FEDERAL COURT OF AUSTRALIA

Gangalidda and Garawa People v State of Queensland [2010] FCA 646

THE COURT NOTES THAT:

A.           The Applicant in these proceedings has made an application for a determination of native title in relation to an area of land and waters.

B.           The Court has been asked to make a determination for part of the area covered by the application (the ‘Determination Area’)

C.           Each party to the proceedings who holds an interest in relation to the Determination Area has reached agreement with the Applicant as to the terms of a determination of native title to be made in the Determination Area.

D.           The parties referred to in Recital C have agreed that the areas referred to in Schedule 5A are subject to previous exclusive possession acts of the kind referred to in section 23B of the Native Title Act 1993 (Cth) and in accordance with section 61A of the Native Title Act 1993 (Cth) cannot be claimed and are therefore not in the Determination Area.

E.            Other areas where the parties referred to in Recital C have agreed native title has been extinguished and are therefore excluded from the claim and accordingly from the Determination Area are set out in Schedule 6A. 

F.            The Court has been informed of the existence of an agreement between  the Applicants on behalf of the Gangalidda People and Andrew Daniels, Gabrielle Daniels and Samuel Daniels dated 15 June 2010 in relation to Escott Station.

Being satisfied that a determination in the terms sought by the parties  who hold an interest in relation to the Determination Area would be within the power of the Court, and it appearing to the Court appropriate to do so, and with the consent of those parties,

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1.                  Native title exists in relation to the area described in:

(a)    Schedule 1A - which describes that part of the Determination Area in which there are exclusive native title rights and interests; and

(b)   Schedule 2A - which describes that part of the Determination Area in which there are non-exclusive native title rights and interests;

and shown on the Determination Plan at Schedule 7A.

2.                  The parties to this determination have agreed that section 47A of the Native Title Act 1993 (Cth) applies to the areas described in Schedule 1.

3.                  Native title is held by the Gangalidda People ("the Native Title Holders") as described in Schedule 3A.

4.                  Subject to Orders 7, 8, 10 and 11, the nature and extent of the native title rights and interests in relation to that part of the Determination Area described and shown in Schedule 1A, other than in relation to the use and enjoyment of Water, is the right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

5.                  Subject to Orders 7, 8, 9, 10 and 11, the nature and extent of the native title rights and interests in relation to that part of the Determination Area described and shown in Schedule 2A, other than in relation to the use and enjoyment of Water, are non-exclusive rights:

(a)                to access, to be present on and to traverse the area;

(b)               to hunt, fish and gather on the area for personal, domestic, and non-commercial communal purposes;

(c)                to take and use Natural Resources from the area for personal, domestic, and non-commercial communal purposes;

(d)               to camp on the area but not to reside permanently or to erect permanent structures or fixtures;

(e)                to light fires on the area for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation;

(f)                 to conduct religious and spiritual activities and ceremonies on the area;

(g)                to be buried on, and bury Native Title Holders on the area

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

(i)                  to share or exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes.

6.                  Subject to Orders 7, 8, 9,10  and 11, the nature and extent of the native title rights and interests in relation to the use and enjoyment of Water within the Determination Area are non-exclusive rights:

(a)                to hunt and fish in and on and gather from the Water for personal, domestic, and non-commercial communal purposes; and

(b)               to take, use and enjoy the Water for personal, domestic and non-commercial communal purposes.

7.                  There are no native title rights or interests 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).

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

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

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

9.                  The native title rights and interests in relation to that part of the Determination Area described in Schedule 2A do not confer possession, occupation, use and enjoyment of the area on the Native Title Holders to the exclusion of all others.

10.              The nature and extent of other interests in relation to the Determination Area are the rights and interests described in Schedule 4A ("the Other Interests") that are current at the date of this determination.

11.              The relationship between the native title rights and interests and the Other Interests identified and described in Schedule 4A is that:

(a)                the Other Interests continue to have effect;

(b)               in areas where section 47A of the Native Title Act 1993 (Cth) applies, and prior extinguishment is disregarded in accordance with section 47A(2) of the Native Title Act 1993 (Cth), the non-extinguishment principle in section 238 of the Native Title Act 1993 (Cth)applies to any prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act 1993 (Cth); and

(c)                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, but do not extinguish them except in accordance with law.

12.              Pursuant to section 56 of the Native Title Act 1993 (Cth), the Court determines that native title is not held in trust.

13.              The Gangalidda and Garawa Native Title Aboriginal Corporation ICN 7365, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)                be the prescribed body corporate for the purposes of sections 56, 57(2) and 57(3) of the Native Title Act 1993 (Cth);

(b)               not hold the native title in trust;

(c)                act as agent for the Gangalidda People who are the common law holders of the native title rights and interests; and

(d)               perform the functions set out in the Native Title Act 1993 (Cth) and theNative Title (Prescribed Bodies Corporate) Regulations 1999(Cth).

Definitions and Interpretations

14.              The words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:

"Determination Area" means the land and waters within the area described in Schedule 1A and Schedule 2A and shown on the Determination Plan at Schedule 7A.

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

“Natural Resources" means

(a)    “animals” as defined in the Nature Conservation Act 1992 (Qld), but not including animals that are the private personal property of another;

(b)    “plants” as defined in the Nature Conservation Act 1992 (Qld) but not including crops grown on a Crown lease by a lessee; and

(c)     any clay, soil, sand, gravel, or rock on or below the surface of the Determination Area but does not include minerals as defined in the Minerals 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).

"Water" has the meaning that it has in the Water Act 2000 (Qld).

SCHEDULE 1A

Description of that part of the Determination Area where exclusive native title rights and interests are recognised.

All the land and waters that comprise:

(1)    Lot 4711 on PH1677 (‘Tarrant Pastoral Holding’);

(2)    Lot 2523 on PH 1675 (‘Brokera Pastoral Holding’);

(3)   Lot 4712 on PH1678 (‘Bundella Pastoral Holding’);

(4)   Part Lot 4601 on PH1676 (‘Part Troutbeck Pastoral Holding’); and

(5)   Lot 1 on PK3 (‘Former Old Doomadgee Reserve’),

but excluding the area identified in Schedule 5A.

SCHEDULE 2A

Description of that part of the Determination Area where non-exclusive native title rights and interests are recognised.

