FEDERAL COURT OF AUSTRALIA

McKellar on behalf of the Wongkumara People v Attorney General for New South Wales (No 3) [2025] FCA 1324

ORDERS

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

THE COURT NOTES THAT:

A.    On 11 March 2008, the Applicant in proceeding QUD 851 of 2018 made a native title determination application in accordance with ss 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia, which has been amended on 16 April 2008, 26 August 2009, 2 September 2009, 12 September 2016, 20 May 2022 and 17 to 18 April 2024.

B.    On 19 June 2024, the Applicant and the Attorney General executed an agreement under s 47C of the Native Title Act 1993 (Cth). On 5 June 2025, that agreement came into effect upon registration of “Kawalanyi Land Use Agreement ILUA”.

C.    On 14 June 2024, the Court made orders partitioning that part of the native title determination application covering the land and waters within the jurisdictional limits of New South Wales into two parts to accommodate the amendment and notification of the application to include the land and waters covered by the agreement under s 47C of the Native Title Act 1993 (Cth). That order was varied, by agreement, on 1 October 2024.    

D.    On 24 June 2024, the Court granted leave to amend the native title determination application to include the application of s 47C of the Native Title Act 1993 (Cth).

E.    On 3 July 2024, this Court made approved determinations of native title covering:

(1)    McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699, covering the “Determination Area” in relation to Queensland Part A Area and “NSW Part A determination area” as those terms are defined in that approved determination of native title; and

(2)    McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 and Paterson on behalf of the Yandruwandha Yawarrawarrka People v State of Queensland [2024] FCA 700, covering the “Queensland Part B Area”, being the overlap area between the Wongkumara People and Yandruwandha Yawarrawarrka People;

F.    The parties who have an interest in this determination have reached an agreement as to the terms of a proposed determination of native title to be made by agreement pursuant to s 87 and in accordance with s 94A of the Native Title Act 1993 (Cth), in relation to the land or waters of the native title determination application remaining before the Court (the “NSW Part B determination area” or the “native title area”), being that:    

(1)    native title exists in relation to part of the NSW Part B determination area described and mapped in Schedule 1 (native title area) to these orders (proposed determination of native title (NSW Part B determination)) to this Agreement (“the Native Title Area”); and

(2)    native title is extinguished in relation to part of the NSW Part B determination area described and mapped in Schedule 2 (extinguished area) to these orders (proposed determination of native title (NSW Part B determination)) to this Agreement (“the Extinguished Area”).

G.    In accordance with s 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed a minute of proposed determination of native title by agreement.

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

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

BY AGREEMENT THE COURT ORDERS THAT:

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

2.    Wangkumarra Kawalanyi Aboriginal Corporation RNTBC, ICN 7384 is to hold the determined native title in trust for the common law holders pursuant to s 56(3) of the Native Title Act 1993 (Cth) and is to:

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

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

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

BY AGREEMENT THE COURT DETERMINES THAT:

4.    Native title exists in relation to the native title area described in Schedule 1 to these orders (native title area) and depicted in the maps at Part 1.2 (maps of the native title area) of that Schedule to this determination of native title.

Native title holders

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

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

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

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

(d)    Kutji (mother of George Dutton);

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

(f)    Norman Harding;

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

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

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

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

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

7.    Subject to paragraphs 8, 9 and 10, the nature and extent of the native title rights and interests in relation to the non-exclusive native title area identified in Schedule 1 are the following non-exclusive native title rights:

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

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

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

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

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

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

(g)    conduct mortuary related rituals including to bury native title holders within the area;

(h)    maintain places of importance and areas of significance to the native title holders under their traditional laws and customs on the area and protect those places and areas from harm;

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

(j)    hold meetings on the area;

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

(l)    be accompanied on to the area by those persons who, though not native title holders, are:

(i)    spouses or partners of native title holders;

(ii)    people who are members of the immediate family of a spouse or partner of a native title holder; or

(iii)    people reasonably required by the native title holders under traditional law and custom including for the performance of ceremonies or cultural activities on the area.

General qualifications on native title rights and interests

8.    Native title does not exist in:

(a)    minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and

(b)    petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW)

9.    The native title rights and interests described in paragraph 7 do not confer:

(a)    any right of possession, occupation, use and enjoyment of the land or waters in the native title area to the exclusion of all others; and

(b)    any right to control public access to or use the land or waters in the native title area.

