FEDERAL COURT OF AUSTRALIA

Djabugay People v State of Queensland [2004] FCA 1652

NATIVE TITLE – consent determination – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate

Native Title Act 1993 (Cth)

BARRY HUNTER, IVAN BRIM, LLOYD LEVERS, GERALD HOBBLER, MELVYN HUNTER, PATRICK HASTIE AND RHONDA BRIM on their own behalf and on behalf of the DJABUGAY PEOPLE v STATE OF QUEENSLAND and CAIRNS CITY COUNCIL

No QG 6002 of 1998

SPENDER J

KURANDA

17 DECEMBER 2004

REASONS FOR JUDGMENT

1                     This proceeding arises out of an application for a determination of native title made by Barry Hunter, Ivan Brim, Lloyd Levers, Gerald Hobbler, Melvyn Hunter, Patrick Hastie and Rhonda Brim, on their own behalf and on behalf of the Djabugay People. The respondents are the State of Queensland and the Cairns City Council. The claim area comprises land and waters within the Barron Gorge National Park.

BACKGROUND OF THE APPLICATION:

2                     The application for determination of native title was lodged with the National Native Title Tribunal on 13 May 1994. That application filed by Andrew Duffin identified the area in the claim as:

‘The area of land covered by the application is Barron Falls National Park excluding railway reserves, electricity reserves, road reserves, pipe reserves within the area marked on the map attached…’

The claim was entered onto the Native Title Register on 17 January 2002.

3                     On 29 March 2001 leave was granted for the application to be amended such that areas in which it might have been argued that native title had been extinguished, were removed from the claim area. The claim area was described in the amended application as:

‘The area covered by this application (“the claim area”) comprises the land and waters of the Barron Gorge National Park being Lot 880 on Plan NPW 459 but does not include:

1.              Former Lots 1,2,3 and 4 on Plan NR 7579.

2.              Former Lots 21 and 22 on Plan NR 7579.

3.              The land the subject of Term Lease 0/213315 being Lot D on CP 894159, Lot E in strata on CP 891025, Lot F in strata on CP 891027, Lot G in strata CP 894159 and Lot H in strata on CP 894157.

4.              Former Portion 164 Parish of Cairns on NR 1735.

5.              Former Portion 194 Parish of Cairns on NR 1735.

6.              Former Portion 383 Parish of Cairns on NR 3594.

7.              Former Lengthmens Camp Reserves 85, 169 and 171.

8.              Any land or waters that are affected by a previous exclusive possession act, as that term is defined in s.23B of the Native Title Act 1993 (Cwth).

The native title claim group do not assert that they possess exclusive possession to any land or waters that are affected by a previous non-exclusive possession act, as that term is defined in s.23F of the Native Title Act 1993 (Cwth).’

4                     In that amended application the applicant was also amended. Andrew Duffin was removed as applicant and the joint applicant became Barry Hunter, Ivan Brim, Lloyd Levers, Gerald Hobbler, Melvyn Hunter, Patrick Hastie and Rhonda Brim.

5                     The Cairns City Council was joined as a party to the proceedings pursuant to s 84(5) of the Native Title Act 1993 (Cth) (‘the Act’) by order on 27 June 2002.

6                     The application was further amended on 20 August 2003 to ‘reflect previous negotiations and to facilitate ongoing negotiations between the parties, in anticipation of a possible consent determination of native title.’ In that amendment further areas were excluded from the native title claim area.

7                     The application was further amended on 10 May 2004. The amendments included an updated draft consent determination that was said to ‘reflect the ongoing negotiations between the parties.’

8                     The final amendments to the application for native title were made by consent on 8 December 2004.

9                     The agreement reached between the parties confers non-exclusive rights on the Djabugay People to use and enjoy the land and waters in the determination area. The agreement between the parties is subject to the Court being satisfied that it has the power to make orders in terms of those sought and the Court being satisfied that it is proper to do so. 

POWER OF THE COURT:

10                  Pursuant to s 13 of the Act, applications for the determination of native title may be made to the Federal Court in relation to areas for which there is no approved determination of native title.  Part 3 of the Act sets out the rules for making such applications to the Court.

