FEDERAL COURT OF AUSTRALIA

Saltmere on behalf of the Indjalandji-Dhidhanu People v State of Queensland [2012] FCA 1423

THE COURT ORDERS THAT:

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.    The Determination will take effect upon the agreements referred to in paragraph 1 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the agreements referred to in paragraph 2 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

4.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

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

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

7.    Native title does not exist in relation to that part of the Determination Area described in Part 2 of Schedule 1.

8.    The native title is held by the Indjalandji-Dhidhanu People described in Schedule 3 (“the native title holders”).

9.    Subject to paragraphs 10, 11 and 12 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 the non-exclusive rights to:

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

(b)    camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

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

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

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

(f)    conduct ceremonies on the Determination Area;

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

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

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

(j)    be accompanied on to the Determination Area by the Bularnu Waluwarra Wangkayujuru law men who, though not native title holders, are people required by traditional law and custom for the performance of ceremonies related to the bushfire dreaming story on the Determination Area.

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

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

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

(c)    the agreements referred to at paragraph 1 of Schedule 4.

11.    The native title rights and interests referred to in paragraph 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

12.    There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

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

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

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

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

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

DEFINITIONS AND INTEPRETATION

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

“External Boundary” means the boundary described in Schedule 5;

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

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

“Natural Resources” means:

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

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

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

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

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

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

“Water” means:

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

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

(c)    water from an underground water source.

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

THE COURT DETERMINES THAT:

16.    Upon the Determination taking effect:

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

(b)    Indjalandji-Dhidhanu Aboriginal Corporation (ICN 7791), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(i)    be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and

(ii)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

LIST OF SCHEDULES

Schedule 1 — DETERMINATION AREA

Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA

Schedule 3 — NATIVE TITLE HOLDERS

Schedule 4 — OTHER INTERESTS IN THE DETERMINATION AREA

Schedule 5 — EXTERNAL BOUNDARY

SCHEDULE 1 — DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters within the External Boundary described in Parts 1 and 2 below and depicted in the Determination map as shown in Schedule 1B, but does not include the areas described in Schedule 2.

Part 1 — Non-Exclusive Areas, depicted in blue on the determination map as shown in Schedule 1B:

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

1.    Native Title has been extinguished over the areas of land and waters within the boundaries of the leases listed at paragraph 2 - 14 of Schedule 4 on which any permanent improvement consisting of:

-    a house, shed or other outbuilding;

-    an airstrip;

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

-    stock yard or trap yard,

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

2.    Native title has been compulsorily acquired over:

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 –

o    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

o    in relation to the areas in paragraph 1 below, none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied to these areas; and

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

1.    Tenure Based Exclusions (ss 23B(2) and 23B(3)):

2.    Public Works Based Exclusions:

(a)    The land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is 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 for a public work constructed for and on behalf of the State of Queensland s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth).

(b)    Specifically, and to avoid any doubt, the land and waters described in paragraph (a) immediately above includes the whole of the land and waters described as:

3.    Exclusion of waters within the External Boundary:

The waters the subject of any previous exclusive possession act as defined in the Native Title Act 1993 (Cth).

SCHEDULE 3 — NATIVE TITLE HOLDERS

1.    The native title holders are comprised of those people known as the Indjalandji-Dhidhanu people. The Indjalandji-Dhidhanu People are those persons who are:

(a)    descended from the following Indjalandji/Dhidhanu ancestors:

(i)    Idaya and his son Dijeru;

(ii)    Kaduka (also known as Annie) and her son Frank Monkhouse; or

(iii)    Georgina Jackson and her spouse Burketown Willy and their son Tom Fraser; or

(b)    recruited by adoption in accordance with the traditional laws and customs of the Indjalandji-Dhidhanu people.

SCHEDULE 4 — OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of other interests in relation to the Determination Area are the following as they exist as at the date of the Determination:

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

(a)    the Indigenous Land Use Agreement (“ILUA”) between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People, Indjalandji-Dhidhanu Aboriginal Corporation (ICN 7791) and the State of Queensland entitled the “Camooweal Caves National Park Protected Area Indigenous Land Use Agreement” dated 27 November 2012;

(b)    an ILUA between Ruby Saltmere on behalf of the Indjalandji/Dithannoi People; James Watts Taylor (Waditja), Richard Percy, Sonny Condren, Ethel Page, Thelma Sullivan, Patricia Kyle and Connie Craigie on behalf of the Kalkadoon People and the State of Queensland entitled the “Kalkadoon and Indjalandji/Dithannoi Peoples Backlog Exploration Permit Project ILUA” registered on the Register of Indigenous Land Use Agreement on 29 April 2004;