10.    The native title rights and interests in relation to the land or waters in the native title area are subject to and exercisable in accordance with:

(a)    the laws of the State of New South Wales and of the Commonwealth;

(b)    the traditional laws acknowledged and traditional customs observed by Wongkumara People; and

(c)    the terms and conditions of the agreements referred to in Schedule Four (agreements) of McKellar on behalf of the Wongkumara People v State of the Queensland [2024] FCA 699.

The nature and extent of any other interests

11.    The other interests in relation to the native title area are described in Schedule 3 (other interests in the native title area).

Relationship between native title rights and interests and other interests

12.    The relationship between the native title rights and interests in relation to land or waters in the native title area and other interests, described in Schedule 3 (other interests in the native title area), in relation to those areas is that:

(a)    the other interests continue to have effect;

(b)    the other interests co-exist with Wongkumara People’s native title;

(c)    Wongkumara People do not have the right to control access to or the use of the land or waters by the holders of the other interests; and

(d)    to the extent of any inconsistency, the other interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the other interests, while they are in existence, prevail over but do not extinguish native title and any exercise of those native title rights and interests.

Definitions and interpretation

13.    In this approved determination of native title, unless the contrary intention appears:

animal means any member of the animal kingdom (other than human), whether alive or dead.

extinguished area means the land and waters described in Schedule 2 (extinguished area).

laws of the State of New South Wales and of the Commonwealth include the relevant statutes, regulations, planning instruments and other subordinate legislation of the jurisdiction, and the common law.

native title and native title rights and interests means the rights and interests described in paragraph 7 of the determination.

native title area means the land or waters described in Schedule 1 (native title area).

native title determination application means the native title determination application filed on 11 March 2008 by the Applicant in the Federal Court and given the number QUD 851 of 2018, as amended.

native title holders and Wongkumara People means the persons described in paragraph 5 of the determination

natural resources means:

(a)    any animals and plants found on or in the lands and waters of the native title area; and

(b)    any clays, soil, sand, gravel or rock found on or below the surface of the native title area;

that have traditionally been taken by native title holders;

(c)    but does not include

(i)    minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and

(ii)    petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW)

NSW Part B determination area means the land or waters described in the Schedule 1 (native title area) and Schedule 2 (extinguished area).

original application area, as amended means the land and waters within the external boundaries of the native title determination application filed by the registered native title claimants on behalf of the Wongkumara People on 11 March 2008, as amended up to the date of the NSW Part A determination.

other interests means the rights and interests described in Schedule 3 (other interests in the native title area).

plant means any member of the plant or fungus kingdom, whether alive or dead and standing or fallen.

Wongkumara People has the same meaning as native title holders.

Wangkumarra Kawalanyi Aboriginal Corporation RNTBC means Wangkumarra Kawalanyi Aboriginal Corporation RNTBC, ICN 7384 having become a registered native title body corporate pursuant to McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 being incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

14.    If a word of expression is not defined in these orders or this determination of native title, but is defined in the Native Title Act 1993 (Cth), the Native Title (New South Wales) Act 1994 (NSW) or the Interpretation Act 1987 (NSW), then it has the meaning given to it in those statutes, whichever is relevant.

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

SCHEDULE 1 – NATIVE TITLE AREA

The native title area comprises all the land or waters described in the respective table in Part 1.1 (land or waters covered by the agreement under s 47C of the Native Title Act 1993 (Cth)) hatched in green and depicted on the maps at Part 1.2 (maps of the native title area) of this Schedule to the extent they fall within land and waters covered by the native title determination application.

Part 1.1 (land or waters covered by the agreement under s 47C of the Native Title Act 1993 (Cth))

Note: * Denotes part parcel within the external boundary of the native title determination application filed on 11 March 2008 by the Applicant in the Federal Court and given the number QUD 851 of 2018, as amended.

Part 1.2 (maps of the native title area)

SCHEDULE 2 – EXTINGUISHED AREA

The extinguished area comprises the land or waters described in the respective tables in Part 2.1 (Crown land in which native title has been extinguished) hatched in pink on the maps at Part 2.2 (maps of extinguished areas) of this Schedule 2 to the extent they fall within the land and waters in the native title determination area.

Part 2.1 (Area in which native title has been extinguished)

Note: * Denotes part parcel within the external boundary of the native title determination application filed on 11 March 2008 by the Applicant in the Federal Court and given the number QUD 851 of 2018, as amended.

Part 2.2 (Map of the extinguished area)

SCHEDULE 3 – OTHER INTERESTS IN THE NATIVE TITLE AREA

The other interests in the native title area are as follows:

1.    Reserves

(a)    The rights of State, Local Council, and other organisations or persons who have the care, control and management of any reserves subject to the laws of the State of New South Wales and of the Commonwealth; and

(b)    the rights of persons entitled to access and use reserves for the purposes for which they are reserved, subject to any statutory limitations upon those rights.

