FEDERAL COURT OF AUSTRALIA

Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1402

ORDERS

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 proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

3.    The determination area is the land and waters described in Schedule 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

4.    Native title exists in the Determination Area.

5.    The native title is held by the Gunggari People described in Schedule 1 (the Native Title Holders).

6.    Subject to orders 8, 9 and 10 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 4 are:

(a)    other than in relation to Water, the right 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 in the area; and

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

for personal, domestic and non-commercial communal purposes.

7.    Subject to orders 8, 9 and 10 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 4 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)    take (including by hunting and gathering) and use traditional Natural Resources from the area for personal, domestic and non-commercial communal purposes;

(d)    conduct religious and spiritual activities and ceremonies on the area;

(e)    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, by lawful means, from physical harm;

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

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

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

(i)    take and use the Water for personal, domestic and non-commercial communal purposes.

8.    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.

9.    The native title rights and interests referred to in orders 6(b) and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

10.    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).

11.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 2.

12.    The relationship between the native title rights and interests described in orders 6 and 7 and the other interests described in Schedule 2 (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 INTERPRETATION

13.    In this determination, unless the contrary intention appears:

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:

14.    The native title is held in trust.

15.    The Gunggari Native Title Aboriginal Corporation RNTBC (ICN:7725), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

SCHEDULE 1

NATIVE TITLE HOLDERS

1.    The Native Title Holders are the Gunggari People. The Gunggari People are the biological descendants of one or more of the following people:

(a)    Jinnegah aka Mary and Albert Murray;

(b)    Lizzie Woodford/Gyemore/South;

(c)    Harry Collins and Dinah Smith;

(d)    Old Frog;

(e)    Effie Armstrong, the granddaughter of Coombra Jack;

(f)    Kitty of St George aka Mary Bolon, the mother of George Hazzard Jnr aka Henry James Hazzard;

(g)    Maggie of the Moonie, the mother of Sarah Brennan and Isabella Kerr;

(h)    King Billy Dick;

(i)    Maria of Tongy Station;

(j)    Harry Rookwood;

(k)    Lucy of the Balonne River;

(l)    Charlotte Moffatt;

(m)    Parents of Mary of the Maranoa and Lizzie;

(n)    Nellie Walker;

(o)    Clifton George;

(p)    Mary of Bollon; or

(q)    Kate Meathers/Meadows.

SCHEDULE 2

OTHER INTERESTS IN THE DETERMINATION AREA

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

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

(a)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC and Ergon Energy Corporation Limited ACN 087 646 062, which was authorised by the native title claim group on 2 June 2019 (the Gunggari People #4 and the Ergon Energy Indigenous Land Use Agreement);

(b)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC and Maranoa Regional Council, which was authorised by the native title claim group on 2 June 2019 (the Gunggari People #4 and Maranoa Regional Council Indigenous Land Use Agreement);

(c)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC, Adrian Wentworth Bucknell, Jennifer Narelle Bucknell and Bucknell Enterprises Pty Ltd, which was authorised by the native title claim group on 2 June 2019;

(d)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC, Harry Sibun Perrett and Erica Jan Perrett, which was authorised by the native title claim group on 2 June 2019;

(e)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC and Henry Richard Thomas Whitton, which was authorised by the native title claim group on 2 June 2019.

(f)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC, Susan Fae Wilson and Warren Gavin Wilson, which was authorised by the native title claim group on 2 June 2019; and

(g)    The agreement between Marshall Foster, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on their own behalf and on behalf of the Gunggari People #4 (QUD19/2019), Gunggari Native Title Aboriginal Corporation RNTBC and Babbiloora Pty Ltd, which was authorised by the native title claim group on 2 June 2019.

