Owens on behalf of the Tagalaka People v State of Queensland [2012] FCA 1396

FEDERAL COURT OF AUSTRALIA

Citation:		Owens on behalf of the Tagalaka People v State of Queensland [2012] FCA 1396

Parties:		JANETTE OWENS, CLARA BOOTH, BEVERLY BOWYANG, JANET BUSCH, GLADYS CALLOPE, JOSEPH CALLOPE, ALMA DOUGLAS, BILL FORTUNE AND JOHNNY MILES ON BEHALF OF THE TAGALAKA PEOPLE v STATE OF QUEENSLAND, CROYDON SHIRE COUNCIL and ERGON ENERGY CORPORATION LIMITED JANET BUSCH, BEVERLY BOWYANG, GLADYS CALLOPE, MAUREEN DOUGLAS, BILL FORTUNE AND JANETTE OWENS ON BEHALF OF THE TAGALAKA PEOPLE #2 v STATE OF QUEENSLAND, CARPENTARIA SHIRE COUNCIL, CROYDON SHIRE COUNCIL, ETHERIDGE SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED and ALLEN JOHN BETHEL, CARMEL MAREE BETHEL, SYLVIA BING-CHEW, WAYNE BING-CHEW, CEDAR DAWN PTY LTD, ERIC MERVYN ELLEMS, TERRENCE JOHN FLUTE, G & C CONNOLLY PTY LTD AS TRUSTEE FOR THE G & C CONNOLLY FAMILY TRUST, ALAN ROSS GAYNOR, URSULA JANE GAYNOR, COLLEEN OLIVE HENRY, MERVYN ROY HENRY, RAYELENE MARGARET HENRY, DAVID BAILEY HINRICHSEN, JOSEPHINE BATHIA HOBBS, BARRY GILBERT HUGHES, EDWARD JAMES HUGHES, SHARON DALE HUGHES, TAMMY MARIE HUGHES, DIANE OLIVE JENSEN, KELVIN JOHN JENSEN, ROBYN MAY LETHBRIDGE, BARRY JOHN MARTIN, IAN BRUCE MARTIN, JOHN ALBERT MARTIN, RAY JOSEPH MARTIN, KATHLEEN MAY MCFARLANE, ROBERT WALTER MCFARLANE, CAROL ELIZABETH RYAN, GREGORY JAMES RYAN, DAVID ANTHONY SIMMONS, HELEN JOYCE SIMMONS, DAVID WILLIS, JAMES HARDWICK WILLIS AND JANETTE PEARL WILLIS

File number(s):		QUD 6109 of 1998 QUD 6020 of 2001

Judges:		LOGAN J

Date of judgment:		10 December 2012

Catchwords:		NATIVE TITLE – consent determination – requirements under s 87 and s 87A of the Native Title Act 1993 (Cth) – agreement of parties – prescribed body corporate

Legislation:		Native Title Act 1993 (Cth) ss 13, 47B, 55, 56, 57, 61, 66, 87, 87A, 94A, 223, 225 Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) s 4

Cases cited:		Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 Goonack v State of Western Australia [2011] FCA 516 Hoolihan on behalf of the Gugu Badhun People #2 v State of Queensland [2012] FCA 800 King v Northern Territory of Australia [2011] FCA 582 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 May v State of Western Australia [2012] FCA 1333 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 Moses v State of Western Australia [2007] FCAFC 78 Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 Smith v State of Western Australia (2000) 104 FCR 494 Wik Peoples v Queensland (1996) 187 CLR 1 The Honourable Nicola Roxon MP, Attorney-General: Echoes of Mabo Speech delivered to the AIATSIS Native Title Conference, 6 June 2012

Date of hearing:	10 December 2012

Date of last submissions filed by the Applicant:	29 November 2012

Place:	Croydon

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	40

In matter of QUD 6109 of 1998

Solicitor for the Applicant:	North Queensland Land Council

Solicitor for the First Respondent:	Crown Law

Solicitor for the Second Respondent:	Preston Law

Solicitor for the Third Respondent:	MacDonnells Law

In matter of QUD 6020 of 2001

Solicitor for the Applicant:	North Queensland Land Council

Solicitor for the First Respondent:	Crown Law

Solicitor for the Second, Third and Fourth Respondents:	Preston Law

Solicitor for the Fifth Respondent:	MacDonnells Law

Solicitor for the Sixth – Fortieth Various Respective Pastoral Respondents:	Thynne & Macartney

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6109 of 1998

BETWEEN:

JANETTE OWENS, CLARA BOOTH, BEVERLY BOWYANG, JANET BUSCH, GLADYS CALLOPE, JOSEPH CALLOPE, ALMA DOUGLAS, BILL FORTUNE AND JOHNNY MILES ON BEHALF OF THE TAGALAKA PEOPLE

Applicant

AND:

STATE OF QUEENSLAND

First Respondent

CROYDON SHIRE COUNCIL

Second Respondent

ERGON ENERGY CORPORATION LIMITED

Third Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	10 DECEMBER 2012
WHERE MADE:	CROYDON

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth),

BY CONSENT THE COURT ORDERS THAT:

1. There be a determination of native title in the terms set out below ("the Determination").

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

THE COURT DETERMINES THAT:

3. The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1.

4. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.

5. Native title does not exist in relation to that part of the Determination Area described in Part 3 of Schedule 1.

6. The native title is held by the Tagalaka People described in Schedule 3 ("the native title holders").

7. Subject to paragraphs 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:

(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b) in relation to Water, the non-exclusive rights to:

(i) hunt, fish and gather from the Water of the area;

(ii) take and use the Natural Resources of the Water of the area; and

(iii) take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

8. Subject to paragraphs 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to:

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

(b) camp on the area and, for that purpose, erect temporary shelters on the area;

(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;

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

(g) conduct ceremonies on the area;

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

(i) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm.

9. 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.

10. The native title rights and interests referred to in paragraphs 7(b) and 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

11. There are no native title rights in or in relation to:

(a) minerals as defined by the Mineral Resources Act 1989 (Qld); and

(b) petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

12. The nature and extent of other rights and interests in relation to the Determination Area (or respective parts thereof) are the rights and interests set out in Schedule 4 (the “Other Interests”).

13. The relationship between the native title rights and interests described in paragraphs 7 and 8 and the Other Interests described in Schedule 4 is that:

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

(b) to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and

(c) the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

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

15. An Aboriginal Corporation whose name will be nominated in writing within three months is to:

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

(b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth).

16. In the event that there is no nomination within the time specified in paragraph 15 or such later time as the Court may order, the Registered Native Title Claimants are to forthwith apply to the Court for further directions.

17 Until such time as there is a prescribed body corporate in relation to the Determination Area any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the Native Title Holders, the native title claim group or the Registered Native Title Claimants may be served upon the North Queensland Land Council Native Title Representative Body Aboriginal Corporation, and such notice shall be deemed to be sufficient.

18. In this Determination, unless the contrary intention appears:

“Determination Area” means the land and waters described in Schedule 1 (which excludes the land and waters described in Schedule 2) and shown on the map in Schedule 1, and to the extent of any inconsistency between the written description and the map, the written description prevails;

“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);

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

“Natural Resources” means:

(a) any animal, plant, fish and bird life found on or in the Determination Area; and

(b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,

that have traditionally been taken and used by the native title holders, but does not include:

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

“Water” means:

(a) water which flows, whether permanently or intermittently, within a river, creek or stream;

(b) any natural collection of water, whether permanent or intermittent; and

Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

SCHEDULE 1 — DETERMINATION AREA

A. Description of Determination Area

The determination area comprises all of the land and waters described in Parts 1, 2 and 3 below and depicted in the map attached, excluding the areas described in Schedule 2.

PART 1 – Exclusive Areas

All of the land and waters described in column 1 of the following table and depicted in dark blue on the determination map:

Area Description (at time of Determination)	Area Description (at time of claim)
Lot 38 on Plan B144291	Lot 38 on Plan B144291
That part of Lot 34 on Plan USL48264 which was not covered by EPM 9438 as at 25 September 1998.	Part of Lot 34 on Plan USL48264
That part of Lot 1 on Plan AP5928 which previously formed part of Lot 46 on Plan USL48265 and which was not covered by Mining Lease No.5248 as at 25 September 1998.	Part of Lot 46 on Plan USL48265
That part of Lot 1 on Plan AP5928 which previously formed part of Lot 78 on Plan USL48265 and which was not covered by Mining Lease No.5248 as at 25 September 1998.	Part of Lot 78 on Plan USL48265
That part of Lot 81 on Plan AP5928 which previously formed part of Lot 78 on Plan USL48265 and which was not covered by Mining Lease No.5248 as at 25 September 1998.	Part of Lot 78 on Plan USL48265
The area of Road now shown on Plan AP52928 which previously formed part of Lot 78 on Plan USL48265.	Part of Lot 78 on Plan USL48265
That part of Lot 1 on Plan AP5928 which previously formed part of Lot 81 on Plan USL48265 and which was not covered by Mining Lease No.5248 as at 25 September 1998.	Part of Lot 81 on Plan USL48265
That part of Lot 4 on Plan AP5928 which previously formed part of Lot 81 on Plan USL48265.	Part of Lot 81 on Plan USL48265
That part of Lot 81 on Plan AP5928 which previously formed part of Lot 81 on Plan USL48265.	Part of Lot 81 on Plan USL48265
The area of Road now shown on Plan AP5928 which previously formed part of Lot 81 on Plan USL48265.	Part of Lot 81 on Plan USL48265

PART 2 – Non-Exclusive Areas

All of the land and waters described in column 1 of the following table and depicted in light blue on the determination map:

Area Description (at time of Determination)	Area Description (at time of claim)
Lot 30 on Plan SY24.	Part of Lot 30 on Plan SY24
That part of Lot 4 on Plan AP5928 which previously formed part of Lot 30 on Plan SY24.	Part of Lot 30 on Plan SY24
That part of Lot 952 on Plan SP178689 which previously formed part of Lot 952 on Plan C3591, excluding: a) that part of Lot 952 on Plan SP178689 intersected by Alldridge Street within the Croydon township comprising an eastern and western severance: • the western severance comprises the area bounded by Edward Street in the north; Alldridge Street in the east; Elizabeth Street in the south; the south eastern and north eastern boundaries of Lot 13 on Plan MPH 22367; the north eastern boundary of Lot 936 on Plan SY28; Sircom Street to the west, the southern boundaries of Lots 747 and 748 on Plan SY28; the southern boundary of Chester Street; and Chester Street to the west; and • the eastern severance comprises the area bounded by Charles Street to the east; the northern boundaries of Lot 934 on Plan SY28 and Lot 115 on Plan USL655 to the south; and Alldridge Street to the west. b) those parts which are not excluded in Part 3 of Schedule 1 and Schedule 2.	Part of Lot 952 on Plan C3591
That part of Lot 1 on Plan SP186241 which previously formed part of Lot 952 on Plan C3591.	Part of Lot 952 on Plan C3591
That part of Lot 50 on Plan C3593 which is not excluded in Schedule 2.	Part of Lot 50 on Plan C3593
That part of Lot 34 on Plan USL48264 which was covered by EPM 9438 as at 25 September 1998, excluding that part of Lot 34 on Plan USL48264 described in Part 3 below.	Part of Lot 34 on Plan USL48264
That part of Lot 1 on Plan AP5928 which previously formed part of Lot 46 on Plan USL48265 and which was covered by Mining Lease No.5248 as at 25 September 1998 .	Part of Lot 46 on Plan USL48265
That part of Lot 1 on Plan AP5928 which previously formed part of Lot 78 on Plan USL48265 and which was covered by Mining Lease No.5248 as at 25 September 1998.	Part of Lot 78 on Plan USL48265
That part of Lot 1 on Plan AP5928 which previously formed part of Lot 81 on Plan USL48265 and which was covered by Mining Lease No.5248 as at 25 September 1998.	Part of Lot 81 on Plan USL48265

PART 3 – Areas within the Determination Area where native title does not exist

All of the land and waters described in column 1 of the following table and depicted in red on the determination map:

Area Description (at time of Determination)

Area Description (at time of claim)

That part of Lot 34 on Plan USL48264 described as:

Commencing at the most southern point of Lot 34 on plan USL48264, thence north westerly along the boundary of that lot for a distance of approximately 500 metres, thence by a straight line north easterly to the most western point of Lot 1 on plan MPH22480, thence south easterly and north easterly along the boundary of that lot to its intersection with Lot 34 on plan USL48264, thence southerly along the boundary of that lot back to the point of commencement. Commencing at the most southern point of Lot 34 on plan USL48264, thence north westerly along the boundary of that lot for a distance of approximately 500 metres, thence by a straight line north easterly to the most western point of Lot 1 on plan MPH22480, thence south easterly and north easterly along the boundary of that lot to its intersection with Lot 34 on plan USL48264, thence southerly along the boundary of that lot back to the point of commencement.

Part of Lot 34 on Plan USL48264

That part of Lot 952 on Plan SP178689 more particularly described as all the land within the areas bounded by the following sets of co-ordinates:

Latitude Longitude

-18.212110 142.238147

-18.214100 142.237591

-18.215114 142.241495

-18.211968 142.242400

-18.211658 142.241213

-18.212825 142.240878

Part of Lot 952 on Plan C3591

B. Map of Determination Area

SCHEDULE 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA

The areas in this Schedule are excluded from the Determination Area on the grounds that at the time at which the native title determination application was made:

i. 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

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

Public Works Based Exclusions:

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

B. Land or waters described in paragraph A immediately above includes, for the avoidance of doubt:

1. the whole of the land and waters shown on the map included in this Schedule and described as Lot 40 on Plan SY1 (Croydon Landfill);

2. part of the land and waters shown on the map included in this Schedule and described as:

i. Lot 952 on Plan SP178689 (Croydon Town Reserve), the parts being more particularly described as all the land within the areas bounded by the following sets of co-ordinates:

Sandstone Quarry 1
Latitude	Longitude
-18.202763	142.236062
-18.201893	142.236908
-18.202182	142.235154
-18.201417	142.235850

Sandstone Quarry 2
Latitude	Longitude
-18.211193	142.238099
-18.211339	142.238770
-18.210907	142.238920
-18.210739	142.238246

Mittagong Gravel Pit
Latitude	Longitude
-18.233631	142.233030
-18.236612	142.234303
-18.235377	142.241071
-18.229551	142.244741
-18.228508	142.240140

Pump shed and well
Latitude	Longitude
-18.206733	142.231821
-18.207.816	142.231344
-18.207711	142.232064
-18.206695	142.232244

Storage shed
Latitude	Longitude
-18.213506	142.241852
-18.214966	142.240376
-18.215598	142.241760
-18.213280	142.240792

Water Treatment Plant and Tank
Latitude	Longitude
-18.192243	142.249035
-18.191362	142.249859
-18.191292	142.247261
-18.190167	142.248105

Golden Butterfly North (Dam)
Latitude	Longitude
-18.193159	142.233301
-18.192098	142.234378
-18.194344	142.234692
-18.193753	142.235833

Water Tank
Latitude	Longitude
-18.198557	142.240278
-18.199007	142.241396
-18.198511	142.240888
-18.198054	142.241517

Airport Road Gravel Pit
Latitude	Longitude
-18.214952	142.253460
-18.215086	142.251092
-18.213322	142.251070
-18.213275	142.253181

Lake Belmore Access and Gravel Area
Latitude	Longitude
-18.187228	142.237505
-18.182989	142.241803
-18.185529	142.246672
-18.192339	142.240740

Sandstone Quarry Area
Latitude	Longitude
-18.206762	142.235684
-18.206954	142.233842
-18.208330	142.233828
-18.208426	142.235442

Iguana Consul Mining Museum
Latitude	Longitude
-18.192710	142.245505
-18.193600	142.246003
-18.194512	142.245216
-18.194287	142.244911
-18.194030	142.244967
-18.193923	142.244427

ii. Lot 952 on Plan SP178689 (Croydon Town Reserve), the parts being more particularly described as all the land within the distance nominated from either side of the centreline of the following sets of co-ordinates:

Airport Access Road – 15 metres from the centreline
Latitude	Longitude
-18.205519	142.250591
-18.206416	142.250415
-18.206594	142.250405
-18.206733	142.250423
-18.206920	142.250473
-18.207064	142.250548
-18.207445	142.250792
-18.208093	142.251263
-18.208674	142.251732
-18.209918	142.252929
-18.210224	142.253135
-18.210390	142.253197
-18.211009	142.253274
-18.214202	142.253279
-18.219325	142.253315
-18.214454	142.253362
-18.215914	142.253992
-18.216098	142.254018
-18.216282	142.253979
-18.216859	142.253.722

Water main 2 – 10 metres from the centreline
Latitude	Longitude
-18.192142	142.247960
-18.191460	142.247945
-18.193356	142.248707
-18.196420	142.247889
-18.196769	142.247731
-18.197064	142.247488
-18.197285	142.247128
-18.197460	142.246427
-18.197603	142.246105
-18.197827	142.245996
-18.199928	142.245657
-18.200686	142.245443

Water main 3 – 10 metres from the centreline
Latitude	Longitude
-18.190336	142.245135
-18.191300	142.244829
-18.192855	142.244441
-18.196785	142.243872
-18.197392	142.243698
-18.198012	142.243134
-18.198617	142.241528

Water main 4 – 10 metres from the centreline
Latitude	Longitude
-18.193518	142.235146
-18.193676	142.235513
-18.196918	142.237396
-18.197211	142.237598
-18.198476	142.239290
-18.198698	142.240926
-18.198662	142.2401356

iii. Lot 952 on Plan SP178689 (Croydon Town Reserve) and Lot 1 on Plan SP186241 (Term Lease), the part being more particularly described as all the land within the distance nominated from either side of the centreline of the following set of co-ordinates:

Water main 1 – 10 metres from the centreline
Latitude	Longitude
-18.178509	142.261475
-18.178645	142.259767
-18.178750	142.259044
-18.179734	142.254898
-18.182312	142.249934
-18.182565	142.249720
-18.185754	142.248383
-18.186055	142.248176
-18.188194	142.246423
-18.189296	142.245652
-18.191471	142.249172

iv. Lot 50 on Plan C3593 (Croydon Landing Reserve) and Lot 952 on Plan SP178689 (Croydon Town Reserve), the part being more particularly described as all the land within the area bounded by the following co-ordinates:

Croydon Airport Area
Latitude	Longitude
-18.216958	142.246402
-18.217186	142.249794
-18.216903	142.253528
-18.216726	142.253821
-18.216804	142.254327
-18.218034	142.254200
-18.218.563	142.255503
-18.219775	142.263328
-18.219610	142.264138
-18.221007	142.263387
-18.219812	142.255953
-18.220422	142.255825
-18.220344	142.255386
-18.219732	142.255501
-18.218241	142.246416

Note: to the extent of any inconsistency between the written description in this Schedule and the map, the written description prevails.

SCHEDULE 3 — NATIVE TITLE HOLDERS

The native title holders are the Tagalaka People who are descendants of the following people:

(a) Nelly Robertson (nee Grogan);

(b) Edith Echo;

(d) Charlie Hayes (aka Short Charlie);

(e) Herbie East;

(f) Topsy Cane (aka Topsy Owens);

(g) Jack Fortune; or

(h) Left hand Charlie.

SCHEDULE 4 — OTHER INTERESTS IN THE DETERMINATION AREA

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

1. The rights and interests of the parties under the following indigenous land use agreements:

(a) Tagalaka People and the State of Queensland as parties to the Tagalaka Croydon Area Indigenous Land Use Agreement #1 registered on 19 August 2005;

(b) Tagalaka People and the State of Queensland as parties to the Tagalaka (Town of Croydon) Indigenous Land Use Agreement registered on 5 September 2008;

(c) native title holders and the Croydon Shire Council as parties to the Croydon Shire Council/Tagalaka People True Blue Tourist Facility ILUA (QIA 2009/068) registered on 14 May 2010;

(d) native title holders and the Croydon Shire Council as parties to the Tagalaka Croydon Area ILUA #2 (QIA 2006/047) registered on 11 February 2008; and

(e) native title holders and Ergon Energy Corporation Limited authorised on 1 May 2012.

2. The rights and interests of Croydon Shire Council (the “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) lessor under any leases which were entered into as at the date of the Determination;

(ii) grantor of any licences or other rights and interests which were granted as at the date of the Determination;

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

(c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination, including but not limited to:

(i) dedicated roads operated by Council;

(ii) gravel pits operated by Council;

(iii) undedicated but constructed roads except for those not operated by Council;

(iv) water pipelines and other water supply infrastructure;

(v) drainage facilities; and

(vi) cemetery and cemetery related facilities; and

(d) to enter the land described in paragraph (a) to (c) to:

(i) exercise any of the rights and interests referred to in paragraphs 2(a) to 2(c) of Schedule 4;

(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 2(c) of Schedule 4; 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.

3. The rights and interests of Telstra Corporation Limited:

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

(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights:

(i) to inspect land;

(ii) to install and operate telecommunication facilities; and

(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication facilities; and

(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.

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

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

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

(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.

