Federal Court of Australia

Kum Sing on behalf of the Mitakoodi and Mayi People #5 v State of Queensland (No 3) [2024] FCA 935

ORDERS

THE COURT NOTES THAT:

A.    The Applicant in proceedings QUD 556 of 2015 has made a native title determination application (Mitakoodi and Mayi People #5 Application).

B.    By Order of the Federal Court made on 25 March 2022 pursuant to s 67(2) of the Native Title Act 1993 (Cth), the Mitakoodi and Mayi People #5 Application was divided into two proceedings to be called Part A and Part B. This Determination relates to the Part A proceeding. The parties have reached an agreement as to the terms of the determination which is to be made in relation to Part A.

C.    Part B of the proceeding comprises two parcels, to the extent that they fall within the External Boundary, being Lot 2038 on PH460 and Lot 1 on AL78, where connection issues have not been agreed as between the Applicant and certain pastoral respondents. The parties propose to seek a determination by consent for Part A and to continue negotiations to resolve Part B following Part A being determined.

D.    The Applicant and the State of Queensland have entered into a tenure resolution indigenous land use agreement (the Tenure Resolution ILUA) pursuant to which the Applicant has agreed to the surrender of native title over the areas identified in Item 2 of Part 2 of Schedule 5. On that basis, the parties have agreed to exclude those parcels from this determination.

E.    Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, the parties agree that the question of whether s 47C of the Native Title Act 1993 (Cth) would apply to any park area within the External Boundary will be addressed after the matter has proceeded to determination.

F.    Pursuant to s 87A(1) and (2) of the Native Title Act 1993 (Cth) the parties have filed with the Court a Minute of Proposed Consent Determination of Native Title setting out the terms of the agreement reached by the parties in relation to the Part A proceedings.

G.    The terms of the agreement involve the making of consent orders for a determination pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the land and waters of the Determination Area.

H.    The parties acknowledge that the effect of the making of the determination is that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the native title holders for the Determination Area in the manner set out in the determination.

BEING SATISFIED that a determination of native title in the terms set out would be within the power of the Court and it appearing appropriate to the Court to do so, pursuant to s 87A and s 94A of the Native Title Act 1993 (Cth) and by the consent of the parties:

BY CONSENT, THE COURT ORDERS THAT:

1.    There be a determination of native title in relation to Part A of the proceedings in the terms set out below (the determination).

2.    With respect to the following parcels, which are included in Part 2 of Schedule 4, the determination will take effect upon the agreement referred to in paragraph 1 of Schedule 2 being registered on the Register of Indigenous Land Use Agreements:

(a)    Lot 151 on CP911698; and

(b)    Lot 51 on SP265801.

3.    In the event that the agreement referred to in paragraph 1 of Schedule 2 is not registered on the Register of Indigenous Land Use Agreements within twelve (12) months of the date of this order, the matter is to be listed for a further case management hearing.

4.    The native title is held in trust.

5.    The Mitakoodi and Mayi People Native Title Aboriginal Corporation (ICN: 10313), 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.

6.    There be no order as to costs.

BY CONSENT, THE COURT DETERMINES THAT:

7.    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.

8.    Native title exists in the Determination Area.

9.    The native title is held by the Mitakoodi and Mayi People described in Schedule 1 (the Native Title Holders).

10.    Subject to orders 12, 13 and 14 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

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

(b)    in relation to Water, the non-exclusive rights to:

(i)    hunt, fish and gather from the Water of the area;

(ii)    take the Natural Resources of the Water in the area; and

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

11.    Subject to orders 12, 13 and 14 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

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

(b)    camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

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

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

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

(f)    conduct ceremonies on the area;

(g)    bury Native Title Holders within the area;

(h)    hold meetings on the area;

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

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

(k)    maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm; and

(l)    be accompanied onto the area by certain non-Native Title Holders, being:

(i)    immediate family of Native Title Holders, pursuant to the exercise of traditional laws acknowledged and customs observed by the Native Title Holders; and

(ii)    people required under traditional laws acknowledged and traditional customs observed by the Native Title Holders for the performance of, or participation in, ceremonies and dance.