2.    Water interests

The rights of any holder as at the date of the approved determination of native title of any licences or permissive occupancies granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).

3.    National park interests

(a)    The rights of the holders from time to time of leases, licences and permits granted or issues under the National Parks and Wildlife Act 1974 (NSW) and Regulations made under that Act.

(b)    The rights of the National Parks and Wildlife Service, and employees or agents of the same under the National Parks and Wildlife Act 1974 (NSW) and Regulations made under that Act.

(c)    The rights of the National Parks and Wildlife Service, and employees or agents of the same, who have the care, control and management of any reserves, subject to the laws of the State of New South Wales and of the Commonwealth.

4.    Occupational permits

The rights and interests of any holder as at the date of the approved determination of native title of any forest permit under the Forestry Act 2012 (NSW) which continues in force under the National Parks and Wildlife Act 1974 (NSW).

5.    Telstra Corporation Limited and Amplitel Pty Ltd

The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABC 75357 171 746) and any of their successors in title:

(a)    as the owner(s) or operator(s) of telecommunications facilities within the native title 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), the Telecommunications Act 1997 (Cth) and the Government Telecommunications Act 2018 (NSW), 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 telecommunications facilities in and in the vicinity of the native title 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 native title area.

6.    Essential Energy

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

(a)    as the owner(s) or operator(s) of telecommunications facilities within the native title area.

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

(i)    to inspect land;

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

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

(c)    for their employees, agents or contractors to access their telecommunications facilities in and in the vicinity of the native title area in the performance of their duties.

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

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

(i)    land upon which, or waters over which, overhead powerlines and associated infrastructure owned and operating by Essential Energy (being a public work as defined in s 253 of Native Title Act 1993 (Cth)) (“Powerlines”) have been constructed (“Powerline Locations”); and

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

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

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

(f)    despite paragraph (e), but subject to paragraphs (g) and (h) below, Essential Energy has no objection to the native title holders exercising the rights set out in paragraph 7 of this determination over the Powerline Locations or on the Adjoining Land as if native title rights had not been extinguished by the matters acknowledged in paragraph (e).

(g)    The native title holders:

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

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

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

(iv)    agree that Essential Energy:

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

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

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

(i)    nothing in paragraphs (a) to (h) detracts from Essential Energy’s statutory obligations in relation to the preservation of Aboriginal cultural heritage, including but not limited to any such obligations under the National Parks and Wildlife 1974 (NSW), insofar as there may be any places or objects within the Powerline Locations or Adjoining Land to which such obligations apply.

7.    Electricity and energy supply interests

(a)    The rights and interests of an electricity authority within the meaning of the Gas and Electricity (Consumer Safety) Act 2017 (NSW) and the Energy Services Corporations Act 1995 (NSW) in exercising functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth and as either or both owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the native title area, including but not limited to rights under the Gas and Electricity (Consumer Safety) Act 2017 (NSW) and the Energy Services Corporations Act 1995 (NSW) to enter the native title area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.

(b)    The rights and interests of:

(i)    a network operator within the meaning of the Electricity Supply Act 1995 (NSW); or

(ii)    for the purposes of any privatisation transaction, any lessor or lessee of a transmission system or person who owns or is authorised to control or operate a transmission system within the meaning of the Electricity Supply Act 1995 (NSW);

in exercising functions, powers or rights in accordance with the laws of the State of New South Wales or the Commonwealth as the operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated in the native title area, including but not limited to rights under the Electricity Supply Act 1995 (NSW); to enter the native title area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.

8.    Other interests generally

(a)    Rights and interests, including fee simple interests, leases, licences and permits, granted by the Crown in right of the State of New South Wales or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation.

(b)    Rights and interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth.

(c)    Rights and interests of members of the public arising under common law or statute.

(d)    So far as if confirmed pursuant to s 18 of the Native Title (New South Wales) Act 1994 (Cth) as at the date of the approved determination of native title, any existing public access to and enjoyment of:

(i)    waterways;

(ii)    the bed and banks or foreshores of waterways;

(iii)    travelling stock reserves; and

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

(e)    The rights of:

(i)    an employee, agent or instrumentality of the State of New South Wales;

(ii)    an employee, agent or instrumentality of the Commonwealth;

(iii)    an employee, agent or instrumentality of any Local Government Authority

to access the native title area and carry out actions as required in the performance of his, her or its statutory or common law duties.

