FEDERAL COURT OF AUSTRALIA
McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082
FEDERAL COURT OF AUSTRALIA
McLennan on behalf of the Jangga People v State of Queensland [2012] FCA 1082
CORRIGENDUM
1. In paragraph 31(c) of the Reasons for Judgment, in the sixth line, the word “Juru” should read “Jangga”.
| I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
Dated: 10 October 2012
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),
BY CONSENT THE COURT ORDERS THAT:
1. There be a determination of native title in the terms set out below (the “determination”).
2. Each party to the 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 depicted in the map 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 Jangga People described in Schedule 3 (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; and
(b) in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the Natural Resources of the Water 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) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the Water of the area for personal, domestic and noncommercial communal purposes;
(f) conduct ceremonies on the area;
(g) be buried and bury native title holders, in the ground, within the area;
(h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(i) teach on the area the physical and spiritual attributes of the area;
(j) hold meetings on the area; and
(k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
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 4.
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 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 4.
10. The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests described in Schedule 4 (the “other interests”) is that:
(a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
11. The native title is held in trust.
12. The Bulganunna Aboriginal Corporation (ICN 7761), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(a) be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and
(b) perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
DEFINITIONS AND INTERPRETATION
13. In this determination, unless the contrary intention appears:
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“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 found on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders, but does not include:
(a) animals that are the private personal property of another; and
(b) 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);
“stock route” has the same meaning as in the Land Act 1994 (Qld);
“Water” means:
(a) water which flows, whether permanently or intermittently, within a river, creek or stream;
(b) any natural collection of water, whether permanent or intermittent; and
(c) water from an underground water source.
Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).
LIST OF SCHEDULES
Schedule 1 — DETERMINATION AREA 7
Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA 28
Schedule 3 — NATIVE TITLE HOLDERS 34
Schedule 4 — OTHER INTERESTS IN THE DETERMINATION AREA 35
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, to the extent that they are within the external boundary description as described in Part 3 below, and depicted on the determination map, excluding the areas described in Schedule 2.
Part 1 Exclusive areas
All of the land and waters described in the following tables and depicted in dark blue on the determination map.
| Area description (at time of determination) | |
| Lot | Plan |
| 2 | AY18 |
| 1 | AP15836 |
| 2 | AP15836 |
| 10 | U3511 |
| 6 | CY20 |
| 3 | BL24 |
| 1 | K12421 |
| 3 | K12421 |
| 4 | M7211 |
| 18 | M7212 |
| 53 | M7212 |
| 38 | M7213 |
| 41 | M7213 |
| 42 | M7213 |
| 43 | M7213 |
| 1 | M7215 |
| 2 | M7215 |
| 3 | M7215 |
| 4 | M7215 |
| 5 | M7215 |
| 707 | MPH13507 |
| 708 | MPH13507 |
| 709 | MPH13507 |
| 710 | MPH13507 |
| 711 | MPH13507 |
| 713 | MPH13507 |
| 714 | MPH13507 |
| 715 | MPH13507 |
| 716 | MPH13507 |
| 717 | MPH13507 |
| 718 | MPH13507 |
| 719 | MPH13507 |
| 720 | MPH13507 |
| 721 | MPH13507 |
| 722 | MPH13507 |
| 723 | MPH13507 |
| 724 | MPH13507 |
| 725 | MPH13507 |
| 726 | MPH13507 |
| 727 | MPH13507 |
| 728 | MPH13507 |
| 729 | MPH13507 |
| 730 | MPH13507 |
| 734 | MPH13507 |
| 736 | MPH13507 |
| 737 | MPH13507 |
| 6 | MPH13513 |
| 7 | MPH13513 |
| 8 | MPH13513 |
| 9 | MPH13513 |
| 10 | MPH13513 |
| 11 | MPH13513 |
| 14 | MPH13513 |
| 15 | MPH13513 |
| 16 | MPH13513 |
| 17 | MPH13513 |
| 18 | MPH13513 |
| 19 | MPH13513 |
| 20 | MPH13513 |
| 21 | MPH13513 |
| 22 | MPH13513 |
| 23 | MPH13513 |
| 24 | MPH13513 |
| 25 | MPH13513 |
| 26 | MPH13513 |
| 27 | MPH13513 |
| 28 | MPH13513 |
| 29 | MPH13513 |
| 30 | MPH13513 |
| 31 | MPH13513 |
| 32 | MPH13513 |
| 33 | MPH13513 |
| 34 | MPH13513 |
| 35 | MPH13513 |
| 36 | MPH13513 |
| 37 | MPH13513 |
| 38 | MPH13513 |
| 39 | MPH13513 |
| 40 | MPH13513 |
| 41 | MPH13513 |
| 42 | MPH13513 |
| 43 | MPH13513 |
| 44 | MPH13513 |
| 45 | MPH13513 |
| 46 | MPH13513 |
| 71 | MPH13513 |
| 72 | MPH13513 |
| 73 | MPH13513 |
| 74 | MPH13513 |
| 75 | MPH13513 |
| 418 | AP9319 |
| 301 | MPH20088 |
| 302 | MPH20088 |
| 303 | MPH20088 |
| 305 | MPH20088 |
| 306 | MPH20088 |
| 307 | MPH20088 |
| 308 | MPH20088 |
| 999 | MPH20088 |
| 1 | MPH20109 |
| 2 | MPH20109 |
| 3 | MPH20109 |
| 4 | MPH20109 |
| 5 | MPH20109 |
| 7 | MPH20109 |
| 8 | MPH20109 |
| 9 | MPH20109 |
| 10 | MPH20109 |
| 4 | SM801624 |
| 6 | MPH20109 |
| Area description (at time of determination) |
| That part of Lot 1 on Plan AP7703 previously described as Lot 703 on Plan MPH4, Lot 10 on Plan USL46693 and Lot 999 on Plan MPH13513. |
| That part of Lot 4 on Plan AP7703 previously described as Lot 703 on Plan MPH4, Lot 10 on Plan USL46693 and Lot 999 on Plan MPH13513. |
Part 2 Non-exclusive areas
All of the land and waters described in the following tables and depicted in light blue on the determination map.
| Area description (at time of determination) | |
| Lot | Plan |
| 1 | AY17 |
| 1 | AY27 |
| 1 (Pt) | AY31 |
| 1 | SP147546 |
| 3 | SP147546 |
| 10 | BL49 |
| 10 (Pt) | BL58 |
| 4 | SP116046 |
| 3 (Pt) | CP851492 |
| 1496 (Pt) | CP851494 |
| 18 (Pt) | SP208194 |
| 1 (Pt) | CY20 |
| 6 | DC112 |
| 3 (Pt) | SP171922 |
| 1 | DK244 |
| 14 (Pt) | SP225054 |
| 4 | DK31 |
| 9 (Pt) | MRY36 |
| 1 (Pt) | MRY40 |
| 9 (Pt) | MRY50 |
| 1 (Pt) | MRY54 |
| 18 | AP13185 |
| 5070 | PH1056 |
| 1943 | SP221555 |
| 691 | PH1291 |
| 3821 | PH1304 |
| 1816 | PH1315 |
| 1510 (Pt) | SP171920 |
| 667 | PH1321 |
| 3366 (Pt) | PH1455 |
| 662 (Pt) | PH1491 |
| 3309 | PH1532 |
| 5269 (Pt) | PH1533 |
| 5282 (Pt) | PH1570 |
| 5305 (Pt) | SP240414 |
| 3279 | PH1787 |
| 4779 | PH1806 |
| 656 | SP138788 |
| 637 | PH1980 |
| 682 (Pt) | CP906890 |
| 689 | PH2015 |
| 3272 | SP237696 |
| 3388 | PH2112 |
| 3450 (Pt) | PH2118 |
| 3540 | PH2135 |
| 3570 | PH2142 |
| 636 | PH2182 |
| 5059 | PH386 |
| 5060 | PH387 |
| 5068 (Pt) | PH449 |
| 3615 | PH681 |
| 3235 | PH752 |
| 3978 (Pt) | PH772 |
| 5078 | PH955 |
| 1 | SM10 |
| 5086 | SM100 |
| 5088 | SM101 |
| 1 | SM15 |
| 2 | CP910524 |
| 2 | AP7703 |
| 4 (Pt) | SM7 |
| 5 (Pt) | SM7 |
| 10 | SM79 |
| 5 | SM84 |
| 6 | SM86 |
| 2 | SM9 |
| 7 | SM92 |
| 3 (Pt) | SM93 |
| 1 | SM95 |
| 3 | AY23 |
| 7 | NPW199 |
| 4 | AY15 |
| 2 | AY16 |
| 7 | AY25 |
| 8 | AY6 |
| 9 | AY7 |
| 5 | BL3 |
| 7 | BL38 |
| 9 | BL51 |
| 4 (Pt) | SP210553 |
| 7 | DC112 |
| 5 | DC113 |
| 2 | DC84 |
| 5 | DK103 |
| 11 | DK138 |
| 4 | DK148 |
| 1 | DK69 |
| 3 | M7214 |
| 3 | M7216 |
| 7 | SM1 |
| 2 | SM12 |
| 3 | SM17 |
| 2 | SM28 |
| 1 | SM41 |
| 1 | SM46 |
| 1 | SM47 |
| 7 | SM62 |
| 5 | SM70 |
| 8 | U3511 |
| 9 | U3511 |
| 3 | MRY40 |
| 7 | MRY39 |
| 1 | AP14087 |
| 1 | M7218 |
| Area description (at time of determination) |
| That part of Lot 1 on Plan AP7703 previously described as Lot 4 on Plan SM61. |
| That part of Lot 4 on Plan AP7703 previously described as Lot 4 on Plan SM61 and Lot 3 on Plan SM34. |
| Save for any waters forming part of a lot on plan, all waterways, natural lakes, creeks and rivers within the external boundary. |
| Save for any stock route forming part of a lot on plan, all stock routes wider than 300 metres within the external boundary. |
Part 3 External boundary description
