FEDERAL COURT OF AUSTRALIA

Doyle on behalf of the Iman People #4 v State of Queensland [2024] FCA 1045

ORDERS

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

BY CONSENT THE COURT ORDERS THAT:

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

2.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.    The determination area is the land and waters described in Part 1 and Part 2 of Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

4.    Native title exists in the Determination Area.

5.    The native title is held by the Iman People described in Schedule 1 as determined by their traditional laws and customs (including those relating to membership) (the Native Title Holders).

6.    Subject to orders 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 4 are:

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

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

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

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

(iii)    take the Water of the area,

for personal, domestic and non-commercial communal purposes.

7.    Subject to orders 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

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

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

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

(d)    take Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

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

(f)    conduct ceremonies on the area;

(g)    bury Native Title Holders within the area;

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

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

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

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

(i)    spouses of Native Title Holders; or

(ii)    persons required or permitted under the traditional laws acknowledged and traditional customs observed by the Native Title Holders for the performance of, assistance with or participation in rituals or ceremonies.

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

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

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

9.    The native title rights and interests referred to in orders 6(b) and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

10.    There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

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

12.    The relationship between the native title rights and interests described in orders 6 and 7 and the other interests described in Schedule 2 (the Other Interests) is that:

(a)    the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and

(c)    the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

DEFINITIONS AND INTERPRETATION

13.    In this determination, unless the contrary intention appears:

“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 the 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);

“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.    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;

(c)    water from an underground water source; and

(d)    tidal water;

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

Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

THE COURT DETERMINES THAT:

14.    The native title is held in trust.

15.    The Wardingarri Aboriginal Corporation RNTBC (ICN: 8305), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

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

SCHEDULE 1

NATIVE TITLE HOLDERS

1.    The Native Title Holders are the Iman People. The Iman People are the descendants of one or more of the following people:

(a)    Mary Arwa;

(b)    Jim Waterton;

(c)    Ada Robinson;

(d)    Maggie Palmtree;

(e)    Lizzie Palmtree;

(f)    Eliza Shields;

(g)    Mary Ann (mother of Maggie Dunn);

(h)    Fanny Waddy/Sandy;

(i)    Dick Bundi/Bundai and Alice Dutton; or

(j)    The mother of John Serico (known as Aggie).

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 following parties under agreements registered on the Register of Indigenous Land Use Agreements:

(a)    Origin Energy Upstream Operator Pty Ltd ABN 67 105 423 532, as agent for and on behalf of Australia Pacific LNG Pty Limited ABN 68 001 646 331 and Australia Pacific LNG CSG Transmissions Pty Limited ABN 52 138 156 466 under the APLNG & Iman People #4 ILUA (QI2022/011), registered on 9 September 2022; and

(b)    Australia Pacific LNG Pty Limited, Australia Pacific LNG Gladstone Pipeline Pty Limited and Australia Pacific LNG CSG Transmissions Pty Limited under the following agreements:

(i)    APLNG and Mandandanji ILUA (QI2011/047), registered on 20 January 2012; and

(ii)    APLNG and Area E Native Title Group ILUA (QI2013/083), registered on 24 April 2014.

2.    The rights and interests of the holders of the following tenements and permits granted pursuant to the Mineral Resources Act 1989 (Qld):

(a)    mineral development licences MDL 223, MDL 224, MDL 411 and MDL 449;

(b)    mining leases ML 50233, ML 50258, ML 50259, ML 50260 and ML 50269; and

(c)    exploration permits for coal EPC 732, EPC 787, EPC 792, EPC 838, EPC 1143 and EPC 1559.

