FEDERAL COURT OF AUSTRALIA

Hoolihan on behalf of the Gugu Badhun People #3 v State Minister for the State of Queensland (No 3) [2026] FCA 535

ORDERS

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

BY CONSENT, THE COURT ORDERS THAT:

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

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

BY CONSENT, THE COURT DETERMINES THAT:

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

4.    Native title exists in the Determination Area.

5.    The native title is held by the Gugu Badhun People described in Schedule 1 (the Native Title Holders).

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

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

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

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

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

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

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

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

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

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

(e)    conduct ceremonies on the area;

(f)    conduct or participate in meetings on the area;

(g)    bury Native Title Holders within the area;

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

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

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

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

(i)    spouses, partners or parents of Native Title Holders, together with their children and grandchildren;

(ii)    people required for the performance of cultural activities, practices or ceremonies; or

(iii)    people requested by the Native Title Holders to assist in, observe or record cultural activities, practices or ceremonies.

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

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

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

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

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

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

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

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

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

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

DEFINITIONS AND INTERPRETATION

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

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

"External Boundary" means the area described in Schedule 3;

"land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth);

"Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

"Local Government Act" has the meaning given in the Local Government Act 2009 (Qld);

"Local Government Area" has the meaning given in the Local Government Act 2009 (Qld);

"Native Title Determination Application" means the Gugu Badhun #3 native title determination application filed 17 December 2019 in QUD777 of 2019;

"Natural Resources" means:

(a)    any Animals and Plants found on or in the lands and waters of the Determination Area; and

(b)    any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,

taken by the Native Title Holders in accordance with their traditional laws and customs,

(c)    but does not include:

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

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

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

(iv)    petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

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

"Reserve" means a reserve dedicated or taken to be a reserve under the Land Act 1994 (Qld);

"Water" means:

(a)    water which flows, whether permanently or intermittently, within a river, creek or stream;

(b)    any natural collection of water, whether permanent or intermittent; and

(c)    water from an underground water source.

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

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

THE COURT DETERMINES THAT:

14.    The native title is not held in trust.

15.    The Gugu Badhun Aboriginal Corporation (ICN: 7719), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

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

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

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

Schedule 2 – Other Interests in the Determination Area

Schedule 3 – External Boundary

Schedule 4 – Description of Determination Area

Schedule 5 – Areas Not Forming Part of the Determination Area

Schedule 6 – Map of Determination Area

Schedule 7 – Map of Area Partly Affected by Public Works

SCHEDULE 1 – NATIVE TITLE HOLDERS

(1)    The Native Title Holders are the Gugu Badhun People. The Gugu Badhun People are the descendants (including through adoption or raising up in accordance with traditional law and customs) of one or more of the following apical ancestors:

(a)    Bella, mother of Harry Goetz, Cissie McDowall, and Albert Brown;

(b)    Lucy Shaw, mother of Richard Hoolihan, Mosley Dickman, and Jimmy Dickman;

(c)    King Lava, father of Mariah Saddler;

(d)    Nellie Rankin;

(e)    Charlie Burdekin, father of Frank Burdekin, William Burdekin, Ernest Burdekin, Gertrude Burdekin, and Peter McDowell;

(f)    Nancy Jordan, also known as Nancy Rose Lee and Nancy Ah Sam, wife of Harry Goetz;

(g)    Nora Lee, also known as Laura and Laula, wife of Charlie Burdekin;

(h)    Ceasar Murray;

(i)    Minnie Tiger, also known as Big Minnie;

(j)    Skinny Minnie;

(k)    Tommy Cobbler; and

(l)    Nora Pope, mother of Harry Bunn, Ranji Pope and Bessie Bunn.

SCHEDULE 2 – OTHER INTERESTS IN THE DETERMINATION AREA

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

(1)    The rights and interests of the parties under the following agreements registered on the Register of Indigenous Land Use Agreements:

(a)    [QI2005/002] Metallica Minerals ILUA;

(b)    [QI2020/020] Greenvale Training Area Gugu Badhun ILUA; and

(c)    [QI2024/017] Mt Fullstop Quarry [Gugu Badhun] (Area Agreement) ILUA.

(2)    The rights and interests of Superior Resources Limited (ACN 112 844 407) as the holder of exploration permits for minerals 25659, 26165 and 26751 granted pursuant to the Mineral Resources Act 1989 (Qld).

(3)    The rights and interests of Bolwarra Enterprises Pty Ltd (ACN 009 853 221) as the holder of sales permit 201909012 under the Forestry Act 1959 (Qld), for the operation of Mt Fullstop Quarry over part of Lot 4844 on Plan PH1679.

(4)    The rights and interests of Telstra Corporation Limited (ACN 051 775 556) and any of its successors in title:

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

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

(i)    to inspect land;

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

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

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

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

(5)    The rights and interests of Ergon Energy Corporation (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 or manage any Works in the Determination Area; and

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

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

(6)    The rights and interests of Etheridge Shire Council and Charters Towers Regional Council:

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

(b)    as the:

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

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

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

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

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

(ii)    water pipelines and water supply infrastructure;

(iii)    drainage facilities;

(iv)    watering point facilities;

(v)    recreational facilities;

(vi)    transport facilities;

(vii)    gravel pits operated by the Councils;

(viii)    cemetery and cemetery related facilities; and

(ix)    community facilities; and

(d)    to enter the land for the purposes described in paragraphs 6 (a), (b) and (c) above by their employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in this paragraph 6 and paragraph 7 below;

(ii)    use, operate, inspect, maintain, replace, restore and repair the infrastructure, facilities and other improvements referred to in paragraph 6(c) above; and

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

(7)    The rights and interests of the State of Queensland, the Charters Towers Regional Council and the Etheridge Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.

