Federal Court of Australia

Gunggandji-Mandingalbay Yidinji Peoples Prescribed Bodies Corporate Aboriginal Corporation v Murray [2021] FCA 94

ORDERS

THE COURT DECLARES THAT:

1.    The respondents hold no rights which entitle them to lawfully occupy and remain in possession of the land described as having an area of about 102,595 square metres and located to the west of Backbeach Road, Bloomis Point, near Yarrabah in North Queensland.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    In early 2009, Mr Robert Murray and his family, the respondents in this proceeding (who I will generally refer to hereafter as “the Murray family”), began to occupy an area of land at Bloomis (sometimes referred to as “Bloomers” or “Bloomer”) Point, near Yarrabah (the Subject Land) and use it as a “weekender”. Yarrabah is located south east of Cairns in North Queensland.

2    In September 2012, the Subject Land and a large area surrounding it was the subject of a determination of native title made under the Native Title Act 1993 (Cth) (the NTA): see Mundraby on behalf of the Combined Mandingalbay Yidinji-Gunggandji People v State of Queensland [2012] FCA 1039 (the Determination).

3    It is common ground that the members of the Murray family are Aboriginal people. It is also common ground that they (with the exception of the second respondent, Mrs Margaret Murray) are the descendants of one of the apical ancestors named in the Determination.

4    As a part of the Determination, the applicant, the Gunggandji-Mandingalbay Yidinji Peoples Prescribed Bodies Corporate Aboriginal Corporation (the GMY Prescribed Body Corporate), was appointed to be the registered native title body corporate for the common law native title holders. Since no issue was raised with respect to the difference in sequencing in the name of the people described in the Determination and the name of the GMY Prescribed Body Corporate, I will assume they refer to one and the same People.

5    In this proceeding, the GMY Prescribed Body Corporate is attempting to gain possession of the Subject Land from the Murray family. To that end they have assumed the onus of proving a negative, namely that the Murray family hold “no rights and interests which entitle them to lawfully occupy or take or remain in possession of the Subject Land”.

6    This proceeding follows a related proceeding that the GMY Prescribed Body Corporate commenced against the Murray family in the District Court of Queensland at Cairns. That proceeding was stayed at the agreement of the parties in June 2020.

7    For the reasons that follow, I propose to make a declaration in favour of the GMY Prescribed Body Corporate.

FACTUAL BACKGROUND

The materials

8    In the course of this proceeding, the parties filed a joint Statement of Facts, Issues and Contentions. That statement contained a series of agreed facts which describe some of the factual background to this matter. As well, the parties each filed affidavits in which they described aspects of that background in more detail from their individual perspectives. The GMY Prescribed Body Corporate filed an affidavit by Mr Dewayne Mundraby, its chairperson, and Mr Robert Murray made and filed an affidavit on behalf of his family. During the course of the hearing, Mr Murray also made and filed a further affidavit in which he clarified when it was that he lodged his first Expression of Interest with respect to the Subject Land. There was no dispute about the general accuracy of the contents of those affidavits. The factual background below has been extracted from these materials.

The GMY Prescribed Body Corporate

9    The agreed facts contain the following pertinent details in respect of the GMY Prescribed Body Corporate:

(a)    it is an Aboriginal Corporation registered on 22 March 2013 under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

(b)    as already mentioned, it was nominated in writing, in accordance with the Determination and s 57(2) of the NTA, to be the registered native title body corporate for the common law holders and to perform the functions mentioned in s 57(3) of the NTA; and

(c)    it has, since 21 December 2015, been the registered owner of an estate in fee simple in land held for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants under the Aboriginal Land Act 1991 (Qld) (the ALA), which includes the Subject Land.

The Murray family

10    In his main affidavit, Mr Murray described his personal and family history as follows:

…

 4.    I am an Aboriginal man. I was born at Yarrabah in 1944.

 5.    My father, Donald Cyprian Murray, was born at Yarrabah in 1921.

6.    My father’s mother was Lydia (who was born near Innisfail in about 1896). Her parents were Moses and Jenny.

7.    … my father’s parents [were] married on 25 December 1917 …

8.    … Lydia Murray, my father’s mother [died on 29 July 1943].

9.    My father’s father was Donald Murray, who was born in Dunwich on North Stradbroke Island in 1894. I do not know that his parents have any connection under traditional Aboriginal law and custom to the Yarrabah area.

10.    My mother, Greta Murray, was born in 1923 (but I note that some genealogies incorrectly record her birth date as 1922) at Halifax, which is near Ingham.

…

12.    My parents left the mission shortly after I was born and before my brother Adrian (Clive) Murray was born in 1946. We had an exemption under what I know as “The Act”. My parents were able to find work and raise their family, outside the restrictions of the Yarrabah Mission.

The 1986 Deed of Grant in Trust

11    According to Mr Mundraby’s affidavit, on 27 October 1986, pursuant to the now-repealed Community Services (Aborigines) Act 1984 (Qld), the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) (the Land Holding Act 1985) and the Land Act 1962 (Qld), the State of Queensland granted an area of land, which included the Subject Land and other parcels of land covering the township of Yarrabah (the Yarrabah land), in fee simple to what was then known as the Yarrabah Aboriginal Council, and is now known as the Yarrabah Aboriginal Shire Council (the Yarrabah ASC), in trust for the benefit of Aboriginal inhabitants and for no other purpose whatsoever (the 1986 DOGIT). That grant was a conversion of the land concerned from its previous status as a reserve within the meaning of the Aborigines Act 1971 (Qld).

1991 – The Subject Land becomes land under the Aboriginal Land Act 1991 (Qld)

12    On 12 June 1991, the ALA received assent and came into force. The ALA replaced the Land Holding Act 1985. By virtue of it being an area granted in trust under the Land Act 1962 (Qld) for the benefit of Aboriginal inhabitants, or for the purpose of an Aboriginal reserve, upon the enactment of the ALA, the Yarrabah land became “Aboriginal land” within the meaning of the ALA.

1998 – The native title claim is filed

13    On 25 September 1998, a native title determination application was filed in the National Native Title Tribunal on behalf of descendants of George Christian in respect of an area of about 157 square kilometres, including all of the land and waters contained within the boundary of the 1986 DOGIT: initially NNTT proceeding QC1998/40; and later Federal Court proceeding QUD6018/1998. At all times from 25 September 1998 until the Determination, the Subject Land was included in the claim area of the native title claim.

14    On 3 December 1999, this Court made orders combining the latter proceeding with Federal Court proceeding QUD6104/1998, previously NNTT Proceeding QC1998/41, which was another native title determination application made on behalf of the descendants of George Christian. These combined proceedings will be referred to hereafter as the “native title claim”.

2011 – DOGIT Transfer ILUA

15    On 12 September 2011, as part of settling the native title claim, Mr Les Murgha and Mr Charles Garling on behalf of the Gunggandji People and Mr Vincent Mundraby on behalf of the Mandingalbay Yidinji People, each as the native title holders of the Yarrabah land, the State of Queensland and the Yarrabah ASC entered into an Indigenous Land Use Agreement (the DOGIT Transfer ILUA). Pursuant to that agreement, the parties relevantly agreed:

(a)    to the granting by the State of the Yarrabah land as Aboriginal land under the ALA (clauses 5.1 and 5.5);

(b)    to trusteeship of the Yarrabah land being transferred by the State pursuant to the ALA (clauses 5.2 to 5.3); and

(c)    upon a determination that native title exists as part of the native title claim, that the native title holders would use their best endeavours to have any registered native title body corporate for the abovementioned land appointed as trustee by the State (clause 5.4).

2012 DOGIT

16    On or about 23 August 2012, pursuant to the Land Act 1994 (Qld), the State granted the Yarrabah land in fee simple to the Yarrabah ASC in trust for the benefit of Aboriginal inhabitants and for no other purpose whatsoever (the 2012 DOGIT). That grant was consequent upon the transfer of local government functions in relation to the Yarrabah land from the Yarrabah Aboriginal Council to the Yarrabah ASC.

2012 Consent Determination

17    On 21 September 2012, with the consent of all parties, this Court made the Determination. The pertinent clauses of the Determination were as follows:

1.    Native title exists in relation to the Determination Area identified in Schedule 2.

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

3.    Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests, other than in relation to Water, are the rights to possession, occupation, use and enjoyment to the exclusion of all others.

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

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

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

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

for personal, domestic and non-commercial communal purposes.

5.    There are no native title rights and interests 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).

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

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

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

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

8.    The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.

9.    The relationship between the native title rights and interests described in paragraphs 3 and 4, and the other rights and interests described in Schedule 3, other than paragraph 1(g)of Schedule 3, (the “other rights and interests”) is that:

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

(b)    to the extent the other rights and 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 identified in Schedule 2, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and

(c)    the other rights and interests and any activity that is required or permitted by or under, and done in accordance with, the other rights and interests, 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.

10.    The relationship between the native title rights and interests described in paragraphs 3 and 4 above and the interests described in paragraph 1(g) of Schedule 3 is that the interests co-exist.

…

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

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

(a)    be the prescribed body corporate for the purposes of s 57(2) of the [NTA]; and

(b)    perform the functions mentioned in s 57(3) of the [NTA].

