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

[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 87 of the Native Title Act 1993 (Cth)

BY CONSENT THE COURT ORDERS THAT:

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

2.The determination will take effect upon the agreements referred to in paragraph 1 of Schedule 4 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) Act2004 (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.

Schedule 1 – DETERMINATION AREA

A.       Description of Determination Area

The Determination Area comprises all of the land and waters described in Part 1 below to the extent that they are within the External Boundary Description as described in Part 2 below, and depicted in the map, excluding the areas described in Schedule 2.

Part 1 – Non-Exclusive Areas

(a)All of the land and waters described in column 1 of the following table and shown on the determination map described in column 2 of the following table:

Area Description	Determination Map Sheet Number
Lot 8 on COG92	Sheet 4
That part of Lot 81 on DL455 that falls within the External Boundary Description	Sheet 1
Lot 56 on WV1314	Sheet 1
Lot 9 on COG16	Sheet 5
Lot 12 on COG64	Sheet 5
Lot 13 on COG97	Sheet 4
Lot 14 on COG97	Sheet 4
That part of Lot 168 on DL342 that falls within the External Boundary Description	Sheet 1
Lot 20 on WV1199	Sheet 2
That part of Lot 21 on WV1334 that falls within the External Boundary Description	Sheet 2
That part of Lot 1 on PER206772 located within the bed and banks of the Maranoa River that falls within the External Boundary Description	Sheet 3
Lot 11 on COG134	Sheet 5
That part of Lot 11 on DL449 that falls within the External Boundary Description	Sheet 1

(b) The waters within the External Boundary Description including but not limited to:

(i)Maranoa River;

(ii)Amby Creek;

(iii)Little Tartulla Creek;

(iv)Stewart Creek.

Part 2 – External Boundary Description

Commencing at a point at Longitude 148.326183° East, Latitude 26.304873° South; being the intersection of the external boundaries of Native Title Determination Application QUD216/08 Bidjara People (QC08/5) and Native Title Determination Application QUD366/08 Mandandanji People (QC08/10), and extending generally southerly along the western boundary of Native Title Determination Application QUD366/08 Mandandanji People (QC08/10) to its intersection with the eastern boundary of Native Title Determination Application QUD6027/01 Gunggari People #2 (QC01/28) at Latitude 27.555703° South, also being a point on the western bank of Maranoa River.

Further described as:

Commencing at a point at Longitude 148.326183° East, Latitude 26.304873° South and extending generally southerly a point on the western bank of Maranoa River at Latitude 27.555703° South, passing through the following coordinate points:

Longitude ° East	Latitude ° South
148.326165	26.308980
148.329173	26.328224
148.330866	26.345408
148.332556	26.363410
148.332484	26.380573
148.339003	26.405988
148.340676	26.428486
148.348077	26.455546
148.355063	26.476879
148.360271	26.501052
148.368160	26.519125
148.376069	26.532294
148.376921	26.540886
148.376876	26.552738
148.376822	26.566633
148.376706	26.596875
148.375779	26.607899
148.373523	26.619317
148.373469	26.633212
148.373411	26.648333
148.373352	26.663454
148.373310	26.674488
148.373243	26.691653
148.373191	26.705139
148.374896	26.722733
148.376610	26.737875
148.379654	26.753031
148.382700	26.767778
148.382653	26.780039
148.383926	26.795584
148.388298	26.811573
148.388250	26.824651
148.388210	26.835277
148.388166	26.847129
148.388135	26.855303
148.385884	26.864269
148.384077	26.872831
148.384051	26.879779
148.384464	26.887958
148.387551	26.892897
148.393308	26.895823
148.401283	26.899183
148.410586	26.903374
148.421223	26.907171
148.430518	26.914222
148.438042	26.920436
148.439339	26.931076
148.443276	26.948694
148.444568	26.960969
148.448540	26.968369
148.453393	26.978231
148.460473	26.986481
148.461324	26.998343
148.467632	27.010703
148.473338	27.027984
148.480403	27.041162
148.485695	27.052690
148.494101	27.065874
148.500287	27.077404
148.506039	27.086879
148.511324	27.100869
148.513491	27.114025
148.514318	27.127584
148.514251	27.141551
148.514189	27.154696
148.514136	27.165788
148.520313	27.181014
148.526945	27.194598
148.533576	27.209004
148.538880	27.220939
148.544172	27.235750
148.548113	27.253840
148.552080	27.265769
148.555154	27.278105
148.561778	27.296206
148.571092	27.312674
148.580410	27.329141
148.587497	27.345188
148.591015	27.359578
148.590956	27.374366
148.590899	27.388742
148.588160	27.402698
148.588107	27.415843
148.588059	27.428165
148.542458	27.474899
148.480010	27.512289

