FEDERAL COURT OF AUSTRALIA
Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801
In matter QUD 208 of 1997 | |
Solicitor for the First Respondent: | Crown Law |
Solicitor for the Second and Third Respondents: | MacDonnells Law |
Solicitor for the Fourth Respondent: | The Fourth Respondent appeared in person |
In matter QUD 6022 of 1998 | |
Solicitor for the Applicant: | North Queensland Land Council Aboriginal Corporation |
Solicitor for the First Respondent: | Crown Law |
Solicitor for the Second and Third Respondents: | MacDonnells Law |
In matter QUD 6116 of 1998 | |
Solicitor for the Applicant: | North Queensland Land Council Aboriginal Corporation |
Solicitor for the First Respondent: | Crown Law |
Solicitor for the Second Respondent: | MacDonnells Law |
Solicitor for the Third Respondent: | p&e Law |
In matter of QUD 6036 of 2001 | |
Solicitor for the Applicant: | North Queensland Land Council Aboriginal Corporation |
Solicitor for the First Respondent: | Crown Law |
Solicitor for the Second Respondent: | MacDonnells Law |
Solicitor for the Third Respondent: | Third Respondent appeared in person |
Solicitor for the Fourth Respondent: | Ms J Siddins, Senior Adviser of Australian Wildlife Conservancy |
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: | DIMBULAH |
Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (“the determination”).
2. Each party to the proceeding is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1, and shown on the plan attached to Schedule 1 (the “Determination Area”).
2. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.
3. The native title is held by the Djungan People described in Schedule 2 (“the Native Title Holders”).
4. Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:
(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others;
(b) in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the Natural Resources of the Water of the area; and
(iii) take and use the Water of the area,
for personal, domestic and non-commercial communal purposes.
5. Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) to occupy, use and camp on the area, but not to reside permanently, and for that purpose to construct non-permanent structures;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(h) teach on the area the physical and spiritual attributes of the area;
(i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(j) be buried and bury native title holders within the area.
6. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 3.
7. The native title rights and interests referred to in paragraphs 4(b) and 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
8. There are no native title rights and 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).
9. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
10. The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests described in Schedule 3 (the “other interests”) is that:
(a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
11. In this determination, unless the contrary intention appears:
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the Determination Area; and
(b) any clays, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders, but does not include:
(c) animals that are the private personal property of another;
(d) crops that are the private personal property of another;
(e) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
“Water” means:
(a) water which flows, whether permanently or intermittently, within a river, creek or stream;
(b) any natural collection of water, whether permanent or intermittent; and
(c) water from an underground water source.
Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT FURTHER DETERMINES THAT:
11. The native title is not held in trust; and
12. The Nguddaboolgan Native Title Aboriginal Corporation, ICN 7727, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
SCHEDULE 1 – DETERMINATION AREA
A Description of Determination Area
The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, excluding any area of land and waters on which any public work as defined in s 253 of the Native Title Act 1993 (Cth) (the “NTA”) is constructed, established or situated, and to which s 23B(7) and s 23C(2) of the NTA and/or s 23B(7) of the NTA and s 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with s 251D of the NTA.
Part 1 Exclusive Areas
The land and waters within the areas described as Lot 6 on AP20094, 7 on AP20094, 9 on AP20094, 10 on AP20094, 11 on AP20094, 12 on AP20094, 14 on AP20094, 15 on AP20094, 16 on AP20094, 18 on AP20094, 19 on AP20094, and 20 on AP 20094 covering:
(1) Lot 3 on AP3429;
(2) That part of Lot 4 on AP3429 not subject to former Mining Homestead Leases 527 on MPH14334, 540 on MPH14334, 546 on MPH14334 and 555 on MPH14334;
(3) Lot 138* on HG119;
(4) Lot 4* on HG203;
(5) Lot 8 on HG26;
(6) Lot 97* on HG751;
(7) Lot 210 on M6494;
(8) Lots 3* on USL21471and 16* on USL21471;
(9) Lots 14* on USL21489 and 23* on USL21489;
(10) Lot 94* on USL21503;
(11) That part of Lot 1** on USL21511 not subject to former Mining Homestead Leases 874 on MPH1911 and 896 on MPH1911, and Mining Homestead Lease 979 on MPH1882;
(12) Lot 3 on USL21511;
(13) Lot 67* on USL21511;
(14) That part of Lot 76 on USL21511 not subject to Mineral Exploration Permit EPM8884;
(15) That part of Lot 7** on USL21513 not subject to former Mining Homestead Leases 517 on MPH14334, 579 on MPH14334, 776 on MPH14334, and Mining Homestead Leases 910 on MPH14290 and 472 on MPH14290;
(16) That part of Lot 36 on USL21513 not subject to former Mining Homestead Lease 482 on MPH14334; and
(17) That part of Lot 42 on USL21513 not subject to former Mining Homestead Leases 475 on MPH14334, 476 on MPH14334, 477 on MPH14334, 497 on MPH14334, 915 on MPH14334 and 916 on MPH14334.
* denotes areas to which ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applies.