3.    The rights and interests of the holders of the following licences, leases, and authorities granted and/or administered under the Petroleum Act 1923 (Qld) and granted and/or administered under the Petroleum and Gas (Production and Safety) Act 2004 (Qld):

(a)    petroleum pipeline licences PPL 76, PPL 92, PPL 118, PPL 143, PPL 147, PPL 163, PPL 166, PPL 171, PPL 176, PPL 178, PPL 180, PPL 185, PPL 2000, PPL 2026 and PPL 2059;

(b)    authorities to prospect ATP 592, ATP 655, ATP 854, ATP 972, ATP 973, ATP 1191 and ATP 2047;

(c)    petroleum leases PL 43, PL 44, PL 45, PL 90, PL 91, PL 92, PL 99, PL 101, PL 195, PL 200, PL 216, PL 218, PL 226, PL 247, PL 265, PL 267, PL 268, PL 272, PL 297, PL 403, PL 404, PL 405, PL 406, PL 407, PL 408, PL 414, PL 417, PL 418, PL 419, PL 457, PL 469, PL 470 and PL 1012;

(d)    petroleum survey licences PSL 2056 and PSL 2057;

(e)    potential commercial area PCA 110;

(f)    petroleum pipeline licence PPL 30, held by Jemena Queensland Gas Pipeline (1) Pty Ltd ACN 083 050 284 and Jemena Queensland Gas Pipeline (2) Pty Ltd ACN 083 050 104;

(g)    petroleum pipeline licence PPL 2040, held by Jemena Darling Downs Pipeline (3) Pty Ltd ACN 127 059 152; and

(h)    petroleum pipeline licence PPL 90, held by Jemena Darling Downs Pipeline (1) Pty Ltd ACN 072 109 865.

4.    The rights and interests of Jemena Queensland Gas Pipeline (1) Pty Ltd ACN 083 050 284 and Jemena Queensland Gas Pipeline (2) Pty Ltd ACN 083 050 104 as holder of the following leases granted under the Land Act 1994 (Qld):

(a)    Term Lease 0/241024 over Lot 1 Crown Plan WT800342, Title reference 40076542;

(b)    Term Lease 0/0235520 over Lot 1 Crown Plan WT800343, Title reference 40064061; and

(c)    Special Lease 36/52844 over Lot 1 Crown Plan WT800341, Title reference 17741114.

5.    The rights and interests of Australia Pacific LNG CSG Marketing Pty Limited, Australia Pacific LNG CSG Processing Pty Limited, Australia Pacific LNG CSG Transmissions Pty Limited, Australia Pacific LNG Gladstone Pipeline Pty Limited and Australia Pacific LNG Pty Limited:

(a)    as the owners and operators of petroleum infrastructure associated with tenements granted pursuant to the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) in the Determination Area;

(b)    as the holders of the following easements granted in the Determination Area:

(i)    RASP270571, AASP270708, BBSP270707, DDSP261985, DESP261986, DFSP261997, DGSP261993, DHSP261994, DISP261995, DJSP261995, ACSP275386, BESP270553, BFSP270555, BYSP270553, BZSP270554, ASP257564, CBSP261941, CCSP261942, CDSP261943, CESP261943, CFSP261944, CGSP261944, CHSP261945, CLSP261977, CMSP261977, CNSP261954, COSP261955, CPSP261956, CQSP261957, CRSP261958, CSSP261959, CTSP261960, CUSP261960, CVSP261961, CWSP261962, CXSP261962, CYSP261963, CZSP261964, DASP261965, DBSP261968, DCSP261969, BSP305019, CSP309830, DSP305019, ESP305019, FSP305020, GSP305020, HSP305021, JSP305021, AESP270584, AFSP270585, AGSP270586, AHSP270587, AISP270588, AJSP270589, AKSP270590, ALSP270591, AMSP270591, ANSP270592, AOSP270592, APSP270593, AQSP270593, ARSP270594, ASSP270594, ATSP270595, PSP269461, QSP269466, ESP242376, CASP270593, CBSP270657, CCSP270657, CDSP270658, CESP270659, AASP289634, ABSP279187, ASP269470, BASP270707, CSP184934, DSP184934, ESP263274, ESP279204, FSP279204, ICSP265517, JSP184934, AASP265964, BASP265969, BBSP265970, BCSP265971, BDSP265971, BESP265974, BFSP265976, BGSP265977, BHSP265979, BISP265978, MSP265950, NSP265952, OSP265953, PSP265953, QSP265954, RSP265954, SSP265954, TSP265966, USP265958, VSP265958, WSP265959, XSP265960, XXSP269139, YSP265961 and ZSP265961; and

(c)    under the Cultural Heritage Management Plan, dated 24 January 2020, entered into between Origin Energy Upstream Operator Pty Ltd (on its own behalf and as operator and agent for and on behalf of Australia Pacific LNG Pty Limited, Australia Pacific LNG CSG Transmissions Pty Ltd, Australia Pacific LNG CSG Processing Pty Limited, Australia Pacific LNG Gladstone Pipeline Pty Limited, Australia Pacific LNG CSG Marketing Limited and Australia Pacific LNG (Moura) Pty Limited), and Harold Doyle, Trent White, Samantha Booth and John Waterton, approved by the Cultural Heritage Unit on 27 March 2020.

