FEDERAL COURT OF AUSTRALIA

Dallachy on behalf of the Barada Kabalbara and Yetimarala People #2 v State of Queensland (Consent Determination) [2024] FCA 1392

ORDERS

THE COURT NOTES THAT:

A.    The agreement of the parties to the Determination is subject to an application to register the proposed Bulgan Tara Yanal Aboriginal Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) having been made, before the date of this Determination.

B.    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 areas within the External Boundary will be addressed after the matter has proceeded to determination.

C.    The Barada Kabalbara Yetimarala People (being the proposed Native Title Holders described in Schedule 1 of the Determination) have indicated a desire to enter into negotiations with the State of Queensland in relation to whether s 47C of the Native Title Act 1993 (Cth) would have application to any park areas within the External Boundary.

D.    Subject to recital E below, the Applicant and the State of Queensland agree that, if agreement is reached in accordance with s 47C(1)(b) of the Native Title Act 1993 (Cth) that s 47C is applicable in respect of any park areas within the External Boundary, the State of Queensland would not oppose an application being brought by the registered native title body corporate, pursuant to ss 13(1)(b) and 13(5) of the Native Title Act 1993 (Cth), to vary the Determination in relation to any such park area which is included in the Determination Area.

E.    The agreement of the State of Queensland in recital D above not to oppose an application to vary the Determination or an application for a determination that native title exists in relation to any park area, is subject to the Applicant and the State of Queensland having reached agreement on the nature and extent of the native title rights and interests that would be determined to exist in relation to each such park area.

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

BY CONSENT, THE COURT ORDERS THAT:

1.    Subject to Order 2, there be a determination of native title in the terms set out in orders 5-14 and a determination of whether or not native title is held in trust in the terms set out in orders 15 and 16 below (the Determination).

2.    Order 1, and the orders to which it refers, take effect immediately upon the last of the following events:

(a)    when the proposed Bulgan Tara Yanal Aboriginal Corporation is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

(b)    when the Applicant has filed and served:

(i)    a notice stating that the Bulgan Tara Yanal Aboriginal Corporation has been registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

(ii)    a notice specifying the ICN given in the certificate issued under s 32-1(1)(c) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) for the proposed corporation;

(iii)    a written consent of the Bulgan Tara Yanal Aboriginal Corporation under s 56(2) of the Native Title Act 1993 (Cth).

3.    If Order 1 has not taken effect by 1 March 2025, the matter is to be listed for further directions.

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

BY CONSENT, THE COURT DETERMINES THAT:

5.    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.

6.    Native title exists in the Determination Area.

7.    The native title is held by the Barada Kabalbara Yetimarala People described in Schedule 1 (the Native Title Holders).

8.    Subject to orders 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 4 are the non-exclusive rights to:

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

(b)    camp on the area and for that purpose, erect temporary shelters on the area;

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

(d)    use Natural Resources of the land and waters of the area that are not taken, for any purpose;

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

(f)    bury Native Title Holders within the area;

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

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

(i)    hold meetings on the area; and

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

9.    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.

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

11.    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).

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

13.    The relationship between the native title rights and interests described in order 8 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

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

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

THE COURT DETERMINES THAT:

15.    The native title is held in trust.

16.    Bulgan Tara Yanal Aboriginal Corporation, 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 LIST OF SCHEDULES

Schedule 1 – Native Title Holders    9

Schedule 2 – Other Interests in the Determination Area    10

Schedule 3 – External Boundary    13

Schedule 4 – Description of Determination Area    16

Schedule 5 – Areas Not Forming Part of the Determination Area    18

Schedule 6 – Map of Determination Area    1

Schedule 1 – Native Title Holders

(1)    The native title holders are the Barada Kabalbara Yetimarala People. The Barada Kabalbara Yetimarala People are the descendants (including through adoption or raising up) of one or more of the following people:

(a)        Barada woman (spouse of Johnny and Charlie Budby), who her descendants refer to as Kitty;

(b)        Lucy and/or Jimmy Barber;

(c)        Kitty (aka Kitty Eaglehawk);

(d)        Yatton Boney;

(e)        Maggie (mother of Jack Mack and Gypsy Tyson); and

(f)        King Boco.