…

18    Schedule 1 to the Determination referred to in cl 1 above was in the following form:

The native title holders are those Aboriginal People:

who are Mandingalbay Yidinji-Gunggandji People on the basis of descent from one of the following persons:

(a)       (i)    Merumanai II, or his wife Tonkobulu of King Beach (being the parents of Albert Underwood, Djaradjoan, Menmuny/King John Barlow/Merumanai III, and Nellie married to Loui);

(ii)    Billy Brown (husband of Jinny Katchewan of Cape Grafton);

(iii)    Billy Church/Goondor (the father of Maggie 1, Maggie 2 and Nora);

(iv)    Kari (the father of George Christian);

(v)    Mandi Tjapir (sister of Kari and wife of Billy Church);

(vi)    Kutubi/Bertie Harris;

(vii)    Mary Ann, or her brother Paddy of Jilji (husband of Nora);

(viii)    Nego/Nengo (the mother of Maggie 2);

(ix)    Mandekala of Cape Grafton or Njemnga/Njewnga of Cape Grafton (the parents of Jinny Katchewan of Cape Grafton);

(x)    Rosie of Buddabadoo;

(xi)    Billy (Woopah) of Buddabadoo;

(xii)    Harry Myngha;

(xiii)    Jabalum Mandingalpai (aka Jimmy); or

(b)    who have been recruited by adoption as a member of the Mandingalbay Yidinji-Gunggandji People in accordance with their traditional law and custom.

19    Schedule 3 to the Determination referred to in cll 8, 9 and 10 above was in the following form:

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

(a)    Les Murgha, Charles Garling, Vincent Mundraby, State of Queensland and Yarrabah [ASC] as parties to the Yarrabah Blockholders ILUA QI2011/54, registered on 28 June 2012;

(b)    Les Murgha, Charles Garling, Vincent Mundraby, State of Queensland and Yarrabah [ASC] as parties to the Yarrabah DOGIT Transfer ILUA QI2011/55, registered on 28 June 2012;

(c)    Les Murgha, Charles Garling, Vincent Mundraby and State of Queensland as parties to the Yarrabah Towers ILUA QI2011/60, registered on 28 June 2012;

(d)    Les Murgha, Charles Garling, Vincent Mundraby and Yarrabah [ASC] as parties to the Yarrabah Local Government ILUA QI2011/57, registered on 28 June 2012;

(e)    Les Murgha, Charles Garling, Vincent Mundraby and Ergon Energy Corporation Limited as parties to the Ergon Energy and Combined Mandingalbay Yidinji Gunggandji People ILUA QI2011/61, registered on 28 June 2012; and

(f)    Les Murgha, Charles Garling, Stewart Harris, Vincent Mundraby and Annie Wonga, Andrew Miller, Mark Wilson, Monica Willis, Adrian Murray and Lilian Willis (Snr) as parties to the Mandingalbay Yidinji Gunggandji and Wanyurr Majay People ILUA QI2011/62, registered on 28 June 2012.

2.    The rights and interests of the grantee and others under the Deed of Grant in Trust dated 23 August 2012 being Title Reference Number 50889958 and under former Deed of Grant in Trust dated 25 October 1986 being Title Reference Number 21328056.

2015 DOGIT

20    On 3 December 2015, in accordance with the terms of the DOGIT Transfer ILUA and following the Determination and the nomination of the GMY Prescribed Body Corporate under cl 13 of the Determination, a Deed of Grant of Land in Trust was made (which was declared to be effective from 21 December 2015) granting a fee simple interest in the Yarrabah land to the GMY Prescribed Body Corporate to hold that land in trust for the benefit of Aboriginal People in place of the Yarrabah ASC (the 2015 DOGIT). At the same time, the 2012 DOGIT was, by operation of s 47 of the ALA, cancelled insofar as it covered the same land.

The Murray family’s relationship to the Subject Land

21    In his main affidavit, Mr Murray described his family’s relationship to the Subject Land in the following terms:

13.    I had and have many relations living at Yarrabah. Many of them are native title holders for the Yarrabah area. Through them I claim membership of the native title group for the land that is the subject of this case, and the right to occupy that land. I set out that connection in more detail below.

14.    … I am a descendant of Kutubi / Bertie Harris, who is described in the MY-G determination as an apical ancestor of Mandingalbay Yidinji Gunggandji People.

…

17.    One of Bertie Harris and his wife Lizzy Johnson’s sons was Hilary Harris. Hilary married Granny Caroline who I used to refer to as Granny. I referred to Hilary Harris as Uncle.

18.    Granny Caroline and Uncle Hilary always accepted my dad and my family as part of their family. Their children who included Bertie, Amanda, Lawrence and Polly always accepted me and my family as part of their family.

19.    All of Uncle Hilary’s brothers, and his sister, accepted my dad and me as family.

20.    When we were young, my brother Clive and I used to stay with Granny Caroline and my cousins from the Livingstons and Woods families many times during holidays. My Dad always referred to Granny Caroline as Aunty and it has always been my understanding that she was a blood relation, because that is what my Dad told me, and that is how we have always been treated by them.

21.    When we often visited Yarrabah and stayed with Granny Caroline and my cousins, we would go on day trips to Back Beach and to Bukki, which is East of Yarrabah. Granny Caroline and Uncle Hilary’s children always referred to me as “cousin” and they still do. Just the other day, I met Polly Harris who greeted me by saying “my cousin”.

22.    The Harris family all refer to me as cousin and consider that I, and my family, are part of their family. They have always done that.

23.    Young Caroline, who is the granddaughter of Granny Caroline and Uncle Hilary, is one example of a younger member of the Harris family who considers me and my family to be part of her family.

24.    I moved to Gordonvale in about 1961 but have continued to visit Yarrabah frequently on weekends and holidays.

The Murray family’s occupation of the Subject Land

22    The circumstances in which the Murray family came to occupy the Subject Land are described by Mr Murray in his main affidavit as follows:

25.    In about 2009 I decided with my sons that we wanted to buy our own block. I knew at that time that Yarrabah [ASC] could grant leases for blocks. I understood that [Yarrabah ASC] were granting leases to people who were Yarrabah born at that time.

26.    I went for a walk with Maxwell Murray and Henry Miller to find a suitable block. Henry Miller is an elder and I wanted his help to find a suitable block that no one else was interested in. I took him to the land we were interested in and asked if my sons and I could build on that block. Henry Miller confirmed that there was no one else on that land and gave me permission to build on it.

27.    I also wanted to confirm permission to use the block with Andrew Miller and Allanby Ambrum, who are also elders for the area. A short time after I took Henry, I took Andrew Miller and Allanby Ambrum to the land. Andrew Miller and Allanby Ambrum also gave me permission to occupy the block.

28.    I went to the same land a little while later with Bobby Patterson, who is a Gunggandji elder, to confirm if there were any burials in the area. He said that there were not any burials, but that he didn’t speak for that area because he is from King Beach which is a different part of Yarrabah.

29.    While I had elders’ permission to occupy the land, I also wanted to obtain a residential lease from [Yarrabah ASC]. The reason I wanted a lease was so that I had certainty that no one else would take my block and the infrastructure (such as sheds, water tanks, a garden and horse paddock) once I built them.

30.    On or about 27 April 2009 my sons and I lodged our first Expression of Interest to lease the land to the [Yarrabah ASC] in person. Henry Miller, Andrew Miller and Allanby Ambrum signed our cover letter for that expression of interest, indicating their support for us occupying the land. I recall handing the Expression of Interest to Mr Michael (Lanky) Sands who worked at [Yarrabah ASC] at the time …

31.    Shortly after lodging the expression of interest in 2009, we mowed and tidied the block up and built some sheds. We put barbed wire fencing around to keep the horses out. I went to the block when I could, usually on weekends and holidays. After that, we didn’t hear from [Yarrabah ASC] for a while.

…

43.    At the moment, my sons and I still go to the land on weekends and holidays. Over the years we have built some sheds, fences and have planted fruit trees.

…

(Errors in original)

23    On this aspect, it should be noted that Mr Mundraby said in his affidavit that the GMY Prescribed Body Corporate “has not given permission to any of the [Murray family] to occupy or remain on the [Subject Land] and seeks their departure from the land and the removal of objects brought onto the land by them”.

The Murray family’s expressions of interest and other communications with respect to the Subject Land

The 27 April 2009 Expression of Interest

24    The first Expression of Interest that Mr Murray lodged in respect of the Subject Land is already mentioned above (at [22(30)]). The covering letter to that Expression of Interest relevantly stated:

27TH APRIL 2009

THE [YARRABAH ASC]

YARRABAH

TO WHOM IT MAY CONCERN                        

MY NAME IS ANTHONY JAMES MURRAY SON OF ROBERT LESLIE CYPRIAN MURRAY, GRANDSON OF DONALD CYPRIAN MURRAY, GREAT GRANDSON OF DONALD CYPRIAN MURRAY (SR) HUSBAND OF LIDIA, ALL BORN AT YARRABAH. HENCE THE CONNECTION. I AM PUTTING IN A ACLAIM [sic] FOR 25 ACRES OF PROPERTY ON THE CREST OF BLOOMERS POINT IN JILII AREA.

BOTH HENRY MILLER AND ANDREW MILLER OWNERS OF THE ABOVE MENTIONED LAND DO HEREBY AUTHORISE THE IMPROVEMENTS TO THIS PROPERTY.