** denotes part areas to which ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applies
Part 2 Non-Exclusive Areas
The land and waters within the area described as Lots 5 on AP20094, 8 on AP20094, 13 on AP20094 and 17 on AP20094 covering:
(1) That part of Lot 3 on AP15659 (formerly Lot 3 on HG19) not subject to former Mining Homestead Leases 825 on MPH14290, 828 on MPH14290 and 908 on MPH14290;
(2) Lot 7 on HG25;
(3) Lot 6 on HG30;
(4) Lot 197 on HG693;
(5) Lots 10 on M6493, 11 on M6493, 14 on M6493, 15 on M6493, 16 on M6493 and 17 on M6493;
(6) Lots 6 on M6494, 201 on M6494, 202 on M6494, 212 on M6494, 213 on M6494, 214 on M6494, 303 on M6494, 310 on M6494, 311 on M6494, 312 on M6494, 404 on M6494, 405 on M6494, 406 on M6494, 408 on M6494, 410 on M6494, 411 on M6494, 412 on M6494, 413 on M6494, 414 on M6494, 415 on M6494, 416 on M6494, 501 on M6494, 508 on M6494, 509 on M6494, 510 on M6494, 511 on M6494, and 801 on M6494;
(7) Lots 2 on M6496, 4 on M6496 and 5 on M6496;
(8) Lot 3 on M6497;
(9) Lot 7 on M6498;
(10) Lot 21 on M6499;
(11) Lots 10 on MPH14335, 11 on MPH14335, 12 on MPH14335, 13 on MPH14335, 14 on MPH14335, 15 on MPH14335, 16 on MPH14335, 17 on MPH14335, 18 on MPH14335, 19 on MPH14335, 20 on MPH14335, 22 on MPH14335, 32 on MPH14335, 34 on MPH14335, 35 on MPH14335, 37 on MPH14335, 38 on MPH14335 and 1093 on MPH14335;
(12) Lot 1 on MPH1931;
(13) Lot 1106 on MPH1935;
(14) Lots 1309 on MPH25175, 1312 on MPH25175 and 1336 on MPH25175;
(15) Lots 1 on MPH3396, 2 on MPH3396, 4 on MPH3396, 5 on MPH3396 and 6 on MPH3396;
(16) That part of Lot 599 on OL65 not subject to former Mining Homestead Perpetual Leases - 1060 on MPH14335, 1096 on MPH14335, and 1046A on MPH14335, and Mining Homestead Perpetual Leases 1039 on MPH25170 and 1046 on MPH25170 (being former Lots 4 on MPH25170 and 5 on MPH25170);
(17) That part of Lot 76 on USL21511 covered by Exploration Permit EPM8884 and not subject to former Mining Homestead Leases 330 on MPH1856, 563 on MPH1855 and 485 on MPH1855, 829 on MPH14290, and 567 on MPH14334;
(18) Lot 77 on USL21511;
(19) That part of Lot 3 on USL21513 not subject to former Mining Homestead Leases 474 on MPH14334, 527 on MPH14334, 540 on MPH14334, and 555 on MPH14334, and Mining Homestead Leases 430 on MPH25166, 509 on MPH25166 and 545 on MPH25166;
(20) Lot 1 on AP9474 (formerly Lot 31 on USL8546); and
(21) Lot 3 on AP9474 (formerly Lot 3 on USL8559).
B. Map of Determination Area
SCHEDULE 2 – NATIVE TITLE HOLDERS
The native title holders are those Aboriginal People:
(a) who are Djungan People on the basis of descent from one of the following persons:
(i) Tommy and Topsy Wason;
(ii) John Wason;
(iii) Dinah [Richards];
(iv) Jessie Wason;
(v) Jack O’Neil and his spouse, Flora Richards;
(vi) Peter Ray Burns;
(vii) Jimmy Kingsburra and Lizzie Kingsburra (including the descendants of Joe Sands);
(viii) Charles James Archer (Senior);
(ix) Lucy [Burns];
(x) Pluto [Brumby];
(xi) Mollie and her spouse, Bert Gordon; and
(xii) Mick Richards.
SCHEDULE 3 – OTHER INTERESTS IN THE DETERMINATION AREA
The nature and extent of the other interests in relation to the Determination Area are the following, as they exist as at the date of the Determination:
1. The rights and interests of the parties under the following agreements:
(a) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Tablelands Regional Council dated 9 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/Tablelands Regional Council Agreement) and that Agreement, once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate; and
(b) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Ergon Energy Corporation Limited dated 4 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/Ergon Energy Corporation Limited Agreement) and that Agreement, once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate.
2. The rights and interests of the Tablelands Regional Council under:
(a) the Local Government Act 2009 (Qld) for that part of the Determination Area within its Local Government Area, as defined in that Act, including:
(i) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and
(ii) to enter and exercise rights within the Determination Area.
3. The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):
(a) as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); and
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld); including:
(i) rights in relation to any agreement 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
(iii) to inspect, maintain and manage any Works in the Determination Area.
