FEDERAL COURT OF AUSTRALIA

Paterson on behalf of the Yandruwandha Yawarrawarrka People v State of Queensland [2024] FCA 700

ORDERS

QUEENSLAND PART B 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)

THE COURT NOTES THAT:

A.    In the areas subject to this determination, the native title of the Wongkumara People and the separate and distinct native title of the Yandruwandha Yawarrawarrka People, wholly overlap geographically.

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.    Wongkumara People Native Title exists in relation to the whole of the Determination Area described in Schedule 4.

5.    Wongkumara People Native Title is held by, and only by, Wongkumara People.

6.    Subject to orders 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 4, held by the Wongkumara People 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.

7.    Yandruwandha Yawarrawarrka People Native Title exists in relation to the whole of the Determination Area described in Schedule 4.

8.    Yandruwandha Yawarrawarrka People Native Title is held by, and only by, Yandruwandha Yawarrawarrka People.

9.    Subject to orders 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 4, held by the Yandruwandha Yawarrawarrka People 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.

10.    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, respectively, the Wongkumara People or the Yandruwandha Yawarrawarrka People.

11.    The native title rights and interests referred to in order 6 and 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

12.    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).

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

14.    The relationship between the native title rights and interests described in orders 6 and 9 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

15.    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.

“Wongkumara People” means the people described in Section A of Schedule 1;

“Wongkumara People Native Title” means the native title rights and interests held by the Wongkumara People described in order 6;

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

“Yandruwandha Yawarrawarrka People” means the people described in Section B of Schedule 1;

“Yandruwandha Yawarrawarrka People Native Title” means the native title rights and interests held by the Yandruwandha Yawarrawarrka People described in order 9;

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:

16.    The Wongkumara People Native Title is held in trust.

17.    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,

in relation to the Wongkumara People Native Title.

18.    The Yandruwandha Yawarrawarrka Native Title is not held in trust.

19.    The Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) RNTBC (ICN: 3840), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate,

in relation to the Yandruwandha Yawarrawarrka Native Title.

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:

A. 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 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).

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.

B. The Yandruwandha Yawarrawarrka People

The Yandruwandha Yawarrawarrka People consists of those living Aboriginal people who identify as, and are recognised by other Yandruwandha Yawarrawarrka People as Yandruwandha or Yawarrawarrka (or both), because:

(a)    he or she is biologically descended from one or more of the following Yandruwandha Yawarrawarrka:

(i)    Annie (born at Cordillo Downs), mother of Archie Guttie;

(ii)    Clara Nirrpinni, mother of Frank Booth and Alice Miller (nee Booth);

(iii)    Cora the mother of Bob Parker and Nellie Parker;

(iv)    The parents of Flash Ted Bikehandle and Flash Tommy;

(v)    Kimi (born at Innamincka) and his wife;

(vi)    Maramundu Jack “The Ripper” Parker;

(vii)    Caroline (born at Cordillo Downs) the mother of Mary Stafford (nee Moore), Jack Moore, Charlie Moore, female twins (Winifred and Freida) and Albert Moore;

(viii)    Brothers Walter Harris(on) and Dick Harrison;

(ix)    The parents of Lily (whose married name is Parker) and her sister Kathlene (whose married name is George)

(x)    Annie and her husband, who are the parents of Coongie Maggie (born at Coongie Lakes in South Australia);

(xi)    The parents of siblings set – Billy Parker, Jessy Parker, Peter “Petekin” Parker, and Paddy Parker;

(xii)    The parents of siblings set – Merty George and Merty Johnny and Merty Mick;

(xiii)    Larriken Mick; or

(b)    he or she is biologically descended from such other ancestor who is acknowledged by the Yandruwandha Yawarrawarrka People as a Yandruwandha or Yawarrawarrka apical ancestor.

Schedule 2 – Other Interests in the Determination Area

The nature and extent of the Other Interests in relation to the Determination Area are as follows 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 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 34, PL 55, PL 63, PL 84, PL 88, PL 110, PL 130, PL 134, PL 140, PL 159, PL 186, PL 193; and

(b)    petroleum pipeline licences PPL 12, PPL 13, PPL 21, PPL 23, PPL 48, PPL 72, PPL 80, PPL 86.

4.    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;

(b)    potential commercial areas PCA 206, PCA 248, PCA 252, PCA 253, PCA 254, PCA 282 and PCA 283;

(c)    petroleum leases PL 303, PL 497, PL 508, PL 509, PL 513, PL 1028, PL 1077, PL 1119; and

(d)    petroleum pipeline licences PPL 127, PPL 129, PPL 137, PPL 170 and PPL 2049.

5.    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.

6.    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 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; and

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

7.    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.

8.    The rights and interests of Bulloo Shire Council and Barcoo 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 Areas;

(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;

(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;

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 8(a), 8(b) or 8(c) above by their employees, agents or contractors to:-

(i)    exercise any of the rights and interests referred to in this paragraph 8, and paragraphs 9 and 10 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 8(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.

9.    The rights and interests of the State of Queensland and the Bulloo Shire Council and Barcoo 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.

10.    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.

11.    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) or the Land Act 1962 (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).

12.    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.

13.    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.

14.    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

Commencing at a point on the South Australian / Queensland State Borders at Latitude 28.038194° South and extending northerly along that State Border to Latitude 26.913783° South, then generally north easterly, generally southerly, generally south westerly and generally north westerly back to the commencement point passing through the following coordinate points:

For the avoidance of any doubt, any land and waters within the external boundary of the following are excluded:

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

Note

Data Reference and source

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

Reference datum

Geographical coordinates have been provided by the National Native Title Tribunal 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 Geospatial Services, National Native Title Tribunal (15 March 2021)

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 below, and depicted in the maps in Light Blue on the determination map contained in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

~ denotes areas to which s 47B of the Native Title Act 1993 (Cth) applies.

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 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), including, but not limited to, the whole of the land and waters described as:

(i)    Easement B in AP9287 within Lot 5 on Plan CR9;

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

REASONS FOR JUDGMENT

MURPHY J

INTRODUCTION

1    In this application the applicant, Aaron Charles Patterson and Robert Singleton on behalf of the Yandruwandha Yawarrawarrka People, seeks a consent determination under s 87A of the Native Title Act 1993 (Cth) (NTA) to recognise the native title rights and interests of the Yandruwandha Yawarrawarrka People in part of the claim area in proceeding QUD 133 of 2021 (the YY Application). The proposed determination covers approximately 6,367 square km in south-west Queensland lying along the border with South Australia.