12.    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.

13.    The native title rights and interests referred to in orders 10(b) and 11 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

14.    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).

15.    The nature and extent of any other interests in relation to the Determination Area are set out in Schedule 2.

16.    The relationship between the native title rights and interests described in orders 10 and 11 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, prevail over the native title rights and interests and any exercise of the native title rights and interests but, except as otherwise provided for by law, do not extinguish them.

17.    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 the common law and valid laws of the State of Queensland and 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);

‘Native Title Determination Application’ means the amended native title determination application filed in this proceeding (QUD 556 of 2015) on 20 October 2023;

‘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,

(c)    that have traditionally been taken and used by the Native Title Holders,

(d)    but does not include:

(i)    Animals that are the private personal property of another;

(ii)    crops that are the private personal property of another;

(iii)    minerals as defined in the Mineral Resources Act 1989 (Qld); or

(iv)    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);

‘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; and

(c)    water from an underground water source,

18.    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).

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

Schedule 1 – Native Title Holders

1.    The Mitakoodi and Mayi People are Aboriginal people who:

(a)    principally identify as Mitakoodi and Mayi People and as belonging to the traditional country of their Mitakoodi and Mayi forebears;

(b)    are recognised by other Mitakoodi and Mayi People as the biological descendants of deceased Mitakoodi and Mayi People; and

(c)    are the descendants of the following deceased Aboriginal People:

(i)    Minnie;

(ii)    Thomas ‘Tiger’ Mitchell;

(iii)    Dinah;

(iv)    Topsy;

(v)    Sophie; and

(vi)    Billy Chisholm.

Schedule 2 – Other Interests in the Determination Area

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:

1.    The rights and interests of the parties under the Mitakoodi and Mayi People and State of Queensland Tenure Resolution ILUA authorised on 9 June 2024.

2.    The rights and interests of the parties under the Mitakoodi & Mayi People No. 5 Rail Load Out Facility ILUA (QI2017/016) registered on the Register of Indigenous Land Use Agreements on 15 May 2018.

3.    The rights and interests of Chinova Resources Cloncurry Mines Pty Ltd under the Land Act 1962 (Qld) as the holder of rolling term lease (PH5364) for pastoral purposes (also known as Starcross) over that part of Lot 5364 on SP278014 that falls within the External Boundary.

4.    The rights and interests of Black Rock Minerals Pty Ltd ACN 102 753 417 as the holder of exploration permit EPM15027 granted under the Mineral Resources Act 1989 (Qld).

5.    The rights and interests of Mount Margaret Mining Pty Ltd ACN 150 366 224:

(a)    as the holder of exploration permits EPM7085, EPM8609 and EPM14201 granted under the Mineral Resources Act 1989 (Qld);

(b)    as the holder of mining leases ML90198, and ML90199 granted under the Mineral Resources Act 1989 (Qld);

(c)    as the holder of mining leases ML90228 and ML90229 granted under the Mineral Resources Act 1989 (Qld) for infrastructure purposes, in accordance with s 24MD of the Native Title Act 1993 (Cth); and

(d)    as the holder of mining lease ML90157 granted under the Mineral Resources Act 1989 (Qld), the current term of which expired on 31 May 2021 but for which an application for renewal has been made, and which is dependent upon the requirements of sections 286, 286A and 286C of Mineral Resources Act 1989 (Qld) being satisfied.