(c)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Graeme William Evan Russell Acton authorised on 30 October 2012;

(d)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Bezuma Pastoral Co Pty Ltd (ACN 010 553 474) authorised on 30 October 2012;

(e)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Gambamora Industries Pty Ltd (ACN 001 941 173) authorised on 30 October 2012;

(f)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Alfred Arthur Lanskey authorised on 30 October 2012;

(g)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and James Lyne and Marjorie Annette Lord authorised on 30 October 2012;

(h)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Lindsay Wray Miller authorised on 30 October 2012;

(i)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Mabel Josephine Spreadborough and David Joseph Spreadborough authorised on 30 October 2012;

(j)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Venlock Pty Ltd (ACN 010 198 893) authorised on 30 October 2012;

(k)    an ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Waxahachie Pty Ltd (ACN 009 606 811) authorised on 30 October 2012;

(l)    the ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Indjalandji-Dhidhanu Aboriginal Corporation (ICN 7791) and Mount Isa City Council dated 9 November 2012;

(m)    the ILUA between Hazel Windsor and Colin Saltmere on behalf of the Indjalandji-Dhidhanu People and Indjalandji-Dhidhanu Aboriginal Corporation (ICN 7791) and Ergon Energy Corporation Limited dated 26 November 2012; and

(n)    an ILUA between Dugalunji Aboriginal Corporation (ICN 3057, ABN 28 441 600 811) and Colin Saltmere and Hazel Windsor on behalf of the Indjalandji-Dhidhanu People entitled “Dugalunji Camp ILUA” registered on the Register of Indigenous Land Use Agreements on 8 August 2011.

2.    The rights and interests of Graeme William Evan Russell Acton under:

(a)    Pastoral Development Holding 8/42 comprising Lot 42 on CP847157 and known as Barkly Downs; and

(b)    Pastoral Holding 13/5501 comprising Lot 2 on WO28.

3.    The rights and interests of Bezuma Pastoral Co Pty Ltd (ACN 010 553 474) under Pastoral Holding 8/2516 comprising Lot 1 on UN7 and known as Thorntonia.

4.    The rights and interests of Gambamora Industries Pty Ltd (ACN 001 941 173) under:

(a)    Pastoral Holding 8/145 comprising Lot 12 on SP177392 and Lot 1 on WO31 and known as Rocklands;

(b)    Pastoral Holding 8/122 comprising Lot 122 on SP162831 and known as Morstone;

(c)    Special Lease 8/52237 for grazing purposes comprising Lot 3 on WO29 (Gravel Reserve R46);

(d)    Special Lease 8/52236 for grazing purposes comprising Lot A on WO31 (also known as Lot 39 on NPW198 (Camooweal Caves National Park)); and

(e)    Term Lease 235061 for grazing purposes comprising Lot 8 on WO21 (Police Paddock Reserve R7).

5.    The rights and interests of Alfred Arthur Lanskey under Pastoral Holding 8/5553 comprising Lot 4 on UN803944 and known as Barr Creek.

6.    The rights and interests of James Lyne and Marjorie Annette Lord under Pastoral Holding 13/2324 comprising Lot 2324 on SP162422 and known as Meltham (aka May Downs).

7.    The rights and interests of Lindsay Wray Miller under:

(a)    Pastoral Holding 8/136 comprising Lot 1 on UN8 and known as Promised Land (aka Undilla);

(b)    Pastoral Holding 8/5303 comprising Lot 5303 on PH1640 and known as Harris Creek (aka Undilla); and

(c)    Pastoral Holding 8/2562 comprising Lot 2562 on PH2051 and known as Seymour Junction (aka Undilla).

8.    The rights and interests of Mabel Josephine Spreadborough and David Joseph Spreadborough under Pastoral Holding 8/5552 comprising Lot 3 on UN803945 and known as Koolamara.

9.    The rights and interests of Venlock Pty Ltd (ACN 010 198 893) under Pastoral Holding 212277 comprising Lot 3 on SP117500 and known as Ardmore.

10.    The rights and interests of Waxahachie Pty Ltd (ACN 009 606 811) under Pastoral Holding 13/2799 comprising Lot 2799 on PH2075 and known as Bluebush.