All the land and waters that comprise:

(1)   Part Lot118 on PC41 (part Escott Pastoral Holding),

but excluding the areas identified in Schedules 5A and 6A.

SCHEDULE 3A

Description of the Gangalidda People

The Gangalidda Peopleare all of the descendants of the following people:-

(1)   Greg Thompson, Sophie Thompson, Ernest Thompson, Walter Thompson, Jimmy, Dawudawu Jimmy (King), Grant, George Nark Mirrabaliyajari, Bob Scoles Gunyarbadijarri, Lirrgagujarri, Bob Weber Milgalajarri, Maggie (or Minnie),Kitty, Kitty Wulnanda, Kitty Lirrgagujarri, Dolly, Old Nim, Stumpy Paddy, Mickey Charles, Barny Guldangara, Limilimilda, Johnny Balawayinda, Daisy Lirrgawanjinda, Sandy, Gunalumbu, Ngarilgudu, Malurgudu, Myrna Malalairunanda, Didmanja, Sandy, Garruwala and Charly (Gundirrirri/Ngarrguyumbu/Gulawi)

who identify and are identified by others as belonging to the Gangalidda People according to traditional law and custom.

“Descendants” for the purposes of this description includes those individuals who have been adopted by the Gangalidda People.

SCHEDULE 4A

Other Interests

The nature and extent of other interests in relation to the Determination Area are those rights and interests current at the date of this determination which comprise the following:

1.                  The rights and interests of Andrew William Jesse Daniels, Samuel Donald James Daniels and Gabrielle Kennedy as lessees under PH 08/5488, over Lot 118 on PC41 (‘Escott Pastoral Holding’).

2.                  The rights and interests of Telstra Corporation Limited:

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

(b)         as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(c)          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:

(i)                  rights in relation to installed cabling, customer terminal sites and ancillary facilities; and

(ii)                the rights of its employees, agents or contractors to enter the Determination Area in the performance of their duties, to access its telecommunications facilities in, and in the vicinity of, the Determination Area.

3.                  The rights and interests of the grantee and others under the Deed of Grant in Trust dated 4 August 1994, being Title Reference No 18795020 comprising Lot 1 on PK3 ("the Gurridi Traditional Land Trust");

4.                  The rights and interests of the Gangalidda Aboriginal Corporation as an entity exercising statutory powers in respect of the Gurridi Traditional Land Trust, in particular, pursuant to the Community Services (Aborigines) Act 1984 (Qld) and the Aboriginal and Torres Strait Islander (Land Holding) Act 1985 (Qld).

5.                  The rights and interests of the Carpentaria Land Council Aboriginal Corporation as lessee of Lot 4711 on PH1677 (‘Tarrant Pastoral Holding’), Lot 2523 on PH 1675 (‘Brokera Pastoral Holding’), Lot 4712 on PH1678 (‘Bundella Pastoral Holding’), and Part Lot 4601 on PH1676 (‘Part Troutbeck Pastoral Holding’).

6.                  The rights and interests of Burke Shire Council and Doomadgee Shire Aboriginal Council under their local government jurisdiction and functions under the Local Government Act 1993 (Qld) and any other legislation, for that part of the Determination Area within the areas declared to be the Councils’ local government areas under the Local Government (Areas) Regulation 2008, including any rights and interests they or their employees or agents have to enter land to perform those functions.

7.                  The rights and interests of the holders of any leases, licences, permits or authorities granted under the Forestry Act 1959 (Qld) as may be current at the date of this determination.

8.                  Any other interests held by or under the Crown or by the force and operation of the Laws of the State and the Commonwealth as may be current at the date of this determination.

SCHEDULE 5A

Description of areas the subject of previous exclusive possession acts and thus wholly excluded from the determination area

The following areas are wholly excluded from the determination area on the grounds that they have been the subject of a previous exclusive possession act (defined in section 23B of the Native Title Act 1993 (Cth)) and in accordance with section 61A of the Native Title Act 1993 (Cth) cannot be claimed:

(1)               the land or waters on which any public work (defined in section 253 of the Native Title Act 1993 (Cth)) that is a previous exclusive possession act (defined in section 23B of the Native Title Act 1993 (Cth)) was, on or before 23 December 1996, constructed or established, including (in accordance with section 251D of the Native Title Act 1993 (Cth)) any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

SCHEDULE 6A

Other areas excluded

The following areas are wholly excluded from the Determination Area on the grounds that native title has been extinguished and cannot be claimed:-

(a)    Those areas of land or waters within the Crown Lease referred to in Item 1 of Schedule 2A on which any permanent improvement consisting of:

                              (i)            a house, shed or other outbuilding;

                            (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 or traps yards,

that at the date of the determination have 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 the Crown Lease.

SCHEDULE 7 A

The Determination Plan

 
 Note:          Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT NOTES THAT:

A.        The Applicant in these proceedings has made an application for a determination of native title in relation to an area of land and waters.

B.         The Court has been asked in relation to the application to make a determination for part of the area covered by the application (‘the Determination Area’). 

C.        Each party to the proceedings who holds an interest in relation to the Determination Area has reached agreement with the Applicant as to the terms of a determination of native title to be made in the Determination Area.

D.        The parties referred to in Recital C have agreed that the areas referred to in Schedule 4B are subject to previous exclusive possession acts of the kind referred to in section 23B of the Native Title Act 1993 (Cth) and in accordance with section 61A of the Native Title Act 1993 (Cth) cannot be claimed and are therefore not in the Determination Area.

E.         Other areas where the parties referred to in Recital C have agreed native title has been extinguished and are therefore excluded from the claim and accordingly from the Determination Area are set out in Schedule 5B. 

F.         The Court has been informed of the existence of the following agreements between  the Applicants on behalf of the Gangalidda People and the following lessees of Crown leases wholly or partly within the Determination Area:

(1)   Andrew Daniels, Gabrielle Daniels and Samuel Daniels dated 15 June 2010 in relation to Escott Station.

(2)   William Olive and Panoy Ptd Ltd dated 15 June 2010 in relation to Cliffdale Station.

Being satisfied that a determination in the terms sought by the parties who hold an interest in relation to the Determination Area would be within the power of the Court, and it appearing to the Court appropriate to do so, and with the consent of those parties,

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1.         Native title exists in relation to the area described in Schedule 1B and shown in the Determination Plan in Schedule 6B. 