2    The parties have filed an agreement under s 87A of the NTA signed by all necessary parties (s 87A Agreement) to which is annexed a draft consent determination. The proposed determination area covers the lands and waters within the State of Queensland (State) that are described in Schedule 4 of the draft consent determination and depicted in the map attached at Schedule 6 (to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5) which is described in these reasons as the Queensland Part B Area (Queensland Part B Area). The key map attached to Schedule 6 of the draft determination for the Queensland Part B Area is reproduced as Annexure 1 to these reasons.

3    It is necessary to understand that the proposed determination is a single determination, but one which recognises the separate and distinct native title rights of both the Wongkumara People and Yandruwandha Yawarrawarrka People in the Queensland Part B Area. The claim area in the YY Application wholly geographically overlaps part of the claim area in the native title determination application by the Wongkumara People in proceeding QUD 851 of 2018 (Wongkumara Application). The Queensland Part B Area comprises only a small part of the Wongkumara claim area which covers almost 48,000 square km.

4    In these reasons I will not say much about the proposed determination that the Wongkumara People hold native title rights and interests in relation to the Queensland Part B Area. These reasons focus on the proposed determination of native title for the Yandruwandha Yawarrawarrka People and I will hand down separate reasons in relation to the Wongkumara Application.

5    This proposed determination of native title for the Yandruwandha Yawarrawarrka People is plainly important to them, and they fought hard to achieve recognition of their rights and interest in this area. Before the parties agreed on a consent determination the YY Application and the Wongkumara Application were the subject of a hearing of separate questions ordered by the Court in which lay evidence was heard on country from 9 to 27 May 2022 and expert evidence heard on 6 and 7 March 2023 (Separate Questions hearing). The proposed determination area comprises approximately 6,367 square km. That is a large area, but it is dwarfed by existing Yandruwandha Yawarrawarrka native title holdings. In 2015 the Court recognised the native title of the Yandruwandha Yawarrawarrka People over a vast area in the far north-east corner of South Australia covering approximately 40,240 square kms: see Nicholls v State of South Australia [2015] FCA 1407.

6    The evidence in this case, and the decision in Nicholls, indicate that the Yandruwandha and Yawarrawarrka peoples have had an enduring connection to the country in this region for tens of thousands of years. The evidence suggests that following European settlement there was widespread displacement of the Yandruwandha and Yawarrawarrka peoples resulting in a significant population decline, and residential movement away from traditional estates to the township of Innamincka and to pastoral stations. It indicates that the shift in the traditional land tenure system to accommodate cognatic descent is an adaptation that has its basis in traditional law and custom brought about in response to the impacts of European settlement.

7    By this determination the Court recognises that despite dispossession from their country by pastoralists, and more latterly by mining interests, the Yandruwandha Yawarrawarrka People have managed to maintain their culture and a deep connection to their country. That is a testament to their strength, their commitment and their love of country. It is important to understand that by this determination the Court does not grant native title to the Yandruwandha Yawarrawarrka People; instead, it is a recognition that the Yandruwandha Yawarrawarrka People have always had traditional rights and interests in this country.

8    For the reasons I now turn to explain, I am satisfied that it is within the power of the Court to make the orders sought in relation to the determination area, and that it is appropriate to do so.

9    The named applicants in the YY Application deserve the respect of their community and our congratulations. This has been a hard fought proceeding, and they worked hard to get a result. The orders reflect the hard and effective work of all parties, particularly the Yandruwandha Yawarrawarrka applicant, the Wongkumara applicant and the State of Queensland, and their willingness to compromise. They also reflect the hard work of Judicial Registrar Simon Grant in case-managing the proceedings and assisting in reaching a mediated outcome. They too deserve our thanks and congratulations.

THE MATERIAL RELIED UPON

10    The following materials are before the Court:

(a)    the section 87A Agreement signed by the parties with an annexed draft consent determination in relation to the Queensland Part B Area filed 11 June 2024;

(b)    the submissions of the Yandruwandha Yawarrawarrka applicant seeking a consent determination of native title in relation to the Queensland Part B Area dated 19 June 2024;

(c)    the submissions of the Wongkumara applicant seeking a consent determination of native title in relation to, inter alia, the Queensland Part B Area, filed 24 June 2024;

(d)    the submissions of the State in support of the applications for a consent determination of native title by the Yandruwandha Yawarrawarrka applicant and the Wongkumara applicant in relation to, inter alia, the Queensland Part B Area filed 21 June 2024; and

(e)    an affidavit of Daniel James Webb, a solicitor employed by South Australian Native Title Services Ltd (SANTS) with the day-to-day carriage of the YY Application, affirmed 21 June 2024.

11    The parties also rely upon the lay and expert evidence adduced in the Separate Questions hearing. Some of the submissions in support of the proposed determination refer in some detail to that evidence.

THE CLAIMANTS AND THEIR COUNTRY

The Yandruwandha Yawarrawarrka People

12    Schedule 1 of the proposed determination describes the Yandruwandha Yawarrawarrka People as those living Aboriginal people who identify as, and are recognised by other Yandruwandha Yawarrawarrka Native Title Holders as Yandruwandha or Yawarrawarrka (or both), because:

(a)    he or she is biologically descended from one or more of the following Yandruwandha Yawarrawarrka apical ancestors:

(i)    Annie (born at Cordillo Downs), mother of Archie Guttie;

(ii)    Clara Nirrpinni, mother of Frank Booth and Alice Miller (nee Booth);

(iii)    Cora the mother of Bob Parker and Nellie Parker;

(iv)    The parents of Flash Ted Bikehandle and Flash Tommy;

(v)    Kimi (born at Innamincka) and his wife;

(vi)    Maramundu Jack “The Ripper” Parker;

(vii)    Caroline (born at Cordillo Downs) the mother of Mary Stafford (nee Moore), Jack Moore, Charlie Moore, female twins (Winifried and Freida) and Albert Moore;

(viii)    Brothers Walter Harris(on) and Dick Harrison;

(ix)    The parents of Lilly (whose married name is Parker) and her sister Kathlene (whose married name is George);

(x)    Annie and her husband, who are the parents of Coongie Maggie (born at Coongie Lakes in South Australia);

(xi)    The parents of the sibling set – Billy Parker, Jessy Parker, Peter “Petekin” Parker, and Paddy Parker;

(xii)    The parents of sibling set – Merty George and Merty Johnny and Merty Mick;

(xiii)    Larriken Mick; or

(b)    he or she is biologically descended from such other ancestor who is acknowledged by the Native Title Holders as a Yandruwandha or Yawarrawarrka apical ancestor.