REASONS FOR JUDGMENT

MURPHY J

1    In this application Clancy John McKellar and others on behalf of the Wongkumara People seek a consent determination of native title under s 87, and in accordance with s 94A, of the Native Title Act 1993 (Cth) (NTA). The proposed consent determination follows a lengthy contested hearing, after which the parties reached agreement regarding proposed native title determinations in relation to different parts of the overall claim area (the Wongkumarra claim area) in the native title determination application (the Wongkumara Application). At that time the Wongkumara claim area covered an area of approximately 47,978 square km predominately in south-west Queensland, with a portion in far north-west New South Wales.

2    By agreement the Wongkumara claim area was partitioned into four parts. Consent native title determinations pursuant to agreements under s 87A of the NTA were made in relation to three of those parts on 3 July 2024 in McKellar on behalf of the Wongkumara People v State of Queensland [2024] FCA 699 (Wongkumara No 1) and in Paterson on behalf of the Yandrawandha Yawarrawarrka People v State of Queensland [2024] FCA 700.

3    In relation to the fourth part, which relates to approximately 5,940 square km in the Sturt National Park, the parties agreed to enter into an indigenous land use agreement and an agreement under s 47C of the NTA. This part was excluded from the determinations made on 3 July 2024, and by operation of s 64(1B) of the NTA the Wongkumara claim area was reduced to the remaining area. The remaining claim area is (alternatively) described by the parties as the Section 47C area or the NSW Part B determination area and is the subject of the s 87 agreement and the present application.

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

THE MATERIAL RELIED ON

5    The parties relied upon the following documents in support of the application:

(a)    the written submissions of the applicant and Attorney General of NSW (Attorney General) filed on 19 June 2024 (NSW Part A submissions);

(b)    the statement of agreed facts, filed on 19 June 2024 (NSW Part A Agreed Facts)

(c)    the affidavit of Eduard Salomon Neumann, the solicitor for the applicant, affirmed on 7 June 2024 and filed on 19 June 2024, and his affidavit affirmed on 22 October 2024, filed on 24 October 2024;

(d)    the determination of native title on 3 July 2024 in Wongkumara No 1;

(e)    the terms of the proposed determination and agreement pursuant to s 87 of the NTA filed on 30 September 2025 (proposed NSW Part B determination);

(f)    the statement of agreed facts on behalf of the applicant and the Attorney General in respect of the proposed NSW Part B determination, filed on 30 September 2025 (NSW Part B Agreed Facts); and

(g)    the joint supplementary written submissions of the applicant and the Attorney General, to be read in conjunction with the NSW Part A submissions, dated 30 September 2025 (NSW Part B submissions)

6    In this application the parties did not expressly rely on the evidence heard by the Court in the contested hearing but the NSW Part A submissions referred to some of that evidence. The evidence in the contested hearing included:

(a)    53 affidavits by Wongkumara lay witnesses filed in Court, and oral testimony given by 20 Wongkumara lay witnesses given over the course of three weeks of on country hearings in May 2022;

(b)    13 reports by anthropologists, archaeologists, linguists and explorers filed in Court, including the Joint Report of the Conference of Experts filed 10 February 2023 which recorded the outcomes of the expert conference held on 6, 7 and 8 February 2023 in which the parties’ five anthropologists participated; and

(c)    oral testimony given by five anthropologists given across two days of hearing in March 2023.

THE PROCEDURAL HISTORY

7    I set out the procedural history of the Wongkumara Application up to June 2024 in Wongkumara No 1 (at [29]-[54]), and it is necessary to set some of that out again. I have drawn the balance of the procedural history from the NSW Part B Agreed Facts.

8    By orders on 5 November 2020, the Wongkumara claim area was partitioned into:

(a)    the Part A Area, which included the great bulk of the claim area within Queensland and NSW; and

(b)    the Part B Area, being a small portion of the claim area in south-west Queensland lying along the border with South Australia, comprising approximately 6,367 square km. This area was subject to an overlapping claim by the Yandruwandha Yawarrawarrka People. On 28 April 2021 Mr Paterson and others on behalf of the Yandruwandha Yawarrawarrka People filed the Yandruwandha Yawarrawarrka native title determination application QUD 13 of 2021, which geographically overlapped with the Part B Area.

9    The Court then set down Separate Questions for hearing in relation to the Part A Area and the Part B Area. The Court heard lay evidence on country over the period 9 to 27 May 2022 and expert evidence from five expert witnesses on 6 and 7 March 2023. Following the hearing the parties renewed their efforts at resolving the proceeding through mediation, which ultimately led to agreement about the terms upon which Wongkumara native title rights and interests could be recognised in the Part A and Part B Areas (and the terms upon which the Yandruwandha Yawarrawarrka native title rights and interests could be recognised in the Part B Area).