Then generally northerly along the western bank of that river (also being the eastern boundary of Native Title Determination Application QUD6027/01 Gunggari People #2 (QC01/28)) to its intersection with Native Title Determination Application QUD216/08 Bidjara People (QC08/5) at Latitude 26.772304° South; then easterly and generally northeasterly along the boundary of that native tile determination application back to the commencement point.

Further described as:

Then easterly to the eastern bank of Amby Creek at Latitude 26.772400° South; then generally north easterly along that bank to Latitude 26.552557° South; then again generally north easterly passing through the following coordinate points:

Longitude ° East	Latitude ° South
148.192166	26.552277
148.192120	26.552041
148.192111	26.551994
148.192006	26.551727
148.191992	26.551686
148.191923	26.551477
148.191872	26.551105
148.191867	26.551070
148.191738	26.550735
148.191746	26.550538
148.191713	26.550509
148.201601	26.539359
148.220772	26.517489
148.236836	26.483762
148.250696	26.454002
148.272720	26.422215
148.288114	26.398380
148.304238	26.373878
148.324729	26.340774
148.318506	26.315752

Then north easterly back to the commencement point.

Exclusions

This application does not include the land and waters within the following native title determination applications:

·QUD6027/01 Gunggari People #2 (QC01/28) as filed in the Federal Court 23/08/2001 and amended on 15/12/2011.

·QUD216/08 Bidjara People (QC08/5) as filed in the Federal Court 23/07/2008.

·QUD366/08 Mandandanji People (QC08/10) as filed in the Federal Court 06/11/2008.

The application does not include the following waters:

·Eurella Creek;

·Muckadilla Creek;

·Ballaroo Creek; and

·Waters covered by any previous exclusive possession act as defined by the Native Title Act 1993 (Cth).

B.       Map of Determination Area

Schedule 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

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

·these areas were the subject of one or more previous exclusive possession acts, as defined in s 23B of the Native Title Act 1993 (Cth), despite the fact that the areas, or parts of them, may have been subject to earlier acts that extinguished native title; and

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

Public Works Based Exclusions:

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

Schedule 3 – NATIVE TITLE HOLDERS

1.The native title holders are the Gunggari People. The Gunggari People are the biological descendants of the following people:

(a)       Jinnegah;

(b)       Jimmy and Nelly Flourbag;

(c)       Harry Collins;

(d)       Old Frog;

(e)       Coombra Jack;

(f)       Kitty of St George and Maggie of the Moonie;

(g)       King Billy Dick;

(h)       Maria of Tongy Station;

(i)        Harry Rookwood;

(j)        Lucy of the Balonne River;

(k)       Charlotte Moffatt;

(l)        Mary of the Maranoa;

(m)      Nellie Walker;

(n)       Clifton George;

(o)       Mary of Bollon; or

(p)       Kate Meathers/Meadows.

Schedule 4 – OTHER INTERESTS IN THE DETERMINATION AREA

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

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

(a)Marshall Foster, Bradley Saunders, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson (the Gunggari #3 Applicant) and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the Gunggari People #3/Ergon Energy indigenous land use agreement dated 27 October 2014;

(b)Marshall Foster, Bradley Saunders, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson  (the Gunggari #3 Applicant) and the Maranoa Regional Council as parties to the Gunggari People #3/Maranoa Regional Council indigenous land use agreement dated 5 November 2014;

(c)Marshall Foster, Bradley Saunders, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson (the Gunggari #3 Applicant) and Don James Noon and Kim Kelman Noon as parties to the Gunggari People #3/Cedarvale indigenous land use agreement dated 30 October 2014; and

(d)Marshall Foster, Bradley Saunders, Reeghan Finlay, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson (the Gunggari #3 Applicant) and Kaylean Terese Killen and Michael Humphrey Killen as parties to the Gunggari People #3/Drysdale Ponds indigenous land use agreement dated 2 November 2014.

