FEDERAL COURT OF AUSTRALIA

Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377

Citation:	Greenwool for and on behalf of the Kowanyama People v State of Queensland [2012] FCA 1377
Parties:	GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, KOWANYAMA ABORIGINAL SHIRE COUNCIL, CARPENTARIA SHIRE COUNCIL, COOK SHIRE COUNCIL, TABLELANDS REGIONAL COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD, HARVEST HOME HOLDINGS PTY LTD, MDH PTY LTD, DOUGLAS PRICE and AIRSERVICES AUSTRALIA
File number:	QUD 6119 of 1998
Judge:	DOWSETT J
Date of consent determination:	5 December 2012
Place:	Kowanyama
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	33
Solicitor for the Applicant:	Mr M Moharich of Cape York Land Council
Solicitor for the First Respondent:	Mr S Grant of Crown Law
Solicitor for the Second Respondent:	The Second Respondent did not appear
Solicitor for the Third and Sixth Respondents:	The Third and Sixth Respondents did not appear
Solicitor for the Fourth, Fifth and Tenth Respondents:	The Fourth, Fifth and Tenth Respondents did not appear
Solicitor for the Seventh Respondent:	The Seventh Respondent did not appear
Solicitor for the Eighth and Thirteenth Respondents:	The Eighth and Thirteenth Respondents did not appear
Solicitor for the Ninth Respondent:	Mr P Gore of Gore & Associates
Solicitor for the Tenth, Eleventh and Twelfth Applicants:	The Eleventh and Twelfth Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6119 of 1998

BETWEEN:

GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE Applicants

AND:

STATE OF QUEENSLAND First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent KOWANYAMA ABORIGINAL SHIRE COUNCIL Third Respondent CARPENTARIA SHIRE COUNCIL Fourth Respondent COOK SHIRE COUNCIL Fifth Respondent TABLELANDS REGIONAL COUNCIL Sixth Respondent ERGON ENERGY CORPORATION LIMITED Seventh Respondent TELSTRA CORPORATION LIMITED Eighth Respondent GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD Ninth Respondents HARVEST HOME HOLDINGS PTY LTD Tenth Respondent MDH PTY LTD Eleventh Respondent DOUGLAS PRICE Twelfth Respondent AIRSERVICES AUSTRALIA Thirteenth Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	5 DECEMBER 2012
WHERE MADE:	KOWANYAMA

PART B

THE COURT NOTES THAT:

A.    The Applicant has brought Native Title Determination Application QUD 6119 of 1998 (“the Application”) which relates to an area which includes the land and waters the subject of the proposed determination.

B.    On 22 October 2009 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Part A of the area covered by the Application.

C.    The parties to the Application that hold an interest in relation to the land or waters of Part B of the area covered by the Application have asked the Court to make a consent order for a determination of native title over that area.

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A 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.    Native title exists in relation to that part of the Determination Area described in Part 1 of Schedule 2 but does not exist in relation to that part of the Determination Area described in Part 2 of Schedule 2.

3.    The native title is held by the persons described in Schedule 1 (“the native title holders”).

4.    Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to land and waters within the Determination Area are the non-exclusive rights to:

(a)    access, be present on, move about on and travel over the area;

(b)    hunt and fish in or on, and gather from, the land and Water for non-commercial, cultural, spiritual, personal, domestic or communal purposes;

(c)    take, use, share and exchange Natural Resources for non-commercial, cultural, spiritual, personal, domestic or communal purposes;

(d)    take and use the Water for cultural, personal, domestic and non-commercial communal purposes;

(e)    live and camp on the area and for those purposes erect shelters and other structures on the area;

(f)    light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation;

(g)    be buried and bury native title holders within the area;

(h)    conduct ceremonies on the area;

(i)    hold meetings on the area;

(j)    teach on the area the physical and spiritual attributes of the area;

(k)    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 harm; and

(l)    be accompanied on to the area by those persons who, though not native title holders, are:

a)    spouses or partners of native title holders;

b)    people who are members of the immediate family of a spouse or partner of a native title holder

c)    people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or

d)    people who have specialised knowledge based on their training, study or experience who are requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the Determination Area.

5.    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) and other resources legislation.

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

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

(b)    the traditional laws acknowledged and traditional customs observed by the native title holders.

7.    The native title rights and interests referred to in paragraph 4 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

8.    The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

9.    The relationship between the native title rights and interests described in paragraph 4 and the other rights and interests described in Schedule 4 (the “other rights and interests”) is that:

(a)    the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    where the non-extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests:

(i)    the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and

(ii)    if the other rights and interests are later removed or otherwise permanently cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests;

(c)    the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests; and

(d)    some aspects of the exercise of the native title rights and interests recognised in paragraph 4(e) are regulated by the provisions of the Kowanyama Pastoral Area ILUA.

10.    If a word or expression is not defined in this order and is defined in the Native Title Act 1993 (Cth), it has the meaning given to it in the Native Title Act 1993 (Cth).

In addition to the other words defined in this order, the words and expressions used have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:

“Determination Area” means the land and waters described in Schedule 2 and shown on the plan in Schedule 3, and to the extent of any inconsistency between them, Schedule 2 prevails;

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

“Local Government” has the meaning given in the Local Government Act 2009 (Qld);

“Natural Resources” includes:

(a)    animals;

(b)    plants; and

(c)    charcoal, wax, resin, clay, soil, sand, shell, gravel, rock or other such material naturally occurring in the land and waters of the Determination Area,

but does not include:

(d)    animals that are the private personal property of another;

(e)    crops that are the private personal property of another; and

(f)    minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);

“Koolatah Station ILUA” means the Udnat Ampungk Indigenous Land Use Agreement (Area Agreement) for Koolatah Station Pastoral Holding between Glennette Greenwool & ors and Elrose Enterprises Pty Ltd ACN 101 640 591 dated 23 February 2006;

“Kowanyama Pastoral Area ILUA” means the Kowanyama Pastoral Area Indigenous Land Use Agreement (Area Agreement) between the Applicant, the Abm Elgoring Ambung Aboriginal Corporation, MDH Pty Ltd, Douglas Price, Harvest Home Holdings Pty Ltd and the State of Queensland authorised by the Kowanyama People on 20 November 2012; and

“Water” has the meaning given to it in the Water Act 2000 (Qld) or any subsequent legislative instrument.

THE COURT FURTHER ORDERS THAT:

11.    Upon paragraphs 1 – 10 taking effect:

(a)    The native title is not held in trust.

(b)    The Abm Elgoring Ambung Aboriginal Corporation, 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).

12.    Paragraphs 1 – 10 will take effect on the agreements referred to in item 9 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

13.    In the event that the agreements referred to in item 9 of Schedule 4 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as the Court may order, the matter is to be listed for further directions.

14.    There be liberty to apply in relation to matters arising out of paragraph 11 of this order.

15.    Each party to the proceeding is to bear its own costs.

SCHEDULE 1 – NATIVE TITLE HOLDERS

The native title holders are the Kowanyama People who comprise those people known as the Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin Peoples. The Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples are those Aboriginal people who are:

1.    the cognatic descendants of:

(i)        Solomon Minyalk;

(ii)        Thin Mitin Mart;

(iii)        Min Yal Panaurin;

(iv)        Art Kadlaurin

(v)        any of the siblings Kal Koral, Kor Mart, Min Koko Taren or Mad Len;

(vi)        Pow Mon Alithanem;

(vii)        Kauan Kor Mar’pen;

(viii)        any of the siblings Paul, Rio or Biddy;

(ix)        Yor Kantl Yamen;

(x)        any of the siblings Mark, Barnabas or Kate;

(xi)        Arthur, the father of Smiler Misson;

(xii)        Luke;

(xiii)        any of the siblings Native, Wilson, Akul Edngan, Uyan or Ginger;

(xiv)        any of the siblings Major, Sergeant, Bobella or Gregory;

(xv)        Mickey;

(xvi)        Boandonolly (aka Puntanolli);

(xvii)        George Black (aka Thamil Polp);

(xviii)        either of the brothers “Barramundi” Charlie or Lamp;

(xix)        Gilbert;

(xx)        Eagleman, the father of Barney Jubilee;

(xxi)        Joe Highbury;

(xxii)        Jackson;

(xxiii)        Tent (aka Thol Kol Kith);

(xxiv)        Bruno (aka Wurrpwin)

(xxv)        Min Kawlto Tower Moilin;

(xxvi)        Wo Pam Mal Yamin;

(xxvii)        Mokara Hudson;

(xxviii)        either of the siblings George or Purt Ngon;

(xxix)        Bob Patterson;

(xxx)        Moses (aka War’luran);