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 Mr Ross Olive as the holder of the following special lease issued pursuant to the Land Act 1962 (Qld) and the Forestry Act 1959 (Qld):

(a)    Special Lease for Primary Industry (Grazing) No 701416846, over Lot 3 on LI807533 being strata title lease within the boundary of Lot 65 on FTY1503.

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

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

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

(i)    as the holder of a distribution authority;

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

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

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

(3)    The rights and interests of the Rockhampton Regional Council and the Livingstone Shire Council (Councils):

(a)    under their local government jurisdiction and functions under the Local Government Act, under the Stock Route Management Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be 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)    holder of any estate or 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)    gravel pits operated by Councils;

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

(iii)    water pipelines and water supply infrastructure;

(iv)    drainage facilities;

(v)    cemetery and cemetery related facilities;

(vi)    watering point facilities;

(vii)    recreational facilities;

(viii)    transport facilities; and

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 3(a), 3(b) or 3(c) above by their employees, agents or contractors to:

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

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

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

(4)    The rights and interests of the State of Queensland, Livingstone Shire Council and Rockhampton 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.

(5)    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

(6)    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

(a)    the 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).

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

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

(8)    So far as confirmed pursuant to s 212(2) of the 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; and

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

(9)    Any other rights and interests:

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

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

Schedule 3 – External Boundary

The area of land and waters commencing:

At a point on centreline of Fitzroy River at Longitude 150.000846° East and extending generally westerly along the centreline of the Fitzroy River to Longitude 149.880563° East; then westerly to the centreline of Ten Mile Creek at Longitude 149.858317° East, Latitude 23.079614° South, then generally north-easterly along the centreline of Ten Mile Creek to Longitude 149.862628° East and generally north-westerly passing through the following coordinate points.

Then northerly to the centreline of Deep Creek at Latitude 22.653981° South and generally north-westerly along the centreline of that creek to Latitude 22.648868° South, then generally south-easterly passing through the following coordinate points:

Then south-easterly back to the commencement point.

The determination area specifically excludes:

    Lot 1 on LI224

To avoid any doubt the determination area does not include any land and waters subject to:

    QUD6131/1998 Darumbal People as determined by the Federal Court 21 June 2016;

    QUD30/2019 Darumbal People as determined by the Federal Court 01 December 2023;

    QUD13/2019 Barada Kabalbara Yetimarala People as accepted for registration 29 September 2019.

Data Reference and source

    External boundary compiled by Queensland South Native Title Services based on spatial data sourced from the Commonwealth of Australia, National Native Title Tribunal (February 2024).

    Cadastral data sourced from State of Queensland. Department of Natural Resources (February 2024).

    Watercourses are wherever possible based on cadastral data; else Watercourse lines - Queensland - by area of interest (August 2023)

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia (GDA2020) in decimal degrees.

Use of Coordinates

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

Prepared by Queensland South Native Title Services (March 2024).

Schedule 4 – Description of Determination Area

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

Non-Exclusive Areas

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

[* denotes area which is 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 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

SARAH C DERRINGTON J:

INTRODUCTION

1    Mr Sam Dallachy, and others on behalf of the Barada Kabalbara Yetimarala (BKY) People, (applicant), seeks consent determinations under s 87 of the Native Title Act 1993 (Cth) (NTA) in proceeding QUD13/2019 and proceeding QUD15/2019 (the proceedings) to recognise the native title rights and interests of the BKY People. The persons comprising the representative applicant in each proceeding are Samuel (Sam) Dallachy, Lalu Asela, Elizabeth Doyle, Juanita Mason, Skye Muller, Norman Ross, Deborah Santo, Vanessa Saunders, Michael Smith, Davina Tilberoo Snr, and Claudine Walsh.

2    The area the subject of the applications for the proceedings consists of approximately 7,807 square kilometres and forms an irregular shape between the Styx River in the north east, the Fitzroy River in the south, the Peak Ranges in the west and Lotus Creek in the north.

3    The parties, being the applicant, the State of Queensland, and the respondents in each proceeding, have filed two agreements under s 87 of the NTA each of which has a draft consent determination as an annexure (draft determinations).The applicant relies on the Section 87 Agreements, filed 30 September 2024, and written submissions and other material, to satisfy the Court of the appropriateness of the orders sought in the draft determinations as proposed.