(8)    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, including the rights and interests of the holders of permits issued by the trustees of the following Reserve:

(a)    Lot 1 on Plan CLK6.

(9)    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 Water Act 2000 (Qld);

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

(e)    the Planning Act 2016 (Qld);

(f)    the Transport Infrastructure Act 1994 (Qld);

(g)    the Stock Route Management Act 2002 (Qld); and

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

(10)    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.

(11)    So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this determination, any existing rights of the public to access and enjoy the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock-routes; or

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

(12)    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 intersection of the western boundary of the Upper Burdekin River sub catchment area (Sub Number 1201) and the north western boundary of Lot 575 on Plan PH219 and extending generally northerly along the western boundary of that sub catchment area to its intersection with the northern boundary of the Gregory Developmental Road reserve, also being the southern boundary of the external boundary of the native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); then generally easterly and generally south easterly along the northern boundary of the Gregory Developmental Road reserve to its intersection with the centreline of the Clarke River; then generally south westerly along the centreline of that river to its intersection with the northern boundary of the external boundary of the native title determination QUD80/2005 Gudjala People (QCD2014/006), being a line joining Longitude 145.464464° East, Latitude 19.397699° South and Longitude 145.238141° East, Latitude 19.315069° South; then generally north westerly and generally westerly along the northern external boundary of that determination to its intersection with the western boundary of the Upper Burdekin River sub catchment area, then generally northerly along the western boundary of that sub catchment area back to the commencement point.

This application specifically excludes all land and waters subject to:

    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002)

    Native title determination QUD80/2005 Gudjala People (QCD2014/006)

Note

Data Reference and source

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

    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002) as determined by the Federal Court on 1 August 2012.

    Native title determination QUD80/2005 Gudjala People (QCD2014/006) as determined by the Federal Court on 18 March 2014.

    Cadastral data (DCDB) sourced from Department of Natural Resources, Mines and Energy (QLD), August 2019.

    Drainage Sub Basin 100k © State of Queensland (Department of Natural Resources, Mines and Energy) 2018.

    Rivers / Creeks based on Major Water Course Lines © State of Queensland (Department of Natural Resources, Mines and Energy) 2019.

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Use of Coordinates

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

Prepared by Geospatial Services, National Native Title Tribunal (14 October 2019).

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

Part 1 – Exclusive Areas

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

[~ denotes an area to which s 47B of the Native Title Act 1993 (Cth) applies]

Part 2 – Non-Exclusive Areas

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

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

SCHEDULE 5 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

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

(1)    Those land and waters within the External Boundary which at the time the Native Title Determination Application was made 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, including, but not limited to the whole of the land and waters described as:

(i)    Lot 175 on Plan RP901175.

(b)    the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth), including, but not limited to the land and waters described as:

(i)    That part of Lot 2 on Plan CLK39 shown as shaded red on the plan labelled CHCR Charcoal Creek Comms Site – 8001-SK1 in Schedule 7, and described as the area included in the polygon defined by coordinate points 1 – 11:

(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.

(5)    Those land and waters within the External Boundary excluded by paragraphs 2 and 3 of Schedule B of the Native Title Determination Application filed, including as amended on 10 January 2023, which are not captured by (1) above.

SCHEDULE 6 – MAP OF DETERMINATION AREA

SCHEDULE 7 – MAP OF AREA PARTLY AFFECTED BY PUBLIC WORKS

REASONS FOR JUDGMENT

STELLIOS J:

INTRODUCTION

1    In this proceeding, Mr Ernest Michael Hoolihan, Mr Harry Gertz, Ms Hazel Illin, Ms Narda Kennedy and Ms Elsie Thompson (together, the Applicant) filed a claimant native title determination application on behalf of the Gugu Badhun People. The Applicant, the State Minister for the State of Queensland and the other respondents seek an order under s 87 of the Native Title Act 1993 (Cth) for a determination of native title to give effect to the terms of an agreement reached between the parties.

2    The further amended application accepted for filing on 17 January 2023 described the external boundary of the claim area the subject of this proceeding as follows:

External boundary description

The application area covers all the land and waters within the external boundary described as:

Commencing at intersection of the western boundary of the Upper Burdekin River sub catchment area (Sub Number 1201) and the north western boundary of Lot 575 on Plan PH219 and extending generally northerly along the western boundary of that sub catchment area to its intersection with the northern boundary of the Gregory Developmental Road reserve, also being the southern boundary of the external boundary of the native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); then generally easterly and generally south easterly along the northern boundary of the Gregory Developmental Road reserve to its intersection with the centreline of the Clarke River; then generally south westerly along the centreline of that river to its intersection with the northern boundary of the external boundary of the native title determination QUD80/2005 Gudjala People (QCD2014/006), being a line joining Longitude 145.464464° East, Latitude 19.397699° South and Longitude 145.238141° East, Latitude 19.315069° South; then generally north westerly and generally westerly along the northern external boundary of that determination to its intersection with the western boundary of the Upper Burdekin River sub catchment area, then generally northerly along the western boundary of that sub catchment area back to the commencement point.