2.    The rights and interests of the holders of water allocations granted pursuant to the Water Act 2000 (Qld).

3.    The rights and interests of the holders of pastoral holding leases, rolling term leases for grazing purposes, term leases for grazing and any special leases granted pursuant to the Land Act 1962 (Qld) or Land Act 1994 (Qld), including, but not limited to the following:

(a)    Rolling term leases held by Babbiloora Pty Ltd:

(i)    Rolling Term Lease No. TL 0/231243 commencing 9 March 2007, being Title Reference No. 40053599 comprising Lot 4 on CP BDR82; and

(ii)    Rolling Term Lease No. PH 36/1018 commencing 1 January 1976, being Title Reference No. 17668181 comprising Lot 1018 on CP PH1213;

(b)    Rolling term leases held by Walter John Hartnell:

(i)    Rolling Term Lease No. TL 0/212667 commencing 10 February 1999, being Title Reference No. 40021614 comprising Lot 126 on CP DL339; and

(ii)    Rolling Term Lease No. TL 0/213565 commencing 1 February 2000 being Title Reference No. 40023841 comprising Lot 175 on CP DL159.

4.    The rights and interests of the holders of exploration permits for minerals, mineral development licences and any mining leases granted pursuant to the Mineral Resources Act 1989 (Qld).

5.    The rights and interests of the holders of pipeline licences granted pursuant to the Petroleum Act 1923 (Qld) and administered under the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

6.    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, occupy and operate telecommunication facilities; and

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

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

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

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

(a)    as the owner and operator of any Works 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.

8.    The rights and interests of the Murweh Shire Council, Maranoa Regional Council and Central Highlands Regional Council as the local governments for that part of the Determination Area within their respective Local Government Area, including:

(a)    their powers, functions, responsibilities and jurisdiction under the Local Government Acts, and under any other legislation, including the Stock Route Management Act 2002 (Qld);

(b)    their rights and interests in land or waters within the Determination Area including under any lease, license, access agreement, easement or reserve in the Determination Area;

(c)    the rights to use, operate, maintain, replace, restore, remediate, repair an otherwise exercise all other rights as the owners and operators of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;

(d)    the rights under any agreements between the local governments and third parties which relate to land or water in the Determination Area; and

(e)    the rights of their employees, agents and contractors to enter upon the Determination Area for the purposes of performing their powers and responsibilities under paragraph (a) to (d).

9.    The rights and interests of the State of Queensland and the Central Highlands Regional Council, Murweh Shire Council and Maranoa Regional 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.

10.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

11.    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 Fisheries 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 (Production and Safety) Act 2004 (Qld);

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

(g)    the Planning Act 2016 (Qld);

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

(i)    the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act 1991 (Qld); and

(j)    the Land Act 1994 (Qld).

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

(a)    any subsisting public right to fish; and

(b)    the public right to navigate.

13.    Any other rights and interests:

(a)    held by the State of Queensland or Commonwealth of Australia; or

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

SCHEDULE 3

EXTERNAL BOUNDARY

The External Boundary is described below and is depicted in red on the determination map.

Commencing at a point on the northern external boundary of Native Title Determination Application QUD6027/2001 Gunggari People #2 at Longitude 146.853458° East, Latitude 26.753227° South and extending generally northerly passing through the following coordinate points:

Then northerly to a point on the Balonne-Condamine River Basin Catchment at Longitude 147.274511° East, Latitude 25.912585° South; then generally northerly and generally north-easterly along boundaries of that catchment, being the ridgeline of the Chesterton Range to Latitude 25.405506° South; then north-easterly to the southernmost south-eastern corner of Lot 4234 on SP271523 (Mount Brandon Holding); then generally northerly along eastern boundaries of that lot, and generally north-easterly along south-eastern and eastern boundaries of Lot 6 on CHS25 (Mount Tabor Holding) to its intersection with the northern boundary of Maranoa Regional Council; then generally north-easterly along boundaries of that regional council, again being boundaries of the Balonne-Condamine River Basin Catchment, and ridgelines of the Chesterton Range to its intersection with the south-western external boundary of Native Title Determination QUD216/2008 Bidjara People, then generally south-easterly along external boundaries of that determination to northernmost north-western corner of Lot 5317 on WT805970, further described as:

generally south-easterly along boundaries of the Maranoa Regional Council, again being boundaries of the Balonne-Condamine River Basin Catchment, and ridgelines of the Carnarvon Range to the northernmost north-western corner of Lot 5317 on WT805970.