10    The parties resolved that for the purposes of the proposed consent determinations the Wongkumara claim area should be further partitioned into three areas:

(a)    the Queensland Part A Area, comprising the land and waters in Part A within Queensland;

(b)    the Queensland Part B Area, comprising the land and waters in Part A within Queensland and overlapped by the claim area in the Yandruwandha Yawarrawarrka Application; and

(c)    the NSW Part A Area, comprising the land and waters in Part A within NSW.

Orders were made to that effect.

11    On 22 December 2023, a public notice was published by the National Parks and Wildlife Service, on behalf of the Attorney General, pursuant to s 47C(6)(a) of the NTA. The public notification period ended on 22 March 2024.

12    On 14 June 2024 the Wongkumara applicant and the Attorney General sought orders by consent in relation to the NSW Part A Area. They informed the Court that:

(a)    the Wongkumara applicant and the Attorney General intended shortly to execute an agreement under s 47C of the NTA in relation to a portion of the NSW Part A Area, and that the parcels of land to be listed in the proposed s 47C agreement were to be excluded from the proposed determination of native title for the NSW Part A Area; and

(b)    the Wongkumara applicant would seek leave to amend its Form 1 application accordingly.

Because the required notice period for the amended Form 1 application would have the effect of delaying the consent determinations which had been scheduled to a hearing date, the parties proposed orders to further partition the NSW Part A Area so that the consent determinations could go ahead as scheduled, with the area to be covered by the proposed s 47C agreement to be excluded from that determination and separately determined on a later date.

13    On 14 June 2024 the Court made the following orders by consent:

1.    Order 1(a) made by Justice Murphy on 12 April 2024 be amended to “In respect to Part A, excluding the parcels referred to in Schedule One to these Orders, at Tibooburra, New South Wales on Wednesday 3 July 2024”.

2.     The land and waters described in Schedule One of these orders are to be referred to as the “NSW 47C area” or the “NSW Part B determination area”.

3.     The NSW 47C Area, or the NSW Part B determination area, be determined on a date to be advised by the Court, but not before October 2024.

14    Those orders had the effect of partitioning the NSW Part A Area into two areas:

(a)    the NSW Part A Area, which excluded the NSW Part B determination area from the claim area in the pending consent determinations; and

(b)    the NSW Part B determination area, which comprised the area to be covered by the proposed s 47C Agreement.

15    On 19 June 2024, the applicant and the Attorney General executed an agreement under s 47C of the NTA (the Section 47C Agreement) and an indigenous land use agreement (the ILUA) relating to the NSW Part B determination area. The Section 47C Agreement covers a significant area (approximately 5,940 square km) within the Sturt National Park. The effect of the Section 47C Agreement is that any extinguishment of native title rights and interests within the Section 47C area will be disregarded and the Wongkumara People will be able to exercise native title rights and interests within that area.

16    On 20 June 2024, the applicant filed an interlocutory application seeking leave to amend the native title determination application to include the application of s 47C of the NTA.

17    On 24 June 2024, the Court granted leave to the applicant to file a Fourth Amended Native Title Determination Application (the Fourth Amended Application). On 26 June 2024, the applicant filed the Fourth Amended Application to include the area the NSW Part B determination area in the application.

18    As previously noted, on 3 July 2024 the Court made consent determinations of native title in Wongkumara No 1 and in Paterson in respect of land and waters the subject of the Fourth Amended Application, under s 87A of the NTA, in respect of:

(a)    the Queensland Part A Area;

(b)    the Queensland Part B Area; and

(c)    the NSW Part A Area.

Those determinations did not include the lands and waters in the Section 47C area. It was agreed by the parties that that area would be the subject of a separate determination at a later point in time.

19    On 30 July 2024, the National Native Title Tribunal conducted post-determination geospatial assessment of the area within the NSW Part A Area determination and pre-determination geospatial assessment of the Section 47C area. As part of its geospatial assessment, the Tribunal:

(a)    requested the descriptions of parcels for certain parcels of land within the NSW Part A Area determination be amended;

(b)    requested minor amendments to the descriptions of certain lands covered by the Section 47C area; and

(c)    identified an additional parcel of land, being lot 2 in deposited plan 755462, which was partly within the external boundaries of the Fourth Amended Application.

20    On 1 October 2024 the Court made orders amending the descriptions of certain lands in the NSW Part A Area determination and including lot 2 in deposited plan 755462 as a parcel of land to be determined on a later date.