13    That is the same description of the Yandruwandha Yawarrawarrka People as approved by the Court in Nicholls which recognised the native title of the Yandruwandha Yawarrawarrka People over a large area in the far north-east corner of South Australia running up to the Queensland border, being the westernmost boundary of the Queensland Part B Area.

14    Amongst other things, in Nicholls, the Court held that:

(a)    in around the 1860s there was a body of laws and customs shared by speakers of a common language in the claim area. Yandruwandha and Yawarrawarrka are identified in the evidence as dialects of this language (at [26]);

(b)    the features of the early society included a common language, exogamous matri-moieties called tiniwa and kulpuru; matri-totem called kamiri; a tenure system focussed on one or more patrilineally inherited nari sites; “increase” ceremonies centred on appropriate nari sites and involving men with both patrilineal and matrifilial associations to those sites; initiatory ceremonies involving only circumcision and wilyaru rites; and a common system of preferred marriage arrangements (at [27]);

(c)    the contemporary society comprised a number of family groups defined by reference to descent from the same ancestors as in the present claim, that were said to be united in their observance and acknowledgement of a common set of laws and customs. The family groups were said to be the primary means by which rights and interests in cultural knowledge are transmitted and policed by the claimants. They are also the means by which members of the group claim a primary association with particular parts of the claim area. Everyone in the group is identified as kin (at [28]);

(d)    membership of the group is established through cognatic descent from a set of recognised ancestors from that claim area (at [29]);

(e)    although the traditional system of laws and customs observed by the group has become simplified in many respects, the Court accepted that the evidence provides sufficient basis to accept that there continues to be amongst Yandruwandha and Yawarrawarrka people, a commonality of laws, customs, spiritual matters and kinship such that they form a recognisable society for the purpose of a native title consent determination (at [33]);

(f)    the evidence shows that, although much of the detail of the traditional system of laws and customs in the claim area has been lost, there has been a continuity of some key traditional features of Yandruwandha Yawarrawarrka society from the past to the present (at [36]);

(g)    this includes a continued sense of obligation to country and a common belief in spirits and spiritual powers that inform how Yandruwandha Yawarrawarrka people behave and what is considered appropriate conduct in relation to the land (e.g. not touching artefacts, challenging people who are threatening heritage sites, looking after gravesites). There is evidence that such beliefs and practices have existed since traditional times (at [37]); and

(h)    the experts generally agree that other contemporary laws and customs detailed in the Report are likely continuations of pre-sovereignty tradition. Examples include; name avoidance of the dead, acknowledgement of male and female domains of knowledge and land, significance attached to initiation sites and the status accorded to initiated men (at [39]).

The Determination Area

15    The Queensland Part B Area covers an area of approximately 6,367 square km in far southwest Queensland, centred on the Cooper Creek valley at Nappa Merrie Station, and extends in a strip adjacent to the South Australian border, tapering at the northern and southern extremities. At its western boundary, the application area adjoins the determination area of the 2015 native title determination in Nicholls which recognised the native title rights and interests of the Yandruwandha Yawarrawarrka People. The southern extremity of the application area lies in the vicinity of Omicron Homestead, approximately 18 km north of the Fortville Gate on the NSW border, and approximately 18 kilometres east of the South Australian border. From Omicron, the boundary of the YY claim area extends north-west to meet the South Australian border kilometres 10 kms north of where the Dullingari-Epsilon Road crosses that state border. The boundary then extends due north along the South Australian border to approximately 17 kms southwest of Arrabury Station. It then extends in a northeasterly direction to its northern extremity at the Cook Oil Field. It then turns south, passing approximately 2 kms along it is to the east of Lake Pure, before crossing the Cooper Creek at the eastern end of Maapoo Waterhole, crossing the Orientos Road in the vicinity of Bean Tree Waterhole, passing just to the west of the Tickalara Oil Field, before returning to the southern extremity in the vicinity of Omicron. At its widest point, in the Cooper Creek valley, the Yandruwandha Yawarrawarrka Application Area is approximately 33 kms wide. From its southern extremity to its northern extremity, it extends approximately 239 kms.

THE PROCEDURAL HISTORY

16    The Wongkumara Application (which consolidated the applications which preceded it) commenced on 11 March 2008 and was numbered QUD 52 of 2008, and later renumbered QUD 851 of 2018 as part of the Court’s program to digitise Court files.

17    On 24 May 2019 two Yandruwandha Yawarrawarrka men, Aaron Paterson and Christopher Nicholls, applied to be joined as respondents to the Wongkumara Application. I heard that application on 12 December 2019. I indicated some views in relation to the application, and the joinder applicants and the Wongkumara Applicant then agreed to orders to refer the joinder application to mediation. Mediation before a registrar then ensued which resulted in an agreement on 25 May 2020 as to the terms on which they would be joined as respondents. They were then joined as respondents.

18    On 27 October 2020, the Court made orders that Robert Singleton be substituted for Christopher Nicholls as one of the joinder applicants.

19    On 5 November 2020, the Court made orders that the Wongkumara Application be partitioned into:

(a)    the Part A Area, being the vast majority of the Wongkumara claim area; and

(b)    the Part B Area, being a portion of the Wongkumara claim area in south-west Queensland lying along the border with South Australia, comprising approximately 6,367 square kms, which it was anticipated would be overlapped by a native title determination application by the Yandruwandha Yawarrawarrka People.

20    On 28 April 2021 the YY Application was filed in the Court. It wholly geographically overlapped the Part B Area of the Wongkumara Application,

21    On 21 July 2021 the Court set down the several separate questions for hearing. The relevant separate question to the Part B Area provided as follows:

Part B

But for any question of extinguishment of native title and the determination of matters required by sub-sections 225(c), (d) and (e) of the Native Title Act 1993 (Cth), are native title rights and interests (as defined in section 223 of the Native Title Act 1993 (Cth)) held in the Part B area by:

(a)    members of the Wongkumara native title claim group under their traditional laws and customs; and if so:

(i)    which part or parts of the Part B area?; and

(ii)    what is the nature and extent of those rights and interests?; and/or

(b)    members of the Yandruwandha Yawarrawarrka native title claim group under their traditional laws and customs; and if so:

(i)    which part or parts of the Part B area?; and

(ii)    what is the nature and extent of those rights and interests?