11.    The rights and interests of Coolreagh Pastoral Co Pty Ltd (ACN 098 207 071) as Trustee for the Coolreagh Trust under Term Lease 233093 for pastoral purposes comprising Lot 6 on SP243934.

12.    The rights and interests of Michael William Seymour and Anne Lenia Seymour under:

(a)    Pastoral Holding 8/2656 comprising Lot 2656 on PH1611; and.

(b)    Pastoral Holding 8/4673 comprising Lot 4673 on PH1612.

13.    The rights and interests of the lessee under term lease 234944 for pastoral purposes comprising Lot 5 on CP862287.

14.    The rights and interests of the lessee under term lease 230432 for grazing purposes comprising Lot 28 on WO27.

15.    The rights and interests of Telstra Corporation Limited ACN 051 775 556:

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

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

(i)    to inspect land;

(ii)    to install and operate telecommunication facilities;

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(c)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and

(d)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

16.    The rights and interests of Ergon Energy Corporation ACN 087 646 062:

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

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

(c)    created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:

(i)    rights in relation to any agreement relating to the Determination Area existing or entered into before the date 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.

17.    The rights and interests of the State of Queensland and the Mount Isa City Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads; including

(a)    the road delineated by stations 3-3c-2-1-3b-3, 4-k-5-4, 8-7-6-5-8, 15-14-13-12-11-10-9-z-e-17-d-c-b-a-15 on Survey Plan 135293; and

(b)    the road delineated by stations z-y-x-w-8-5-k-j-h-g-f-e-z on Survey Plan 135293.

18.    The rights and interests of the State of Queensland to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads, including the road as delineated on Lot 2 on Survey Plan 177392.

19.    The rights and interests of the holder of the Term Lease 235434 for Communication over Lot 8 on SP243934.

20.    The rights and interests of Mount Isa City Council:

(a)    under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be Mount Isa City Council’s local government area;

(b)    as the:

(i)    lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;

(ii)    grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not;

(iii)    holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area on or before the date on which these orders are made;

(c)    as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:

(i)    dedicated roads operated by Mount Isa City Council;

(ii)    gravel pits operated by Mount Isa City Council;

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

(iv)    water pipelines and water supply infrastructure;

(v)    drainage facilities;

(vi)    cemetery and cemetery-related facilities;

(vii)    camping and holiday park facilities within the Determination Area; and

(viii)    telecommunication infrastructure;

(d)    to enter the land for the purposes described in paragraphs (a), (b) and (c) above by its employees, agents or contractors to:-

(i)    exercise any of the rights and interests referred to in paragraph 20 above;

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

(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.

21.    The rights and interests of the State of Queensland in the Camooweal Caves National Park (Lot 39 on NPW198), it being a protected area pursuant to the Nature Conservation Act 1992 (Qld) and relevant regulations and conservation plans made under that Act; and the rights and interests of the persons in whom they are vested and interests of the persons entitled to access and use the protected area for the respective purposes for which it is dedicated.

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

(a)    the Land Act 1994 (Qld;

(b)    the Nature Conservation Act 1992 (Qld);

(c)    the Forestry Act 1959 (Qld);

(d)    the Water Act 2000 (Qld);

(e)    the Petroleum Act 1923 (Qld) or Petroleum and Gas Act 2004 (Qld);

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

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

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

(i)    the Fire and Rescue Service Act 1990 (Qld) or Ambulance Service Act 1991 (Qld).

23.    The rights and interests of the State of Queensland and any other person existing under or by reason of the force and operation of:

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

24.    So far as confirmed pursuant to section 212(2) of the Native Title Act 1993 (Cth) and section 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:

(a)    waterways;

(b)    beds and banks or foreshores of waterways;

(c)    stock routes; and

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

25.    The rights and interests of the Commonwealth represented by the Bureau of Meteorology including:

(a)    as the owner and operator of meteorological facilities within the Determination Area at Lot A on Lot 27 on W030 (automatic weather station); and

(b)    for its employees, agents and contractors to access its facilities referred to in paragraph (a) above in the exercise of powers and functions under the Meteorology Act 1955 (Cth).

26.    Any other rights and interests:

(a)    held by the State or Commonwealth; or

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

SCHEDULE 5 — EXTERNAL BOUNDARY

Commencing at a point on the Queensland/Northern Territory border at Latitude 19.285818° South, being the southwestern corner of native title determination application QUD6022/99 Waanyi Peoples (QC99/23) and extending generally south easterly and generally easterly along the southern boundary of that native title determination application passing through the following coordinate points.