(xxxi)        Yowalyamen;

(xxxii)        Jolly;

(xxxiii)        either Mailman or his siblings;

(xxxiv)    any of the siblings Stephen, Louie, Reubin (aka Robin), Jimmy Braddsley, Mabel Rio or Poppy;

(xxxv)        Old Mokara;

(xxxvi)        Taw Wil Yir;

(xxxvii)     Colin Dinghy;

(xxxviii)     Fred Dunbar;

(xxxix)        Alick (aka Alec and Kauwunbengk);

(xl)        Goanna (aka Melder);

(xli)        Pluto;

(xlii)        either Mundie Shalfo or his sister;

(xliii)        Piper;

(xliv)        Willie Daphney;

(xlv)    any of the siblings Fanny, Lucy Tommy, Waterloo, Elsie or Tommy Burns;

(xlvi)        Nipper;

(xlvii)        Dick;

(xlviii)        Peppo;

(xlix)        Ben;

(l)        Smiler;

(li)        Bernard;

(lii)        Monday;

(liii)        Kangaroo;

(liv)        Mosquito;

(lv)        either of the brothers Billy Flower or Goggle-Eye or their siblings;

(lvi)        Jimmy;

(lvii)        either of the brothers Rainbow Christie or Bowyang Charlie;

(lviii)        Nellie;

(lix)        either of the brothers Bob Dunbar or Bendigo or their siblings;

(lx)    any of the siblings Jimmy Koolatah, Coglin Dick, Kunjen Dick or George Murray;

(lxi)        Frank Yam;

(lxii)        Brumby (aka Jack Brumby)

(lxiii)        Old Mud;

(lxiv)        Charlie Inkerman;

(lxv)        any of the siblings Mimosa, Alison or May; or

(lxvi)        Maggie; or

2.    recruited by adoption, in accordance with the traditional laws and customs of the Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples.

SCHEDULE 2 – DETERMINATION AREA

The Determination Area comprises all of the land and waters described in Part 1 and 2 below and depicted in the plan in Schedule 3, excluding the areas in Part 3 below:

Part 1 — Non-exclusive areas:

The land and waters within the area described as Lots 6 and 7 on AP20088 covering:

Area 1

(i)    The land and waters within the area described as commencing at the north eastern corner of Lot 473 on SP206203 (Harkness) and extending generally southerly and generally westerly along boundaries of that Lot and southern boundaries of Lot 4695 on PH1656 (Balurga Pastoral Holding) to the eastern boundary of Lot 19 on DB16 (Kowanyama DOGIT); then generally northerly along the boundary of that Lot to the southern bank of the Coleman River; then generally easterly along the southern bank of that River back to the commencement point.

The following areas are included in the Determination Area:

(ii)    Lot 473 on SP206203

(iii)    Lot 4695 on PH1656

(iv)    Road 60m wide in Lot 473 on SP206203

Area 2

(i)    The land and waters within the area described as commencing at the northern most corner of Lot 13 on CTH3 (Kulata Pastoral Holding) and extending generally south easterly, south westerly, generally southerly and generally westerly along northern and eastern boundaries of that Lot, eastern and southern boundaries of Lot 3 on MM2(Dunbar Holding) to the eastern boundary of Lot 2457 on PH2043 (Galbraith Pastoral Holding); then south along the boundary of that lot to the centreline of the Staaten River, then generally westerly along the centreline of the Staaten River to its intersection with the southern boundary of Lot 2457 on PH2043 and confluence with Wyaaba Creek at approximate longitude 141.589890°, then generally north westerly along the southern boundaries of Lot 2457 on PH2043, southern boundaries of Lot 746 on OL298 and southern and western boundaries of Lot 2322 on PH2031 (Alma Pastoral Holding) to the High Water Mark of the Gulf of Carpentaria at approximate latitude 16.393431° South; then generally northerly along the coastline of the Gulf of Carpentaria at the High Water Mark, and across the mouths of any waterways flowing into the Gulf of Carpentaria between the seaward extremities at High water mark of each of the opposite banks of each such waterway to the northern bank of Topsy Creek being the southern boundary of Lot 19 on DB16; then generally easterly and northerly along boundaries of that Lot to the southern bank of Mitchell River; then generally south easterly along the southern bank of that River to the intersection with the prolongation of the south eastern boundary of Lot 5 on SP215744, (Errk Oykangand National Park); then north easterly to and along the boundary of that lot back to the commencement point.

The following areas are included in the Determination Area:

(ii)    Lot 13 on CTH3

(iii)    Lot 1796 on PH1651

(iv)    Lot 2322 on PH2031

(v)    Part of Lot 2457 on PH2043

(vi)    Lot 2480 on PH2046

(vii)    Lot 2485 on PH2048

(viii)    Lot 3 on MM2

(ix)    Lot 5174 on PH892

(x)    Lot 746 on OL298

(xi)    Lots 1 and 2 on CTH1

Part 2 — Areas within the Determination Area where native title does not exist:

Native Title has been extinguished over the areas of land and waters within the boundaries of the pastoral leases listed at item 1 of Schedule 4 on which any permanent improvement consisting of:

(i)    a house, shed or other outbuilding;

(ii)    an airstrip;

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

(iv)    stock yard or trap yard,

that, at the date of the determination, have been constructed or established (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under the pastoral lease.

Part 3 — Areas excluded from the Determination Area:

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, therefore, in accordance with s 61A of the Native Title Act 1993 (Cth), these areas could not be claimed:

The land or waters on which any other public work, as defined in section 253 of the Native Title Act 1993 (Cth), is constructed, established or situated, and to which sections 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or section 23B(7) of the Native Title Act 1993 (Cth) and section 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with section 251D of the Native Title Act 1993 (Cth).

Note

Reference datum

Geographical coordinates have been provided by the State of Queensland and are referenced to the Geocentric Datum of Australia 1994 in decimal degrees.

SCHEDULE 3 - DETERMINATION PLAN

 

SCHEDULE 4 – OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of Other Interests in the Determination Area are the following as they exist at the date of this Determination:

1.    The rights and interests of:

(a)    the lessee and others under a term lease being title reference No. 40056449 comprising Lot 473 on SP206203;

(b)    the lessee and others under a term lease being title reference No. 17668107 comprising Lot 4695 on PH1656;

(c)    the lessee and others under a term lease being title reference No. 17668057 comprising Lot 1796 on PH1651;

(d)    the lessee and others under a term lease being title reference No. 17668063 comprising Lot 2322 on PH2031;

(e)    the lessee and others under a term lease being title reference No.17668080 comprising Lot 2457 on PH2043;

(f)    the lessee and others under a term lease being title reference No. 17668081 comprising Lot 2480 on PH2046;

(g)    the lessee and others under a term lease being title reference No. 17668082 comprising Lot 2485 on PH2048;

(h)    the lessee and others under a term lease being title reference No. 17668114 comprising Lot 3 on MM2;

(i)    the lessee and others under a term lease being title reference No. 17668119 comprising Lot 5174 on PH892;

(j)    the lessee and others under a term lease being title reference No. 40004783 comprising Lot 746 on OL298;

(k)    the lessee and others under a term lease being title reference No. 17668055 comprising part of Lot 893 on FK2; and

(l)    the lessee and others under a term lease being title reference No. 17669201 comprising Lot 13 on CTH3.

2.    The rights and interests of the State of Queensland in the following reserves, the rights and interests of the persons in whom they are vested and the rights and interests of the persons entitled to access and use those reserves for the respective purpose for which they are reserved:

(a)    title reference No. 49007030 comprising Lot 1 on CTH1

(b)    title reference No. 49007031 comprising Lot 2 on CTH1.

3.    The rights and interests of the State of Queensland and the Cook Shire Council to access, use, operate and maintain the area delineated as road on plan SP206203 for its dedicated purpose and the rights and interests of the public to access and use the road.

4.    The rights and interests of Cook Shire Council including any rights the Council, its employees, agents or contractors have:

(a)    as part of its Local Government powers and responsibilities including under the Local Government Act 2009 (Qld), the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and “Local Government Acts” as defined in the Local Government Act 2009 (Qld);

(b)    as the owner and operator of valid infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination;

(c)    as the operator of undedicated but constructed public roads;

(d)    to enter the Determination Area in compliance with any legislative requirements regarding notice or otherwise -

(i)    to exercise lawful rights conferred on the Council under (a);

(ii)    to inspect, maintain and repair the infrastructure referred to in (b) and (c); and

(iii)    to undertake operational activities in its capacity as a Local Government such as feral animal control, weed control, erosion control, waste management and fire management.