4. The rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.
5. The rights and interests of the holder of Occupation licence 9/599 being title reference 17662153 over the following:
(a) Lots 10 on M6493, 11 on M6493, 14 on M6493, 15 on M6493, 16 on M6493 and 17 on M6493;
(b) Lots 201 on M6494, 202 on M6494, 212 on M6494, 213 on M6494, 214 on M6494, 303 on M6494, 310 on M6494, 311 on M6494, 312 on M6494, 404 on M6494, 405 on M6494, 406 on M6494, 408 on M6494, 410 on M6494, 411 on M6494, 412 on M6494, 413 on M6494, 414 on M6494, 415 on M6494, 416 on M6494, 501 on M6494, 508 on M6494, 509 on M6494, 510 on M6494 and 511 on M6494;
(c) Lots 2 on M6496, 4 on M6496 and 5 on M6496;
(d) Lots 10 on MPH14335, 11 on MPH14335, 12 on MPH14335, 13 on MPH14335, 14 on MPH14335, 15 on MPH14335, 16 on MPH14335, 17 on MPH14335, 18 on MPH14335, 19 on MPH14335, 20 on MPH14335, 22 on MPH14335, 32 on MPH14335, 34 on MPH14335, 35 on MPH14335, 37 on MPH14335, 38 on MPH14335 and 1093 on MPH14335;
(e) Lot 1 on MPH1931;
(f) Lots 1106 on MPH1935;
(g) Lots 1309 on MPH25175, 1312 on MPH25175 and 1336 on MPH25175;
(h) Lots 1 on MPH3396, 2 on MPH3396 and 4 on MPH3396, 5 on MPH3396, and 6 on MPH3396;
(i) That part of Lot 599 on OL65 not subject to former Mining Homestead Perpetual Leases - 1060 on MPH14335, 1096 on MPH14335, and 1046A on MPH14335, and Mining Homestead Perpetual Leases 1039 on MPH25170 and 1046 on MPH25170 (being former Lots 4 on MPH25170 and 5 on MPH25170);
(j) Lot 1 on AP9474 (formerly Lot 31 on USL8546); and
(k) Lot 3 on AP9474 (formerly Lot 3 on USL8559).
6. The rights and interests held by the State of Queensland in respect of Lot 197 on Plan HG693 (being the Wolfram Police Reserve) and Lot 6 on Plan M6494 (being the Mount Mulligan Police Reserve).
7. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld) and any relevant regulations or subordinate legislation made under that Act.
8. The rights and interests of holders of any permits, claims, licenses or leases under the Mineral Resources Act 1989 (Qld) and any subordinate legislation, declarations or management plans made under that Act.
9. The rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Forestry Act 1959 (Qld) and any subordinate legislation made under that Act.
10. The rights and interests of the holders of any licences, permits or allocations, under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.
11. Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6022 of 1998 |
BETWEEN: | JAMES ARCHER, GEORGE ALEXANDER ARCHER, LOLA BROWN, SAUL BURNS SNR, ERNIE BURNS, ANDREW GARRETT, KENNETH JACKSON, ALFRED NEAL SNR, PERCY NEAL, WALTER RICHARDS SNR, MAXWELL UNDERWOOD AND VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #2 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent |
JUDGE: | LOGAN J |
DATE OF ORDER: | 2 AUGUST 2012 |
WHERE MADE: | DIMBULAH |
Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (“the determination”).
2. Each party to the proceeding is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1, and shown on the plan attached to Schedule 1 (the “Determination Area”).
2. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.
3. The native title is held by the Djungan People described in Schedule 2 (“the Native Title Holders”).
4. Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:
(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others;
(b) in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the Natural Resources of the Water of the area; and
(iii) take and use the Water of the area,
for personal, domestic and non-commercial communal purposes.
5. Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) to occupy, use and camp on the area, but not to reside permanently, and for that purpose to construct non-permanent structures;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(h) teach on the area the physical and spiritual attributes of the area;
(i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(j) be buried and bury native title holders within the area.
6. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 3.
7. The native title rights and interests referred to in paragraphs 4(b) and 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
8. There are no native title rights and 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).
9. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
10. The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests described in Schedule 3 (the “other interests”) is that:
(a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
11. In this determination, unless the contrary intention appears:
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the Determination Area; and
(b) any clays, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the Native Title Holders, but does not include:
(c) animals that are the private personal property of another;
(d) crops that are the private personal property of another;
(e) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
“Water” means:
(a) water which flows, whether permanently or intermittently, within a river, creek or stream;
(b) any natural collection of water, whether permanent or intermittent; and
(c) water from an underground water source.
Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT FURTHER DETERMINES THAT:
12. The native title is not held in trust; and
13. The Nguddaboolgan Native Title Aboriginal Corporation, ICN 7727, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, excluding any area of land and waters on which any public work as defined in s 253 of the Native Title Act 1993 (Cth) (the “NTA”) is constructed, established or situated, and to which s 23B(7) and s 23C(2) of the NTA and/or s 23B(7) of the NTA and s 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with s 251D of the NTA.