2.         Native title is held by the Gangalidda People ("the Native Title Holders") as described in Schedule 2B.

3.         Subject to Orders 5, 6, 7 and 9, the nature and extent of the native title rights and interests in relation to that part of the Determination Area, other than in relation to the use and enjoyment of Water, are non-exclusive rights:

(a)                to access, to be present on and to traverse the area;

(b)               to hunt, fish and gather on the area for personal, domestic,  and non-commercial communal purposes;

(c)                to take and use Natural Resources from the area for personal, domestic,  and non-commercial communal purposes;

(d)               to camp on the area but not to reside permanently or to erect permanent structures or fixtures;

(e)                to light fires on the area for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation;

(f)                 to conduct religious and spiritual activities and ceremonies on the area;

(g)                to be buried on, and bury Native Title Holders on the area;

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

(i)                  to share or exchange Natural Resources from the area for personal, domestic,  and non-commercial communal purposes.

4.      Subject to Orders 5, 6, 7, 8 and 9, the nature and extent of the native title rights and interests in relation to the use and enjoyment of Water within the Determination Area, are non-exclusive rights:

(a)        to hunt and fish in and on and gather from the Water for personal, domestic,  and non-commercial communal purposes; and

(b)        to take, use and enjoy the Water for personal, domestic and non-commercial communal purposes.

5.         There are no native title rights or interests 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).

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

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

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

7.         The native title rights and interests in relation to the areas described in Schedule 1B do not confer possession, occupation, use and enjoyment of the area on the Native Title Holders to the exclusion of all others.

8.         The nature and extent of other interests in the Determination Area are the rights and interests described in Schedule 3B ("the Other Interests") that are current at the date of this determination.

9.         The relationship between the native title rights and interests and the Other Interests identified and described in Schedule 3B is that:

(a)        the Other Interests continued to have effect; 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, but do not extinguish them except in accordance with law.

10.       Pursuant to section 56 of the Native Title Act 1993 (Cth), the Court determines that native title is not held in trust. 

11.       The Gangalidda and Garawa Native Title Aboriginal Corporation ICN 7365,  incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)        be the prescribed body corporate for the purposes of sections 56, 57(2) and 57(3) of the Native Title Act 1993 (Cth); and

(b)        not hold the native title in trust;

(c)        act as agent for the Gangalidda People who are the common law holders of the native title rights and interests;

(d)        perform the functions set out in the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

Definitions and Interpretations

12.       The words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:

"Determination Area" means the land and waters within the area described Schedule 1 and shown in Schedule 6B.

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

“Natural Resources" means:

(a)          “animals” as defined in the Nature Conservation Act 1992 (Qld),  but not including animals that are the private personal property of another;

(b)         “plants” as defined in the Nature Conservation Act 1992 (Qld), but not including crops grown on a Crown lease by a lessee; and

(c)          any clay, soil, sand, gravel, or rock on or below the surface of the Determination Area but does not include minerals as defined in the Minerals 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).

"Water" has the meaning that it has in the Water Act 2000 (Qld)

SCHEDULE 1B - Determination Area

All lands and waters comprising the following:

1.      Lot 2 on WTH5 (‘Cliffdale Pastoral Holding’); and 

2.      Part Lot 118 on PC41 (‘Part Escott Pastoral Holding’) as shown on the attached Plan, in Schedule 6B,

but excluding the areas identified in Schedules 4B and 5B.

SCHEDULE 2B – Gangalidda People

Description of the Gangalidda People

The Gangalidda Peopleare all of the descendants of the following people:-

(2)   Greg Thompson,  Sophie Thompson, Ernest Thompson, Walter Thompson, Jimmy, Dawudawu Jimmy (King), Grant, George Nark Mirrabaliyajari, Bob Scoles Gunyarbadijarri, Lirrgagujarri, Bob Weber Milgalajarri, Maggie (or Minnie), Kitty, Kitty Wulnanda, Kitty Lirrgagujarri, Dolly, Old Nim, Stumpy Paddy, Mickey Charles, Barny Guldangara, Limilimilda, Johnny Balawayinda, Daisy Lirrgawanjinda, Sandy, Gunalumbu, Ngarilgudu, Malurgudu, Myrna Malalairunanda, Didmanja, Sandy, Garruwala and Charly (Gundirrirri/Ngarrguyumbu/Gulawi)

who identify and are identified by others as belonging to the Gangalidda People according to traditional law and custom.

“Descendants” for the purposes of this description includes those individuals who have been adopted by the Gangalidda People.

SCHEDULE 3B - Other Interests

The nature and extent of other interests in relation to the Determination Area are those rights and interests current at the date of this determination which comprise the following:

1.         The rights and interests of Andrew William Jesse Daniels, Samuel Donald James Daniels and Gabrielle Kennedy as lessees under PH 08/5488, over Lot 118 on PC41 (‘Escott Pastoral Holding’).

2.         The rights and interests of William Archibald Olive and McRae Investments Pty Ltd ACN 008 696 731 as lessees under PH 08/5479, over Lot 2 on WTH5 (‘Cliffdale Pastoral Holding’).

3.         The rights and interests of Telstra Corporation Limited:

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

(b)        as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(c)        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:

                                                            (i)      rights in relation to installed cabling, customer terminal sites and ancillary facilities; and

                                                          (ii)      the rights of its employees, agents or contractors to enter the Determination Area in the performance of their duties, to access its telecommunications facilities in, and in the vicinity of, the Determination Area.

4.         The rights and interests of Ergon Energy Corporation Limited:

a.       as the owner and operator of electricity generation, transmission and distribution facilities 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 in relation to any electricity supply agreement, customer connection contract, wayleave agreement or easement relating to the Determination Area existing or entered into before the date on which these orders are made;

                                                          (ii)      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 to inspect, maintain and manage any electricity generation, transmission and distribution facilities in the Determination Area.

5.         The rights and interests of Burke Shire Council under its local government jurisdiction and functions under the Local Government Act 1993 (Qld) and any other legislation, for that part of the Determination Area within the area declared to be Council’s local government area under the Local Government (Areas) Regulation 2008 (Qld), including any rights and interests it or its employees or agents have to enter land to perform those functions.

