Foster on behalf of the Gunggari People #3 v State of Queensland

Case [2014] FCA 1318

FEDERAL COURT OF AUSTRALIA

Foster on behalf of the Gunggari People #3 v State of Queensland [2014] FCA 1318

Citation: Foster on behalf of the Gunggari People #3 v State of Queensland [2014] FCA 1318
Parties: MARSHALL FOSTER, REEGHAN FINLAY, JAMIE ROBERT FRID, DON HARDING, GRANT JACKSON, BRADLEY SAUNDERS and MICHELLE SAUNDERS ON BEHALF OF THE GUNGGARI PEOPLE #3 v STATE OF QUEENSLAND, MARANOA REGIONAL COUNCIL, KGLNG E&P II PTY LTD, PAPL (UPSTREAM II) PTY LTD, SANTOS QNT PTY LTD ABN 33 083 077 196, TOTAL E&P AUSTRALIA III, ERGON ENERGY CORPORATION LIMITED, KAYLEAN TERESE KILLEN, MICHAEL HUMPHREY KILLEN, DON JAMES NOON, KIM KELMAN NOON and PAUL STEINOHRT
File number: QUD 548 of 2012
Judge: RANGIAH J
Date of judgment: 5 December 2014
Catchwords: NATIVE TITLE – consent determination – requirements under s 87 of the Native Title Act 1993 (Cth) – agreement of parties
Legislation: Native Title Act 1993 (Cth) ss 13(1)(a), 55, 56, 56(2)(a), 56(3), 57 61(1), 66, 87, 94A, 225, 225(a), 225(b)-(e)
Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld)
Cases cited: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 cited
Kearns on behalf of the Gunggari People #2 v State of Queensland [2012] FCA 651 cited
Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 cited
Nangkiriny v State of Western Australia (2002) 117 FCR 6 cited
Sampi v Western Australia [2005] FCA 777 cited
Date of hearing: 5 December 2014
Date of last submissions: 12 November 2014
Place: Amby
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 45
Solicitor for the Applicant: Mr C Reiach of Queensland South Native Title Services Limited
Solicitor for the First Respondent: Ms A Cope of Crown Law
Solicitor for the Second and Seventh Respondents: Mr C Graham of MacDonnells Law
Solicitor for the Third, Fourth, Fifth and Sixth Respondents: Did not appear
Solicitor for the Eighth, Ninth, Tenth and Eleventh Respondents: Did not appear
Solicitor for the Twelfth Respondent: Did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 548 of 2012
BETWEEN:

MARSHALL FOSTER, REEGHAN FINLAY, JAMIE ROBERT FRID, DON HARDING, GRANT JACKSON, BRADLEY SAUNDERS, MICHELLE SAUNDERS ON BEHALF OF THE GUNGGARI PEOPLE #3
Applicant
AND:

STATE OF QUEENSLAND
First Respondent

MARANOA REGIONAL COUNCIL
Second Respondent

KGLNG E&P II PTY LTD
Third Respondent

PAPL (UPSTREAM II) PTY LTD
Fourth Respondent

SANTOS QNT PTY LTD ABN 33 083 077 196
Fifth Respondent

TOTAL E&P AUSTRALIA III
Sixth Respondent

ERGON ENERGY CORPORATION LIMITED
Seventh Respondent

KAYLEAN TERESE KILLEN
Eighth Respondent

MICHAEL HUMPHREY KILLEN
Ninth Respondent

DON JAMES NOON
Tenth Respondent

KIM KELMAN NOON
Eleventh Respondent

PAUL STEINOHRT
Twelfth Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

5 DECEMBER 2014

WHERE MADE:

AMBY

THE COURT ORDERS THAT:

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s…

Continue reading Foster on behalf of the Gunggari People #3 v State of Queens...

Sign in free to access the full text

Details
AGLC
Foster on behalf of the Gunggari People #3 v State of Queensland [2014] FCA 1318
Case
[2014] FCA 1318
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Foster on behalf of the Gunggari People #3 v State of Queensland involves a consent determination regarding native title rights and interests. The Gunggari People, represented by Foster, sought recognition of their native title over a specific area of land and waters in Queensland. The State of Queensland did not oppose the claim and agreed to the terms of the determination. The court was tasked with deciding the legal issues concerning the existence, nature, and extent of the native title rights and interests, as well as the relationship between these rights and other interests in the land, such as mining and petroleum rights.

The court considered the requirements under section 87 of the Native Title Act 1993 (Cth), which mandates that a consent determination must be in writing, agreed upon by all parties, and approved by the court. The court examined the evidence and submissions from both parties to ensure that the agreement fully and fairly addressed the native title rights and interests of the Gunggari People. The court found that the agreement met the statutory requirements and accurately reflected the traditional laws and customs of the Gunggari People.

The court approved the consent determination, which sets out the native title rights and interests of the Gunggari People, including the specific area over which native title is recognised, the nature and extent of the rights and interests, and the relationship with other interests in the land. The determination also provides for the Gunggari Native Title Aboriginal Corporation RNTBC to act as the prescribed body corporate for the native title holders. The court ordered that the determination would take effect upon the registration of certain agreements and set out the consequences if those agreements were not registered within the specified timeframe. The court also ordered that each party bear their own costs.

This case highlights the process of reaching a consent determination in native title matters and the court's role in ensuring that the agreement is legally sound and reflects the traditional rights and interests of the native title holders. The decision provides a clear framework for the recognition and protection of native title rights and interests in the context of other interests in the land.

Orders

Orders of the court

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

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

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

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

BY CONSENT THE COURT DETERMINES THAT:

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

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

7. The native title is held by the Gunggari People described in Schedule 3 (“the native title holders”).

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

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

(b) camp and for that purpose erect temporary shelters;

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

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

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

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

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

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

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

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

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

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

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

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

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

13. The relationship between the native title rights and interests described in paragraph 8 and the other interests described in Schedule 4 (the “other interests”) is that:

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

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

Definitions and Interpretation

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

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

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

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

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

“Natural Resources” means:

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

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

that have traditionally been taken and used by the native title holders;

“Reserves” means reserves that are dedicated or taken to be reserves under the Land Act 1994 (Qld);

“Water” means:

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

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

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

THE COURT DETERMINES THAT:

15. Upon the determination taking effect:

(a) The native title is held in trust;

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

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

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.