22    On that date the Court also made an order under s 67(1) of the NTA that the YY Application and the Wongkumara Application be dealt with in the same proceeding and determined at the same time.

23    From 9 to 27 May 2022 the Court heard evidence from Yandruwandha Yawarrawarrka and Wongkumara lay witnesses in Charleville and at numerous sites of cultural and spiritual significance within, inter alia, the Part B Area.

24    The parties filed further anthropologist’s reports between December 2022 and January 2023. The Yandruwandha Yawarrawarrka applicant filed reports by Mr Kim McCaul and Professor Peter Sutton, the Wongkumara applicant filed reports by Professor David Trigger and Dr Sandra Pannell, and the State filed reports by Dr Andrew Sneddon, and the Attorney General of NSW filed reports by Dr Lee Sackett

25    A conference of experts was held on 6, 7 and 8 February 2023 at which Professor Trigger, Dr Pannell, Dr Sackett, Dr Sneddon and Mr McCaul were in attendance. At the conference, the experts were able to reach substantial agreement on opinions they outlined in the joint Report of the Conference of Experts filed 10 February 2023 (Experts’ Conference Report).

26    On 6 and 7 March 2023 the Court heard expert evidence from Professor Trigger, Dr Pannell, Dr Sackett, Dr Sneddon and Mr McCaul.

27    Following a mediation before Judicial Registrar Colbran on 8 March 2023, the Yandruwandha Yawarrawarrka and Wongkumara applicants agreed in principle that both the Yandruwandha Yawarrawarrka People and the Wongkumara People have separate and distinct native title rights and interests in the entirety of the Queensland Part B Area.

28    The State then agreed to proceed to substantive negotiations towards a consent determination in regard to the Queensland Part B Area with the Yandruwandha Yawarrawarrka and Wongkumara applicants.

29    During the balance of 2023, with the assistance of Judicial Registrar Grant the Yandruwandha Yawarrawarrka and Wongkumara applicants engaged in negotiation with, inter alia, the State. This process led to agreement about the terms upon which the Yandruwandha Yawarrawarrka and Wongkumara native title rights and interests could be recognised in the Queensland Part B Area, by consent.

30    The parties resolved that for the purposes of the proposed consent determinations relating to the Wongkumara claim areas that they be further partitioned into three areas:

(1)    the Queensland Part A Area, comprising the land and waters in Part A that are within Queensland;

(2)    the NSW Part A Area, comprising the land and waters in Part A that are within NSW; and

(3)    the Queensland Part B Area, comprising the land and waters in Part A within Queensland which are overlapped by the claim area in the YY Application.

THE REQUIREMENTS UNDER SECTION 87A OF THE NTA

31    Section 87A of the NTA prescribes the following preconditions before the Court can make a consent determination of native title:

(a)    there is a proceeding in relation to an application for determination of native title (subs (1)(a));

(b)    the specified notice period under s 66 has ended (subs (1)(b));

(c)    agreement is reached as to a proposed determination of native title in relation to an area (the determination area), that is part of, but not all of, the area covered by the native title determination application (subs (1)(b));

(d)    the necessary parties are all parties to the agreement (subs 1(c));

(e)    the terms of the proposed determination are in writing and signed by or on behalf of all the necessary parties (subs (1)(d));

(f)    the requirements regarding a registered native title claimant being a party to the agreement and signing the terms of the proposed determination are satisfied (subs (1A) and (1B));

(g)    the proposed determination of native title is filed with the Court (subs (2));

(h)    the Chief Executive Officer of the Court has given notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court (subs (3));

(i)    the Court may make an order in, or consistent with, the terms of the proposed determination without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(i)    the order would be within the power of the Court (subs (4)(a)); and

(ii)    it would be appropriate to do so (subs (4)(b)); and

(j)    in considering whether to make an order under subs (4) the Court has taken into account any objection made by the other parties to the proceeding (subs (8)).

32    Putting to one side the questions arising under s 87A(4), I am satisfied that each of the requirements of s 87A have been met in the present application for a consent determination . I note that:

(a)    both the Wongkumara Application and the YY Application are applications for determination of native title filed in the Court (subs (1)(a));

(b)    the notification period under s 66 of the NTA ended on 12 November 2008 for the Wongkumara Application, and on 7 December 2021 for the YY Application (subs (1)(b));

(c)    the parties have reached agreement as to a proposed determination of native title in relation to part of the area claimed in the YY Application and also part of the area claimed in the Wongkumara Application (subs (1)(b));

(d)    the parties’ submissions recount all of the signatories to the s 87A Agreement, and I am satisfied that they comprise all of the necessary parties (subs 1(c));

(e)    the terms of the proposed consent determination are in writing, and annexed to the s 87A Agreement which is signed by or on behalf of all necessary parties (subs (1)(d));

(f)    all necessary parties have had notice of the proposed consent determination, as evidenced by their signatures to the s 87A Agreement (subs (3));

(g)    there are no objections to the proposed consent determination by the other parties to either the YY Application or the Wongkumara Application (subs (8)).

33    The balance of the Court’s consideration thus turns upon whether the Court has the power to make the orders sought (s 87A(4)(a)) and whether it is appropriate to make the orders sought (s 87A(4)(b)). I address those matters below.

The power to make the orders sought – s 87A(4)(a)

34    In relation to the question of power under s 87A(4)(a) of the NTA I am satisfied that:

(a)    the Court has jurisdiction to hear and determine the YY Application and the Womgkumara Application (s 81);

(b)    the terms of the proposed consent determination are within the power of the Court, in the sense that the native title rights and interests that are to be declared properly reflect the characteristics of native title rights and interests set out in s 223 of the NTA and the terms confer native title rights and interests recognisable by the common law of Australia. Those requirements, as considered in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422, were summarised by North J in Lovett v Victoria (No 5) [2011] FCA 932 at [22] as follows:

In summary those requirements are that there was, at sovereignty, a body of persons united in their acknowledgment and observance of a body of laws and customs, who held rights and interests in land and waters pursuant to those laws and customs, and by which they were connected to the land and waters. The group must have maintained its identity and its connection with the land and waters, and must continue to acknowledge the laws and observe the customs substantially uninterrupted, from sovereignty to the present.