11                  Part 4, Division 1C of the Act provides that some or all of the parties involved in a native title proceedings may negotiate an agreed outcome for that application or part of that application. Section 87 of the Act allows the Court, if it is satisfied that such an order is within its power, to make an order in, or consistent with, the terms of the parties’ written agreement without holding a hearing.

12                  Where the Court makes an order in which a determination of native title is made, s 94A of the Act requires the Court to set out details of the matters mentioned in s 225.  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.’

CONSIDERATION OF AGREEMENT AND DRAFT DETERMINATION:

13                  In considering whether it is appropriate to make the order that the parties seek, I have had the benefit of an affidavit of Barry Lawrence Hunter filed 23 March 2001. In that affidavit Mr Hunter swears to his connection to the claim area according to the traditional laws and customs of his people.

14                  I have also had the benefit of an affidavit of Rhonda Dell Brim filed 23 March 2001, in which the deponent swears to her connection with the claim area according to the traditional laws and customs of her people.

15                  I have also read the report of Dr Sandra Pannell, Anthropologist, prepared in August 1998 and filed as an annexure to the affidavit of Michael Douglas Neal on 13 December 2004. A summary document of that report was prepared at the request of the solicitor for the applicant and the North Queensland Land Council to assist the Court in considering the agreement between the parties.

16                  The report states that the traditional entitlement to ownership of the Djabugay People’s ancestral lands and waters derives from the charter of Bulurru. Bulurru is regarded by the Djabugay People as the source of customary beliefs and practices, jural protocols and procedures, and traditional interests and rights.

17                  Dr Pannell goes on to say:

‘For Djabugay people, the physical features of the claim area not only affirm the veracity of Bulurru Law but they also stand as tangible proof of the continued  presence of Bulurru ancestral and totemic beings on and in Djabugay country (bulmba).

In summary, the physical landscape, and in particular the “Storyplaces” and “Storywaters” associated with Bulurru, serves as evidence of the inalienable connection that exists between the Djabugay claimants, ancestral Bulurru beings and the lands and waters which comprise the claim area.’

18                  Dr Pannell states in her report that the entitlement of the Djabugay claimants to possession of the claim area is recognised by senior members of neighbouring Aboriginal groups and senior members of non-neighbouring Aboriginal groups that have had association with the area through their residence at the Mona Mona mission.

19                  The anthropological reports of Norman Tindale in 1938, which were based on the information contained in reports of Meston (1889), McConnel (1931 and 1939-40), Davidson (1938) and Sharp (1938-9), identifies Djabugay territory. The traditional territory was said to include the Barron Gorge and the surrounding area. The description of the traditional territory given by Tindale is generally affirmed by R.M.W Dixon, a linguist with more than three decades of research experience in North Queensland.

20                  According to Dr Pannell’s report:

‘… there is no suggestion that the Djabugay people have relinquished their possession of the lands and waters included in the claim area or that this area has been subject to succession or an act of regency-ship by another Aboriginal group.’

21                  I am satisfied that the Djabugay People have a long-standing strong connection to the determination area under traditional laws acknowledged and traditional laws observed by them.

TERMS OF THE PROPOSED ORDER:

22                  The proposed order, which is consistent with the terms agreed by the parties, recognises that the Djabugay People, as the common law holders of the native title in the determination area, are entitled to the non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs.

23                  The proposed orders further recognise other interests in the determination area and the relationship of those interests with the native title interests.  The proposed order contains other provisions, required by the Act, which are self-explanatory and which it is unnecessary for me to set out here.

24                  It is a cause of great satisfaction when native title claims are settled through agreement rather than through litigation.  The number of native title determinations by this Court, which have been reached by consent, has dramatically increased in recent times.  This suggests that governments and other parties are increasingly aware of the benefits of negotiated settlements of native title claims, which otherwise have the potential to be lengthy, costly and divisive in the community.

25                  I am satisfied that the Court has power to make a determination in the terms proposed by the parties by agreement.  For the above reasons, I have concluded that it is appropriate to make the order sought by the parties to give effect to their agreement, and I now make that order.