Part 1 Exclusive Areas
The land and waters within the areas described as Lots 22 on AP20095, 26 on AP20095, 27 on AP20095, 28 on AP20095, 29 on AP20095, 30 on AP20095, 31 on AP20095, 32 on AP20095 and 33 on AP20095 covering:
(1) Lots 20 on K2351, 209 on K2351, 212 on K2351, 213 on K2351, 214 on K2351, 215 on K2351, 216 on K2351, 217 on K2351, 218 on K2351, 302 on K2351, 310 on K2351, 311 on K2351, 312 on K2351, 313 on K2351, 314 on K2351, 315 on K2351 316 on K2351, 317 on K2351, 318 on K2351, 411 on K2351, 412 on K2351, 413 on K2351, 414 on K2351, 415 on K2351, 416 on K2351, 417 on K2351, 501 on K2351, 502 on K2351, 507 on K2351, 508 on K2351, 509 on K2351, 510 on K2351, 511 on K2351, 512 on K2351, 606 on K2351, 607 on K2351, 608 on K2351, 609 on K2351, 610 on K2351, 701 on K2351, 702 on K2351, 703 on K2351, 704 on K2351, 705 on K2351, 706 on K2351, 707 on K2351, 708 on K2351, 709 on K2351, 710 on K2351, 711 on K2351, 712 on K2351, 713 on K2351, 714 on K2341, 715 on K2351, 716 on K2351, 717 on K2351, 718 on K2351, 719 on K2351, and 720 on K2351;
(2) Lots 1 on T2131, 2* on T2131, 3* on T2131, 4* on T2131, 5 on T2131, 6 on T2131,7 on T2131, 10* on T2131, 21 on T2131, 22 on T2131, 424* on T2131, 425* on T2131, 426* on T2131, 427* on T2131, 701 on T2131, 702 on T2131, 703 on T2131, 704 on T2131, 705 on T2131, 706 on T2131, 707 on T2131, 708 on T2131, 709 on T2131, 710 on T2131, 711 on T2131, 801 on T2131, 802 on T2131, 803 on T2131, 804 on T2131, 805 on T2131, 806 on T2131, 901 on T2131, 902 on T2131, 907 on T2131, 908 on T2131, 910 on T2131, 911 on T2131, 912 on T2131, 917 on T2131, 918 on T2131, 919 on T2131 and 920 on T2131; and
(3) Lots 7 on T2132 and 8 on T2132.
* denotes areas to which ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applies
Part 2 Non-Exclusive Areas
The land and waters within the area described as Lots 21 on AP20095, 23 on AP20095, 24 on AP20095 and 25 on AP20095 covering:
(1) That part of Lot 17 on C15330 not subject to former Mining Homestead Leases 313 on MP25065, 329 on MPH1848, 344 on MP24907 and 345 on MP24907;
(2) Lot 15 on C8104;
(3) Lot 12 on C882;
(4) Lot 20 on HG725;
(5) Lots 11 on K2352, 13 on K2352 and 19 on K2352;
(6) Lot 14 on N25173;
(7) Lots 903 on T2131, 904 on T2131 , 905 on T2131, 906 on T2131, 913 on T2131, 914 on T2131, 915 on T2131 and 916 on T2131; and
(8) Lots 3 on T2132 and 6 on T2132.
B. Map of Determination Area
SCHEDULE 2 – NATIVE TITLE HOLDERS
The native title holders are those Aboriginal People:
(a) who are Djungan People on the basis of descent from one of the following persons:
1. Tommy and Topsy Wason;
2. John Wason;
3. Dinah [Richards];
4. Jessie Wason;
5. Jack O’Neil and his spouse, Flora Richards;
6. Peter Ray Burns;
7. Jimmy Kingsburra and Lizzie Kingsburra (including the descendants of Joe Sands);
8. Charles James Archer (Senior);
9. Lucy [Burns];
10. Pluto [Brumby];
11. Mollie and her spouse, Bert Gordon; and
12. Mick Richards.
SCHEDULE 3 – OTHER INTERESTS IN THE DETERMINATION AREA
The nature and extent of the other interests in relation to the Determination Area are the following, as they exist as at the date of the Determination:
1. The rights and interests of the parties under the following agreements:
(a) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Tablelands Regional Council dated 9 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/Tablelands Regional Council Agreement) and that Agreement, once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate; and
(b) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Ergon Energy Corporation Limited dated 4 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/Ergon Energy Corporation Limited Agreement) and that Agreement, once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate.
2. The rights and interests of the Tablelands Regional Council under:
(a) the Local Government Act 2009 (Qld) for that part of the Determination Area within its Local Government Area, as defined in that Act, including:
(i) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and
(ii) to enter and exercise rights within the Determination Area.
3. The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):
(a) as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); and
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld); including:
(i) rights in relation to any agreement 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
(iii) to inspect, maintain and manage any Works in the Determination Area.
4. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld) and any relevant regulations or subordinate legislation made under that Act.
5. The rights and interests of holders of any permits, claims, licenses or leases under the Mineral Resources Act 1989 (Qld) and any subordinate legislation, declarations or management plans made under that Act.
6. The rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Forestry Act 1959 (Qld) and any subordinate legislation made under that Act.
7. The rights and interests of the holders of any licences, permits or allocations, under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.
8. Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6116 of 1998 |
BETWEEN: | JAMES ARCHER, GEORGE ALEXANDER ARCHER, LOLA BROWN, SAUL BURNS SNR, ERNIE BURNS, ANDREW GARRETT, KENNETH JACKSON, ALFRED NEAL SNR, PERCY NEAL, WALTER RICHARDS SNR, MAXWELL UNDERWOOD AND VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #3 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent KUKU DJUNGAN ABORIGINAL CORPORATION Third Respondent |
JUDGE: | LOGAN J |
DATE OF ORDER: | 2 AUGUST 2012 |
WHERE MADE: | DIMBULAH |
Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (“the determination”).