Then generally south-easterly, and generally southerly along eastern boundaries of Lot 2 on WAR16, Lot 6 on WAR24, Lot 3480 on WAR805968 and Lot 7 on WAR32 to Latitude 25.445444° South; again being boundaries of the Balonne-Condamine River Basin Catchment; then generally southerly again along boundaries of that catchment to Latitude 26.070781° South; then generally south-easterly passing through the following coordinate points:

Then south-easterly to the northernmost corner of Lot 19 on WV731, a point on the southern boundary of an unnamed road; then generally south-easterly along boundaries of that road to its intersection with the western external boundary of Native Title Determination QUD366/2008 Mandandanji People; then generally southerly along external boundaries of that determination to Latitude 26.304873° South, a point on the external boundary of Native Title Determination QUD548/2012 Gunggari People #3 further described as:

Generally southerly passing through the following coordinate points:

Then southerly to a point on the external boundary of Native Title Determination QUD548/2012 Gunggari People #3 at Longitude 143.326183° East, Latitude 26.304873° South.

Then generally south-westerly and westerly along external boundaries of that determination to its intersection with the external boundary of Native Title Determination Application QUD6027/2001 Gunggari People #2, a point the western bank of the Maranoa River at Latitude 26.772304° South, further described as:

Generally south-westerly passing through the following coordinate points:

Then southerly to the eastern bank of Amby Creek at Latitude 26.552557° South; then generally south-westerly along eastern banks of that creek to the eastern bank of the Maranoa River; then westerly to the western bank of that river at Latitude 26.772304° South.

Then generally, westerly along northern external boundaries of Native Title Determination Application QUD6027/2001 Gunggari People #2 back to the commencement point, further described as:

Generally westerly passing through the following coordinate points

Then south-westerly back to the commencement point.

Exclusions

To avoid any doubt the determination area does not include any land or waters subject to the following:

•    Lot 6 on CHS25 (Mount Tabor Holding);

•    Lot 4 on CHS26;

•    QUD6027/2001 Gunggari People #2 as determined by the Federal Court (22 June 2012);

•    QUD216/2008 Bidjara People as determined by the Federal Court (21 February 2014);

•    QUD245/2011 Brown River People as determined by the Federal Court (21 February 2014);

•    QUD301/2012 Brown River People #2 as determined by the Federal Court (21 February 2014);

•    QUD23/2006 Karingbal People #2 as determined by the Federal Court (21 February 2014);

•    QUD310/2012 Karingbal People #3 as determined by the Federal Court (21 February 2014);

•    QUD548/2012 Gunggari People #3 as determined by the Federal Court (5 December 2014); and

•    QUD366/2008 Mandandanji People as determined by the Federal Court (7 March 2018).

Data Reference and Source

•    Boundary compiled by QSNTS based in part on spatial data sourced from Commonwealth of Australia, NNTT (October 2018).

•    Cadastral data sourced from State of Queensland, Department of Natural Resources, Mines and Energy (October 2018).

•    Ridgelines and—basin catchments where possible referenced to cadastral data.

•    Basin Catchment data sourced from State of Queensland, Department of Natural Resources, Mines and Energy (January 2009).

Reference Datum

Geographical coordinates 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.

SCHEDULE 4

DESCRIPTION OF DETERMINATION AREA

The determination area comprises all of the land and waters described by lots on plan, or relevant parts thereof, and any rivers, streams, creeks or lakes described in the first column of the tables in the Parts immediately below, and depicted in the maps in Schedule 6, to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5.