5. The rights and interests of the holders of any authorities, licences, permits or allocations issued under the Water Act 2000 (Qld);

6. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under the Act;

7. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld); and

8. Any other rights and interests held by the State of Queensland or Commonwealth of Australia, or by reason of the force and operation of the Laws of the State or 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 6020 of 2001

BETWEEN:

JANET BUSCH, BEVERLY BOWYANG, GLADYS CALLOPE, MAUREEN DOUGLAS, BILL FORTUNE AND JANETTE OWENS ON BEHALF OF THE TAGALAKA PEOPLE #2

Applicant

AND:

STATE OF QUEENSLAND

First Respondent

CARPENTARIA SHIRE COUNCIL

Second Respondent

CROYDON SHIRE COUNCIL

Third Respondent

ETHERIDGE SHIRE COUNCIL

Fourth Respondent

ERGON ENERGY CORPORATION LIMITED

Fifth Respondent

ALLEN JOHN BETHEL, CARMEL MAREE BETHEL, SYLVIA BING-CHEW, WAYNE BING-CHEW, CEDAR DAWN PTY LTD, ERIC MERVYN ELLEMS, TERRENCE JOHN FLUTE, G & C CONNOLLY PTY LTD AS TRUSTEE FOR THE G & C CONNOLLY FAMILY TRUST, ALAN ROSS GAYNOR, URSULA JANE GAYNOR, COLLEEN OLIVE HENRY, MERVYN ROY HENRY, RAYELENE MARGARET HENRY, DAVID BAILEY HINRICHSEN, JOSEPHINE BATHIA HOBBS, BARRY GILBERT HUGHES, EDWARD JAMES HUGHES, SHARON DALE HUGHES, TAMMY MARIE HUGHES, DIANE OLIVE JENSEN, KELVIN JOHN JENSEN, ROBYN MAY LETHBRIDGE, BARRY JOHN MARTIN, IAN BRUCE MARTIN, JOHN ALBERT MARTIN, RAY JOSEPH MARTIN, KATHLEEN MAY MCFARLANE, ROBERT WALTER MCFARLANE, CAROL ELIZABETH RYAN, GREGORY JAMES RYAN, DAVID ANTHONY SIMMONS, HELEN JOYCE SIMMONS, DAVID WILLIS, JAMES HARDWICK WILLIS AND JANETTE PEARL WILLIS

Sixth – Fortieth Various Pastoral Respondents

JUDGE:	LOGAN J
DATE OF ORDER:	10 DECEMBER 2012
WHERE MADE:	CROYDON

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 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. Each party to the proceeding is to bear its own costs.

THE COURT DETERMINES THAT:

3. The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1.

4. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.

5. Native title does not exist in relation to that part of the Determination Area described in Part 3 of Schedule 1.

6. The native title is held by the Tagalaka People described in Schedule 3 ("the native title holders").

7. Subject to paragraphs 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are:

(a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b) in relation to Water, the non-exclusive rights to:

(i) hunt, fish and gather from the Water of the area;

(ii) take and use the Natural Resources of the Water of the area; and

(iii) take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

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

(b) camp on the area and, for that purpose, erect temporary shelters on the area;

(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

(e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;

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

(g) conduct ceremonies on the area;

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

(i) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm.

9. 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.

10. The native title rights and interests referred to in paragraphs 7(b) and 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

11. There are no native title rights in or in relation to:

(a) minerals as defined by the Mineral Resources Act 1989 (Qld); and

(b) petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

13. The relationship between the native title rights and interests described in paragraphs 7 and 8 and the Other Interests described in Schedule 4 is that:

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

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

15. An Aboriginal Corporation whose name will be nominated in writing within three months is to:

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

(b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth).

17. Until such time as there is a prescribed body corporate in relation to the Determination Area any notices required under the Native Title Act 1993 (Cth) or otherwise to be served on the Native Title Holders, the native title claim group or the Registered Native Title Claimants may be served upon the North Queensland Land Council Native Title Representative Body Aboriginal Corporation, and such notice shall be deemed to be sufficient.

18. In this Determination, unless the contrary intention appears:

“External Boundary Description” means the boundary described in Part 4 of Schedule 1;

“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);

“Natural Resources” means:

(a) any animal, plant, fish and bird life found on or in the Determination Area; and

(b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area,

that have traditionally been taken and used by the native title holders, but does not include:

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

“Water” means:

(a) water which flows, whether permanently or intermittently, within a river, creek or stream;

(b) any natural collection of water, whether permanent or intermittent; and

Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

SCHEDULE 1 — DETERMINATION AREA

A. Description of Determination Area

The determination area comprises all of the land and waters described in Parts 1, 2 and 3 below, to the extent that they are within the External Boundary Description as described in Part 4 below, and depicted in the map attached, excluding the areas described in Schedule 2.

PART 1 – Exclusive Areas

All of the land and waters described in the following tables and depicted in dark blue on the determination map:

Area Description (at time of Determination)