This application specifically excludes all land and waters subject to:

•    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002)

•    Native title determination QUD80/2005 Gudjala People (QCD2014/006)

3    The description of the external boundary of the determination area identified in Schedule 3 to the Court’s orders is in the same terms.

4    The claim area is located between previous determination areas in Gugu Badhun People #2 claim (QCD2012/002) and Gudjala People Core Country Claims #1 and #2 (QCD2014/006 and QCD2014/007).

5    This application follows a determination of native title made by this Court in Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland [2012] FCA 800 (Gugu Badhun #2 determination).

6    For the following reasons, I am satisfied the Court can and should make a determination of native title in favour of the claim group (as identified in Schedule 1 to the Court’s orders) in the terms proposed by the parties.

LEGISLATIVE SCHEME

7    An application may be made to the Federal Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title: s 13(1)(a). Relevantly, such an application may be made by (s 61(1)):

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; …

8    Section 251B sets out the circumstances where, and the conditions upon which, all the persons in a native title claim group authorise a person or persons to make a native title determination application and to deal with matters arising from the application.

9    A copy of the application and accompanying documents must be given to the Native Title Registrar: s 63. In the case of a claimant application, the Registrar must consider the application in accordance with s 190A: s 190A(1). The Registrar must consider the information identified in s 190A(3) and (4), and must accept the claim for registration if the conditions in ss 190B and 190C are satisfied: s 190A(6). The Registrar must give notice of the application in compliance with s 66(3) of the Act.

10    Sections 94A and 225 of the Act deal with the details to be included in an order of the Court making a determination of native title. Section 94A of the Act provides:

94A Order containing determination of native title

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

11    Section 225 provides:

225 Determination of native title

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

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

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

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

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

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

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

12    The expressions “native title” and “native title rights and interests” are relevantly defined in the following way in s 223:

223 Native title

Common law rights and interests

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

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

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

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

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

…

13    Under s 87 of the Act, the Court may make a determination of native title by consent where the following conditions are satisfied:

(1)    The period specified in the notice given under s 66(3) of the Act has ended: s 87(1);

(2)    Agreement is reached by the parties (and the Commonwealth Minister if intervening in the proceeding) on the terms of the order by the Court: s 87(1)(a) and (aa);

(3)    The terms of a signed agreement are filed with the Court: s 87(1)(b); and

(4)    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).

14    The Court may make an order in, or consistent with, those terms without holding a hearing if it is appropriate to do so: ss 87(1A)(a) and 87(2).

15    If the Court proposes to make an approved determination that native title exists, the Court must make a determination whether the native title is to be held on trust and, if so, by whom: ss 55 and 56(1).

16    It will be necessary to return to many of these provisions during these reasons.

MATERIAL BEFORE THE COURT

17    On 9 December 2025, the State Minister filed an agreement under s 87 of the Act on behalf of all parties (s 87 agreement), to which was annexed a draft consent determination containing proposed orders for the making of a determination of native title.

18    Shortly thereafter on the same day, the Applicant filed submissions in support of the proposed orders. The submissions were supported by the affidavit of Cheryl Ann Thomson, Deputy Principal Legal Officer of the North Queensland Land Council Native Title Representative Body Aboriginal Corporation (NQLC) and solicitor on the record for the Applicant, affirmed on 8 December 2025 (Thomson affidavit).

19    The Applicant also filed supplementary submissions on 24 April 2026 and sought leave to rely upon them. In the absence of any opposition, I have given that leave. No other submissions or evidence were filed.

20    The Applicant set out in their submissions the material provided to the State Minister in support of the claim group’s connection to the claim area (connection material). This material, which was not filed with the Court, but is summarised in Annexure A to the Applicant’s submissions, comprises:

(1)    Gugu Badhun Connection Report – A report on the Gugu Badhun people’s traditional interests in an unclaimed area of land to the south of Greenvale, March 2020, Dr Pamela Faye McGrath (March 2020 McGrath Report);

(2)    Gugu Badhun #3 Supplementary Connection Report, September 2022, Dr Pamela Faye McGrath;

(3)    Gugu Badhun Society Report, December 2023, Dr Anthony Redmond;

(4)    Affidavit of Ailsa Snider affirmed on 22 June 2022;

(5)    Affidavit of Richard Hoolihan affirmed on 28 September 2022;

(6)    Affidavit of Harry Gertz affirmed on 29 September 2022;

(7)    Affidavit of Pamela Appleby affirmed on 30 September 2022;

(8)    Witness statement of Joanne Boyd signed on 25 October 2022;

(9)    Statement of Richard Hoolihan signed on 25 November 2024;

(10)    Witness statement of Richard Hoolihan signed on 21 July 2025; and

(11)    Witness statement of Janine Gertz signed on 22 July 2025.

21    Ms Thomson deposed that, on 7 March 2024, the State Minister advised the Applicant that the State Minister was satisfied of the claim group’s connection for the purposes of entering substantive negotiations towards a consent determination.

22    In support of the proposed orders, the Applicant relies on the s 87 agreement, the Thomson Affidavit, the Gugu Badhun #2 determination and a summary of the connection material set out in Annexure A to the Applicant’s submissions.