Part 1 — Exclusive Areas

All of the land and waters described in the following table and depicted in dark blue on the determination map contained in Schedule 6:

^ denotes areas to which s 47A of the Native Title Act 1993 (Cth) apply

~ denotes areas to which s 47B of the Native Title Act 1993 (Cth) apply

Part 2 — Non-Exclusive Areas

All of the land and waters described in the following table and depicted in light blue on the determination map contained in Schedule 6:

SCHEDULE 5

AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the determination area as described in Part 1 of Schedule 4 and Part 2 of Schedule 4:

1.    Those land and waters within the External Boundary which at the time the native title determination application was made were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically, and to avoid any doubt, the land and waters described in (1) above includes:

(a)    the Previous Exclusive Possession Acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied; and

(b)    the land and 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 to which 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).

3.    Those land and waters within the External Boundary on which, at the time the native title determination application was made, public works were validly constructed, established or situated after 23 December 1996, where s 24JA of the Native Title Act 1993 (Cth) applies, and which wholly extinguished native title.

4.    Those land and waters within the External Boundary which, at the time the native title determination application was made, were the subject of one or more Pre-existing Rights Based Acts, within the meaning of s 24IB of the Native Title Act 1993 (Cth), which wholly extinguished native title.

SCHEDULE 6

MAP OF DETERMINATION AREA

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant seeks a determination of native title pursuant to ss 61 and 225 of the Native Title Act 1993 (Cth) (the Act) on behalf of the Gunggari People #4 (the Gunggari People).

2    The claim is over lands and waters in South Central Queensland situated, generally, between the towns of Amby in the east, Morven in the West and Mount Moffatt in the north. The claim area is approximately 19,349 km2.

3    The parties have indicated their consent to a determination that the Gunggari People are the holders of native title in the area covered by the application.

The Native Title Act

4    In its preamble, the Act recognises, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited the country for many years prior to European settlement and that the Aboriginal peoples were progressively dispossessed of their lands. It records that the Constitution was amended, by the overwhelming vote of the people of Australia, to enable laws such as the Act to be passed and to facilitate recognition by our shared legal system of native title rights and interests.

5    Section 3 of the Act states that the main objects of the Act are to protect and recognise native title, establish ways in which future dealings in relation to native title should proceed, and set standards for those dealings and establish a mechanism for determining native title claims.

6    An objective of the Act is the resolution of claims for the recognition of native title by agreement. That objective has been facilitated by amendments to s 87 of the Act brought about by the Native Title Amendment Act 2009 (Cth). The agreement of the parties to the terms of the proposed orders is consistent with that object of the Act.

7    The Court is asked to make a determination that native title is held by the Gunggari People in the claim area. By making that determination, the Australian community will collectively recognise that status. But, it is important to emphasise that the Court’s orders do not grant native title. The Court is merely recognising rights and interests that have existed under the traditional laws and customs of the Gunggari People since thousands of years before European settlement.

8    Section 61 of the Act provides that a native title determination application may be made by persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed.

9    Section 223(1) of the Act explains the meaning of “native title”:

Common law rights and interests

(1)    The expression native title or native title rights and interests means 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 the Aboriginal peoples or Torres Strait Islanders; and

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

(c)    the rights and interests are recognised by the common law of Australia.

10    Section 225 of the Act describes what is meant by a “determination of native title”:

225    Determination of native title

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

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

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

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

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

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

The application

11    The application was filed on 10 October 2012. It seeks a determination on behalf of the Gunggari People over land and waters within the external boundaries of the application area. The application was amended on 21 October 2014, 19 November 2018 and 8 August 2019.