6.    The rights and interests of Mount Isa Mines Limited ACN 009 661 447:

(a)    as the holder of exploration permits EPM8588, EPM8586, EPM8648, EPM12597, EPM14303, EPM19527, EPM25143 and EPM26977 granted under the Mineral Resources Act 1989 (Qld);

(b)    arising under the deed regarding the grant of exploration permit pursuant to s 31 of the Native Title Act 1993 (Cth) for EPM26227 between the State of Queensland, Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, Tanya Kum Sing and Ronald Major) dated 24 November 2017, and the associated exploration permit consent agreement between Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Tanya Kum Sing, Brenda Lucas, Gabrielle Biffin, Sharn Fogarty, Emily Patricia Asse, Karl Howard and George Kenny) dated 30 October 2017;

(c)    arising under the deed regarding the grant of exploration permit pursuant to s 31 of the Native Title Act 1993 (Cth) for EPM26443 between the State of Queensland, Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, Tanya Kum Sing and Ronald Major) dated 24 November 2017, and the associated exploration permit consent agreement between Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Tanya Kum Sing, Brenda Lucas, Gabrielle Biffin, Sharn Fogarty, Emily Patricia Asse, Karl Howard and George Kenny) dated 30 October 2017;

(d)    arising under the deed regarding the grant of exploration permit pursuant to s 31 of the Native Title Act 1993 (Cth) for EPM26524 between the State of Queensland, Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, Tanya Kum Sing and Ronald Major) dated 24 November 2017, and the associated exploration permit consent agreement between Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Tanya Kum Sing, Brenda Lucas, Gabrielle Biffin, Sharn Fogarty, Emily Patricia Asse, Karl Howard and George Kenny); and

(e)    arising under the deed regarding the grant of exploration permit pursuant to s 31 of the Native Title Act 1993 (Cth) for EPM26767 between the State of Queensland, Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, Tanya Kum Sing and Ronald Major) dated 16 August 2018, and the associated exploration permit consent agreement between Mount Isa Mines Limited and the applicant at the time for the Mitakoodi and Mayi People #5 (Tanya Kum Sing, Edward Ah Sam, Pearl Connelly, Kay Douglas, Norman Douglas, Brian Douglas, and Ronald Major) dated 23 July 2018.

7.    The rights and interests of the holder from time to time of Mining Lease No. 90220 granted under the Mineral Resources Act 1989 (Qld), who at the determination date is MMG Dugald River Pty Ltd ABN 19 083 405 556.

8.    The rights and interests of North West Queensland Water Pipeline Pty Ltd (ACN 070 999 218) pursuant to:

(a)    Lease Z (Trustee Lease No. 714912956) granted over Lot 97 on SP103584 pursuant to the Land Act 1994 (Qld);

(b)    that part of Permit to Occupy (PO 0/237008) granted over Lot WA on AP16965 and Lot WC on AP16967 pursuant to the Land Act 1994 (Qld) which falls within the Determination Area; and

(c)    Easement L on SP232463 granted over Lot 97 on SP103584.

9.    The rights and interests of Aurizon Operations Limited ACN 124 649 967 and Aurizon Property Pty Ltd ACN 145 991 724:

(a)    in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld);

(b)    in relation to the railway and loading facilities within Lot 4105 on Survey Plan 279603 and Mining Lease No. 90077; and

(c)    under any valid lease, licence, easement, permit or agreement within the Determination Area.

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

(a)    rolling term lease for pastoral purposes PH 13/50 over Lot 50 on SP212806 (also known as Canobie);

(b)    rolling term lease for pastoral purposes PH 13/68 over Lot 68 on SP276502 (also known as Dalgonally);

(c)    rolling term lease for pastoral purposes PH 13/5223 over Lot 1 on TD1, Lot 1 on TD4, Lot 2 on TD1, and Lot 2 on TD4 (also known as Lyrian);

(d)    rolling term lease for pastoral purposes TL 0/235911 over Lot 1 on SP254318 (also known as Broadlands);

(e)    rolling term lease for pastoral purposes PPH 13/2463 over Lot 2463 on PH760 (also known as Table Mount);

(f)    rolling term lease for pastoral purposes PH 13/2330 over Lot 2 on SW40 (also known as The Gorge);

(g)    rolling term lease for pastoral purposes PH 13/4143 over Lot 4143 on SP276147 (also known as Elder Creek);

(h)    rolling term lease for pastoral purposes PH 13/4640 over Lot 4640 on SP276146 (also known as Soldiers Cap);

