FEDERAL COURT OF AUSTRALIA
Brady on behalf of the Western Yalanji People #4 v State of Queensland [2013] FCA 958
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
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 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 1, and depicted in the map attached to Schedule 1.
4. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.
5. The native title is held by the Western Yalanji People described in Schedule 3 (the “native title holders”).
6. Subject to paragraphs 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 1 are:
(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
(b) in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the Natural Resources of the Water in the area; and
(iii) take and use the Water of the area,
for personal, domestic and non-commercial communal purposes.
7. Subject to paragraphs 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 1 are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) be buried and 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 on the area by certain non-native title holders, being:
(i) spouses of native title holders, pursuant to the exercise of traditional laws and customs;
(ii) people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in, rituals, ceremonies, or cultural activities; or
(iii) people who have rights in relation to the area according to the traditional laws and customs of the native title holders.
8. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the native title holders; and
(c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4.
9. The native title rights and interests referred to in paragraphs 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 4.
12. The relationship between the native title rights and interests described in paragraphs 6 and 7 and the other interests described in Schedule 4 (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:
“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 Acts” has the meaning given in the Local Government Act 2009 (Qld);
“Local Government Area” has the meaning given in the Local Government Act 2009 (Qld);
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and
(b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders, but does not include:
(a) animals that are the private personal property of another;
(b) crops that are the private personal property of another; and
(c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
“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.
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 Western Yalanji Aboriginal Corporation RNTBC ICN 3326, 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 in relation to the determination.
Schedule 1 — DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, and depicted on the determination map, excluding the areas described in Schedule 2.
Part 1 Exclusive Areas
All of the land and waters described in the following table and depicted in dark blue on the determination map.
* denotes areas to which ss 47A or 47B of the Native Title Act 1993 (Cth) apply
** denotes an area to which s 24KA 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.
Area description (at date of determination) |
Lot 1 on Plan CP907719 |
Lot 1 on Plan CP825797 |
That part of Lot 113 on Plan SP161900, formerly described as Lot 113 on Plan CF16, subject to former Mining Claim 20074 |
That part of Lot 113 on Plan SP161900, formerly described as Lot 113 on Plan CF16, subject to former Mining Claim 20075 |
That part of Lot 113 on Plan SP161900, formerly described as Lot 113 on Plan CF16, subject to Mining Lease 20282 |
That part of Lot 14 on Plan SP250040, formerly described as Lot 2 on Plan CP910619, subject to Mining Lease 20239 |
That part of Lot 14 on Plan SP250040, formerly described as Lot 2 on Plan CP910619, subject to former Mining Lease 20257 |
B. Map of Determination Area
Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA
For the avoidance of doubt, the areas described below are excluded from the Determination Area:
(a) The land or 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/or s 23B(7) of the Native Title Act 1993 (Cth) and 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).
(b) Specifically, and to avoid any doubt, the land and waters described in paragraph (a) immediately above include the whole of the land and waters described as Lot 3 on Plan CF844106.
Schedule 3 — NATIVE TITLE HOLDERS
1. The native title holders are the Western Yalanji People.
2. The Western Yalanji People are:
(a) the descendants of one or more of the following people:
(i) Sandy Tippo (also known as Deppo King), the father of Jack Brady and others;
(ii) Charlie Fox and Emily Fox (also known as Emily Skene, also known as Emily Skeen), the parents of Stella Rogers (née Fox) and others;
(iii) George Maytown (also known as William Dolo, also known as Janga);
(iv) Billy (also known as Namukaia) and Maggie (also known as Wautaluygu), the parents of Lizzie Riley and others;
(v) Billy, the father of Jimmy Riley and others;
(vi) Kitty, the mother of Caroline Rose Davis (also known as Caroline Rose Molloy, also known as Caroline Rose Brown, also known as Caroline Rose Roberts, also known as Kitchay) and others;
(vii) Charlie Lee Cheu, the father of Caesar Lee Cheu and others;
(viii) Mary (also known as Railuinn), the mother of Rosie Grogan (née Palmer) (also known as Rosie Maytown) and others;