Commencing at a point on a western boundary of Lot 1 on Plan AP10097 at Latitude 21.349144 S, and extending southerly, westerly, again southerly along the western boundaries of the said Lot 1 on Plan AP10097, Lot 1 on Plan AP14151, Lot 2 on Plan AP10097 and Lot 16 on Plan CP866443, to Latitude 21.385250° S; then generally south westerly through the following coordinate points:
| Longitude (East) | Latitude (South) |
| 148.095017 | 21.398388 |
| 148.064196 | 21.430311 |
| 148.029083 | 21.456308 |
Then south westerly to a northern boundary of Lot 8 on Plan GV807254 (Lenton Downs pastoral holding) at Longitude 148.018360° E, being a point on the boundary of Native Title Determination Application Q6033/99 Wiri People 3 (QC99/34). Then generally westerly and generally southerly along the northern and western boundaries of Lot 8 on Plan GV807254, and the western and southern boundaries of Lot 2 on Plan SP214117 (Dabin Pastoral holding) until Longitude 147.929977° E, also being boundaries of Q6033/99 Wiri People 3 (QC99/34). Then generally southerly, generally westerly, generally northerly and generally south easterly through the following coordinate points back to the commencement point:
| Longitude (East) | Latitude (South) |
| 147.928286 | 21.594476 |
| 147.925110 | 21.611076 |
| 147.921924 | 21.629395 |
| 147.916886 | 21.646562 |
| 147.912486 | 21.659721 |
| 147.909323 | 21.672885 |
| 147.906761 | 21.689490 |
| 147.904838 | 21.702087 |
| 147.902902 | 21.716975 |
| 147.901512 | 21.732674 |
| 147.900878 | 21.749056 |
| 147.900791 | 21.765673 |
| 147.900774 | 21.769147 |
| 147.900723 | 21.778853 |
| 147.900636 | 21.795472 |
| 147.896515 | 21.820494 |
| 147.889236 | 21.841270 |
| 147.881728 | 21.853844 |
| 147.872336 | 21.870422 |
| 147.862920 | 21.891011 |
| 147.856013 | 21.913952 |
| 147.848564 | 21.963410 |
| 147.845092 | 21.979588 |
| 147.837333 | 22.000385 |
| 147.823796 | 22.021540 |
| 147.817214 | 22.031893 |
| 147.808825 | 22.043341 |
| 147.800532 | 22.051780 |
| 147.798665 | 22.053222 |
| 147.792419 | 22.058044 |
| 147.781188 | 22.066011 |
| 147.769334 | 22.073973 |
| 147.753739 | 22.083634 |
| 147.741877 | 22.092167 |
| 147.731959 | 22.105326 |
| 147.726796 | 22.117309 |
| 147.721723 | 22.132187 |
| 147.710408 | 22.150470 |
| 147.699764 | 22.161301 |
| 147.683517 | 22.172672 |
| 147.667915 | 22.180604 |
| 147.645470 | 22.188491 |
| 147.623673 | 22.192364 |
| 147.602490 | 22.197385 |
| 147.580690 | 22.201251 |
| 147.560779 | 22.202260 |
| 147.542772 | 22.203164 |
| 147.518499 | 22.203164 |
| 147.499937 | 22.202162 |
| 147.479948 | 22.201828 |
| 147.459601 | 22.201161 |
| 147.428940 | 22.200083 |
| 147.408450 | 22.196517 |
| 147.387356 | 22.191182 |
| 147.366873 | 22.186996 |
| 147.346411 | 22.181087 |
| 147.330739 | 22.180124 |
| 147.318246 | 22.179456 |
| 147.302897 | 22.179456 |
| 147.284852 | 22.180541 |
| 147.260602 | 22.180319 |
| 147.237595 | 22.180103 |
| 147.215831 | 22.179896 |
| 147.191884 | 22.178788 |
| 147.169839 | 22.177726 |
| 147.146232 | 22.175768 |
| 147.124490 | 22.173826 |
| 147.101217 | 22.171442 |
| 147.079166 | 22.168191 |
| 147.055527 | 22.164430 |
| 147.035537 | 22.160757 |
| 147.012789 | 22.155999 |
| 146.990561 | 22.152743 |
| 146.970601 | 22.149215 |
| 146.947013 | 22.145730 |
| 146.922026 | 22.141390 |
| 146.900965 | 22.136715 |
| 146.881920 | 22.133260 |
| 146.854664 | 22.126620 |
| 146.835285 | 22.120354 |
| 146.810126 | 22.111729 |
| 146.789748 | 22.102868 |
| 146.769364 | 22.094579 |
| 146.748353 | 22.086850 |
| 146.734790 | 22.079791 |
| 146.719383 | 22.071559 |
| 146.705825 | 22.064496 |
| 146.688586 | 22.054516 |
| 146.671971 | 22.044542 |
| 146.653505 | 22.033967 |
| 146.643060 | 22.026942 |
| 146.625870 | 22.014661 |
| 146.615427 | 22.007634 |
| 146.605404 | 21.999811 |
| 146.590769 | 21.988458 |
| 146.579266 | 21.979025 |
| 146.566434 | 21.966801 |
| 146.553595 | 21.955148 |
| 146.541960 | 21.945805 |
| 146.528505 | 21.934141 |
| 146.513812 | 21.922458 |
| 146.495104 | 21.907651 |
| 146.475322 | 21.888057 |
| 146.463182 | 21.872968 |
| 146.450495 | 21.853858 |
| 146.440852 | 21.838232 |
| 146.429982 | 21.822015 |
| 146.418546 | 21.802922 |
| 146.409434 | 21.785105 |
| 146.401231 | 21.766541 |
| 146.394068 | 21.751527 |
| 146.389952 | 21.739426 |
| 146.385238 | 21.726170 |
| 146.381948 | 21.710641 |
| 146.380252 | 21.693998 |
| 146.378123 | 21.675054 |
| 146.377306 | 21.658884 |
| 146.377306 | 21.643524 |
| 146.378377 | 21.627496 |
| 146.379490 | 21.600584 |
| 146.379805 | 21.583400 |
| 146.380110 | 21.566789 |
| 146.381661 | 21.549626 |
| 146.383170 | 21.534754 |
| 146.384103 | 21.517582 |
| 146.386272 | 21.500429 |
| 146.388440 | 21.483278 |
| 146.392654 | 21.464545 |
| 146.398009 | 21.442840 |
| 146.402291 | 21.427146 |
| 146.405504 | 21.413456 |
| 146.409778 | 21.397120 |
| 146.415594 | 21.382892 |
| 146.419426 | 21.373719 |
| 146.426208 | 21.362032 |
| 146.434731 | 21.348826 |
| 146.442332 | 21.338063 |
| 146.453336 | 21.328307 |
| 146.465473 | 21.318623 |
| 146.475547 | 21.309939 |
| 146.486803 | 21.301520 |
| 146.499949 | 21.290838 |
| 146.512486 | 21.279574 |
| 146.521280 | 21.270543 |
| 146.524573 | 21.267164 |
| 146.533652 | 21.257850 |
| 146.544003 | 21.248835 |
| 146.556353 | 21.239567 |
| 146.572039 | 21.223762 |
| 146.582912 | 21.213439 |
| 146.591836 | 21.204089 |
| 146.600759 | 21.196075 |
| 146.610914 | 21.184815 |
| 146.619068 | 21.176342 |
| 146.626817 | 21.167692 |
| 146.636024 | 21.157116 |
| 146.642166 | 21.149327 |
| 146.647999 | 21.140681 |
| 146.655530 | 21.132198 |
| 146.664990 | 21.118591 |
| 146.674412 | 21.107272 |
| 146.681432 | 21.095901 |
| 146.690143 | 21.086307 |
| 146.700810 | 21.073858 |
| 146.710849 | 21.061973 |
| 146.720271 | 21.050080 |
| 146.727200 | 21.039869 |
| 146.731789 | 21.021614 |
| 146.733142 | 21.013619 |
| 146.734609 | 20.998185 |
| 146.734792 | 20.986168 |
| 146.734948 | 20.975868 |
| 146.735114 | 20.964996 |
| 146.735296 | 20.952980 |
| 146.734873 | 20.940384 |
| 146.735038 | 20.929513 |
| 146.735212 | 20.918069 |
| 146.735377 | 20.907199 |
| 146.734976 | 20.896219 |
| 146.733854 | 20.886005 |
| 146.734046 | 20.873420 |
| 146.734228 | 20.861405 |
| 146.734384 | 20.851108 |
| 146.734550 | 20.840238 |
| 146.734767 | 20.825937 |
| 146.734897 | 20.817356 |
| 146.734993 | 20.811064 |
| 146.736993 | 20.800791 |
| 146.738983 | 20.791091 |
| 146.743448 | 20.780280 |
| 146.750983 | 20.769509 |
| 146.755360 | 20.764418 |
| 146.765333 | 20.754844 |
| 146.774240 | 20.745956 |
| 146.783878 | 20.736607 |
| 146.793971 | 20.728881 |
| 146.803307 | 20.720421 |
| 146.813853 | 20.713119 |
| 146.824406 | 20.705245 |
| 146.841800 | 20.691162 |
| 146.860432 | 20.675951 |
| 146.875985 | 20.661271 |
| 146.889126 | 20.643129 |
| 146.896065 | 20.629486 |
| 146.905599 | 20.635095 |
| 146.917369 | 20.641439 |
| 146.932371 | 20.648118 |
| 146.943613 | 20.652933 |
| 146.956424 | 20.658803 |
| 146.972313 | 20.664136 |
| 146.994318 | 20.671251 |
| 147.015126 | 20.676062 |
| 147.043246 | 20.685527 |
| 147.067658 | 20.692528 |
| 147.087902 | 20.698595 |
| 147.108733 | 20.702248 |
| 147.131388 | 20.707633 |
| 147.155827 | 20.713230 |
| 147.174847 | 20.719516 |
| 147.191982 | 20.724833 |
| 147.214600 | 20.734208 |
| 147.233562 | 20.741255 |
| 147.245779 | 20.747956 |
| 147.258630 | 20.754968 |
| 147.275702 | 20.763962 |
| 147.295263 | 20.773295 |
| 147.316057 | 20.782636 |
| 147.334377 | 20.793667 |
| 147.356993 | 20.805879 |
| 147.382494 | 20.819079 |
| 147.410820 | 20.832650 |
| 147.432825 | 20.845989 |
| 147.454215 | 20.859891 |
| 147.471947 | 20.870901 |
| 147.489063 | 20.882476 |
| 147.511086 | 20.895803 |
| 147.531275 | 20.908541 |
| 147.549622 | 20.921262 |
| 147.566109 | 20.936257 |
| 147.585072 | 20.950124 |
| 147.602206 | 20.962258 |
| 147.615058 | 20.971501 |
| 147.624227 | 20.979574 |
| 147.632739 | 20.993365 |
| 147.641870 | 21.007159 |
| 147.660824 | 21.025023 |
| 147.677332 | 21.041151 |
| 147.695697 | 21.056717 |
| 147.711610 | 21.071122 |
| 147.727536 | 21.084380 |
| 147.744091 | 21.099903 |
| 147.761195 | 21.118916 |
| 147.773438 | 21.131577 |
| 147.791196 | 21.149991 |
| 147.811556 | 21.167020 |
| 147.829828 | 21.183967 |
| 147.847596 | 21.203521 |
| 147.864779 | 21.218489 |
| 147.882577 | 21.234604 |
| 147.899767 | 21.250141 |
| 147.916374 | 21.259376 |
| 147.928638 | 21.266527 |
| 147.951109 | 21.282499 |
| 147.969782 | 21.291235 |
| 148.010434 | 21.305170 |
| 148.034572 | 21.315974 |
| 148.075300 | 21.331651 |
Reference data and source:
REFERENCE DATUM – Geographical coordinates are in decimal degrees referenced to the Australian Geodetic Datum (GDA94).