(i)    rolling term lease for pastoral purposes PH 13/4641 over Lot 4641 on SP276145 (also known as Nundata);

(j)    rolling term lease for pastoral purposes TL 0/236895 over Lot 4893 on SP259551 (also known as Roxmere);

(k)    rolling term lease for pastoral purposes PH 13/3111 over Lot 3111 on SP272586 (also known as Charteris);

(l)    rolling term lease for pastoral purposes TL 0/233456 over Lot 10 on SP223544 (also known as Corella);

(m)    rolling term lease for pastoral purposes TL 0/233089 over Lot 1 on CE2 and Lot 2 on CE3 (also known as Wallanoobie);

(n)    rolling term lease for pastoral purposes TL 0/233061 over Lot 4415 on PH629 (also known as Kalmeta);

(o)    rolling term lease for pastoral purposes PH 13/47 over Lot 47 on SP271813 (also known as Byrimine);

(p)    rolling term lease for pastoral purposes PH 13/3555 over Lot 5 on CE15 (also known as Wallacooloobie);

(q)    rolling term lease for pastoral purposes TL 0/233060 over Lot 8 on GR49 (also known as Clonagh);

(r)    rolling term lease for pastoral purposes TL 0/235607 over Lot 4910 on SP135396 (also known as Mount Avarice);

(s)    rolling term lease for pastoral purposes PPH 13/4082 over Lot 4 on CP884304 (also known as Waltonvale);

(t)    rolling term lease for pastoral purposes TL 0/220242 over Lot 5 on EN47;

(u)    rolling term lease for pastoral purposes TL 0/220241 over Lot 6 on EN47;

(v)    rolling term lease for pastoral purposes PH 13/5157 over Lot 1 on BD55, Lot 1 on BD85, Lot 5 on BD153 and Lot 1 on SP280691 (also known as Cooyal);

(w)    rolling term lease for pastoral purposes TL 0/242148 over Lot 3 on SP287775 (also known as Donors Hill South);

(x)    rolling term lease for pastoral purposes PH 13/4990 over Lot 4990 on PH200 (also known as Margaret Creek);

(y)    rolling term lease for pastoral purposes TL 0/240068 over Lot 80 on SP280693 (also known as Fort Constantine);

(z)    rolling term lease for pastoral purposes PH 13/5430 over Lot 3 on LS18 (also known as Boomara);

(aa)    rolling term lease for pastoral purposes PPH 13/4774 over Lot 2 on BD104 and Lot 3 on BD105 (also known as Antion);

(ab)    rolling term lease for pastoral purposes PH 13/166 over Lot 166 on SP276509 (also known as Wondoola); and

(ac)    rolling term lease for pastoral purposes PH13/4492 over Lot 26 on BD814405 (also known as Gladwyne).

11.    The right and interests of the parties under the following agreements:

(a)    The Mitakoodi & Mayi Pastoral Native Title Agreement between Tanya Kum Sing, Pearl Connelly, Kay Douglas, Norman Douglas, Ronald Major, Sharn Fogarty, Clyde Fogarty and Kristal Chapman and Margaret Eleanor Allison and William Francis Allison (Broadlands) dated 22 April 2024;

(b)    The Mitakoodi & Mayi Pastoral Native Title Agreement between Tanya Kum Sing, Pearl Connelly, Kay Douglas, Norman Douglas, Ronald Major, Sharn Fogarty, Clyde Fogarty and Kristal Chapman and North Australian Pastoral Company Pty Ltd (Boomara) dated 24 April 2024;

(c)    The Mitakoodi & Mayi Pastoral Native Title Agreements between Tanya Kum Sing, Pearl Connelly, Kay Douglas, Norman Douglas, Ronald Major, Sharn Fogarty, Clyde Fogarty and Kristal Chapman and Colin Clyde Saunders and Judith Rose Saunders (Mount Avarice) dated 4 June 2024; and

(d)    The Mitakoodi & Mayi Pastoral Native Title Agreements between Tanya Kum Sing, Pearl Connelly, Kay Douglas, Norman Douglas, Ronald Major, Sharn Fogarty, Clyde Fogarty and Kristal Chapman and Colin Clyde Saunders and Judith Rose Saunders (Waltonvale) dated 4 June 2024.