The rights and interests recognised by the common law are those native title rights and interests that existed at sovereignty, which survived that fundamental change in the legal regime, and can now, by resort to the NTA, be enforced and protected: Yorta Yorta at [77];

(c)    the Queensland Part B Area is not the subject of a previously approved determination of native title (s 68); and

(d)    the only other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination in favour of the Yandruwandha Yawarrawarrka People is the Wongkumara Application in relation to which orders under s 67(1) of the NTA have been made. No other proceedings exist which would otherwise require further orders to be made under s 67(1). The proposed consent determination seeks a single determination of native title made in a single proceeding, being the combined YY Application and Wongkumara Application for that area, with that determination recognising native title rights for Yandruwandha Yawarrawarrka People and Wongkumara People over the area.

35    I also consider that the proposed consent determination complies with s 94A of the NTA by setting out the details of each of the matters required to be described under s 225 of the Act.

36    First, I am satisfied having regard to the terms of the proposed consent determination, and the submissions filed by the Yandruwandha Yawarrawarrka applicant, the Wongkumara applicant and the State, that there is probative material against which the Court can assess whether the matters set out in s 225 can be stated in the proposed determination: see Agius v South Australia (No 6) [2018] FCA 358 at [68] (Mortimer J, as her Honour then was).

37    Second, in relation to the matters required to be described under s 225 in respect to the Queensland Part B Area:

(a)    the persons, or groups of persons, holding the common or group rights comprising the native title (s 225(a)) are described in the proposed determination;

(i)    in relation to the native title held by the Yandruwandha Yawarrawarrka People - in Order 8 and Section B of Schedule 1 and

(ii)    in relation to the native title held by the Wongkumara People - in Order 5 and Section A of Schedule 1.

That is sufficient to identify who will hold native title: Attorney-General (NT) v Ward [2003] FCAFC 283; 134 FCR 16 at [15];

(b)    the nature and extent of the native title rights and interests in relation to the Determination Area (s 225(b)) is described in the proposed determination;

(i)    in relation to the native title held by the Yandruwandha Yawarrawarrka People - the non-exclusive native title rights and interests described in in Order 9, subject to Orders 10, 11 and 12; and

(ii)    in relation to the native title held by the Wongkumara People - the non-exclusive native title rights and interests described in Order 6, subject to Orders 10, 11 and 12;

(c)    the nature and extent of any other interests in relation to the Determination Area (s 225(c)) is described in the proposed determination in Order 13 and Schedule 2;

(d)    the relationship between the native title rights and interests and the other interests (s 225(d)) is described in the proposed determination in Order 14;

(e)    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 (s 225(d)) is described in the proposed determination. Proposed Order 11 does not confer exclusive possession, occupation, use and enjoyment on either the Yandruwandha Yawarrawarrka or the Wongkumara People; and

(f)    in relation to the requirement in the preamble to s 225 to identify the “particular area” to which the determination relates, that is described in the proposed consent determination in Order 3 and 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.

38    In regard to the Queensland Part B Area the Yandruwandha Yawarrawarrka applicant submitted that the State undertook research to determine the extent of any extinguishment in the proposed Determination Area, including as a result of grants of tenure and extinguishment by public works. The State’s tenure analysis was circulated to the other parties and agreement was reached between the YY Applicant, the Wongkumara Applicant, the State and the relevant respondents regarding the identification of other interests, the effect of any extinguishment and the application of s 47B of the NTA within the proposed Determination Area. The areas identified in Schedule 5 of the proposed determination include those areas which the parties have agreed are not subject to the YY Application or the Wongkumara Application on the basis that native title has been wholly extinguished in respect of them.

The requisite standard of satisfaction

39    To decide whether it is appropriate to make the orders sought it is necessary to understand the requisite standard of satisfaction. The Court has expressed the requisite standard in numerous decisions which I recently summarised in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]-[37], as follows:

[33]    The requirement under s 87A(4)(b) that the Court be satisfied that the proposed consent determination is “appropriate” takes into account the emphasis in s 87A, and in the NTA more generally, of resolving issues through negotiation and alternative dispute resolution, with the objective of resolving native title claims without judicial determination (Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J (Lovett (No 1)); Agius (No 6) at [63]). It is also consistent with the overarching obligation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to promote the just, efficient and cost-effective resolution of disputes: see Agius (No 6) at [66]; Phyball v Attorney-General (NSW) [2014] FCA 851 at [9] per Jagot J. It recognises, consistent with the limitation expressed in s 68, that a determination of native title is a determination of rights and interest in land that confers proprietary rights against the whole world: Agius (No 6) at [64]; Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176; 287 FCR 240 at [92] per Rangiah J.

[34]    It is necessary to understand that in undertaking that assessment the State was not required to be satisfied that there is evidence as to those matters that would meet the standard of the balance of probabilities, nor necessarily to be satisfied that there is evidence in an admissible form at all. Rather, the State was required to be satisfied that there is material which provides a foundation for the application which is believable and rational: Yaegl People #1 v Attorney General (NSW) [2015] FCA 647 at [9] per Jagot J.

[35]    The State is obliged to discharge its responsibilities in the interests of the community in Victoria as a whole: Smith v Western Australia [2002] FCA 1249; 104 FCR 494 at [38] per Madgwick J. This necessarily includes and recognises the interests and claims of the claimant group and of other Indigenous peoples of Victoria: Agius (No 6) at [72]. This imposes upon the State a duty to be satisfied that there is a “credible”, “rational”, “sufficient” or “cogent” basis for the determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] per Jagot J; Agius (No 6) at [64], [74]; Holborrow on behalf of the Yaburara & Mardudhunera People v State of Western Australia (No 3) [2018] FCA 1108 at [45] per Barker J), without the level of proof required in a contested application (Western Bundjalung at [21]; Malone at [87]), and it requires the Court to consider the material presented for the limited purpose of determining whether the State has made a rational decision in that regard: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [29]–[30] per Emmett J; Lovett (No 1) at [37]; Brown v Northern Territory [2015] FCA 1268 at [23] per Mansfield J.

[36]    The requisite standard of satisfaction is intended to enable rather than prohibit the making of a consent determination. It is not to be understood in rigid terms as a threshold or barrier to making a determination, and it should be approached rationally and flexibly to ensure that the purposes of s 87A of the NTA will be achieved; Lovett (No 1) at [36]; Agius (No 6) at [75]; Holborrow at [44].