21    On 13 January 2025 the Court made orders removing all of the respondent parties who did not have an interest in the lands which were to be the subject of the proposed determination of the NSW Part B determination area.

22    On 12 February 2025, the Native Title Registrar publicly notified the Fourth Amended Application which, amongst other things, stated that a person “who wants to be a party in relation to the amended application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day”, in accordance with s 66A(1C)(b) of the NTA. That notification period concluded on 15 May 2025.

23    On 6 March 2025, the Registrar publicly notified the ILUA for a period of 3 months. Upon the conclusion of the notification period, the Registrar registered the ILUA on the Register of ILUAs, pursuant to s 24CL of the NTA. This occurred on 6 June 2025. On the same day the Section 47C Agreement came into effect.

24    On 30 July 2025, all parties reached an in-principle agreement on the terms of a draft proposed determination of native title, annexed to an agreement in accordance with s 87 of the NTA (NSW Part B determination agreement), in respect of the remaining parcels of land yet to be determined being the NSW Part B determination area.

THE CLAIMANTS AND THEIR COUNTRY

25    The Court’s task in dealing with a proposed consent determination under s 87 or s 87A of the NTA is not to assess and make findings about the matters set out in s 223 of the NTA. But because a native title determination and the reasons which accompany it stand as a permanent record of the judicial recognition of native title rights and interests it is common practice to set out some relevant matters as to the claimants, their country, and the continuity of their connection to country. In Wongkumara No 1 (at [18]-[19]) I described the Wongkumara People and their society. I summarised the devastating effects of European colonisation upon the Wongkumara People, including the NSW government’s forcible removal of Wongkumara families to far away locations, from their camp on the outskirts of Tibooburra in 1938, thereby splitting up many Wongkumara families and removing them from their country (at [20]-[22]), and I described the extent and nature of Wongkumara country (at [23]-[28]). Those remarks apply equally to the proposed NSW Part B determination area, and I need not reiterate them.

26    In Wongkumara No 1 (at [28]) I noted that there is a wealth of material which explains who the Wongkumara People were and are, how Wongkumara society operated pre-sovereignty and how it operates now, the cultural and spiritual practices of the Wongkumara People pre-sovereignty and now, their traditional laws and customs, and the connection between Wongkumara people and their country. I summarised some of that material in Wongkumara No 1 and will not do so again.

THE NSW PART B DETERMINATION AREA

27    The proposed NSW Part B determination area comprises the following areas:

(a)    the land referred to in Annexure A to the Section 47C Agreement, with amendments made to the description of lands the subject of that agreement, to satisfy the requests by the Tribunal in its post-determination geospatial assessment of the NSW Part A Area determination; and

(b)    lot 2 in deposited plan 755462, which was identified by the Tribunal as partly within the external boundaries of the application area.

28    The effect of the proposed NSW Part B determination agreement is that:

(a)    native title will be determined to exist in relation to part of the NSW Part B determination area identified in Schedule 1 to the orders (Native Title area), comprising the areas where extinguishment of native title is to be disregarded in accordance with s 47C;

(b)    native title will be determined to have been extinguished in relation to the remainder of the NSW Part B determination area, being identified in Schedule 2 to the orders (extinguished area); and

(c)    the Wangkumarra Kawalanyi Aboriginal Corporation Registered Native Title Body Corporate, ICN 7384 (WKAC) will hold the determined native title in trust for the Wongkumara People.

TENURE

29    The parties agreed that the Attorney General caused a search to be made of the tenure history of each parcel of land within the Schedule 1 (native title area) and Schedule 2 (extinguished area) of the proposed NSW Part B determination area. The results of that search were provided to the applicant’s legal representatives, and the other parties who held an interest within the NSW Part B determination area, and they have conducted their own analysis.

30    The parties exchanged correspondence and conducted negotiations for the ILUA which resulted in agreement as to the description of areas to be included in Schedule 1 (Native Title area). Further correspondence was exchanged between the parties, which resulted in agreement as to the inclusion of lot 2 in deposited plan 755462 in Schedule 2 (extinguished area) of the NSW Part B determination agreement.

31    Schedule B of the Fourth Amended Application excludes land or waters in which native title has been extinguished. With respect to Schedule 2 (extinguished area) of the NSW Part B determination, the parties ask the Court to make a determination by consent that native title has been wholly extinguished. The extinguished area comprises lot 2 in deposited plan 755462. The Court has power under s 87 of the NTA to make a determination that native title has been extinguished: Starkey v State of South Australia [2014] FCA 924; (2014) 319 ALR 231 at [86] per Allsop CJ.