AUTHORISATION

23    As indicated, a person or persons authorised by a native title claim group can make a native title application. The authorisation must accord with s 251B of the Act. Relevantly, s 251B provides that:

… [A]ll the persons in a native title claim group … authorise a person or persons to make a native title determination application …, and to deal with matters arising in relation to it, if:

(a) …

(b) where there is no … process [of decision-making that, under the traditional laws and customs of the persons in the native title claim group must be complied with in relation to authorising things of that kind]—the persons in the native title claim group … authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group …, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

24    If there is more than one authorised person, they are jointly “the applicant”: s 61(2)(c). In the case of a claimant application, “the applicant may deal with all matters arising under this Act in relation to the application”: s 62A(a). This includes reaching agreement under s 87 of the Act and consenting to the terms of orders to be made by the Court to give effect to such an agreement: see Carter on behalf of the Warrwa Mawadjala Gadjidgar and Warrwa People Native Title Claim Groups v State of Western Australia [2020] FCA 1702 at [48] (Banks-Smith J).

25    The undisputed evidence deposed by Ms Thomson is that she caused a meeting notice (dated 25 September 2025) for a meeting of the Gugu Badhun People to be sent by post and email to all members of the claim group inviting them to an authorisation meeting to be held in Townsville on 18 October 2025. The purpose of the authorisation meeting, as stated in the meeting notice, was:

… to consider, and if appropriate, make decisions about the following:

1.    CONFIRM the decision-making process to be used for making decisions at the meeting.

2.    CONFIRM the Applicant (previously authorised in 2019).

3.    AUTHORISE the entry by the Applicant into an agreement under section 87 of the Native Title Act 1993 (Cth) with the State, the Gugu Badhun Applicant and other respondents, for the purpose of securing a consent determination recognising the native title rights of the Gugu Badhun People in the Gugu Badhun People #3 claim area.

4.    AUTHORISE the Applicant to nominate Gugu Badhun Aboriginal Corporation RNTBC (GBAC) (ICN 7719) to be the prescribed body corporate for the Gugu Badhun People #3 native title determination.

5.    AUTHORISE the provision of instructions for the North Queensland Land Council (NQLC) to act as the legal representative of the Applicant and the claim group, to make minor technical amendments to the application and do all things necessary pursuant to the Native Title Act 1993 (Cth) to progress the Gugu Badhun People #3 claim to a determination of native title.

26     A map of the claim area was included in the notice.

27    In identifying the persons who were eligible to attend, the meeting notice stated that the claim group was comprised of the persons who are identified in Schedule 1 to the Court’s orders.

28    The meeting notice was posted to 87 claim group members and emailed to 53 claim group members. The meeting notice was also published in the Townsville Bulletin newspaper (both print and online editions) on 27 September 2025.

29    Ms Thomson attended the meeting and explained its purpose. She presented in relation to a draft s 87 agreement and the attached draft consent determination, and also the decision-making process to be used at the meeting and confirming the Applicant’s authority. The draft s 87 agreement and draft consent determination were tabled, and copies of the s 87 agreement were circulated to attendees. Two A0 sized maps were displayed on the walls around the meeting room depicting the claim area and its proximity to the Gugu Badhun #2 determination.

30    Following discussion amongst the claim group members present at the meeting, the following resolutions were passed unanimously:

(1)    Resolution 1: that there was no process of decision-making that, under traditional laws and customs of the claim group, must be complied with in relation to authorising the draft s 87 agreement, and that a process described in the resolution be agreed to and adopted for the duration of the meeting;

(2)    Resolution 2: that the members of the claim group were given sufficient notice of the meeting and that the persons present were sufficiently representative of the Gugu Badhun People to make important decisions about their native title, including the authorisation of the draft s 87 agreement;

(3)    Resolution 3: that Mr Hoolihan and Ms Illin continue to be authorised to act as the Applicant for the native title claim and to deal with all matters arising in relation to it, consistent with the Applicant’s original authorisation on 30 November 2019; and

(4)    Resolution 4: that the draft s 87 agreement be agreed to, that Ms Thomson, as the legal representative of the Applicant, or a person acting in her role, be authorised and directed to execute the draft s 87 agreement on behalf of the Applicant, and that the Applicant be authorised and instructed to make or agree to any amendments to the draft s 87 agreement meeting specified criteria.

31    Ms Thomson deposed that, from her review of the attendance register and records kept in NQLC’s files, and based on information provided to her, she believed that the persons who were present and voted in favour of the resolutions were all members of the claim group.

32    I am satisfied that Mr Hoolihan and Ms Illin have been authorised by the native title claim group to make the application and to deal with matters arising in relation to it, including agreeing to a s 87 agreement. From the evidence deposed by Ms Thomson, I am prepared to accept that there was no process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to the authorisation of a person or persons to make a native title determination application and to agree to a s 87 agreement.

33    While there is no independent evidence before me as to the authorisation by the claim group on 30 November 2019, it is implicit in Resolution 3 that Mr Hoolihan and Ms Illin were authorised to act as the Applicant for the purpose of making the application. It is explicit in Resolution 3 that, in accordance with the process identified in Resolution 1 (that is contemplated by s 251B(b) of the Act), Mr Hoolihan and Ms Illin were authorised to continue to deal with all matters in relation to the application. That includes the draft s 87 agreement and draft consent determination. It is also clear from Resolution 4 that the claim group agreed to the making of the s 87 agreement and the Applicant was authorised to make any amendments to the s 87 agreement within the scope of that resolution. There is no suggestion that either the s 87 agreement or the proposed orders exceed the authority provided by these resolutions.