12    The respondents to the application are the State of Queensland, Central Highlands Regional Council, Maranoa Regional Council, Murweh Shire Council, Telstra Corporation Limited, Ergon Energy Corporation Limited, Babbiloora Pty Ltd, Bucknell Enterprises Pty Ltd, Adrian Wentworth Bucknell, Jennifer Narelle Bucknell, John Bruce Compagnoni, June Olive Compagnoni, Laura-Lee Anne Compagnoni, William David Compagnoni, Alan Regional Maudsley, Margaret Dawn Maudsley, Erica Jan Perrett, Harry Sibun Perrett, Margaret Ann Phillips, Ronald John Phillips, Nora Jean Statham, Maree Anne Stinson, Robert William Thorne, Henry Richard Thomas Whitton, Warren Gavin Wilson and Walter John Hartnell.

13    There have already been determinations of native title in favour of the Gunggari People in areas adjoining the present determination area: Kearns on behalf of the Gunggari People #2 v State of Queensland [2012] FCA 651; Foster on behalf of the Gunggari People #3 v State of Queensland [2014] FCA 1318. There are no overlapping or competing native title claims over the land and waters covered in this application.

14    In Kearns, Reeves J noted that the first application for a determination of native title on behalf of the Gunggari People was commenced in 1996. Since then, their claims have had a long and complicated procedural history. A part of that history is set out in the frequently cited decision of Emmett J in Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109. The present determination is therefore an important step towards the final resolution of the Gunggari People’s claims.

15    All parties to the application have reached agreement that native title exists and as to the nature and extent of those native title rights and interests in relation to the claimed area. That agreement, made under s 87(2) of the Act, was filed on 27 August 2019.

16    The evidence of connection filed in the Court by the applicant includes that of Marshall Foster, Reeghan Finlay, Wayne Lyle Dodd, Ethel Munn, Gordon Munn, Lynette Nixon, Saraeva Mitchell, Alan Martin, Ted Martin and Irene May Ryder. The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance: Sampi v Western Australia [2005] FCA 777 at [48] per French J.

17    The applicant also relies on expert reports prepared by two anthropologists as follows:

(1)    Dr Kwok – Gunggari Connection Report – Stage 2 (July 2010);

(2)    Dr Kwok – Pre-Sovereignty Gunggari Society – Summary of Evidence (October 2009);

(3)    Dr Mayo – Anthropological Connection Report for Gunggari Native Title Claim # 4 (August 2017).

18    These reports provide detailed examinations of the continued acknowledgement and observance of a range of laws and customs in respect to language, cultural knowledge, totemic and spiritual beliefs, sites, dispute resolution, decision making, bush tucker and medicines.

19    Dr Mayo states in his report at [490] that:

Gunggari people are proud of their heritage, are knowledgeable about traditional law, beliefs, practices, stories and customs, and consciously and energetically involved in the transmission of their culture to their younger generations. They are a strong society who have maintained continuity with their traditional society despite the travails bought by European settlement and who demonstrate an ability to maintain and develop their society in the 21st century.

20    Dr Kwok opines in her Connection Report (Stage Two) at [573] that:

Despite the odds, determined efforts on the part of the Gunggari to maintain knowledge of country, or kind and countrymen, and of Gunggari law and custom – both on country and at a remove – ensured the survival of Gunggari society. Present Gunggari society may be seen as substantially continuous with that existing at presovereingty.

21    The Gunggari People are the biological descendants of the following persons:

(1)    Jinnegah aka Mary and Albert Murray;

(2)    Lizzie Woodford/Gyemore/South;

(3)    Harry Collins and Dinah Smith;

(4)    Old Frog;

(5)    Effie Armstrong, the granddaughter of Coombra Jack;

(6)    Kitty of St George aka Mary Bolon, the mother of George Hazzard Jnr, aka Henry James Hazzard;

(7)    Maggie of Moonie, the mother of Sarah Brennan and Isabella Kerr;

(8)    King Billy Dick;

(9)    Maria of Togny Station;

(10)    Harry Rockwood;

(11)    Lucy of Balonne River;

(12)    Charlotte Moffatt;

(13)    Parent of Mary of the Marnoa and Lizzie;

(14)    Nellie Walker;

(15)    Clifton George;

(16)    Mary of Bollon; or

(17)    Kate Meathers/Meadows.