(ix) George Maytown (also known as George Dodd Senior), the father of Dolly Maytown and others;
(x) Jack Burton, the father of Nancy White (also known as Nancy Brickey) and others;
(xi) Bula Burton (also known as Buller Burton);
(xii) Ruby Meldrum, or her brother Rob Miller;
(xiii) Biddy Mango (also known as Biddy Looney), the mother of Dolly McNamara and others;
(xiv) ‘Nama’minkidji and Wur’puram, the parents of Jannie Maytown (also known as Jennie Maytown) and others;
(xv) Mitchell Earl, the father of Norman Mitchell and others;
(xvi) Lena Palmer (also known as Lena Banjo, also known as Lena Gordon), or her brother Togo;
(xvii) Charlie Curraghmore, or his brother Charlie Jubilee;
(xviii) Dolly, the mother of Alice Roberts and others;
(xix) Jimmy Roberts, the father of Jack Lawyer and others;
(xx) Dolly, the mother of Charlotte Palmer and others;
(xxi) Mary Anderson (also known as Maggie Anderson), or her sister Dianna (also known as Dinah), or their sister the mother of Rosie Simpson (née Murray);
(xxii) Billy Snider Senior (also known as Jimmie Snider), the father of Charlie Snider and others;
(xxiii) Buiku Buiku, the father of Kitty and others;
(xxiv) Sambo and Maggie, the parents of Minnie Williams and others;
(xxv) Johnny Cake (also known as Johnny Stewart), the father of Kenneth Lloyd Stewart and others;
(xxvi) Hilda, the mother of Jessie Pauletta Davis and others;
(xxvii) Maggie, the mother of James Andrew Mossman (also known as Jimmy Mossman) and others; or
(b) people who are recruited by adoption into one of the above descent groups in accordance with the traditional laws and customs of the Western Yalanji People.
Schedule 4 — 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:
(a) the agreement between the Applicant, the Western Yalanji Aboriginal Corporation RNTBC ICN 3326 and the Tablelands Regional Council, which was authorised by the native title claim group on 30 April 2013 (the Western Yalanji People/Tablelands Regional Council Agreement) and that agreement once it becomes registered as a body corporate indigenous land use agreement following execution of the agreement by the registered native title body corporate;
(b) the agreement between the Applicant, the Western Yalanji Aboriginal Corporation RNTBC ICN 3326 and Ergon Energy Corporation Limited ACN 087 646 062, which was authorised by the native title claim group on 30 April 2013 (the Western Yalanji People/Ergon Energy Agreement) and that agreement once it becomes registered as a body corporate indigenous land use agreement following execution of the agreement by the registered native title body corporate; and
(c) the Western Yalanji People/Cook Shire Council indigenous land use agreement (QI2004/064) dated 1 November 2005 and registered on 18 May 2006.
2. The rights and interests of Telstra Corporation Limited ACN 051 775 556:
(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:
(ii) to install and operate telecommunication facilities;
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunication facilities;
(d) under any licences, access agreements or easements relating to its telecommunications facilities in the Determination Area.
3. The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:
(a) as the owner and operator of any “works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), including:
(i) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and
(ii) to inspect, maintain and manage any works in the Determination Area.
4. The rights and interests of the Cook Shire Council (the “CSC”) including any rights the CSC, its employees, agents or contractors have:
(a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its Local Government Area;
(b) as the trustee of any Reserves that exist in the Determination Area as at the date of the determination;
(c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the determination, including but not limited to:
(i) dedicated roads operated by the CSC;
(ii) gravel pits operated by the CSC;
(iii) undedicated but constructed roads except for those not operated by the CSC;
(d) to enter land described in paragraphs 4(a) to 4(c) above to:
(i) exercise any of the rights and interests referred to in paragraphs 4(a) to 4(c) above;
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 4(c) above; and
(iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.
5. The rights and interests of the Tablelands Regional Council for that part of the Determination Area within its Local Government Area, including:
(a) as the owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of the determination;
(b) the rights of its employees, agents and contractors to enter upon the Determination Area to exercise its powers and responsibilities under Local Government Acts; and
(c) under any interest in land or waters within the Determination Area including any lease, licence, access agreement, easement or Reserve in the Determination Area.
6. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld) in the Determination Area as may be current as at the date of the determination.
7. The rights and interests of the holders of any leases, licences, reservations, permits easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act.
8. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) stock routes; and
(d) areas that were public places at the end of 31 December 1993.