2. Each party to the proceeding is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1, and shown on the plan attached to Schedule 1 (the “Determination Area”).
2. Native title exists in relation to the Determination Area.
3. The native title is held by the Djungan People described in Schedule 2 (“the Native Title Holders”).
4. Subject to paragraphs 5, 6 and 7 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 1 are:
(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others;
(b) in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the Natural Resources of the Water of the area; and
(iii) take and use the Water of the area,
for personal, domestic and non-commercial communal purposes.
5. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 3.
6. The native title rights and interests referred to in paragraph 4(b) do not confer possession, occupation, use or enjoyment to the exclusion of all others.
7. There are no native title rights and 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 nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
9. The relationship between the native title rights and interests and the other interests described in Schedule 3 (the “other interests”) is that:
(a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
10. In this determination, unless the contrary intention appears:
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the Determination Area; and
(b) any clays, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the Native Title Holders, but does not include:
(a) animals that are the private personal property of another;
(b) crops that are the private personal property of another;
(c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
“Water” means:
(a) water which flows, whether permanently or intermittently, within a river, creek or stream;
(b) any natural collection of water, whether permanent or intermittent; and
(c) water from an underground water source.
Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT FURTHER DETERMINES THAT:
11. The native title is not held in trust; and
12. The Nguddaboolgan Native Title Aboriginal Corporation, ICN 7727, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described in Part 1 below, excluding any area of land and waters on which any public work as defined in s 253 of the Native Title Act 1993 (Cth) (the “NTA”) is constructed, established or situated, and to which s 23B(7) and s 23C(2) of the NTA and/or s 23B(7) of the NTA and s 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with s 251D of the NTA.
Part 1 Exclusive Areas
The land and waters within the area described as Lot 4 on AP20091 covering:
(1) Lot 5112 on HG843453
B. Map of Determination Area
SCHEDULE 2 – NATIVE TITLE HOLDERS
The native title holders are those Aboriginal People:
(a) who are Djungan People on the basis of descent from one of the following persons:
1. Tommy and Topsy Wason;
2. John Wason;
3. Dinah [Richards];
4. Jessie Wason;
5. Jack O’Neil and his spouse, Flora Richards;
6. Peter Ray Burns;
7. Jimmy Kingsburra and Lizzie Kingsburra (including the descendants of Joe Sands);
8. Charles James Archer (Senior);
9. Lucy [Burns];
10. Pluto [Brumby];
11. Mollie and her spouse, Bert Gordon; and
12. Mick Richards.
SCHEDULE 3 – OTHER INTERESTS IN THE DETERMINATION AREA
The nature and extent of the other interests in relation to the Determination Area are the following, as they exist as at the date of the Determination:
1. The rights and interests of the parties under the following agreements:
(a) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Tablelands Regional Council dated 9 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/Tablelands Regional Council Agreement) and that Agreement, once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate; and
(b) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and Kuku Djungan Aboriginal Corporation ICN 1213 , which was authorised by the native title claim group on 29 May 2012, and executed by the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and Kuku Djungan Aboriginal Corporation ICN 1213 on 5 July 2012, (the Kondaparinga Station Body Corporate Agreement), and that Agreement once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate.
2. The rights and interests of the Tablelands Regional Council under:
(a) the Local Government Act 2009 (Qld) for that part of the Determination Area within its Local Government Area, as defined in that Act, including:
(i) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and
(ii) to enter and exercise rights within the Determination Area.
3. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld) and any relevant regulations or subordinate legislation made under that Act.
4. The rights and interests of holders of any permits, claims, licenses or leases under the Mineral Resources Act 1989 (Qld) and any subordinate legislation, declarations or management plans made under that Act.
5. The rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Forestry Act 1959 (Qld) and any subordinate legislation made under that Act.
6. The rights and interests of the holders of any licences, permits or allocations, under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.
7. Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6036 of 2001 |
BETWEEN: | DESMOND GRAINER, AMELIA MCMURTRIE, WILLIAM MOSSMAN, LEE SMALLWOOD, HANK WASON, KENNETH WASON and VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #4 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ROBERT JOHN WALLACE Third Respondent AUSTRALIAN WILDLIFE CONSERVANCY Fourth Respondent |
JUDGE: | LOGAN J |
DATE OF ORDER: | 2 AUGUST 2012 |
WHERE MADE: | DIMBULAH |
Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (“the determination”).
2. Each party to the proceeding is to bear its own costs.
BY CONSENT THE COURT DETERMINES THAT:
1. The determination area is the land and waters described in Schedule 1, and shown on the plan attached to Schedule 1 (the “Determination Area”).
2. Native title exists in relation to the Determination Area.
3. The native title is held by the Djungan People described in Schedule 2 (“the Native Title Holders”).
4. Subject to paragraphs 5, 6 and 7 below the nature and extent of the native title rights and interests in relation to the land and waters are the non-exclusive rights to:
(a) access, be present on, move about on and travel over the area;
(b) to occupy, use and camp on the area, but not to reside permanently, and for that purpose to construct non-permanent structures;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(h) teach on the area the physical and spiritual attributes of the area;
(i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(j) be buried and bury native title holders within the area.