[37]    As I said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarli People v Western Australia [2019] FCA 508 at [19]-[22] in relation to a consent determination under s 87, in remarks which are equally apposite to a consent determination under s 87A:

In deciding whether it is appropriate to make the proposed orders it must be kept in mind that the Court’s function under s 87 focuses on the making of an agreement by the parties, and the power must be understood in the context of the Act’s emphasis on negotiation and alternative dispute resolution, rather than judicial determination in a contested proceeding. The power in s 87 is only exercisable when an agreement has been reached and the power should be exercised flexibly and with regard to the purpose for which the provisions are designed.

The Court is not necessarily required to make findings or embark on its own inquiry as to the merits of the claim made in an application for a consent determination under s 87: see Ward v State of Western Australia [2006] FCA 1848 (Ward) at [8] (North J); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (Cox) at [3] (French J); Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J); Freddie v Northern Territory [2017] FCA 867 (Freddie) at [16]-[17] (Mortimer J). Rather, the Court must be satisfied, inter alia, that it is appropriate to make the orders sought. The indicia that will be sufficient to satisfy the Court of the appropriateness of a consent determination will be determined on a case by case basis. In some cases it may be appropriate to make orders under s 87 where the Court has received no evidence of the primary facts substantiating native title if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 at [9] and Ward at [8].

Even so, as French J observed in Cox the concept of appropriateness also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding. The Court must be conscious that the rights conferred are enduring legal rights, proprietary in nature. This informs considerations including the requirement for the free and informed consent of all parties and the State’s agreement that there is a credible and rational basis for the determination proposed: Freddie at [18].

The requirements of s 87 may, and will likely, be met where the Court is satisfied that a relevant government respondent (such as the State in the present case), through competent legal representation, is satisfied as to the cogency of the evidence upon which the Applicant relies. The Court is entitled to rely on the processes established by a State or Territory for assessing native title claims and to proceed on the basis that the State or Territory has made a reasonable and rational assessment of the material to which it has had access in deciding to enter into an agreement: Freddie at [23]-[24] and the authorities there cited.

40    This approach is equally apposite when the agreement is made pursuant to s 87A rather than s 87: Austin at [37].

The material supporting the making of the consent determination

41    The State has a duty to be satisfied that there is a “credible” or “cogent” basis for the proposed consent determination (Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21]) (Jagot J). The credible evidence standard is one that requires significantly less than the evidence thought necessary to justify judicial determination under the civil standard: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [38] (North J), citing Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 (Emmett J); see also Watson v Western Australia (No 6) [2014] FCA 545 at [29] (Gilmour J). The Court must consider the material before it for the limited purpose of being satisfied that the State is acting rationally and in good faith in agreeing to the proposed consent determination: Munn at [29]-[30].

42    The circumstances and procedural history of the YY Application and the Wongkumara Application mean that this determination differs from many other proposed consent determinations pursuant to s 87 or s 87A, because here both the Court and the State have had the benefit of considering the substantial evidence adduced in the Separate Question hearing. As a result, there is an abundance of material to satisfy the Court that the State acted rationally and in good faith in entering into the s 87A Agreement and agreeing to the proposed consent determination in respect to the Queensland Part B Area.

43    Because these reasons are focused on the YY Application I have focussed on the material in relation to the Yandruwandha Yawarrawarrka People. But there is also material which shows that the State has a rational basis for agreeing to the proposed consent determination recognising the native title rights and interests of the Wongkumara People. I have summarised some of that material in separate reasons for the Wongkumara Application.

The lay evidence

44    The Yandruwandha Yawarrawarrka applicant relies upon the following evidence from the Separate Questions hearing to show that there is a credible basis for the State to accept that the Yandruwandha Yawarrawarrka People have native title rights and interests in the Queensland Part B Area, being:

(a)    the outlines of evidence of the Yandruwandha Yawarrawarrka lay witnesses filed in the Court, by:

(b)    Katheryn Michelle Litherland filed on 20 January 2022 and 5 April 2022;

(i)    Tania Rose Guttie filed on 20 January 2022 and 5 April 2022;

(ii)    Aaron Charles Paterson filed on 27 January 2022, 5 April 2022 and 14 April 2022;

(iii)    John Elvis Bird filed on 27 January 2022 and 4 April 2022;

(iv)    Gloria Jean Paterson filed on 28 January 2022 and 4 April 202

(v)    Joyce Singleton filed on 4 February 2022 and 19 April 2022; and

(vi)    Aram Jason John Guttie filed on 4 April 2022; and

(c)    the oral testimony of the Yandruwandha Yawarrawarrka lay witnesses given on Yandruwandha Yawarrawarrka country and in Charleville during the Separate Questions hearing on 9-27 May 2022;

45    The Yandruwandha Yawarrawarrka lay witnesses gave evidence with respect to matters including the Yandruwandha Yawarrawarrka group identity, of the Yandruwandha Yawarrawarrka People as a bounded entity descended from their apical ancestors, their descent from one or more of the Yandruwandha Yawarrawarrka apical ancestors, their ongoing observation of traditional laws and customs, the spiritual and mythological significance of sites in the claim area and the manner in which they transmit their knowledge to the next generations of Yandruwandha Yawarrawarrka people. They gave evidence of their knowledge of Yandruwandha Yawarrawarrka country and they sought to differentiate the Yandruwandha Yawarrawarrka claim area from the traditional rights and interests of the neighbouring Wongkumara group. They asserted that the Queensland Part B Area was Yandruwandha Yawarrawarrka country.

46    During the on country hearing numerous Wongkumara lay witnesses also gave evidence in relation to the Queensland Part B Area. On 25 October 2022, at the request of the parties, the Court expressed a preliminary view regarding the evidence of the lay witnesses. The Court expressed a preliminary preference for the evidence of the Wongkumara lay witnesses, in particular the evidence of Clancy McKellar which was supported by some other Wongkumara lay witnesses, to that of the Yandruwandha Yawarrawarrka lay witnesses. The thrust of Mr McKellar’s evidence in relation to traditional rights and interests in the Queensland Part B Area was that it is “shared” country between the Wongkumara and the Yandruwandha Yawarrawarrka.

47    It was rational for the State to take the lay evidence into account in deciding to consent to a determination that recognises that both the Yandruwandha Yawarrawarrka People and the Wongkumara People have separate and distinct native title rights and interests in the Queensland Part B Area.