SIGNED

25    The enclosed Expression of Interest form was headed:

Expression of Interest (EOI) in the lease of Aboriginal Deed of Grant in Trust (DOGIT) land

Form 1––Lease to an Aboriginal person for private residential purposes

26    The body of that form included the following information:

27    Below that section was a section headed “Private residential lessee obligations” and another headed “Important Information”. Those sections of the form contained the information set out below. None of the boxes in the first section was ticked:

28    There is no evidence that Mr Murray received any response to his letter dated 27 April 2009 above. Indeed, as is apparent from Mr Murray’s letter to the Yarrabah ASC dated 3 October 2014 (see below at [33]), as at the latter date, the Yarrabah ASC claimed to have no existing paperwork relating to his application.

The 27 September 2010 Expression of Interest

29    In Mr Murray’s further affidavit filed by leave during the hearing of this matter, he referred to, and annexed, a second, but different, Expression of Interest form that he prepared and submitted to the Yarrabah ASC about 18 months later, that is on or about 27 September 2010. That form was headed:

Expression of Interest (EOI) in the lease of Aboriginal Deed of Grant in Trust (DOGIT) land

Form 2––Lease to an Aboriginal person for commercial purposes for between 30 and 99 years

30    In the body of that form, the Subject Land was described as “Bloomis Point via Juilgi [sometimes referred to as “Jilji”, “Jilii” or “Juilgi”] BackBeach [sometimes spelled as “Back Beach” or “Backbeach”] Road Yarrabah”. A map was attached showing its location. The structures on the Subject Land were described as “Shed, fencing, water tanks, structures, Driveway”. That form contained a section headed “Commercial lessee obligations”, which was in the following form. It should be noted that this section had “N/A” written beside it, but none of the boxes within it was ticked:

31    There is also no evidence that Mr Murray received a response to this letter. It would appear to be in the same category as that described above.

The 3 October 2014 Expression of Interest

32    Approximately four years elapsed before Mr Murray submitted his third Expression of Interest. Mr Murray described that event in his main affidavit as follows:

On 3 October 2014 I lodged a further expression of interest because I found out through my son that [Yarrabah ASC] had no existing paperwork concerning our block, including our first Expression of Interest. Annexed to this affidavit and marked “RM-5” is a copy of that expression of interest.

33    Annexure “RM-5” referred to in this passage was as follows:

3 October 2014

To [Yarrabah ASC]

In a conversation with Andrew Miller yesterday on the 2 October 2014, concerning the block of land on Bloomers Point by Jilji.

In documents dating back to the 27th April 2009. We have the original document addressed to the [Yarrabah ASC] with signatures signed by Anthony Murray, Robert Murray, Henry Miller, Andrew Miller, Maxwell Murray and Allanby Ambrym.

This will prove to you our claim has been dated back to the 27th April 2009.

It was in telephone conversation between my son, Maxwell Murray and your Secretary on 3rd October 2014, telling us that the [Yarrabah ASC] has no existing paperwork concerning this block of land. As we are the Blockholders of 383. Therefore we ask the question, how can another person try and override our claim, when our claim is in process of buying the lease.

I also believe the person in question has gone to the Yarrabah Police, asking for us to be removed.

We as the Blockholders will not be removed and will fight this claimant.

We can also provide and prove our Family Tree and Grass Roots connection of this Yarrabah area, which we call the Granny Tilly Country.

We would like this matter sorted as soon as possible, as we have cleared and made our block accessible and livable for the last five years.

Thanking You

Robert Murray

Documents enclosed. Please do not lose these documents again.

(Errors in original)

34    The first page of the enclosed Expression of Interest form was identical to the Form 2 described above (see at [29]). Furthermore, the information contained on that page was essentially the same as that described above (at [30]). However, the second page of the form was quite different. It was also different to the second page of the Form 1 above (see at [26]). It was in the following form:

Mr Murray’s letter dated 7 October 2014

35    Mr Murray’s next communication with the Yarrabah ASC was dated four days later. He described it in his main affidavit as follows:

After lodging the application on 3 October 2014, I tried to follow up with various people about the application but I was referred to many different people about it. On 7 October 2014 I wrote to [Yarrabah ASC] about all of the different referrals. Annexed to this affidavit and marked “RM-6” is a copy of that letter.

36    Annexure “RM-6” referred to in this passage was relevantly as follows:

To Whom It May Concern:

In a conversation with Frank Maddic from Townsville, who was handling our Blockholders Claim for the Block 383 at the Crest of Bloomer Point, Jilji, Backbeach Road, Yarrabah.

In which he told me, he had finished from that position, he referred me to Bottoms, English Lawyers. To whom I rang on the 16th April 2013 and spoke to Kirstie about our Blockholders Claim, she told me that they were no longer handling those cases. Then referred me to the [Yarrabah ASC].

At this stage [Yarrabah ASC] already had our existing documents for this Claim, dated back to 27th April 2009. But [Yarrabah ASC] now tell me they have no paper work concerning our Block Claim for Block 383. Thereafter we found out that we were directed to Kate Steel, in Brisbane. In which she was organising the Blockholders Claims. Now she is directing us back to Bottom, English Lawyers.

(Errors in original)

Mr Murray’s letter dated 7 April 2015

37    In April 2015, Mr Murray sent a further letter to the Yarrabah ASC. He described that letter in his main affidavit as follows:

34.    On 7 April 2015 I wrote a further letter to [Yarrabah ASC] about my application because I still had not heard from [Yarrabah ASC] about my expression of interest. In that letter I said that our first Expression of Interest was lodged on 27 September 2010. After reviewing a copy of our first Expression of Interest referred to above in paragraph [30], I now believe that the date referred to in that letter should have been 27 April 2009. I may have visited [Yarrabah ASC] about my Expression of Interest in 2010, however I don’t recall that event specifically.

35.    Annexed to this affidavit and marked “RM-7” is a copy of that letter.

38    Annexure “RM-7” referred to in this passage was relevantly as follows:

Dear Sir/Madam,

RE: Block holder of 383 on the crest of Bloomis Point via Juilgi, Back Beach Road, Yarrabah QLD

I write to inform you of my concerns of my first Expression of Interest (EOI) application where at the time was ‘form 2’ under the lease of Aboriginal Deed of Grant in Trust (DOGIT) administered by the [Yarrabah ASC]. It appears my application was not processed or registered on the 27 September 2010. I believe the [Yarrabah ASC] had a duty of care to confirm if my application was acknowledged and registered.

My first application was personally handed to an officer of the [Yarrabah ASC] on the 27 September 2010. I believe that the officer at that time was Mr Lanky Sands who read my application in front of Mr Anthony Murray (son) and myself who then advised us that it will be processed in due course. It appears that Mr Sands did not open up a file or obtain an original copy of the EOI for future reference. Until recently I received another EOI application issued by the [Yarrabah ASC] because the original application to the best of my knowledge has either not been processed or the original application presumably has been lost or destroyed.

On the 2 October 2014 I lodged another EOI application “form l” provided by the [Yarrabah ASC]. However I believe the [Yarrabah ASC] has not fulfil their responsibilities by not writing a formal letter if any action under the Aboriginal Deed of Grant in Trust (DOG IT) to process my original application “form 2’’ on the 27 September 2014 was acknowledged.

I now request you to confirm if there is any other Blockholder Party that holds a registered interest in 383 Block and further confirm if my original EOI application on the 27 September 2010 was followed correctly by your office to registered EOI file to reflect the workings of Dr. Bruce Rigsby’s Report (2003). In relation to Mandingalbay Yidinji Native Title Claim (QG6015/98) that was submitted to the Federal Court, Rigsby’s asserts that Lower Coastal Yidinji (Wanurr-Majay) people still have traditional rights and interests in all the three Yarrabah cluster applications including the Mandingalbay Yidinji claim #2.

Finally, as a respected elder being born in Yarrabah, I have demonstrated through my family history and cultural genealogy connection with my Apical Ancestors as outlined:

1) Njinggungara/Pannikin 2) Nellie Tobi/Pannican 3) Doranga and Tjanpumolo 4) Tilly Palmer 5) Minnie 6) Jack Baker 7) Lydia Murray 8) Larry Thompson/Larry Carney/Loui Waiangai.

Our Apical Ancestors lifestyle and practice of our culture covers an area from Russell River – Lower Russell River – Coffee Plantation – Lower Mulgrave - Russell Heads – Deeral – Bramston Beach - Palmers Point and then onto Yarrabah was based on total kinship with the natural environment. Wisdom and skills obtained over the millennia enabled them to use their environment to the maximum. Traditionally, the Wanyurr-Majay people practices such as killing animals for food or building a shelter were steeped in ritual and spirituality, and carried out in perfect balance with their surroundings. Through my Apical Ancestors I believe the continued practice of ceremonies and cultural activities give me the rights to speak for country throughout Yarrabah and surrounding areas. This demonstrate that I’m am no stranger to the community of Yarrabah Queensland.

I am also the current Chairperson of the Wanyurr-Majay Aboriginal Corporation (WMAC) which will hold future meeting(s) to be held to develop the Indigenous Land Use Agreement for the purposes of WMAC’s second determination to seek recognition and the clarification of boundaries that also includes the area surrounding Block 383.

