FEDERAL COURT OF AUSTRALIA

Baker on behalf of the Muluridji People #3 v State of Queensland (No 2) [2026] FCA 933

ORDERS

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

BY CONSENT THE COURT ORDERS THAT:

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

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

BY CONSENT THE COURT DETERMINES THAT:

3.    The determination area is the land and waters described in 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 Muluridji People described in Schedule 1 (the Native Title Holders).

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

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

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

(c)    take Natural Resources from the area;

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

(e)    conduct or participate in cultural and religious activities, practices and ceremonies, including conducting the burial of Native Title Holders on the area;

(f)    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 desecration or harm;

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

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

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

(j)    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; and

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

7.    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.

8.    The native title rights and interests referred to in order 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

9.    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).

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

11.    The relationship between the native title rights and interests described in order 6 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; and

(b)    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

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

THE COURT DETERMINES THAT:

13.    The native title is not held in trust.

14.    The Muluridji Tribal Aboriginal Corporation (ICN: 7580), 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.

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 1 – NATIVE TITLE HOLDERS

The Native Title Holders are the Muluridji People. The Muluridji People are descended by birth or adoption from the following apical ancestors:

(a)    Billy and Kitty (parents of Jimmy Riley);

(b)    Mick Fraser/Brazier and his wife Kitty (parents of Rosie Frazier);

(c)    George Baker (father of Nellie, Lucy, Willie and Lulu Baker);

(d)    Mick Sheppard (father of Johnny, Violet, May, Willie, Stanley, Ronnie and Millie Sheppard);

(e)    Annie Green (mother of Jack and Arthur Madigan and Tom King);

(f)    Dolly Hughes (mother of Jessie and Thelma Hughes).

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 holders of rolling term lease for pastoral purposes PH 0/201754 comprising Lot 170 on Plan CP887723 (also known as Glen Russell) issued pursuant to the Land Act 1962 (Qld) and administered under the Land Act 1994 (Qld).

2.    The rights and interests of Ergon Energy Corporation ACN 087 646 062:

(a)    as the owner and operator of any Works as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

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

(i)    as the holder of a distribution authority;

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

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

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

3.    The rights and interests of Mareeba Shire Council (“Council”):

(a)    Under its local government jurisdiction and functions under Local Government Acts, and any other legislation, for that part of the Determination Area within the area declared to be its Local Government Area;

(b)    as owner and operator of infrastructure, structures, earthworks, access works and any other facilities and other improvements in the Determination Area constructed or established by the Council on or before the date on which these orders are made, including but not limited to, any undedicated but constructed roads except for those not operated by Council;

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

(i)    exercise any of the rights and interests referred to in this paragraph and paragraph 4 below;

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

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

4.    The rights and interests of the State of Queensland and Mareeba Shire Council to access, use, operate, maintain and control the dedicated roads and those roads described in paragraph 3(b) in the Determination Area and the rights and interests of the public to use and access those roads.

5.    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 Forestry Act 1959 (Qld);

(d)    the Water Act 2000 (Qld);

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

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

(g)    the Planning Act 2016 (Qld);

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

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

6.    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; or

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

7.    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 external boundary comprises that part of Lot 170 on Plan CP887723 that is not subject to the Djungan Small Scale Miners ILUA (QI2015/040), further described as:

That part of Lot 170 on Plan CP887723 that is east of a line commencing at a point on the western boundary of Lot 56 on Plan NPW767 (Hann Tableland National Park) at Latitude 16.879436° South; then generally south easterly passing through the following coordinate points:

Then south easterly to an unnamed track at approximate Longitude 145.224340° East, Latitude 16.963490° South, then generally south easterly along the centreline of that track to Longitude 145.241160° East, then generally south easterly passing through the following co-ordinate points:

Then southerly to a point on Cattle Creek at Latitude 16.997620° South; then generally southerly along the centreline of that creek to intersect with a south eastern boundary of Lot 170 on Plan CP887723 at approximate Latitude 17.015704° South.

For the avoidance of any doubt, the area excludes any area subject to:

•    Native Title Determination QUD6208/1998 Muluridji People (QCD2011/008) as determined by the Federal Court 14 December 2011.