The expert evidence

48    The Yandruwandha Yawarrawarrka applicant also relied upon the following expert reports:

(a)    the expert reports of Mr McCaul, dated 9 September 2022 and 19 December 2022 filed in the proceeding;

(b)    the joint Experts’ Conference Report dated 10 February 2023 in which all five of the expert witnesses involved in the Wongkumara and YY Applications participated; and

(c)    the oral testimony given by the parties’ expert witnesses in a two day hearing before the Court on 6-7 March 2023.

49    In his report dated 9 September 2022. Mr McCaul provided a detailed account of the early ethnographic and historical information, which recorded the interactions of non-indigenous explorers, anthropologists and linguists with Yandruwandha and Yawarrawarrka people, and their views in relation to the extent of Yandruwandha and Yawarrawarrka country, as well as the country of the Wongkumara People. For example, he noted that in 1873 A.W Howitt, who had undertaken the mission to rescue the Burke and Wills expedition in 1861, wrote of the Yandruwandha (he used Yantru Wanta) tribe who “occupied the Coopers Creek” on the South Australia/Queensland border extending down to Strzelecki Creek and on to Flinn’s Creek in the Barrier Ranges. In Howitt’s subsequent landmark publication of 1904, The Aborigines of South-East Australia, the Yawarrawarrka feature strongly. For example, Howitt provided totems for each moiety of both the Yandruwandha and the Yawarrawarrka (he used Yaurorka). He also wrote about travelling through Yawarrawarrka country and described being introduced to a senior elder at a Yawarrawarrka camp.

50    Mr McCaul states, by reference to some observations by Howitt and the conclusions of Gavan Breen an expert linguist, that the language of the Yandruwandha and Yawarrawarrka uses the word ngapa for water. Consequently, he states that place names such as Nappa Merrie and Nappapethera Waterholes (respectively ngapa = water + miri = sandhill and + (possibly) pathada = coolibah) in the Queensland Part B Area claim area show them to be Yandruwandha and Yawarrawarrka places. He contrasts those names with the Wongkumara language which uses the word for water which finds reflection in Wongkumara places such as Nockanoora and Nockabooka Waterholes. He states that Howitt, having travelled through the Nappa Merrie area identified it as Yandruwandha Yawarrawarrka country. Mr McCaul also discussed and relied on the observations and conclusions as to Yandruwandha and Yawarrawarrka country of the Lutheran missionary Schoknecht in 1872, missionaries Otto Siebert and Johann-Georg Reuthe in the 1890s, subsequent research by linguists Luis Hercus and Gavan Breen, tribal mapping by Strehlow in 1910, correspondence received by amateur ethnographer R.H. Mathews from various pastoralists and police officers in the 1890s, and Mathews’ publications between 1899 and 1900, in which he states that Yawarrawarrka (he uses Yowerawarrika) country extends northerly and easterly in the Queensland and Yandruwandha (he uses Yanderawantha) country extends eastward into Queensland and NSW.

51    Mr McCaul also referred to the work of medical doctor Herbert Basedow who traversed the area in 1919, clergyman and linguist Schmidt who conducted a desktop study in Austria in 1919 on the basis of language data from early sources for the eastern part of Australia, and the anthropologist, Professor A P Elkin ,who visited Nappa Merrie in 1930 and recorded significant data on Yandruwandha people and their laws and customs. Elkin named a Yandruwandha man, Jim Nappamerrie, as the person who had assumed cultural responsibility for a site on Nappa Merrie Station. Mr McCaul notes two maps produced by Elkins. The first had Yandruwandha country extending “a short way along the Cooper into Queensland” and the second had that country coming significantly further into Queensland.

52    In Nicholls, which related to an area immediately adjacent to the Queensland Part B Area the Court recognised the existence of a Yandruwandha Yawarrawarrka society, the traditional laws and customs of that society, and the continuity of the acknowledgment and observance of those traditional laws and customs by the Yandruwandha Yawarrawarrka People such that they hold native title rights in that immediately adjacent area.

53    In the Experts’ Conference Report filed 10 February 2023, Mr McCaul opined as follows in relation to the Queensland Part B Area:

•    The Yandruwandha and Yawarrawarrka people are the relevant native title society for the purposes of Part B. Wongkumara is another relevant society for Part B.

•    Part B falls within the geographical extent of these two societies.

•    At sovereignty Part B was Yandruwandha Yawarrawarrka country, however, some members of the Wongkumara claim group have a long standing connection to Part B. Their apical ancestor Polly or her immediate descendants appear to have had traditional connections to the Part B overlap area. Wongkumara and Yandruwandha Yawarrawarrka also share common antecedents, including Tommy Flash and Florence Gray.

•    At sovereignty, persons acquired rights and interests in land through patrifilial and matrifilial spiritual connections to sites and tracts on the Yandruwandha Yawarrawarrka claim area. Rights acquired through patrifiliation were transmissible through successive generations of men. Rights acquired through matrifiliation, being the rights inherited by a woman’s children from her, were normally not transmissible beyond her children as the first descending generation. The system of traditional land tenure allowed for exceptions.

•    In Part B, the traditional law and customs have been acknowledged and observed by the pre-sovereignty societies and each succeeding generation in adaptive forms. Such acknowledgement and observance has continued across the generations since sovereignty.

•    The Yandruwandha Yawarrawarrka society includes the persons who are the Yandruwandha Yawarrawarrka apical ancestors and their descendants and some members of the Wongkumara claim group who have Yandruwandha ancestors regardless of whether they identify as Wongkumara or Yandruwandha Yawarrawarrka.

•    There are no other persons with traditional rights and interests in Part B.

•    In relation to the Yandruwandha Yawarrawarrka claim area, the extant rights and interests in relation to the Yandruwandha Yawarrawarrka claim area are those rights and interests that facilitate the possession, occupation, use and enjoyment of the claim area to the fullest extent in accordance with the traditional law and customs of the Yandruwandha Yawarrawarrka claim group. This includes the right to speak for and make decisions about the country.

•    This also applies to at least those Wongkumara persons identified in my response to #3 below.