12.    The rights and interests of South32 Cannington Proprietary Ltd ACN 125 530 967:

(a)    as the holder of mining lease No. 90077 granted under the Mineral Resources Act 1989 (Qld);

(b)    as the holder of exploration permits EPM27514, EPM26847 and EPM26972 granted under the Mineral Resources Act 1989 (Qld);

(c)    the rights and interests as holder of the following leases granted under the Land Act 1994 (Qld) and the Land Act 1962 (Qld) respectively:

(i)    term lease for pastoral purposes TL 0/220948 over Lot 2482 on SP279603 (also known as Fisher Creek);

(ii)    rolling term lease for pastoral purposes PH 13/2628 over that part of Lot 2628 on PH1162 that falls within the Determination Area (also known as Cowie Holding);

(iii)    rolling term lease for pastoral purposes PH 13/2831 over Lot 2831 on SP279603 (also known as Kaampa Holding); and

(iv)    term lease for pastoral purposes TL 0/2209050 over Lot 4105 on SP279603 (also known as Martindale Holding).

13.    The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of 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.

14.    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 electrical 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;

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

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

(d)    without limiting paragraphs 14(a)-(c), the right to access, use, inspect, maintain, repair, replace, upgrade and otherwise deal with any Works situated on Lot 7 on CP905412.

15.    The rights and interests of Cloncurry Shire Council, Carpentaria Shire Council and McKinlay Shire Council:

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

(b)    as the:

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

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

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

(c)    as the owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:

(i)    undedicated but constructed roads except for those not operated by the Councils;

(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 Councils;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 15(a), (b) and (c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 15 and paragraph 16 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 15(c) above; and

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

16.    The rights and interests of the State of Queensland, the Cloncurry Shire Council, the Carpentaria Shire Council and the McKinlay 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.

17.    The rights and interests of the Mitakoodi Juhnjlar Aboriginal Land Trust as the holder of the Deed of Grant in Trust (Title references 50498681 and 50231344) granted under the Aboriginal Land Act 1991 (Qld) comprising Lot 100 on Plan SP139219 and Lot 1 on Plan CP904786.

18.    The rights and interests of the Mitakoodi Aboriginal Corporation (ICN: 16) as:

(a)    the holder of Deeds of Grant in fee simple granted under the Land Act 1994 (Qld) over the following parcels:

(i)    Lot 1 on Plan MPH4489, Lot 1 on Plan RP733205, Lot 1 on Plan RP737916, Lot 1 on Plan RP743006, Lot 1 on Plan RP810458, Lot 1 on Plan RP893073, Lot 1 on Plan RP898043, Lot 1 on Plan SP148244, Lot 117 on Plan RP703327, Lot 124 on Plan RP703327, Lot 130 on Plan BD215, Lot 133 on Plan RP703327, Lot 15 on Plan RP703328, Lot 155 on Plan RP703328, Lot 16 on Plan RP703328, Lot 175 on Plan RP703304, Lot 180 on Plan RP703304, Lot 2 on Plan RP707085, Lot 2 on Plan RP713233, Lot 2 on Plan RP718613, Lot 2 on Plan RP728242, Lot 2 on Plan RP810458, Lot 2 on Plan RP893073, Lot 2 on Plan RP898043, Lot 2 on Plan SP148244, Lot 20 on Plan C19612, Lot 203 on Plan RP703304, Lot 22 on Plan RP703328, Lot 23 on Plan C1961, Lot 24 on Plan C1961, Lot 3 on Plan BD810460, Lot 3 on Plan RP745478, Lot 3 on Plan RP893073, Lot 37 on Plan RP703328, Lot 4 on Plan BD810460, Lot 4 on Plan RP728242, Lot 4 on Plan RP733205, Lot 4 on Plan RP737916, Lot 5 on Plan RP718624, Lot 5 on Plan RP743006, Lot 8 on Plan RP718624, Lot 8 on Plan RP728242; and Lot 98 on Plan C1961;

(b)    as the trustee of the Reserves dedicated over Lot 231 on Plan C1961 and Lot 232 on Plan C1961.