4    For the reasons that follow, the Court is satisfied that it is within the power of the Court to make the orders sought in the draft determinations as proposed, and that it is appropriate to do so.

5    As will be explained, the Court’s task in reaching the required state of satisfaction to make determinations of native title under s 87 of the NTA is based on the parties’ free and informed agreement and so does not require judicial determination of the issues in the application. In making such a determination, the Court recognises that rights and interests have existed under the traditional laws and customs of the BKY People for millennia. The effect of the determinations is that the Australian community will collectively recognise that those rights which existed at sovereignty, and which survived that fundamental change in legal regime, are recognised, enforced and protected pursuant to the NTA. For that reason, and consistent with the Preamble to the NTA, it is appropriate to record some of the history, prior rights and interests, and rich and diverse culture of the BKY People that was in evidence before this Court in what is described as the Connection Material.

THE BARADA KABALBARA YETIMARALA PEOPLE

6    The BKY People are described in Schedule 1 of the draft determinations. They are descendants (including through raising up) of one or more of the following people:

(a)    Barada woman (spouse of Johnny and Charlie Budby), who her descendants refer to as Kitty;

(b)    Lucy and/or Jimmy Barber;

(c)    Kitty (aka Kitty Eaglehawk);

(d)    Yatton Boney;

(e)    Maggie (mother of Jack Mack and Gypsy Tyson); and

(f)    King Boco.

7    While a Court in giving effect to a proposed consent determination under s 87A of the NTA need not undertake an assessment of the matters set out in s 223, it is important to say something about the BKY People and their country, considering the effect of a consent determination as creating “a permanent record of the judicial recognition of their native title rights and interests”: McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 at [17] (Murphy J).

8    The BKY People’s traditional laws and customs are derived from the wider regional society, known as the Birri Gubba (BG) society, from before sovereignty. The localised area attributed to the BKY People began from the confluence at the Fitzroy and the Mackenzie Rivers in the south, ran along the Broadsound Range to the north, including Apis Creek, Tooloombah and Lotus Creek, and stretched north-westerly to include the Isaac River and Clive Station, and west toward Cotherstone Station.

9    The BKY People held beliefs in the spiritual character of the land, which beliefs existed before effective sovereignty. Dr Alison Pembroke, in her report ‘Barada Kabalbara Yetimarala People: Supplementary Connection Report”, filed on 7 February 2020, explores these beliefs as deriving from the broader BG society (at 200-201):

[The BKY People] share a number of spiritual beliefs in beings said to inhabit the landscape and govern behaviour; they share a belief sorcery that traces back to the pre-sovereign society; they engage in traditional subsistence activities; they continue to acknowledge and observe a number of traditional food taboos; they bestow upon their children names relating to kin and country (including name repetition); they subscribe to a system of traditional kinship classification; they acknowledge the authority of the group’s elders, particular in dispute resolution and decision-making.

10    After effective sovereignty, and consistent with the impacts of colonisation, life for Aboriginal families – including those of the BKY People – became challenging. Extreme violence from white settlers moving into the region, government restrictions on Aboriginal people, including their removal to government-run missions, and disease denote the oppressive circumstances under which Aboriginal people lived. There were, however, Aboriginal families of the BKY People that remained on country, working and living on pastoral stations such as Croydon Station and Yatton Station. Dr Lee Sackett, in his report, “Barada Kabalbara Yetimarala Native Title Claim: Anthropologist’s Report”, filed on 5 June 2018, described how the enduring presence of the BKY People living on country maintained a connection to the land (at 30-31):

[W]hile physical connection with the claim area diminished across time, claimants nonetheless regarded themselves as vitally linked to it. It was where their ancestors, and by extension they themselves, were from. Such connection was, at least as some claimants saw it, enduring and unseverable. The connection was made real by claimants’ beliefs regarding the spirits of their ancestors occupying and maintaining the claim area …. That is, claimants’ own connections for the most part were centred on and through descent from ancestors who had had direct physical connections with country. In my view, these cultural/spiritual connections came across very much as continuous, generation-to-generation associations.

(Emphasis added.)

11    The contemporary BKY People are determined by their descent from apical ancestors, born around or before sovereignty, and recognise cognatic descent as the primary means by which rights to country are acquired.

