title in trust for the common law holders and to perform the functions of a registered native title body corporate under the Native Title Act 1993 (Cth).

BY AGREEMENT THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out below.

2.    The determination takes effect upon the date on which the agreement referred to in paragraph 1 of Schedule Four (agreements) is registered on the Register of Indigenous Land Use Agreements, pursuant to section 199B of the Native Title Act 1993 (Cth).

3.    In the event that the agreement referred to in Order 2 above is not registered on the Register of Indigenous Land Use Agreements on or before 12 months, or at such later time as this Court may order, the matter is to be listed before the Court for a case management hearing.

4.    On the determination of native title taking effect, Wangkumarra Kawalanyi Aboriginal Corporation, ICN 7384 is to hold the determined native title in trust for the common law holders pursuant to section 56(3) of the Native Title Act 1993 (Cth) and is to:

(a)    be the prescribed body corporate for the purposes of section 57(1) of the Native Title Act 1993 (Cth); and

(b)    perform the functions set out in section 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

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

BY AGREEMENT THE COURT DETERMINES THAT:

6.    Native title exists in relation to the native title area described in Schedule One (native title area) and depicted in the maps at Part 1.6 (maps of the native title area) of that Schedule.

7.    Any extinguishment of native title in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) is to be disregarded in accordance with section 47A(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist in relation to that land or waters.

8.    Any extinguishment of native title in relation to the land or waters described in Part 1.1 (Exclusive native title area) of Schedule One (native title area) is to be disregarded in accordance with section 47B(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist and to be exclusive in relation to those areas.

9.    Native title has been extinguished in relation to the extinguished area, described in Schedule Two (extinguished area) and depicted on the maps at Part 2.5 (maps of extinguished areas) of that Schedule, being subject to a previous exclusive possession act attributable to the State of New South Wales in accordance with section 20 of the Native Title (New South Wales) Act 1994 (NSW) and to which none of sections 47A, 47B or 47C of the Native Title Act 1993 (Cth) apply.

10.    To the extent of any inconsistency between the written description in Schedule One (native title area) and Schedule Two (extinguished area) and the maps in either Schedule, the written description prevails.

Native title holders

11.    The native title holders are the ‘Wongkumara People’. The Wongkumara People are the descendants of ancestors who are recognised as having had a connection to the application area in accordance with the laws and customs of the regional society described by Professor A P Elkin as “the Lakes Group”, and who are recognised and accepted by other Wongkumara People as being native title holders. Those ancestors include:

(a)    Charlotte (mother of Jack, Queenie and May Hines, Rosie Jones and Willy Dutton);

(b)    Siblings Polly (mother of Albert Ebsworth, Sam and Tommy Burgamar) and Charlie Nockatunga;

(c)    Maggie and Tommy (parents of Nellie Flash and Angelina);

(d)    Kutji (mother of George Dutton);

(e)    Tarella and her children Elizabeth and Harry (Fred) Hartnett;

(f)    Norman Harding;

(g)    Siblings Nellie (mother of Lucy Harding) and Judy (mother of Donald David Gillis);

(h)    Jenny (mother of Alf Barlow); and

(i)    Neddie and Nancy (grandparents of Jimmy Sedeek).

12.    The Wongkumara People also include persons who are adopted into the families of the Wongkumara People in accordance with traditional laws and customs, and who are recognised and accepted by other Wongkumara People as being native title holders.

Nature and extent of native title rights and interests in the native title area

13.    Subject to paragraphs 15 and 17, the native title rights and interests in respect of the land and waters identified in Part 1.1 (Exclusive native title area), the native title rights and interests are as follows:

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

(b)    in relation to water, the non‐exclusive right 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, subject to the operation and any vesting effect of the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).

14.    Subject to paragraphs 15, 16 and 17, the nature and extent of the native title rights and interests in relation to the non-exclusive native title area identified in Part 1.2 (Crown land in the non-exclusive native title area) and Part 1.3 (the national park estate in the non-exclusive native title area) are the following non- exclusive native title rights:

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

(b)    live and camp on the area and for those purposes to erect shelters and other structures thereon;

(c)    hunt, fish and gather on the land and waters of the area;

(d)    take the natural resources from the land and waters of the area;

(e)    take the water of the area, subject to the operation and any vesting effect of the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW);

(f)    conduct rituals, ceremonies and other religious, spiritual and cultural activities on the area;

(g)    conduct mortuary related rituals including to 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 on the area and protect those places and areas from harm;

(i)    teach on the area the physical and spiritual attributes of the area and its sites and the traditional laws and customs of the native title holders to native title holders or persons otherwise entitled to access the area;