THE REQUIREMENTS UNDER SECTION 87 OF THE NTA

32    Section 87 of the NTA relevantly provides as follows:

Application

(1)    This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a)    agreement is reached on the terms of an order of the Federal Court in relation to:

(i)    the proceedings; or

(ii)    a part of the proceedings; or

(iii)    a matter arising out of the proceedings; and

(aa)    all of the following are parties to the agreement:

(i)    the parties to the proceedings;

(ii)    the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and

(b)    the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, are filed with the Court; and

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

When a registered native title claimant is taken to be a party to the agreement

(1AA)    The requirements that a party to the proceedings that is a registered native title claimant be a party to the agreement and sign the terms of the agreement are satisfied if:

(a)    a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or

(b)     if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms--those persons are parties to the agreement and sign the terms.

…

Power of Court

(1A)    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.

Agreement as to order

(2)    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.

Note:     If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

…

33    The Court may make orders in or consistent with the terms of proposed orders in an agreement under s 87 of the NTA, provided the preconditions in the section are met. Those requirements are that:

(1)    the notification period specified in s 66 of the NTA has expired (s 87(1));

(2)    agreement between all of the parties to the proceeding has been reached on a proposed determination of native title (s 87(1)(a) and (aa));

(3)    the terms of the proposed determination have been reduced to writing and signed by or on behalf of the parties, and a copy filed with the Court (s 87(1)(b));

(4)    the Court has taken into account any objection made by the other parties to the agreed statement of facts filed by the parties (ss 87(9) and (11));

(5)    the Court is satisfied that an order consistent with the terms of the agreement would be within the power of the Court (s 87(1)(c)); and

(6)    it appears appropriate to the Court to make the proposed order (s 87(1A)).

Then, if the agreement is on the terms of an order of the Court, 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, provided the orders comply with s 94A of the NTA (s 87(2)).

34    Here the first four requirements above are satisfied. The NSW Part B Agreed Facts show that:

(a)    the notification period for the Fourth Amended Application filed on 27 June 2024, commenced on 12 February 2025 concluded on 15 May 2025;

(b)    the applicant and the Attorney General have executed an agreement under s 47C of the NTA (the contents of which have been agreed by all parties) with respect to the NSW Part B determination area;

(c)    the terms of the proposed NSW Part B determination have been reduced to writing and signed or and on behalf of each of the parties;

(d)    the terms of the proposed NSW Part B determination have been filed together with the agreement under s 87 of the NTA; and

(e)    all parties to the proceeding are parties to the agreed statement of facts, and there could is no objection to that agreed statement.

35    The further preconditions to making the proposed NSW Part B determination are that the Court be satisfied that an order consistent with the terms of the s 87 agreement would be within power, and that it is appropriate to make the proposed determination. Those preconditions are closely related.

Power

36    The requirement that a native title consent determination order be “within the power of the Court” within the meaning of s 87(1)(c) requires the order to comply with the following requirements of the NTA:

(a)    pursuant to s 68 of the NTA there must not be a previously approved determination of native title over the proposed determination area;

(b)    pursuant to s 94A of the NTA, the native title consent determination orders must set out details of the matters required in s 225 of the NTA;

(c)    the rights and interests must be capable of recognition by the common law of Australia as required by s 223(1)(c) of the NTA; and

(d)    pursuant to s 55 of the NTA, when making a determination that native title exists, the Court must make such determination as is required by ss 56 and 57 regarding a prescribed body corporate at the same time as, or as soon as practicable after, including:

(i)    specifying whether the native title is to be held in trust and, if so, by whom;

(ii)    if the native title is to be held in trust by a body corporate, that a representative of the native title holders has given the Court a written nomination of a prescribed body corporate together with the written consent of the body corporate to be the trustee; and

(iii)    if the native title is not to be held in trust, that a representative of the native title holders has given the Court a written nomination of a prescribed body corporate together with the written consent of the body corporate to be a non-trustee prescribed body corporate.

37    I am satisfied that the Court has power under s 87 to make the proposed determination for similar reasons to those stated in Wongkumara No 1 (at [57]):

(1)    There is not a previously approved determination of native title over the proposed NSW Part B determination area.