REQUIREMENTS FOR MAKING A CONSENT DETERMINATION

34    As indicated earlier, there are various preconditions to the making of an order under s 87 of the Act.

Has the period of notice ended?

35    The Registrar gave notice pursuant to s 66(3) of the Act specifying a notification date of 3 June 2020 (in compliance with s 66(8)). The period specified in the notice ended on 2 September 2020 (in compliance with s 66(10)(c) of the Act).

36    Accordingly, for the purposes of an order under s 87, the period specified in the s 66(3) notice has ended.

Have the parties reached agreement?

37    All the parties to the proceeding (noting that the Commonwealth Minister has not sought to intervene) have reached agreement in relation to the application. The s 87 agreement, annexing the proposed orders in relation to the proceeding, was filed with the Court on 9 December 2025. Accordingly, the requirements of s 87(1)(a), (aa), and (b) have been satisfied.

Are the proposed orders within the power of the Court?

38    The Court must be satisfied that an order in, or consistent with, the terms of the proposed orders would be within the power of the Court: s 87(1)(c). As O’Bryan J said in Oobagooma on behalf of the Big Springs Claim Group v Western Australia [2025] FCA 592; 309 FCR 515 at [77], “[i]n order to be satisfied that the proposed orders are within the power of the Court, consideration must be given to other restrictions or requirements in the [Act] applicable to any determination of native title” (citing Freddie v Northern Territory [2017] FCA 867 at [15] (Mortimer J, as her Honour then was)). The statutory restrictions and requirements not dealt with elsewhere in these reasons are:

(1)    The requirement in s 68 of the Act that the area covered by the determination cannot be the subject of a previously approved determination of native title;

(2)    The requirement in s 94A of the Act that the determination set out the details of the matters required by s 225; and

(3)    The requirement in s 223(1)(c) of the Act that the determination concerns rights and interests which the Australian common law is able to recognise.

Section 68 requirement

39    In relation to the requirement in s 68, Ms Thomson deposed that the claim area is adjacent to the Gugu Badhun #2 determination, which is to the north of the claim area. The external boundary of the claim area identified in the application, and also of the determination area in Schedule 3 of the Court’s orders, excludes “all land and waters subject to” the following native title determinations:

(1)    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); and

(2)    Native title determination QUD80/2005 Gudjala People (QCD2014/006).

40    Ms Thomson further deposed that there is no determination of native title in respect of any part of the claim area. No additional evidence was provided to substantiate that position. However, for the following reasons, I am prepared to draw the inference that the claim area has not been the subject of a previously approved determination of native title. First, in circumscribing the external boundary of the claim area, the parties have been mindful of two adjacent native title determinations.

41    Secondly, Ms Thomson, who has deposed that no determinations exist over any part of the claim area, is the Deputy Principal Legal Officer of the NQLC, and has had day-to-day carriage of the application since November 2019. She can be taken to be familiar with the passage of the application since it was filed on 17 December 2019. It is also reasonable to infer that, by virtue of her role, Ms Thomson would be aware of native title determinations in areas proximate to the claim area. Thirdly, none of the other parties (nor any other persons) have sought to dispute such a fundamental aspect of the application. It is improbable that the application would have reached this stage in the process without the existence of an existing determination over the claim area having been discovered.

Section 94A requirement

42    The Court’s orders in which it makes a determination of native title must set out details of the matters mentioned in section 225: s 94A. Section 225 was extracted at [11] above.

43    Proposed orders 3 and 4 determine that native title exists in the land and waters described in Schedule 4 and depicted in the maps attached to Schedule 6, to the extent that those areas are within the external boundary (as identified in Schedule 3), and which are not otherwise excluded by the terms of Schedule 5. Accordingly, the chapeau of s 225 is satisfied.

44    Proposed order 5 determines that the native title is held by the Gugu Badhun People described in Schedule 1. Accordingly, the requirement in s 225(a) is satisfied.

45    Proposed orders 6 and 7 determine the nature and extent of the native title rights and interests in relation to the land and water, which are made subject to the qualifications and exceptions in proposed orders 8, 9 and 10. Proposed order 11 states that the nature and extent of any other interests in relation to the determination area are set out in Schedule 2. Proposed order 12 determines the relationship between the native title rights and interests described in proposed orders 6 and 7 (ie, those referred to in s 225(b)) and the other interests described in Schedule 2 (ie, those referred to in s 225(c)), as required by s 225(d). Accordingly, the requirements in s 225(b), (c) and (d) are satisfied.

46    Proposed orders 6 and 7 also address the requirement in s 225(e). In relation to the land and waters described in Part 1 of Schedule 4:

(1)    The native title rights and interests, other than in relation to water, are to the exclusion of all others; and

(2)    The native title rights and interests in relation to water are non-exclusive (see also proposed order 9).

47    In relation to the land and waters described in Part 2 of Schedule 4, the native title rights and interests are non-exclusive (see also proposed order 9). Accordingly, the requirement in s 225(e) is satisfied.

48    In summary, the proposed orders comply with s 94A of the Act.

Section 223(1)(c) requirement

49    Section 223(1) of the Act provides that “[t]he expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where … (c) the rights and interests are recognised by the common law of Australia”.

50    The native title rights and interests that are the subject of proposed orders 6 and 7 are unremarkable in their identification of native title rights and interests. Further, proposed order 8(b) makes it clear that “[t]he native title rights and interests are subject to and exercisable in accordance with … (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders”. With amendments to be discussed at [64]–[67] below, the description of the native title rights and interests in proposed orders 6 and 7 accords with those determined in the Gugu Badhun #2 determination (see also Logan J’s findings referred to at [57]–[58] below).