Lot 1 on Plan B14470

Lot 101 on Plan EH4101

Lot 102 on Plan EH4101

Lot 103 on Plan EH4101

Lot 104 on Plan EH4101

Lot 105 on Plan EH4101

Lot 106 on Plan EH4101

Lot 107 on Plan EH4101

Lot 108 on Plan EH4101

Lot 109 on Plan EH4101

Lot 110 on Plan EH4101

Lot 111 on Plan EH4101

Lot 112 on Plan EH4101

Lot 113 on Plan EH4101

Lot 114 on Plan EH4101

Lot 115 on Plan EH4101

Lot 116 on Plan EH4101

Lot 117 on Plan EH4101

Lot 118 on Plan EH4101

Lot 119 on Plan EH4101

Lot 120 on Plan EH4101

Lot 201 on Plan EH4101

Lot 202 on Plan EH4101

Lot 203 on Plan EH4101

Lot 204 on Plan EH4101

Lot 205 on Plan EH4101

Lot 206 on Plan EH4101

Lot 207 on Plan EH4101

Lot 208 on Plan EH4101

Lot 209 on Plan EH4101

Lot 210 on Plan EH4101

Lot 211 on Plan EH4101

Lot 212 on Plan EH4101

Lot 213 on Plan EH4101

Lot 214 on Plan EH4101

Lot 215 on Plan EH4101

Lot 216 on Plan EH4101

Lot 217 on Plan EH4101

Lot 218 on Plan EH4101

Lot 219 on Plan EH4101

Lot 220 on Plan EH4101

Lot 301 on Plan EH4101

Lot 302 on Plan EH4101

Lot 303 on Plan EH4101

Lot 304 on Plan EH4101

Lot 305 on Plan EH4101

Lot 306 on Plan EH4101

Lot 307 on Plan EH4101

Lot 308 on Plan EH4101

Lot 309 on Plan EH4101

Lot 310 on Plan EH4101

Lot 311 on Plan EH4101

Lot 312 on Plan EH4101

Lot 313 on Plan EH4101

Lot 314 on Plan EH4101

Lot 315 on Plan EH4101

Lot 316 on Plan EH4101

Lot 317 on Plan EH4101

Lot 318 on Plan EH4101

Lot 319 on Plan EH4101

Lot 320 on Plan EH4101

Lot 401 on Plan EH4101

Lot 402 on Plan EH4101

Lot 403 on Plan EH4101

Lot 404 on Plan EH4101

Lot 405 on Plan EH4101

Lot 406 on Plan EH4101

Lot 407 on Plan EH4101

Lot 408 on Plan EH4101

Lot 409 on Plan EH4101

Lot 410 on Plan EH4101

Lot 411 on Plan EH4101

Lot 412 on Plan EH4101

Lot 413 on Plan EH4101

Lot 414 on Plan EH4101

Lot 415 on Plan EH4101

Lot 416 on Plan EH4101

Lot 417 on Plan EH4101

Lot 418 on Plan EH4101

Lot 419 on Plan EH4101

Lot 420 on Plan EH4101

Lot 501 on Plan EH4101

Lot 502 on Plan EH4101

Lot 503 on Plan EH4101

Lot 504 on Plan EH4101

Lot 505 on Plan EH4101

Lot 506 on Plan EH4101

Lot 507 on Plan EH4101

Lot 508 on Plan EH4101

Lot 509 on Plan EH4101

Lot 510 on Plan EH4101

Lot 511 on Plan EH4101

Lot 512 on Plan EH4101

Lot 513 on Plan EH4101

Lot 514 on Plan EH4101

Lot 515 on Plan EH4101

Lot 516 on Plan EH4101

Lot 517 on Plan EH4101

Lot 518 on Plan EH4101

Lot 519 on Plan EH4101

Lot 520 on Plan EH4101

Lot 601 on Plan EH4101

Lot 602 on Plan EH4101

Lot 603 on Plan EH4101

Lot 604 on Plan EH4101

Lot 605 on Plan EH4101

Lot 606 on Plan EH4101

Lot 607 on Plan EH4101

Lot 608 on Plan EH4101

Lot 609 on Plan EH4101

Lot 610 on Plan EH4101

Lot 611 on Plan EH4101

Lot 612 on Plan EH4101

Lot 613 on Plan EH4101

Lot 614 on Plan EH4101

Lot 615 on Plan EH4101

Lot 616 on Plan EH4101

Lot 617 on Plan EH4101

Lot 618 on Plan EH4101

Lot 619 on Plan EH4101

Lot 620 on Plan EH4101

Lot 701 on Plan EH4101

Lot 702 on Plan EH4101

Lot 703 on Plan EH4101

Lot 704 on Plan EH4101

Lot 705 on Plan EH4101

Lot 706 on Plan EH4101

Lot 707 on Plan EH4101

Lot 708 on Plan EH4101

Lot 709 on Plan EH4101

Lot 710 on Plan EH4101

Lot 711 on Plan EH4101

Lot 712 on Plan EH4101

Lot 713 on Plan EH4101

Lot 714 on Plan EH4101

Lot 715 on Plan EH4101

Lot 716 on Plan EH4101

Lot 717 on Plan EH4101

Lot 718 on Plan EH4101

Lot 719 on Plan EH4101

Lot 720 on Plan EH4101

Lot 801 on Plan EH4101

Lot 802 on Plan EH4101

Lot 803 on Plan EH4101

Lot 804 on Plan EH4101

Lot 805 on Plan EH4101

Lot 806 on Plan EH4101

Lot 807 on Plan EH4101

Lot 808 on Plan EH4101

Lot 809 on Plan EH4101

Lot 810 on Plan EH4101

Lot 811 on Plan EH4101

Lot 812 on Plan EH4101

Lot 813 on Plan EH4101

Lot 814 on Plan EH4101

Lot 815 on Plan EH4101

Lot 816 on Plan EH4101

Lot 817 on Plan EH4101

Lot 818 on Plan EH4101

Lot 819 on Plan EH4101

Lot 820 on Plan EH4101

Lot 4 on Plan EH4102

Lot 5 on Plan EH4102

Lot 101 on Plan H4151

Lot 102 on Plan H4151

Lot 103 on Plan H4151

Lot 104 on Plan H4151

Lot 105 on Plan H4151

Lot 106 on Plan H4151

Lot 107 on Plan H4151

Lot 108 on Plan H4151

Lot 109 on Plan H4151

Lot 110 on Plan H4151

Lot 111 on Plan H4151

Lot 112 on Plan H4151

Lot 113 on Plan H4151

Lot 114 on Plan H4151

Lot 115 on Plan H4151

Lot 116 on Plan H4151

Lot 117 on Plan H4151

Lot 118 on Plan H4151

Lot 119 on Plan H4151

Lot 120 on Plan H4151

Lot 201 on Plan H4151

Lot 202 on Plan H4151

Lot 203 on Plan H4151

Lot 204 on Plan H4151

Lot 205 on Plan H4151

Lot 207 on Plan H4151

Lot 208 on Plan H4151

Lot 209 on Plan H4151

Lot 210 on Plan H4151

Lot 211 on Plan H4151

Lot 212 on Plan H4151

Lot 213 on Plan H4151

Lot 214 on Plan H4151

Lot 215 on Plan H4151

Lot 216 on Plan H4151

Lot 217 on Plan H4151

Lot 218 on Plan H4151

Lot 219 on Plan H4151

Lot 220 on Plan H4151

Lot 301 on Plan H4151

Lot 302 on Plan H4151

Lot 303 on Plan H4151

Lot 304 on Plan H4151

Lot 305 on Plan H4151

Lot 306 on Plan H4151

Lot 307 on Plan H4151

Lot 308 on Plan H4151

Lot 309 on Plan H4151

Lot 310 on Plan H4151

Lot 311 on Plan H4151

Lot 312 on Plan H4151

Lot 313 on Plan H4151

Lot 314 on Plan H4151

Lot 315 on Plan H4151

Lot 316 on Plan H4151

Lot 317 on Plan H4151

Lot 318 on Plan H4151

Lot 319 on Plan H4151

Lot 320 on Plan H4151

Lot 401 on Plan H4151

Lot 402 on Plan H4151

Lot 403 on Plan H4151

Lot 404 on Plan H4151

Lot 405 on Plan H4151

Lot 406 on Plan H4151

Lot 407 on Plan H4151

Lot 408 on Plan H4151

Lot 409 on Plan H4151

Lot 410 on Plan H4151

Lot 411 on Plan H4151

Lot 412 on Plan H4151

Lot 413 on Plan H4151

Lot 414 on Plan H4151

Lot 415 on Plan H4151

Lot 416 on Plan H4151

Lot 417 on Plan H4151

Lot 418 on Plan H4151

Lot 419 on Plan H4151

Lot 420 on Plan H4151

Lot 4 on Plan N25324

Lot 1 on Plan N25611

Lot 947 on Plan SY28

PART 2 – Non-Exclusive Areas

All of the land and waters described in the following tables and depicted in light blue on the determination map:

Area Description

(at time of Determination)

Lot 2 on Plan SY14

Lot 254 on Plan SP134201

Lot 524 on Plan SLD524

Lot 711 on Plan OL294

Lot 712 on Plan OL295

Lot 719 on Plan AP12368

Lot 423 on Plan SP146511

Lot 755 on Plan OL299

Lot 785 on Plan AP12367

Lot 2132 (Pt) on Plan PH654

Lot 271(Pt) on Plan CP847171

Lot 2676 on Plan PH2056

Lot 4628 on Plan PH2257

Lot 259 (Pt) on Plan SP170278

Lot 2299 on Plan PH2032

Lot 4 (Pt) on Plan SE1

Lot 2255 (Pt) on Plan PH2033

Lot 4856 on Plan SP235291

Lot 15 on Plan GA2

Lot 3 on Plan CP859354

Lot 2636 on Plan PH1703

Lot 2677 on Plan PH2066

Lot 2396 on Plan PH2039

Lot 2393 (Pt) on Plan PH2040

Lot 4894 on Plan PH1876

Lot 2503 on Plan PH2105

Lot 2573 (Pt) on Plan PH2065

Lot 5 on Plan OK7

Lot 3881 on Plan PH1911

Lot 2397 on Plan PH1081

Lot 6 on Plan LG21

Lot 4295 on Plan PH1158

Lot 2435 on Plan PH884

Lot 4655 (Pt) on Plan PH235

Lot 2635 on Plan PH1702

Lot 4850 on Plan PH1875

Lot 2429 on Plan PH1699

Lot 2 on Plan SY26

Lot 2 on Plan LA5

Lot 5123 on Plan PH1669

Lot 1 on Plan LA5

Lot 4148 on Plan PH1704

Lot 143 on Plan SP134201

Lot 2434 (Pt) on Plan PH1861

Lot 1 (Pt) on Plan WLR10

Lot 2641 on Plan PH1909

Lot 2437 on Plan PH866

Lot 1 on Plan LA4

Lot 5253 on Plan PH1349

Lot 2062 (Pt) on Plan PH1405

Lot 2398 on Plan PH1412

Lot 2254 (Pt) on Plan PH1527

Lot 75 on Plan PH1698

Lot 2853 (Pt) on Plan PH1902

Lot 2 on Plan SP117603

Lot 2 (Pt) on Plan WLR11

Lot 2 (Pt) on Plan NM104

Lot 2 (Pt) on Plan NM108

Lot 2 on Plan LA3

Lot 1 (Pt) on Plan OK4

Lot 1 on Plan SY17

Lot 38 (Pt) on Plan ET813287

Lot 1 (Pt) on Plan WLR14

Lot 3 on Plan LG17

Lot 4 on Plan LG18

Lot 37 on Plan B144220

Lot 10 on Plan B144221

Lot 5 (Pt) on Plan SP140908

Lot 236 on Plan SP140908

Lot 5237 on Plan PH1367

Lot 5257 on Plan PH1432

Lot 5262 (Pt) on Plan PH1850

Lot 3 (Pt) on Plan ET42

Lot 14 (Pt) on Plan GB813293

Lot 207 on Plan MPH14026

Lot 210 on Plan MPH14026

Lot 212 on Plan MPH14026

Lot 2 on Plan SP110313

Lot 2 on Plan EM3

Lot 1 on Plan EM1

Lot 3 on Plan SY2

Lot 1 on Plan SY3

Lot 4 on Plan SY2

Lot 232 on Plan SP109395

Lot 1 on Plan LG10

Lot 6 on Plan SY16

Lot 2 on Plan C35919

Lot 1 on Plan C35922

Lot 946 on Plan SY28

Lot 63 on Plan SP112716

Lot 64 on Plan SP112716

Lot 65 on Plan SP112716

Lot 66 on Plan SP112716

Lot 67 on Plan SP112716

Lot 3 on Plan SP116187

Lot 5 on Plan SP116187

Lot 2 on Plan B14470

Lot 1 on Plan B144259

Lot 1 on Plan SP110313

Lot 25 on Plan B14495

Lot 19 on Plan B144255

Lot 16 on Plan B144256

Lot 9 on Plan B144281

Lot 1 on Plan MPH124

Lot 2 on Plan MPH124

Lot 3 on Plan MPH124

Lot 4 on Plan MPH124

Lot 5 on Plan MPH124

Lot 109 on Plan MPH14026

Lot 2206 on Plan MPH141

Lot 82 on Plan MPH15915

Lot 180 on Plan MPH15915

Lot 181 on Plan MPH15915

Lot 182 on Plan MPH15915

Lot 277 on Plan MPH15915

Lot 424 on Plan MPH15915

Lot 425 on Plan MPH15915

Lot 426 on Plan MPH15915

Lot 427 on Plan MPH15915

Lot 592 on Plan MPH15915

Lot 593 on Plan MPH15915

Lot 594 on Plan MPH15915

Lot 597 on Plan MPH15915

Lot 598 on Plan MPH15915

Lot 9 on Plan MPH22228

Lot 1 on Plan MPH22249

Lot 5 on Plan MPH22261

Lot 6 on Plan MPH22261

Lot 8 on Plan MPH22300

Lot 9 on Plan MPH22300

Lot 10 on Plan MPH22300

Lot 11 on Plan MPH22300

Lot 12 on Plan MPH22300

Lot 13 on Plan MPH22300

Lot 51 on Plan MPH22300

Lot 1 on Plan MPH22301

Lot 2 on Plan MPH22301

Lot 3 on Plan MPH22301

Lot 4 on Plan MPH22301

Lot 5 on Plan MPH22301

Lot 6 on Plan MPH22301

Lot 7 on Plan MPH22301

Lot 8 on Plan MPH22301

Lot 9 on Plan MPH22301

Lot 10 on Plan MPH22301

Lot 11 on Plan MPH22301

Lot 12 on Plan MPH22301

Lot 13 on Plan MPH22301

Lot 14 on Plan MPH22301

Lot 15 on Plan MPH22301

Lot 16 on Plan MPH22301

Lot 2 on Plan MPH22368

Lot 3 on Plan MPH22368

Lot 1651 on Plan MPH22408

Lot 1 on Plan MPH33585

Lot 80 on Plan SY28

Lot 422 on Plan SY28

Lot 506 on Plan SY28

Lot 523 on Plan SY28

Lot 524 on Plan SY28

Lot 764 on Plan SY28

Lot 765 on Plan SY28

Lot 766 on Plan SY28

Lot 843 on Plan SY28

Lot 844 on Plan SY28

Lot 845 on Plan SY28

Lot 846 on Plan SY28

Lot 876 on Plan SY28

Lot 877 on Plan SY28

Lot 878 on Plan SY28

Lot 879 on Plan SY28

Lot 880 on Plan SY28

Lot 881 on Plan SY28

Lot 882 on Plan SY28

Lot 883 on Plan SY28

Lot 884 on Plan SY28

Lot 885 on Plan SY28

Lot 886 on Plan SY28

Lot 887 on Plan SY28

Lot 888 on Plan SY28

Lot 889 on Plan SY28

Lot 890 on Plan SY28

Lot 891 on Plan SY28

Lot 892 on Plan SY28

Lot 893 on Plan SY28

Lot 894 on Plan SY28

Lot 895 on Plan SY28

Lot 896 on Plan SY28

Lot 897 on Plan SY28

Lot 898 on Plan SY28

Lot 899 on Plan SY28

Lot 900 on Plan SY28

Lot 938 on Plan SY28

Lot 17 on Plan USL651

Lot 26 on Plan USL651

Lot 12 on Plan USL652

Lot 13 on Plan USL652

Lot 19 on Plan USL652

Lot 21 on Plan USL652

Lot 53 on Plan USL654

Lot 2 on Plan MPH22483

Lot 5 on Plan MPH22483

Lot 9 on Plan MPH22218

Lot 11 on Plan MPH22218

Lot 13 on Plan MPH22218

Lot 14 on Plan MPH22218

Lot 18 on Plan MPH22367

Lot 953 on Plan C3591

Lot 3 on Plan SP116187

Lot 5 on Plan SP116187

Lot 2 on Plan SY804350

Lot 1 on Plan MPH22367

Lot 2 on Plan MPH22367

Lot 4 on Plan MPH22367

Lot 16 on Plan USL656

Area Description (at time of Determination)

That part of Lot 5 on Plan LG5, excluding the area of Road shown on Plan LG5.