19.    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.

20.    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 and the Commonwealth, including those existing by reason of the following legislation or any valid regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a)    the Aboriginal Land Act 1991 (Qld);

(b)    the Land Act 1994 (Qld);

(c)    the Forestry Act 1959 (Qld);

(d)    the Water Act 2000 (Qld);

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

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

(g)    the Planning Act 2016 (Qld);

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

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

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

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

22.     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 at the end of 31 December 1993.

23.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Schedule 3 – External Boundary

The area of land and waters commencing at a point on the external boundary of Native Title Determination QUD579/2005 Kalkadoon People #4 (QCD2011/007) at Longitude 140.395031° East, Latitude 19.212076° South, also being a point on the western bank of Dismal Creek; then extending generally north-easterly and generally northerly along the western banks of that creek to its intersection with the western bank of the Cloncurry River at Latitude 18.896540° South; then continuing generally northerly along the western banks of that river to its intersection with the southern boundary of Native Title Determination QUD29/2019 Gkuthaarn and Kukatji People (QCD2020/002) at Latitude 18.750634° South; then generally easterly along the southern boundary of that application to the point of highest elevation approximately midway between the Flinders River and the Saxby River at Longitude 140.833806° East; then generally southerly along the line of highest elevation approximately midway between those rivers, passing through the following coordinate points:

Then south-westerly to a point easterly of the Cloncurry River at Longitude 141.212571° East, Latitude 20.017431° South; then generally south-easterly and generally southerly in a line easterly of Gilliat River and Gilliat Creek to a point on a ridgeline at Longitude 141.518147° East, Latitude 21.612858° South, being a point on a boundary of Native Title Determination QUD592/2015 Koa People (QCD2021/004), also being a point on the southern boundary of the Cloncurry River sub-catchment, passing through the following coordinate points:

Then generally southerly, generally westerly, again generally southerly, again generally westerly, generally north-westerly and again generally westerly along the southern boundary of that sub­catchment to its intersection with the eastern boundary of Lot 5364 on SP278014 (Starcross Pastoral Holding) at approximate Longitude 140.643438° East; then northerly along the boundary of that lot to its intersection with the external boundary of Native Title Determination QUD579/2005 Kalkadoon People #4 (QCD2011/007) at approximate Latitude 21.570024° South; then generally northerly, westerly, again generally northerly, generally north-easterly, again generally westerly, southerly, again westerly and generally northerly along that external boundary back to the commencement point.

Note

For the avoidance of doubt, the application area does not include any lands or waters subject to or within the external boundaries of:

    QUD579/2005 Kalkadoon People #4 (QCD2011/007) as determined by the Federal Court 12 December 2011;

    QUD29/2019 Gkuthaarn and Kukatj People (QCD2020/002) as determined by the Federal Court 29 September 2020; and

    QUD592/2015 Koa People (QCD2021/004) as determined by the Federal Court 6 October 2021.

Data Reference and source

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

Cadastral data sourced from Department of Natural Resources, Mines and Energy, Qld (August 2018).

Rivers and creeks are 1:250K Topographic vector data © Commonwealth of Australia (Geoscience Australia) 2015.

Drainage basin sub-area data depicts a subdivision of the major drainage basins (catchment) in Queensland, Dataset sourced from supplied by Department of Natural Resources, Mines and Energy, Qld (20 Feb 2009).

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), 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.