Note

Data Reference and source

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

•    Djungan Small Scale Miners ILUA (QI2015/040) as registered with the National Native Title Tribunal on 18 December 2015.

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

•    Rivers, creeks and roads are based 1:250,000 topographic vector data © Commonwealth of Australia (Geoscience Australia) 2006.

Reference datum

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

Use of Coordinates

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

SCHEDULE 4 – DESCRIPTION OF DETERMINATION AREA

The determination area comprises all of the land and waters described as part of Lot 170 on Plan CP887723 and depicted in light blue in the map in Schedule 6, to the extent the area is within the External Boundary and not otherwise excluded by the terms of Schedule 5.

SCHEDULE 5 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

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

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

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

SCHEDULE 6 – MAP OF DETERMINATION AREA

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

OVERVIEW

1    These reasons explain why, with the consent of the parties, I have made orders in this proceeding pursuant to s 87A of the Native Title Act 1993 (Cth), determining that the Muluridji People hold native title in the land and waters west of Mareeba in Far North Queensland and more particularly described as comprising part of Lot 170 on Plan CP887723 (determination area).

BACKGROUND

2    The Muluridji People #3 native title determination application was filed on 14 November 2018. It was brought in response to two non-claimant applications seeking a determination that native title does not exist in relation to an area that includes, but is not limited to, the determination area. Those non-claimant applications were respectively made by Mr George Pulham Lowe and Mrs Maxine Joy Lowe (QUD422/2018) and Mr Clint Robert Tilse and Mrs Nicole Jane Tilse (QUD423/2018).

3    On 3 December 2025, orders were made partitioning the native title determination applications into two parts: Muluridji #3 Part A and Muluridji #3 Part B. The determination area coincides with Muluridji #3 Part A. The parties to this determination are the Applicant, the State of Queensland, Mr and Mrs Lowe, the Mareeba Shire Council, Airservices Australia and Ergon Energy Corporation Pty Ltd.

4    This will be the third determination of native title for the Muluridji People. In 2011, two determinations were made by consent recognising that the Muluridji People hold native title over a combined area of 119.84 square kilometres north and east of the determination area: Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji People #1 and #2).

MATERIAL

5    The parties rely, in support of the determination sought, on the following material:

(a)    an agreement under s 87A of the Act, signed by the parties and filed on 29 January 2026, which includes proposed orders for a determination of native title;

(b)    two affidavits of Ashley Roszczenko, solicitor on the record for the Applicant, dated 21 April 2026 and 5 June 2026 respectively; and

(c)    an outline of submissions in support of the proposed determination filed by the Applicant on 21 April 2026, and as amended on 5 June 2026.

SECTION 87A OF THE ACT

6    Section 87A of the Act applies if, at any stage after the end of the period specified in the notice given under s 66 of the Act, the parties reach agreement on a proposed determination of native title in relation to an area that is part, but not all, of the area covered by the claimant application, and the terms of that agreement are in writing and signed by or on behalf of each of the parties: Act, s 87A(1). The Federal Court Chief Executive Officer must also give notice to the other parties to the proceeding (if any) that the proposed determination of native title has been filed with the Court: Act, s 87A(3).

7    When s 87A of the Act is engaged, the Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing if the Court considers that an order in, or consistent with, the terms of the proposed determination would be within its power and it would be appropriate to do so: Act, s 87A(4). In considering whether to make such an order, the Court must take into account any objections made by the other parties to the proceeding: Act, s 87A(8). As the Court’s order involves making a determination of native title, the order needs to comply with s 94A (which deals with the requirements of native title determination orders).