Then north easterly to a point on the southern bank of the O’Shannassy River, at Longitude 138.465960° East; then generally north easterly and generally south easterly along southern banks of O’Shannassy River, the southern banks of Seymour River and the southern banks of Coppermine Creek; again being boundaries of native title determination application QUD6022/99 Waanyi Peoples (QC99/23); to its intersection with native title determination application QUD579/05 Kalkadoon People 4 (QC05/12) at Longitude 139.087265°East; then generally southerly along the western boundary of that native title determination application to the northern boundary of Lot 5 on Plan CP865892 (Calton Hills Pastoral Holding) at Longitude 139.014863° East; then westerly and southerly along boundaries of that lot to a northern boundary of Lot 6 on Plan SP162423 (Yelvertoft); then generally easterly and generally southerly along northern and eastern boundaries of that lot, Lot 1 on Plan BR11 and again Lot 6 on Plan SP162423 (Yelvertoft) to a northern boundary of Lot 2324 on Plan SP1622422 (Meltham Pastoral Holding); then easterly and south easterly along northern boundaries of that lot to the centreline of Wilfred Creek; then generally south westerly along the centreline of that creek to the intersection with the centreline of Mingera Creek at Latitude 20.433154° South; then north westerly to Longitude 139.071614° East, Latitude 20.431308° South; then south westerly through Longitude 139.055119° East, Latitude 20.459883° South to again the centreline of Mingera Creek at Latitude 20.487323° South; again along boundaries of native title determination application QUD579/05 Kalkadoon People 4 (QC05/12); then easterly, generally south easterly and generally south westerly through coordinate points.

Again being boundaries of that native title determination application to Latitude 20.672263° South; then generally south westerly passing through the following coordinate points:

Then south westerly to Chad No1 Bore, at Longitude 138.651700° East and Latitude 20.901440° East; then south westerly along a line drawn to the junction of Templeton River and Polygonum Creek to intersect with the northern boundary of Lot 9 on Plan PU839944 (Headingly Pastoral Holding) and native title determination application QUD6115/98 Waluwarra/Georgina River People (QC97/5); then generally westerly and southerly along boundaries of that pastoral holding and that native title determination application to its intersection with an unnamed road at Latitude 21.002300° South; then north westerly, generally northerly and generally north westerly passing through the following coordinate points.

Then easterly to the Queensland/Northern Territory border at Latitude 20.750000° South; then generally northerly along that border back to the commencement point.

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

REASONS FOR JUDGMENT

1    On 8 October 2009, Hazel Windsor and Colin Saltmere, on behalf of the Indjalandji-Dhidhanu People filed an application for a determination of native title over an area of approximately 19,730 square kilometres on the eastern Barkly Tableland, in the upper reaches of the Georgina River Basin and on the Queensland/Northern Territory border. The claim area is centred on the township of Camooweal. On 27 November 2009, the claim was accepted for registration and subsequently notified in accordance with the requirements of the Native Title Act 1993 (Cth) (“the Act”).

2    The respondents to the claim are the State of Queensland, the Mount Isa City Council, Ergon Energy Corporation Limited, Noranda Pacific Pty Ltd and several pastoralists or pastoral companies including Bezuma Pastoral Co Pty Ltd, Gambamora Industries Pty Ltd, Alfred Arthur Lanskey, James Lyne Lord, Marjorie Annette Lord, Lindsay Wray Miller, David Alfred Spreadborough, Mabel Josephine Spreadborough, Venlock Pty Ltd and Waxahachie Pty Ltd.

3    The Act authorises the Court to determine that native title exists over areas in respect of which there is no existing determination. The Indjalandji-Dhidhanu claim area is not subject to any other claim or approved determination. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make appropriate orders. In exercising the judicial power of the Commonwealth, this Court resolves disputes identified by the parties. The parties may narrow those issues by admission or concession. Any such agreement must be freely made, on an informed basis. In some cases, the Court may decline to act upon admissions or concession. Where, as here, the proceedings have significance for people other than the parties, I must give careful consideration to the appropriateness of the proposed consent orders.

4    I see no reason to doubt the appropriateness of the parties’ consensual resolution of the matters previously in dispute. They have had the benefit of legal advice and substantial anthropological research. I am satisfied that the proposed orders have been drafted with regard to the public interest, represented by the State of Queensland and relevant local authorities.