9. Any other rights and interests:
(a) held by the State of Queensland or Commonwealth of Australia; or
(b) existing by reason of the force and operation of the Laws of the State or the Commonwealth.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6003 of 2001 |
BETWEEN: | WILLIAM STEVEN BRADY AND DESMOND BRICKEY ON BEHALF OF THE WESTERN YALANJI PEOPLE COMBINED #5 AND #7 Applicant |
AND: | STATE OF QUEENSLAND First Respondent COOK SHIRE COUNCIL Second Respondent TABLELANDS REGIONAL COUNCIL Third Respondent BEVERLEY ANNE KINGSLEY, HOWARD ALBERT KINGSLEY, STEPHEN ROY STRUBER, DAVID LESLIE WESTAWAY, DONALD GEORGE WESTAWAY, HELEN MARGARET WESTAWAY, JOHN WILLIAM WESTAWAY, LESLIE WESTAWAY and DIANNE ROSE WILSON-STRUBER Fourth – Twelfth Various Pastoral Respondents |
JUDGE: | LOGAN J |
DATE OF ORDER: | 24 SEPTEMBER 2013 |
WHERE MADE: | CAIRNS |
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 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 1, and depicted in the map attached to Schedule 1.
4. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.
5. The native title is held by the Western Yalanji People described in Schedule 3 (the “native title holders”).
6. Subject to paragraphs 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 Part 1 and Part 2 of Schedule 1 are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) be buried and 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; and
(j) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
7. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the native title holders; and
(c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4.
8. The native title rights and interests referred to in paragraph 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 4.
11. The relationship between the native title rights and interests described in paragraph 6 and the other interests described in Schedule 4 (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;
(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;
(d) when the native title right to hunt (referred to in paragraph 6(c) above) is intended to be conducted on a pastoral lease using firearms, it may only be exercised:
(i) in areas where stock are not present; and
(ii) if the lessee of the pastoral lease, or a person otherwise responsible for the management of the pastoral lease, is given sufficient prior notice of the intention to hunt in order to allow any safety issues to be addressed; and
(e) when the native title right to maintain and protect places of importance and areas of significance (referred to in paragraph 6(h) above) is intended to involve the erection on a pastoral lease of a structure to protect from physical harm a place or area, it may only be exercised if:
(i) the structure will not materially impact on activities permitted or required by the pastoral lease; and
(ii) the lessee of the pastoral lease, or a person otherwise responsible for the management of the pastoral lease, is given sufficient advance notice of the intention to erect the structure in order to allow any safety issues to be addressed.
Definitions and Interpretation
12. In this determination, unless the contrary intention appears:
“firearm” has the meaning given in the Weapons Act 1990 (Qld);
“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 Acts” has the meaning given in the Local Government Act 2009 (Qld);
“Local Government Area” has the meaning given in the Local Government Act 2009 (Qld);
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and
(b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders, but does not include:
(a) animals that are the private personal property of another;
(b) crops that are the private personal property of another; and
(c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
“Reserve” means a reserve dedicated or taken to be a reserve under the Land Act 1994 (Qld);
“stock” has the meaning given in the Stock Act 1915 (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.
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:
13. The native title is not held in trust.
14. The Western Yalanji Aboriginal Corporation RNTBC ICN 3326, 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 in relation to the determination.
Schedule 1 — DETERMINATION AREA
A. Description of Determination Area
Non-exclusive areas
The Determination Area comprises all of the land and waters as described in Parts 1 and 2 below, and depicted in light blue on the determination map, excluding the areas described in Schedule 2.
Part 1
All the land and waters described in the following table, to the extent that they are within the external boundary as described in “Area 1 external boundary” below:
Area description (at date of determination) |
That part of Lot 14 on Plan SP250040, formerly described as part of Lot 2 on Plan CP910619 |
Part of Lot 233 on Plan PH1796 |
An area of road identified as part of Lot 2 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
An area of road identified as Lot 6 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
An area of road identified as Lot 7 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
An area of road identified as Lot 8 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
An area of road identified as part of Lot 9 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
An area of road identified as Lot 12 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
Save for any waters forming part of a lot on plan, all waterways, natural lakes, creeks and rivers within the external boundary including but not limited to: (a) Granite Creek; (b) the Palmer River; and (c) the North Palmer River |
* denotes areas to which s 24KA of the Native Title Act 1993 (Cth) applies
Part 2
All the land and waters subject to those parcels identified in the following table, to the extent that they lie within the external boundary as described in “Area 2 external boundary” below:
Area description (at date of determination) |
Part of Lot 14 on Plan SP250040, formerly described as part of Lot 2 on Plan CP910619 |
An area of road identified as part of Lot 9 on Plan SP208316, formerly described as part of Lot 2 on Plan CP910619* |
* denotes an area to which s 24KA of the Native Title Act 1993 (Cth) applies
Area 1 external boundary
Commencing at the intersection of the eastern boundary of Lot 233 on Plan PH1796 and the southern boundary of the Cook Shire Council Local Government Area, and extending generally north westerly along that Local Government Area boundary to its intersection with the southern prolongation of the southernmost south western boundary of Exploration Permit Mineral 11980 (as at November 2004); then northerly to the southernmost western corner of that exploration permit; then northerly, westerly and again northerly along the western boundaries of that exploration permit and extending north to intersect the southern bank of the Palmer River; then generally south easterly along the southern bank of that river, the western and southern boundaries of Lot 7 on Plan CF12 and again along the southern banks of the Palmer River to the eastern boundary of Lot 1 on Plan CP907719 (Palmer Goldfields Resource Reserve); then generally northerly and generally north easterly along the eastern boundaries of that lot and the southern boundaries of Lot 1 on Plan CP825797 to the north western corner of Lot 66 on Plan SP161906 (Bonny Glen Holding); then generally southerly along the western boundary of that lot to Latitude 16.189534° South, being the south west corner of the Parish of Uhrstown and the north western corner of the Parish of Nangee, and also being the point where the boundary leaves the southern bank of Granite Creek; then westerly to the easternmost north east corner of Lot 233 on Plan PH1796 (Mount Mulgrave Holding); then southerly along the eastern boundary of that lot back to the commencement point.