51    Accordingly, I am satisfied that the rights and interests the subject of proposed orders 6 and 7 are recognised by the common law for the purposes of s 223(1)(c).

Are the proposed orders appropriate?

52    Under s 87(1A) and (2), the Court may make orders in terms agreed by the parties, or consistent with those terms, without holding a hearing if it is “appropriate to do so”.

53    In Williams on behalf of the Wiluna #5 Native Title Claim Group v State of Western Australia [2025] FCA 1178, Hill J set out the general principles to be applied when considering an exercise of discretion under s 87(1A) (at [64]–[66]) (emphasis added):

The discretion in s 87(1A) is to be exercised flexibly and judicially, having regard to the purposes of s 87 specifically and the [Act] generally. A key statutory purpose is the resolution of issues concerning native title by mediation and agreement, rather than by Court determination: see, for example, Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 at [22]-[23] (Bennett J); Freddie at [17]; Tex on behalf of the Lappi Lappi and Ngulupi Claim Group v State of Western Australia [2018] FCA 1591 at [25]-[26] (Barker J); Oobagooma at [12]-[16]; McLennan on behalf of the Jangga People #3 v State of Queensland [2023] FCAFC 191; (2023) 301 FCR 452 at [92] (Sarah C Derrington and Colvin JJ).

The consent determination mechanism does not substitute a trial, in effect, conducted by State parties for a trial before the Court: equally, the Court is not required to receive evidence and make findings, or form a concluded view on whether the legal requirements for proving native title have been met. Instead, the Court must be satisfied that the State, with the benefit of competent legal representation, is satisfied of the cogency of the evidence on which the Applicant relies; that is, that the State has sufficient information to be in a position to inform the Court that, from the State’s perspective (in the capacity of parens patriae to look after the interests of the community generally), it is appropriate for the Court to make the determination: see Oobagooma at [18]-[20], citing Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]-[30] (Emmett J) and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] (North J); Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34; (2020) 274 FCR 577 at [51] (the Court); McLennan at [90]-[91].

In Wyles on behalf of the Gurambilbarra Wulgurukaba People for the GW Mada Claim v State Minister for Queensland [2025] FCA 833 at [37], McDonald J stated that the Court can be satisfied that it is appropriate to make the orders sought if:

(a) there exists a free and informed agreement between the parties, which involves the State having taken steps to satisfy itself that there is a credible basis for the making of the determination;

(b) the parties have independent and competent legal representation;

(c) the terms of the proposed order are unambiguous and clear; and

(d) the agreement has been preceded by a mediation process.

54    I gratefully adopt that statement of general principles. The Applicant also drew attention to the statement by North J in Ward v State of Western Australia [2006] FCA 1848 at [8]:

The Act makes mediation the primary means of resolution of native title cases. It is designed to encourage parties to take responsibility for resolution of proceedings without the need for litigation. Section 87 [the predecessor to s 87(1A)] must be construed in this context. The section provides a power which is exercisable only when an agreement has been made. The power must be exercised flexibly and with regard to the purpose for which the section is designed. The section should not be construed to require parties in agreement to produce evidence as if in a trial. Consequently, in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title.

55    For the following reasons, I am satisfied that it is appropriate to make the proposed orders without holding a hearing.

Credible basis for making the determination

56    I am satisfied that the State Minister has taken steps to be satisfied that there is a credible basis for the making of the determination. I start with the decision in the Gugu Badhun #2 determination. In that case, land and waters adjoining the northern boundary of the claim area were the subject of a native title determination made by consent. There is substantial overlap between the identity of the native title holders in Schedule 5 to the orders in the Gugu Badhun #2 determination and the claim group identified in Schedule 1 to the orders in this proceeding. The claim group in this proceeding has been amended in two ways from the earlier group composition in the Gugu Badhun #2 determination:

(1)    To recognise that Tommy Cobbler and Nellie Rankin are apical ancestors in their own right, and to include Nora Pope as an additional apical ancestor; and

(2)    To recognise the findings in the March 2020 McGrath Report that in addition to biological descent from a Gugu Badhun person, social parenting is a long standing and normatively understood means by which non-Gugu Badhun people by birth may be incorporated into Gugu Badhun society.

57    In the Gugu Badhun #2 determination, Logan J made the following findings (at [17]–[19]):

… [T]he totality of the historical material submitted establishes the basis for the finding that these people are descended from a pre-sovereignty community of Gugu Badhun ancestors.

… [T]he Gugu Badhun people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places. Through this connection with the land, the Gugu Badhun people, as an organised society, possessed native title rights and interests in accordance with their observed and acknowledged traditional laws and customs. The material supports the intergenerational transfer of those laws and customs and support for the inference that they, and the rights and interests possessed by them, originated in a pre-sovereignty Gugu Badhun society.

… [W]hile there has been some adaptation of laws and customs as a result of sustained European settlement, those changes have not affected the laws and customs of the Gugu Badhun people to the extent where those rights and interests and laws and customs are no longer observed.

58    Accordingly, his Honour considered it appropriate to make the proposed orders in that case recognising (at [20]):

(a) That the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs;

(b) That the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances;

(c) That the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs; and

(d) That the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.