6.    The rights and interests of TotalEnergies EP Australia; TotalEnergies EP Australia II; Santos CSG Pty Ltd; PAPL (Upstream II) Pty Limited; KGLNG E&P Pty Ltd; Santos TPY CSG, LLC; Santos TPY, LLC; Santos Queensland, LLC; Bronco Energy Pty Limited; Santos Toga Pty Ltd; PAPL (Upstream) Pty Limited; Santos QNT Pty Ltd; Blue Energy Limited ACN 054 800 378, Eureka Petroleum Pty Ltd ACN 107 185 222; Syntech Resources Pty Ltd (ACN 095 102 971), TotalEnergies GLNG Australia, Santos GLNG Pty Ltd, PAPL (Downstream) Pty Limited and KGLNG Liquefaction Pty Ltd:

(a)    as holders of any other resource authorities granted under Mineral Resources Act 1989 (Qld) or other legislation as at the date of the determination;

(b)    as holders of any other resource authorities granted under the Petroleum and Gas (Production and Safety) Act 2004 (Qld), Petroleum Act 1923 (Qld) or other legislation as at the date of the determination;

(c)    as holders of any interests in land (including without limitation pastoral leases, term leases, easements, permits to occupy) within or relating to the Determination Area; and

(d)    under any contract or deed relating to the Determination Area including regarding any resource authorities.

7.    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 owners or operators of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

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

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

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

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

8.    The rights and interests of Ergon Energy Corporation Limited 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 these orders are made; and

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

9.    The rights and interests of Maranoa Regional Council, Banana Shire Council and Western Downs Regional 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;

(iii)    party to any agreement with a third party which relates to land or waters in the Determination Area; and

(iv)    holder of any estate or any other interest in land, including as trustee of any Reserves, under access agreements and 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 any:

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by Councils;

(viii)    cemetery and cemetery-related facilities; and

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 9(a), 9(b) or 9(c) above by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 9 and paragraphs 10 and 11;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 9(c) above; and

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

10.    The rights and interests of the State of Queensland, Maranoa Regional Council, Banana Shire Council and Western Downs Regional 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.

11.    The rights and interests of the State of Queensland, Maranoa Regional Council, Banana Shire Council and Western Downs Regional Council 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.

12.    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);

(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 Transport Infrastructure Act 1994 (Qld); and

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

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

14.    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s18 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; and

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

15.    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

Part 1

The area of land and waters, generally located south of the southern bank of Cockatoo Creek and Auburn Creek, bounded by the following native title determinations.

    The external boundary (Schedule 1, Part 4) of native title determination QUD6006/2000 Wulli Wulli People (QCD2015/009) as determined by the Federal Court of Australia on 13 August 2015.

    The external boundary (Schedule 1, Part 5) of native title determination QUD6162/1998 Iman People #2 (QCD2016/005) as determined by the Federal Court of Australia on 23 June 2016.

    The external boundary (Schedule 3) of native title determination QUD31/2019 Auburn Hawkwood People (QCD2019/006) as determined by the Federal Court of Australia on 25 November 2019.

Part 2

The area of land and waters, generally located in the vicinity of the towns of Injune and Miles; within the external boundary described as:

Commencing at the intersection of the western external boundary of native title determination QUD6162/1998 Iman People #2 (QCD2016/005)) and the northern bank of the Dawson River and extending generally southerly, generally south easterly and generally north easterly along the western and southern external boundary of that native title determination to the northern boundary of Lot 21 on Plan FT111 at approx. Longitude 150.282448° East, being a point on the western external boundary of native title determination QUD31/2019 Auburn Hawkwood People (QCD2019/006); then generally south easterly, generally southerly and again generally south easterly along the western external boundary of that native title determination to a point on the southern boundary of the Burnett River watershed at Longitude 150.389155° East; then generally south easterly, generally south westerly, and generally north westerly to a corner on the southern boundary of the Dawson River Sub Basin Drainage Area at Longitude 149.768733° East, Latitude 26.400870° South, passing through the following coordinate points.