Schedule 4 – Description of Determination Area

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

Part 1 – Exclusive Areas

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

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

~ denotes areas to which s 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:

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

* denotes areas to which are located partly within the External Boundary

Schedule 5 – Areas Not Forming Part of the Determination Area

Part 1 – Areas to be excluded on the basis of extinguishment

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 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) and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied 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 paragraph (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, including, but not limited to the whole of the land and waters described as:

(i)    that part of Lot 4105 on Plan SP279603 that is subject to former Lot 1 on MPH4173 being MHL139;

(ii)    Lot 2 on Plan RP818179;

(iii)    Lot 1 on Plan BD2;

(iv)    Lot 2 on Plan BD2;

(v)    Lot 6 on Plan BD55;

(vi)    Lot 100 on Plan SP108163;

(vii)    Lot 101 on Plan SP135875;

(viii)    Lot 56 on Plan BD98;

(ix)    Lot 57 on Plan BD98;

(x)    Lot 58 on Plan BD98;

(xi)    Lot 15 on Plan C19646;

(xii)    Lot 16 on Plan C19646;

(xiii)    Lot 17 on Plan C19646;

(xiv)    Lot 18 on Plan C19646;

(xv)    Lot 15 on Plan BD15;

(xvi)    That part of Lot 51 on Plan SP265801 described as former Lot 51 on Plan CP857735.

(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)    Lot 13 on Plan C1961;

(ii)    Lot 135 on Plan C1961;

(iii)    Lot 136 on Plan C1961;

(iv)    Lot 99 on Plan BD168;

(v)    Lot 50 on Plan CP893733;

(vi)    Lot 8 on Plan BD107;

(vii)    Lot 116 on Plan BD211;

(viii)    Lot 38 on Plan SP130415; and

(ix)    Lot 9 on Plan AL79.

(c)    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.

(d)    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.

Part 2 – Other excluded areas

1.    Those parts of Lot 1 on Plan AL78 and Lot 2038 on Plan PH460 that fall within the External Boundary are excluded from the Determination Area on the basis that they comprise the area partitioned as Part B of this proceeding pursuant to the Orders made in this proceeding (QUD 556 of 2015) on 25 March 2022.

2.    The following areas are excluded from the Determination Area, to the extent they are not otherwise excluded by the terms of Part 1 of Schedule 5, on the basis that they are proposed to be resolved as part of the Mitakoodi and Mayi People and State of Queensland Tenure Resolution Indigenous Land Use Agreement:

(a)    Lot 23 on Plan CP896272;

(b)    Lot 33 on Plan BD68;

(c)    Lot 43 on Plan AP23963; and

(d)    Lot 7 on Plan CP905412.

Schedule 6 – Map of Determination Area

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    In 2015, the Applicant, on behalf of the Mitakoodi and Mayi People, instituted a claimant native title determination application under s 61 of the Native Title Act 1993 (Cth) in the Federal Court of Australia.

2    The first respondent is the State of Queensland. In addition, there are a large number of respondents to the proceeding, including local councils, companies with mining or exploration activities in the application area, pastoralists, and energy and communication suppliers. Over the course of the proceeding, some parties have withdrawn, including the Commonwealth, while others were joined.

3    The parties have reached agreement as to the existence of native title rights and interests with respect to part of the area covered by the application, being Part A of the native title claim area. As a result, they seek a native title determination under s 87A of the Act that native title rights and interests exist over the lands and waters described in Schedule Four (the Determination Area) of the Proposed Determination and the orders which accompany these reasons, and are held by the Mitakoodi and Mayi People. Sections 87 and 87A of the Act provide a mechanism for achieving a key objective of the Act, being to ensure, where possible, that the just and proper recognition of native title rights and interests is achieved by conciliation and agreement. Specifically, these provisions confer power on the Court to make a determination of native title in relation to the whole, or (relevantly) part of, an area covered by a native title determination application (ss 87 and 87A respectively) where the parties reach agreement and a number of criteria are met (a consent determination).

4    The native title rights set out in the Proposed Consent Determination comprise exclusive and non-exclusive rights. The former are described in Part 1 of Schedule 4 (the exclusive areas) and comprise approximately 730 ha. Exclusive rights are areas (excluding waters) where the native title rights and interests confer exclusive possession, occupation, use and enjoyment on the native title holders to the exclusion of all others are described in Part 1 of Schedule 4. The latter comprise approximately 2,683,974 ha. Non-exclusive rights comprise areas of land and water where non-exclusive native title rights and interests are recognised, that is, where the native title rights and interests do not confer any right of possession, occupation, use and enjoyment or to control access.