12    Based on the information provided, I observe that the submissions before the Court provide that the Connection Material establishes:

(a)    that the BKY People are a localised land-holding group within the BG regional society, which society is comprised of tribal groups, including Wiri, Yuwibara, Barada, Gia, Ngaro, Juru, Bindal, Birri, and Jangga. The society is united by its shared language and practice of traditional laws and customs, including systems of recruitment to land-owning groups and land tenure, regional and section divisions, totemism, marriage, kinship, knowledge and authority, naming practices, cultural protocols, mythology and permission;

(b)    that the contemporary BKY People are local descendants of the southern localised Barada tribal group, which group recognises certain families as continuing to have the collective rights to speak for country. The contemporary BKY People are determined by their descent from their apical ancestors born at or around sovereignty, who are associated with areas on or near the lands and waters identified in the draft determinations;

(c)    that despite their membership within the BG society, the land rights held by the BKY People are characterised as those of a ‘core rights holding territorial group’, which group can grant permission to those seeking to access and exploit their territory. The association of land rights to tribal groups within the BG society was determined by their local association to land and waters, and the BKY People (as the local subgroup) are the people with the landed rights and interests for the Determination Area;

(d)    that land rights within the BG society were gained through patrifiliation, male initiation, matrimonies, matri-totems and a four section system. Prior to sovereignty, the BKY People primarily gained rights to the Determination Area through patrilineal descent, but that means of transmission has gradually shifted to recognise rights by cognatic descent in modern times;

(e)    that filiation is the means by which the BKY People acquire rights and interests to land and knowledge of country.

(f)    that the connection of the BKY People to their country is informed by their spiritual connection to the lands and waters, which is passed down by generations through oral histories, and comprises the group’s mythology and identity. Elders of the BKY People continue to teach spiritual and physical attributes of their country, which speaks to features of the environment or other important spiritual sites on country. This includes: creation stories about the water on country, from sites such as Broadsound Ranges, Mount Archer, Rockhampton, Mount Morgan and Gogango Ranges; and telling stories about places on country to avoid due to the presence of angry spirits, such as the Yunji;

(g)    notwithstanding the significant impacts of colonisation, the common identity of the BKY People and their connection to country has been maintained, with observance and practice of their traditional laws and customs still occurring today. Examples of this continuity include: retention of language; ongoing beliefs of ancestors’ occupation of the Determination Area; maintenance of the Determination Area; filiation as the mechanism for passing local mythology between generations and the transmission of spiritual knowledge by Elders; and the families of BKY People who remained on country continuing to work and live on pastoral stations, sustaining the group’s connection to country;

(h)    the BKY People continue to practise behaviours associated with spiritual and totemic beliefs, which are an important symbol of group identity and uniting people to their traditional lands. This includes: the ongoing ancestral ceremonial use of fire for cultural purposes, which continues in modern times, being regularly used in smoking ceremonies on country; the significance of corrobboree at Mt Bora, particularly as a male-only site of spiritual importance; cautions to avoid spiritually dangerous places such as Bluchers Lagoon without Elders; and Dreamtime stories about the totemic significance of wild animals, such as turtles;

(i)    that, further, in relation to traditional land and waters, the BKY People continue to exercise various other rights in and over the Determination Area, including rights to: access, be present on, move about on and travel over the area; camp on the area and for that purpose, erect temporary shelters on the area; take natural resources from the land and waters of the area for any purpose; use natural resources of the land and waters of the area that are not taken, for any purpose; take the water of the area for personal, domestic and non-commercial communal purposes; bury native title holders within the area; maintain places of importance and areas of significance and protect those places and areas from physical harm; teach on the area the physical and spiritual attributes of the area; the right to hold meetings on the area; and light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purposes of hunting or clear vegetation;

(j)    that the exercise of those various rights reflects the BKY People’s occupation of the Determination Area, exploitation of natural resources, management of country and continuing connection to the land and waters within the Determination Area. By those rights, the group holds the right to possess, occupy, use, and enjoy the Determination Area to the exclusion of all others by their traditional laws and customs.

THE DETERMINATION AREA

13    The Determination Area is generally described above. It is defined in the respective draft determinations in Order 5 by reference to the written description of the land and waters in Schedule 4, and depicted in the map attached to Schedule 6, to the extent it is not excluded by the terms of Schedule 5.