5.    The rights and interests of Carpentaria Shire Council including any rights the Council, its employees, agents or contractors have:

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its local government area, as defined in the Local Government Act 2009 (Qld);

(b)    as the:-

(i)    holder of any validly granted licences, permits or other rights and interests which were granted as at the date of the Determination;

(ii)    trustee of any validly gazetted 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 controlled by Council;

(ii)    gravel pits operated by Council;

(d)    as the manager of undedicated but constructed roads except for those not operated by Council;

(e)    to enter the land described in paragraphs 5(a) to 5(d) in compliance with any legislative requirements regarding notice or otherwise to:

(i)    exercise any of the rights and interests referred to in paragraphs 5(a) to 5(d);

(ii)    inspect, maintain and repair the infrastructure facilities and other improvements referred to in paragraphs 5(c) and 5(d); 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.

6.    The rights and interests of the Tablelands Regional Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), and 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 the declared local government area.

7.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including the rights and interests existing by reason of the force and operation of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under the following legislation:

(a)    the Mineral Resources Act 1989 (Qld);

(b)    the Forestry Act 1959 (Qld);

(c)    the Water Act 2000 (Qld);

(d)    the Integrated Planning Act 1997 (Qld) or the Sustainable Planning Act 2009 (Qld);

(e)    the Transport Infrastructure Act 1994 (Qld); and

(f)    the Land Act 1994 (Qld).

8.    The rights and interests of Telstra Corporation Limited:

(a)    as the owner or operator of telecommunications facilities installed 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 telecommunication facilities in the Determination Area.

9.    The rights and interests of the parties under the following agreements:

(a)    the Koolatah Station ILUA;

(b)    the Kowanyama Pastoral Area ILUA; and

(c)    the Indigenous Land Use Area Agreement between Glenette Greenwool and ors on behalf of the Kowanyama People and Carpentaria Shire Council authorised by the Kowanyama People on 20 November 2012;

10.    The rights and interests of the State of Queensland in those parts of the Staaten-Gilbert and Nassau River fish habitat areas within the Determination Area, as shown on Plan FHA-059 and Plan FHA-061 held by the Department of Agriculture, Fisheries and Forestry and the interests of persons entitled to access and use those habitats.

11.    The rights and interests granted by the State of Queensland pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licenses, permits or authority pursuant to the Fisheries Act 1994 (Qld) and regulations, declarations or management plans made under that Act.

12.    The rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, statutory fishing rights, or other statutory rights pursuant to:

(a)    the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act; and

(b)    any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area.

13.    The rights and interests of members of the public arising under the common law, including but not limited to:

(a)    the public right to fish; and

(b)    the public right to navigate.

14.    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 rights of the public to access and enjoy, the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    coastal waters;

(d)    beaches;

(e)    stock routes; and

(f)    areas that were public places at the end of 31 December 1993.

15.    Any other rights and interests:

(a)    held by the State or Commonwealth; or

(b)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6119 of 1998

BETWEEN:

GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL NMICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE Applicants

AND:

STATE OF QUEENSLAND First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent KOWANYAMA ABORIGINAL SHIRE COUNCIL Third Respondent CARPENTARIA SHIRE COUNCIL Fourth Respondent COOK SHIRE COUNCIL Fifth Respondent TABLELANDS REGIONAL COUNCIL Sixth Respondent ERGON ENERGY CORPORATION LIMITED Seventh Respondent TELSTRA CORPORATION LIMITED Eighth Respondent GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD Ninth Respondents HARVEST HOME HOLDINGS PTY LTD Tenth Respondent MDH PTY LTD Eleventh Respondent AIRSERVICES AUSTRALIA Twelfth Respondent DOUGLAS PRICE Thirteenth Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	5 DECEMBER 2012
WHERE MADE:	KOWANYAMA

PART C

THE COURT NOTES THAT:

A.    The Applicant has brought Native Title Determination Application QUD 6119/98 (“the Application”) which relates to an area which includes the land and waters the subject of the proposed determination.

B.    On 22 October 2009 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Part A of the area covered by the Application.

C.    The parties to the Application that hold an interest in relation to the land or waters of Part C of the area covered by the Application have asked the Court to make a consent order for a determination of native title over that area.

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A 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.    Native title exists in relation to the Determination Area described in Part 1 of Schedule 2.

3.    The native title is held by the persons described in Schedule 1 (“the native title holders”).

4.    Subject to paragraphs 6 and 7, the nature and extent of the native title rights and interests in relation to that part of the Determination Area identified in Schedule 2, other than in relation to Water, are the rights to possession, occupation, use and enjoyment to the exclusion of all others.

5.    Subject to paragraphs 6 and 7 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to:

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

(b)    take and use the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes.

6.    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) and other resources legislation.

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

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

(b)    the traditional laws acknowledged and traditional customs observed by the native title holders.

8.    The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

9.    The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other rights and interests described in Schedule 4 (the “other rights and interests”) is that:

(a)    the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)    where the non-extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests:

(i)    the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and

(ii)    if the other rights and interests are later removed or otherwise permanently cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests; and

(c)    the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests.

10.    If a word or expression is not defined in this order and is defined in the Native Title Act 1993 (Cth), it has the meaning given to it in the Native Title Act 1993 (Cth).

In addition to the other words defined in this order, the words and expressions used have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:

“Determination Area” means the land and waters described in Schedule 2 and shown on the plan in Schedule 3, and to the extent of any inconsistency between them, Schedule 2 prevails;

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

“Local Government” has the meaning given in the Local Government Act 2009 (Qld); and

“Water” has the meaning given to it in the Water Act 2000 (Qld) or any subsequent legislative instrument.

THE COURT FURTHER ORDERS THAT:

11.    Upon paragraphs 1 – 10 taking effect:

(a)    The native title is not held in trust.

(b)    The Abm Elgoring Ambung Aboriginal Corporation, 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)

12.    Paragraphs 1 – 10 will take effect on the agreement referred to in item 8 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

13.    In the event that the agreement referred to in item 8 of schedule 4 is not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as the Court may order, the matter is to be listed for further directions.

14.    There be liberty to apply in relation to matters arising out of paragraph 11 of this order.

15.    Each party to the proceeding is to bear its own costs.

SCHEDULE 1 – NATIVE TITLE HOLDERS

The native title holders are the Kowanyama People who comprise those people known as the Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin Peoples. The Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples are those Aboriginal people who are:

1.    the cognatic descendants of:

(i)        Solomon Minyalk;

(ii)        Thin Mitin Mart;

(iii)        Min Yal Panaurin;

(iv)        Art Kadlaurin

(v)        any of the siblings Kal Koral, Kor Mart, Min Koko Taren or Mad Len;

(vi)        Pow Mon Alithanem;

(vii)        Kauan Kor Mar’pen;

(viii)        any of the siblings Paul, Rio or Biddy;

(ix)        Yor Kantl Yamen;

(x)        any of the siblings Mark, Barnabas or Kate;

(xi)        Arthur, the father of Smiler Misson;

(xii)        Luke;

(xiii)        any of the siblings Native, Wilson, Akul Edngan, Uyan or Ginger;

(xiv)        any of the siblings Major, Sergeant, Bobella or Gregory;

(xv)        Mickey;

(xvi)        Boandonolly (aka Puntanolli);

(xvii)        George Black (aka Thamil Polp);

(xviii)        either of the brothers “Barramundi” Charlie or Lamp;

(xix)        Gilbert;

(xx)        Eagleman, the father of Barney Jubilee;

(xxi)        Joe Highbury;

(xxii)        Jackson;

(xxiii)        Tent (aka Thol Kol Kith);

(xxiv)        Bruno (aka Wurrpwin)

(xxv)        Min Kawlto Tower Moilin;

(xxvi)        Wo Pam Mal Yamin;

(xxvii)        Mokara Hudson;

(xxviii)        either of the siblings George or Purt Ngon;

(xxix)        Bob Patterson;

(xxx)        Moses (aka War’luran);

(xxxi)        Yowalyamen;

(xxxii)        Jolly;

(xxxiii)        either Mailman or his siblings;

(xxxiv)    any of the siblings Stephen, Louie, Reubin (aka Robin), Jimmy Braddsley, Mabel Rio or Poppy;

(xxxv)        Old Mokara;

(xxxvi)        Taw Wil Yir;

(xxxvii)    Colin Dinghy;

(xxxviii)    Fred Dunbar;

(xxxix)        Alick (aka Alec and Kauwunbengk);

(xl)        Goanna (aka Melder);

(xli)        Pluto;

(xlii)        either Mundie Shalfo or his sister;

(xliii)        Piper;

(xliv)        Willie Daphney;

(xlv)    any of the siblings Fanny, Lucy Tommy, Waterloo, Elsie or Tommy Burns;

(xlvi)        Nipper;

(xlvii)        Dick;

(xlviii)        Peppo;

(xlix)        Ben;

(l)        Smiler;

(li)        Bernard;

(lii)        Monday;

(liii)        Kangaroo;

(liv)        Mosquito;

(lv)        either of the brothers Billy Flower or Goggle-Eye or their siblings;

(lvi)        Jimmy;

(lvii)        either of the brothers Rainbow Christie or Bowyang Charlie;

(lviii)        Nellie;

(lix)        either of the brothers Bob Dunbar or Bendigo or their siblings;

(lx)    any of the siblings Jimmy Koolatah, Coglin Dick, Kunjen Dick or George Murray;

(lxi)        Frank Yam;

(lxii)        Brumby (aka Jack Brumby)

(lxiii)        Old Mud;

(lxiv)        Charlie Inkerman;

(lxv)        any of the siblings Mimosa, Alison or May; or

(lxvi)        Maggie; or

2.    recruited by adoption, in accordance with the traditional laws and customs of the Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples.