• External boundary data compiled by and sourced from the Department of Natural Resources & Mines (Queensland) (“DNRM”) Queensland Claim Activity Map dataset.
• Non freehold cadastral data sourced from MapInfo Australia under license from DNRM (July 2012).
B. Map of Determination Area
Schedule 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA
For the avoidance of doubt, the areas described below are excluded from the Determination Area:
A. The areas in this Part are excluded from the Determination Area on the grounds that at the time at which the native title determination application was made:
these areas were the subject of one or more previous exclusive possession acts, as defined in s 23B of the Native Title Act 1993 (Cth), despite the fact that the areas, or parts of them, may have been subject to earlier acts that extinguished native title; and
in relation to the areas in paragraph 1 of this Part, none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; and
therefore, in accordance with s 61A of the Native Title Act 1993 (Cth), these areas could not be claimed.
1. Tenure Based Exclusions (ss 23B(2) and 23B(3) Native Title Act 1993 (Cth)):
(a) Lot 1 on Plan BL55;
(b) Lot 1 on Plan CP882192;
(c) Lot 7 on Plan CY23;
(d) Lot 6 on Plan SM91;
(e) Lot 2 on Plan CP845104;
(f) Lot 2 (Pt) on Plan SP171918;
(g) Lot 1 on Plan CP905226;
(h) Lot 2 on Plan SP245736;
(i) Lot 8 on Plan DC133;
(j) Lot 35 on Plan M7213;
(k) Lot 36 on Plan M7213;
(l) Lot 1 on Plan MPH13507;
(m) Lot 2 on Plan MPH13507;
(n) Lot 1 on Plan MPH17;
(o) Lot 3 on Plan BL54;
(p) Lot 1 on Plan MPH20091;
(q) Lot 20 (Pt) on Plan HLN250;
(r) Lot 1 (Pt) on Plan PER2657;
(s) Lot A on Plan AP20164;
(t) Lot A on Plan AP20285;
(u) Lot A (Pt) on Plan AP7339; and
(v) Lot A (Pt) on Plan AP14124.
2. Public Works Based Exclusions:
(a) The land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or s 23B(7) of the Native Title Act 1993 (Cth) and s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).
(b) Specifically, and to avoid any doubt, the land and waters described in paragraph 2(a) immediately above includes the whole of the land and waters described as:
(i) Lot 11 on Plan BL58; and
(ii) Lot 13 (Pt) on Plan MRY51.
B. Land and waters specifically excluded from the amended native title determination application filed on 19 July 2004, being:
Lot 6 on Plan SM99;
areas subject to application QG6242/98 Wiri People (QC98/05) as entered on the Native Title Register on 24 September 1999;
areas subject to application QG6251/98 Wiri People 2 (QC98/11) as entered on the Native Title Register on 30 October 2000; and
areas subject to application QG6033/99 Wiri People 3 (QC99/34) as entered on the Native Title Register on 12 September 2000.
C. On the basis that native title has been extinguished and is not claimed, the parties have agreed that the excluded areas include any land or waters on which any permanent improvement consisting of:
(i) a homestead, house, shed or other building;
(ii) an airstrip;
(iii) a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters’ tank or other water storage facility; or
(iv) stock yards and trap yards,
has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral leases:
1. Pastoral Development Holding 12/5189 comprising Lot 4 on Plan SP116046 and commonly known as Disney;
2. Pastoral Development Holding 12/3821 comprising Lot 3821 on Plan PH1304 and commonly known as Gunjulla;
3. Pastoral Development Holding 12/3279 comprising Lot 3279 on Plan PH1787 and commonly known as Ill-I-Ra (aka Bungobine);
4. Pastoral Development Holding 30/682 comprising Lot 682 on Plan CP906890 and commonly known as Suttor Creek;
5. Pastoral Holding 12/3366 comprising Lot 3366 on Plan PH1455 and commonly known as Amphion;
6. Pastoral Holding 12/5282 comprising Lot 5282 on Plan PH1570 and commonly known as Bingeringo;
7. Pastoral Holding 5/667 comprising Lot 667 on Plan PH1321 and commonly known as Mount Lookout;
8. Pastoral Holding 12/5417 comprising Lot 10 on Plan BL49 and commonly known as Avon Downs;
9. Pastoral Holding 12/5280 comprising Lot 3 on Plan SP147546 and commonly known as Billiwallah;
10. Pastoral Holding 12/5059 comprising Lot 5059 on Plan PH386 and commonly known as Bundoba;
11. Pastoral Holding 66/624 comprising Lot 5060 on Plan PH387 and commonly known as Camberwell;
12. Pastoral Holding 12/691 comprising Lot 691 on Plan PH1291 and commonly known as Yacamunda;
13. Pastoral Holding 12/3978 comprising Lot 3978 on Plan PH772 and commonly known as Dooyne;
14. Pastoral Holding 12/642 comprising Lot 10 on Plan BL58 and commonly known as Frankfield;
15. Pastoral Holding 5/5431 comprising Lot 4 on Plan SM7 and commonly known as Glen Easter;
16. Pastoral Holding 5/5042 comprising Lot 7 on Plan SM92 and commonly known as Mount Wyatt;
17. Pastoral Holding 5/5432 comprising Lot 5 on Plan SM7 and commonly known as Sellheim;
18. Pastoral Holding 5/1496 comprising Lot 1496 on Plan CP851494 and commonly known as Glendon;
19. Pastoral Holding 12/3291 comprising Lot 1 on Plan SP147546 and commonly known as Goodoawada;
20. Pastoral Holding 12/3235 comprising Lot 3235 on Plan PH752 and commonly known as Old Twin Hills;
21. Pastoral Holding 12/5269 comprising Lot 5269 on Plan PH1533 and commonly known as Waminda;
22. Pastoral Holding 12/656 comprising Lot 656 on Plan SP138788 and commonly known as Lanark;
23. Pastoral Holding 12/2522 comprising Lot 1 on Plan AY31 and commonly known as Larne;
24. Pastoral Holding 11/2835 comprising Lot 1 on Plan MRY54 and commonly known as McGregor Creek;
25. Pastoral Holding 11/668 comprising Lot 10 on Plan SM79 and Lot 6 on Plan SM86 and commonly known as Mount McConnel;
26. Pastoral Holding 11/3323 comprising Lot 1 on Plan CY20 and commonly known as Panitya;
27. Pastoral Holding 5/2208 comprising Lot 1 on Plan DK244 and commonly known as Pinang;
28. Pastoral Holding 0/221638 comprising Lot 18 on Plan SP208194 and commonly known as Teviot Brook;
29. Pastoral Holding 5/4779 comprising Lot 4779 on Plan PH1806 and commonly known as Ukalunda;
30. Pastoral Holding 12/3309 comprising Lot 3309 on Plan PH1532 and commonly known as Urella;
31. Pastoral Holding 12/3615 comprising Lot 3615 on Plan PH681 and commonly known as Wyarra (aka Why Not);
32. Preferential Pastoral Holding 5/4969 comprising Lot 3 on Plan CP851492 and commonly known as Arundel;
33. Preferential Pastoral Holding 11/3404 comprising Lot 9 on Plan MRY36 and commonly known as Danae;
34. Preferential Pastoral Holding 12/5068 comprising Lot 5068 on Plan PH449 and commonly known as Durdham;
35. Preferential Pastoral Holding 5/4970 comprising Lot 5 on Plan SM84 and commonly known as Gunnadoo (aka Cramoise);
36. Preferential Pastoral Holding 12/5086 comprising Lot 5086 on Plan SM100 and commonly known as Kenilworth;
37. Preferential Pastoral Holding 12/5078 comprising Lot 5078 on Plan PH955 and commonly known as Llanarth;
38. Preferential Pastoral Holding 11/3459 comprising Lot 1 on Plan MRY40 and commonly known as Startlemere;
39. Preferential Pastoral Holding 12/5070 comprising Lot 5070 on Plan PH1056 and commonly known as Rossmore;
40. Preferential Pastoral Holding 12/5088 comprising Lot 5088 on Plan SM101 and commonly known as Warrigal;
41. Preferential Pastoral Holding 12/3408 comprising Lot 1 on Plan AY27 and commonly known as Wilandspey;
42. Stud Holding 12/637 comprising Lot 637 on Plan PH1980 and commonly known as Elgin Downs;
43. Term Lease (pastoral) 0/232176 comprising Lot 1 on Plan SM15 and commonly known as Avalon;
44. Term Lease (pastoral) 0/232169 comprising Lot 1510 on Plan SP171920 and commonly known as Cerito;
45. Term Lease (pastoral) 0/232171 comprising Lot 3540 on Plan PH2135 and commonly known as Rosetta Creek;
46. Term Lease (pastoral) 0/232167 comprising Lot 3388 on Plan PH2112 and commonly known as Bilyana;
47. Term Lease (pastoral) 0/232179 comprising Lot 3570 on Plan PH2142 and commonly known as Bungobine;
48. Term Lease (pastoral) 0/232154 comprising Lot 636 on Plan PH2182 and commonly known as Eaglefield;
49. Term Lease (pastoral) 0/232153 comprising Lot 1816 on Plan PH1315 and commonly known as Emin;
50. Term Lease (pastoral) 0/232178 comprising Lot 2 on Pan SM9 and Lot 1 on Plan SM10 and commonly known as Bobby Dazzler Creek;