Then generally northerly and generally westerly along the southern boundaries of the Dawson River Sub Basin Drainage Area to its intersection with the eastern external boundary of native title determination QUD19/2019 Gunggari People #4 (QCD2019/005); then generally northerly along the external boundary of that native title determination to its intersection with the southern boundary of Lot 236 on Plan NPW490 (Carnarvon National Park), being the southern external boundary of native title determination QUD216/2008 Bidjara People (QCD2014/002); then generally south easterly along the external boundary of that native title determination back to the commencement point.

    For the avoidance of doubt, any land or water within the external boundaries of the following are excluded.

    The external boundary (Schedule 1, Part 2) of native title determination QUD216/2008 Bidjara People (QCD2014/002) as determined by the Federal Court of Australia on 21 February 2014.

    The external boundary (Schedule 1, Part 4) of native title determination QUD6006/2000 Wulli Wulli People (QCD2015/009) as determined by the Federal Court of Australia on 13 August 2015.

    The external boundary (Schedule 1, Part 5) of native title determination QUD6162/1998 Iman People #2 (QCD2016/005) as determined by the Federal Court of Australia on 23 June 2016.

    Native title determination QUD366/2008 Mandandanji People (QC2018/001) as determined by the Federal Court of Australia on 7 March 2018.

    The external boundary (Schedule 3) of native title determination QUD19/2019 Gunggari People #4 (QCD2019/005) as determined by the Federal Court of Australia on 2 September 2019.

    The external boundary (Schedule 3) of native title determination QUD31/2019 Auburn Hawkwood People (QCD2019/006) as determined by the Federal Court of Australia on 25 November 2019.

Note

Data Reference and source

•    External boundaries compiled by National Native Title Tribunal based on information or instructions provided by the applicants.

•    Cadastral data (DCDB) sourced from Department of Resources (QLD), August 2023.

•    Burnett River watershed based on River Basin (2020) data sourced from Department of Resources (QLD).

•    River Sub Basin Drainage (2021) data sourced from Department of Resources (QLD).

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

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 watercourses described in the first column of the tables in the Parts immediately below, and depicted in the map in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 – Exclusive Areas

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

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

Pt denotes areas that are located partly within the External Boundary.

Part 2 – Non-Exclusive Areas

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

Pt denotes areas that are located partly within the External Boundary.

SCHEDULE 5

AREAS NOT FORMING PART OF THE DETERMINATION AREA

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

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

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

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

(b)    the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

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

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

SCHEDULE 6

MAP OF DETERMINATION AREA

REASONS FOR JUDGMENT

RANGIAH J:

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

2    A determination of native title has been previously made in favour of the Iman People: see Doyle (on behalf of the Iman People #2) v State of Queensland (2016) 335 ALR 201; [2016] FCA 743 (the Iman People #2 determination).

3    The parties have now indicated their consent to a determination that the Iman People hold native title rights and interests in the proposed determination area.

4    The proposed determination area covers the area set out at Order 3 of the Orders. The external boundaries of the proposed determination area cover approximately 204,439 ha of land and waters in south-west Queensland, between Miles and Injune.

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

The Native Title Act

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

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

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

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

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

Common law rights and interests

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

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

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

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

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

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

…

The application

12    The application for a determination of native title was filed in the Federal Court on 21 August 2017.

13    On 6 November 2017, the application was separated, by order of the Court, into Part A (the area that was the subject of an overlapping claim by the Wadja People) and Part B.

14    On 9 August 2018, the application was amended to remove Part A from the claim area. The proposed determination area consists of a substantial part, but not the whole, of Part B.

15    There are two outstanding matters in the claim area that are unresolved between the State and the applicant. The first matter relates to the potential application of s 47B of the Act to 53 parcels in the claim area and includes a further four parcels in a claim by the Iman People #5 (QUD 497 of 2023). The second matter relates to certain parcels in the claim area which may be the subject of an agreement for the purposes of s 47C of the Act.