THE PROCESS TOWARDS A CONSENT DETERMINATION

Procedural background to the BKY Applications

The BKY #1 Application

14    On 2 July 2013, the original BKY#1 Application was filed pursuant to ss 13(1)(a) and 61 of the NTA. On 27 September 2013, the Registrar accepted the BKY#1 Application for registration under s 190A of the NTA. Details of the BKY#1 Application were entered on the Register and notice provided by the Registrar under s 66(3) of the NTA on 20 November 2013. The closing date for the notification period was 19 February 2014.

15    The BKY#1 Application has since been amended pursuant to Orders of the Court. On 31 July 2014, by Order of Logan J in Budby on behalf of the Barada Barna People v Native Title Registrar [2014] FCA 801, the registration of the original BKY#1 Application was set aside. On 21 August 2014, an amended version of the BKY#1 Application (which is the current BKY#1 Application) was filed pursuant to the Order of Colier J dated 20 August 2014, and by Order of Registrar Fewings on 21 August 2014. Relevantly, those amendments included (and were incidental to) removal of the former applicant and insertion of the new (and present) applicant. On 9 September 2014, the Registrar accepted the amended BKY#1 Application for registration under s 190A of the NTA, and its details were entered on the Register.

The BKY#2 Application

16    On 12 July 2013, the original BKY#2 Application was filed pursuant to ss 13(1)(a) and 61 of the NTA. On 28 August 2013, the Registrar accepted the original BKY#2 Application for registration under s 190A of the NTA. Details of the original BKY#2 Application were entered on the Register and notice provided by the Registrar under s 66(3) of the NTA on 20 November 2013. The closing date for the notification period was 19 February 2014.

17    The BKY#2 Application has since been amended pursuant to Orders of the Court. On 26 August 2014, an amended version of the BKY#2 Application (which is the current BKY#2 Application) was filed pursuant to the Order of Collier J dated 20 August 2014, and by Order of Registrar Fewings on 21 August 2014. Relevantly, those amendments included (and were incidental to) removal of the former applicant and insertion of the new (and present) applicant. On 19 September 2014, the Registrar accepted the amended BKY#2 Application for registration under s 190A of the NTA. Details of the amended BKY#2 Application were entered on the Register.

The path to agreement between the parties

18    On 17 August 2016, Collier J made orders for a connection assessment process between the applicant and the State. Other than the State, no other respondent parties sought to independently assess the Connection Material prepared by the applicant. Following review of the Connection Material, the applicant provided on a confidential and without prejudice basis to the State on 19 May 2017 and 25 June 2018. The applications became the subject of trial programming orders of Rangiah J dated 5 February 2019 and 4 September 2020.

19    The Orders of Rangiah J dated 4 September 2020 ordered that the Separate Question in each application, as defined in Order 1 of the Orders dated 5 February 2019, are to be heard together. By Orders of Sarah C Derrington J dated 24 August 2021, the applications were ordered to be heard together. Pursuant to the programming orders, the applications were subject to two tranches of on-country hearings:

(a)    a preservation of evidence hearing in November 2021, held on 2 to 4 November 2021; and

(b)    a hearing in November 2022, held on 14 to 18 November and on 21 November 2022.

20    After the on-country hearings, the State and applicant participated in court-ordered mediation on 2 February 2023, 10 March 2023 and 19 June 2023, with a sub-conclave of experts on 5 April 2023. On 3 July 2024, a statement of agreed facts between the State and applicant was filed. It documented the agreement reached in relation to specific issues, including the claim group description and native title rights and interests proposed to be recognised. At a meeting held on 24 June 2023, the native title claim group authorised amendments to the claim group description to reflect the agreement reached in the statement of agreed facts.

21    On 21 July 2023, Sarah C Derrington J made orders vacating the outstanding programming orders, and ordered that the matter continue in case management before Judicial Registrar Grant. Pursuant to the Orders of Sarah C Derrington J dated 8 August 2023, granting leave, the further amended applications were filed by the applicant on 10 August 2023. On 13 May 2023, the Native Title Registrar accepted the amended applications for registration under s 190A of the NTA, and details of the applications were entered on the Register.