54    The essential difference between the experts in relation to the Queensland Part B Area was that Professor Trigger, Dr Pannell, Dr Sackett, and Dr Sneddon opined that that area lay within the geographical extent of the Lakes Group society and that the Wongkumara People held traditional rights and interests in that area for the same reasons as they did in relation to the Queensland Part A and NSW Part A Areas, but that some Yandruwandha apical ancestors and their descendants have traditional rights and interests in the Queensland Part B Area as well. It may be recalled that that was essentially the thrust of Mr McKellar’s evidence in relation to the Queensland Part B Area. As noted above Mr McCaul took a different view. He opined that the Queensland Part B Area is solely Yandruwandha Yawarrawarrka country.

55    It was rational for the State to take the expert evidence into account in deciding to consent to a determination that recognises that the Yandruwandha Yawarrawarrka People and the Wongkumara People have separate and distinct native title rights and interests in the Queensland Part B Area.

Exercise of the discretion under s 87A

56    The State submitted that on the basis of the totality of the evidence filed and heard, and following the referral to mediation on 7 March 2023 and the subsequent negotiations case managed by Judicial Registrar Grant, it came to accept that there is a credible basis for a consent determination of native title rights and interests in the Queensland Part B Area leading to the orders now proposed to the Court and the vacation of the trial.

57    The State has been legally represented throughout both the YY and the Wongkumara Applications, it fully participated in the proceedings including by cross-examining the lay and expert witnesses, it adduced its own expert evidence, and it played an active role in the negotiation of the proposed consent determination. The active participation by the State in the proceedings and the views it expressed in its written submissions in relation to the evidence before the Court show that it has taken a “real interest” in the proceedings in the interests of the community generally and has given careful consideration to the evidence and other relevant matters.

58    The Yandruwandha Yawarrawarrka applicant submits that the material before the Court is amply sufficient to demonstrate that in respect of the proposed consent determination, the YY Application has a “credible or cogent basis”. It submits that by entering into the s.87A Agreement, the State has demonstrated that it is satisfied that there is a sufficient evidential basis to establish that the Yandruwandha Yawarrawarrka People have maintained a connection to the Determination Area according to their traditional laws and customs.

59    The determination in favour of the Yandruwandha Yawarrawarrka People in Nicholls, in relation to land and waters immediately adjacent to the Queensland Part B Area is also relevant. That determination assists in providing a rational basis for the State’s acceptance that the Yandruwandha Yawarrawarrka People have native title rights and interests in the present Determination Area through the Court’s acceptance of, inter alia, the existence of a Yandruwandha Yawarrawarrka society, the traditional laws and customs of that society, and the continuity of the acknowledgment and observance of those traditional laws and customs by the Yandruwandha Yawarrawarrka People.

60    There is probative material before the Court from which I am satisfied that there is a credible basis for the State’s decision to consent to the proposed determination of native title, and that its decision to do so was reached rationally and in good faith. I am accordingly satisfied that it is appropriate to make the proposed consent determination of native title in relation to the Queensland Part B Area without continuing the hearing of these proceedings (s 87A(4)): see King v South Australia [2011] FCA 1386; 285 ALR 454 at [21]-[23] (Keane CJ), referring to Nelson v Northern Territory [2010] 190 FCR 344; 190 FCR 344 at [12]-[13] (Reeves J).

61    I have made the orders in the terms proposed by the parties.

Nomination of a prescribed body corporate

62    Where the Court proposes to make a determination that native title rights and interests exist, under s 56(1) of the NTA the Court must also make a determination as to whether those rights and interests are to be held on trust and if so, by whom.

63    In his affidavit Mr Webb deposed as to the incorporation of the Yandruwandha Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) RNTBC (ICN 3840) (YYTLOAC) under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). He deposed that the YYTLOAC:

(a)    was first registered under a slightly different name by the Registrar of Indigenous Corporations on 2 August 2001. Following the determination in Nicholls the corporation was registered by the Registrar under its present name on 29 January 2016;

(b)    was established for the purpose of being the subject of a determination under ss 56 or 57 of the NTA, and that its rules include objectives to be a registered native title body corporate and have the functions of such a body corporate including to act as agent of the common law holders in respect of matters relating to native title, and to manage their native title rights and interests as authorised by the common law holders; and

(c)    is already operating as a registered native title body corporate in relation to areas within South Australia which were the subject of the determination of native title in Nicholls.

64    He also deposed as to an authorisation meeting of the Yandruwandha Yawarrawarrka native title claim group in Brisbane on 24 November 2023, at which resolutions were passed:

(a)    nominating the YYTLOAC to be the Prescribed Body Corporate (PBC) for any draft s 87 agreement or determination of native title in favour of the Yandruwandha Yawarrawarrka People in relation to the Queensland Part B Area;

(b)    for the PBC to hold the native title as agent of the proposed native title holders, rather than as a trustee;

(c)    requiring the YYTLOAC to give written consent to the nomination as PBC, in a form that satisfies the requirements of s 57(2)(a)(ii) of the NTA, within five days of a request from the Principal Legal Officer of SANTS.

Mr Webb exhibited a copy of the relevant resolutions.

65    In the reasons which focus on the Wongkumara Application, I have set out the evidence which shows that:

(a)    a meeting of the Wongkumara native title claim group on 17 April 2024 in Dubbo resolved to nominate the Wangkumarra Kawalanyi Aboriginal Corporation ICN 7384 (WKAC), which is incorporated under the CATSI Act, to hold the determined Wongkumara native title on trust, and to be the Registered Native Title Body Corporate for the Wongkumara People who hold native title rights and interests in, inter alia, the Queensland Part B Area; and

(b)    a meeting of the members of the WKAC on 17 April 2024 in Dubbo resolved to accept the nomination to hold the determined Wongkumara native title in, inter alia, the Queensland Part B Area on trust, and to be the Registered Native Title Body Corporate for the Wongkumara People in relation to that area.

66    The proposed consent determination in relation to the Queensland Part B Area seeks orders that:

(a)    the native title of the Yandruwandha Yawarrawarrka People is not held on trust. The YYTLOAC is to:

(i)    be the prescribed body corporate for the purpose of ss 57(2) of the NTA; and

(ii)    perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate; and

(b)    the native title of the Wongkumara People is held on trust for them by WKAC, which is to be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA and to perform the functions mentioned in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

67    It is appropriate to make the orders appointing WKAC and YYTLOAC to undertake the roles and perform the functions specified in the draft consent determination.

CONCLUSION

68    For these reasons, I have made the consent determination as proposed by the parties.

Associate:    

Dated:    3 July 2024

ANNEXURE 1

SCHEDULE OF PARTIES