6.         The rights and interests of the holders of any leases, licences, permits or authorities granted under the Forestry Act 1959 (Qld) as may be current at the date of this determination.

7.         Any other interests held by or under the Crown or by the force and operation of the Laws of the State and the Commonwealth as may be current at the date of this determination.

SCHEDULE 4B

Description of areas the subject of previous exclusive possession acts and thus wholly excluded from the determination area

The following areas are wholly excluded from the determination area on the grounds that they have been the subject of a previous exclusive possession act (defined in section 23B of the Native Title Act 1993 (Cth)) and in accordance with section 61A of the Native Title Act 1993 (Cth) cannot be claimed:

(1)        The land or waters on which any public work (defined in section 253 of the Native Title Act 1993 (Cth)) that is a previous exclusive possession act (defined in section 23B of the Native Title Act 1993 (Cth)) was, on or before 23 December 1996, constructed or established, including (in accordance with section 251D of the Native Title Act 1993 (Cth)) any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

Schedule 5B – Other Areas Excluded

The following areas are wholly excluded from the determination area on the grounds that native title has been extinguished and cannot be claimed: -

(1)   Those areas of land or waters within the Crown Leases referred to in Schedule 1B on which any permanent improvement consisting of:

(i)                  a house, shed or other outbuilding;

(ii)                an airstrip;

(iii)               a constructed dam or any other constructed stock wateringpoint, bore, turkey nest, squatters’ tank or other water storage facility; or

(iv)              stock yards or trap yards,

that at the date of the determination have been constructed or established (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 the Crown Lease.

SCHEDULE 6 - Determination Plan

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The Federal Court of Australia has convened in Burketown to consider making orders under s 87A of the Native Title Act 1993 (Cth) (the Act) recognising the native title rights and interests of the Gangalidda Peoples over land and waters in the Southern Gulf of Carpentaria.  The orders sought are in respect of two separate Native Title Determination Applications brought by the Gangalidda and Garawa People, and the parties have, by agreement, asked the Court to make orders recognising the Gangalidda Peoples’ native title in respect of areas within the applications referred to as the Prioritised Areas. 

2                     The question of the existence of native title in respect of the remainder of the areas and the Garawa Peoples’ native title rights and interests is required to be resolved at a later time. 

3                     In QUD84/04, the determination area is comprised of Troutbeck, Bundella, Brokera and Tarrant Pastoral Holdings and the Old Doomadgee Reserve where exclusive native title rights and interests can be recognised.  The pastoral holdings are currently held by the Carpentaria Land Council Aboriginal Corporation for the benefit of Gangalidda People. The determination area also includes part of Escott Pastoral Holding where non exclusive native title rights and interests can be recognised.  The determination area in QUD66/05 includes another part of the Escott Pastoral Holding and Cliffdale Pastoral Holding where non exclusive native title rights and interests can be recognised.

4                     On 25 May 2004, the first of two native title determination applications was filed by Murray Walden Jnr, Clara Foster, Terrance Taylor, Jack Green, Jack Hogan and Mr Hilton (the Applicant), on their own behalf and on behalf of the Gangalidda and Garawa Peoples (QUD84/04).  On 8 March 2005, the Applicant on their own behalf and on behalf of the Gangalidda and Garawa Peoples filed the second application (QUD66/05).  The Gangalidda and Garawa people are described in identical terms in Schedule 3A of the orders in QUD84/04 and Schedule 2B of the orders in QUD66/05. 

5                     The applications filed seek a determination of Native Title, pursuant to s 225 of the Act, over the Prioritised Areas of land and waters which lie within the lower Gulf region of Queensland based around Burketown.

6                     The applications have been notified by the Registrar of the National Native Title Tribunal, and the notification period closed on 14 March and 14 September 2005 respectively.

7                     The agreements reached between the parties with the assistance of the National Native Title Tribunal and filed in the Court under s 87A(2) of the Act by the Applicant’s legal representatives on 9 March 2010 seek recognition of  exclusive and non-exclusive rights in the Determination Areas.

8                     In each matter the traditional native title rights and interests of the Gangalidda People that I will recognise today are over the Prioritised Area described in Schedule 1A and 2A of the Proposed Determination made today in respect to QUD84/04 and Schedule 1B of the orders made today in QUD66/05 and illustrated in the determination plans in Schedules 7B and 6B of the Proposed Determination respectively. 

9                     The areas the subject of the Proposed Determinations relates only to areas in which the Gangalidda People have an interest.

10                  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

11                  Pursuant to s 13 of the Act, applications for the determination of Native Title may be made to the Federal Court of Australia 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.  The present applications are made under s 61 of the Act within Part 3 and there is no approved determination in relation to land and waters within the Determination Area.

12                  Part 4, Division 1C of the Act provides that some or all of the parties involved in a Native Title proceeding may negotiate an agreed outcome for that application or part of that application. The Court is empowered to make orders by consent in native title matters where agreement is reached between parties on the terms of the orders.  Section 87A of the Act provides, among other things, that if at any stage of the proceedings after the close of notification, agreement is reached on a proposed determination of native title in relation to an area included in the area covered by the application, the Court may make an order in, or consistent with, the proposed determination of native title without holding a hearing if the Court is satisfied that the proposed determination for that area is within power and that it would be appropriate to make the order.  (see Glenette Greenwool and Ors on behalf of the Kowanyama People v State of Queensland & Ors [2009] FCA 1192 at [14]).

13                  Section 87A provides:

Application

             (1)  This section applies if:

                     (a)  there is a proceeding in relation to an application for a determination of native title; and

                     (b)  at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and

                     (c)  all of the following persons are parties to the agreement:

                              (i)  the applicant;

                             (ii)  each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

                            (iv)  each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

                             (v)  each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

                            (vi)  each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

                           (vii)  the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made;

                           (viii)  if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

                            (ix)  any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

                     (d)  the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

Proposed determination may be filed with the Court

             (2)  A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

Certain parties to the proceeding to be given notice

             (3)  The Registrar of the Federal Court must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

Orders may be made

             (4)  The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

                     (a)  an order in, or consistent with, the terms of the proposed determination would be within its power; and

                     (b)  it would be appropriate to do so.

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

             (5)  Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

                     (a)  the order would be within its power; and

                     (b)  it would be appropriate to do so.