Prior to my first EOI application 27 September 2010 I have maintained and improved on Block 383 for approximately 7 years. Since then my extended families of the community of Yarrabah and Oombumghi area have known that I have continued to have an interest of the cultural and spiritual connection throughout our “Granny Tilly’s” country”.

Finally I am prepared to pay an up-front lump-sum for lease of the land and any additional improvement of Block 383.

Please find the supporting documents that relate to my connection to country the ancestry bloodline of the Wanyurr-Majay people. If you have any queries I can be contacted on [redacted].

(Errors in original)

The Yarrabah ASC’s letter dated 13 May 2015

39    On 13 May 2015, Mr Murray finally received a response from the Yarrabah ASC. He described that response in his main affidavit as follows:

On 13 May 2015 I received a letter from [Yarrabah ASC] saying that it had resolved to enter into an agreement to lease with me, but that I had to get the consent from the [GMY Prescribed Body Corporate] first. Annexed to this affidavit and marked “RM-8” is a copy of that letter.

40    Annexure “RM-8” referred to above was relevantly as follows:

Expressions of Interest – Bloomis Point

We refer to the expressions of interest dated 27 September 2010 and 03 October 2014 which you lodged with regard to an area of about 102,595 square metres (E 23.35 acres) to the west of Backbeach Road at Bloomis Point.

[Yarrabah ASC] in its role as DOGIT Trustee, considered these expressions of interest at its meeting held on 20 April 2015.

The DOGIT Trustee resolved to enter into an agreement to lease with you to lease DOGIT land up to a total area of 2,000 square metres (E 0.49 acres) within the area identified in the expressions of interest.

A home ownership lease for not more than 99 years is offered by the DOGIT Trustee.

Under the [ALA], a lump sum payment must be paid up front for the lease and the annual rental can be no more than $1.00 per annum. Based on the State formula we understand the upfront payment for 2,000 square metres is $4,000. There are additional statutory conditions attached to this type of lease (see attachment A to this letter), including that a dwelling be built within 8 years of the lease being granted if there is no dwelling on the land when leased.

The area offered would include to the extent possible, the infrastructure recorded in the photos provided to the DOGIT Trustee in November 2014. Agreement as to the actual lease area will be the subject of further discussion.

A pre-condition to the DOGIT Trustee entering into the aforementioned agreement to lease is that the DOGIT Trustee first be satisfied that any requirements of the [NTA] pertaining to the proposed grant are met.

With regard to this condition we note as follows:-

1.    The Gunggandji-Mandingalbay Yidinji Peoples PBC Aboriginal Corporation ICN 7858 (“the [Prescribed Body Corporate]”) holds native title rights and interests over the proposed lease area as an agent of the Mandingalbay Yidinji-Gunggandji People.

2.    [Yarrabah ASC] and the [GMY Prescribed Body Corporate] are parties to the Combined Mandingalbay Yidinji Gunggandji Yarrabah Local Government ILUA registered on 28 June 2012.

3.    Under this ILUA, the proposed lease is a “high impact native title activity”. Consent to such an activity requires [Yarrabah ASC] to send a notice to the [GMY Prescribed Body Corporate] about the proposed activity and then consensus being reached about the activity proceeding.

4.    [Yarrabah ASC] in its role as DOGIT Trustee would be prepared to send the aforementioned notice on the condition that you then take the lead in ensuring consent to the grant is given (and documentary evidence of this is provided to the DOGIT Trustee).

5.    In making this suggestion, we note that:-

a.    recently the [GMY Prescribed Body Corporate] has not been prepared to engage with the DOGIT Trustee about any proposed DOGIT leases indicating it was awaiting the pending DOGIT transfer to the [GMY Prescribed Body Corporate].

b.    based on current time estimates provided by the State of Queensland, the new DOGIT titles will issue in October and the handover should occur in late November/December 2015.

6.    Alternatively, a separate ILUA could be negotiated between yourselves and the [GMY Prescribed Body Corporate] containing the necessary consent and upon its registration the native title condition would be met.

To progress this offer we suggest a meeting be held between yourselves and the DOGIT Trustee officers to settle the extent of the lease area. This area will need to be surveyed at your cost before a lease can be granted.

Please contact me on Ph: [redacted] or [redacted] to organise a suitable time to convene a meeting.

The Yarrabah ASC’s undated letter

41    In his main affidavit, Mr Murray explained why he did not seek the consent of the GMY Prescribed Body Corporate and described a subsequent letter he received from the Yarrabah ASC as follows:

37.    I did not seek that consent because by then, I had been chasing [Yarrabah ASC] for so long and wasn’t getting any outcome. [Yarrabah ASC] had been sending me around in circles so I decided not to bother with seeking the [GMY Prescribed Body Corporate’s] consent. I relied on the consent from the elders who can speak for country.

38.    I later received a letter from [Yarrabah ASC] advising that the land had been transferred to the [GMY Prescribed Body Corporate] and that I would need to make a new expression on [sic] interest to the [GMY Prescribed Body Corporate]. The letter said that no new leases would be granted until a master plan had been prepared. Annexed to this affidavit and marked “RM-9” is a copy of that letter.

42    It should be noted that the letter comprising Annexure “RM-9” was undated. It was relevantly as follows:

Bloomis Point

We refer to the expressions of interest dated 27 September 2010 and 03 October 2014 which you lodged with regard to an area to the west of Back Beach Road at Bloomis Point.

As stated in correspondence to you dated 13 May 2015, any agreement to lease over the area offered to you by [Yarrabah ASC] as the Trustee at the time was subject to a pre – condition. The pre – condition was the [Yarrabah ASC] as the DOGIT Trustee first be satisfied that any requirements to the [NTA] pertaining to the proposed grant were met.

During it’s time as the Trustee of the area, [Yarrabah ASC] was not satisfied that this pre-condition was met, and therefore the Agreement to Lease could not be entered in to. As such, there was no registered interest held by you at the time of the transfer of that land to the Gunggandji-Mandingalbay Yidinji Peoples PBC Aboriginal Corporation (“the [GMY Prescribed Body Corporate]”).

The transfer of the land from [Yarrabah ASC] as Trustee to the [GMY Prescribed Body Corporate] occurred on the 21 December 2015. Each and every EOI that had not run completely through the application process to final lease execution and registration must therefore begin the EOI process afresh directly with the owners of the land now, the [GMY Prescribed Body Corporate]. Any applications made to [Yarrabah] ASC and any unregistered decision by [Yarrabah ASC] is no longer valid in any way.

[Yarrabah ASC] also understand that the [GMY Prescribed Body Corporate] has recently received funding from the Office of Prime Minister and Cabinet to develop a Masterplan for the area and until such time as the Masterplan process is finalised [GMY Prescribed Body Corporate] are unable to progress any EOIs received.

(Errors in original)

Mr Murray’s renewed approach in March 2018

43    In March 2018, Mr Murray decided to make further approaches to the Yarrabah ASC about leasing the Subject Land. On that occasion, he included the GMY Prescribed Body Corporate. He described those approaches in his main affidavit as follows:

In or around March 2018, I decided to recommence discussions about leasing the land because I wanted a decision on the lease issue and I wanted it to be resolved. On 7 March 2018, I wrote to the [GMY Prescribed Body Corporate] and [Yarrabah ASC] requesting an appointment to discuss the lease issue. Annexed to this affidavit and marked “RM-10” is a copy of that letter.

44    Annexure “RM-10” referred to above was relevantly as follows:

To The Directors of [GMY Prescribed Body Corporate] and The [Yarrabah ASC]:

We are enquiring again about the Land and Area West of BackBeach Road at Bloomers Point, Yarrabah Block 383.

We have been waiting to lease the Land. This has gone on for 10 years now. Still no word from anyone, except that “you’re looking into it” We would like to know how many more years it’s going to take for the Board to let us know?

We have rang you, but you say, not to ring, to put it in writing, which we have.

Talking to someone is how we know what is going on. Letters get lost all the time,

We have the money for the 99 year lease, cash upfront.

It has been so long now, we have been writing to the [Yarrabah ASC], or when we come over, noone knows what we are talking about, or have lost the letters and papers.

We need to talk to someone who knows what is going on.

Please ring us on [redacted] at your earliest convenience for an appointment with someone in regards to this.

Thank You

(Errors in original)

The letter dated 2 May 2018 from the GMY Prescribed Body Corporate

45    On 2 May 2018, Mr Murray received a letter in response from the GMY Prescribed Body Corporate. That letter included a notice requiring him to vacate the Subject Land within 60 days. He described its contents in his main affidavit as follows:

On 2 May 2018 I received a letter from the [GMY Prescribed Body Corporate] requiring me to vacate the land. This was the first communication from the [GMY Prescribed Body Corporate] that I received in relation to my occupation of the land. Annexed to this affidavit and marked “RM-11” is a copy of that letter.

46    Annexure “RM-11” referred to above was relevantly as follows:

Re: Expression of Interest for Lease at Bloomis Point, Yarrabah

We refer to the above matter and to your correspondence dated 7 March 2018.

The native title rights and interests for the area in which the land you seek to lease (‘the Land’) lies are held by the Gunggandji-Mandingalbay Yidinji Peoples Prescribed Body Corporate (‘[GMY Prescribed Body Corporate]’) as a result of the native title determination made on 21 September 2012. [The GMY Prescribed Body Corporate] now also has responsibility as Trustee for the same area in accordance with the transfer made under the [ALA] on 21 December 2015.