5. The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 3.
6. The native title rights and interests referred to in paragraph 4 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
7. There are no native title rights and 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 nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
9. The relationship between the native title rights and interests described in paragraph 4 and the other interests described in Schedule 3 (the “other interests”) is that:
(a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
10. Native title rights and interests do not exist in respect of those areas identified in Schedule 4.
11. In this determination, unless the contrary intention appears:
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Natural Resources” means:
(a) any animal, plant, fish and bird life found on or in the Determination Area; and
(b) any clays, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the Native Title Holders, but does not include:
(c) animals that are the private personal property of another;
(d) crops that are the private personal property of another;
(e) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
“Water” means:
(a) water which flows, whether permanently or intermittently, within a river, creek or stream;
(b) any natural collection of water, whether permanent or intermittent; and
(c) water from an underground water source.
Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
THE COURT FURTHER DETERMINES THAT:
12. The native title is not held in trust; and
13. The Nguddaboolgan Native Title Aboriginal Corporation, ICN 7727, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described in Part 1 below, excluding:
(a) any area of land and waters on which any public work as defined in s 253 of the Native Title Act 1993 (Cth) (the “NTA”) is constructed, established or situated, and to which s 23B(7) and s 23C(2) of the NTA and/or s 23B(7) of the NTA and s 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with s 251D of the NTA; and.
(b) any areas identified in Schedule 4.
Part 1 Non-Exclusive Areas
The land and waters within the areas described as Lots 1 on AP20090, 2 on AP20090 and 3 on AP20090 covering:
(1) That part of Lot 13 on SP127335 subject to Exploration Permit Application 13357;
(2) That part of Lot 4513 on PH1727 subject to Exploration Permit Application 13357; and
(3) That part of Lot 456 on OL52 subject to Exploration Permit Application 13357.
B. Map of Determination Area
SCHEDULE 2 – NATIVE TITLE HOLDERS
The native title holders are those Aboriginal People:
(a) who are Djungan People on the basis of descent from one of the following persons:
1. Tommy and Topsy Wason;
2. John Wason;
3. Dinah [Richards];
4. Jessie Wason;
5. Jack O’Neil and his spouse, Flora Richards;
6. Peter Ray Burns;
7. Jimmy Kingsburra and Lizzie Kingsburra (including the descendants of Joe Sands);
8. Charles James Archer (Senior);
9. Lucy [Burns];
10. Pluto [Brumby];
11. Mollie and her spouse, Bert Gordon; and
12. Mick Richards.
SCHEDULE 3 – OTHER INTERESTS IN THE DETERMINATION AREA
The nature and extent of the other interests in relation to the Determination Area are the following, as they exist as at the date of the Determination:
1 The rights and interests of the parties under the following agreements:
(a) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Tablelands Regional Council dated 9 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/Tablelands Regional Council Agreement) and that Agreement, once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate; and
(b) the Agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and Australian Wildlife Conservancy ACN 068 572 556 dated 3 July 2012, which was authorised by the native title claim group on 29 May 2012 (the Djungan People/AWC Agreement), and that Agreement once it becomes registered as a body corporate ILUA following execution of the Agreement by the Registered Native Title Body Corporate.
2. The rights and interests of the Tablelands Regional Council under:
(a) the Local Government Act 2009 (Qld) for that part of the Determination Area within its Local Government Area, as defined in that Act, including:
(i) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and
(ii) to enter and exercise rights within the Determination Area.
3. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld) and any relevant regulations or subordinate legislation made under that Act.
4. The rights and interests of holders of any permits, claims, licenses or leases under the Mineral Resources Act 1989 (Qld) and any subordinate legislation, declarations or management plans made under that Act.
5. The rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Forestry Act 1959 (Qld) and any subordinate legislation made under that Act.
6. The rights and interests of the holders of any licences, permits or allocations, under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.
7. Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination.
SCHEDULE 4 – AREAS EXCLUDED FROM THE DETERMINATION AREA
For the avoidance of doubt, the areas described below are excluded from the Determination Area:
Any land or waters within the boundaries of the Brooklyn pastoral lease (Lot 13 on SP127335) on which any permanent improvement consisting of:
(a) sheds and other buildings;
(b) constructed stock watering points; and
(c) stockyards and trap yards.