             (6)  The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

             (7)  The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to.

Objections

             (8)  In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings.

Agreed statement of facts

             (9)  If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

           (10)  Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Registrar of the Court must give notice to the other parties to the proceeding that the statement has been filed with the Court.

           (11)  In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

                     (a)  the applicant; and

                     (b)  the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

           (12)  In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10).

14                  I am satisfied that this section applies, and therefore turn to consider the proposed orders before me.

15                  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.  Those matters will be discussed later in these reasons.

16                  The exercise of power by the Court is also subject to the Court being satisfied that it is appropriate for the Court to make the orders sought (see Lovett (on behalf of the Gunditjmara People) v Victoria [2007] FCA 474 at [5]), and, as with any order of the Court, being satisfied that the proposed orders are unambiguous and certain as to the rights declared (see Munn (on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109, at[32]).

17                  The Court may need to be satisfied whether native title had been extinguished and, if so, whether the extinguishment should be disregarded pursuant to provisions such as ss 47, 47A or 47B.  I accept that those matters have been considered by the Applicant and relevant respondents, and I am satisfied that the relevant investigations have been carried out by the parties to establish the elements of s 47A, including the current tenure, any prior extinguishment and occupation by the Applicant in relation to those matters.  Accordingly, I do not require evidence to be put in support of them: see Munn at [31]. This is particularly relevant to the orders I will make in QUD84/04.

consideration of the agreement and draft determination

18                  On 9 December 2008 at Mornington Island, I made orders by consent that the Lardil, Yangkaal, Gangalidda and Kaiadilt People held native title over all lands and waters to the High Water Mark on the islands bounded by the determination area in the Wellesley Islands Sea Claim as determined by the Federal Court on 23 February 2004.  The Gangalidda People’s native title rights and interests in Allen, Little Allen, Horseshoe, Bayley and Pains Islands were recognised in that determination: Lardil, Yangkaal, Gangalidda and Kaiadilt People v State of Queensland & Ors [2008] FCA 1855 (Lardil, Yangkaal, Gangalidda and Kaiadilt People Land Claim).  In considering that application, I had the benefit of a significant amount of evidence from witnesses and experts.  Much of this evidence was collected for the purposes of the Wellesley Sea Claim, before Cooper J: The Lardil Peoples v State of Queensland [2004] FCA 298 (Lardil). The evidence relied on in Lardil and the Lardil, Yangkaal, Gangalidda and Kaiadilt People Land Claim determinations as it relates to the Gangalidda People is relevant to this claim. 

19                  In particular, I have had the benefit of reading the anthropological and genealogical reports of Professor David Trigger, the archaeological report of Dr Richard Robins and the historical report of Dr Thom Blake.  I have also had the opportunity to consider the extensive affidavit material and attachments annexed to the Form 1 application in each of the claims.  In the Land Claim, I relied on the fact that this material was all subject to judicial consideration by Cooper J, and almost all of it was the subject of cross-examination in those proceedings. Given that the Gangalidda claim group in these proceedings is the same as before Cooper J, and having regard to the power in section 86 of the Act to take into account evidence in other proceedings, it is appropriate that the Court also has regard to that evidence in this matter in analysing the history of the claim groups and their connection with the land. (see Lardil, Yangkaal, Gangalidda and Kaiadilt People Land Claim at [12]).

20                  In my earlier reasons in the Land Claim at [13], I said that Justice Cooper had set out, at [20]-[53] of his Honour’s judgment in Lardil, a comprehensive history of European contact with the northern part of Australia, the Gulf of Carpentaria and, more specifically, the land and waters the subject of this application for Native Title and the parties asserting Native Title to those areas.  In the present matters I have read the submissions of the Applicant filed in support of the Proposed Determinations in these proceedings.  The submissions at paragraphs 5 – 10 give further emphasis to the connection of the applicant group with the land and water the subject of these applications.  I have been greatly assisted by the excellent and extensive body of material that has been filed in Lardil and the Lardil, Yangkaal, Gangalidda and Kaiadilt People Land Claim proceedings in forming my view that the Gangalidda People are a society who have maintained their connection to the determination area since first European contact.

21                  I am grateful for the Applicant’s submissions filed in these proceedings as they have directed me to those parts of the various reports and affidavit material that establish the ethnography of the claim group, since first contact, and of their continuing connection to the Determination Area.

22                  I cite the following historical observations taken from paragraph 6 of the Applicant’s submissions filed in these proceedings, that give an understanding of the society that existed at first contact and the changes to that society as a consequence of European contact:

As early as November 1802, just four years after the establishment of the colony of New South Wales, Matthew Flinders observed that the islands which he named the Wellesley Islands were inhabited by Indigenous people.  In November 1802 Flinders stayed over a month in the vicinity of the Wellesley Islands, to undertake repairs to his vessel, the HMS Investigator, and to replenish supplies of water and wood.  He observed “natives” on Bentinck Island, Sweers Island, Allen Island, Horseshoe Island and Mornington Island.  He observed spiral shells used as water containers, and midden material comprising shells and turtle bones on Horseshoe Island.  He observed sleeping hollows on Bentinck and Sweers Island, and wells, midden material and human remains on Sweers Island.

Later explorers confirmed the presence of Indigenous people on the islands and adjoining coastal mainland.  In July 1841 John Lort Stokes in the HMS Beagle anchored in Investigator Road.  Stokes reported “natives” on Sweers Island and on Allen Island.  He travelled 40 miles upstream of the Albert River and continued on foot.  He was so impressed with the soil and vegetation of the area that he called it ‘the plains of promise’.  He observed ‘native skulls’ and long bones on Sweers Island, and a well at Bayley Point.

In 1844-1845 Ludwig Leichhardt’s expedition travelled along the southern part of the Gulf.  They crossed the Albert River, travelled along the Nicholson River, and travelled to Port Essington.  They found camps, tracks, and fish traps of Aboriginal people.

In 1865 pastoralist JG Macdonald established a settlement on the Albert River twelve miles inland from the Gulf.  It was named Burketown.  Severe fever inflicted the residents, and the fever victims were evacuated to Sweers Island.  The majority of the population of Burketown was relocated in 1866 to Sweers Island in 1866 where a township called Carnarvon was established.