51. Term Lease (pastoral) 0/233595 comprising Lot 1943 on Plan SP221555 and commonly known as Verbena;
52. Term Lease (pastoral) 0/231890 comprising Lot 3450 on Plan PH2118 and commonly known as Caerphilly;
53. Term Lease (pastoral) 0/231889 comprising Lot 7 on Plan MRY39 and Lot 9 on Plan MRY50 and commonly known as Moonlight Creek;
54. Term Lease (pastoral) 0/234678 comprising Lot 5305 on Plan SP240414 and commonly known as Mount Dilligen;
55. Term Lease (pastoral) 0/234631 comprising Lot 3 on Plan SM93 and commonly known as Scartwater;
56. Term Lease (pastoral) 0/234397 comprising Lot 3272 on Plan SP237696 and commonly known as Wirralie; or
57. Term Lease (pastoral) 0/235359 comprising Lot 689 on Plan SP251696 and commonly known as Suttor Creek North.
Schedule 3 – NATIVE TITLE HOLDERS
The native title holders are the Jangga people, being the descendants of one or more of the following people:
(a) Charlie Tiers;
(b) Dick Hegarty, also known as Dinduk;
(c) Pompey Earl;
(d) Mick Havilah (also known as Mick Cotherstone) or his brother Johnny Havilah;
(e) Albert Twist;
(f) Dick Cook and his wife / partner Lilly Cook;
(g) Charlie Pinkipie and his wife / partner Judy Pinkipie; or
(h) Billy (also known as King Billy) and his wife / partner Clara (also known as Queen Clara).
Schedule 4 – OTHER INTERESTS IN THE DETERMINATION AREA
The nature and extent of the other interests in relation to the Determination Area are the following, as they exist as at the date of the determination:
1. The rights and interests of the parties under the following agreements:
(a) the Jangga Protected Areas indigenous land use agreement (body corporate agreement) between Colin McLennan, Thomas Brown, Dorothy Hustler, Marie McLennan, James Gaston, and Tyrone Tiers on their own behalf and on behalf of the Jangga people, the Bulganunna Aboriginal Corporation (ICN 7761), the State of Queensland, and the Bulganunna Aboriginal Corporation RNTBC, which was authorised by the native title claim group on 15 August 2012 and executed by Colin McLennan on 21 August 2012, Thomas Brown on 20 August 2012, Dorothy Hustler on 14 September 2012, Marie McLennan on 23 August 2012, James Gaston on 20 August 2012 and Tyrone Tiers on 14 September 2012, the Bulganunna Aboriginal Corporation (ICN 7761) on 30 August 2012, and the State of Queensland on 6 September 2012 and 17 September 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(b) the Jangga People – Ergon Energy agreement between Colin McLennan, Thomas Brown, Dorothy Hustler, Marie McLennan, James Gaston, and Tyrone Tiers on their own behalf and on behalf of the Jangga people, the Bulganunna Aboriginal Corporation (ICN 7761), Ergon Energy Corporation Limited (ACN 087 646 062), and the Bulganunna Aboriginal Corporation RNTBC which was authorised by the native title claim group on 15 August 2012 and executed by Colin McLennan on 21 August 2012, Thomas Brown on 20 August 2012, Dorothy Hustler on 14 September 2012, Marie McLennan on 23 August 2012, James Gaston on 30 August 2012 and Tyrone Tiers on 14 September 2012, the Bulganunna Aboriginal Corporation (ICN 7761) on 30 August 2012, and Ergon Energy Corporation Limited on 13 September 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(c) the Jangga People and Charters Towers Regional Council, Isaac Regional Council and Whitsunday Regional Council indigenous land use agreement (QI2007/007) between Thomas Brown, James Gaston, Dorothy Hustler, Colin McLennan, Marie McLennan and Tyrone Tiers as the registered native title claimants for Native Title Determination Application QUD6230/98 Jangga People and Isaac Regional Council, Charters Towers Regional Council and Whitsunday Regional Council entered on the Register of Indigenous Land Use Agreements on 11 February 2010;
(d) the Jangga/Amphion and Bingeringo ILUA between the Applicant and Neil Alan Angus, Narelle Gaye Angus and Luke Gregg Angus, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(e) the Jangga/Arundel ILUA between the Applicant and Susan Bessie Shann and Harry Athol Shann, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(f) the Jangga/Avalon, Cerito, Mount Lookout and Rosetta Creek ILUA between the Applicant and Edward Peter Mason, Mora Ellen Mason and Valda Ann Mason, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(g) the Jangga/Avon Downs ILUA between the Applicant and Richard Hugh Simmons and Robyn Jane Simmons, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(h) the Jangga/Billiwallah ILUA between the Applicant and William Dale Appleton and Kristine Margaret Appleton, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(i) the Jangga/Bilyana, Bungobine, Eaglefield and Emin ILUA between the Applicant and Edward Peter Mason, Mora Ellen Mason, Valda Ann Mason, Eagle Field Pastoral Company Pty Ltd, Rhodes Creek Pastoral Company Pty Ltd, Emin Pastoral Company Pty Ltd and Bilyana Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(j) the Jangga/Bobby Dazzler Creek ILUA between the Applicant and Mora Ellen Mason, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(k) the Jangga/Bundoba, Camberwell, Verbena and Yacamunda ILUA between the Applicant and John Barry Scott, Coral May Scott, Owen Bryon Scott and Gavin Wayne Scott, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(l) the Jangga/Caerphilly ILUA between the Applicant and Blue Sky Trading (NQ) Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(m) the Jangga/Danae ILUA between the Applicant and Robert Andrew Andison, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(n) the Jangga/Disney ILUA between the Applicant and Paul Joseph Kirkwood, Margaret Agnes Kirkwood and Timothy John Kirkwood, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(o) the Jangga/Dooyne ILUA between the Applicant and Coovin Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(p) the Jangga/Durdham ILUA between the Applicant and Daniel John Turley and Marie Ann Turley, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(q) the Jangga/Elgin Downs ILUA between the Applicant and Elgin Downs Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(r) the Jangga/Frankfield ILUA between the Applicant and Frankfield Pastoral Company CQ Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(s) the Jangga/Glen Easter, Mount Wyatt and Sellheim ILUA between the Applicant and Dooruna Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(t) the Jangga/Glendon ILUA between the Applicant and George William Nicolson, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(u) the Jangga/Goodoawada, Old Twin Hills and Waminda ILUA between the Applicant and Edwin Francis Dennis, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(v) the Jangga/Gunjulla ILUA between the Applicant and Stratford Pastoral Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(w) the Jangga/Gunnadoo (aka Cramoisie) ILUA between the Applicant and Central (Qld) Holdings Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(x) the Jangga/Ill-I-Ra (aka Bungobine) ILUA between the Applicant and John Peter Pastega and Helen Pastega, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(y) the Jangga/Kenilworth ILUA between the Applicant and Kelvin Cedric Maloney, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(z) the Jangga/Lanark ILUA between the Applicant and New Twin Hills Pastoral Company Pty Ltd, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(aa) the Jangga/Larne ILUA between the Applicant and Brian Allan Corbett and Lorraine Ellen Corbett, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(bb) the Jangga/Llanarth ILUA between the Applicant and William Terrence Kenny, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(cc) the Jangga/McGregor Creek ILUA between the Applicant and Colin Deane Hewitt and Linda Elizabeth Hewitt, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(dd) the Jangga/Moonlight Creek ILUA between the Applicant and Robert Duckett and Lillian Mary Duckett, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(ee) the Jangga/Mount Dillingen ILUA between the Applicant and Margaret Mary Flohr and Ross William Flohr, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(ff) the Jangga/Mount McConnel ILUA between the Applicant and Meryl Elizabeth Glenwright, Dawn Elizabeth Glenwright and Jon Alan Glenwright, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(gg) the Jangga/Panitya and Startlemere ILUA between