That part of Lot 1 on Plan SP186241 formally described as Lot 719 on Plan OL434 and Lot 785 on Plan OL300.

That part of Lot 8 on Plan SY21 which was not covered by historical Miners Homestead Lease No.2201 described as Lot 1 Parish of Croydon.

That part of Lot 1 on Plan SP134193 which was not covered by:

− historical Gold Fields Homestead Lease No. 513 described as Allotment 8 of Section 16 on Plan MPH15915;

− historical Gold Fields Homestead Lease No. 632 described as Allotment 7 of Section 16 on Plan MPH15915;

− historical Gold Fields Homestead Lease No. 990 described as Allotment 12 of Section 16 on Plan MPH15915;

− historical Gold Fields Homestead Lease No. 1093 described as Allotments 10 and 11 of Section 16 on Plan MPH15915; or

− historical Miners Homestead Lease No. 2000 described as Allotment 6 of Section 16 on Plan MPH15915.

That part of Lot 2 on Plan SP134193 which was not covered by historical Gold Fields Homestead Lease No. 632 described as Allotment 20 of Section 16 on Plan MPH15915.

That part of Lot 4 on Plan SP110310 which was not covered by historical Gold Fields Homestead Lease No. 971 described as Allotment 7 of Section 1 on Plan MPH14026.

That part of Lot 5 on Plan SY12 which is not excluded in Schedule 2.

That part of Lot 949 on Plan C3591 which is not excluded in Schedule 2.

That part of Lot 17 on Plan B144300 which is not excluded in Schedule 2.

That part of Lot 952 on Plan SP178689 intersected by Alldridge Street within the Croydon township comprising an eastern and western severance:

• the western severance comprises the area bounded by Edward Street in the north; Alldridge Street in the east; Elizabeth Street in the south; the south eastern and north eastern boundaries of Lot 13 on Plan MPH 22367; the north eastern boundary of Lot 936 on Plan SY28; Sircom Street to the west, the southern boundaries of Lots 747 and 748 on Plan SY28; the southern boundary of Chester Street; and Chester Street to the west; and

• the eastern severance comprises the area bounded by Charles Street to the east; the northern boundaries of Lot 934 on Plan SY28 and Lot 115 on Plan USL655 to the south; and Alldridge Street to the west.

PART 3 – Areas within the Determination Area where native title does not exist

All of the land and waters described in the following tables and depicted in red on the determination map:

Area Description (at time of Determination)

Lot 33 on Plan B14468

Lot 35 on Plan B14468

Lot 108 on Plan MPH14026

Lot 113 on Plan MPH14026

Lot 114 on Plan MPH14026

Lot 115 on Plan MPH14026

Lot 116 on Plan MPH14026

Lot 117 on Plan MPH14026

Lot 603 on Plan MPH14026

Lot 607 on Plan MPH14026

Lot 608 on Plan MPH14026

Lot 613 on Plan MPH14026

Lot 615 on Plan MPH14026

Lot 703 on Plan MPH14026

Lot 704 on Plan MPH14026

Lot 705 on Plan MPH14026

Lot 706 on Plan MPH14026

Lot 707 on Plan MPH14026

Lot 708 on Plan MPH14026

Lot 709 on Plan MPH14026

Lot 710 on Plan MPH14026

Lot 711 on Plan MPH14026

Lot 712 on Plan MPH14026

Lot 714 on Plan MPH14026

Lot 716 on Plan MPH14026

Lot 717 on Plan MPH14026

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Lot 9 on Plan MPH15920

Lot 12 on Plan MPH15920

Lot 1 on Plan MPH22204

Lot 1 on Plan MPH22220

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Lot 1 on Plan MPH22373

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Lot 1 on Plan MPH22484

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Lot 4 on Plan MPH31623

Lot 3 on Plan MPH34748

Lot 6 on Plan MPH34974

Lot 12 on Plan MPH40303

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Lot 5 on Plan MPH40362

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Lot 1 on Plan MPH40918

Lot 6 on Plan MPH40930

Lot 178 on Plan SY28

Lot 341 on Plan SY28

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Lot 373 on Plan SY28

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Lot 402 on Plan SY28

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Lot 679 on Plan SY28

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Lot 909 on Plan SP178688 and Road (formerly described as Lot 909 on Plan SY28)

Lot 910 on Plan SY28

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Lot 927 on Plan SY28

Road (formerly described as Lot 928 on Plan SY28)

Lot 934 on Plan SY28

Lot 935 on Plan SY28

Lot 936 on Plan SY28

Lot 166 on Plan USL651

Lot 191 on Plan USL651

Lot 194 on Plan USL651

Lot 57 on Plan USL654

Lot 62 on Plan USL654

Lot 86 on Plan USL654

Lot 92 on Plan USL654

Lot 111 on Plan USL654

Lot 145 on Plan USL654

Lot 108 on Plan USL655

Lot 115 on Plan USL655

Lot 59 on Plan USL656

Lot 65 on Plan USL656

Lot 73 on Plan USL656

Lot 91 on Plan USL656

PART 4 – External Boundary Description

Commencing at the intersection of the centrelines of the Norman River and Clara River and extending generally northerly through the following coordinate points;

Longitude ° East	Latitude ° South
141.320408	18.446018
141.323666	18.417357
141.327515	18.368577
141.318534	18.321016
141.308270	18.299065
141.280044	18.250285
141.254384	18.200285
141.222310	18.151505
141.212046	18.113700
141.208197	18.066139
141.212046	18.013701
141.221027	17.941750
141.226159	17.897848
141.226159	17.866141
141.221027	17.819799
141.218461	17.757605
141.214612	17.721019

Then northerly to a point on the centreline of the Carron River at Longitude 141.213814° East; then generally south easterly and generally north easterly along the centreline of the Carron River to its intersection with the centreline of Rocky Creek; then generally easterly along the centreline of Rocky Creek to its intersection with the centreline of an unnamed creek at Longitude 141.862010° East; then generally north easterly along the centreline of that unnamed creek to Longitude 142.036540° East; then northerly and generally north easterly along the centreline of a tributary of that unnamed creek to Longitude 142.067201° East; then north easterly to the southernmost south east corner of Lot 232 on Plan PH284 (Miranda Downs Pastoral Lease); then generally north easterly along the south eastern boundary of that pastoral lease to its intersection with the centreline of the Gilbert River; then generally south easterly and generally southerly along the centreline of that river to its intersection with the centreline of Wall Creek; then generally south westerly and generally westerly along the centreline of Wall Creek to its source at Longitude 143.125400° East; then south easterly to the source of a tributary of Fog Creek at Latitude 18.934830° South; then generally southerly along the centreline of that tributary and the centreline of Fog Creek to its intersection with the centreline of the Clara River; then south westerly to the intersection of the centrelines of Borah Creek and the Norman River; then generally westerly, generally north westerly and generally northerly along the centreline of the Norman River back to the commencement point.

The application area does not cover any areas subject to:

• The land and waters subject to native title determination application QUD6109/98 Tagalaka People (QC98/43) as accepted for registration 31st August, 2000

• The land and waters subject to native title determination application QUD6009/99 Ewamian People 2 (QC99/13) as accepted for registration 9th July, 2002

Note

Data Reference and source

• Application boundary data compiled by National Native Title Tribunal.

• Rivers/Creeks where available are based on Casement data sourced from the Department of Natural Resources and Mines, Qld (August, 2012) – else Topographic vector data is © Commonwealth of Australia (Geoscience Australia) 2003, or Local Government Authority boundaries where applicable

• Non-Freehold data sourced from Department of Natural Resources and Mines, Qld (August, 2012).

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Prepared by Geospatial Services, National Native Title Tribunal (04 October 2012)

B. Map of Determination Area

SCHEDULE 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area.

Part A

On the basis that native title has been extinguished and is not claimed, the parties have agreed that the excluded areas include any land or waters on which any permanent improvement consisting of:

(a) a homestead, house, shed or other building;

(b) an airstrip;

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

(d) stock yards and trap yards,

has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral leases:

(i) Pastoral Holding 23/2627 comprising Lot 15 on Plan GA2 and commonly known as Agantra;

(ii) Pastoral Holding 34/2393 comprising Lot 2393 on Plan PH2040 and commonly known as Arduno;

(iii) Pastoral Holding 34/4894 comprising Lot 4894 on Plan PH1876 and commonly known as Beach;

(iv) Pastoral Holding 34/3665 comprising Lot 8 (Pt) on Plan SY21 and commonly known as Belmore;

(v) Pastoral Holding 34/5415 comprising Lot 2 (Pt) on Plan NM108 and commonly known as Broadwater;

(vi) Pastoral Holding 18/5514 comprising Lot 38 on Plan ET813287 and commonly known as Chadshunt;

(vii) Pastoral Holding 34/2423 comprising Lot 1 on Plan LA5 and commonly known as Claraville;

(viii) Pastoral Holding 34/2853 comprising Lot 2853 on Plan PH1902 and commonly known as Clotilda;

(ix) Pastoral Holding 34/5253 comprising Lot 5253 on Plan PH1349 and commonly known as Ella Vale;

(x) Pastoral Holding 34/4148 comprising Lot 4148 on Plan PH1704 and commonly known as Entrona;

(xi) Pastoral Holding 34/75 comprising Lot 75 on Plan PH1698 and commonly known as Esmeralda;

(xii) Pastoral Holding 34/5123 comprising Lot 5123 on Plan PH1669 and commonly known as Florence;

(xiii) Pastoral Holding 23/4655 comprising Lot 4655 (Pt) on Plan PH235 and commonly known as Fog Creek;

(xiv) Pastoral Holding 34/5423 comprising Lot 2 on Plan NM104 and commonly known as Glenore;

(xv) Pastoral Holding 34/3840 comprising Lot 1 on Plan LA4 and commonly known as Guildford;

(xvi) Pastoral Holding 34/5435 comprising Lot 2 on Plan LA3 and commonly known as Gum Creek;