In 1880 Captain Pennefather in the HMS Pearl landed on Sweers Island and Allen Island and examined the fish traps, and in 1881 surveyed the waters between Point Parker and Allen Island.  In 1880 he recorded that he ‘saw a large mob of natives, who did not allow us to approach them.’

On 6 January 1866 the pastoral district of Burke was proclaimed.  A number of pastoral operations commenced:  Lawn Hill in 1875, Gregory Downs in 1876, Lorraine in 1878, Punjaub in 1880, Augustus Downs in 1880, Westmoreland circa 1880s.  In 1888 a school was opened in Burketown, and boiling down works were established in 1892.  Aboriginal people from the region were attracted to the town.  Camps were established on the fringes of the town.  By the late 1890s the population of the camps had grown to more than 200.

In 1899 Inspector Lamond closed down the camps.  He provided ‘rations for each tribe and sent them off to their old hunting grounds’.  In November 1899 J. Ordish, officer in charge at Turn Off Lagoon, reported that 130 of the ‘Point Parker tribe’ were camping at Moonlight Creek – ‘they are improving now they are away from Burketown....now they are settling down to their native food.’  The coastal country between the Northern Territory border and Point Parker was considered unsuitable for cattle.  In 1896 Police Inspector Urquhart reported that this country was ‘wholly unoccupied except by the blacks’.  Within several years fringe camps were re-established at Burketown and Normanton.  By 1906 Burketown camp had 220 residents.  Occasionally, rations and blankets were issued by the local Protector.

23                  At paragraph 13 in my reasons in the Lardil, Yangkaal, Gangalidda and Kaiadilt People Land Claim, I referred to submissions specifically in respect to Gangalidda people where it was said that:

It should also be noted that during the first half of the 19^th century Gangalidda people, though coming to live in camps on pastoral stations and at Burketown (as well as at the Dumaji Mission established in 1933), continued to move around the coastal country, at least into the 1920s and 1930s. Such occupation of the Gangalidda coastal lands entailed considerable movement among people and this included some travel via traditional watercraft between the mainland and the North Wellesley Islands. Waters relatively near to the beach were routinely used for obtaining foods and other resources.

24                  This historical overview records that from the time of first European contact, the Determination Area was inhabited by Aboriginal people, and by inference from the date of sovereignty, and thereafter.

25                  The Gangalidda people have maintained their connection to the claimed land and waters through their continuing enjoyment and use of them.  That connection supports the rights and interests claimed in this application.

26                  The Gangalidda People continue to rely on marine resources for their day to day existence.  Valerie Douglas, a Gangalidda woman, in evidence in Lardil, said that in relation to living at Old Dumaji, that: “Where we go to the coast, the sea is my K-mart, Woolworths and fast food store.  That is how we live.  That is my everyday meal out there.” The connection material demonstrates that there also continues to be extensive use of resources obtained from the land.  In Lardil, Cooper J noted that the Gangalidda People had significant contact with inland areas because of the availability of resources there:

Dr Trigger was of the view that the Gangalidda people had greater contact with the rear Country than the other constituent groups because of the existence of other peoples with adjoining territorial lands and because of the existence of food sources other than seafoods.  Notwithstanding this, the food resources of the sea were important to the Gangalidda peoples and there was evidence of long standing fishtraps and the use of rafts to access the area of Francis and Robert Islands as well as Allen, Little Allen and Horseshoe Islands for hunting and fishing purposes.

27                  June Gilbert, in her affidavit filed in the Lardil proceedings and attached to both of these applications, talks of regular expeditions from Doomadgee to gather bush tucker such as lily roots, swamp turtle, file snake, goanna, blue tongue lizard and sugar bag.  She also notes that these practices are being taught to children, including in school.  She also explained taking blue tongue lizards.

There are two types of blue tongue.  One has a diamond shaped head.  It is called dandulwul.  The other has black and white spots.  Its name is narradulgulda.  Sometimes we would get the tongue.  It would be cooked and cut up and given to small children who could not yet talk so that they would be able to speak.

28                  That the Gangalidda People continues to hunt and gather was not doubted by Cooper J in Lardil.  His Honour’s findings and the evidence I have considered supports the right to hunt fish and gather, which I will recognise in the orders I make today.

29                  Bush resources are used for medicinal and cultural purposes.  The affidavit of Jagama Yanner appearing at Attachment F1 to the Application in QUD66/05 describes some of these uses along with the ongoing exercise of hunting rights.

30                  The majority of Gangalidda People who gave evidence in Lardil were born on their country and a number of Gangalidda People, such as Bill Westmoreland, Alan Ned, Reggie Robertson, Michael Booth, Clarence Walden and Richard Brookdale gave evidence in Lardil of having lived and worked on a number of the pastoral holdings in the application area.  In doing so they have maintained their physical presence on the application area and have been able to continue to exercise and observe the native title rights and interests claimed.

31                  Other Gangalidda People have lived at Burketown, Moonlight Creek, Escott Station, Old Dumaji and Doomadgee Reserve, and Horse Island, all places located on their traditional country.  While for some years travel to the coast was difficult, the development of infrastructure such as roads and outstation facilities, and the leasing of pastoral properties, has greatly assisted access to coastal areas.

32                  At paragraph 9 of the Applicant’s submissions, the Gangalidda People’s occupation of the claim area is explored.  The Determination Area includes Old Dumaji, also known as Old Doomadgee Reserve, which is held in trust for the benefit of Gangalidda People and their ancestors and descendants.  This grant was made in fee simple on 21 September 1994.  At any one time 20-30 persons live at the coastal outstation for nine months of the year, although most saltwater country is inaccessible through the wet season.

33                  This outstation, and other smaller ones, are used by those Gangalidda People who wish to live and work out on country, and their invited guests.  Main food sources are fresh fish and mud crab, goanna, plums and berries.  Fishing is a primary activity.

34                  Old Dumaji has been a centre for coastal residence since the 1970s.  Even prior to this period, visitation occurred by Gangalidda People visiting their country from Mornington Island and through work on cattle properties.  I am satisfied that the Gangalidda People occupy Old Dumaji Reserve for the purposes of s 47A of the Act and as such they will hold exclusive native title over the area.