SCHEDULE 2 – DETERMINATION AREA

The Determination Area comprises all of the land and waters described in Part 1 below and depicted in the plan in Schedule 3, excluding the areas in Part 2 below:

Part 1 – Exclusive areas:

The land and waters within the areas described as Lot 8 on AP20089 covering:

1.    Part of Lot 19 on DB16

2.    Lot 117 on DB23

3.    Lot 118 on DB23

4.    Lot 119 on DB23

5.    Lot 120 on DB23

6.    Lot 121 on DB23

7.    Lot 122 on DB23

8.    Lot 123 on DB23

9.    Lot 124 on DB23

10.    Lot 125 on DB23

11.    Lot 126 on DB23

12.    Lot 127 on DB23

13.    Lot 129 on DB23

14.    Lot 130 on DB23

15.    Lot 131 on DB23

16.    Lot 132 on DB23

17.    Lot 133 on DB23

18.    Lot 134 on DB23

19.    Lot 147 on DB23

20.    Lot 148 on DB23

21.    Lot 149 on DB23

22.    Lot 150 on DB23

23.    Lot 152 on DB23

24.    Lot 156 on DB23

25.    Lot 158 on DB23

26.    Lot 159 on DB23

27.    Lot 161 on DB23

28.    Lot 162 on DB23

29.    Lot 182 on DB23

30.    Lot 183 on DB23

31.    Lot 184 on DB23

32.    Lot 185 on DB23

33.    Lot 186 on DB23

34.    Lot 187 on DB23

35.    Lot 188 on DB23

36.    Lot 189 on DB23

37.    Lot 190 on DB23

38.    Lot 191 on DB23

39.    Lot 193 on DB23

40.    Lot 214 on DB23

41.    Lot 223 on DB23

42.    Lot 225 on DB23

43.    Lot 226 on DB23

44.    Lot 227 on DB23

45.    Lot 228 on DB23

46.    Lot 254 on DB23

47.    Lot 256 on DB23

48.    Lot 258 on DB23

49.    Lot 263 on DB23

50.    Lot 264 on DB23

51.    Lot 265 on DB23

52.    Lot 266 on DB23

53.    Lot 267 on DB23

54.    Lot 268 on DB23

55.    Lot 269 on DB23

56.    Lot 272 on DB23

57.    Lot 273 on DB23

58.    Lot 275 on DB23

59.    Lot 276 on DB23

60.    Lot 277 on DB23

61.    Lot 278 on DB23

62.    Lot 279 on DB23

63.    Lot 280 on DB23

64.    Lot 282 on DB23

65.    Lot 283 on DB23

66.    Lot 284 on DB23

67.    Lot 285 on DB23

68.    Lot 286 on DB23

69.    Lot 287 on DB23

70.    Lot 288 on DB23

71.    Lot 289 on DB23

72.    Lot 290 on DB23

73.    Lot 294 on DB23

74.    Lot 295 on DB23

75.    Lot 298 on DB23

76.    Lot 299 on DB23

77.    Lot 300 on DB23

78.    Lot 301 on DB23

79.    Lot 316 on DB23

80.    Lot 327 on DB23

81.    Lot 328 on DB23

82.    Lot 329 on DB23

83.    Lot 330 on DB23

84.    Lot 332 on DB23

85.    Lot 333 on DB23

86.    Lot 336 on DB23

87.    Lot 337 on DB23

88.    Lot 338 on DB23

89.    Lot 340 on DB23

90.    Lot 341 on DB23

91.    Lot 342 on DB23

92.    Lot 343 on DB23

93.    Lot 367 on DB23

94.    Lot 368 on DB23

95.    Lot 370 on DB23

Part 2 - Areas excluded from the Determination Area:

The following areas are excluded from the determination area:

(1)    Lot 10 on DB8 - Reserve - Departmental and Official Purposes

(2)    Lot 8 on DB10 – Former Special Lease - Business Purposes (Church)

(3)    Lot 9 on DB10 – Former Special Lease - Residential (Chaplain’s Residence)

(4)    Lot 12 on DB11 - Reserve - State School (Residential)

(5)    Lot 13 on DB12 - Reserve - State School (Residential)

(6)    Lot 14 on DB12 - Reserve - State School (Residential)

(7)    Lot 15 on DB13 - Reserve - State School (Residential)

(8)    Lot 16 on DB13 - Reserve - State School (Residential)

(9)    Lot 17 on DB14 - Reserve - State School (Residential)

(10)    Lot 20 on DB15 - Reserve - Hospital

(11)    Lot 51 on DB16 - Reserve - Landing Ground for Aircraft

(12)    Lot 6 on DB18 - Reserve - State School

(13)    Lot 11 on DB18 - Reserve - State School (Residential)

(14)    Lot 18 on DB18 - Reserve - Aboriginal Purposes

(15)    Lot 21 on DB18 - Reserve - Departmental and Official Purposes

(16)    Lot 22 on DB18 - Reserve - Aboriginal Purposes

(17)    Lot 23 on DB18 - Reserve - Aboriginal Purposes

(18)    Lot 24 on DB18 – Reserve – Retail Store Residence

(19)    Lot 25 on DB18 - Reserve – Retail Store Residence

(20)    Lot 26 on DB18 - Reserve - Aboriginal Purposes

(21)    Lot 27 on DB18 - Reserve - Aboriginal Purposes

(22)    Lot 28 on DB18 - Reserve - Police Purposes

(23)    Lot 29 on DB18 - Reserve - Departmental and Official Purposes

(24)    Lot 30 on DB18 - Reserve - Aboriginal Purposes

(25)    Lot 31 on DB18 - Reserve - Police Purposes

(26)    Lot 32 on DB18 - Reserve - Police Purposes

(27)    Lot 33 on DB18 - Reserve - Aboriginal Purposes

(28)    Lot 34 on DB18 - Reserve - Aboriginal Purposes

(29)    Lot 35 on DB18 - Reserve - Aboriginal Purposes

(30)    Lot 36 on DB18 - Reserve - Aboriginal Purposes

(31)    Lot 37 on DB18 – Reserve – Retail Store

(32)    Lot 38 on DB18 - Reserve - Kindergarten

(33)    Lot 41 on DB19 - Reserve - Aboriginal Purposes

(34)    Lot 42 on DB19 - Reserve - Departmental and Official Purposes

(35)    Lot 43 on DB19 - Reserve - Aboriginal Purposes

(36)    Lot 44 on DB19 - Reserve - Aboriginal Purposes

(37)    Lot 45 on DB19 - Reserve - Health Purposes

(38)    Lot 46 on DB19 - Reserve - Departmental and Official Purposes

(39)    Lot 47 on DB20 - Reserve - State School (Residential)

(40)    Lot 48 on DB20 - Reserve - Aboriginal Purposes

(41)    Lot 49 on DB20 - Reserve - State School (Residential)

(42)    Lot 50 on DB20 - Reserve - Aboriginal Purposes

(43)    Lot 52 on DB21 - Reserve - Departmental and Official Purposes

(44)    Roads as shown on plan DB16

(45)    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, therefore, in accordance with s 61A of the Native Title Act 1993 (Cth), these areas could not be claimed:

The land or waters on which any public work, as defined in section 253 of the Native Title Act 1993 (Cth), is constructed, established or situated, and to which sections 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and/or section 23B(7) of the Native Title Act 1993 (Cth) and section 21 of the Native Title (Queensland) Act 1993, applies, together with any adjacent land or waters in accordance with section 251D of the Native Title Act 1993 (Cth).