5    This application has been on foot for a little over three years. However it was preceded by three earlier claims. The first was lodged with the National Native Title Tribunal (the “Tribunal”) in 1996 and dismissed in 2009. Two later claims were filed in 2002. In 2009, they were combined and then dismissed. The current claim has never been referred to mediation in the Tribunal. Nonetheless the parties have reached agreement in just over three years.

6    The parties agree that the native title rights and interests in that part of the claim area identified in Part 1 of Schedule 1 are, subject to paragraphs 10, 11 and 12 of the proposed orders, the non-exclusive rights to:

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

(b)     camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

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

(d)    take and use natural resources from the land and waters of the area for personal domestic and non-commercial communal purposes;

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

(f)    conduct ceremonies on the claim area;

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

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

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

(j)     be accompanied on to the claim area by the Bularnu Waluwarra Wangkayujuru law men who, though not native title holders, are people required by traditional law and custom for the performance of ceremonies related to the bush fire story on the claim area.

7    Section 94A of the Act requires that the Court determine the matters mentioned in s 225. I must therefore identify:

    the persons or groups holding the native title;

    the nature and extent of the native title rights and interests in relation to the claim area;

    the nature and extent of any other interests in relation to the determination area;

    the relationship between such rights and interests and those other interests; and

    to the extent that the land and water in the claim area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease, whether the native title rights and interests confer exclusive possession, occupation, use and enjoyment of that land and water.

8    In considering these matters, I have been greatly assisted by the comprehensive anthropological report prepared by Professor Paul Memmott, the applicant’s submissions filed on 23 November 2012 and an affidavit from Kevin Murphy, the director of Claim Resolution in the Queensland Department of Natural Resources and Mines filed on 6 December 2012. Mr Murphy has deposed to the close examination of the anthropological material by the State’s anthropologist and counsel, and to the State’s process for the examination of tenure.

9    The Indjalandji-Dhidhanu people’s first contact with European people was probably with the Burke and Wills party which passed through the claim area in 1860, encountering indigenous people, probably the ancestors of the present claim group. William Landsborough, who led one of the searches for Burke and Wills, came to the area in December 1861 and named Lake Mary. It is an important dreaming site for the claim group. He had a number of encounters with local Aboriginal people. Professor Memmott says:

Landsborough then spent a week exploring a short distance downstream, naming Lake Francis and Lake Kenellan (now spelt as ‘Canellan’ on modern maps). He had a number of encounters with local Aboriginal people and made a range of observations: he noted the men to be circumcised; he recorded the word for water as ‘oto’ [which sounds more like an Aboriginal approximation of the English word ‘water’, than the Indjalandji word for water, ngulibi]; he met an old woman who had four dogs; and he observed that the river was used for bathing (Landsborough 1862:39-40). Most of his encounters were with individuals or small groups; but there was one encounter (29/12/1861) with a large group of armed men who appeared to be asserting their traditional rights as owners of this locale:-

“Camp 25 – Situated on the Herbert River. It was our intention to remain here for several days, as the grass was good and the horses required a rest, but I deemed it advisable to return at once up the river because there were about one hundred blacks in the neighbourhood of the camp, some of whom were so bold that I feared it might be necessary to shoot some of them, or give them possession of the ground. Two of them had passed our camp on the previous evening, and the troopers, with my consent, presented them with glass bottles, after receiving which they soon returned with a large mob, who remained with us till dark. In the morning they returned and surrounded the camp. Mr Campbell went up to one mob and tried to make them understand by signs that we had peaceable intentions towards them, but they from his account seemed fully bent on having us off the ground. When he was returning to the camp Jemmy saw one of the blacks hold his boomerang as if he intended throwing it at Mr Campbell, but was probably advised by others not to do so. I am not surprised that they were vexed, as we would not allow them to come up to the camp, although they showed a bunch of hawk feathers and two bottles we had given them, which they wanted us to believe were the signs of their good intention; and it is not to be wondered at, on the other hand, that we would not trust a mob of blacks, all warriors heavily armed with spears, boomerangs, clubs and little thorny sticks, to approach the camp. From my previous knowledge of the blacks, I fancied we would easily have driven them away on horseback, but this I did not think necessary. The mere fact of seeing the horses brought towards the camp made them retire to a more respectful distance from us … .”