Associate:

Dated:              17 December 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 6002 of 1998

JUDGE:                          SPENDER J

DATE OF ORDER:       17 DECEMBER 2004

WHERE MADE:           KURANDA

THE COURT NOTES THAT:

A.                 The Applicant has made a native title determination application (“the Application”) in relation to land and waters within the Barron Gorge National Park.

B.                 The Applicant, the State of Queensland and the Cairns City Council (“the Parties”) have reached agreement on the terms of a determination of native title to be made in relation to the land and waters covered by the Application.

C.                 The Parties have agreed to make application to the Federal Court of Australia for a determination that native title exists in relation to the land and waters covered by the Application.

D.                 The Parties acknowledge that the Djabugay People have a long-standing strong connection to the Determination Area under traditional laws acknowledged and traditional customs observed by them.

E.                  The Parties acknowledge that the effect of the Determination is that the Djabugay People, in accordance with the traditional laws acknowledged and traditional customs observed by them, have a right as against the whole world to be acknowledged as the native title holders in relation to the Determination Area.

F.                  The Parties acknowledge that the traditional laws acknowledged and traditional customs observed by the Djabugay People include the authority as between Aboriginal people to resolve disputes concerning the exercise of native title rights and interests in relation to the Determination Area.

BY CONSENT THE COURT ORDERS THAT:

1.                  Native title exists in relation to the land and waters within Lot 880 on Plan NPW 459 (known as the Barron Gorge National Park) excluding:

(a)                land subject to former Lot 1 on K40115 and former Lots, 12, 13 and 14 on Plan NR 7579 (being former Allotments 1, 2, 3 and 4 of Suburban Section 1, town of Kuranda);

(b)               land subject to former Lots 21 and 22 on Plan NR 7579 (being former Allotments 1 and 2 of Suburban Section 2, Town of Kuranda);

(c)                land subject to part of Term Lease 0/213315 (being Lot D on CP894159, Lot E in strata on CP891025, Lot F in strata on CP891027, Lot G in strata on CP894159 and Lot H in strata on CP894157);

(d)               airspace subject to part of Term Lease 0/213315 (being Lot E in strata on CP891025, Lot F in strata on CP891027, Lot G in strata on CP894159 and Lot H in strata on CP894157);

(e)                land subject to former Portion 164 Parish of Cairns on NR 1735 (being former Special Leases 5607, 10719, 13255 and 15109);

(f)                 land subject to former Portion 194 Parish of Cairns on NR 1735 (being former Special Lease 6182);

(g)                land subject to former Portion 383 Parish of Cairns on NR 3594 (being former Special Leases 17473 and 25575);

(h)                land subject to former Lengthmens Camp Reserve 85 on NR 7609, former Lengthmens Camp Reserve 169 on C153198 and former Lengthmens Camp Reserve 171 on C157302;

(i)                  land subject to part of former Special Lease 53088 (being Lot D in strata on CP866960, Lot E in strata on CP866963 and Lot F in strata on CP866965);

(j)                 airspace subject to part of former Special Lease 53088 (being Lot D in strata on CP866960, Lot E in strata on CP866963 and Lot F in strata on CP866965);

(k)               land subject to a public work, being the boardwalk that links the Barron Gorge train station with the Barron Gorge National Park car park off Barron Falls Road;

(l)                  land subject to a public work being part of Lot 111 on SP 129892, Lot 91 on SP 129891 and part of Lot 81 on SP 219890 being that part of the Cairns Kuranda railway corridor that traverses the Barron Gorge National Park;

(m)              land or waters on which any other public work is constructed, established or situated;

(n)                land 20 metres either side of the centre line of the penstock  between the intake structure at the Kuranda Weir on Lot 150 on NR 4991 and the underground machine hall on Lot 752 on NR 5189 (“the penstock corridor”) for the Barron Gorge Hydro-Electric Power Station; and

(o)                minerals and petroleum.

and as shown on Native Title Determination Plan AP9685 attached at Schedule 1 (“Determination Area”).