the Applicant and Christopher William Allingham, Lorna Patricia Allingham and Ainslie Bruce Mackenzie Templeton, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(hh) the Jangga/Pinang ILUA between the Applicant and Jonathon Charles Philip and Margaret Elvey Philp, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(ii) the Jangga/Rossmore ILUA between the Applicant and Beryl Angus Hall, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(jj) the Jangga/Scartwater ILUA between the Applicant and Reginald Jospeh Pedracini, Beverley Isabell Jane Pedracini and Ian Benjamin Pedracini, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(kk) the Jangga/Suttor Creek ILUA between the Applicant and Henry Raymond Gillham and William Raymond Gillham, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(ll) the Jangga/Teviot Brook ILUA between the Applicant and Allan Gordon Homer Williams, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(mm) the Jangga/Ukalunda ILUA between the Applicant and George Edward Whalan and Marion Catherine Whalan, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(nn) the Jangga/Urella ILUA between the Applicant and Dale Gordon Frincis Dennis and Lorissa Dennis, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(oo) the Jangga/Warrigal ILUA between the Applicant and Richard McAulay Powell, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(pp) the Jangga/Wilandspey ILUA between the Applicant and Ralph Eric Martel, which was authorised by the native title claim group on 15 August 2012, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(qq) the Jangga/Wirralie ILUA between the Applicant and Joyce Iris Crocker, which was authorised by the native title claim group on 15 August 2012, 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
(rr) the Jangga/Wyarra (aka Why Not) ILUA between the Applicant and Stephen John Plath and Jennifer Maria Plath, which was authorised by the native title claim group on 15 August 2012, 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 holders of any authorities, licences, permits or allocations under the Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under that Act.
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, including the following leases and permits:
| Pastoral Development Holding 12/3279 comprising Lot 3279 on Plan PH1787 and commonly known as Ill-I-Ra (aka Bungobine); |
| Pastoral Development Holding 12/3821 comprising Lot 3821 on Plan PH1304 and commonly known as Gunjulla; |
| Pastoral Development Holding 12/5189 comprising Lot 4 on Plan SP116046 and commonly known as Disney; |
| Pastoral Development Holding 30/682 comprising Lot 682 on Plan CP906890 and commonly known as Suttor Creek; |
| Pastoral Holding 0/221638 comprising Lot 18 on Plan SP208194 and commonly known as Teviot Brook; |
| Pastoral Holding 11/2835 comprising Lot 1 on Plan MRY54 and commonly known as McGregor Creek; |
| Pastoral Holding 11/3323 comprising Lot 1 on Plan CY20 and commonly known as Panitya; |
| Pastoral Holding 11/668 comprising Lot 10 on Plan SM79 and Lot 6 on Plan SM86 and commonly known as Mount McConnel; |
| Pastoral Holding 12/2522 comprising Lot 1 on Plan AY31 and commonly known as Larne; |
| Pastoral Holding 12/3235 comprising Lot 3235 on Plan PH752 and commonly known as Old Twin Hills; |
| Pastoral Holding 12/3291 comprising Lot 1 on Plan SP147546 and commonly known as Goodoawada; |
| Pastoral Holding 12/3309 comprising Lot 3309 on Plan PH1532 and commonly known as Urella; |
| Pastoral Holding 12/3366 comprising Lot 3366 on Plan PH1455 and commonly known as Amphion; |
| Pastoral Holding 12/3615 comprising Lot 3615 on Plan PH681 and commonly known as Wyarra (aka Why Not); |
| Pastoral Holding 12/3978 comprising Lot 3978 on Plan PH772 and commonly known as Dooyne; |
| Pastoral Holding 12/5059 comprising Lot 5059 on Plan PH386 and commonly known as Bundoba; |
| Pastoral Holding 12/5269 comprising Lot 5269 on Plan PH1533 and commonly known as Waminda; |
| Pastoral Holding 12/5280 comprising Lot 3 on Plan SP147546 and commonly known as Billiwallah; |
| Pastoral Holding 12/5282 comprising Lot 5282 on Plan PH1570 and commonly known as Bingeringo; |
| Pastoral Holding 12/5417 comprising Lot 10 on Plan BL49 and commonly known as Avon Downs; |
| Pastoral Holding 12/642 comprising Lot 10 on Plan BL58 and commonly known as Frankfield; |
| Pastoral Holding 12/656 comprising Lot 656 on Plan SP138788 and commonly known as Lanark; |
| Pastoral Holding 12/691 comprising Lot 691 on Plan PH1291 and commonly known as Yacamunda; |
| Pastoral Holding 5/1496 comprising Lot 1496 on Plan CP851494 and commonly known as Glendon; |
| Pastoral Holding 5/2208 comprising Lot 1 on Plan DK244 and commonly known as Pinang; |
| Pastoral Holding 5/4779 comprising Lot 4779 on Plan PH1806 and commonly known as Ukalunda; |
| Pastoral Holding 5/5042 comprising Lot 7 on Plan SM92 and commonly known as Mount Wyatt; |
| Pastoral Holding 5/5431 comprising Lot 4 on Plan SM7 and commonly known as Glen Easter; |
| Pastoral Holding 5/5432 comprising Lot 5 on Plan SM7 and commonly known as Sellheim; |
| Pastoral Holding 5/667 comprising Lot 667 on Plan PH1321 and commonly known as Mount Lookout; |
| Pastoral Holding 66/624 comprising Lot 5060 on Plan PH387 and commonly known as Camberwell; |
| Permit to Occupy 0/210944 comprising Lot A on Plan AP2812; |
| Preferential Pastoral Holding 11/3404 comprising Lot 9 on Plan MRY36 and commonly known as Danae; |
| Preferential Pastoral Holding 11/3459 comprising Lot 1 on Plan MRY40 and commonly known as Startlemere; |
| Preferential Pastoral Holding 12/3408 comprising Lot 1 on Plan AY27 and commonly known as Wilandspey; |
| Preferential Pastoral Holding 12/5068 comprising Lot 5068 on Plan PH449 and commonly known as Durdham; |
| Preferential Pastoral Holding 12/5070 comprising Lot 5070 on Plan PH1056 and commonly known as Rossmore; |
| Preferential Pastoral Holding 12/5078 comprising Lot 5078 on Plan PH955 and commonly known as Llanarth; |
| Preferential Pastoral Holding 12/5086 comprising Lot 5086 on Plan M100 and commonly known as Kenilworth; |
| Preferential Pastoral Holding 12/5088 comprising Lot 5088 on Plan SM101 and commonly known as Warrigal; |
| Preferential Pastoral Holding 5/4969 comprising Lot 3 on Plan CP851492 and commonly known as Arundel; |
| Preferential Pastoral Holding 5/4970 comprising Lot 5 on Plan SM84 and commonly known as Gunnadoo (aka Cramoise); |
| Stud Holding 12/637 comprising Lot 637 on Plan PH1980 and commonly known as Elgin Downs; |
| Term Lease 0/235588 comprising Lot 5 on Plan DK103; |
| Term Lease 0/207430 comprising Lot 2 on Plan SM12; |
| Term Lease 0/209654 comprising Lot 4 on Plan DK31; |
| Term Lease 0/212487 comprising Lot A on Plan SM63; |
| Term Lease 0/231889 comprising Lot 7 on Plan MRY39 and Lot 9 on Plan MRY50 and commonly known as Moonlight Creek; |
| Term Lease 0/231890 comprising Lot 3450 on Plan PH2118 and commonly known as Caerphilly; |
| Term Lease 0/232153 comprising Lot 1816 on Plan PH1315 and commonly known as Emin; |
| Term Lease 0/232154 comprising Lot 636 on Plan PH2182 and commonly known as Eaglefield; |
| Term Lease 0/232167 comprising Lot 3388 on Plan PH2112 and commonly known as Bilyana; |
| Term Lease 0/232169 comprising Lot 1510 on Plan SP171920 and commonly known as Cerito; |
| Term Lease 0/232171 comprising Lot 3540 on Plan PH2135 and commonly known as Rosetta Creek; |
| Term Lease 0/232176 comprising Lot 1 on Plan SM15 and commonly known as Avalon; |
| Term Lease 0/232178 comprising Lot 2 on Plan SM9 and Lot 1 on Plan SM10 and commonly known as Bobby Dazzler Creek; |
| Term Lease 0/232179 comprising Lot 3570 on Plan PH2142 and commonly known as Bungobine; |
| Term Lease 0/233595 comprising Lot 1943 on Plan SP221555 and commonly known as Verbena; |
| Term Lease 0/234397 comprising Lot 3272 on Plan 237696 and commonly known as Wirralie; |
| Term Lease 0/234631 comprising Lot 3 on Plan SM93 and commonly known as Scartwater; and |
| Term Lease 0/234678 comprising Lot 5305 on Plan SP240414 and commonly known as Mount Dilligen. |
4. The rights and interests of the State of Queensland and the holders of any leases, agreements, licences, permits or authorities pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of:
(a) Wilandspey Conservation Park; and
(b) Blackwood National Park.