Area 2 external boundary
Commencing at the easternmost north east corner of Lot 233 on Plan PH1796 (Mount Mulgrave Holding) and extending easterly to the western boundary of Lot 66 on Plan SP161906 (Bonny Glen Holding) to Latitude 16.189534° South, being the south west corner of the Parish of Uhrstown and the north western corner of the Parish of Nangee, and also being the point where the boundary leaves the southern bank of Granite Creek; then southerly, westerly, again southerly, again westerly and northerly along the boundaries of Lot 14 on Plan SP250040 back to the commencement point.
Data reference and source
Cadastral data sourced from the Department of Natural Resources and Mines, Queensland (February 2013).
Local government authorities data sourced from the Department of Natural Resources and Mines, Queensland (February 2013).
Exploration Permit Mineral 11980 (dated November 2004), sourced from the Department of Natural Resources and Mines, Queensland.
Mining Leases 20239 and 20237 sourced from the Department of Natural Resources and Mines, Queensland (February 2013).
Where available watercourse boundaries were derived from cadastral data sourced from the Department of Natural Resources and Water, Queensland (May 2008) or 1:250K Topographic Vector Data is © Commonwealth of Australia (Geoscience Australia) 2008.
Reference datum
Geographical coordinates have been provided by the National Native Title Tribunal 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 to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
Prepared by Geospatial Services, National Native Title Tribunal (16 May 2013)
B. Map of Determination Area
Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA
For the avoidance of doubt, the areas described below are excluded from the Determination Area:
A. The land or 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/or s 23B(7) of the Native Title Act 1993 (Cth) and 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).
B. Land and waters specifically excluded from the combined native title determination application filed on 3 May 2007, being:
Mining Lease 20239; and
Mining Lease 20257.
C. On the basis that native title has been extinguished and is not claimed, the parties have agreed that the excluded areas include any land or waters on which any permanent improvement consisting of:
(i) a homestead, house, shed or other building;
(ii) an airstrip;
(iii) a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters’ tank or other water storage facility; or
(iv) stock yards and trap yards,
has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral lease:
Pastoral Holding 14/5422 comprising Lot 14 on Plan SP250040 and commonly known as Palmerville.