The [Yarrabah ASC] is no longer the Trustee for the Native Title Area as a result of this transfer and therefore has no authority to progress your expression of interest.

We understand that you have been living on the Land for a number of years. Additionally, you have erected a shed and other infrastructure or improvements on the Land, as well as restricting access to the Land. These actions were taken without the approval of the current or former Trustees or [Yarrabah ASC].

In your correspondence doted 7 March 2018 and your earlier correspondence to the [Yarrabah ASC] dated 7 April 2015, by seeking approval of a 99-year lease, you correctly recognise that you hold no interest in the land on which you are residing.

Please be advised that neither the [Yarrabah ASC] nor [the GMY Prescribed Body Corporate] has granted you personally any right, lease or licence to enter upon, occupy or otherwise use the Land.

This letter is notice requiring you to vacate the Land and remove all of your infrastructure, improvements and other belongings within sixty days from the date of this letter.

You are hereby granted a limited licence to enter upon the Land for the sole purpose of removal of your infrastructure, improvements and other belongings. This licence will expire on 2 July 2018. This licence may be revoked by [the GMY Prescribed Body Corporate] at any time without notice or reason.

In the event that you continue to occupy any part of the Land after 2 July 2018 this letter will be relied upon in court proceedings seeking an order for your removal including any application for costs.

Please direct any queries you may have in relation to this notice to our Solicitor, Mrs Leah Cameron of Marrawah Law via email: [redacted], or via post: 19 Hutchinson Street, Edge Hill CAIRNS QLD 4870, or telephone: [redacted]. Mrs Cameron has been instructed by the [GMY Prescribed Body Corporate] Board of Directors to act on their behalf in relation to this matter.

(Emphasis in original)

Mr Murray’s letter dated 27 June 2018 to the GMY Prescribed Body Corporate

47    In his main affidavit, Mr Murray described his reaction to the GMY Prescribed Body Corporate’s notice to vacate the Subject Land, and the letter he sent in response dated 27 June 2018, in the following terms:

41.    Before receiving that letter, no one had ever told me to vacate the land. I was taken by surprise when I received the letter. I did not know why the [GMY Prescribed Body Corporate] wanted me to vacate it.

42.    On 27 June 2018 I wrote to the [GMY Prescribed Body Corporate] and said that we would not be vacating the land and that we had consent from the traditional owners. Annexed to this affidavit and marked “RM-12” is a copy of that letter.

48    Annexure “RM-12” referred to above was relevantly as follows:

I received your letter, dated 22nd May 2018.

In regards to this, whereas you want us to vacate our Land by the 2nd July 2018.

We will not be vacating, as I have spoken with our Traditional Owners, Henry Miller, Andrew Miller and Family, who on the 29th April 2009 authorised the claim for this area. Through our and their family connections to Granny Tilly Palmer, who is one of our Ancestors.

We have lodged “Expression of Interest” back on the 27th September 2010, to the [Yarrabah ASC]. See attached copies.

The letter dated 13th May 2015, from [Yarrabah ASC] agreed to lease the land to us. See attached copy.

We would like to know why this is being done and what connections you have to our land? Afterall your Innisfail born, we are Yarrabah born.

Kate Steele, Bottoms English Lawyers and [Yarrabah ASC] also have explaining to do as they withheld information not allowing us to progress as a Blockholder.

We were always prepared to pay an upfront lump-sum for the lease of the Land and any additional improvements of Block 383.

We look forward to hearing back from you as soon as possible, in regards to how to resolve Our Land Claim.

(Errors in original)

The District Court Proceeding

49    Finally, it is necessary to provide some details of the District Court proceeding that the GMY Prescribed Body Corporate commenced against the Murray family in 2018, following the exchange of correspondence mentioned above. In his affidavit, Mr Mundraby described the history of that proceeding in the following terms.

45.    On 15 August 2018, the [GMY Prescribed Body Corporate] filed a claim and statement of claim in the District Court of Queensland, proceeding number 141 of 2018 (“the District Court Proceedings”). The claim sought a declaration that the [Murray family’s] occupation of the [GMY Prescribed Body Corporate’s] land was unlawful and orders that the [Murray family] be ordered to remove the unauthorised improvements constructed by them and to deliver possession of the land to the [GMY Prescribed Body Corporate] …

46.    On 17 September 2018, the [Murray family] filed a defence in the District Court Proceedings which pleaded that they are entitled to remain in occupation of the land because they are “Aboriginal People particularly concerned with the land” pursuant to the [ALA] …

47.    On 8 February 2019 an order was made in the District Court proceedings that:

(a)    The [Murray family] be granted leave to file an amended defence;

(b)    The parties provide further particulars, file affidavit material and attempt to reach agreement on facts and documents in preparation for a trial; and

(c)    The matter be reviewed on a date to be fixed by the court.

48.    On 8 February 2019 the [Murray family] filed an amended defence in the District Court Proceedings. In amended defence the [Murray family] plead that they are “Aboriginal People particularly concerned with the land” and that the Determination over the Subject Area allows them to occupy and use the Subject Area …

49.    On 22 February 2019 the [GMY Prescribed Body Corporate] filed an amended reply. The reply states that the matters pleaded in the amended defence are matters of law …

50.    No further steps were taken in satisfaction of the order dated 8 February 2019 by either party.

50    As already mentioned, the District Court proceeding was stayed in June 2020 by agreement of the parties. The present proceeding was commenced on 30 September 2019.

THE ISSUES AND CONTENTIONS

51    The declaration sought by the GMY Prescribed Body Corporate in its originating application was in the following terms:

… By operation of:

(a)    The Deed of Grant of Land in Trust made 27 October 1986 by which the land at Yarrabah described as Lot 308 in Survey Plan 278074 (“the Subject Land”) was granted in fee simple to Yarrabah [ASC];

(b)    The Indigenous Land Use Agreement made in respect of the Subject Land on 12 September 2011 and registered in the Register of Indigenous Land Use Agreements on 28 June 2012 (“Yarrabah DOGIT transfer ILUA”);

(c)    the determination of native title made in respect of the Subject Land on 21 September 2012 (published as Mundraby (on behalf of combined Mandingalbay Yidinji-Gunggandji People v State of Queensland [2012] FCA 1039) (“the 2012 Determination”); and

(d)    The Deed of Grant of Land in Trust made 3 December 2015 [the 2015 DOGIT] by which the [S]ubject [L]and was granted in fee simple to the [GMY Prescribed Body Corporate];

the [Murray family] (whether or not they or any of them are holders of native title or Aboriginal persons particularly concerned with the land under the [ALA]) hold no rights and interests which entitle them to lawfully occupy or take or remain in possession of Subject Land …

(Errors in original)

52    In their written submissions the Murray family stated that, unlike in the District Court proceeding, they did not, in this proceeding, rely on being “Aboriginal persons particularly concerned with the land under the [ALA]”. Consequently, during the hearing of this matter, the GMY Prescribed Body Corporate indicated that it wished to exclude the words in parenthesis from the declaration it sought: “whether or not they or any of them are holders of native title or Aboriginal persons particularly concerned with the land under the [ALA]”.

53    In their joint Statement of Facts, Issues and Contentions, the parties posited the following issues as arising for determination from the GMY Prescribed Body Corporate’s originating application:

The issue between the parties is whether the [Murray family] have a legal right to continue to occupy and use the Subject Land even though the [GMY Prescribed Body Corporate] is:

(a)    the registered owner of an interest in fee simple the Subject Land; and

(b)    the [GMY Prescribed Body Corporate] under the Determination as it applies to the Subject Land.

54    These two documents, in my view, tend to obscure the primary issue in this matter rather than illuminate it. That is so because the details contained in the preface to the declaration sought, and the terms of the two subparagraphs of the statement of the issues to be determined, imply that the main issue in dispute concerns the interaction between the native title rights and interests determined to exist under the Determination, on the one part, and the terms under which the GMY Prescribed Body Corporate holds the fee simple title to the Yarrabah land, including the Subject Land, namely as trustee under the 2015 DOGIT and subject to the terms of the Yarrabah DOGIT Transfer ILUA, on the other. On this issue, it should be noted that there is no dispute that the GMY Prescribed Body Corporate is the registered proprietor of the Subject Land and that the Determination does apply to that Land. Accordingly, I consider the primary issue in this matter is more accurately stated, albeit in slightly different terms, in the concluding words to the declaration sought and the chapeau to the statement of issues. That is: Do the members of the Murray family have any rights to lawfully occupy and remain in possession of the Subject Land? Furthermore, as will appear below, in its contentions, the Murray family relied exclusively on the native title rights and interests that they hold under the Determination to found their occupation and possession of that Land. Since I have ultimately concluded against the Murray family on that issue, that means, in turn, that it is unnecessary to determine the “rights interaction” issue mentioned above. Nonetheless, in deference to the efforts of the parties on that issue, I will briefly summarise the detailed submissions they made with respect to it.