(xvii) Pastoral Holding 34/5458 comprising Lot 1 on Plan OK4 and commonly known as Haydon;

(xviii) Pastoral Holding 34/2062 comprising Lot 2062 on Plan PH1405 and commonly known as Karron;

(xix) Pastoral Holding 18/4231 comprising Lot 423 on SP146511 and commonly known as Linley;

(xx) Pastoral Holding 23/2254 comprising Lot 2254 (Pt) on Plan PH1527 and commonly known as Lucksome;

(xxi) Pastoral Holding 18/5143 comprising Lot 143 on SP134201 and commonly known as Malacura;

(xxii) Pastoral Holding 34/2410 comprising Lot 5 on Plan OK7 and commonly known as May Vale;

(xxiii) Pastoral Holding 34/2676 comprising Lot 2676 on Plan PH2056 and commonly known as Mittagong;

(xxiv) Pastoral Holding 34/2677 comprising Lot 2677 on Plan PH2066 and commonly known as Mittagong;

(xxv) Pastoral Holding 34/2635 comprising Lot 2635 on Plan PH1702 and commonly known as Mittagong;

(xxvi) Pastoral Holding 34/2429 comprising Lot 2429 on Plan PH1699 and commonly known as Mittagong;

(xxvii) Pastoral Holding 34/2447 comprising Lot 2 on Plan LA5 and commonly known as Mittagong;

(xxviii) Pastoral Holding 34/2437 comprising Lot 2437 on Plan PH866 and commonly known as Mittagong;

(xxix) Pastoral Holding 34/4850 comprising Lot 4850 on Plan PH1875 and commonly known as Momba;

(xxx) Pastoral Holding 34/4715 comprising Lot 2 on Plan SP117603 and commonly known as Mooremount;

(xxxi) Pastoral Holding 18/2503 comprising Lot 2503 on Plan PH2105 and commonly known as Mount Little;

(xxxii) Pastoral Holding 13/2255 comprising Lot 2255 (Pt) on Plan PH2033 and commonly known as Mundjuro;

(xxxiii) Pastoral Holding 23/3226 comprising Lot 1 (Pt) on Plan WLR10 and commonly known as New Water;

(xxxiv) Pastoral Holding 18/2573 comprising Lot 2573 (Pt) on Plan PH2065 and commonly known as Northhead;

(xxxv) Pastoral Holding 34/2397 comprising Lot 2397 on Plan PH1081 and commonly known as Oakland Park;

(xxxvi) Pastoral Holding 34/2636 comprising Lot 2636 on Plan PH1703 and commonly known as Pepatra;

(xxxvii) Pastoral Holding 34/3881 comprising Lot 3881 on Plan PH1911 and commonly known as Prospect;

(xxxviii) Pastoral Holding 34/2641 comprising Lot 2641 on Plan PH1909 and commonly known as Prospect;

(xxxix) Pastoral Holding 34/2707 comprising Lot 2 on Plan SY26 and commonly known as Reigate;

(xl) Pastoral Holding 18/5527 comprising Lot 3 on Plan LG17 and Lot 4 on Plan LG18 and commonly known as Rockyview;

(xli) Pastoral Holding 23/4628 comprising Lot 4628 on Plan PH2257 and commonly known as Roderick;

(xlii) Pastoral Holding 34/5446 comprising Lot 1 on Plan SY17 and commonly known as Tabletop;

(xliii) Pastoral Holding 34/4295 comprising Lot 4295 on Plan PH1158 and commonly known as The Lakes;

(xliv) Pastoral Holding 34/2398 comprising Lot 2398 on Plan PH1412 and commonly known as Timora;

(xlv) Pastoral Development Holding comprising Lot 271 (Pt) on Plan CP847171 and commonly known as Vena Park;

(xlvi) Pastoral Development Holding 13/2132 comprising Lot 2132 (Pt) on Plan PH654 and commonly known as Miecolon;

(xlvii) Preferential Pastoral Holding 18/5428 comprising Lot 14 on Plan GB813293 commonly known as Blancourt;

(xlviii) Preferential Pastoral Holding 34/5262 comprising Lot 5262 (Pt) on PH1850 and commonly known as Yappar River;

(xlix) Preferential Pastoral Holding 18/5236 comprising Lot 236 on Plan SP140908 and commonly known as Carnes;

(l) Preferential Pastoral Holding 18/5427 comprising Lot 3 (Pt) on Plan ET42 and commonly known as Forest Home;

(li) Preferential Pastoral Holding 18/5257 comprising Lot 5257 on Plan PH1432 and commonly known as Green Hills;

(lii) Preferential Pastoral Holding 18/5235 comprising Lot 5 on Plan SP140908 and commonly known as Heliman Creek;

(liii) Preferential Pastoral Holding 18/5237 comprising Lot 5237 on Plan PH1367 and commonly known as Paddy’s Station (aka Candlow);

(liv) Term Lease 0/232856 comprising Lot 2299 on Plan and PH2032 commonly known as Dumas;

(lv) Term Lease 0/234794 comprising Lot 4856 on Plan SP235291 and commonly known as Golden Gate;

(lvi) Term Lease 0/221967 comprising Lot 259 (Pt) on Plan SP170278 and commonly known as Trenton;

(lvii) Occupation Licence 34/719 comprising Lot 719 on Plan AP12368 and commonly known as Alehvale;

(lviii) Occupation Licence 34/524 comprising Lot 524 on Plan SLD524 and commonly known as Golden Gate;

(lix) Occupation Licence 34/711 comprising Lot 711 on Plan OL294 and commonly known as Golden Gate;

(lx) Occupation Licence 34/712 comprising Lot 712 on Plan OL295 and commonly known as Golden Gate;

(lxi) Occupation Licence 34/755 comprising Lot 755 on Plan OL299 and commonly known as Golden Gate;

(lxiii) Occupation Licence 34/785 comprising Lot 785 on Plan AP12367 and commonly known as Golden Gate; and

(lxiii) Trustee Permit 714571004 comprising Lot 3 on Plan CP859354 and commonly known as Littleton.

Part B

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:

ii. in relation to the areas in paragraph 1 of this Part, none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; and

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

Tenure Based Exclusions (ss 23B(2) and 23B(3) Native Title Act 1993 (Cth)):

1. Lot 3 on OK810526; and

2. That part of Lot 951 on Plan SP161394 which was covered by:

(a) historical Gold Fields Homestead Lease No. 1138 described as Allotments 12 and 13 of Section 21 Town of Croydon; and

(b) historical Gold Fields Homestead Lease No. 1345 described as Allotments 19 and 20 of Section 21 Town of Croydon.

Public Works Based Exclusions:

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

B. Land or waters described in paragraph A immediately above includes, for the avoidance of doubt:

1. the whole of the land and waters shown on the map included in this Schedule and described as:

i. Lot 15 on Plan C8271;

ii. Lot 943 on Plan SY28;

iii. Lot 12 on Plan C3597;

iv. Lot 14 on Plan C3598;

v. Lot 1 on Plan C35911;

vi. Lot 2 on Plan C35911;

vii. Lot 19 on Plan C35912;

viii. Lot 5 on Plan C35913;

ix. Lot 13 on Plan C3597;

x. Lot 23 on Plan C8189;

xi. Lot 32 on Plan C8186;

xii. Lot 12 on Plan C3598;

xiii. Lot 13 on Plan C3598;

xiv. Lot 15 on Plan C3598;

xv. Lot 481 on Plan SY28;

xvi. Lot 482 on Plan SY28;

xvii. Lot 18 on Plan C3593;

2. that part of the land and waters shown on the map included in this Schedule and described as:

i. Lot 5 on Plan SY12, the part being more particularly described as all the land within the areas bounded by the following co-ordinates

Iguana Consul Mining Museum (Excluding Lot 10 on Plan MPH15912 and unnamed street)
Latitude	Longitude
-18.192710	142.245505
-18.193600	142.246003
-18.194512	142.245216
-18.194287	142.244911
-18.194030	142.244967
-18.193923	142.244427

ii. Lot 949 on Plan C3591, the part being more particularly described as all the land north west of the south eastern boundary of the track within Lot 949 on Plan C3591 bounded by the following co-ordinates

Lake Belmore Access and Gravel Area
Latitude	Longitude
-18.190184	142.239534
-18.189709	142.240338
-18.189941	142.240487
-18.190691	142.239861

ii. Lot 17 on Plan B144300, the part being more particularly described as all the land within the distance nominated from the centreline of the following co-ordinates

Sandstone Quarry Area Track – 15m from the centreline
Latitude	Longitude
-18.207940	142.236523
-18.207760	142.235867
-18.207705	142.235601
-18.207678	142.236603
-18.207495	142.235921
-18.207437	142.235635

iii. Lot 951 on Plan SP161394 which was not covered by

a. historical Gold Fields Homestead Lease No. 1138 described as Allotments 12 and 13 of Section 21 Town of Croydon; and

b. historical Gold Fields Homestead Lease No. 1345 described as Allotments 19 and 20 of Section 21 Town of Croydon.

Note: to the extent of any inconsistency between the written description in this Schedule and the map, the written description prevails.

SCHEDULE 3 — NATIVE TITLE HOLDERS

The native title holders are the Tagalaka People who are descendants of the following people:

(a) Nelly Robertson (nee Grogan);

(b) Edith Echo;

(d) Charlie Hayes (aka Short Charlie);

(e) Herbie East;

(f) Topsy Cane (aka Topsy Owens);

(g) Jack Fortune; or

(h) Left hand Charlie.