5    In both cases, the native title must be exercised in accordance with:

(1)    the laws of the State of Queensland and of the Commonwealth;

(2)    the traditional laws acknowledged, and traditional customs observed, by the native title holders; and

(3)    the terms and conditions of any agreement that appears on the Register of Indigenous Land Use Agreements (ILUAs).

6    Importantly, once made, a native title determination operates against the whole world and does not merely bind the parties to the case in which the determination was made: CG (Deceased) on behalf of the Badimia Poeple v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [44] (North, Mansfield, Jagot and Mortimer JJ); McLennan on behalf of the Jangga People #3 v Queensland [2023] FCAFC 191; (2023) 301 FCR 452 at [26] (Perry J). This is so irrespective of whether the determination is made after a contested hearing and proved on the balance of probabilities or, as here, by consent: Jangga People #3 at [30]–[31] (Perry J).

7    The application relates to an area of land and waters covering approximately 25,700 square kilometres in north-west Queensland. It extends northerly from the Selwyn Range along the Cloncurry, McKinlay, Fullarton, Gilliat, Williams and Flingers Rivers. The southern boundary of the claim traces the watershed between the Lake Eyre Basin and the Cloncurry River catchment. The town of Cloncurry lies within the application area. There are also pastoral stations throughout the application area, including Fort Constantine and Canobie with which members of the claim group have long, intergenerational associations.

8    The area subject to the Proposed Determination is reproduced below for convenience from Schedule 6:

2.    THE PARTIES AND PROCEDURAL HISTORY

2.1    The application: amendments and registration

9    On 8 July 2015, the Applicant filed a claimant native title determination application under s 61 of the Act in the Federal Court on behalf of the Mitakoodi and Mayi People. The application was entered on the Register of Native Title Claims on 25 September 2015. The application followed a number of earlier claims filed over a similar area by some of the same claimants.

10    An amended application was filed on 24 September 2019 but was removed from the Register on 8 November 2019, after a delegate of the Native Title Registrar found that the amended application did not satisfy all of the conditions imposed by ss 190B and 190C of the Act.

11    A further amended application was filed by the Applicant on 19 December 2019. A second further amended application was filed on 15 January 2020, which was accepted for registration and entered on the Register on 21 February 2020.

12    On 20 October 2023, a third additional further amended application was filed pursuant to leave granted by this Court on 9 October 2023 and was accepted for registration on 15 December 2023. As the third additional further amended application (the current application) did not result in a change to the area of land or waters claimed, there was no requirement on the National Native Title Tribunal to give notice of the amended application: s 66A of the Act. Accordingly, the application has remained on the Register since 21 February 2020.

2.2    The native title claim group

13    The native title claim group comprises Mitakoodi and Mayi People who:

(1)    principally identify as Mitakoodi and Mayi People and as belonging to the traditional country of their Mitakoodi and Mayi forebears;

(2)    are recognised by other Mitakoodi and Mayi People as the biological descendants of deceased Mitakoodi and Mayi people; and

(3)    are the descendants of the following apical ancestors: Minnie; Thomas ‘Tiger’ Mitchell; Dinah; Topsy; Sophie and Billy Chisholm.

14    The members of the Mitakoodi and Mayi People who are authorised to make the application on behalf of the native title claim group, as at the time of the consent determination, and who comprise the Applicant for the purposes of s 61(2) of the Act are:

(1)    Tanya Kum Sing;

(2)    Pearl Connelly;

(3)    Kay Douglas;

(4)    Norman Douglas;

(5)    Ronald Major;

(6)    Sharn Fogarty;

(7)    Clyde Fogarty;

(8)    Justin Asse; and

(9)    Kristal Chapman.

(together, the Applicant).

2.3    Progress of Part A to consent determination