35                  However, it is equally clear that use and residence of traditional country is not limited to the location of outstations.  Many people camp out on their traditional country regardless of the existence of outstations.

36                  Gangalidda People have also continued to occupy and use pastoral properties in the Determination Area.  The following properties are currently held by the Carpentaria Land Council Aboriginal Corporation (CLCAC) for the benefit of Gangalidda People.  Evidence as to the ownership of the properties by CLCAC is attached to the affidavit of Tony Grieves filed on 9 March 2010.  I am satisfied that the Gangalidda People are in occupation of the pastoral holdings identified in Schedule 1A of the orders in QUD84/04 for the purposes of s 47A of the Act.   Section 47A will also apply to these areas.

37                  The Applicant’s submissions address the application of s 47A of the Act to QUD84/04.  Paragraph 11(b) of the Proposed Determination acknowledges that the non-extinguishment principle set out in s 47A(3)(b) of the Act applies to the Old Dumaji Reserve and the relevant pastoral holdings.  I have considered the material before the Court and the submissions and I am satisfied that the evidence indicates that the Gangalidda People make use of the land in a manner that is consistent with the reserved purpose.  I am satisfied that those properties identified in Schedule 1A of the proposed determination in QUD84/04 were occupied by one or more members of the native title claim group at the commencement of these proceedings in accordance with s 47A(1)(c) of the Act.    I am also satisfied that at the time that the application was made, as now, the determination area was encompassed by s 47A(1)(b)(ii) as it is held and reserved expressly for the benefit of the Gangalidda People and in the case of the Old Dumaji Reserve it is held by the Gurridi Traditional Land Trust as “Trustee for the benefit of Aboriginal people and their ancestors and descendants and under the Aboriginal Land Act 1991”.  A copy of the Current Title Search for the Old Dunmaji Reserve is attached to the affidavit of Jason Behrendt filed on 9 March 2010.  Accordingly, I find that the requirements of s 47A are met.  (See Passi on behalf of the Meriam People [2001] FCA 697 at [29]).

38                  I note that the State of Queensland, in its written submissions in support of the Proposed Determination, indicates that departmental officers with historical and anthropological knowledge have considered the extensive ethnographic material relied on by the Applicant and confirm that the State is satisfied that the Applicant has met the requirements of s 223 (1) of the Act.

39                  The Applicant, at paragraph 6.16 of the submissions, says that the Gangalidda genealogy sets out a number of clear descent groups that comprise the Gangalidda People.  The oldest known ancestors are identified in Schedules 3A and 2B respectively to the Proposed Determinations to describe the composition of the Gangalidda People according to traditional law and custom.

40                  The Applicant’s submissions go on to say in paragraph 6 that it is notable that the oldest known Gangalidda ancestors are persons who were alive before first contact with non-Aboriginal people in the 1870s and therefore comprises a record of the composition of the pre-contact society.  It is important to remember the findings of Cooper J in Lardil.  His Honour, after consideration of the Gangalidda genealogies, found at [67] that:

I am satisfied that there was a communal group at the time of sovereignty which was an ethnographically and culturally separate group of indigenous peoples (the original Gangalidda peoples) who inhabited the coastal land stretching along the mainland coast of the Gulf of Carpentaria from Massacre Inlet to the eastern bank of the Leichhardt River, where it enters the Gulf of Carpentaria, which is claimed as the traditional territory of the Gangalidda peoples.  I am further satisfied that since that time, there has continued to exist an ethnographically and culturally separate group of indigenous peoples who were, and are, the direct descendants of the original Gangalidda peoples. 

41                  In addition to the above, the Applicant’s submissions in the Lardil, Yangkaal, Gangalidda and Kaiadilt People Land Claim argued that “the most significant evidence of the occupation of the Applicant group of the proposed determination Area prior to sovereignty is the evidence of the present day claimants themselves.”

42                  The claim group in both of these proceedings is comprised of Garawa and Gangalidda People.  I have considered the evidence in the material filed in the Court and I have had regard to the findings made by Justice Cooper in Lardil at [68] that those members of the claim group who identify themselves as the Gangalidda peoples being the people named in the genealogies prepared by Dr Trigger, are the direct descendents of the original inhabitants of the territory described in these proceedings as the traditional territory of the Gangalidda peoples.  I am satisfied that the members of the claim group who identify as Gangalidda in these proceedings are descended from Indigenous people who were in occupation of the Determination Area, at sovereignty.

43                  It is necessary for the Applicant not only to demonstrate a continued physical connection with the land, but also to demonstrate a connection based on spiritual elements, or traditional customs and beliefs (see s 223(1) of the Act).  In the submissions for both claims, the Applicant says that the Gangalidda People have maintained customs and beliefs that form an integral part of their laws and customs.

44                  Reference is made to the Dreaming, Travelling Narratives, Initiation Narratives, Dreaming and Totemic Affiliation, beliefs and understandings of the Bujimala (the Rainbow Serpent), Spirits of Deceased People and Story Places and Sites of Significance.  Particular initiation practices are maintained.  Professor Trigger refers to the important narrative song cycles, known as Kujika that tell of the travels and activities of ancestral beings on land and sea.   

45                  I have had regard to the material filed in these proceedings, as well as the material judicially considered by Cooper J.  I am satisfied that the Gangalidda people have maintained a spiritual connection with the land and waters the subject of the Proposed Determinations, and that the body of their traditional laws and customs support the rights and interests that are recognised in the Proposed Determination.

46                  The Proposed Determination in QUD84/04 provides for recognition of exclusive native title over the land and waters described in Schedule 1A.  I am satisfied that the material relied upon by the Applicant and the application of s 47A of the Act allows me to recognise the right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

47                  The non-exclusive rights set out in the Proposed Determination are:

·                    to access, to be present on and to traverse the area;

·                    to hunt, fish and gather on the area for personal, domestic, and non-commercial communal purposes;

·                    to take and use Natural Resources from the area for personal, domestic, and non-commercial communal purposes;

·                    to camp on the area but not to reside permanently or to erect permanent structures or fixtures;

·                    to light fires on the area for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation;

·                    to conduct religious and spiritual activities and ceremonies on the area;

·                    to be buried on, and bury Native Title Holders on the area;

·                    to maintain places and areas of importance or significance to the Native Title Holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm; and

·                    to share or exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes.