59    His Honour also observed that (at [21(e)(vi)] and [22]):

… The State of Queensland has played an active role in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act’s requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances.

The State’s assessment process has included the assessment of extensive material showing the connection of the claim group with the country the subject of the determination. That material included anthropological reports provided by Dr Alison Pembroke who was engaged by the applicant and which addressed the native title assessment requirements of the State of Queensland’s Department of Environment and Resource Management. …

60    In her affidavit in this proceeding, Ms Thomson deposed that the Applicant provided the State Minister with the connection material in order to satisfy the State Minister of the Applicant’s connection to the claim area, and that the State Minister advised on 7 March 2024 that it was satisfied as to the Gugu Badhun People’s connection for the purposes of entering substantive negotiations towards a consent determination.

61    The connection material was not filed. Instead, in written submissions, the Applicant provided a summary derived from the connection material. Key features of that summary included:

(1)    The March 2020 McGrath Report noted that “the account provided by [Dr] Pembroke [the report relied on by the Court in the Gugu Badhun #2 determination] of the relevant laws and customs is consistent with her observations of the cultural norms expressed and traditional activities undertaken by Gugu Badhun People in relation to the Research Area” (which included the claim area). Dr McGrath was further of the opinion that “[t]he traditional laws and customs observed by Gugu Badhun people apply equally to the entire Gugu Badhun estate, including that part of the Gugu Badhun estate that falls within the Research Area”. Dr McGrath expressed further opinions about the continuity of the traditional activities of the Gugu Badhun People in the Research Area (many of which are reflected in the native title rights and interests referred to in proposed orders 6 and 7), their cultural authority and decision-making, and their continuous occupation of the Research Area; and

(2)    In their affidavits and witness statements, Mr Hoolihan, Ms Appleby and Ms Boyd gave accounts of their traditional and contemporaneous physical and spiritual connection to the claim area.

62    The submissions invited the Court to make findings in relation to the traditional laws and customs presently observed and acknowledged by the Gugu Badhun People, and their contemporaneous and spiritual connection to the claim area. However, it is not necessary for me to do so. It is sufficient to observe that:

(1)    The application in this proceeding is for the benefit of a claim group which has had a native title determination made by this Court in favour of its members in relation to an area immediately to the north of the claim area in this proceeding;

(2)    In the Gugu Badhun #2 determination, Logan J made findings going to the laws and customs of the claim group and their identity and connection to the determination area in that case. As Hill J recognised in Williams at [67], “the Court may adopt any finding of the Court in other proceedings ([Act] s 86(1)(a)), meaning that a relevant finding made in another native title proceeding could well provide a credible basis for the State accepting a claim in this proceeding”;

(3)    The Applicant in this proceeding provided material to the State Minister for its consideration, including a report from Dr McGrath that appears to be consistent with the report relied on by Logan J in the Gugu Badhun #2 determination;

(4)    The Applicant submits that “[t]he Connection Material provided to the State was assessed by counsel and an anthropologist engaged by the State in accordance with the Guidelines for preparing and assessing connection material for Native Title Claims in Queensland, dated November 2016”. While that report is not before the Court, the State Minister has not sought to dispute the accuracy of the Applicant’s submission; and

(5)    The State Minister has agreed to and, indeed, filed the s 87 agreement with the Court.

63    When seen in context, including this Court’s decision in the Gugu Badhun #2 determination, the summary of the information provided by the Applicant to the State Minister, the submission that the application was assessed by the State Minister’s counsel and anthropologist, and the absence of any challenge by the State Minister to the Applicant’s evidence and submissions, a reasonable inference may be drawn that the State Minister has sufficient information to be in a position to inform the Court that a determination can be made and has taken steps to satisfy itself that there is a credible basis for the making of the determination.

Changes to formulation of native title rights and interests since the Gugu Badhun #2 determination

64    The Applicant filed supplementary submissions addressing the differences in the formulation of native title rights as between the Gugu Badhun #2 determination and the proposed orders in this proceeding.

65    Most of the changes are minor textual changes which the Applicant submits are reformulations of the same rights and interests. Two of the changes have more substance:

(1)    The qualification limiting the right to take natural resources to “personal, domestic and non-commercial communal purposes” has been removed from proposed orders 6(b)(i) and 7(c). The Applicant submits that such a limitation is not justified where no such limitation arises from the traditional law and custom of the native title holders: see Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776; 255 FCR 228 at [364] (Mansfield J). The applicant further submits that the connection material supports a determination in the form taken in proposed orders 6(b)(i) and 7(c). I note that the same qualification remains in respect of the use of water in proposed orders 6(b)(ii) and 7(d). This was explained on the basis of the long-standing vesting in the State of Queensland of the use, flow and control of all water in Queensland (see Water Act 2000 (Qld) s 26) and that contemporary consent determinations of native title in Queensland maintain such a limitation in respect of water: eg, Ross on behalf of the Cape York United #1 Claim Group v State of Queensland (No 34) (Guugu Yimidhirr determination) [2025] FCA 1282 (Mortimer CJ), determinations 9(b) and 10(e); and

(2)    A native title right with no equivalent in the Gugu Badhun #2 determination has been added in proposed order 7(k), expressing the right of native title holders to be accompanied onto the claim area by others in certain circumstances. The Applicant submits this right is uncontroversially an element of many recent native title determinations: see, e.g., Ross, determination 10(l); Karkdoo on behalf of the Purrukwarra Estate Group and the Arruwarra Estate Group v Northern Territory of Australia [2024] FCA 176 (O’Bryan J), determination 14(i); Rainbow on behalf of the Kurtjar People v State of Queensland (No 3) [2022] FCA 824 (Rares J), determination 6(e)(ix)); Blackman on behalf of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People v State of Queensland (No 3) [2017] FCA 1637 (Dowsett J), determination 8(l)).