5. The rights and interests of the State of Queensland and any other person (as applicable) existing under or by reason of the force and operation of the Forestry Act 1959 (Qld) and any subordinate legislation, declarations or management plans made under that Act.
6. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld) or under the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld) in the Determination Area as may be current as at the date of the determination.
7. The rights and interests of Xstrata Coal Queensland Pty Ltd (ACN 098 156 702):
(a) as the holder of mining leases ML 4748, ML 4771, ML 4774 and ML 4761 granted under the Mineral Resources Act 1989 (Qld);
(b) as the holder of exploration permits EPC 727, EPC 976 and EPC 977 granted under the Mineral Resources Act 1989 (Qld);
(c) as lessee under pastoral holding PDH 5/3807 on Lot 3 on Plan SP171922;
(d) arising under the Cultural Heritage Management Plan Implementation Agreement - Suttor Creek Mining Lease between Xstrata Coal Queensland Pty Ltd and the Applicant dated 30 November 2004;
(e) arising under the Deed Regarding the Grant of Mining Lease Surface Area pursuant to s 31 of the Native Title Act 1993 (Cth) for ML 4761 between Xstrata Coal Queensland Pty Ltd, ICRA NCA Pty Limited, Sumisho Coal Australia Pty Ltd, Itochu Coal Resources Australia Pty Limited, the Applicant and the State of Queensland dated 13 December 2005 (the “Section 31 Deed”) and associated “Ancillary Agreement” as defined in the Section 31 Deed between Xstrata Coal Queensland Pty Ltd, ICRA NCA Pty Limited, Sumisho Coal Australia Pty Ltd, Itochu Coal Resources Australia Pty Limited and the Applicant; and
(f) arising under the Suttor Creek Access Road Agreement between Xstrata Coal Queensland Pty Ltd and Colin McLennan, Thomas Brown, Dorothy Hustler, Marie McLennan, and James Gaston on their own behalf and on behalf of the Jangga People Native Title Claim Group dated 6 February 2004, and under the Deed of Confirmation and Assumption for the Suttor Creek Access Road between Xstrata Coal Queensland Pty Ltd, Paul Butterworth and Tyrone Tiers dated 30 November 2004.
8. The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):
(a) as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), including:
(i) rights in relation to any agreement relating to the Determination Area existing or entered into before the date of the determination;
(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.
9. The rights and interests of Queensland Electricity Transmission Corporation Limited (ACN 078 849 233) trading as Powerlink Queensland as an electricity entity exercising statutory functions, power or rights, and as the owner and operator of electricity transmission facilities and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area in order to access, use, maintain, repair, replace, upgrade, or otherwise deal with those facilities and infrastructure in accordance with the law.
10. The rights and interests of Isaac Regional Council, Charters Towers Regional Council and Whitsunday Regional Council including any rights the Councils, their employees, agents or contractors have:
(a) under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within their local government area, as defined in the Local Government Act 2009 (Qld);
(b) as the:
(i) lessor under any leases which were entered into as at the date of the determination;
(ii) grantor of any licences or other rights and interests which were granted as at the date of the determination;
(iii) holder of any estate or interest in land, and as trustee of any reserves, that exist in the Determination Area as at the date of the determination;
(c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the determination, including but not limited to:
(i) dedicated roads operated by Council;
(ii) gravel pits operated by Council;
(iii) undedicated but constructed roads except for those not operated by Council;
(iv) water pipelines and other water supply infrastructure;
(v) drainage facilities;
(vi) cemetery and cemetery related facilities; and
(d) to enter the land described in paragraph 10 to:
(i) exercise any of the rights and interests referred to in paragraph 10;
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in sub-paragraph 10(c); and
(iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.
11. The rights and interests of QCoal Pty Ltd (ACN 010 911 234) and any Related Body Corporate or any Related Entity (as those terms are defined in the Corporations Act 2001 (Cth)):
(a) as the holder of exploration permits EPC 614, EPC 739 and EPM 18546 granted under the Mineral Resources Act 1989 (Qld);
(b) as the lessee under term lease described as TL 0/235359 over Lot 689 on Plan SP251696;
(c) arising under the Cultural Heritage Management Plan between Byerwen Coal Pty Ltd and Colin McLennan, James Gaston, Thomas Brown, Tyrone Tiers, Dorothy Hustler and Marie McLennan on their own behalf and on behalf of the Jangga People dated 23 June 2011; and
(d) arising under the Deed Regarding the Grant of Mining Leases 70434 and 70436 pursuant to section 31(1)(b) of the Native Title Act 1993 (Cth) between the State of Queensland, the Jangga People and Byerwen Coal Pty Ltd dated 21 July 2011 (the “Section 31 Deed”) and associated “Ancilliary Agreement” as defined in the Section 31 Deed between Byerwen Coal Pty Ltd and the Jangga People.
12. The rights and interests of Telstra Corporation Limited (ACN 051 775 556):
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(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.
13. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) stock routes; and
(d) areas that were public places at the end of 31 December 1993.
14. The rights and interests of members of the public arising under the common law, including but not limited to the public right to fish.
15. Any other rights and interests:
(a) held by the State of Queensland or Commonwealth of Australia; or
(b) existing by reason of the force and operation of the Laws of the State or the Commonwealth.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| QUEENSLAND DISTRICT REGISTRY | |
| GENERAL DIVISION | QUD 6230 of 1998 |
| BETWEEN: | COLIN MCLENNAN, THOMAS BROWN, JAMES GASTON, DOROTHY HUSTLER, MARIE MCLENNAN AND TYRONE TIERS ON BEHALF OF THE JANGGA PEOPLE Applicant |
| AND: | STATE OF QUEENSLAND First Respondent CHARTERS TOWERS REGIONAL COUNCIL Second Respondent ISAAC REGIONAL COUNCIL Third Respondent WHITSUNDAY REGIONAL COUNCIL Fourth Respondent ERGON ENERGY CORPORATION LIMITED Fifth Respondent QCOAL PTY LTD Sixth Respondent TALBOT GROUP EXPLORATION PTY LTD Seventh Respondent XSTRATA COAL QUEENSLAND PTY LTD Eighth Respondent COLINTA HOLDINGS PTY LTD Ninth Respondent CHRISTOPHER W ALLINGHAM, LORNA P ALLINGHAM, JOSEPHINE VIOLET ANGUS, BLAIR JOHN ANGUS, CLOVA MARIE ANGUS, NEIL ALAN ANGUS, BRIAN CORBETT, LORRAINE CORBETT, JOYCE IRIS CROCKER, EDWIN FRANCIS DENNIS, PATRICIA ROBYN DENNIS, LILLIAN MARY DUCKETT, ROBERT DUCKETT, ROSS WILLIAM FLOHR, MARGARET MARY FLOHR, MERYL ELIZABETH GLENWRIGHT, DAWN ELIZABETH GLENWRIGHT, JON ALAN GLENWRIGHT, WILLIAM TERENCE KENNY, KELVIN CEDRIC MALONEY, EDWARD PETER MASON, MORA ELLEN MASON, VALDA ANN MASON, HELEN PASTEGA, JOHN PETER PASTEGA, MARGARET ELVEY PHILP, JONATHON CHARLES PHILIP, JENNIFER MARIA PLATH, STEPHEN JOHN PLATH, RICHARD MCAULAY POWELL, ROBYN JANE SIMMONS, RICHARD HUGH SIMMONS, AINSLIE BRUCE MCKENZIE TEMPLETON, MARION CATHERINE WHALAN, GEORGE EDWARD WHALAN, KRISTINE MARGARET APPLETON AND WILLIAM DALE APPLETON Tenth Respondent |
| JUDGE: | RARES J |
| DATE: | 9 OCTOBER 2012 |
| PLACE: | GLENDEN, QUEENSLAND |
REASONS FOR JUDGMENT
1 A large freshwater mussel called “jangga” abounds in the Suttor River and its many tributaries in the flat country in Central Queensland between the Great Dividing Range to the west and the Denham and Leichhardt Ranges to the east. The jangga mussel is emblematic of the Jangga people who are the traditional owners of that country.