55    Turning to the contentions of the parties, it should be noted at the outset that the Murray family correctly contended, and the GMY Prescribed Body Corporate accepted, that, as the moving party in this proceeding, the GMY Prescribed Body Corporate bears the legal onus of proof. Further, both parties agree that, since the GMY Prescribed Body Corporate has sought a declaration that the Murray family does not hold the requisite rights to occupy and possess the Subject Land, that requires it to prove a negative.

56    In its submissions on the primary issue above, the GMY Prescribed Body Corporate emphasised the undisputed facts already mentioned (at [9]); its status as the appointed registered native title body corporate under the Determination; and the provisions of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). Based thereon, it claimed that the “securing of [the] orderly and disciplined use and occupation of the land and waters covered by the Determination, including the Subject Land, is central to management of native title rights and [one of its] primary function[s]”.

57    Against that background, it contended that the Murray family had failed to identify what their rights or interests in the Subject Land were. Specifically, it claimed that they had failed to identify the nature and duration of the native title rights and interests they assert in respect of the Subject Land; and how, under the traditional law and custom of the native title holders and consistent with the Determination, they became entitled to occupy the Subject Land in 2009. Further, it contended, that “merely belonging to a group which collectively holds native title rights and interests, does not, generally or in the present case, give rise to individual rights capable of exercise at the discretion of the individual concerned”. In addition, it contended that the Murray family’s approach “disregards the distinction between communally held rights (such as those held by the group (for which the [GMY Prescribed Body Corporate] is in this case the agent) and rights or entitlements of subsets of the group or of individuals which may exist within the group which holds native title”, citing Drury v Western Australia (2020) 276 FCR 203; [2020] FCAFC 69 (Drury). Finally, and in any event, it contended that the Murray family had not explained how the second respondent, the wife of Mr Robert Murray, had an entitlement to use and occupy the Subject Land.

58    With respect to the “rights interaction” issue mentioned above, the GMY Prescribed Body Corporate claimed that “the 2015 DOGIT provided for the grant of an interest in fee simple to [it and it] continues to hold that interest”. It contended that: “Whilst ALA s.45 provides, in effect, that native title rights and interest in respect of the Subject Land ‘continue in force’ notwithstanding the above-mentioned grant, beyond affirming that native title rights continue and are not extinguished by such a grant the ALA does not deal with the relationship between the native title rights and non-native title rights such as the [GMY Prescribed Body Corporate’s] fee simple interest (cf. NTA s225(d))”. Instead, it contended, the relationship between the native title rights and interests and the non-native title rights was dealt with in the Determination, in particular, at cl 8 and Schedule 3.

59    Turning next to the Murray family, in their written submissions, they agreed that the issue in dispute was “whether the exercise of native title rights under the Determination by [Mr Robert Murray, Mr Anthony Murray and Mr Maxwell Murray] is a right or interest that authorises them to occupy and possess the Subject Land (with [Mrs Margaret Murray] being present as spouse of [Mr Robert Murray])”. Importantly, in their oral submissions, they contended that “they hold individual and group rights that are carved out of the communal native title that’s recorded in the [Determination]”. In support of these contentions, they pointed to the evidence in Mr Robert Murray’s affidavit that he was a descendant of one of the apical ancestors named in Schedule 1 of the Determination and that, since descent was the basis of transmission of rights under the Determination, his sons (the third and fourth respondents) were also native title holders. They contended that the native title rights and interests concerned gave them “the exclusive right to possess, occupy, use and enjoy the [D]etermination [A]rea under [clause 3] of the Determination”.

60    With respect to the “rights interaction” issue mentioned above, they claimed that there were “five factual matters” the GMY Prescribed Body Corporate needed to establish to obtain the declaration it sought. In respect of each of those matters, it submitted, first, that “[t]he 1986 DOGIT [did] not affect the exercise of exclusive native title rights under the Determination for the Subject Area”. Secondly, that the DOGIT Transfer ILUA did not impose any restrictions on the exercise of native title rights in the Subject Land. Thirdly, while they accepted that cl 9 of the Determination prescribed the relationship between the enjoyment of native title rights and other rights in existence as at 21 September 2012 when the Determination was made, they submitted that “the 2015 DOGIT is not an interest to which cl.9 of the Determination applied, as it is not captured by the chapeau of the clause as one of the ‘other rights and interests’”; and “to the extent that the other rights and interests included the rights of the parties to the DOGIT transfer ILUA, no provision of that ILUA operated to curtail the exercise of native title rights under the Determination in the Subject Land”.

61    Fourthly, they contended that the functions of the GMY Prescribed Body Corporate as a registered native title body corporate under the NTA were irrelevant to the present dispute. Fifthly, and finally, they contended that the 2015 DOGIT was effective on 21 December 2015 and s 45 of the ALA “wholly preserves the exercise of native title rights in the Subject Land under the Determination, such that the [GMY Prescribed Body Corporate] as trustee of the 2015 DOGIT has no authority to curtail the exercise of those native title rights”.

CONSIDERATION

62    It is convenient to begin with some observations on the onus of proof issue upon which both parties agree. In their submissions on that issue, the Murray family cited the following observations of Young CJ in Equity in Blanch t/as Hicksons v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653; [2005] NSWSC 241 (Blanch) at [6]-[7]:

6    The onus is on the plaintiff to establish the ambit of the rights to be declared and to prove all the facts necessary to enable the declaration to be made. Thus in an application for a declaration that land is not restricted by a covenant, the onus is on the plaintiff to prove that it is not so affected. It is not on the defendant to prove that it is affected …

7    The whole question of onus was considered by McLelland CJ in Eq in Massoud v NRMA Insurance Ltd. That was a case where the defendant had cancelled Mr Massoud’s policy alleging that he had knowingly made false statements in connection with his claim. Mr Massoud then commenced declaratory proceedings that the defendant’s purported avoidance of the plaintiff’s policy was wrongful and void. McLelland CJ in Eq held it was up to Mr Massoud to prove that he had not made false statements, notwithstanding the fact that had the matter proceeded in the normal way, the legal or evidentiary onus may have been the other way. His Honour laid down the guiding principles:

“(1)    a party who seeks relief has the burden of satisfying the Court of facts which (in the absence of proof of other facts) would justify the grant of that relief;

    (2)    what those facts are depends principally upon:

(a)    the nature of the relief sought; and

(b)    the operation of any relevant presumptions;

 (3)    in the case of relief by way of declaratory order, the precise terms of the declaration assume particular significance in that (subject to any relevant presumption) the party seeking the declaration has the burden of proof of any matter which is a necessary element of the declaration sought (even if in proceedings by that party for relief of another kind, or in proceedings by the other party, that matter would not arise unless raised (and the burden of proof consequently assumed) by the other party).”

(Citations omitted)

63    This issue of onus of proof and proving a negative proposition has been considered in the context of the NTA, in particular in respect of non-claimant applications. In such applications, an applicant has to prove that no native title exists in the land concerned. In Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 (Worimi), the Full Court made the following observations about the difficulties associated with that task and how it may be discharged (at [80]):

… It is obviously a difficult task to prove a negative proposition. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless be more than a scintilla. It may be determined having regard to the power of the respective parties to adduce relevant evidence, and the extent to which they do so …

(Citations omitted)

64    The latter observation is important. It refers back to the following passage at [71] about Worimi’s (the respondent) role in that proceeding:

… as a matter of commonsense, it was desirable in a case such as the present, but not necessary (subject to the orders by which Worimi was joined as a party), that Worimi give evidence. That is simply the consequence of the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65, 66; 98 ER 969 at 971. In a case where an applicant has the onus of proving a negative proposition, and where another party has a greater means of producing evidence to contradict the negative proposition, that maxim has a particular resonance: Apollo Shower Screens 1 NSWLR at 565 per Hunt J; Purkess v Crittenden (1965) 114 CLR 164 at 167-168, 171.

65    The two authorities upon which the Court relied for the maxim to which it referred were considered relatively recently by another Full Court in Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233. That judgment also concerned two non-claimant applications under the NTA. With respect to Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (Apollo Shower Screens), the Court said (at [60]-[61]):

60    It is clear that the circumstances in a proceeding such as Apollo Shower Screens are quite different to the circumstances of a non-claimant application. It was a proceeding between protagonists known to each other, who had a pre-existing dispute about the application of specific statutory provisions to them.

61    In a non-claimant application, the applicant seeks a negative determination in rem. The potential holders of native title may be unknown to the non-claimant applicant, or they may be known. The composition and constitution of any native title holding group may, in fact, be unknown even to all potential claim group members themselves … Again, all will depend on the circumstances, but that is why resort to maxims, and the borrowing of the application of maxims from adversarial contexts far removed from native title may not, with great respect, be the most useful approach.

66    With respect to Purkess v Crittenden (1965) 114 CLR 164 (Purkess), the Court observed (at [62]) that it related to an award of damages in a personal injury case and, after quoting some observations from the plurality judgment of Barwick CJ, Kitto and Taylor JJ (at 168) and noting the difference in the rights at stake, the Court then went on to say (at [63]):

In a cause of action based on private rights between two specific parties, and on a question such as damages, different principles may apply. In a non-claimant application, it is inappropriate to impose an inevitable or specific evidential burden on respondents, or potential respondents, so that a non-claimant applicant need only to make out a “prima facie” position. That would be a gloss on the application of the usual burden and standard of proof, which applies as much to a non-claimant application as it does to a claimant application.