SCHEDULE 3 - DETERMINATION PLAN

SCHEDULE 4 – OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of Other Interests in the Determination Area are the following as they exist at the date of this Determination:

1.    The rights and interests of the grantee and others under the Deed of Grant in Trust dated 23 July 1987 being Title Reference Number 21345064 and /or any Deed of Grant granted or regranted to Kowanyama Aboriginal Shire Council as grantee in substitution for, replacement of or in succession to the said Deed of Grant.

2.    The rights and interests of the holder of a perpetual lease set out below:

(1)    being title reference No.17718144 comprising Lot 117 on DB23

(2)    being title reference No.17718132 comprising Lot 118 on DB23

(3)    being title reference No.17718133 comprising Lot 119 on DB23

(4)    being title reference No.17718145 comprising Lot 120 on DB23

(5)    being title reference No.17718134 comprising Lot 121 on DB23

(6)    being title reference No.17718146 comprising Lot 122 on DB23

(7)    being title reference No.17718135 comprising Lot 123 on DB23

(8)    being title reference No.17718147 comprising Lot 124 on DB23

(9)    being title reference No.17718136 comprising Lot 125 on DB23

(10)    being title reference No.17718148 comprising Lot 126 on DB23

(11)    being title reference No.17718137 comprising Lot 127 on DB23

(12)    being title reference No.17718149 comprising Lot 129 on DB23

(13)    being title reference No.17718173 comprising Lot 130 on DB23

(14)    being title reference No.17718154 comprising Lot 131 on DB23

(15)    being title reference No.17718159 comprising Lot 132 on DB23

(16)    being title reference No.17718157 comprising Lot 133 on DB23

(17)    being title reference No.17718108 comprising Lot 134 on DB23

(18)    being title reference No.17718177 comprising Lot 147 on DB23

(19)    being title reference No.17718138 comprising Lot 148 on DB23

(20)    being title reference No.17718150 comprising Lot 149 on DB23

(21)    being title reference No.17718172 comprising Lot 150 on DB23

(22)    being title reference No.17718139 comprising Lot 152 on DB23

(23)    being title reference No.17718162 comprising Lot 156 on DB23

(24)    being title reference No.17718105 comprising Lot 158 on DB23

(25)    being title reference No.17718153 comprising Lot 159 on DB23

(26)    being title reference No.17718161 comprising Lot 161 on DB23

(27)    being title reference No.17718179 comprising Lot 162 on DB23

(28)    being title reference No.17718152 comprising Lot 182 on DB23

(29)    being title reference No.17718099 comprising Lot 183 on DB23

(30)    being title reference No.17718098 comprising Lot 184 on DB23

(31)    being title reference No.17718160 comprising Lot 185 on DB23

(32)    being title reference No.17718168 comprising Lot 186 on DB23

(33)    being title reference No.17718092 comprising Lot 187 on DB23

(34)    being title reference No.17718118 comprising Lot 188 on DB23

(35)    being title reference No.17718102 comprising Lot 189 on DB23

(36)    being title reference No.17718100 comprising Lot 190 on DB23

(37)    being title reference No.17718115 comprising Lot 191 on DB23

(38)    being title reference No.17718151 comprising Lot 193 on DB23

(39)    being title reference No.17718114 comprising Lot 214 on DB23

(40)    being title reference No.17718155 comprising Lot 223 on DB23

(41)    being title reference No.17718116 comprising Lot 225 on DB23

(42)    being title reference No.17718119 comprising Lot 226 on DB23

(43)    being title reference No.17718112 comprising Lot 227 on DB23

(44)    being title reference No.17718101 comprising Lot 228 on DB23

(45)    being title reference No.17718087 comprising Lot 254 on DB23

(46)    being title reference No.17718123 comprising Lot 256 on DB23

(47)    being title reference No.17718125 comprising Lot 258 on DB23

(48)    being title reference No.17718165 comprising Lot 263 on DB23

(49)    being title reference No.17718158 comprising Lot 264 on DB23

(50)    being title reference No.17718163 comprising Lot 265 on DB23

(51)    being title reference No.17718156 comprising Lot 266 on DB23

(52)    being title reference No.17718166 comprising Lot 267 on DB23

(53)    being title reference No.17718167 comprising Lot 268 on DB23

(54)    being title reference No.17718174 comprising Lot 269 on DB23

(55)    being title reference No.17718169 comprising Lot 272 on DB23

(56)    being title reference No.17718170 comprising Lot 273 on DB23

(57)    being title reference No.17718117 comprising Lot 275 on DB23

(58)    being title reference No.17718090 comprising Lot 276 on DB23

(59)    being title reference No.17718093 comprising Lot 277 on DB23

(60)    being title reference No.17718126 comprising Lot 278 on DB23

(61)    being title reference No.17718180 comprising Lot 279 on DB23

(62)    being title reference No.17718120 comprising Lot 280 on DB23

(63)    being title reference No.17718121 comprising Lot 282 on DB23

(64)    being title reference No.17718164 comprising Lot 283 on DB23

(65)    being title reference No.17718089 comprising Lot 284 on DB23

(66)    being title reference No.17718095 comprising Lot 285 on DB23

(67)    being title reference No.17718124 comprising Lot 286 on DB23

(68)    being title reference No.17718122 comprising Lot 287 on DB23

(69)    being title reference No.17718127 comprising Lot 288 on DB23

(70)    being title reference No.17718088 comprising Lot 289 on DB23

(71)    being title reference No.17718109 comprising Lot 290 on DB23

(72)    being title reference No.17718091 comprising Lot 294 on DB23

(73)    being title reference No.17718097 comprising Lot 295 on DB23

(74)    being title reference No.17718103 comprising Lot 298 on DB23

(75)    being title reference No.17718113 comprising Lot 299 on DB23

(76)    being title reference No.17718096 comprising Lot 300 on DB23

(77)    being title reference No.17718107 comprising Lot 301 on DB23

(78)    being title reference No.17718111 comprising Lot 316 on DB23

(79)    being title reference No.17718128 comprising Lot 327 on DB23

(80)    being title reference No.17718140 comprising Lot 328 on DB23

(81)    being title reference No.17718129 comprising Lot 329 on DB23

(82)    being title reference No.17718171 comprising Lot 330 on DB23

(83)    being title reference No.17718141 comprising Lot 332 on DB23

(84)    being title reference No.17718110 comprising Lot 333 on DB23

(85)    being title reference No.17718104 comprising Lot 336 on DB23

(86)    being title reference No.17718130 comprising Lot 337 on DB23

(87)    being title reference No.17718142 comprising Lot 338 on DB23

(88)    being title reference No.17718106 comprising Lot 340 on DB23

(89)    being title reference No.17718131 comprising Lot 341 on DB23

(90)    being title reference No.17718143 comprising Lot 342 on DB23

(91)    being title reference No.17718094 comprising Lot 343 on DB23

(92)    being title reference No.17718175 comprising Lot 367 on DB23

(93)    being title reference No.17718176 comprising Lot 368 on DB23

(94)    being title reference No.17718178 comprising Lot 370 on DB23

3.    Any valid interests under an application under the Aboriginal and Torres Strait Islanders (Land Holding) Act 1985 (Qld) set out below:

(1)    Application No. 91/1987

(2)    Application No. 94/1987

(3)    Application No. 106/1989

4.    The rights and interests of the Kowanyama Aboriginal Shire Council as the trustee under deed of grant No. 21345064, including as the grantor of any rights and interests under that deed of grant, granted on or before the date on which these orders are made.

5.    The rights and interests of the State of Queensland (represented by the Department of Communities) under an Indigenous Land Use Agreement between the Native Title Holders and the State of Queensland (represented by the Department of Communities) entered on the Register of Indigenous Land Use Agreements on 25 May 2010.

6.    The rights and interests of the State of Queensland and Kowanyama Aboriginal Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access roads.

7.    The rights and interests of the Kowanyama Aboriginal Shire Council:

(a)    under the Local Government Act 2009 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be Council’s local government area;

(b)    as the:

(i)    lessor under any leases whether separately particularised in these Orders or not,

(ii)    grantor of any licences or other rights and interests whether separately particularised in these Orders or not,

(iii)    holder of any estate or interest in land, and as trustee of any reserves, that exist in the in the Determination Area ;

(c)    as the owner, operator or holder of any interest (including an equitable interest) in infrastructure, facilities, or other site improvements, including but not limited to:

(i)    constructed roads that have not been dedicated, except for those determined by Council not to be operated by it;

(ii)    gravel pits operated by Council;

(iii)    water bores and other infrastructure for the supply of water;

(iv)    drainage facilities;

(v)    cemetery and cemetery related facilities;

(vi)    sand extraction areas;

(vii)    sewerage ponds and infrastructure;

(viii)    Council staff housing;

(ix)    Community housing, Senior’s housing and Women’s shelter;

(x)    the Kowanyama guesthouse and convenience store;

(xi)    the multi-purpose recreational centre and the old community hall;

(xii)    the Kowanyama shopping centre complex and canteen;

(xiii)    the Training centre;

(xiv)    Workshops, Depot, Batching plant, Dog pound and waste facilities;

(xv)    Recreational facilities; and

(xvi)    Council offices.