10    The pastoralists arrived shortly after the explorers. Between 1864 and 1867 the upper reaches of the Georgina River were occupied by pioneering pastoralists, bringing sheep to this otherwise open country. Rocklands pastoral holding was established by George Sutherland in 1865. Pastoral leases were progressively established in the area, provoking conflict between the pastoralists and the Aboriginal people as they competed for the same resources, primarily water. The feared Native Mounted Police were, from 1878 to 1889, based to the north of the claim area. Their dispersal activities and disease contributed to the significant decline in the local Aboriginal population.

11    In 1898 the ethnographer, Robert Matthews first referred to the “Inchalachee” people. In 1905 he located them within the present claim area. That claim area does not cover the whole of the traditional homeland of the Indjalandji-Dhidhanu people. Much of it lies in the Northern Territory. Professor Memmott describes the “heartland” of their country as:

… on the upper Georgina River basin (incorporating Camooweal), but (extending) to include most of the Buckley River on the east, the upper James River basin on the west, and the Mingera Creek and parts of the Templeton River basin to the south.

12    The Indjalandji-Dhidhanu people describe themselves as:

(a)    descended from the following Indjalandji-Dhidhanu ancestors:

(i)    Idaya and his son Dijeru;

(ii)    Kaduka (also known as Annie) and her son Frank Monkhouse; or

(iii)    Georgina Jackson and her spouse Burketown Willy and their son Tom Fraser; or

(b)    recruited by adoption in accordance with the traditional laws and customs of the Indjalandji-Dhidhanu people.

13    Professor Memmott’s report identifies these three separate descent groups as the “Idaya descent group”, the “Monkhouse descent group” and the “Fraser descent group”. At paras 85 and 86 of his report Professor Memmott summarizes his findings in connection with the Idaya descent group as follows:

85    The contemporary members of the Idaya descent group identify as Indjalandji … of which they believe Dhidhanu is a “clan” or subgroup … . They identify Idaya and Dijeru (the son of Idaya) as being from the Dhidhanu clan on the Buckley River. The descendants of the Idaya descent group therefore appear to be of both Indjalandji and Dhidhanu descent according to their oral history … .

86    … (P)opulation decimation of the late 19th century on the Georgina has resulted in the shrinking of the Indjalandji-Dhidhanu people down to the three remaining Indjalandji-Dhidhanu groups … . In the author’s view, any ethnographic or social distinction that existed between the Indjalandji and the Dhidhanu in the early contact period no longer continues in any real sense.

14    Little is known of Idaya, save that he was Dijeru’s father. However Dijeru is an authentic historical figure as to whose existence there is documentary evidence. He was born in about 1861 and died in 1931. Thus his life covered the early years of settlement following first European contact.

15    As to the Monkhouse descent group Frank Monkhouse is also an authentic historical figure. He is known to have applied for an exemption from the operation of the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) in 1919, when he was aged 24 and resident at Rocklands Station. Thus his date of birth would be around 1895. It seems that his mother was Aboriginal and his father, Swedish. When he died in November 1959 his parents were recorded on his death certificate as “Frank and Annie”. There is other evidence suggesting that the mother’s name was “Kaduka”. Whether or not Kaduka was also known as Annie is not entirely clear.

16    In the Fraser descent group, Tom (Grassy) Fraser is the son of Georgina who in turn was the daughter of Toby, an Aboriginal man from Roma, born about 1862 and dying in 1942, and Annie. Tom Fraser is generally recognized as being Indjalandji. It seems that he and his mother, Georgina must have derived their status from Annie. Georgina identified herself as “full blood” so that her mother must also have been Aboriginal. Georgina was born in either 1898 or 1905. She died in the late 1970s and was buried in Mt Isa. Tom was born in 1923.

17    Professor Memmott records the following descriptions given by individual members of the claim group in seeking to define its identity:

121    Ruby Saltmere has emphasised both descent and Dreamings as key components of the identity system of the Indjalandji-Dhidhanu Native Title group. She said that people today “acknowledge [their identity] through old people, through my grandfather Dijeru; he was plated for King as Indjalandji but wanted “recognition” as Dhidhanu too.

She noted there was only a slight difference in the dialects (Indjalandji and Dhidhanu) and that Dijeru took his identity from Idaya. Ruby stated that the:

“Dreaming holds us together” [as a group] and referred to two main dreaming sites:

(i)    Dakalanji Dreaming that comes from Dakalanji site … in the west of Carlton Hills travelling across to Lake Mary on the Upper Georgina, and

(ii)    the Nabanukujiya or Two Eyes site … .