The Court also noted (at [66]), by reference to an earlier Full Court decision in Badimia (at [48]) that another distinguishing factor was: “[t]he fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations”.

67    While the present application directly concerns the provisions of the NTA and the effect of a determination made under it, it is not a non-claimant application under that legislation. Instead, it is, in my view, more closely aligned to a dispute of the kind that arose in Apollo Shower Screens and Purkess involving two parties, well known to each other, concerning their private rights. That, all the more so, having regard to the fact that this proceeding is the successor of a proceeding commenced in the District Court at Cairns relating to the same parties and the same rights. Furthermore, the declaration sought by the GMY Prescribed Body Corporate will not operate in rem and will not bind “the world”. It will only operate as between the parties to this proceeding, namely the GMY Prescribed Body Corporate, acting as agent for the native title holders, and the named members of the Murray family. Accordingly, I consider the assessment of the evidence in this matter is properly guided by the principles highlighted in Worimi, Apollo Shower Screens and Purkess, including “the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and the power of the other to have contradicted” (see Worimi at [71]).

68    Before turning to weigh that evidence, it is important to identify what it is that the GMY Prescribed Body Corporate is required to establish. That is so because, as Young CJ in Eq said in Blanch, a moving party in the position of the GMY Prescribed Body Corporate must “prove all the facts necessary to enable the declaration to be made”. Further, as McLelland CJ in Equity said in Massoud v NRMA Insurance Ltd (1995) 8 ANZ Insurance Cases ¶61-257 (75,873) (quoted by Young CJ in Equity in Blanch at [62] above), that depends on the “precise terms of the declaration” sought. In this matter, they are, as already mentioned, that the Murray family has no rights to lawfully occupy and possess the Subject Land. However, as also already mentioned, because of the contentions of the parties, particularly those of the Murray family (at [59] above), the relevant factual issues adopt a particular focus, namely whether, under the Determination, the members of the Murray family hold native title rights or interests that permit them to lawfully occupy and possess the Subject Land.

69    Turning, then, to the evidence, since it accepts that it bears the onus of proof in this proceeding, it is appropriate to begin with the evidence adduced by the GMY Prescribed Body Corporate on the primary issue stated above (at [54]). On that issue, its evidence was essentially confined to the Determination; its contents; and the effect thereof. In that respect, it is important to note that s 94A of the NTA requires a determination of native title to “set out details of the matters mentioned in s 225”. Unsurprisingly, therefore, most of the clauses of the Determination set out above (at [17]) follow the structure of s 225 and contain the details of the various matters mentioned in it.

70    Section 225 provides:

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

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

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

(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.

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

71    When one compares this provision with the contents of the Determination (at [17]-[19] above), it can be seen that they correspond closely. First, cl 1 of the Determination corresponds to the words of the chapeau to s 225 in that it answers the question: “whether or not native title exists in relation to a particular area (the determination area) of land or waters”. In the event the answer to that question is in the affirmative, which cl 1 is, s 225 then requires a determination to include the matters set out in sub-sections (a) to (e).

72    Accordingly, cl 2 of the Determination describes “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. It does that by reference to the persons described in Schedule 1 designating them to be the “Native title holders”. Which is to say:

… those Aboriginal People:

who are Mandingalbay Yidinji-Gunggandji People on the basis of descent …

from the 13 named apical ancestors in (a), or who have been recruited in accordance with (b).

73    I interpose to note that the expression “Native title holder” is defined in s 224 of the NTA as follows:

(a)     if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

(b)    in any other case—the person or persons who hold the native title.

In this matter, cl 12 of the Determination provides that the native title rights and interests are not to be held in trust. It follows that the native title holders are defined in accordance with s 224(b) above and comprise the Mandingalbay Yidinji-Gunggandji People as described in cl 2 and Schedule 1 of the Determination (see at [72] above).

74    Returning to the contents of the Determination, and the provisions of s 225, the native title rights and interests held by the Mandingalbay Yidinji-Gunggandji People are described in cll 3 to 7. This complies with the prescription in 225(b) to determine “the nature and extent of the native title rights and interests in relation to the determination area”. In this respect, it is also important to note the terms of s 223, which defines what “[t]he expression native title or native title rights and interests means”. Namely, and relevantly:

… 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.

75    Thus, for example, cl 6(b) states that the native title rights and interests so described are relevantly:

… subject to and exercisable in accordance with:

…

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

76    Continuing with the clauses of the Determination, cl 8, along with Schedule 3, describe the “other” rights and interests in relation to the Determination Area and cll 9 and 10 describe the relationship between the native title rights and interests described in cll 3 and 4 and the other rights and interests described in cl 8. These clauses therefore comply with s 225(c) and (d) respectively.

77    In Drury, after having referred (at [19]-[20]) to the discussion in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 about the distinction between a community of people and a number of separate groups and individuals when considering who holds the communal title comprising the native title rights and interests concerned, the Full Court continued (at [21]-[22]):

[21]    It was noted that notwithstanding the existence of groups and individuals with particular native title rights and interests in Mabo (No 2), the form of declaration made by the Court was global and declared the rights held by all the Meriam people: at [70]. It was also noted that the provisions of the [NTA] had their origins in the majority judgment in Mabo (No 2) “and could not have been intended to undercut the fundamental principle of the communal character of native title”: at [71]. It was emphasised that the laws and customs from which native title rights and interests derive their existence “must necessarily be those of a society or group”: at [77]. Nevertheless, the decision recognised the following two possibilities depending upon the nature of the society said to be the repository of the traditional laws and customs giving rise to the native title rights and interests:

(1)    The members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans (at [79]);

(2)    The members of the relevant society may be dispersed in groups over a large arid or semi-arid area such that an inference of communal ownership by all members of the society may be difficult if not impossible to draw in which case a determination may be made in favour of individuals or small groups who held native title rights under traditional laws of a society of which they are part (at [80]).

[22]    It is a question of fact in each case as to whether the common connection, by reason of the manner in which it is shared, results in communal ownership by all members of the society (which may be shared intramurally) or in communal ownership of particular areas by particular individuals or groups with no communal ownership by the whole society. If communal ownership is found to be held by a particular group rather than the whole society then all the members of that group hold the native title. However, the [NTA] does not contemplate some form of derivative or subsidiary communal native title which is also a native title such that each intramural right or interest possessed by a sub-group or individual has the same character as the community title described in Mabo (No 2).

78    The Court in Drury went on to provide the Full Court decision in De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 as “an example of an instance where ‘the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part’” (Drury at [23]). As well, it referred to the subsequent Full Court decision in Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 (Bodney) where “Finn, Sundberg and Mansfield JJ at [146] summarised the position by stating that s 223(1) ‘envisages three possible native title “owning” entities –– the community (or “society”) under whose laws and customs native title is possessed, a group or groups, and an individual or individuals’ (Drury at [24]).

79    When all these observations are applied to the Determination in this matter, as reviewed above, it is relatively clear, in my view, that the “owning” entity (to borrow from Bodney) of the communal title in this instance is the Mandingalbay Yidinji-Gunggandji People. This is reinforced, if that were necessary, by the fact that there is no mention anywhere in the Determination of any groups of persons, or families, or of any individuals, holding any of the native title rights and interests concerned. Aside from the Determination, the only other evidence adduced by the GMY Prescribed Body Corporate on this primary issue is the statement in Mr Mundraby’s affidavit that the Murray family does not have permission to occupy or remain on the Subject Land (see at [23] above).

80    It is necessary, next, to review the evidence adduced by the Murray family relating to this primary issue. Before doing so, it is important to observe that the Murray family appears to accept the analysis above (at [79]) concerning the “owning” entity, or native title holders of the Subject Land. That is so because, as already alluded to, they have claimed that their right to occupy and possess the Subject Land has been “carved out” of the communal title that was recognised by the Determination (see at [59] above). It follows that they appear to rely upon the first possibility described in Drury (at [21] set out at [77] above). That is, that the rights and interests they hold, as a family, to occupy the Subject Land, were allocated to them intramurally within the Mandingalbay Yidinji-Gunggandji People. It follows further that, if that intramural allocation was made to them, they are likely to have greater means of producing evidence of its existence and terms (see Worimi at [64] above). Indeed, as appears below, Mr Murray’s evidence was largely directed to that question.

81    It is convenient to begin this review of the Murray family’s evidence with Mr Murray’s evidence about his family’s relationship to the Subject Land (see at [21] above). First, at [13] of his affidavit, Mr Murray said he claimed “membership of the native title group for the [Subject Land], and the right to occupy that land”, through his “many relations living at Yarrabah. Many of them are native title holders for the Yarrabah area”. At [14], he identified his apical ancestor, from the list of such ancestors in Schedule 1 to the Determination, as Kutubi/Bertie Harris. Then, at [17]-[23], he described how various members of his extended family related to each other. He identified Granny Caroline and Uncle Hilary as being pivotal to those kin relationships.