THE COURT HAS POWER TO MAKE THE DETERMINATION

8    I am satisfied that s 87A of the Act applies and that the Court has the power to make an order in, or consistent with, the terms of the determination sought by the parties in Muluridji #3 Part A: cf, Act, s 87A(4)(a). That is because:

(a)    This is a proceeding in relation to an application by the Muluridji People for a determination of native title (Act, s 87A(1)(a)). There is no approved determination of native title for the area in respect of which the Muluridji People #3 native title determination application is made (Act, s 13(1)(a));

(b)    The notification period for the Muluridji People #3 native title determination application under s 66 of the Act (being the notification of the details of the application by the Native Title Registrar to prescribed persons and to the public) ended on 26 June 2019 (Act, s 66(3) and s 87A(1)(b));

(c)    After the end of the notification period, an agreement was reached on a proposed determination of native title in relation to the determination area, which comprises part, but not all, of the area covered by the Muluridji People #3 native title determination application (Act, s 87A(1)(b)). The parties to the agreement are those prescribed by s 87A(1)(c) of the Act. There are no persons mentioned in s 87A(1)(c) who are parties to the proceeding and are not parties to the agreement. I note in that respect that while Mr and Mrs Tilse are parties to the proceeding, they do not hold an interest in relation to the determination area (Act, s 87A(1)(v));

(d)    The terms of the proposed determination are in writing and signed by or on behalf of each of the parties, being those persons mentioned in s 87A(1)(c) of the Act who are parties to the proceeding in relation to the determination area (Act, s 87A(1)(d));

(e)    On 17 June 2026, a Senior Judicial Registrar on behalf of the Federal Court Chief Executive Officer gave notice to the other parties to the Muluridji People #3 native title determination application (Mr and Mrs Tilse) that the agreement (containing the proposed determination of native title) had been filed with the Court (objection notice) (Act, s 87A(3)). The objection notice provided that if Mr and Mrs Tilse wished to object to the agreement, they were to file a statement giving reasons for the objections by 8 July 2026. No statement was filed by Mr and Mrs Tilse in response to the objection notice; and

(f)    An order in, or consistent with, the terms of the proposed determination sought by the parties are within the power of the Court (Act, s 87A(1)(a)). That is because: (i) the Federal Court has jurisdiction under s 81 of the Act in relation to the Muluridji People #3 native title determination application; (ii) the proposed determination sets out the details of the matters mentioned in s 225 of the Act (as required by s 94A of the Act); and (iii) the rights and interests there listed are recognised by the common law of Australia (Act, s 223(1)(c); see also, Nelson v Northern Territory of Australia [2010] FCA 1343; (2010) 190 FCR 344 at [4] (Reeves J)).

IT IS APPROPRIATE TO MAKE THE DETERMINATION

9    I am also satisfied that it is appropriate to make the orders sought by the proposed determination annexed to the agreement signed by the parties: Act, s 87A(4)(b). That is for the following reasons.

10    The “critical” focus of the Court with respect to the criteria stated in s 87A(4)(b) of the Act is on the making of the agreement and whether it was entered into freely by the parties and on an informed basis: Nelson at [14]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37] (North J) both in relation to s 87 of the Act.

11    Of particular relevance is the role taken by the State in the proceeding: Nelson at [14]. The State appears in native title proceedings in the capacity of parens patriae to look after the interests of the community as a whole: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29] (Emmett J). The State must strike a balance between satisfying itself that there exists a credible basis for the recognition of native title and the object of conciliation as stated in the preamble to the Act: Lovett at [37]. The Court will look to see whether the State has taken a real interest in the proceeding and has given appropriate consideration to the evidence relied upon by the Applicant in support of the claim: Nelson at [10]-[11]. It is also apt to consider whether the parties have had the benefit of independent and competent legal representation throughout the process leading to the agreement proposed: Munn at [29].

12    Mr Roszczenko gives evidence that the Applicant provided the State with expert and claimant evidence in order to satisfy its “Guidelines for preparing and assessing connection material for Native Title Claims in Queensland” (dated November 2016). This included six anthropological reports (two from Dr John Burton, one from Averil Ginn and Ray Wood and three from Pascale Taplin), affidavits from Mervyn Phillip Riley and Valma Wilma Green, a witness statement from Maureen Green and video recordings of interviews with each of Vincent Mathieson and Alwyn Lyall. That evidence was supplemented by submissions from Mr David Yarrow SC (dated 1 December 2023) and a letter from the North Queensland Land Council to Crown Law (dated 19 September 2019).