22    Following the case management process, all parties to both applications reached agreement that native title exists over the Determination Area. Subsequently, the relevant parties executed the relevant Section 87 Agreements to which the draft determinations are annexed. The applicant seeks determination of native title in the terms of the proposed orders agreed to by the relevant parties, as set out in the draft determinations.

23    The applications for the determinations of native title are supported by the following materials:

(a)    the applicant’s written submissions in support of the applications, and supplementary submissions filed subsequently;

(b)    the summary of the Connection Material that is Annexure B to the applicant’s written submissions;

(c)    a copy of the draft determination as proposed which is Annexure A to the Section 87 Agreement for the BKY#1 Application (Annexure C); and

(d)    a copy of the draft determination as proposed which is Annexure A to the Section 87 Agreement for BKY#2 Application (Annexure D).

Recent amendments of parties to the BKY Applications

24    On 14 September 2023, Judicial Registrar Grant made orders granting the following pastoral respondents leave to withdraw as respondents to the BKY#1 Application:

(a)    John Samuel Jones;

(b)    Leone Gale Philipson;

(c)    Neville John Philipson;

(d)    Kelvin Roy Sibson;

(e)    Dale Kelvin Sibson;

(f)    Lynette Estelle Sibson;

(g)    Edward George Smith;

(h)    Elizabeth Joan Smith;

(i)    Russell Charles Smith;

(j)    Craig Lynton Wight;

(k)    Mark Lynton Wight;

(l)    Rachel Gay Wight; and

(m)    Robert Lynton Wight.

25    On 4 December 2023, the applicant filed an interlocutory application seeking the removal of Peabody BB Interests Pty Ltd, Orion Gold NL, Nippon Steel & Sumitomo Metal Australia Pty Ltd ACN 001 445 049, Anglo Coal (Foxleigh) Pty Ltd ACN 125 986549, CAML Resources Pty Ltd ACN 080 649 029, Brian Lloyd Pownall, John Charles Pownall, Judith Louise Pownall and GML Resources NL as respondents to the BKY #1 Application.

26    On 6 December 2023, Judicial Registrar Grant granted leave to Peabody BB Interests Pty Ltd to withdraw as a respondent to the BKY#1 Application, and listed the interlocutory application for hearing on 15 December 2023. On 14 December 2023, the applicant advised that it no longer sought orders removing Nippon Steel & Sumitomo Metal Australia Pty Ltd ACN 001 445 049, Anglo Coal (Foxleigh) Pty Ltd ACN 125 986 549 and CAML Resources Pty Ltd ACN 080 649 029 as respondents to the BKY#1 Application.

27    On 15 December 2023, Judicial Registrar Grant made Orders to remove Orion Gold NL, Brian Lloyd Pownall, John Charles Pownall and Judith Louise Pownall as respondents to the BKY#1 Application and to remove GWM Resource NL as respondent to the BKY#2 Application.

28    On 26 March 2024, Mrs Jean Doreen Moran filed an interlocutory application seeking to be joined as a party to both applications. An interlocutory hearing was held on 26 April 2024 and Mrs Moran’s application was dismissed on 2 May 2024 by Sarah C Derrington J: Dallachy on behalf of the Barada Kabalbara and Yetimarala People v State of Queensland [2024] FCA 444.

THE REQUIREMENTS OF SECTION 87

Whether the Court has power to make the proposed orders

29    The Court has the power pursuant to s 87 of the NTA to make an order in, or consistent with, terms agreed to by the parties withhold holding a hearing if the requirements of s 87(1) of the NTA are satisfied.

30    Pursuant to s 87(1) of the NTA, the Court may make such an order, without hearing, where:

(a)    the period specified in the notice given under s 66 of the NTA has ended (s 87(1));

(b)    there is an agreement for a proposed determination of native title in relation to the proceeding (s 87(1)(a));

(c)    the terms of the proposed determination, in writing signed by or on behalf of all of the parties, is filed with the Court (s 87(1)(b)); and

(d)    the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)).

31    Having regard to the material before the Court, it is satisfied that:

(a)    the notice period specified in s 66 of the NTA ended long ago, on 19 February 2014; and

(b)    there is agreement on the proposed determinations of native title in relation to the proceedings, that the terms of the draft determinations as proposed are in writing, have been signed on behalf of all of the relevant parties, and have been filed with the Court, on 30 September 2024.