2.The rights and interests of Bronco Energy Pty Limited, PAPL (Upstream II) Pty Limited, KGLNG E & P II Pty Ltd and Total E & P Australia III as the joint holders of Authority to Prospect Number 665 granted under the Petroleum Act 1923 (Qld).

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

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

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

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

(i)rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made;

(ii)rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and

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

4.The rights and interests of the Maranoa Regional Council (“the Council”) as the local government for that part of the Determination Area within the Council’s Local Government Area, including:

(a)the Council’s powers, functions, responsibilities and jurisdiction under Local Government Acts;

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

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

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

(e)the rights of the Council’s employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d).

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

6.The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld) in the Determination Area as may be current as at the date of the determination.

7.The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act, and includes but is not limited to the whole of the lands and waters described as:

(a)Term Lease 236994 comprising Lot 17 on WV1188 being part of Lot 21 on WV1334.

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

(a)waterways;

(b)beds and banks or foreshores of waterways;

(c)stock routes; and

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

9.Any other rights and interests:

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

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

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 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:	5 DECEMBER 2014
PLACE:	AMBY

REASONS FOR JUDGMENT

1. The application before the Court seeks a determination of native title on behalf of the Gunggari People in an area of south-western Queensland. The application is made under s 61(1) of the Native Title Act 1993 (Cth) (“the NTA”). It is known as Gunggari People #3 application.

2. The parties have reached agreement and ask the Court to make orders in terms they have agreed without holding a hearing.

3. The Court is satisfied that it is appropriate to make the agreed orders.  The Court will determine that native title is held by the Gunggari People in the determination area.  The Court will also determine, amongst other things, the nature and extent of the native title rights and interests and the relationship between native title rights and interests and other interests in the determination area.

4. By the Court’s orders, the Australian community collectively recognises the status of the Gunggari People as the traditional owners of the land and waters in the determination area.  It is important to emphasise that the Court’s orders do not grant that status.  The Court orders merely recognise that they are the traditional owners and have been since before the European settlement. 

5. There has already been a determination of native title in favour of the Gunggari People in an area adjoining the southern and western portions of the present determination area:  Kearns on behalf of the Gunggari People #2 v State of Queensland [2012] FCA 651. In his reasons for judgment, Reeves J noted that the first application for a determination of native title on behalf of the Gunggari People was commenced in 1996. Since then their claims have had a long and complicated procedural history. A part of that history is set out in the frequently cited decision of Emmett J in Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109. The present determination is an important step towards the final resolution of the Gunggari People’s claims.

6. The determination is in respect of land and waters covering an area of approximately 4,166 km², situated roughly between the towns of Amby and Muckadilla in the north and Begonia, approximately 55 km north of St George, in the south.  The determination covers a 120 km stretch of the Maranoa River from its junction with Amby Creek southerly to Begonia. 

7. The State of Queensland, the Maranoa Regional Council, KGLNG E&P II Pty Ltd, PAPL (Upstream II) Pty Ltd, Santos QNT Pty Ltd, Total E&P Australia III, Ergon Energy Corporation Limited, Kaylean Terese Killen, Michael Humphrey Killen, Don James Noon, Kim Kelman Noon and Paul Steinohrt are respondents to the application. 

   The Gunggari People, their society and history

8. The evidence relied on by the applicant includes affidavits of Ethel Munn, Gordon Munn, Lynette Nixon, Bernys Falkner, Reeghan Finlay, Irene Ryder and Wayne Dodd.  The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance:  Sampi v Western Australia [2005] FCA 777 at [48] per French J.

9. The evidence also include four reports prepared by an anthropologist, Dr Natalie Kwok.  Those reports are thoroughly researched, detailed and comprehensive. 

10. The affidavits and the anthropological reports are important, not only for this case, but as records of the history of the Gunggari People.  They deserve to be read in full.  For present purposes, I can only provide a brief summary of the evidence before the Court. 