(d)    to enter the Determination Area by its employees, agents or contractors to:

(i)    exercise any of the rights and interests referred to in paragraphs 5 and 6 of this Schedule;

(ii)    undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management, fire management and management of land relating to the operation of the airstrip in the Kowanyama township; and

(iii)    operate, inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 7 (c) of this Schedule.

8.    The rights and interests of the parties under the ILUA between Ergon Energy Corporation Limited and the Kowanyama People entitled “Ergon Energy Indigenous Land Use Agreement” authorised by the Kowanyama People on 20 November 2012.

9.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including the rights and interests existing by reason of the force and operation of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under the following legislation:

(a)    the Forestry Act 1959 (Qld);

(b)    the Water Act 2000 (Qld);

(c)    the Integrated Planning Act 1997 (Qld) or the Sustainable Planning Act 2009 (Qld);

(d)    the Fire and Rescue Service Act 1990 (Qld) and the Ambulance Service Act 1991 (Qld); and

(e)    the Land Act 1994 (Qld).

10.    The rights and interests of Telstra Corporation Limited:

(a)    as the owner or operator of telecommunications facilities installed 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 telecommunication facilities in the Determination Area, including Telstra’s lease in respect of the area depicted as Lease X on survey plan 230796.

11.    The interests of Airservices Australia under registered lease No. 601502078 comprising Lease A on Plan DB17 in Lot 19 on Plan DB16 and the Deed of Consent between Airservices Australia and the Kowanyama People authorised by the Kowanyama People on 20 November 2012.

12.    The interests of the Commonwealth of Australia under registered lot No. 704086300 comprising Lease A in Lot 19 on DB16 on SP123483.

13.    The interests of Ergon Energy Corporation Limited ACN 087 646 062:

(1)    as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;

(2)    as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);

(3)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act (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; and

(4)    under registered lease No 708684418 comprising Lease B in Lot 19 on DB16 on SP 143106.

14.    The interests of the State of Queensland (represented by the Department of Emergency Services) under registered lease No. 708754759 comprising Lease A in Lot 19 on DB16 on SP154654.

15.    The interests of Evelyn Mackie under registered lease No. 712403445 comprising Lease I in Lot 9 on DB16 on SP236898.

16.     The interests of the State of Queensland (represented by the Department of Communities) under registered lease No. 713025249 comprising Lease C in Lot 19 on DB16 on SP218101.

17.    The interests of the State of Queensland (represented by the Department of Communities) under registered lease No. 713727720 comprising Lease G in Lot 19 on DB16 on SP236894 and Leases FE, and EF in Lot 19 on DB16 on SP236895.

18.    Any other rights and interests:

(1)    held by the State or Commonwealth; or

(2)    existing by reason of the force and operation of the Laws of the State and the Commonwealth.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6119 of 1998

BETWEEN:

GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE Applicants

AND:

STATE OF QUEENSLAND First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent KOWANYAMA ABORIGINAL SHIRE COUNCIL Third Respondent CARPENTARIA SHIRE COUNCIL Fourth Respondent COOK SHIRE COUNCIL Fifth Respondent TABLELANDS REGIONAL COUNCIL Sixth Respondent ERGON ENERGY CORPORATION LIMITED Seventh Respondent TELSTRA CORPORATION LIMITED Eighth Respondent GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD Ninth Respondents HARVEST HOME HOLDINGS PTY LTD Tenth Respondent MDH PTY LTD Eleventh Respondent DOUGLAS PRICE Twelfth Respondent AIRSERVICES AUSTRALIA Thirteenth Respondent

JUDGE:	DOWSETT J
DATE:	5 DECEMBER 2012
PLACE:	KOWANYAMA

REASONS FOR JUDGMENT

1    On 25 March 1997 the Kowanyama People applied in the National Native Title Tribunal (the “Tribunal”) for a determination as to the existence of Native Title. On 30 September 1998 proceedings were commenced in this Court. The claim area lies between the Coleman and Staaten Rivers on the western side of Cape York Peninsula. It is centred on the township of Kowanyama and covers an area of approximately 1,639,641.8 hectares including land within Deed of Grant in Trust No 21345064 over land described as Lot 19 on DB 16 (the “DOGIT”). The claim area also includes the Balurga, Harkness, Koolatah, Rutland Plains, Inkerman, Dunbar and Dinah Island pastoral properties.

2    On 22 October 2009 Greenwood J made a partial determination affecting part of the land within the boundaries of the original claim area, which part was, in his Honour’s reasons, described as “Part A”. As I understand it Part A includes the land contained in the DOGIT other than that occupied by the Kowanyama township and dedicated roads, and also including a long, narrow coastal strip running along the coast of the DOGIT from the southern bank of the Coleman River in the north to the southern boundary of the DOGIT, and then south along the coast adjoining the Rutland Plains and Inkerman pastoral leases. Its southern boundary is the line of latitude at the southern end of a fauna sanctuary (Pelican Rookery) to the south of the Staaten River. Whilst that part of Part A which is within the DOGIT was determined to be subject to exclusive Native Title rights and interests, the coastal section was held to be subject to non-exclusive Native Title rights and interests.

3    The parties have now agreed that Native Title exists over two further areas within the boundaries of the original claim. They have been designated as Parts B and C. Part B consists of two areas, one lying to the north-east of the DOGIT and the other, to the south-east. It has been agreed that non-exclusive Native Title rights and interests exist over both areas, subject to certain exceptions. Part C is, in effect, the area covered by the Kowanyama township and is within the DOGIT. The parties agree that exclusive Native Title rights and interests exist over that area.

4    The applicant group presently consists of Glenette Greenwool, Gary Hudson, Evans Josiah, Griffith Patrick, Dennis Michael, Ravin Greenwool, Jenny Paul, Donna Brumby, Priscilla Major, Roslyn Gilbert, Una Claude, Corrine Daniel, Kelvin Greenwool, Douglas Eric, Teddy Bernard, Rosemary Henry, Christopher Henry, Roger Inkerman, Lyndell Michelle Anne Jimmy, Roy Dennis Maggable, Hazel Paul, Angela Fiona Edwards, Shaun Kalk Edwards, May Edwards, Lindsay Edwards, Glennis Rose Mudd, Shenane Jago, Colin Lawrence, Arthur Luke, Christine Lawrence, Ivan Jimmy, Shirley Yam, Maria Dick and Robert Holness, on their own behalf and for and on behalf of the members of the Kowanyama People who comprise those people known as Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin.

5    Since the partial determination by Greenwood J, the application has been amended twice. On 1 April 2011, leave was granted to amend to include a more detailed list of native title rights and interests, and a list of specific examples of activities undertaken by the claimants. On 29 November 2012, the application was further amended to remove deceased members of the applicant group and to designate a small area to the south of the Staaten River, at the southern extremity of the claim area, as Part D. Part D is not included in the present determination.

6    The respondents having interests in Part B are the State of Queensland, the Tablelands Regional Council, Cook and Carpentaria Shire Councils, Telstra Corporation Limited, MDH Pty Ltd, Douglas Price, Harvest Home Pty Ltd and various fishing parties. The respondents having interests in Part C of the claim are the State of Queensland, the Commonwealth of Australia, Kowanyama Aboriginal Shire Council, Airservices Australia, Telstra Corporation Limited, and Ergon Energy Corporation Limited.

7    Following long and complex negotiations, the matter was, on 16 July 2012, removed from the Tribunal and subjected to intensive case management in the Court. The Court is grateful for the efforts of the Honourable Stanley Jones AO QC, the former Far Northern Judge of the Supreme Court of Queensland. Mr Jones, supported by Court staff, assisted the parties to resolve issues which may otherwise have required protracted hearings. The Court also recognizes the efforts made by the parties in achieving resolution of their differences.

8    The Native Title Act 1993 (Cth) (the “Act”) authorizes the Court to determine that Native Title exists over areas in respect of which there is no existing determination. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make appropriate orders. In exercising the judicial power of the Commonwealth, this Court resolves disputes identified by the parties. The parties may narrow those issues by admission or concession, provided that such agreements or concessions are made freely and on an informed basis. In some cases, the Court may decline to act upon them. Where, as here, the proceedings have significance for people other than the parties, I must give careful consideration to the appropriateness of the proposed consent orders.