Ruby emphasized the distribution of Water (or Rain) Dreaming across Indjalandji country both on the Georgina and Buckley Rivers and observed that there was nobody else other than her own group left as traditional custodians for this Dreaming complex … .

122    Shirley McNamara has stated … that the Native Title group’s identity is based on a strong shared connection to country, spiritually as well as physically. She said this country was where the group traditionally belonged and that it was their area of main connection (as opposed to her father’s Alyawarr country which she carefully chose not to include in this primary category). Shirley added that the strong attachment to country stretches back to and is/was shared with the group’s ancestors whom she elicited as Dijeru and Rosie, Idaya, Grandmother Ivy, Aunty Kathy and Dijeru Jack. She added that members of the group believed the spiritual presence of their ancestors continues to be felt when they access the country. Shirley also stated that the connection to country had a practice aspect to it, which applied to the whole group; “never do anything out of bounds” (outside of the rules), and to behave “within the Aboriginal site of the Law … it’s a tradition and you live by that”. This is a practical everyday necessity that must be observed.

123    Colin Saltmere … has stated that his group identity is based on its members’ shared Dreamings as well as being defined by a language (identity) and the family line stemming from Idaya. He said the group’s country affiliation is centred on the Dreaming sites to which they have close attachments including Dakalanji …, Lake Francis …, Lake Canellan …, Lake Mary …, Split Rock …, Table Top …, Old May Downs …, Barkley [sic] …, and bounded by language boundaries in places such as the Templeton River and the Ranken River … .

124    There are a number of commonalities in these three claimant groups’ descriptions (collected independently of one another) of their Native Title group. The first is an emphasis on the descent of the claimant group from a common apical ancestor. The second is the shared dreamings of the claimant group. Third is the set of linkages between the claimant group’s Dreamings and sacred sites on country, providing a shared spiritual connection to country. Fourth is a sharing of these connections by the claimant group with their ancestors. And fifth is a shared identity with two closely related Aboriginal dialects.

18    Professor Memmott summarizes the topics addressed by traditional laws and customs as follows:

    knowledge of customary songs, dances and rituals;

    male and female initiation ceremonies;

    Aboriginal terms of kinship, skins, personal totemic names, with accompanying rules about not calling certain persons’ names, and rules of address based on respect;

    rules and rituals to avoid being harmed in the claim area, such harm arising from spirits in the country as punishment for breaking such rules, and avoidance rules for certain places including gender-specific avoidance rules;

    belief in environmental omens (eg pelican away from river, curlew, crows) and unseen entities and spiritual beings in the bush;

    belief in conception dreamings and birth and babyhood totems, also love rituals and rituals to introduce strangers to country and site;

    capacity to talk Indjalandji and Dhidhanu by the senior claimant Ruby Saltmere, numerous lexical items being recorded in these dialects and passed on to others;

    knowledge of various forms of corroborees, corroboree rules, rituals and procedures;

    customary practices to locate and obtain food, cook and process food, promote speech in children, for healing and for other purposes (eg prevent pregnancy);

    knowledge of sacred sites and associated dreamings, social histories and the travel roots of ancestral beings; and

    the requirement that non-Indjalandji persons ask permission before using or taking resources from Indjalandji country.

19    Professor Memmott also points to:

    traditional economic rules and practices concerning the seasonal timing and methods of obtaining bush food;

    the procurement of fauna, flora, stones and ochres in accordance with customary Indjalandji principles of environmental management, together with efforts to preserve local wildlife, to protect the ecology of the Georgina River, to protect important habitats as well as Aboriginal sites and landscapes of all types and to prevent pollution;

    traditional decision-making processes exercised in relation to land and rivers and transmitted through the Native Title claim group;

    evidence of ceremonies, rituals, songs, designs, observance, knowledge and stories;

    adaptation of traditional laws and customs since European settlement and continued acknowledgement and observation thereof;

    issues and principles of succession and inheritance of land;

    preservation of Indjalandji and Dhidhanu sites and places of significance, and maintenance of knowledge concerning those areas.