32    An order under s 87 of the NTA will be within power (s 87(1)(c)) if: it is consistent with s 94A of the NTA; the rights and interests included in the draft determinations as proposed are recognisable by the common law of Australia; and there is no other native title determination in existence over the area the subject of the draft determination as proposed: Kngwarrey on behalf of the member of the Irrkwal, Ntewerrek, Aharreng, Arrty/Amatyerr and Areyn Landholding Groups v Northern Territory of Australia [2011] FCA 428 at [7].

33    Section 94A provides that an order by which the Court makes a determination of native title must set out details of the matters mentioned in s 225 of the NTA. Section 225 provides:

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 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.

34    “Native Title” and “native title rights and interests” are defined in s 223(1) of the NTA as the:

… communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land and 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.

35    The Court is satisfied as to each of the matters in s 225, being that:

(a)    the persons holding the common or group rights comprising the native title are identified as the BKY People in Order 7 of the respective draft determinations. The BKY People are descendants of the ancestors identified in Schedule 1 to the respective draft determinations, in accordance with the traditional laws and customs of the BKY People (s 225(a));

(b)    the nature and extent of the native title rights and interests in relation to the Determination Area are set out in Orders 8, 9 and 10 of the respective draft determinations (s 225(b));

(c)    the nature and extent of any “other interests” in relation to the Determination Area are identified in Orders 13 and 14 as those set out in Schedule 2 to the respective draft determinations (s 225(c));

(d)    the relationship between the rights and interests relevant to subs 225(b) and (c) are described in Orders 8 and 9 of the respective draft determinations and the other interests described in Schedule 2 of the respective draft determinations are set out in Order 14 of the respective draft determinations. The respective draft determinations identify all “other interests” in relation to the Determination Area and establish that, to the extent of any inconsistency between those other interests and the determined native title, the other interests will prevail. Specified areas over which native title rights and interests will not be recognised are identified in Schedule 5 to the respective draft determinations. Recitals A to D of the respective draft determinations confirm the area over which the applicant and the State have not yet reached agreement as to the applicability of s 47C of the NTA (s 225(d)); and

(e)    the relevant parties agree that native title exists in relation to the land and waters identified in the respective draft determinations as proposed, but that the nature and extent of those native title rights and interests is different in relation to particular areas. Pt 1 of Schedule 4 to the draft determination for the BKY #1 Application identifies the areas over which the parties to the BKY #1 Application are satisfied that exclusive native title exists, and the exclusive rights which are to be recognised are described in Order 8 of the draft determination for the BKY #1 Application (s 225(e)). Pt 2 of Schedule 4 to the draft determination for the BKY #1 Application identifies the areas over which non-exclusive native title rights and interests are to be recognised for the BKY#1 Application, and the non-exclusive rights which are to be recognised are described in Order 9 of the draft determination for the BKY #1 Application. Schedule 4 to the draft determination for the BKY #2 Application identifies the areas over which the parties to the BKY #2 Application are satisfied non-exclusive native title rights and interests are to be recognised for the BKY#2 Application, and the non-exclusive rights which are to be recognised are described in Order 8 of the draft determination for the BKY #2 Application. Schedule 5 to each draft determination identifies the areas which the relevant parties agree are areas not forming part of the Determination Area.

36    The Court is satisfied that the native title rights and interests included in the draft determinations as proposed are capable of being recognised by the common law of Australia.

37    Finally, the Court is satisfied that there is no other native title determination in existence over Determination Area, and that there are no other proceedings before the Court relating to native title determination applications that cover any part of the area subject to the draft determinations as proposed, and which would otherwise require orders to be made under s 67(1) of the NTA.

38    The Court is satisfied that the orders sought are consistent with the terms of the parties’ agreement as reflected in the draft determinations, and are within the Court’s power to pronounce.

Whether the proposed orders are appropriate to be made

39    Section 87(1A) provides:

The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

(a)    whichever of subsection (2) or (3) is relevant in the particular case; and

(b)    if subsection (5) applies in the particular case – that subsection.