11. The Gunggari People are the biological descendants of the following persons:

    (a)Jinnegah;

    (b)Jimmy and Nelly Flourbag;

    (c)Harry Collins;

    (d)Old Frog;

    (e)Coombra Jack;

    (f)Kitty of St George and Maggie of the Moonie;

    (g)King Billy Dick;

    (h)Maria of Tongy Station;

    (i)Harry Rookwood;

    (j)Lucy of the Balonne River;

    (k)Charlotte Moffatt;

    (l)Mary of the Maranoa;

    (m)Nellie Walker;

    (n)Clifton George;

    (o)Mary of Bollon; or

    (p)Kate Meathers/Meadows.

12. The ethnographic literature records that there are a number of different recordings of the name “Gunggari”, principally Gugari, Gungayi, Gungga, Gugayi, Unggari and Unggay. 

13. The evidence establishes that at sovereignty the Gunggari People were a distinct people with a distinct dialect and territory.  They were united by a sense of shared affinity, a shared name, dialect, a distinctive set of section names and by possession of a unique corpus of myths, songs, designs and ritual practice. 

14. The principle of descent is likely to have been paramount in determining affiliations to country.  Members of the landholding group enjoyed primary rights of identity with their country, access and use rights, authority over and responsibility for the land and sites and spiritual affiliation with it.

15. The first European contact with the Aboriginal people of the Maranoa district was by Roderick Mitchell, the Assistant Commissioner of Crown Lands for the Liverpool district, in the period from 1844 to 1846.  In 1846, Thomas Mitchell, Roderick Mitchell’s father, led an expedition which traversed directly through the Gunggari claim area.  Mitchell recorded numerous encounters, some friendly and some hostile, with Aboriginal people in the area and recorded that such people occupied the area and asserted territorial interests. 

16. The Maranoa district was settled by Europeans from 1847.  The settlement of the Maranoa district was met with concerted resistance on the part of the Aboriginal inhabitants, who targeted both the settlers and their livestock.  The area to the west of the Maranoa River was settled from about 1861. 

17. From the 1860s, the combined effects of direct violence from European settlers and the Native Mounted Police, enforced alienation from water and food resources, environmental degradation and introduced diseases resulted in a decline of the Gunggari population.  However, the Gunggari People continued to maintain a strong presence on their country and hosted and participated in ceremonial gatherings up until the early 1900s. 

18. Large Aboriginal camps were established on pastoral stations in and around the claim area including Tommo, Tongy, Bonus Downs, Albany Downs and Bindebango.  Many of the Gunggari People worked on the stations.

19. The first removals under the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld) from the Maranoa district occurred in 1901.  From 1914 to 1941, many Gunggari were removed to government reserves and missions including Taroom, Purga, Barambah or Cherbourg, Palm Island and Woorabinda.  Those who remained on country increasingly converged on the township of Mitchell. 

20. By the 1920s and 1930s the Top Yumba, an Aboriginal fringe settlement on the Maranoa River, had come to house a large collection of Gunggari families who had managed to avoid removal.  In 1936, after the local council ordered dispersal of the Top Yumba, a new reserve was established downstream on the east side of the river.  The site, known as the Bottom Yumba, became the home for many years of a number of Gunggari families. 

21. In 1967, the Gunggari community was again forcibly disbanded under Council orders.  Nevertheless the people continued to meet on the Yumba and engage socially. 

22. Despite the considerable geographic dispersal of the Gunggari People, they have maintained their society. 

23. It is evident from the affidavits and Dr Kwok’s reports that there has been substantial continuity of Gunggari traditional laws and custom up until the present.  For example, the totemic system continues to be significant amongst contemporary Gunggari People, including acknowledgement and adherence to marriage rules.  There is continued transmission and retention of cultural knowledge amongst the Gunggari People.  Many of the Gunggari recount how their parents, grandparents, aunts and uncles and other Gunggari elders have taught them stories about Gunggari country and the Gunggari laws.  These include creation stories, lessons about the bush and bush foods and proper behaviour. 

24. The Gunggari People continue to believe that their ancestor spirits inhabit the country.  The spirits of the land are known as Yumbinjurra and they are believed to be all around, are protectors and can be heard if one listens closely enough.

25. The Gunggari People conduct smoking ceremonies in connection with death, as a blessing, and as an initiation rite when entering country, as a cleansing ritual to ward off bad spirits for healing.  Some claimants remember their families conducting smoking ceremonies to cleanse new homes of bad spirits and to ward off bad dreams.