20    With regard to land and waters, Professor Memmott notes:

    descent-based rights and interests and an accompanying system of traditional customs and laws transmitted by cognatic descent from apical ancestors and from earlier ancestors who had possession of the country prior to European settlement;

    connection to, and affiliation with a language group territory;

    the existence of a Barkly regional bloc of Aboriginal groups of which the Indjalandji-Dhidhanu is one, based on common laws and customs, with associated kinship and marriage practice and exchanges of ritual duties;

    sharing by the claimant group of some rights with neighbouring groups who are connected along dreaming travel routes;

    decision-making authority in the hands of senior Indjalandji-Dhidhanu people who have knowledge of country and traditional laws and customs;

    continual connection through the maintenance and observance of traditional laws and customs, as well as through residential, cognative, spiritual, emotional and economic connection;

    belief in, and observance of laws to ensure the management of country and to prevent damage to country, including punishment for misdemeanours;

    rights and interests in country being founded on traditional laws and customs of the claimant group, including spiritual beliefs involving sacred sites, totemic (dreaming) identities and ancestral spirits;

    recognition of the Indjalandji-Dhidhanu system of laws and customs as articulating, within the wider regional Aboriginal system of laws and customs, which can be engaged in order to assist in overcoming, any internal problems in the maintenance and practice of the Indjalandji-Dhidhanu system;

    connection to, and responsibility for particular sites and country, based on a range of traditional mechanisms of affiliation which are elements of the Indjalandji-Dhidhanu land tenure system as well as the wider regional land tenure system;

    membership of the claim group based on a number of principles, specifically descent from a set of common ancestors sharing dreaming and dreaming sites, spiritual connection to country and identification as Indjalandji-Dhidhanu; and

    succession of the Indjalandji-Dhidhanu to areas vacated by the decimation of other tribes.

21    Based upon 30 years’ experience with the Indjalandji-Dhidhanu people and adjoining groups, Professor Memmott finds evidence of ongoing observation of these traditional laws and customs and their communication to succeeding generations. Thus he concludes that native title rights and interests held by the claim group, and the laws and customs which underpin them have their sources in the laws and customs of the community of Indjalandji-Dhidhanu estate groups that existed at, and prior to the time of first European contact, although those laws and customs have undergone adaptation as the result of European settlement.

22    Professor Memmott demonstrates that traditional laws and customs have survived, although in modified forms, any changes being properly seen as attributable to the need to adapt to European settlement. There is clear evidence in his report that those occupying and possessing the area in the 1860s and their descendants have continued to reside in and/or visit the area. I infer that the members of the claim group are the descendants of those persons who occupied the claim area at the time at which Burke and Wills entered it. Those people were probably the descendants of people who lived there in the early 1860s and, by inference, prior to 1788. I am satisfied that the Indjalandji-Dhidhanu people have an unbroken physical connection to the claim area, dating back to a time prior to 1788.

ORDERS AND DETERMINATION

23    The Court has had the benefit of the applicant’s comprehensive submissions. The State has examined thoroughly the available material and is satisfied that the proposed determination is appropriate. The other respondent parties agree.

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

25    The proposed orders recognise that the Indjalandji-Dhidhanu people, as holders of Native Title over the claim area are entitled to the non-exclusive use and enjoyment of the land and water described in Part 1 of Schedule 1. Schedule 4 and order 14 of the proposed orders recognise other interests in the claim area and the relationships between those interests and the native title rights and interests.

26    The applicant proposes that the Indjalandji-Dhidhanu Aboriginal Corporation (ICN 7791) be the prescribed body corporate for the purposes of s 57(2) of the Act. That corporation is also to perform the functions set out in s 57(3) of the Act. The Corporation was registered on 23 October 2012 under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

27    I am satisfied that I should make the orders sought.

28    I make orders in terms of the draft which has been signed by the parties. I now initial and place it with the papers.

29    I have not come here today to give anything to the Indjalandji-Dhidhanu people. Rather I have come to recognise, on behalf of all Australians, that they are the traditional owners of this land pursuant to traditional laws and customs which have their roots in ancient times. I now recognize that traditional ownership. In so doing, I bind all Australians for all time, including the State of Queensland, the Mount Isa City Council, Ergon Energy Corporation Limited, Noranda Pacific Pty Ltd.

30    I congratulate the parties upon the spirit of co-operation which has led to this happy day. I have referred only briefly to the pain and sadness which the Indjalandji-Dhidhanu people have suffered as the result of European settlement. We hope that today’s determination will help to heal that pain and sadness.

31    I record the extraordinary fact that the claim group itself launched and conducted this claim without assistance, financial or otherwise, from any representative body – truly a great community achievement.

32    On behalf of all Australians, and particularly on behalf of the Judges of this Court and our staff, I congratulate you, the Indjalandji-Dhidhanu people upon this recognition of your traditional rights and wish you well for the future.

Associate:

Dated:    18 January 2013