40    In the present case, subsection (2) is the relevant subsection and subsection (5) does not apply. Subsection 87(2) provides:

If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

41    The wording of s 87(1A) and (2) provide that the question for the Court is whether it is appropriate to make the order in the terms of the agreement reached between the parties, and the primary focus of the section is such an agreement. As Murphy J said in Eagles on behalf of the Combined Thiin-Mah, Warriyangka, Tharrkari and Jiwarlli People v State of Western Australia [2019] FCA 508 at [19]-[22]:

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

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

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

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

42    The matters to be taken into account include whether: there exists a free and informed agreement between the parties after having had the benefit of independent and competent legal representation in the proceeding; the State has taken a ‘real interest’ in the proceeding on behalf of the broader community; it appears the agreement was freely entered into without duress, fraud or misrepresentation; whether there is evidence before the Court which justifies the order ‘for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally’: Munn v Queensland [2001] FCA 1229; 115 FCR 109 at [30]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[40].

43    The Court is satisfied that the Section 87 Agreements reflect free and informed agreement between the relevant parties. They were arrived at through a case management process overseen by an experienced Judges and a Judicial Registrar of this Court. All parties have had the benefit of independent and competent legal representation.

44    The State has also taken a ‘real interest’ in the proceedings on behalf of the broader community, as evidenced, inter alia, by its participation in two on-country hearings, and given appropriate consideration to the Connection Material.

45    The Connection Material referred to at Annexure A to the applicant’s submissions in support of the draft determinations as proposed is sufficient evidence of the existence of native title, as defined by s 223 of the NTA, and included:

46    Having regard to the evidence above, the Court is satisfied that the State, acting on behalf of the broader community, has taken a real interest in the proceeding and has engaged in a thorough examination of the applications such that it is properly satisfied that there is a credible basis for the making of the draft determinations as proposed, pursuant to the requirements of the NTA.

47    Moreover, the Court is satisfied that, in accordance with s 87(1A)-(2) of the NTA, it is appropriate to make the determinations of native title in terms of the draft determinations as proposed.

THE PRESCRIBED BODY CORPORATE

48    Where the Court proposed to make a determination that native title exists, it must determine whether the native title is to be held in trust and if so by whom: s 55 and 56(1) of the NTA.

49    The Court may determine that the native title is to be held in trust if the common law holders have been given a nomination of the kind referred to in s 56(2)(a). On 1 October 2024, Margaret Hornagold, a member of the BKY People, sent a letter addressed to Judicial Registrar Grant to formally nominate Bulgan Tara Yanal Aboriginal Corporation to be the prescribed body corporate for the purposes of s 56(2)(a) of the NTA, once the Corporation is registered by the Office of the Registrar of Indigenous Corporations.

50    On 29 November 2024, Bulgan Tara Yanal Aboriginal Corporation was registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) under ICN 10423. At the pre-incorporation meeting on 23 September 2024, the proposed initial members and initial directors of the then proposed Bulgan Tara Yanal Aboriginal Corporation passed a resolution that, once registered, the directors will provide written consent to the nomination from the BKY People that the Bulgan Tara Yanal Aboriginal Corporation be determined to be the trustee prescribed body corporate for proposed determinations of native title on behalf of the BKY People. This step, as well as other steps, are provided for in the Order 2 of the draft determinations, as proposed.

51    It is therefore appropriate to make Orders 2, 16 and 17 of the draft determination for the BKY #1 Application and Orders 2, 15 and 16 of the draft determination for the BKY #2 Application.

CONCLUSION

52    For the BKY People, the Section 87 Agreements and the orders herein vindicate their claim for judicial recognition as the people who have always held native title rights and interests in the Determination Area.

Associate:    

Dated:        6 December 2024

SCHEDULE OF PARTIES

Applicants

Second Applicant:     Lalu Asela     

Third Applicant:     Elizabeth Doyle

Fourth Applicant:     Juanita Mason

Fifth Applicant:    Skye Muller

Sixth Applicant:     Norman Ross

Seventh Applicant:    Deborah Santo

Eighth Applicant:    Vanessa Saunders

Ninth Applicant:    Michael Smith

Tenth Applicant:     Davina Tilberoo Snr

Eleventh Applicant:     Claudine Walsh

Respondents

Second Respondent:     Livingstone Shire Council

Third Respondent:     Rockhampton Regional Council

Fourth Respondent:     Ergon Energy Corporation Limited ACN 087 646 062

Fifth Respondent:     Ross Joseph Olive