13    On 15 April 2024, following what Mr Roszczenko describes as “many” confidential and without prejudice discussions, the State advised the Applicant that it was prepared to enter into substantive negotiations proceeding toward a consent determination in respect of the Muluridji People #3 native title determination application.

14    That anthropological and claimant evidence has not been filed in the Court. Notwithstanding, I am satisfied on the basis of the evidence given by Mr Roszczenko that the State has taken a real interest in the proceeding and has given appropriate consideration to the evidence upon which the Applicant relies in support of the Muluridji People #3 Part A native title determination application to reach the determination proposed. The other parties have not reviewed the evidence provided by the Applicant. But, given the role of the State as a representative of the community as a whole, the steps it has taken to satisfy itself that the claimant application has a credible basis, and that all of the respondent parties have had the benefit of legal representation, I accept that the agreement has been entered into freely by all of the parties and on an informed basis.

15    I have also had regard to the determinations in Muluridji People #1 and # 2. The reasons for those determinations record that the evidence filed in those proceedings made evident that those speaking the Muluridji dialect of the Kuku Yalanji language used and occupied Muluridji country prior to 1788 (being the date of sovereignty): at [16]. The Court found that the use of the Muluridji dialect and the transfer of Muluridji cultural knowledge continued throughout the twentieth century and its people have an identity and connection to the land through the application of normative rules associated with Dreaming stories and significant places. The Court outlined in Muluridji People #1 and #2: at [17]-[18]:

… Through this connection with the land, the Muluridji 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 Muluridji society.

It is also apparent that while 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 Muluridji people to the extent where those rights and interests and laws and customs are no longer observed.

16    The Muluridji People #1 and #2 determinations operate in rem. The Court is bound in this proceeding by those determinations and the facts necessary to support them, which are those made necessary by s 223 of the Act: Starkey on behalf of Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183 at [291] (Jagot J); see also, at [201]-[204] (Reeves J with whom White J agreed at [401]). Those facts materially include that since sovereignty successive generations of the Muluridji People have continued to acknowledge traditional laws and observe traditional customs by which they possess native title rights and interests in, and have a connection with, the land and waters of the Muluridji People #1 and #2 determination area: Act, s 223(1); see also, Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [46], [79] and [87] (Gleeson CJ, Gummow and Hayne JJ).

17    Finally, no other party to the Muluridji People #3 native title determination application has made an objection to the proposed determination, which is necessary to take into account in considering whether to make the orders sought by the parties to the agreement: Act, s 87A(4) and s 87A(8).

PRESCRIBED BODY CORPORATE

18    The Applicant has nominated the Muluridji Tribal Aboriginal Corporation RNTBC (ICN 7580) to be the prescribed body corporate under s 57 of the Act for the determination area to represent the Muluridji People native title holders as agent and perform the functions mentioned in s 57(3). The Muluridji Tribal Aboriginal Corporation presently performs that function for the native title holders recognised in Muluridji People #1 and #2: at [22]. The circumstances regarding the nomination of the Muluridji Tribal Aboriginal Corporation, including its written consent, are included within the affidavit of Mr Roszczenko, and satisfy the requirements in s 57(2) of the Act.

CONCLUSION

19    For all of the above reasons, there will be a determination in the terms set out in the Orders that the Muluridji People hold native title rights and interests in the land and waters of the determination area.

20    The Court recognises that the process of conciliation by which this outcome was achieved involves cooperation by all of the parties, careful attention by them and their advisers to the requirements of the Act, including with respect to the gathering of evidence to establish the existence of native title, as defined by s 223(1) of the Act, and doing so in furtherance of the administration of justice. The parties are to be congratulated on their approach to that process, which has led to the determination of native title made today.

21    The Orders made in this proceeding declare that the Muluridji People were, and are, the traditional owners of the land and waters comprising the determination area. It is to be emphasised that the Court does not grant the Muluridji People that status: King v Northern Territory of Australia [2011] FCA 582 at [6] (Mansfield J). Rather, by the determination, the Australian community collectively recognises that status by declaring that the Muluridji People are, and have been since sovereignty, the traditional owners of the land and waters of the determination area: King at [6].

Associate:

Dated: 17 July 2026    

SCHEDULE OF PARTIES