66    The Applicant submits that the differences outlined above are explained by developments in the law since the Gugu Badhun #2 determination and are supported by the connection material.

67    I am satisfied that the proposed changes and reformulations to the expression of the native title rights and interests are appropriate. They are supported by judicial developments since the Gugu Badhun #2 determination, and the connection material that is said to support the form of the proposed orders was provided to the State Minister. The respondents were provided the opportunity to indicate their position on the Applicant’s supplementary submissions and all but one, being Bolwarra Enterprises Pty Ltd, have confirmed that they do not contest the changes and reformulations.

Free and informed agreement and legal representation

68    It also follows in my view from what has been said above that the s 87 agreement is the product of free and informed agreement between the parties. I note that the Applicant conceded that, of the respondents, Bolwarra has not been legally represented in the negotiation process. However, I accept the Applicant’s submission that it was open to Bolwarra to seek legal advice if it wished to do so. None of the respondents have taken issue with the Applicant’s submissions in this respect despite having the opportunity to respond to the Applicant’s submissions.

The agreement has been preceded by a mediation process

69    I am satisfied that the s 87 agreement was preceded by a mediation process. Ms Thomson’s affidavit annexed a copy of the agreed timetable for progressing the matter towards a consent determination. It records the dates of the various milestones set by the parties in reaching agreement. The first milestone is recorded as the State Minister providing a draft consent determination timetable to the Applicant for comment. The indicative date was listed as 28 March 2024. The final entries dealt with the filing of evidence and submissions in relation to the consent determination. The final indicative date for the filing of reply submissions and materials was listed as 22 December 2025.

70    In between those two dates, the parties actively engaged in negotiations in relation to connection, the formulation of native title rights and interests, tenure, other interests, the drafting of the s 87 agreement and the proposed orders, and the creation of the prescribed body corporate. Mediation was undertaken before a Registrar of the Court to consider issues in dispute relating to the nature and extent of native title rights and interests.

Conclusion on whether it is appropriate to make the orders without a hearing

71    In conclusion, I am satisfied that the State Minister had sufficient information to inform the Court that, from the State Minister’s perspective, it is appropriate to make the proposed orders. I am satisfied that the parties had the benefit of representation or, in the case of Bolwarra, the opportunity to be represented. I am also satisfied that the s 87 agreement was preceded by the active negotiations of the parties and had the benefit of a mediation process before a Registrar of this Court.

72    While the evidence before this Court did not include the connection material, I am satisfied in the circumstances of this case that the conditions for making the proposed orders are satisfied. As North J said in Ward at [8], “in some circumstances, it will be appropriate to make orders under s 87 notwithstanding that the Court has not been provided with evidence of the primary facts substantiating native title”.

NOMINATION OF A PRESCRIBED BODY CORPORATE

73    Finally, if the Court proposes to make a determination that native title exists, at the same time or as soon as practicable thereafter, the Court must also make a determination of whether the native title is to be held in trust and, if so, by whom: the Act ss 55 and 56(1).

74    Ms Thomson deposed that, at the authorisation meeting held on 18 October 2025, a resolution was passed unanimously that the native title rights and interests of the Gugu Badhun People within the determination are not to be held in trust under s 56 of the Act. It was also resolved that:

(1)    The Gugu Badhun Aboriginal Corporation RNTBC (ICN 7719) (GBAC) is to be the agent prescribed body corporate for the determination;

(2)    Ms Thomson, Deputy Principal Legal Officer of NQLC, as legal representative of the Applicant, or a person acting in that role, is authorised and instructed to nominate GBAC in writing pursuant to s 57(2)(a)(i) of the Act to be the Gugu Badhun People’s agent prescribed body corporate for the determination; and

(3)    The members of the claim group present at the authorisation meeting required the GBAC to (a) accept the nomination in writing in accordance with s 57(2)(a)(ii) of the Act and (b) within 5 days of a request from Ms Thomson, give the NQLC a written consent that satisfies the requirements of s 57(2)(a)(ii) of the Act.

75    Annexed to Ms Thomson’s affidavit was a copy of the consent to the nomination of GBAC as the prescribed body corporate. The executed form states:

In accordance with s.57(2)(a)(ii) of the Native Title Act 1993 (Cth) (the Act), the Gugu Badhun Aboriginal Corporation RNTBC (ICN: 7719) hereby consents to its nomination as the prescribed body corporate, to act as agent in relation to the determined native title rights and interests of the Gugu Badhun People common law holders, and to perform the functions set out in s.57(3) of the Act.

76    Given the foregoing, it is appropriate to make orders (a) determining under s 56(1) of the Act that the native title will not be held in trust and (b) determining under s 57(2)(b) that GBAC is to perform the functions of a prescribed body corporate mentioned in s 57(3).

CONCLUSION

77    I am satisfied that the requirements of the Act are met and that it is appropriate to make the orders sought by the parties.

78    The Court congratulates the parties and their representatives for bringing this proceeding to a conclusion by way of agreement.

Associate:

Dated:    5 May 2026

SCHEDULE OF PARTIES