22    The evidence filed by the applicant provides cogent evidence that the Gunggari People have maintained a continuous presence on their country, despite the pressures of colonisation which included significant displacement and the removal of families to places such as Taroom, Barambah, Brisbane, Deebing Creek and Palm Island. The evidence supports the claim that the traditional laws acknowledged and the customs observed by the Gunggari People give them the right to possess, occupy, use and enjoy the land and waters in the claim area.

The agreement reached between the parties

23    Section 87 of the Act gives the Court the power to make an order consistent with the terms of an agreement between the parties to the proceeding without holding a hearing in relation to the application.

24    The conditions under s 87 of the Act that enable the Court to make the determination without a hearing are:

(1)    The period specified in the notice given under s 66 of the Act in relation to the application had ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings: s 87(1)(a).

(2)    The terms of the proposed determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court: s 87(1)(b).

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

(4)    The Court considers it appropriate to make the orders sought: s 87(1A) and (2).

25    The Court is not required to embark upon an inquiry as to the merits of the claim to be satisfied that the orders are supportable and in accordance with the law: Cox on behalf of the Yugngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the parties who have agreed to compromise the claim, particularly the State on behalf of the community generally, have made a rational decision and are acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [30] per Emmett J. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 at [14] per North J.

26    State and Territory governments are responsible for ensuring that community interests are protected by getting involved in a process that assesses the underlying evidence as to the existence of native title. In this case, the State of Queensland is satisfied that the claim group is an appropriate one to be recognised as holders of native title rights and interests, that it is appropriate to recognise the rights and interests proposed and that it is appropriate for the State to enter into the determination

27    The requirements of s 87 of the Act have been satisfied:

(1)    The period for notification of the Application under s 66 of the Act has ended: s 87(1)(a).

(2)    The parties have reached an agreement as to the terms of a determination of native title: s 87(1)(a).

(3)    The parties have recorded their agreement in a Minute of Consent: s 87(1)(b).

(4)    An order in terms of the Minute, or consistent with the Minute, would be within the Court’s power because:

(a)    the application has been made in accordance with s61 of the Act;

(b)    the application is for a determination of native title in relation to an area for which there was no approved determination of native title: s 13(1)(a); and

(c)    the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87(1)(c).

28    In addition, it is appropriate for the Court to make the orders sought because:

(1)    The active parties have freely entered into agreement.

(2)    The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared.

(3)    There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application.

(4)    The State has played an active role in the negotiation of the determination and, in doing so, has taken an interest in the proceeding on behalf of the community and given appropriate consideration to the connection material.

29    The terms of the proposed determination also satisfy the requirements of s 225 of the Act.

Prescribed Body Corporate

30    Section 55 of the NTA requires the Court to make such determinations as are required by ss 56 and 57 at the same time as or as soon as practicable after the determination. Order 15 of the s 87 agreement signed by the parties seeks a determination that the Gunggari Native Title Aboriginal Corporation RNTBC (ICN 7725) (GNTAC) is to be the prescribed body corporate for the purposes of ss 56(2)(b) and 56(3) of the NTA to perform the functions set out in s 57(1).

31    The nomination is supported by the affidavit of Shannon Anne McGrellis, affirmed on 8 August 2019, which deposes that on 1 August 2019, Marshall Foster, a Gunggari person and member of the applicant, formally nominated the GNTAC to be the prescribed body corporate for the purposes of s 56(2)(a) of the NTA. Ms McGrellis further deposes that GNTAC has consented to such nomination.

32    Accordingly, the Court determines that GNTAC is to be the prescribed body corporate for the purposes of s 56(1) of the NTA.

33    For the reasons outlined above, I will make orders in terms of the agreement reached by the parties.

Associate:    

Dated:    2 September 2019

SCHEDULE OF PARTIES