9    I see no reason to doubt the appropriateness of the parties’ consensual resolution of the matters previously in dispute. They have had the benefit of legal advice and substantial anthropological and other research. The claim has been on foot for almost 16 years and has been publicized in accordance with the Act. I am satisfied that the proposed orders have been drafted with regard to the public interest which has been represented by the State of Queensland and interested local authorities.

10    In his reasons Greenwood J carefully recorded the relevant evidence upon which the Kowanyama people rely to establish their claims. Hence it is not necessary that I do so in detail. His Honour and I have relied heavily on the work of Dr JC Taylor. The detail which follows comes from his reports.

11    The first European contact in this area occurred long before Captain Cook’s arrival in eastern Australia. The Dutch, in the person of William Jansz, visited Cape York Peninsula in November 1605. He returned in March 1606, making landfall near either the Skardon River or the Pennefather River. He sailed south as far as Cape Keerweer (which is north of the claim area), then turned north and sailed up the coast before turning west to head back to Banda. He had hostile encounters with Aboriginal people at the Batavia River and at Cape Keerweer. He may have lost up to four crew members. Dr Taylor notes in his evidence that one of those encounters is still recalled in Aboriginal oral tradition.

12    Eighteen years later, two other Dutch vessels visited the area, making landfall near to Cape Keerweer. Indigenous people were observed burning grass. Those on board also landed further south, encountering Aboriginal people. This encounter appears to have been in the vicinity of Topsy Creek which forms the northern boundary of Rutland Plains Station and the southern boundary of the DOGIT. Thus such landing was within the claim area. The first post-sovereignty contact seems to have been Leichhardt’s arrival in the course of his 1845 journey. He had quite extensive contact with Aboriginal people within the present claim area.

13    In 1864-65 the Jardine Brothers took a herd of 250 cattle overland from Carpentaria Downs on the Upper Einasleigh River to Somerset at the tip of Cape York Peninsula. They entered the claim area at the Staaten River which they followed westwards until they reached the coastal plain. They turned north and travelled 300 km along the west coast flood plains, crossing the Kendall River and heading for higher ground in the north-east. They noted many signs of human occupation, including camp sites and fish weirs, and saw Aboriginal groups hunting and fishing. Sometimes the party was stalked. At other times their passage was openly disputed.

14    The gold rushes provoked the establishment of new pastoral properties on Cape York Peninsula, including the claim area. The pastoralists used Aboriginal labour in their stock camps and around the stations. A number of these properties had close associations with ancestors of members of the present claim group. In particular Dunbar, Rutland Plains and Inkerman Station were of considerable significance. Dr Taylor provides much detailed information concerning the relationships between European settlers and indigenous people over the ensuing years, including the work of Anglican missionaries in the area. In 1964 the mission transferred its operation to the State government. From that time the authorities followed a policy of assimilation but, in 1982 local councils were given the benefit of DOGITs, fostering a degree of local responsibility. A full cash economy was instituted although wage levels were very low.

15    The remoteness of Kowanyama was no barrier to the dislocation and suffering which inevitably accompanied European settlement. The incursion of the pastoralists, the Church and the State government significantly disrupted many elements of traditional life and culture, with the typical accompanying decline in health and society.

16    As Dr Taylor demonstrates, there has been a substantial amount of anthropological, linguistic and other research in connection with the Kowanyama people. His reports identify a distinctive group, with an ongoing and close connection to the land which is the subject of the claim. The traditional laws and customs pursuant to which they regulate their relationship with the land and one another emerge clearly from the report. For example at para 4.3 and following of his first report Dr Taylor observes:

The native title rights and interests of the claimants on pastoral properties derive from a uniquely Aboriginal worldview that, in relationship to land, has remained little changed since it was first described by Lauriston Sharp. In the absence of any evidence to the contrary, it is reasonable to assume that this body of tradition, law and customary practice stems directly from the tradition, laws and customary practices of the claimants’ ancestors at the time of sovereignty. The elements of the contemporary worldview are set out as follows:

•    The precursors to the present Aboriginal occupiers of the land were beings with extraordinary powers. Sometimes they had human form. Others took the form of animals or forces of nature.

•    The accounts of the actions of these beings in the landscape are contained in a set of orally transmitted myths (know locally as “stories”, “dreamings” or sometimes “totems”).

•    Among other things the myths relate how features of the landscape and the characteristics of species were derived from the actions of the supernatural precursors. Their interactions with each other set precedents and rules for the humans that succeeded them.

•    Some creative beings are still immanent in the landscape and manifest themselves to contemporary Aboriginal people. Others exchanged their human form for a particular natural species (eg. emu, brolga, mopoke, frog etc.) and persist in that form. Others yet again metamorphosed into natural features.

•    The creative beings also left behind places of power and potency. Ritual manipulations at these places can increase natural species or affect the environment in other ways. Some places of power can also harm or maim if proper rituals were ignored.

•    Particular places in the landscape are linked to the creative acts of the “story people”. The places and the acts are in turn associated via a totemic ideology with the past, present and future generations of the claimants.

•    As described by Sharp (1939:446), segments of the landscape and its myths are owned by Aboriginal corporations called clans. They are constructed according to the principles of patrilineal descent, or perhaps, serial patrifiliation. We may call these segments “estates”.

•    Clan members are also linked to country through the process of conception filiation. Human spirits have an existence prior to their incarnation as humans. Signs reveal when a “baby spirit” has emerged from its ancestral centre and to spiritually amalgamate with a child in utero.

•    Clan members also share a common set of totems one or more of which are singled out as clan emblems (eg. emu, red-tailed black snake etc.). Members also draw their personal language names from some section of their mythic heritage or from their place of conception filiation. In Sharp’s depiction of Kunjen/Olkola land tenure, totemic associations provide a concise, emblematic guide to the identification of land-owning groups and their inalienable relationship with particular creative beings and the landscape in which they moved. Known totemic associations for the Kunjen/Olkola groups at Kowanyama are described in Taylor 1999b.

•    When a person dies, her/his spirit must be ritually “sent back” to the deceased person’s country where it resides in spirit form.

•    Rights to use the land of other clans are mediated through cognatic links, marriage affiliations, conception filiation and standing invitations between the elders of neighbouring clans.

•    In the contemporary situation, the management and control of estates and homeland cores is vested in the senior members of owning patrilines. It is the duty of experienced clan members to ensure that newcomers to their lands are properly introduced to the supernatural hazards left behind by the creative acts of the “story people”. Those using the state have a duty to ensure the good health of that estate by carrying out the prescribed observations and rituals associated with it. Such elders may apply sanctions to those who flout the conventions pertaining to the use of land and its cultural content.

The elementary propositions of the claimants’ worldview set out in a general way how rights and privileges in persons and things as well as responsibilities towards them are to be validly distributed across the claimant community. It represents a kind of constitution – a system of fundamental laws and principles governing the nature, functions, and limits of an Aboriginal land tenure system.

…

Sutton described a core rights as follows:

An elementary core right is that which enables a person to claim a certain area as their own main place, their own proper or real country, and thus to assert a fundamental proprietary relationship to it. Some of the other core rights asserted by native title claimants are concerned with the bestowal or recognition of specific other rights, and might be described in particular as meta-rights (rights about rights), or rights-generating rights. These include the right to transmit further transmissible rights to make proprietary claims on the country, and the right to pass on certain aspects of group identity through the assignment of names, languages or totems to children, for example, as well as through the handing on of knowledge, including designs and songs, which may symbolise the relationship between a group and its country. (Sutton op. cit.)

In the registration materials for the Kowanyama claim, a set of four general rights were distinguished. They were all aspects of the elemental proprietary/beneficial right that each claimant asserts over her/his country and in that sense were core rights. They were also interdependent and interlocking, being all derivations from a consistently held worldview. The core rights were:

1.    The physical possession, occupation, use and enjoyment of the claim area as of right.

2.    The carriage of responsibility for the care and maintenance of the claim area.

3.    The right to hold the claim area as the cultural property of the native title group and the source of its identity.

4.    The right to act as sole authority to speak for the country.

The core rights have specific content in terms of human action. In their various forms they are validly possessed by those who, within the community of traditional owners, have an acknowledged identity as owners of a particular area of land – in other words as clan members identified with a particular estate whose rights in the estate are transmitted from fathers to children over the generations. Other non-clan members may exercise some rights in an estate similar to those exercised by the corporation members. The assertion by non-clan members of these rights is contingent upon certain conditions, e.g. cognatic descent from the grandparental generation. These, following Sutton, I term contingent rights. Contingent rights are:

•    acquired by non-corporation members;

•    are not transmissible; and

•    depend on individual circumstances.