2 The first known contact between Europeans and the indigenous people of the area occurred in March 1845 when Ludwig Leichhardt and his expedition traversed the area while following the Suttor River downstream. He visited four Aboriginal encampments meeting many of the indigenous people and he was able to observe their use and occupation of the area. Europeans began settling in this area from 1861. That activity led to disputes with the indigenous inhabitants that for more than a century affected their enjoyment of their rights and interests. Although it is not part of the evidence, the poet, Judith Wright, wrote two books about her family’s history that included her grandfather’s experiences with the Jangga people on Avon Downs station in the late 1860s: The Generations of Men (Oxford University Press, Melbourne, 1959) and The Cry for the Dead (Oxford University Press, Melbourne, 1981). By late September 1868, the squatters had had four years of conflict with the Jangga people. No rain had fallen. Her grandfather wrote in his diary that he had seen Aborigines who had stepped out of the shade and were lean and hungry men. She continued the story:
“Musselshells hung over their foreheads, tied in wild hair, and they wore necklaces of reeds and carried barbed spears.” (The Cry for the Dead pp 146, 148)
3 The consent determination that the Court will make today under s 87 of the Native Title Act 1993 (Cth) has been less confronting. It will recognise and confirm the legally enforceable rights and interests that the Jangga people can and do exercise and enjoy on the lands and waters they call their country. The terms of this consent determination have been negotiated by the parties to these proceedings. Each of them claimed rights and interests in relation to the land and waters it affects. The final agreement for the determination was executed on behalf of all of the parties and filed 2 October 2012.
The nature of a consent determination
4 Native title was recognised and protected by our nation’s common law in the landmark decision of Mabo v State of Queensland [No 2] (1992) 175 CLR 1 and by the Parliament of the Commonwealth when it passed the Act the following year. Those important legal steps enabled indigenous Australians and their descendants to satisfy the very human desire to identify with, enjoy and feel a part of their cultural heritage on land and waters with which they have, and feel, a spiritual and emotional connection. When the Court makes an order for a determination of native title, it exercises the judicial power of the Commonwealth, on behalf of the whole of the Australian community, to validate the indigenous claimants’ rights and interests as having the force of law in both social systems: cf Long v Northern Territory of Australia [2011] FCA 571 at [6] per Mansfield J.
5 A determination by the Court that native title exists serves many important purposes, as the preamble to the Act acknowledges. These include the recognition of the entitlement of indigenous Australians to enjoy rights and interests in the land and waters, in accordance with their peoples’ traditional laws and customs. Those rights and interests were not previously recognised, following European settlement and the displacement and frequent dispossession of indigenous Australians. However, from today, the rights and interests of the Jangga people will be protected by the force of law so that the current and future descendants of the original indigenous inhabitants before 1861 will enjoy rights and interests that their ancestors had.
6 The Court has not had a trial to establish the applicant’s claim on its merits. Even so, the Court has an important power to make a determination that native title over land and waters exists under s 87 of the Act once all of the parties have signed a written agreement and provided certain other conditions are met. In these proceedings, the State of Queensland has consented to the making of the determination of native title. Before the Court can make the orders recognising native title, it must be satisfied that the consent determination has been reached after proper consideration by the parties, particularly the State, of all of the matters that the Act requires be established. This consensual process depends upon the executive government of each State and Territory in whose jurisdiction the claim is made taking an active role in the litigation. The government must scrutinise carefully any claim for native title in order to seek to protect the interests of the whole community that it represents: Munn v State of Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J. I will now deal with the legal and factual issues that I must decide in order to make the consent determination.
The application
7 The application claimed that the Jangga people held the rights and interests comprised in their native title both before, and continuously after, European settlement and the exercise of British, and then Australian, sovereignty over those lands and waters.
8 The applicant comprises representatives of the descendants of the Jangga people who are recognised by their traditional laws and customs as persons entitled to enjoy and exercise native title over the land and waters in an area of about 20,350 square kilometres that spans three local government areas of the Charters Towers, Isaac and Whitsunday Regional Councils.
9 The area is located west of Mackay. In broad terms, its eastern most point is Glenden, where the Court is sitting today. The boundary runs north west along the Leichhardt Range and crosses the Suttor River near the Burdekin Dam before turning south south west and running down towards the Great Dividing Range. Then the boundary turns east traversing the Belyando River and Mistake Creek before running nor-nor east along the Denham Range and finishing at Glenden. A rough map of the area is below, but this does not depict the excision of the land that is not claimed, such as the towns of Mt Coolon and Glenden as well as many convertible leases. Those excisions give the actual area, which will be the subject of the Court’s orders, a speckled appearance.
10 These proceedings began over 14 years ago on 2 April 1998 when a claim was lodged with the Native Title Registrar. Following amendments to the Act, that claim was made an application for a determination of native title in this Court as from 30 September 1998. The application was accepted for registration under s 66 of the Act by the Native Title Registrar on 7 July 2000. The notification period under s 66(3) of the Act ended on 12 September 2001 (see: s 87(1)). The application was amended in July 2004 and the registrar accepted the amended application for registration on 19 October 2004.
11 On 19 September 2012 a further amended application was filed. The recent amendment reflected the results of anthropological research and the agreements reached between the parties as to the scope of the Jangga people’s claim including agreements to exclude certain previously claimed lands and waters.
12 The current respondents who elected to be joined to these proceedings are the State, Charters Towers, Isaac and Whitsunday Regional Councils, Ergon Energy Corporation Limited, QCoal Pty Ltd, Xstrata Coal Queensland Pty Ltd, Colinta Holdings Pty Ltd, Talbot Group Exploration Pty Ltd and a number of pastoral interests.
13 Six members of the applicant, together with another member of the claim group, provided affidavit evidence in support of the claim. In April 2011, Daniel Leo, an expert anthropologist, completed a very detailed and lengthy anthropological connection report that provided expert evidence in support of the Jangga people’s claim. In early September 2012, Mr Leo prepared an executive summary of that report for the purpose of this consent determination. He used the affidavits and significant additional material garnered in his site visits, interviews, literature and historical reviews in preparing his report. I am satisfied that the connection report and affidavits have been carefully reviewed by the State, its lawyers and anthropological experts. I am also satisfied that the State has also conducted a satisfactory analysis of lands and waters affected by the consent determination.
14 Mr Leo’s research led him to opine that the Jangga people:
were the traditional owners of the lands and waters that they have claimed and occupied them at the time of British sovereignty;
continue to observe very much of the body of traditional laws and customs that the pre-sovereign Aboriginal society observed and by which that society was united;
have maintained a connection to their country through the continued acknowledgment and observance of traditional laws and customs of the society that existed at sovereignty;
as a result, currently possess the traditional rights and interests identified in the consent determination.
The subject matter of the determination
15 Ordinarily, the courts are reluctant to make binding declarations of rights merely because the parties seek this remedy by consent. The reason for this is that it is difficult for the Court to be satisfied that a declaration is appropriately and completely accurately expressed if there has been no contest in the litigation that exposes all the issues and ramifications that would impact on the Court’s appreciation of the precise point to be decided.
16 However, the Act itself creates in s 87 the power to make consent determinations. Therefore, the discretionary limitations ordinarily placed on the Court’s exercise of its power to make a declaration are not necessarily apposite to the issue raised by s 87(1A), namely, whether “it appears to the Court to be appropriate” to make a consent determination. The power must be exercised having regard to the beneficial purpose of the Act and its moral foundation declared in the words of its preamble: Northern Territory of Australia v Alyawarr (2005) 145 FCR 442 at 461 [63] per Wilcox, French and Weinberg JJ.
17 In making a determination that native title exists, even by consent and without a hearing, the Court must set out details of the matters mentioned in s 225 (s 94A). Accordingly, if the Court is asked to make a consent determination, it must be satisfied that there is sufficient evidence before it that would make it appropriate to do so (s 87(1A)). However, it is not necessary to tender evidence as if the consent proceedings were still contested. That is not the purpose for which such evidence is required. Rather, as the Chief Justice of Australia explained, it may be necessary to reassure the Court that a proper basis exists for the determination because “… the agreement is rooted in reality” (The Hon R.S. French AC, Native Title – A Constitutional Shift?, published in: H.P. Lee and P. Gerangelos (ed), Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton, The Federation Press, 2009, pp 126-154 at 152).
18 What evidence will be sufficient will vary from case to case, but it must show that the orders have a substantive and real foundation. Anthropological evidence, such as Mr Leo’s, is often tendered so as to assist the Court in arriving at this degree of satisfaction. The evidence is relevant for the Court to satisfy itself that the parties had a real basis to arrive at their consent and that, accordingly, it is appropriate for the Court to exercise its judicial power by making binding orders. Indeed, in the first place, because of its cogency, the same evidence is likely to have induced the respondents to consent to the making of the determination of native title.
19 I have considered the evidence of Mr Leo on this basis, together with the other evidence. His connection report included genealogies that he prepared, of all of the persons who were identified as ancestors of the claim group in the present version of the application. Mr Leo drew on an earlier anthropological connection report by Dr Sandra Pannell which was used in support of a consent determination that I made last year for the Juru people (Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819.