SCHEDULE 4 — OTHER INTERESTS IN THE DETERMINATION AREA

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

1. The rights and interests of the parties under the following indigenous land use agreements:

(a) Tagalaka People and the State of Queensland as parties to the Tagalaka Croydon Area Indigenous Land Use Agreement #1 registered on 19 August 2005;

(b) Tagalaka People and the State of Queensland as parties to the Tagalaka (Town of Croydon) Indigenous Land Use Agreement registered on 5 September 2008;

(d) native title holders and the Croydon Shire Council as parties to the Croydon Shire Council/Tagalaka People True Blue Tourist Facility ILUA (QIA 2009/068) registered on 14 May 2010;

(e) native title holders and the Croydon Shire Council as parties to the Tagalaka Croydon Area ILUA #2 (QIA 2006/047) registered on 11 February 2008;

(f) native title holders and the Carpentaria Shire Council authorised on 1 May 2012;

(g) native title holders and the Croydon Shire Council authorised on 1 May 2012;

(h) native title holders and the Etheridge Shire Council authorised on 1 May 2012;

(i) native title holders and Ergon Energy Corporation Limited authorised on 1 May 2012;

(j) Tagalaka People/Agantra ILUA authorised on 1 May 2012;

(k) Tagalaka People/Alehvale and Mooremount ILUA authorised on 1 May 2012;

(l) Tagalaka People/Arduno, Haydon and Timora ILUA authorised on 1 May 2012;

(m) Tagalaka People/Beach ILUA authorised on 1 May 2012;

(n) Tagalaka People/Belmore ILUA authorised on 1 May 2012;

(o) Tagalaka People/Blancourt ILUA authorised on 1 May 2012;

(p) Tagalaka People/Broadwater ILUA authorised on 1 May 2012;

(q) Tagalaka People/Carnes ILUA authorised on 1 May 2012;

(r) Tagalaka People/Chadshunt ILUA authorised on 1 May 2012;

(s) Tagalaka People/Claraville ILUA authorised on 1 May 2012;

(t) Tagalaka People/Clotilda ILUA authorised on 1 May 2012;

(u) Tagalaka People/Dumas ILUA authorised on 1 May 2012;

(v) Tagalaka People/Ella Vale and Yappar River ILUA authorised on 1 May 2012;

(w) Tagalaka People/Entrona and Pepatra ILUA authorised on 1 May 2012;

(x) Tagalaka People/Esmeralda ILUA authorised on 1 May 2012;

(y) Tagalaka People/Florence ILUA authorised on 1 May 2012;

(z) Tagalaka People/Fog Creek ILUA authorised on 1 May 2012;

(aa) Tagalaka People/Forest Home ILUA authorised on 1 May 2012;

(bb) Tagalaka People/Glenore ILUA authorised on 1 May 2012;

(cc) Tagalaka People/Golden Gate ILUA authorised on 1 May 2012;

(dd) Tagalaka People/Green Hills ILUA authorised on 1 May 2012;

(ee) Tagalaka People/Guildford ILUA authorised on 1 May 2012;

(ff) Tagalaka People/Gum Creek ILUA authorised on 1 May 2012;

(gg) Tagalaka People/Heliman Creek ILUA authorised on 1 May 2012;

(hh) Tagalaka People/Karron and May Vale ILUA authorised on 1 May 2012;

(ii) Tagalaka People/Linley ILUA authorised on 1 May 2012;

(jj) Tagalaka People/Lucksome ILUA authorised on 1 May 2012;

(kk) Tagalaka People/Malacura ILUA authorised on 1 May 2012;

(ll) Tagalaka People/Miecolon and Vena Park ILUA authorised on 1 May 2012;

(mm) Tagalaka People/Mundjuro ILUA authorised on 1 May 2012;

(nn) Tagalaka People/New Water ILUA authorised on 1 May 2012;

(oo) Tagalaka People/Northhead ILUA authorised on 1 May 2012;

(pp) Tagalaka People/Oakland Park ILUA authorised on 1 May 2012;

(qq) Tagalaka People/Paddy’s Station (aka Candlow) ILUA authorised on 1 May 2012;

(rr) Tagalaka People/Prospect ILUA authorised on 1 May 2012;

(ss) Tagalaka People/Reigate ILUA authorised on 1 May 2012;

(tt) Tagalaka People/Rockyview ILUA authorised on 1 May 2012;

(uu) Tagalaka People/Roderick ILUA authorised on 1 May 2012;

(vv) Tagalaka People/Tabletop ILUA authorised on 1 May 2012;

(ww) Tagalaka People/The Lakes ILUA authorised on 1 May 2012;

(xx) Tagalaka People/Trenton ILUA authorised on 1 May 2012;

2. The rights and interests of the Croydon Shire Council, the Carpentaria Shire Council or the Etheridge Shire Council (the “Councils”) including any rights the Councils, their employees, agents or contractors have;

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

(b) as the:

(i) lessors under any leases which were entered into as at the date of the Determination ;

(ii) grantors of any licences or other rights and interests which were granted as at the date of the Determination;

(iii) holders of any estates or interests in land, and as trustees of any reserves, that exist in the Determination Area as at the date of the Determination;

(c) as the owners and operators of infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination, including but not limited to:

(i) dedicated roads operated by the Councils;

(ii) gravel pits operated by the Councils;

(iii) undedicated but constructed roads except for those not operated by the Councils;

(iv) water pipelines and other water supply infrastructure;

(v) drainage facilities; and

(vi) cemetery and cemetery related facilities; and

(d) to enter the land described in paragraphs 2(a) to 2(c) of Schedule 4 to:

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

(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c);and

(iii) undertake operational activities in their capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.

3. The rights and interests of Telstra Corporation Limited:

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

(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights:

(i) to inspect land;

(ii) to install and operate telecommunication facilities; and

(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication 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 licence or access agreement relating to its telecommunication facilities in the Determination Area.

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

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

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

(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) and to inspect, maintain and manage any Works in the Determination Area.

5. The rights and interests of the holders of any authorities, licences, permits or allocations issued under the Water Act 2000 (Qld);

7. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld); and

8. Any other rights and interests held by the State of Queensland or Commonwealth of Australia, or by reason of the force and operation of the Laws of the State or 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 6109 of 1998

BETWEEN:

JANETTE OWENS, CLARA BOOTH, BEVERLY BOWYANG, JANET BUSCH, GLADYS CALLOPE, JOSEPH CALLOPE, ALMA DOUGLAS, BILL FORTUNE AND JOHNNY MILES ON BEHALF OF THE TAGALAKA PEOPLE

Applicant

AND:

STATE OF QUEENSLAND

First Respondent

CROYDON SHIRE COUNCIL

Second Respondent

ERGON ENERGY CORPORATION LIMITED

Third Respondent

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6020 of 2001

BETWEEN:

JANET BUSCH, BEVERLY BOWYANG, GLADYS CALLOPE, MAUREEN DOUGLAS, BILL FORTUNE AND JANETTE OWENS ON BEHALF OF THE TAGALAKA PEOPLE #2

Applicant

AND:

STATE OF QUEENSLAND

First Respondent

CARPENTARIA SHIRE COUNCIL

Second Respondent

CROYDON SHIRE COUNCIL

Third Respondent

ETHERIDGE SHIRE COUNCIL

Fourth Respondent

ERGON ENERGY CORPORATION LIMITED

Fifth Respondent

Sixth – Fortieth Various Pastoral Respondents

JUDGE:	LOGAN J
DATE:	10 DECEMBER 2012
PLACE:	CROYDON

REASONS FOR JUDGMENT

1 The applications that are the subject of these proceedings are for the determination of native title rights and interests under the Native Title Act 1993 (Cth) (the Act) in favour of the native title holders of land and waters within the bounds of the land described in Schedule 1 to the proposed determinations.

2 In particular, for determination today, is QUD 6109 of 1998, “Tagalaka People” and, pursuant to orders of 3 October 2012, QUD 6020 of 2001, “Tagalaka People #2 Part A”. The orders of 3 October 2012 further contemplate the later, separate consideration of whether native title rights and interests exist in respect of another portion of land on which there is a pastoral development holding, which is to be “Tagalaka People #2 Part B”.

3 The applications for orders in the terms of the proposed determinations for QUD 6109 of 1998 and QUD 6020 of 2001 (Part A) are being heard together as they are geographically proximate and entail consideration of materially the same anthropological evidence concerning the Tagalaka People. The applicants seek a determination of native title on behalf of the Tagalaka People over various lands in and proximate to the township of Croydon in the Gulf Country of north-western Queensland.

4 The properties over which the proposed consent determination will be granted are described in more detail in the maps in Schedule 1 to the determinations.

5 One of the Commonwealth Parliament’s objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 together with, as relevant to QUD 6020 of 2001, s 87A of the Act.

6 These claims have been long in their gestation. I made observations earlier this year in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 and Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament’s objective of consensual resolutions had been met. The statements which I then made are just as applicable to this case. The achievement of Parliament’s objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court’s registrars. I commend the parties and the legal practitioners involved in cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution.

7 In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims. Over the time during which I have been responsible for the management of the list of native title cases in this region, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament’s goal of national reconciliation in this important area of the Court’s jurisdiction. Recently, it has been announced by the Attorney-General that this legal assistance to pastoralists will cease with effect from the end of this year. Such value judgments are for the Executive Government of the day to make. What I can say, based on direct experience, is that the addressing of the hitherto “unacceptably long time” for the resolution of native title cases and the recent experience of “faster and better claim resolution” to which the Attorney has made reference (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, http://www.attorneygeneral.gov.au/Speeches/Pages/2012/Second%20

Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) requires a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. There is much work yet to be done in the native title list in this State and much scope for misunderstanding and unnecessary acrimony and delay in relation to native title claims in the absence of responsible legal representation.

8 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. I am in complete agreement not only with the substance of his Honour’s observations in King but also with the manner in which he expressed them. They are exactly apposite in the present proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution.

9 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court’s orders, the Australian community collectively recognises that status. It is important to emphasise that the Court’s orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement.

10 The applicant has filed the following documents principally relevant to QUD 6109 of 1998:

(a) Affidavit of Mr Gregory Bell affirmed and filed on 23 November 2012, exhibiting:

(i) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Draft Connection Report’, June 2002 (the “Connection Report”);

(ii) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Supplementary Report (No 1)’, October 2006;

(iii) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Tagalaka Claimant Statements’ (the “Tagalaka Claimant Statements”); and

(iv) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Executive Summary of Connection Materials’, October 2011 (the “Executive Summary”).

(b) Affidavit of Mr Gregory Bell affirmed on 23 November 2012 and filed on 26 November 2012, deposing to compliance with s 56 and s 57 of the Act regarding the prescribed body corporate and exhibiting:

(i) a certificate of incorporation of the Tagalaka Tribal Aboriginal Corporation dated 15 December 1994; and

(ii) ‘Notice of Nomination and Consent of the Prescribed Body Corporate’.

(d) Further amended native title determination application (Form 1) filed on 30 November 2012; and

(e) Proposed orders and Determination of Native Title by Consent (s 87 Agreement), signed by the parties and filed on 3 December 2012.

11 The applicant has filed the following documents principally relevant to QUD 6020 of 2001:

(a) Affidavit of Mr Gregory Bell affirmed and filed on 23 November 2012, exhibiting:

(i) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Draft Connection Report, June 2002’ (the “Connection Report”);

(ii) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Supplementary Report (No 1)’, October 2006;

(iii) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Tagalaka Claimant Statements’ (the “Tagalaka Claimant Statements”); and

(iv) Dr Sandra Pannell, ‘Tagalaka Native Title Determination Applications (QC98/43 & QC01/22) Executive Summary of Connection Materials’, October 2011 (the “Executive Summary”).