That has at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under the pastoral lease.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 208 of 1997 |
BETWEEN: | JAMES ARCHER, GEORGE ALEXANDER ARCHER, LOLA BROWN, SAUL BURNS SNR, ERNIE BURNS, ANDREW GARRETT, KENNETH JACKSON, ALFRED NEAL SNR, PERCY NEAL, WALTER RICHARDS SNR, MAXWELL UNDERWOOD, VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #1 Applicant
|
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent OWEN RANKINE Fourth Respondent
|
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6022 of 1998 |
BETWEEN: | JAMES ARCHER, GEORGE ALEXANDER ARCHER, LOLA BROWN, SAUL BURNS SNR, ERNIE BURNS, ANDREW GARRETT, KENNETH JACKSON, ALFRED NEAL SNR, PERCY NEAL, WALTER RICHARDS SNR, MAXWELL UNDERWOOD AND VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #2 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6116 of 1998 |
BETWEEN: | JAMES ARCHER, GEORGE ALEXANDER ARCHER, LOLA BROWN, SAUL BURNS SNR, ERNIE BURNS, ANDREW GARRETT, KENNETH JACKSON, ALFRED NEAL SNR, PERCY NEAL, WALTER RICHARDS SNR, MAXWELL UNDERWOOD AND VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #3 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent KUKU DJUNGAN ABORIGINAL CORPORATION Third Respondent |
IN THE FEDERAL COURT OF AUSTRALIA | |
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 6036 of 2001 |
BETWEEN: | DESMOND GRAINER, AMELIA MCMURTRIE, WILLIAM MOSSMAN, LEE SMALLWOOD, HANK WASON, KENNETH WASON and VINCENT WASON ON BEHALF OF THE DJUNGAN PEOPLE #4 Applicant |
AND: | STATE OF QUEENSLAND First Respondent TABLELANDS REGIONAL COUNCIL Second Respondent ROBERT JOHN WALLACE Third Respondent AUSTRALIAN WILDLIFE CONSERVANCY Fourth Respondent |
JUDGE: | LOGAN J |
DATE: | 2 AUGUST 2012 |
PLACE: | DIMBULAH |
REASONS FOR JUDGMENT
1 The applications that are the subject of these proceedings are for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determinations.
2 The applications are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Djungan People. The applicant seek a determination of native title on behalf of the Djungan People over various lands in and proximate to the townships of Dimbulah, Kingsborough, Thornborough and Mount Mulligan.
3 One of Parliament’s objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in the amendments to s 87 of the Act by the Native Title Amendment Act 2009 (Cth).
4 These claims have been long in their gestation. I observed yesterday in the Gugu Badhun People #2 Determination that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in that case how Parliament’s objective of consensual resolutions had been met. The statements which I then made are just as applicable to this case and it is desirable that they are repeated. The achievement of Parliament’s objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court’s registrars.
5 Not only the applicant but the native title claim group of the Djungan People they represent and the other parties have good reason singularly to be grateful to Mr Martin Dore, Principal Legal Officer, North Queensland Land Council and his staff for the way in which these claims have now been brought to finality. In like fashion, the Crown Solicitor for Queensland and his staff are to be commended. While it falls to each respondent to a native title claim to take its own legal advice, there is no denying that the State plays a leadership role so far as respondents are concerned in the assessment of the merits of a claim. Such cases demand acute attention to model litigant obligations. The making of this determination following an agreement is also proof that those who have separately advised local government and public utilities have conspicuously discharged their professional obligations.
6 I very much doubt that the consensual resolution of this claim, with all of the considerable savings in public money that entails, would have been possible without the commendable discharge of their duties to the Court and their clients by the parties’ legal advisers.
7 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determinations.
8 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act and s 87 of the Act. It is an agreement reached between the parties for the purposes of that section that is the occasion for the hearing today. I am in complete agreement not only with the substance of his Honour’s observations in King but also with the manner in which he expressed them. They are exactly apposite in the present case. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution. Because it governs the content of a native title determination, I shall also make reference to s 94A of the Act which, in turn, directs attention to the matters set out in s 225.
9 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement.
10 The applicant has filed the following documents principally relevant to each of the proceedings (QUD 208 of 1997; QUD 6022 of 1998; QUD 6116 of 1998 and QUD 6036 of 2001):
(a) Dr Sandra Pannell, ‘Djungan People’s Native Title Determination Applications #1 – #4 Final Connection Report, September 2010 (and amended on 25 October 2010)’ (“Connection Report”) filed on 14 June 2012;
(b) Dr Sandra Pannell, ‘Djungan People’s Native Title Determination Applications #1 – #4 Executive Summary of Connection Materials, February 2012’ (“Executive Summary”) filed on 12 July 2012;
(c) Affidavit of Mr Martin Dore sworn on 26 June 2012 and filed on 12 July 2012;
(d) Affidavit of Mr Martin Dore sworn on 11 July 2012 and filed on 12 July 2012;
(e) Submissions satisfying s 56 and s 57 of the Act regarding the Prescribed Body Corporate filed on 12 July 2012;
(f) Notice of Nomination and Consent of the Prescribed Body Corporate filed on 12 July 2012; and
(g) Outline of submissions in support of the proposed consent determination filed on 16 July 2012.
11 The applicant has filed the following documents in proceeding QUD 208 of 1997:
(a) Further amended native title determination application (Form 1) filed on 13 June 2012; and
(b) Proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 18 July 2012.
12 The applicant has filed the following documents in proceeding QUD 6022 of 1998:
(a) Further amended native title determination application (Form 1) filed on 13 June 2012; and
(b) Proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 18 July 2012.
13 The applicant has filed the following documents in proceeding QUD 6116 of 1998:
(a) Further amended native title determination application (Form 1) filed on 13 June 2012;
(b) Proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 18 July 2012; and
(c) Affidavit of Mr Martin Dore sworn on 26 June 2012 and filed on 11 July 2012.