Schedule 3 — NATIVE TITLE HOLDERS
1. The native title holders are the Western Yalanji People.
2. The Western Yalanji People are:
(a) the descendants of one or more of the following people:
(i) Sandy Tippo (also known as Deppo King), the father of Jack Brady and others;
(ii) Charlie Fox and Emily Fox (also known as Emily Skene, also known as Emily Skeen), the parents of Stella Rogers (née Fox) and others;
(iii) George Maytown (also known as William Dolo, also known as Janga);
(iv) Billy (also known as Namukaia) and Maggie (also known as Wautaluygu), the parents of Lizzie Riley and others;
(v) Billy, the father of Jimmy Riley and others;
(vi) Kitty, the mother of Caroline Rose Davis (also known as Caroline Rose Molloy, also known as Caroline Rose Brown, also known as Caroline Rose Roberts, also known as Kitchay) and others;
(vii) Charlie Lee Cheu, the father of Caesar Lee Cheu and others;
(viii) Mary (also known as Railuinn), the mother of Rosie Grogan (née Palmer) (also known as Rosie Maytown) and others;
(ix) George Maytown (also known as George Dodd Senior), the father of Dolly Maytown and others;
(x) Jack Burton, the father of Nancy White (also known as Nancy Brickey) and others;
(xi) Bula Burton (also known as Buller Burton);
(xii) Ruby Meldrum, or her brother Rob Miller;
(xiii) Biddy Mango (also known as Biddy Looney), the mother of Dolly McNamara and others;
(xiv) ‘Nama’minkidji and Wur’puram, the parents of Jannie Maytown (also known as Jennie Maytown) and others;
(xv) Mitchell Earl, the father of Norman Mitchell and others;
(xvi) Lena Palmer (also known as Lena Banjo, also known as Lena Gordon), or her brother Togo;
(xvii) Charlie Curraghmore, or his brother Charlie Jubilee;
(xviii) Dolly, the mother of Alice Roberts and others;
(xix) Jimmy Roberts, the father of Jack Lawyer and others;
(xx) Dolly, the mother of Charlotte Palmer and others;
(xxi) Mary Anderson (also known as Maggie Anderson), or her sister Dianna (also known as Dinah), or their sister the mother of Rosie Simpson (née Murray);
(xxii) Billy Snider Senior (also known as Jimmie Snider), the father of Charlie Snider and others;
(xxiii) Buiku Buiku, the father of Kitty and others;
(xxiv) Sambo and Maggie, the parents of Minnie Williams and others;
(xxv) Johnny Cake (also known as Johnny Stewart), the father of Kenneth Lloyd Stewart and others;
(xxvi) Hilda, the mother of Jessie Pauletta Davis and others;
(xxvii) Maggie, the mother of James Andrew Mossman (also known as Jimmy Mossman) and others; or
(b) people who are recruited by adoption into one of the above descent groups in accordance with the traditional laws and customs of the Western Yalanji People.
Schedule 4 — 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:
(a) the agreement between the Applicant, the Western Yalanji Aboriginal Corporation RNTBC ICN 3326 and the Tablelands Regional Council, which was authorised by the native title claim group on 30 April 2013 (the Western Yalanji People/Tablelands Regional Council Agreement) and that agreement once it becomes registered as a body corporate indigenous land use agreement following execution of the agreement by the registered native title body corporate;
(b) the agreement between the Applicant, the Western Yalanji Aboriginal Corporation RNTBC ICN 3326 and Ergon Energy Corporation Limited ACN 087 646 062, which was authorised by the native title claim group on 30 April 2013 (the Western Yalanji People/Ergon Energy Agreement) and that agreement once it becomes registered as a body corporate indigenous land use agreement following execution of the agreement by the registered native title body corporate; and
(c) the Western Yalanji People/Cook Shire Council indigenous land use agreement (QI2004/064) dated 1 November 2005 and registered on 18 May 2006.
2. The rights and interests of the Cook Shire Council (the “CSC”) including any rights the CSC, its employees, agents or contractors have:
(a) under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its Local Government Area;
(b) as the trustee of any Reserves that exist in the Determination Area as at the date of the determination;
(c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the determination, including but not limited to:
(i) dedicated roads operated by the CSC;
(ii) gravel pits operated by the CSC;
(iii) undedicated but constructed roads except for those not operated by the CSC;
(d) to enter land described in paragraphs 2(a) to 2(c) above to:
(i) exercise any of the rights and interests referred to in paragraphs 2(a) to 2(c) above;
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 2(c) above; and
(iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.
3. The rights and interests of the Tablelands Regional Council for that part of the Determination Area within its Local Government Area, including:
(a) as the owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of the determination;
(b) the rights of its employees, agents and contractors to enter upon the Determination Area to exercise its powers and responsibilities under Local Government Acts; and
(c) under any interest in land or waters within the Determination Area including any lease, licence, access agreement, easement or Reserve in the Determination Area.
4. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld) in the Determination Area as may be current as at the date of the determination.
5. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act.
6. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) stock routes; and
(d) areas that were public places at the end of 31 December 1993.