Contingent rights, it should be stressed are rights possessed by core rights holders that they share with others.

…

A further point should be made. What are presented here are the native title rights and interests of a community of native title claimants. There is no discernible difference between the native title rights and interests of those whose lands lie on pastoral properties and those whose lands lie on the DOGIT and the National Park. The community responds to issues affecting land and relating to the land-based identity of traditional owners in a homogeneous and consistent way. As Strang (1997:100) noted:

While people are still clear about their individual and clan identity and their ownership of tracts of country, they now stress that certain areas of land are Kunjen, Kokobera or Kokomunjen, and that all three language groups are now a community with rights over an area of ‘Aboriginal land’.

Accidents of history are the only characteristics that distinguish one group from another. Since the employment of Aboriginal people on pastoral properties has declined, there have been fewer opportunities for pastoral property claimants to visit their lands and through physical occupation, assert rights and interests. None of the pastoral leases in the claim area have reservations in favour of Aboriginal people as is the case in some other Australian states. This has not diminished the assertion of their rights and interests in their countries nor their desire to give them expression by physical occupation.

17    I do not normally quote at such length from the anthropological evidence but it seemed to me that Dr Taylor’s summary so clearly identified the ambit of traditional law and custom in language which is familiar to lawyers in the European system that it was worth recording it in my reasons today.

18    The claim group is comprised of a body of people descended from a relatively long list of apical ancestors. The list appears in Schedule 1 to each of the proposed orders. It includes persons recruited by adoption in accordance with traditional laws and customs.

19    In the case of Part B, subject to paras 5, 6 and 7 of the orders, the nature and extent of the Native Title rights and interests in relation to land and waters within the determination area are the non-exclusive rights to:

(i)    access, be present on, move about on and travel over the area;

(ii)    hunt and fish in or on, and gather from, the land and water for non commercial, cultural, spiritual, personal, domestic or communal purposes;

(iii)    take, use, share and exchange natural resources for non commercial, cultural, spiritual, personal, domestic or communal purposes;

(iv)    take and use the water for cultural, personal, domestic and non commercial communal purposes;

(v)    live and camp on the area and for those purposes erect shelters and other structures on the area;

(vi)    light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation;

(vii)    be buried and bury native title holders within the area;

(viii)    conduct ceremonies on the area;

(ix)    hold meetings on the area;

(x)    teach on the area the physical and spiritual attributes of the area;

(xi)    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 harm; and

(xii)    be accompanied on to the area by those persons who, though not native title holders, are:

a.    spouses or partners of native title holders;

b.    people who are members of the immediate family of a spouse or partner of a native title holder;

c.    people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the determination area; or

d.    people who have specialized knowledge based on their training, study or experience who are requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the determination area.

20    As to Part C, subject to paras 6 and 7 of the orders, the nature and extent of the native title rights and interests in relation to that part of the determination area identified in Schedule 2, other than in relation to water, are the rights to possession, occupation, use and enjoyment to the exclusion of all others. The parties agree that the native title rights and interests in relation to water in the Schedule 2 area are, subject to paras 6 and 7 of the proposed orders, the non-exclusive rights to:

(i)    hunt and fish in or on, and gather from, the water for non-commercial, cultural, spiritual, personal, domestic or communal purposes; and

(ii)    take and use the water for non-commercial, cultural, spiritual, personal, domestic or communal purposes.

21    In addition to Dr Taylor’s reports, extensive affidavit material from the traditional owners has been filed to demonstrate the exercise of the rights to live and to be accompanied onto the determination area. In particular I have been greatly assisted by seven comprehensive affidavits, filed on 24 October 2012, by John Clark, George Lawrence, Leslie Gilbert, Priscilla Major, Roger Inkerman, Ezra Michael and Paddy Yam who, save for John Clark, all reside within the determination area and are able to demonstrate their strong connection to their country. Paddy Yam was born at a waterhole on Koolatah in 1929. He says that:

I was reared up at Koolatah Station and started work there. I did not go to school. I worked at Koolatah for many, many years as a stockman. I worked at Koolatah with my father, my brothers and other aboriginal people. I have travelled all over Koolatah and I know that country well. The only other place that I have worked for a long time is Dunbah Station on Kunjen Country.

22    Paddy Yam says that:

I lived on my country at Koolatah for many, many years. Under our law I had every right to be there because I am one of the traditional owners of that country. Me and the other traditional owners have the right to live and to be on our country for as long as we like. Nobody has the right under aboriginal law to tell us to go. One time when we can’t go to our country is when it is closed when somebody dies. When the country is closed, nobody goes there until it is opened up again.

23    Ezra Michael was born in Kowanyama in 1927. His bushname is Chi Chi which is Kokomenjen for possum. He says that before Cyclone Dora in 1964:

We all used to live in cabbage tree houses at Kowanyama. These houses kept water out in the wet season. Every year maintenance and repairs were done on the houses, and they lasted a long time. These houses were not, however, strong enough to survive Cyclone Dora, which flattened the cabbage tree houses.

24    Priscilla Major speaks of her country as being both on the DOGIT and on Rutland Plains Station. She says it is Koko Bera country from north of the Nassau River to somewhere up near the South Mitchell River. She speaks the Koko Bera language of her father and the Kokomenjen language of her mother.

25    John Clark was born in 1958 and says he is a Koko Bera man through his father and his father’s father. His father was born under an old mango tree at Old Lochnagar on Rutland Plains. His father died in 1995 and he is buried at Old Lochnagar as he had requested. He says that under his law he is not allowed to take people on to country if it is closed because of the death of one of the people who were connected to that country. Anyone who breaks this rule would get into trouble.

26    He goes onto say that one family’s special story on Rutland is the Moving Rock story. This story is along the coastline and it is about a rock that moves up and down the coast.

An old man many years ago built a mud humpy and he kept a young girl inside it. This mud humpy eventually turned into the Moving Rock. Everyone knows that, if you see the track of the Moving Rock, you cannot go onto it because it is sacred. If you do go on the track or cross over it then your leg will get burnt and will be eaten away, like cancer taking over. I have not seen the Moving Rock or the track myself, but whenever we go on country we look out for it and if we see it we will not go across it.

27    These affidavits contain comprehensive descriptions of the traditional laws and customs that govern the exercise of the rights and interests that we, today, recognize over pastoral leases. They demonstrate a continued observance of those laws which dictate the day to day lifestyle of the Kowanyama people, their custody and care of significant sites and boundaries, as well as detail concerning the methods of transmission of traditional knowledge.

28    I infer that the members of the claim group are the descendants of those persons who encountered Leichhardt in 1845 and, later, the first European settlers. Such persons were probably the descendants of people who lived there prior to 1788.

ORDERS AND DETERMINATION

29    The Court has had the benefit of the applicant’s submissions. The State has conducted a thorough examination of the available material and is satisfied that the proposed determinations are appropriate. The respondent parties, including local authorities agree.

30    I find that the claim group comprises Kowanyama people descended from people who, pursuant to traditional law and custom, were in occupation of the land and waters of the claim area at the time of assertion of British sovereignty. Those people formed and form a society, united in and by their acknowledgement and observance of those traditional laws and customs. Through their observance of these traditional laws and customs, the Kowanyama people have maintained a connection with the claim area since a time prior to 1788.

31    Order 11 of each of the proposed orders provides that Native Title is not to be held on trust. The Abm Elgoring Ambung Aboriginal Corporation is a prescribed body corporate for the purposes of s 57 of the Act. In his affidavit, filed on 29 November 2012, Mr Moharich, the Principal Legal Officer of the Cape York Land Council, says that at an authorization meeting held in Kowanyama on 20 November 2012, a resolution was passed approving the nomination of Abm Elgoring Ambung Aboriginal Corporation as the entity to hold the native title pursuant to s 57(2) and (3) of the Act. I am satisfied that the Kowanyama People have approved that nomination.

32    I make orders in terms of the drafts which have been signed by the parties, which drafts I now initial and place with the papers.

33    I have not come here today to give anything to the Kowanyama people. Rather, I have come to recognize, on behalf of all Australians, that the Kowanyama people are the traditional owners of this land pursuant to traditional laws and customs which have their roots in ancient times. I now recognize that traditional ownership. In so doing, I bind all Australians for all time, including the Commonwealth of Australia, the State of Queensland, the Kowanyama Aboriginal Shire Council, the Cook and Carpentaria Shire Councils, the Tablelands Regional Council and other respondents.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:    18 January 2013