14 The applicant has filed the following documents in proceeding QUD 6036 of 2001:
(a) Further amended native title determination application (Form 1) filed on 13 June 2012; and
(b) Proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 18 July 2012.
SECTION 87 OF THE ACT
15 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where:
(a) The period specified in the notice given under s 66 of the Act has ended (s 87(1));
(b) There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));
(c) The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)));
(d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and
(e) Having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings.
16 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated:
[36] … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
[37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
17 As such, the Court is not required to make its own inquiry of the merits of the applicant’s claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30].
18 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated:
[38] … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
SECTION 94A OF THE ACT
19 Section 94A of the Act requires that a native title determination must satisfy the requirements of s 225 of the Act. Section 225 provides:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease -- whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.
[emphasis in original]
20 Section 223(1) of the Act defines ‘native title’ and ‘native title rights and interests’ as:
(1) … the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
21 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]:
(a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.
(b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown – it is only those rules that are “traditional” laws and customs.
(c) That normative system must have a continuous existence and vitality since sovereignty.
(d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality.
(e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.
(f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier that those described in the evidence.
APpLICATION OF sECTION 223 and section 225 to THE DJUNGAN SOCIETY
22 From the filed material mentioned previously it appears that the Aboriginal persons who spoke the Djungan dialect of the Kuku Yalanji language used and occupied Djungan country, in the wider Mount Mulligan area, prior to 1788 (the date of the assertion of British sovereignty). Archaeological records furnished in support of occupation attests to Aboriginal people occupying the Mount Mulligan area and the surrounding region from 40 000 years ago.
23 It is also clear that the use of the Djungan dialect and the transfer of Djungan cultural knowledge have continued throughout the 20th Century. The Court is asked to infer that the Djungan people today are descended from the community of people who spoke the Djungan dialect and used and occupied Djungan country prior to 1788. This is supported by historical material which locates the community of the Djungan people, including the apical ancestors, in the early days of European contact, in this case from the 1870s, and establishes the basis for the finding that they are descended from a pre-sovereignty community of Djungan ancestors.
24 The material also provides that the Djungan people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places. Through this connection with the land, the Djungan people, as an organised society, possessed native title rights and interests in accordance with their observed and acknowledged traditional laws and customs. The material supports the intergenerational transfer of those laws and customs and support for the inference that they, and the rights and interests possessed by them, originated in a pre-sovereignty Djungan society.
25 It is also apparent that while there has been some adaptation of laws and customs as a result of sustained European settlement, those changes have not affected the laws and customs of the Djungan people to the extent where those rights and interests and laws and customs are no longer observed.
26 Accordingly, it is appropriate to make the proposed orders which recognise:
(a) That the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs;
(b) That the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances;
(c) That the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs; and
(d) That the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.
THE APPLICATION OF SECTION 87 TO THE CURRENT NATIVE TITLE APPLICATIONS
27 The requirements of s 87 of the Act have been satisfied in the present case. In particular:
(a) The period specified in the notice given under s 66 has ended;
(b) The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i));
(c) The parties have recorded their agreement in those short minutes of consent (s 87(1)(b));
(d) An order in terms of or consistent with those short minutes would be within the Court’s power because:
(i) The Applications are valid and were made in accordance with s 61 of the Act;
(ii) The Applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a));
The short minutes comply with s 94A and s 225 of the Act (s 87(1)(c)); and
(e) It is appropriate that the Court make the orders sought because:
(i) All parties are legally represented;
(ii) Searches of land tenure, mining and other relevant interests have been obtained to determine the extent of “other interests” within the proposed determination area and provide copies of those searches to all parties;
(iii) The Respondents have provided all parties with a list their interests in the land which affect native title;
(iv) The parties have agreed the nature and extent of interests in relation to the determination area in Schedule 3 to each of the determinations;
(v) There are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Act (s 87(1) and s 87(2));
(vi) The State of Queensland has played an active role in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act’s requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances.
28 The State’s assessment process has included the assessment of extensive material showing the connection of the claim group with the country the subject of the determination. That material included anthropological reports provided by Dr Sandra Pannell. Ultimately, the parties reached agreement that the native title claim group named in Schedule 2 of the determinations and in the connection material are the persons who hold the claimed native title rights and interests in the determination area. As noted above, that primary material has been filed. In my view, it justifies the approach taken by the State and the other respondent parties.
29 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by s 56 and s 57 of the Act. They respectively relate to holding the native title on trust and with the non-trust function of prescribed bodies corporate. The proposed determination provides that the native title is not to be held on trust. It provides for an Aboriginal corporation, the Nguddaboolgan Native Title Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. As that body corporate was registered on 5 July 2011 it will also perform the functions mentioned in s 57(3) of the Act.
30 The Court notes that the body corporate has filed a Notice of Nomination and Consent of the Prescribed Body Corporate on 12 July 2012 which satisfies the requirements of s 57(2) of the Act.
31 Finally, it is worth recording that agreements of the kind that have brought about today’s hearing and determination do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court’s registrars, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money. The parties and their advisers are to be commended for the consensual resolution of this native title proceeding.
32 For the reasons given, the Determination is now made.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