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 or the Commonwealth.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6008 of 1999 |
BETWEEN: | GRAHAM BRADY, DESMOND BRICKIE AND DELL RILEY ON BEHALF OF THE WESTERN YALANJI PEOPLE #4 Applicant
|
AND: | STATE OF QUEENSLAND First Respondent COOK SHIRE COUNCIL Second Respondent TABLELANDS REGIONAL COUNCIL Third Respondent TELSTRA CORPORATION LIMITED Fourth Respondent RALPH DELACEY Fifth Respondent JOYCE HARDING AHLERS, GEORGE DONALD AHLERS AND STEPHEN ROY STRUBER Sixth - Eighth Various Pastoral Respondents
|
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6003 of 2001 |
BETWEEN: | WILLIAM STEVEN BRADY AND DESMOND BRICKEY ON BEHALF OF THE WESTERN YALANJI PEOPLE COMBINED #5 AND #7 Applicant |
AND: | STATE OF QUEENSLAND First Respondent COOK SHIRE COUNCIL Second Respondent TABLELANDS REGIONAL COUNCIL Third Respondent BEVERLEY ANNE KINGSLEY, HOWARD ALBERT KINGSLEY, STEPHEN ROY STRUBER, DAVID LESLIE WESTAWAY, DONALD GEORGE WESTAWAY, HELEN MARGARET WESTAWAY, JOHN WILLIAM WESTAWAY, LESLIE WESTAWAY and DIANNE ROSE WILSON-STRUBER Fourth – Twelfth Various Pastoral Respondents |
JUDGE: | LOGAN J |
DATE: | 24 SEPTEMBER 2013 |
PLACE: | CAIRNS |
REASONS FOR JUDGMENT
1 The applications that are the subject of these proceedings, QUD 6008 of 1999, “Western Yalanji People #4”; and combined claim QUD 6003 of 2001, “Western Yalanji People #5” and QUD 3 of 2005, “Western Yalanji People # 7”, are for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determinations.
2 The State of Queensland, Tablelands Regional Council, Cook Shire Council and various pastoralists are parties to the applications, and Telstra Corporation Limited and a miner are respondents to the Western Yalanji People #4 application.
3 The applications are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Western Yalanji People. The applicants seek a determination of native title on behalf of the Western Yalanji People over various lands and waters in and around the Palmer and Mitchell River systems which lie to the north-west of Mt Carbine and to the south of Laura.
4 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determinations in each application.
5 One of the Commonwealth Parliament’s objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 of the Act by the Native Title Amendment Act 2009 (Cth).
6 Like many such claims, this claim has been long in its gestation. I made observations last year in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 and Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament’s objective of consensual resolutions had been met. The statements which I then made are just as applicable to this case. The achievement of Parliament’s objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court’s registrars. I commend the parties and the legal practitioners involved in cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution.
7 In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims. Over the time during which I have been responsible for the management of the list of native title cases in this region, and as I have stated in other determinations, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament’s goal of national reconciliation in this important area of the Court’s jurisdiction. This legal assistance to pastoralists was terminated with effect at the end of 2012 by the then Commonwealth Executive Government. Such value judgments are for the Executive Government of the day to make. What I can say again, and have in earlier determinations stated, based on direct experience, is that the addressing of the hitherto “unacceptably long time” for the resolution of native title cases and the recent experience of “faster and better claim resolution” to which the then Attorney General made reference (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, http://www.attorneygeneral.gov.au/Speeches/Pages/2012/Second% 20Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) is best achieved by a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. As I noted this year in Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 at [4]:
[T]o my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents.
8 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. I am in complete agreement not only with the substance of his Honour’s observations in King but also with the manner in which he expressed them. They are exactly apposite in the present proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution.
9 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement.
10 The applicants have filed the following documents relevant to the consent determinations in Western Yalanji #4, #5 and #7:
(a) Affidavit of Mr Gregory Bell affirmed on 19 August 2013 and filed on 21 August 2013, exhibiting:
(i) Affidavit of Mr Eric Rosendale affirmed 17 May 2013;
(ii) Dr Anthony Redmond, ‘Summary of Connection Materials Provided for Western Yalanji Native Title Claims QDC89/89, QC99/3, QC01/39, 30 September 2011;
(iii) Affidavit of Mr Qawanji Ngurrka Jawiyabba (Vincent John Brady) sworn 18 May 2011;
(iv) Dr Anthony Redmond, ‘Final Response to State of Queensland Regarding the Level of Society Relevant to the Laws and Customs of the Western Yalanji People’, 10 August 2010;
(v) Dr Anthony Redmond, ‘The Relationship of the Wider Cultural Bloc and Regional Society to Language Identity Groups in the Western Yalanji Native Title Claim Region’, 3 December 2008;
(vi) Dr Anthony Redmond, ‘Supplementary Anthropological Report: The Native Title Rights and Interests of Western Yalanji People’, February 2008;
(vii) Mr Raymond Wood, ‘Western Yalanji Customary Land Interests’, February 2006;
(viii) Mr Raymond Wood, ‘Overview of Aboriginal Customary Land Holding in the “Maytown Country”’, April 1998;
(ix) Mr John Ford, ‘Anthropological Evidence in Support of Western or ‘Sunset’ Yalanji People’s Claim for Native Title (QC 95/10) Determination over Their Country’, August 1995; and
(x) Dr Bruno David and Ms Zoe Ellerman, ‘Summary of Historical and Archaeological Evidence in Support of the Kuku Yalanji Response to the Non-claimant Application for Determination on Native Title for Lands Southeast of Maytown (Ref QC 94/18)’, April 1995.