2.         The persons holding the communal and group rights comprising the native title are the Djabugay People, who are the common law holders of native title.  The Djabugay People are the persons who are descendants of the following apical Djabugay ancestors:

(a)                Toby Brim;

(b)               Annie Hunter, Minnie Hunter and Barney Hunter;

(c)                Tommy Hobson;

(d)               Nellie Hastie;

(e)                Jimmy Street, Kitty Street and Sambo Street;

(f)                 Jimmy Hobbler and Billy Hobbler;

(g)                Paddy Newbury, Willy Newbury and Tommy Newbury;

(h)                Waikanigai;

(i)                  George Kuranda Carroll;

(j)                 Jinnie Kuranda;

(k)               Maggie Bowen;

(l)                  Kitty Banning, Peter Banning and Tambo Banning;

(m)              Annie Courtney and Polly Courtney;

(n)                Dick Richardson;

(o)               Charlie Levers;

(p)               Joe Davidson and Annie Davidson;

(q)               Andrew Dabah; and

(r)                 Biddy Coleman.

3.                  Subject to paragraphs 4, 5, and 6 the nature and extent of the native title rights and interests in relation to the Determination Area are the non-exclusive rights of the Djabugay People to use and enjoy the land and waters being to:

(a)               be physically present on the Determination Area;

(b)               camp on the Determination Area;

(c)               hunt, fish and gather on, and take the natural resources of, the Determination Area for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial, and communal needs for non-commercial purposes;

(d)               maintain and protect by lawful means places within the Determination Area of importance to the Djabugay People;

(e)                perform social, cultural, religious, spiritual or ceremonial activities on the Determination Area and invite others to participate in those activities;

(f)                 make decisions about the use and enjoyment of the Determination Area by Aboriginal people who are governed by the traditional laws acknowledged and traditional customs observed by the Djabugay People.

4.             The native title rights and interests in relation to the Determination Area do not confer possession, occupation, use and enjoyment of the Determination Area on the Djabugay People to the exclusion of all others.

5.             Notwithstanding anything in paragraph 3, the native title rights and interests in relation to the Determination Area do not extend to a right to control access to or a right to control the use of the Determination Area.

6.             The native title rights and interests in relation to the Determination Area are:

(a)                subject to and exercisable in accordance with:

(i)                  the laws of the Commonwealth and the State of Queensland; and

(ii)         the traditional laws acknowledged and traditional customs observed by the Djabugay People; and

(b)        subject to the Nature Conservation Act 1992 (Qld) and the operation of s24JA of the Native Title Act 1993 (Cth)such that some existing native title rights might be extinguished in the future.

7.             The nature and extent of any other interests in relation to the Determination Area are:

(a)                the interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of the Barron Gorge National Park;

(b)               the interests of the State of Queensland and the Djabugay People under a deed of agreement dated 10 December 2004.

(c)                the interests of permittees or licensees pursuant to the Nature Conservation Act 1992 (Qld) andsubordinate legislation relating to the use and management of Barron Gorge National Park;

(d)               the interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld), the Wet Tropics Management Plan 1998 (Qld) and other subordinate legislation;

(e)                the interests of permittees under the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and Wet Tropics Management Plan 1998 (Qld);

(f)                 the rights, interests, powers and functions of the Cairns City Council as a local government in relation to land subject to Lot 880 on Plan NPW459 including rights under a Deed of Agreement pursuant to section 35 of the Nature Conservation Act 1992 between the Environmental Protection Agency and the Cairns City Council dated 2 October 2001 to construct, use, access and maintain approved facilities within the Determination Area;

(g)                the rights, interests, powers and functions of Mareeba Shire Council as a local government in relation to land subject to Lot 880 on Plan NPW459;

(h)                the interests of Queensland Electricity Transmission Corporation Limited, trading as Powerlink Queensland, (ACN 078 849 233) as an electricity entity exercising statutory functions, powers or rights and as owner and operator of electricity transmission facilities, and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area at any reasonable time in order to access, use, maintain, repair, replace, upgrade or otherwise deal with those facilities and infrastructure in accordance with the law;