48                  I am satisfied that the findings in Lardil and the connection material and the submissions filed in these proceedings support the rights and interests that I will recognise in the determinations.  I note that the similar rights have been recognised in contested proceedings or have been the subject of previous consent determinations.

49                  It is clear, in my opinion, that the Gangalidda members of claim group has established and maintained a system of laws and customs over Gangalidda country – the land and waters the subject of the Determination Areas – sufficient to satisfy the requirements of the Act. 

50                  It is only the Gangalidda People’s rights that are recognised over their own country.  The rights and interests of the Gawara People will be dealt with in the balance of the claims.

51                  Finally, it is necessary to examine the terms of the Proposed Determination, and to consider whether those terms satisfy the requirements of s 225 of the Act.

52                  Section 94A of the Act requires that a determination of Native Title set out details of the matters required by 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.

53                  I have previously referred to the proposed Determination Area which is set out in Schedules 1A and 2A to the Proposed Determination, along with plans of the area at Schedule 7A in QUD84/04 and Schedules 1B to the Proposed Determination, along with plans of the area at Schedule 6B in QUD66/05.

54                  In relation to s 225(a), the persons holding the common or group rights comprising the native title is set out in [3] and Schedule 3A to the Proposed Determination in QUD84/04 and in [2] and Schedule 2B to the Proposed Determination in QUD66/05. The submissions of the State of Queensland state that a detailed examination of the connection material identified in the affidavit of Peter Cameron filed on 8 April 2010, has been undertaken by a senior historian, a senior anthropologist and officers of Crown Law.   The State considers that the description in Schedule 3 of QUD84/04 and in Schedule 2 of QUD 66/05 is sufficient to identify who holds native title.

55                  In relation to s 225(b), the nature and extent of the native title rights and interests in relation to the Determination Area is addressed in [4]-[11] of the Proposed Determination in QUD84/04 and in [3]-[9] in QUD66/05. The State, in its submissions in QUD84/04, states “These rights and interests are recognised by the common law of Australia (ss 223(1)(c) and 223(2) of the NTA) and have not been extinguished (or, if wholly extinguished, s 47A of the NTA applies to disregard any prior extinguishment)”.  The State, in its submissions in QUD 66/05, states that “These rights and interests are recognised by the common law of Australia (ss 223(1)(c) and 223(2) of the NTA) and have not been extinguished.”

56                  In relation to s 225(c), the nature and extent of any other interests in relation to the determination area are identified in [10] and Schedule 4A to the Proposed Determination in QUD84/04 and in [8] and Schedule 3B to the Proposed Determination in QUD66/05. 

57                  In relation to s 225(d), the relationship between the rights and interests in s 225(b) and (c), taking into account the effect of the Act, is addressed in [11] of QUD84/04 and [9] of QUD66/05 of the Proposed Determinations.

58                  In relation to s 225(e), [4] identifies that in relation to that part of the Determination Area described in Schedule 1A to the Proposed Determination in QUD84/04, other than in relation to water (as defined in [14]), the native title confers possession, occupation, use and enjoyment of that part of the Determination Area to the exclusion of all others. Orders 5, 6 and 9 identify that in relation to Water and the parts of the Determination Area described in Schedule 2A, the native title does not confer possession, occupation, use and enjoyment to these parts of the Determination Area to the exclusion of all others. 

59                  In QUD66/05, orders 3, 4 and 7 identify the nature and extent of all native title rights and interests to be recognised are non-exclusive rights.

60                  The State concludes that it is “…open to the Court to exercise its discretion under s 87A(4) of the Act to make an order in the terms of the Proposed Determination attached to the agreement of the parties made pursuant to s 87A of the NTA and filed on 9 April 2010”. 

61                  Having regard to the evidence, the terms of the Proposed Determination and the submissions of the parties, I am satisfied that all of the matters in section 225 of the Act are properly contained and determined in the Proposed Determination.

62                  Section 55 of the Act specifies that:

If:

(a)        the Federal Court proposes to make an approved determination of native title; and

(b)        the determination is that native title exists at the time of making the determination;

the Federal Court must, at the same time as it makes the determination, make the determinations in sections 56 (which deals with holding the native title on trust) or 57 (which deals with non‑trust functions of prescribed bodies corporate).

63                  The Applicant submits that it has, by [13] of the Proposed Determination in QUD84/04 and by [11] in QUD66/05, satisfied the requirements of ss 56, 57(2) and 57(3). The Applicant has nominated the Gangalidda and Garawa Native Title Aboriginal Corporation (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) as the prescribed body corporate for the purposes of the relevant sections, and [13] in QUD84/04 and [11] in QUD66/05 reflects the agreement of the parties on that matter.  The Certificate of Registration of the Gangalidda and Garawa Native Title Aboriginal Corporation is annexed to the affidavit of Rachel Amini-Yanner, filed on 11 May 2010.  I am satisfied that the Proposed Determinations meet the requirements of ss 56 and 57 of the Act.

conclusion

64                  Bennett J in Brown on behalf of the Ngarla People v Western Australia [2007] FCA 1025 at [23] referred to North J’s observations in Ward v Western Australia [2006] FCA 1848 at [6]–[9] where he said that the Act is designed to encourage parties to take responsibility for the resolution of native title proceedings, without the need for litigation.  The Court’s power must be exercised flexibly and with this purpose in mind.  I am satisfied that the Court has power to make the determinations in the terms proposed by the parties by agreement, and that these orders can appropriately be made to give effect to the parties’ agreement without a full hearing of the Applicant’s claim.  Such orders determine under the laws of Australia that Native Title exists in the Determination Areas according to the traditional laws and customs of the Gangalidda People. 

65                  John Lort Stokes, in his voyage of discovery in the Beagle in 1841, climbed up the banks of the Albert River and described what he saw before him as the “plains of promise”.  I hope that the orders that I make today will bring the promise of a brighter future to the Gangalidda People who have had an ongoing relationship with their country since ancient times.  It gives me great pleasure to be able to make these orders, and in particular to be able to make them by consent following the successful negotiation and coming to agreement of all of the parties.

66                  For the above reasons, I have concluded that it is proper to make the orders sought by the parties to give effect to their agreement as it appears in the Proposed Determinations, and I now make those orders.

Associate:

Dated:         23 June 2010