(b) Affidavit of Mr Gregory Bell affirmed and filed on 23 August 2013, exhibiting:
(i) Dr Louise Allwood, ‘Western Yalanji Claim Group Description Report’, 28 March 2013.
(c) Affidavit of Mr Gregory Bell affirmed and filed on 23 August 2013, exhibiting:
(i) Certificate of Incorporation for the Western Yalanji Aboriginal Corporation (RNTBC);
(ii) Western Yalanji Aboriginal Corporation’s Rules approved by the Registrar and dated 30 June 2009;
(iii) Western Yalanji Aboriginal Corporation membership list;
(iv) Schedule 2 from the Western Yalanji consent determination, Riley v Queensland [2006] FCA 72; and
(v) Meeting notice published in the Cairns Post on 13 April 2013.
(d) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 23 August 2013;
(e) Submissions satisfying s 57 of the Act filed on 27 August 2013;
(f) Outline of Submissions in support of consent determinations filed on 26 August 2013;
(g) Agreement under s 87 of the Act and draft consent determination orders filed by the State of Queensland on 26 August 2013 (QUD6008/99);
(h) Agreement under s 87 of the Act and draft consent determination orders filed by the State of Queensland on 26 August 2013 (QUD6003/01);
(i) Affidavit of Mr Gregory Bell affirmed and filed on 29 August 2013, exhibiting:
(i) Revised Outline of Submissions in support of consent determinations filed on 26 August 2013.
SECTION 87 OF THE ACT
11 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where:
(a) The period specified in the notice given under s 66 of the Act has ended (s 87(1));
(b) There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));
(c) The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b));
(d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and
(e) Having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings.
12 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated:
[36] … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
[37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
13 As such, the Court is not required to make its own inquiry of the merits of the applicant’s claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30].
14 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated:
[38] … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
SECTION 94A OF THE ACT
15 Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of 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.
[emphasis in original]
16 Section 223(1) of the Act defines ‘native title’ and ‘native title rights and interests’ as:
(1) … 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 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.
17 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]:
(a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.
(b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown – it is only those rules that are “traditional” laws and customs.
(c) That normative system must have a continuous existence and vitality since sovereignty.
(d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality.
(e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.
(f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence.
18 Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ.
APpLICATION OF sECTION 223 and section 225 to THE WESTERN YALANJI society
19 The evidence establishes that the Western Yalanji People used and occupied the claim area covered by the applications at the time of first European contact and prior to 1788.
20 The term ‘Western Yalanji’ is used to identify a language name and a name for the people speaking that language in the wider Maytown, Mitchell and Palmer River area. The language is a dialect of the Kuku Yalanji language spoken by neighbouring groups, including the Eastern Yalanji (Wood 2006, para 118; Redmond 2008, para 33). As Wood 2006 (para 11) provides:
There are two large contemporary groupings who use the name Kuku Yalanji: the eastern Yalanji, often described by others and themselves as marrjaji (‘rainforest side’) Yalanji, and the western Yalanji, known as “Sunset”, “Maytown”, “outside”, or “inland” to themselves and others, and also labelled ngalkalji (‘outside [i.e. westerly grassland] people’) by the easterners. The Great Dividing Range is the general boundary between the eastern Yalanji country on the Coral Sea drainage, and the western Yalanji country to the west of it.
21 Although sharing much in common with their neighbours, the Western Yalanji identify themselves as separate and distinguishable from other Aboriginal peoples and other Aboriginal groups in the region (Wood 1998, p 10). The most common alternatives by which the Western Yalanji claim group members are universally identified, by both themselves and the Aboriginal groups on all sides of Western Yalanji country, are the names “Sunset Yalanji” and “Maytown Mob” (Wood 2006, para 255).