(2)    I am satisfied that the proposed NSW Part B determination complies with the requirements of s 94A of the NTA by sufficiently setting out the matters required by s 225, for similar reasons to those stated in Wongkumara No 1 (at [58]-[60]). I am satisfied that the proposed determination sufficiently identifies or describes:

(a)    who are the group of persons holding the common or group rights comprising the native title (s 225(a); see also Attorney-General (NT) v Ward (2003) [2003] FCAFC 283; 134 FCR 16 at [15] per Wilcox, North and Weinberg JJ;

(b)    the nature and extent of the native title rights and interests in relation to the NSW Part B determination area (s 225(b));

(c)    the nature and extent of any other interests in relation to the NSW Part B determination area (s 225(c)); and

(d)    the relationship between the native title rights and interests, and the other interests identified (s 225(d)); and

(e)    whether or where the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others (s 225(e)).

(3)    The native title rights and interests that are proposed to be declared properly reflect the characteristics of native title rights and interests set out in s 223 of the NTA and the terms confer native title rights and interests recognisable by the common law of Australia. Those requirements were summarised by North J in Lovett v Victoria (No 5) [2011] FCA 932 at [22] as follows:

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

(4)    The NSW Part A Agreed Facts, the affidavits of Mr Neumann and the NSW Part B submissions show that the requirements of ss 55, 56 and 57 of the NTA have been met. They show that:

(a)    the Wongkumara People, who are the common law native title holders, intend to have their native title held on trust, as set out in order 2 of the proposed NSW Part B determination;

(b)    WKAC has been nominated to be the prescribed body corporate for the purposes of s 57 of the NTA and to act as trustee for the Wongkumara People and to perform the functions set out in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth); and

(c)    WKAC has consented in writing to be the prescribed body corporate for the purposes of s 57(1) of the NTA and to act as trustee for the Wongkumara People.

Whether it is appropriate to make the proposed orders

38    Under ss 87(1A) and (2) the Court may make an order in accordance with the agreement of the parties if the Court considers it appropriate to do so. That is a broad discretion which must be exercised having regard to the nature and purpose of the power conferred in the context of the NTA. The cases have canvassed many considerations relevant to the appropriateness of the exercise of the power to make a native title determination. I summarised the relevant authorities in Austin on behalf of the Eastern Maar People v State of Victoria [2023] FCA 237 at [33]-[37], and reiterated them in Wongkumara No 1. I need not do so again.

39    It is, though, worth noting that the power conferred is to make an order in, or consistent with, the terms agreed between the parties without holding a hearing. Parliament intended that negotiation and agreement would play an important role in settling native title determination applications: Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) at [26.23]. The preamble to the NTA states that “if possible” resolution of native title determination applications is to be done by conciliation because of the “unique character” of such claims. An important object and purpose of the NTA is that resolution of issues and disputes concerning native title be resolved by mediation and agreement, rather than by Court determination: Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; 115 FCR 109 at [28] per Emmett J; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] per North J.

40    It is noteworthy that the Attorney General only has a duty to be satisfied that there is a “credible” or “cogent” basis to conclude that the requirements of s 223 are satisfied, whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities: Western Bundjalung People v Attorney-General (NSW) [2017] FCA 992 at [21] (Jagot J) citing Lovett. As O’Bryan J recently noted in Oobagooma on behalf of the Big Springs Claim Group v State of Western Australia [2025] FCA 592; 309 FCR 515 at [18]-[20], it is important to recognise that the requirement for a State respondent to have a “credible’ or “rational” basis for agreeing to a native title determination, does not require the parties to adduce evidence with respect to the State’s assessment of the applicant’s claim to native title rights and interests. As his Honour said (at [20]);

…in exercising power under s 87, the Court’s principal focus is upon the agreement of the parties. In that context, it is relevant to consider whether the State, as the representative of the interests of the community generally, has had independent and competent legal representation and is acting in good faith and rationally. That does not require the Court to embark on its own assessment of the evidentiary basis for the State’s agreement, as such a requirement would undermine the purpose of the power conferred: see Agius v State of South Australia (No 6) [2018] FCA 358 at [69]. Mortimer J (as her Honour then was)

41    Here, the Attorney General relied upon the relevant matters in the NSW Part A submissions and the determination of native title by the Court on 3 July 2024 in Wongkumara No 1 as providing a proper basis for agreement to the proposed NSW Part B determination. The NSW Part A submissions refer to the connection material provided by the applicant, the State’s process to assess that material and the Attorney General’s acceptance that that there is a credible basis for a determination of native title recognising native title rights and interests in land and waters in NSW within the external boundaries of the Fourth Amended Application. That is enough for the Court to be satisfied on this question.

42    I consider it to be within the power of the Court to make the proposed NSW Part B determination, and consider it appropriate to do so. I have made the orders sought by the parties.

Associate:

Dated:    30 October 2025

SCHEDULE OF PARTIES