16    The applicant now seeks a determination on behalf of the Iman People over land and waters within the external boundaries of the proposed determination area.

17    The persons comprising the applicant are: Harold Doyle, Samantha Booth, John Waterton and Trent White.

18    The respondents to the application are: the State of Queensland, the Commonwealth of Australia, Banana Shire Council, Maranoa Regional Council, Western Downs Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Australia Pacific LNG CSG Marketing Pty Limited, Australia Pacific LNG CSG Processing Pty Limited, Australia Pacific LNG CSG Transmissions Pty Limited, Australia Pacific LNG Gladstone Pipeline Pty Limited, Australia Pacific LNG Pty Limited, Azeeza Pty Limited, Blue Energy Limited, Bronco Energy Pty Limited, Eureka Petroleum Pty Limited, Jemena Darling Downs Pipeline (1) Pty Limited, Jemena Darling Downs Pipeline (3) Pty Limited, Jemena Queensland Gas Pipeline (1) Pty Limited, Jemena Queensland Gas Pipeline (2) Pty Limited, KGLNG E&P Pty Limited, KGLNG Liquefaction Pty Limited, PAPL (Downstream) Pty Limited, PAPL (Upstream) Pty Limited, PAPL (Upstream II) Pty Limited, New Wilkie Energy Pty Limited (Administrators Appointed) (Receivers and Managers Appointed), Santos CSG Pty Limited, Santos GLNG Pty Limited, Santos QNT Pty Limited, Santos Queensland, LLC, Santos Toga Pty Limited, Santos TPY CSG, LLC, Santos TPY, LLC, Senex Assets Pty Limited, Stuart Petroleum Cooper Basin Gas Pty Limited, Syntech Resources Pty Limited, TotalEnergies EP Australia, TotalEnergies EP Australia II, TotalEnergies GLNG Australia, Victoria Oil Pty Limited, Wandoan Holdings Pty Limited and Amplitel Pty Limited as trustee of the Towers Business Operating Trust.

19    All parties to the application have reached agreement that native title exists in the proposed determination area and as to the nature and extent of those native title rights and interests. That agreement, made under s 87A(1)(b) of the Act, was filed in the Federal Court on 30 July 2024.

20    The evidence of connection relied on by the applicant includes claimant evidence in the form of affidavits and various expert reports. Some of the evidence relied on by the applicant includes evidence filed for the Iman People #2 determination.

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

    Affidavit of Beatrice Henry filed 31 July 2012;

    Affidavit of Doreen Edmonds filed 31 August 2012;

    Affidavit of Priscilla Iles filed 31 August 2012;

    Affidavit of Marshall Bell filed 21 December 2012;

    Affidavit of Patrick Silvester filed 5 March 2013;

    Affidavit of Lawrence Bundi filed 28 June 2013;

    Affidavit of Eddy Waddy filed 2 August 2013;

    Affidavit of Richard Doyle (Senior) filed 23 August 2013;

    Affidavit of Terry Cressbrook filed 9 January 2014;

    Affidavit of Fergus Waterton filed 9 January 2014;

    Affidavit of William Joseph Munns filed 9 May 2016;

    Affidavits of Eddy Waddy dated 4 December 2020, 14 September 2023 and 27 October 2023;

    Affidavits of Stuart White dated 28 January 2021 and 20 November 2021;

    Affidavit of Heather Tobane dated 28 January 2021;

    Affidavit of Mona Booth dated 12 November 2021;

    Affidavits of Ken Waterton dated 20 November 2021 and 17 December 2021;

    Affidavit of Troy Noble dated 30 November 2021;

    Affidavit of Harold Doyle dated 15 December 2021; and

    Affidavits of Trent White dated 14 September 2023, 3 November 2023 and 13 May 2024.

22    The applicant also relies on the following expert reports:

    Dr Fiona Powell, ‘Iman Native Title Claim QUD 6162/1998 Anthropologist’s Report’ (prepared in seven stages from 22 December 2011 to 30 June 2013);

    Rosalind Kidd, ‘The Iman People, Final Historical Report’ filed on 21 December 2012;

    Dr Fiona Powell, ‘Criteria for Claim Group membership’ dated 5 July 2018;

    Dr Natalie Kwok, ‘Iman #4 QUD413/2017 Part C Native Title Claim Southern and Western Boundaries’ dated 27 January 2021; and

    Dr Natalie Kwok, ‘Supplementary Report Iman #4 QUD413/2017 Native Title Claim’ dated 30 November 2021.