20 Dr Pannell concluded from her research, and Mr Leo confirmed from his further work, that the Juru and Jangga peoples were each a tribe, clan, community, subset or societal grouping within the larger Birri Gubba society or cultural block. Mr Leo opined that this wider society had a clearly recognisable regional system of common languages, traditions, laws and customs within which the smaller tribal entities with their own dialects, as well as individual traditions, laws and customs existed. Both anthropologists noted that the Birri Gubba society had one division between peoples who were gudjuda – saltwater or coastal, such as the Juru people, and mungurra – freshwater or inland, such as the Jangga people.
21 Mr Leo opined that like each subset in the Birri Gubba Society, the Jangga people:
had an exclusive affiliation to a defined tract of country;
were comprised of more than one surnamed family, descent group or lineage, descended from acknowledged ancestors, being (for the Jangga people), the respective lineages of descendants of:
(a) Charlie Tiers;
(b) Dick Hegarty (also known as Dinduk);
(c) Pompey Earl, Albert Twist and Charlie Pinkipie and his wife or partner Judy Pinkipie;
(d) the brothers Mick Havilah (also known as Cotherstone) and Johnny Havilah;
(e) Dick Cook and his wife or partner Lily Cook;
(f) Billy (also known as King Billy) and his wife or partner Clara (also known as Queen Clara).
22 Mr Leo opined that the last of those lineages had no presently known descendants. He also observed that because of intermarriages between subsets in the Birri Gubba Society, individuals, families and even lineages can be affiliated to more than one of those subsets. After the final agreement was filed on 2 October 2012 I asked the Registrar to clarify with the parties the correct spelling of the name “Dinduk” which had been set out in the proposed orders spelt as “Dinduck”, but had been included with both spellings in Mr Leo’s report. The parties agreed that the name should have been spelt “Dinduk” and I have made that change to Schedule 3 of the orders.
23 The story of Glen Eva station gives one remarkable instance of connection for the Jangga people to their country. George Patullo was part of an early European settler family. He held a 20 year pastoral lease of Glen Eva from 1911. This station is about 20 kilometres south west of Mt Coolon. He previously held yearly occupation licences from at least 1906. When he died in 1928, Lily Talbot, an Aboriginal, and reputedly Jangga woman, who had been George’s partner, inherited the lease. She was subsequently granted a new 30 year lease in April 1929. On her death, Lorna Anderson, the grandmother of two members of the applicant, Colin and Marie McLennan, inherited a half share, the other half going to Mary O’Singh who in 1949 transferred her interest to Lorna. When Lorna died intestate in 1961, Dorothy McLennan and Jim Clark inherited the station and they were granted a new 30 year lease. However, after 42 years of indigenous ownership, the lease was sold in early 1970.
24 Mr Leo opined, based on both the oral histories and archival data, that Glen Eva played a central role in maintaining the connection of Jangga people to their country. He wrote that at least four generations of Jangga people, as well as members of other Birri Gubba subsets, had lived and worked on Glen Eva. There, Mr Leo observed, they were taught about their country, culture and history by their own, or other Birri Gubba, elders.
25 Mr Leo’s executive summary and connection report deal with his extensive work to found his opinion. He opined based on his and other’s research, that the Jangga people possess the rights and interests in the lands and waters that they claim under their traditional laws and customs that they largely continue to observe. He noted that the laws and customs relating to kinship and class systems were currently latent, but could be revived in the future. With those exceptions, he concluded that the contemporary Jangga people continue to observe the traditional laws and customs of their pre-sovereignty forebears. The affidavit evidence of members of the Jangga people also supports that opinion.
26 For the purpose of considering whether to consent to the orders to be made today, the State considered the material that had been provided to Mr Leo, his anthropological report together with other material that the applicant and it had garnered over the course of the proceedings. It had a senior anthropologist and counsel experienced in native title matters review those materials to determine whether there was a credible basis for the applicant’s claims and whether the requirements of s 223 of the Act had been met. The State’s senior anthropologist, counsel and officers of Crown Law and its Aboriginal and Torres Strait Islander Land Services prepared a response to the applicant’s material. From late June 2011, the applicant and the State entered into substantive negotiations to work towards a consent determination. The parties also worked together in pursuing that goal in mediation with the Tribunal and later in the Court under the guidance of Deputy Registrar Fewings. During this process, the applicants provided further statements to address issues then of concern to the State.
27 Kevin Murphy, the Director of Claim Resolution for Aborignal and Torres Strait Islander Land Services, Department of Natural Resources and Mines gave evidence of the process undertaken by the State to satisfy itself the consent determination reflects rights and interests that are supported by the connection and additional material provided in the way I have described above.
Jurisdictional findings
28 A determination of native title affects the status of the land and waters to which it relates because it creates rights and interests in them that, subject to the Act and the terms of the determination itself, the holders can exercise forever after against any other person, including the Commonwealth and the State: cf Alyawarr 145 FCR at 463 [70]. Because a consent determination, just as a determination after a fully contested hearing, creates this status, the Court must be careful to ensure that the State, as representative of the community generally, has itself played an active role in carefully evaluating the material and evidence on which its consent is based.
29 The approach of the solicitors for the applicant in negotiating the terms of the proposed consent determination and the forty four indigenous land use agreements has been equally thorough and considered. It is safe to infer that the interests of individual parties who also negotiated those indigenous land use agreements have been sufficiently protected by them and, where they had them, their legal representatives.
30 On the basis of Mr Leo’s and the State’s evidence, I am satisfied that a real basis existed that justified the parties entering into the agreement for the consent determination and that there is a sufficient foundation for it to be made, including in respect of the matters mentioned in s 225.
31 In addition, the Court must be satisfied that an order in, or consistent with, the terms of the parties’ signed agreement would be within its power to make if the proceedings had been contested (s 87(1)(c)). As I have noted, the parties have signed their agreement that the Court be asked to make a consent determination in the terms that I will shortly pronounce (s 87(1)(b) and (2)). I am satisfied that an order in, or consistent with, those terms is within the power of the Court for the purposes of s 87(1)(c) and (2) because:
(a) each of the original application, and the current amended application is valid and each was made in accordance with the Act (ss 61, 64, 81);
(b) the amended application relates to an area in relation to which there is no approved determination of native title (ss 13(1)(a), 61A(1));
(c) the proposed orders comply with the requirements of ss 94A and 225 because they set out, in relation to the land and waters specified, the group of persons holding the common or group rights comprising the native title, the nature and extent of each of the native title and other rights and interests, the relationship between those native title and other rights and interests, and specify the extent to which the Juru people’s native title rights and interests to possession, occupation, use and enjoyment of particular lands and waters will or will not be to the exclusion of others.
32 I am satisfied that it is appropriate that the Court make the orders sought as the consent determination without holding a hearing (s 87(2)) for the following reasons. Each of the present parties has been legally represented in the proceedings, at the mediations that have taken place in the Tribunal and the Court as well as in the negotiation of the signed agreement to which the Court is being asked to give effect. The applicant prepared detailed and well researched written submissions in support of the proposed orders. Both the applicant and the State also relied on evidence of their careful preparation and examination of the evidence on which those proposed orders are being sought. In addition, the applicant has negotiated indigenous land use agreements with each of the persons that are recorded as part of the proposed orders. And, the orders reflect the existence of the variety of rights and interests of the State, the parties and other persons under Queensland law to enter the land and waters.
33 There is a very important public interest in the parties to disputes in the Courts being able to negotiate a resolution of their controversy so as to arrive at a solution that they find acceptable. Settlement of disputes assists the whole community in achieving more ready access to the Courts for those cases that require a full hearing on the merits and the delivery of reasons for judgment. Thus, other cases that parties cannot resolve between themselves can be heard more quickly and efficiently because the Court is not required to devote the public resource of its hearing and judicial time to resolving cases that are settled: see too my reasons in Clark v ING Life Limited [2007] FCA 1960 at [25]. This public interest is also reflected expressly in s 87 of the Act and its provisions for mediation.
Determination that the native title is to be held on trust
34 Three members of the applicant, James Gaston, Colin and Marie McLennan have given notice as representatives of the Jangga people that they intend to have the native title held on trust by, Bulganunna Aboriginal Corporation, a prescribed body corporate for the purposes of s 56(2) of the Act. I am satisfied that Marie McLennan was entitled to be nominated as a director of the corporation in her capacity as a descendant of Charlie Tiers and, secondly, Mr Gaston was entitled to be nominated as a director in his capacity as a descendant of Pompey Earl. The corporation consented to its proposed appointment on the same day. I am satisfied by the evidence of David Saylor, a solicitor for the applicant, that this corporation is a prescribed body corporate, properly constituted and an appropriate person to hold the native title on trust for the purposes of s 56 of the Act.
The procedural history
35 The Parliament’s 1993 preamble to the Act recited that:
“It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests.”
36 Unfortunately, these proceedings have taken a very long time to reach the present position. Indeed, in 2009 and early 2010, it appeared that the application would be dismissed. Since mid 2010, the parties in these proceedings accepted that it was their duty, as well as in their interests, to focus on the real issues. It is apparent that a great deal of fruitful work has been done since then and all of the parties may take pride in having been able to achieve a very complex but clearly mutually satisfactory result. This has resulted in the position that the Court can today make a consent determination.
Conclusion
37 For these reasons, I am satisfied that it is appropriate to make the consent determination in the terms proposed. The Court congratulates the parties on achieving a resolution that gives the Jangga people rights and interests that will henceforward be protected by both their own system of law and the orders of this Court made today pursuant to the judicial power of the Commonwealth under the Constitution of Australia.
| I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