22 Archaeological records furnished in support of the applications establish that Aboriginal people have occupied the Maytown, Mitchell and Palmer River region for at least 21,000 years (David and Ellerman 1995, p 6). Evidence of prior occupation is found, for instance, in cave paintings and tools, the homogeneity of which attest to the presence of Kuku Yalanji people in the claimed area considerably predating sovereignty (David and Ellerman 1995, pp 2-6; Ford 1995, para 8; Redmond 2008, para 70).
23 Anthropologically, the earliest known reference to the identity of the Aboriginal inhabitants of Western Yalanji country date back to 1872 (Redmond 2008, para 70). The first of such records comes from explorer William Hann, while more detailed reports such as those of Archibald Meston and William Parry-Okeden were prepared for the State in the 1890s (Wood 2006, paras 15-18). Combined, these and other ethnographic and linguistic reports of the 20th Century establish that the region in and around the determination area was occupied by Aboriginal people who were a dialect group of a broader Yalanji-speaking (Kuku Yalanji) society, and whose descendants are today members of the Western Yalanji claim group.
24 The Court is asked to accept that the Western Yalanji People’s society and cultural identity is based on a way of speaking, a connection to Western Yalanji ancestors and a defined area of lands and waters (the determination area in these applications). The evidence to hand clearly establishes that the transfer of Yalanji cultural knowledge, as well as use of the Kuku Yalanji language, have continued throughout the 20th Century. The Western Yalanji people have maintained a physical connection, as well as an ongoing cultural and spiritual connection to their lands.
25 The material also provides that the Western Yalanji people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places. Such normative rules include traditional concepts of ownership and responsibility, which the Western Yalanji regard as birth rights derived from the ancestors (Wood 2006, paras 216-229). Moreover, the material supports the intergenerational transfer of those laws and customs – both orally and by demonstration – and support for the inference that they, and the rights and interests possessed by them, originated in a pre-sovereignty Western Yalanji society.
26 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 Western Yalanji people to the extent where those laws and customs are no longer observed. Further, whilst relationships formed among the Western Yalanji People and geographically associated groups, the evidence does not suggest a fusion with any such other groups (Redmond 2008, para 172).
27 Accordingly, it is appropriate to make the proposed orders which recognise:
(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.
THE APPLICATION OF SECTION 87 to the Western Yalanji people claims
28 The requirements of s 87 of the Act have been satisfied in the present case. In particular:
(a) The period specified in the notice given under s 66 ended on 30 January 2002 for QUD6008/99, 1 August 2001 for QUD6003/01 and 28 September 2005 for QUD3/05 (s 87(1));
(b) The parties have reached agreement as to the terms of determinations of native title (s 87(1)(a)(i));
(c) The parties have recorded their agreement in short minutes of consent (s 87(1)(b));
(d) An order in terms of or consistent with the short minutes of consent would be within the Court’s power (s 87(1)(c)) because:
(i) The Applications are valid and were made in accordance with s 61 of the Act; and
(ii) The Applications are 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)).
The short minutes complies with s 94A and s 225 of the Act (s 87(1)(c)); and
(e) It is appropriate that the Court make the orders sought because:
(i) All parties are legally represented;
(ii) It is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation;
(iii) The State of Queensland has taken a real interest 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;
(iv) The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determinations;
(v) The requirements of ss 56, 94A and 225 of the Act are satisfied; and
(vi) The proposed determinations are unambiguous and certain as to the rights declared.
satisfying section 57 of the act
29 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by s 56 and s 57 of the Act. They respectively relate to holding the native title on trust or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate.
30 As to the proposed determinations, Mr Bell has deposed in his affidavit affirmed and filed on 23 August 2013, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Western Yalanji Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. The Western Yalanji Aboriginal Corporation was registered on 30 December 2008 pursuant to the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(3) of the Act.
31 The Court notes that Mr Bell has further filed on 23 August 2013 a Notice of Nomination and Consent of the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act.
32 The Western Yalanji Aboriginal Corporation satisfies the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) because:
(a) it is an Aboriginal and Torres Strait Islander Corporation: reg 4(1));
(b) its purpose, as set out in its Rules of the Corporation, satisfy reg 4(2)(b);
(c) the eligibility requirements of the Rules of the Corporation operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determinations as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b).
33 Finally, and at the risk of repetition, it needs to be understood that agreements of the kind that have brought about today’s hearing and determinations do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court’s registrars, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money.
34 For the reasons given, the Determinations are now made.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