23    In stage 6 of her report (prepared for the Iman #2 determination), Dr Powell states that:

On the basis of my consideration of the early ethno-historical and more recent materials, I found that the land-holding group relevant to the Claim Area is the one identified as Iman. This group is associated with the area centred on the Upper Dawson and which extends southwards into the upper Condamine region and northwards into the mid-Dawson region. I also found that at and since the time of effective sovereignty in this region (about 1856) the connections of this land-holding group to this area have been regulated according to laws and customs that determine the membership of this group and the group’s rights and responsibilities in relation to the ownership of this area and use of its natural resources.

24    In stage 2 of her report, Dr Powell observes that the Iman Peoples’ customary ritual practices, which have been handed down to the present generation by their forebears, including with respect to totemic and spiritual beliefs, ceremonies, social organisation, dispute resolution and decision making.

25    In Dr Kwok’s report of 30 November 2021, she reviews the evidence of connection between the apical ancestors described in the Iman #2 determination and the proposed determination area in the present application, and concludes that:

In my opinion the apical ancestors described in the Iman #4 claim represent the set of apical ancestors which capture that group of traditional owners who, united as Iman people, share interests across the whole claim area, even though, in keeping with Iman law and custom, internal differentiation can be observed between the degrees of attachment and authority held by different families and individuals relating to particular areas.

26    The native title holders are the Iman People. The Iman People are the descendants of one or more of the following people:

    Mary Arwa;

    Jim Waterton;

    Ada Robinson;

    Maggie Palmtree;

    Lizzie Palmtree;

    Eliza Shields;

    Mary Ann (mother of Maggie Dunn);

    Fanny Waddy/Sandy;

    Dick Bundi/Bundai and Alice Dutton; and

    The mother of John Serico (known as Aggie).

27    The evidence relied on, including the expert reports and the affidavits provided by the claimants, provide cogent evidence of the continuity of the traditional laws and customs of the Iman People extending back to before the time of sovereignty. The evidence supports the claim that the traditional laws acknowledged and the traditional customs observed give the Iman People the rights and interests set out in Orders 6 and 7 of the Orders.

The agreement reached between the parties

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

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

    it would be appropriate to do so.

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

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

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

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

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

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

30    In considering whether it is appropriate to make the orders sought, the Court’s role is confined to considering the evidence filed for the purpose of determining whether the parties have entered into an agreement that has been freely made on an informed basis: Nangkiriny (on behalf of the Karajarri People) v State of Western Australia (2002) 117 FCR 6 at [14]. The Court is not required to make a judicial determination of the merits of the claim: Button (on behalf of the Koa People) v State of Queensland [2021] FCA 1190 at [5]. In considering the appropriateness of the orders, the Court is directed to consider whether the parties to the agreement have acted rationally and in good faith: Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109 at [30].

31    The requirements of the Act have been satisfied:

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

    The period for notification of the application under s 66 of the Act has ended, and the parties to the proposed determination have recorded their agreement as to the terms of a determination of native title in relation to the proposed determination area: s 87A(1)(b) and (c).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prescribed Body Corporate

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

36    Section 56(1) of the Act requires that the Court must determine whether the native title is to be held in trust, and if so, by whom. The applicant has consented to orders determining that the native title is to be held in trust. The applicant seeks orders that the Wardingarri Aboriginal Corporation RNTBC (ICN 8305) is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the Act. The Wardingarri Aboriginal Corporation holds the Native Title on trust for the Iman People resulting from the Iman #2 determination. The applicant relies on an affidavit of Colin Hardie which annexes a copy of a letter from Heather Toban, an Iman Person, and a member of the applicant claim group, formally nominating the Wardingarri Aboriginal Corporation as the prescribed body corporate in respect of the determination.

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

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

Conclusion

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

Associate:    

Dated:    12 September 2024

SCHEDULE OF PARTIES