82    Next, at [25]-[31] of his affidavit (see at [22] above), Mr Murray described how he and his family came to occupy the Subject Land. Significantly, he said at the outset (at [25]) that he knew “that [Yarrabah ASC] were granting leases to people who were Yarrabah born at that time”. Nonetheless, he claimed (at [26]-[27]) to have obtained permission to build on the Subject Land from Mr Henry Miller and to occupy that land from Mr Andrew Miller and Mr Allanby Ambrum (sometimes spelled as “Ambrym”). While he described each of these persons as “elders”, or “elders for the area”, he did not provide any further information about them, nor, more importantly, their status (if any) within the Mandingalbay Yidinji-Gunggandji People. It is to be noted that they are not mentioned among the members of his extended family in [17]-[23] of his affidavit. Furthermore, while the Determination post-dated the Murray family’s occupation of the Subject Land, and this is not a completely reliable guide, their surnames do not appear among the apical ancestors listed in Schedule 1 to the Determination. However, for what it is worth, it is to be noted that Mr Andrew Miller’s name does appear in paragraph 1(f) of Schedule 3 (see at [19] above).

83    At [28] of his affidavit, Mr Murray also described his discussion with Mr Bobby Patterson concerning “burials in the area”. He provided more information about Mr Patterson’s status, describing him as “a Gunggandji elder”. But then he recorded that Mr Patterson told him that “he didn’t speak for that area because he is from King Beach which is a different part of Yarrabah”. Otherwise the same observations as set out immediately above apply to Mr Patterson.

84    Notwithstanding the fact that he considered he had the “elders permission to occupy the land”, Mr Murray said (at [29]) that he still wanted to obtain “a residential lease” for the land so that he had “certainty that no one else would take my block and the infrastructure (such as sheds, water tanks, a garden and horse paddock) once I built them”. In the pursuit of that objective he described, in his affidavit, the three Expressions of Interest forms he submitted to the Yarrabah ASC. The first of those was submitted in 2009 (described at [24]-[28] above), the second in 2010 (described at [29]-[31] above) and the third in 2014 (described at [32]-[34] above).

85    A number of things is to be noted about those Expressions of Interest. First, I consider they represent a level of acceptance by Mr Murray that the elders’ permission was not sufficient to give certainty to his family’s occupation of the Subject Land. I say “a level of acceptance” because there is his evidence that he erected some sheds on the land soon after he submitted his 2009 Expression of Interest (see at [31] of his affidavit at [22] above) thus indicating some confidence in the effectiveness of the elders’ permission. Secondly, there is the curious discrepancy between his desire to obtain a residential lease of the Subject Land (hence the 2009 Expression of Interest form), and the fact that the 2010 and 2014 forms are expressed to be for commercial purposes.

86    Thirdly, all three forms contained sections which described the applicant’s obligations in respect of the application concerned (see at [27], [30] and [34] above). Common to all of those descriptions were notifications that the applicant may be required to negotiate an ILUA prior to obtaining a lease. In this respect, it is to be noted that an ILUA is a process ordained by the NTA and which may be used both before and after a Determination has been made in respect of an area of land and waters to reach agreement with the putative or actual native title holders about the use that may be made of that area consistent with the protection of any native title rights and interests that may, or do, exist in it. However, despite this notification, when he was ultimately offered a lease over the Subject Land by the Yarrabah ASC in 2015 on the condition that he obtain the consent of the GMY Prescribed Body Corporate, or negotiate a separate ILUA with it (see at [40] above), Mr Murray did not accept that offer. Moreover, in his affidavit, he proffered this explanation for that non-acceptance: “I did not seek that consent because by then, I had been chasing [Yarrabah ASC] for so long and wasn’t getting any outcome. [Yarrabah ASC] had been sending me around in circles so I decided not to bother with seeking the [GMY Prescribed Body Corporate’s] consent. I relied on the consent from the elders who can speak for country” (see at [37] of his affidavit set out at [41] above).

87    Then, notwithstanding having been offered a lease and not accepting that offer, he wrote to the Yarrabah ASC and the GMY Prescribed Body Corporate on 7 March 2018 and asserted among other things that: “We have been waiting to lease the Land. This has gone on for 10 years now. Still no word from anyone, except that ‘you’re looking into it’ We would like to know how many more years it’s going to take for the Board to let us know?” (error in original). Given the terms of this letter, the GMY Prescribed Body Corporate’s response to it on 2 May 2018, giving Mr Murray 60 days to vacate the Subject Land, is not particularly surprising (see at [46] above).

88    Fourthly, and perhaps most importantly, between October 2014 and June 2018, Mr Murray had a series of communications with the Yarrabah ASC and, ultimately, the GMY Prescribed Body Corporate, in which he made a number of significant statements about his family’s right to occupy the Subject Land. First, in his letter to the Yarrabah ASC dated 3 October 2014, he said, among other things that “We can also provide and prove our Family Tree and Grass Roots connection of this Yarrabah area, which we call the Granny Tilly Country” (see at [33] above). He made similar references to “Granny Tilly Country” in his letter to the Yarrabah ASC dated 7 April 2015 (see at [38] above) and his letter to the GMY Prescribed Body Corporate dated 27 June 2018 (see at [48] above). Despite these assertions, there is no mention of “Granny Tilly” anywhere in the body of Mr Murray’s affidavit, including in those paragraphs where he describes his family’s relationships to the Subject Land (see at [21] above). There, it is to be noted, he described a “Granny Caroline” as a pivotal relation (see at [81] above). Nor, apart from the fact it is located in the vicinity of Yarrabah, is there anything to explain what “Granny Tilly Country” is, or how it correlates to the determination area described in the Determination.

89    Next, in the following passages of his letter to the Yarrabah ASC dated 7 April 2015 (see at [38] above), Mr Murray also appears to rely upon: a different land claim to the one that led to the Determination (cf [13]-[14] above); to a different list of apical ancestors than that set out in the Determination (cf at [18] above); and to the laws and customs of a different group of Aboriginal People to those that comprise the native title holders under the Determination:

In relation to Mandingalbay Yidinji Native Title Claim (QG6015/98) that was submitted to the Federal Court, Rigsby’s asserts that Lower Coastal Yidinji (Wanurr-Majay) people still have traditional rights and interests in all the three Yarrabah cluster applications including the Mandingalbay Yidinji claim #2.

Finally, as a respected elder being born in Yarrabah, I have demonstrated through my family history and cultural genealogy connection with my Apical Ancestors as outlined: 1) Njinggungara/Pannikin 2) Nellie Tobi/Pannican 3) Doranga and Tjanpumolo 4) Tilly Palmer 5) Minnie 6) Jack Baker 7) Lydia Murray 8) Larry Thompson/Larry Carney/Loui Waiangai.

Our Apical Ancestors lifestyle and practice of our culture covers an area from Russell River – Lower Russell River – Coffee Plantation – Lower Mulgrave - Russell Heads – Deeral - Bramston Beach - Palmers Point and then onto Yarrabah was based on total kinship with the natural environment. Wisdom and skills obtained over the millennia enabled them to use their environment to the maximum. Traditionally, the Wanyurr-Majay people practices such as killing animals for food or building a shelter were steeped in ritual and spirituality, and carried out in perfect balance with their surroundings. Through my Apical Ancestors I believe the continued practice of ceremonies and cultural activities give me the rights to speak for country throughout Yarrabah and surrounding areas. This demonstrate that I’m am no stranger to the community of Yarrabah Queensland.

(Emphasis added)

90    Finally, and in direct contradiction to the above, in his letter to the GMY Prescribed Body Corporate dated 27 June 2018 (see at [48] above), Mr Murray gave the following explanation for his right to be on the Subject Land: “We will not be vacating, as I have spoken with our Traditional Owners, Henry Miller, Andrew Miller and Family, who on the 29th April 2009 authorised the claim for this area. Through our and their family connections to Granny Tilly Palmer, who is one of our Ancestors” (errors in original).

91    From this review of the evidence adduced, with respect to the primary issue, by both the GMY Prescribed Body Corporate and the Murray family, I have come to the following conclusions, some of which reiterate what is already stated above. First, the GMY Prescribed Body Corporate has established that the title to the Determination area, including the Subject Land, is held communally by that community of Aboriginal People described as the Mandingalbay Yidinji-Gunggandji People.

92    Secondly, the GMY Prescribed Body Corporate has not, in its capacity as the duly appointed registered native title body corporate for those People, given permission to the Murray family to occupy and possess the Subject Land. Thirdly, while I accept that it is possible that the Murray family were allocated rights to occupy and possess the Subject Land intramurally within the Mandingalbay Yidinji-Gunggandji People without the knowledge of their agent, the GMY Prescribed Body Corporate, in the circumstances of this matter they are likely to possess greater means to produce evidence of that fact. Fourthly, however, I am not satisfied on the evidence they have adduced, as reviewed above, that such an intramural allocation did occur. Fifthly, and finally, having regard to these conclusions and weighing all the evidence according to the power of each party to produce it, I consider the GMY Prescribed Body Corporate has established, on the balance of probabilities, that the members of the Murray family have no rights to lawfully occupy and remain in possession of the Subject Land.

CONCLUSION

93    For these reasons, I consider that the GMY Prescribed Body Corporate is entitled to the declaration it has sought, amended as discussed earlier, and to confine it to the primary issue as stated above. Accordingly I propose to make a declaratory order that:

1.    The respondents hold no rights which entitle them to lawfully occupy and remain in possession of the land described as having an area of about 102,595 square metres and located to the west of Backbeach Road, Bloomis Point, near Yarrabah in North Queensland.

Associate:    

Dated:    12 February 2021

SCHEDULE OF PARTIES