(i) a certificate of incorporation of the Tagalaka Tribal Aboriginal Corporation dated 15 December 1994; and

(ii) ‘Notice of Nomination and Consent of the Prescribed Body Corporate’.

(d) Further amended native title determination application (Form 1) filed on 30 November 2012; and

(e) Proposed orders and Determination of Native Title by Consent (s 87A Agreement), signed by the parties and filed on 3 December 2012.

SECTION 87 OF THE ACT

12 The applicants in QUD6109 of 1998 submit that it is appropriate in the circumstances for the Court to exercise its discretion under s 87(1A) of the Act.

13 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where:

(a) The period specified in the notice given under s 66 of the Act has ended (s 87(1));

(b) There is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i));

(c) The terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b));

(d) The Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and

(e) Having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings.

14 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated:

[36] … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

[37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

15 As such, the Court is not required to make its own inquiry of the merits of the applicant’s claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30].

16 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated:

[38] … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

SECTION 87A OF THE ACT

17 The applicants in QUD 6020 of 2001, insofar as the proceeding encompasses Tagalaka #2 Part A, submit that it is appropriate in the circumstances for the Court to exercise its discretion under s 87A(4) of the Act. The submissions of the applicants in support of the Court making orders in the terms of the proposed consent determination, confirm the utilisation of s 87A of the Act as the orders sought pertain to a part of the area of the application in QUD 6020 of 2001.

18 Section 87A of the Act provides, in effect, that the Court may make a determination of native title by consent over part of an application area without holding a hearing where:

(a) the period specified in the notice given under s 66 of the Act has ended (s 87A(1)(b));

(b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));

(c) the terms of the proposed determination are in writing, signed by or on behalf of all of the parties required to be parties to the agreement pursuant to s 87A(1)(c) and are filed with the Court (ss 87A(1)(c), 87A(1)(d) and 87A(2));

(d) the registrar of the Federal Court has given notice to the other parties to the proceeding who have not become, or are not required to be, parties to the agreement that the proposed determination of native title has been filed with the Court (s 87A(3));

(e) the Court has taken into account any objection made by the other parties to the proceeding (s 87A(8));

(f) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87A(4)(a)); and

(g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).

19 In May v State of Western Australia [2012] FCA 1333 at [13], Gilmour J, citing his Honour’s earlier decision in Goonack v State of Western Australia [2011] FCA 516 considered the operation of s 87A(4) as follows:

[25] The terms of s 87A(4) of the Native Title Act do not necessarily require the Court to receive evidence, make findings, embark on its own inquiry on the merits of the claim made in the application or even to form a concluded view as to whether the legal requirements for proving native title have been met. It is appropriate for the Court to make orders under s 87A where no evidence of the primary facts substantiating native title has been received if the Court is satisfied that the parties have freely and on an informed basis come to an agreement: Brown v Western Australia at [23]-[24] in respect of s 87A and Hughes v Western Australia [2007] FCA 365 at [9]; Ward v Western Australia [2006] FCA 1848 at [8]. The exercise of the Court’s discretion pursuant to s 87A of the Native Title Act imports the same principles as those applying to the making of a consent determination of native title under section 87: Brown v Western Australia [207] FCA 1025; Nangkiriny v Western Australia (2002) 117 FCR 6; Nangkiriny v Western Australia [2004] FCA 1156; James v Western Australia [2002] FCA 1208; Hughes v Western Australia and under alternatively s 87 and s 87A; Brown v Western Australia.

[26] The requirements of s 87A(4) of the Native Title Act will be met where the Court is satisfied that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicant relies. Generally this will not involve the Court making findings on the evidence on which the State relies, but it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn v Queensland (2001) 115 FCR 109 at [29]-[30] and Lovett v Victoria [2007] FCA 474 at [37].

[emphasis added]

20 As the Court is guided by the same principles as between s 87 and s 87A of the Act in exercising its discretion, these reasons for judgment will consider together the requirements of the Act which inform the Court as to whether a proposed determination of native title by consent is appropriate.

SECTION 94A OF THE ACT

21 Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease -- whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

[emphasis in original]

22 Section 223(1) of the Act defines ‘native title’ and ‘native title rights and interests’ as:

(1) … the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

23 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]:

(a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice.

(b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown – it is only those rules that are “traditional” laws and customs.

(d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality.

(e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim.

(f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence.

24 Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ.

APpLICATION OF sECTION 223 and section 225 to THE tagalaka SOCIETY

25 Dr Parnell’s Connection Report evidences there were indigenous people in the Croydon area at the time of first contact and in the pre-sovereignty period.

26 The applicants and those Aboriginal people they represent collectively identify themselves as ‘Tagalaka’. Dr Parnell opines that in “the claimants’ use, Tagalaka broadly denotes three elements of people’s social and cultural identity” (p 8, the Connection Report). In summary, these three elements are a way of speaking, as commonly used by the claimants’ immediate forebears, a defined area of land and waters and an identifiable group of largely kin-related people who claim a connection to Tagalaka-speaking forebears (p 8, the Connection Report).

27 From the filed material mentioned previously, including the Executive Summary, it appears that the Aboriginal persons who spoke the ‘Dagalag’ dialect of the Southern Pama language group used and occupied Tagalaka country, prior to 1788 (the date of the assertion of British sovereignty). Archaeological records furnished in support of occupation attests to Aboriginal people occupying the Croydon region, including the uplands of the Gregory Ranges to the Carpentaria Plain, in the pre-sovereignty period.

28 While the Tagalaka language forms part of the broader Southern Pama language group, the applicants submit that the Tagalaka claimants are to be distinguished from other Aboriginal peoples and other Aboriginal groups in the region, such as Kurtjar and Ewamain, on the basis of language, country and group identity.

29 The earliest known reference to the identity of Aboriginal people in the claimed area is a letter drafted by a pastoral lease holder, Edward Palmer in December, 1882. Dr Parnell cites Palmer’s referral to the ‘Dagalaggan’ tribe, an orthographic variant of the Tagalaka tribe (p88, the Connection Report). Overall, as the applicants’ submissions conclude, the anthropological evidence from the 19th and 20th centuries locates orthographic variants of the ethnonym, Tagalaka, in the southern Gulf Country, in approximately the same vicinity as the present claimed area.

30 It is also clear on the evidence to hand that the use of the Tagalaka dialect and the transfer of Tagalaka cultural knowledge have continued throughout the 20th Century. The Court is asked to infer that the Tagalaka people today are descended from the community of people who spoke the Tagalaka dialect and used and occupied Tagalaka country prior to 1788. This is supported by historical material which locates the community of the Tagalaka people, including the apical ancestors, in the early days of European contact, in this case from the 1880s, and establishes the basis for the finding that they are descended from a pre-sovereignty community of Tagalaka ancestors.

31 The material also provides that the Tagalaka people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places. Through this connection with the land, the Tagalaka people, as an organised society, possessed native title rights and interests in accordance with their observed and acknowledged traditional laws and customs. The material supports the intergenerational transfer of those laws and customs and support for the inference that they, and the rights and interests possessed by them, originated in a pre-sovereignty Tagalaka society.

32 It is also apparent that while there has been some adaptation of laws and customs as a result of sustained European settlement, those changes have not affected the laws and customs of the Tagalaka people to the extent where those laws and customs are no longer observed.

33 Accordingly, it is appropriate to make the proposed orders which recognise:

(a) That the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs;

(b) That the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances;

(c) That the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs; and

(d) That the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.

THE APPLICATION OF SECTION 87 to the tagalaka people claim

34 The requirements of s 87 of the Act have been satisfied in the present case. In particular:

(a) The period specified in the notice given under s 66 ended on 19 December 2000 (s 87(1));

(b) The parties have reached an agreement as to the terms of a determination of native title (s 87(1)(a)(i));

(d) An order in terms of or consistent with the short minute of consent would be within the Court’s power (s 87(1)(c)) because:

(i) The Applications are valid and were made in accordance with s 61 of the Act; and

(ii) The Applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)).

The short minute complies with s 94A and s 225 of the Act (s 87(1)(c)); and

(e) It is appropriate that the Court make the orders sought because:

(i) All parties are legally represented;

(ii) It is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation;

(iii) The State of Queensland has played an active role in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act’s requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances;

(iv) The material relied upon by the applicants is capable of satisfying s 47B of the Act;

(v) The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determination;

(vi) The requirements of s 94A and s 225 of the Act are satisfied; and

(vii) The proposed determination is unambiguous and certain as to the rights declared.

THE APPLICATION OF SECTION 87A to the tagalaka people #2 claim

35 The requirements of s 87A of the Act have been satisfied in the present case. In particular:

(a) the period specified in the notice given under s 66 ended on 7 May 2002 (s 87A(1)(b));

(b) there is an agreement for a proposed determination of native title in relation to part of an area covered by the native title application (s 87A(1)(b));

(d) as all parties to the proceeding signed the proposed minute of consent, the registrar was not required to give notice to the other parties to the proceeding (s 87A(3));

(e) as no objection was received, the Court is not required to take into account any objection made by the other parties to the proceeding (s 87A(8));

(f) the Court is satisfied that an order in, or consistent with, the terms sought would be within the power of the Court (s 87A(4)(a)); and

(g) it appears appropriate to the Court to make the orders sought (s 87A(4)(b)).

The short minute complies with s 94A and s 225 of the Act (s 87A(4)); and

(h) It is appropriate that the Court make the orders sought because:

(i) All parties are legally represented;

(ii) It is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation;

(iv) The material relied upon by the applicants is capable of satisfying s 47B of the Act;

(v) The connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determination;

(vi) The requirements of s 94A and s 225 of the Act are satisfied; and

(vii) The proposed determination is unambiguous and certain as to the rights declared.

determinations pursuant to section 56 and 57 of the act

36 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by s 56 and s 57 of the Act. They respectively relate to holding the native title on trust or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate. As to the proposed determinations, Mr Bell has deposed in his affidavit, affirmed and filed in both proceedings on 23 November 2012, the native title is not to be held on trust. It provides for an Aboriginal corporation, the Tagalaka Tribal Aboriginal Corporation, to be the prescribed body corporate under s 57 of the Act. That body corporate was registered on 15 December 1994. It will perform the functions mentioned in s 57(3) of the Act.

37 The Court notes that Mr Bell has exhibited to his affidavit, affirmed and filed in both proceedings on 23 November 2012, a Notice of Nomination and Consent of the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act.

38 Further, Mr Bell affirms that the Tagalaka Tribal Corporation intends drafting a new set of rules so as to satisfy the requirements of s 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

39 Finally, and at the risk of repetition, it needs to be understood that agreements of the kind that have brought about today’s hearing and determinations do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court’s registrars, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money.

40 For the reasons given, the Determinations are now made.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 7 December 2012

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