(i)                  the rights and interests of Stanwell Corporation Limited as an entity generating electricity pursuant to the Electricity Act 1994 (Qld) and to divert and use the waters of the Barron River (including the construction and maintenance of associated infrastructure) for the purposes of generating electricity pursuant to the Water Act 2000 (Qld);

(j)                 the interests of Ergon Energy Corporation Limited as owner and operator of electricity distribution infrastructure and as an electricity entity under the Electricity Act 1994 (Qld);

(k)               the interests of the registered proprietors of the lots described below and any persons authorised by them to have access over the Determination Area to and from the areas described as:

(i)                  Lot 41 on Plan 7579;

(ii)                Lot 42 on Plan 7579;

(iii)               Lot 43 on Plan 7579;

(l)                  the interests of Skyrail Pty Ltd (ABN 82 010 880 458):

(i)under an approval dated 21 February 2000 issued pursuant to section 71 of the Nature Conservation Regulation 1994 (Qld);

(ii)                under Wet Tropics Permit No. 01030 commencing 18 August 2001 granted under the Wet Tropics Management Plan 1998 (Qld);

(m)              the interests of the chief executive or an accredited person under s 163 of the Transport Infrastructure Act 1994 to enter the Barron Gorge National Park for the purpose of carrying out railway works;

(n)                the interests of members of the public to access the Barron Gorge National Park for recreation purposes in accordance with the Nature Conservation Act 1992 (Qld); and

(o)               other interests that may be held by reason of the effect and operation of the laws of the Commonwealth and the State of Queensland.

8.             The relationship between the native title rights and interests described in  paragraph 3 and the other interests described in  paragraph 7 (“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 prevail over the native title rights and interests and any exercise of the native title rights and interests.

9.             If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth), then it has the meaning given to it in the Native Title Act 1993 (Cth).  In addition to the other words and expressions defined in this order:

(a)                “accredited person” has the meaning given to it in the Transport Infrastructure Act 1994 (Qld);

(b)               “approved facilities” means works in the form of a submerged water intake tower in Lake Placid, a pump station on the north bank of the Barron River, a vehicle bridge from Barron Gorge Road to the water intake tower, and water mains under the Barron Gorge Road for the extraction of water from Lake Placid;

(c)                “camp” does not include the right to permanently reside or build permanent structures or fixtures; 

(d)               “laws of the Commonwealth and the State of Queensland” means the common law and the laws of the Commonwealth of Australia and the State of Queensland, and includes regulations, statutory instruments, local planning instruments and local laws;

(e)                “local government” has the meaning given to it in the Local Government Act 1993 (Qld);

(f)                 “minerals” has the meaning given to it in the Mineral Resources Act 1989 (Qld);

(g)                “natural resources” means animal, plant, fish and bird life found on or in the Determination Area from time to time and all water, clays and soils found on or below the surface of the Determination Area;

(h)                “petroleum” has the meaning given to it in the Petroleum Act 1923 (Qld);

(i)                  “railway works” has the meaning given to it in the Transport Infrastructure Act 1994 (Qld);

(j)                 “water” means water as defined in the Water Act 2000 (Qld) and tidal water as defined in the Land Act 1994 (Qld); and

(k)               “waters”,to remove any doubt, has the same meaning given to it in the Native Title Act 1993 (Cth).

10.         A reference to:

(a)           land or waters on which a public work is constructed, established or situated; or

(b)           land subject to a public work;

includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

11.         The native title is not to be held in trust.

12.         The Djabugay Native Title Aboriginal Corporation is to:

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

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

13.         Until such time as there is a registered native title body corporate in relation to the Determination Area any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the Djabugay People may be served upon the Djabugay Native Title Aboriginal Corporation, and such service shall be deemed to be sufficient.

14.         Paragraphs 1-8 will take effect on the registration of the agreement referred to in paragraph 7(b) on the Register of Indigenous Land Use Agreements.

15.         In the event that the agreement referred to in paragraph 7(b) is not registered on the Register of Indigenous Land Use Agreements within eight (8) months of the date of this order or such later time as the Court may order, the matter is to be listed for further directions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Schedule 1

Native Title Determination Plan AP9685

(comprising the following six sheets)