26. Gunggari People have knowledge of many sites of significance, such as camp sites, burial sites, battle sites, waterholes and wells, artefact sites and other important places.  Such sites are located throughout the claim area and beyond, in places such as Mitchell, Mungallala, Bonus Downs, Tongy, Tomoo, Abieglassie, Woodlands, Dunkeld, Teaswater, Amby, Womblebank, Morven, Albany Downs, Cashmere, Hillsborough, Lussvale, Cytheream, Thirsty Downs, Rockybank, Grassmere and Bindebango.

27. Hunting, fishing and gathering is a part of the Gunggari People’s everyday lives.  They hunt kangaroo, emu, echidna, sand goanna, ducks and pigeons.  They fish for yellow belly cod and jew fish.  They gather witchetty grubs, yabbies, mussels and other small animals.  In addition, they collect resources such as honey, ochre and other plants. 

28. The Gunggari People have a detailed knowledge of the best methods of preparing various types of bush tucker.  They practice bush remedies, including using gum leaves for breathing maladies and boiling up supplejack leaves for sore ankles, shins and muscular pains.  The umbi umbi bush is boiled to treat ailments such as sickness, sores or as an ointment for massage.  

29. The Gunggari People have maintained a continuous presence on their country, despite the pressures of colonisation. 

30. The evidence demonstrates that the Gunggari People have held rights and interests in the determination area under their traditional laws and customs since prior to sovereignty and have continued to do so to the present time.  They have also continued to exist as a society.

    The rights and interests

31. The evidence establishes, and the parties are agreed, that the nature and extent of the native title rights and interests in relation to the determination area are 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.

32. The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others.  The rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth and the traditional laws acknowledged and the traditional customs observed by the native title holders. 

33. The orders that the Court will make set out the nature and extent of other interests in relation to the determination area and the relationship between native title rights and interests and the other interests. 

    Section 87

34. Section 87 of the NTA empowers the Court to make a determination over a claim area in accordance with the orders agreed between the parties without conducting a hearing. The policy reflects objective of the NTA of resolving claims by agreement and without the need for litigation.

35. The Court is able to make a determination by consent without a hearing under s 87 if the following conditions are met:

    (a)each of the parties to the proceeding have reached agreement on a proposed determination of native title in respect of the claim area: s 87(1)(a);

    (b)the period specified in the notice given under s 66 of the NTA has ended: s 87(1);

    (c)the terms of the proposed determination agreement are in writing and have been signed by or on behalf of each of those parties, and a copy filed with the Court: s 87(1)(b);

    (d)the Registrar has given notice of the filing agreed statement of facts to the other parties to the proceeding: s 87A(3);

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

    (f)the Court considers that making such an order would be appropriate: s 87(2).

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

37. These principles have been considered and applied in many decisions of this Court. I consider that it is appropriate to apply them in the present proceeding.

38. Section 94A of the NTA requires the Court to set out details of the matters mentioned in s 225 when making a determination of native title. Section 225 of the NTA defines a determination of native title as follows:

    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 and 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.

39. I accept, by reference to the s 87 agreement, that s 225(a) of the NTA is satisfied. I also accept that the agreement complies with the requirements of s 225(b)-(e) of the NTA.

40. I am satisfied that the requirements of s 87 of the NTA have been fulfilled. I note that:

    (a)the period specified notice given under s 66 of the NTA ended on 9 July 2013: ss 66(1)(c) and 87(1);

    (b)the parties have reached agreement on a proposed determination of native title in respect the area covered by the application: s 87A(1)(b);

    (c)the parties have recorded their agreement and filed a copy of its terms with the Court on 20 June 2014: s 87(1)(b);

    (d)an order in, or consistent with, the terms proposed in the parties’ agreement is within the Court’s power because:

    (i)the application is valid and made in accordance with s 61 of the NTA;

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

    (iii)the s 87 agreement filed by the parties complies with ss 94A and 225 of the NTA: s 87(2).

1. I consider that it is appropriate that the Court make a determination in terms of the parties’ agreement because:

   (a)All but one party is legally represented, and I am satisfied that the party who is not legally represented has consented knowing the evidence and the terms of the proposed determination;

   (b)the State of Queensland, acting on behalf of the community generally, has played an active role in the negotiation of the proposed determination and is satisfied that the determination is justified in all the circumstances; and

   (c)the parties have agreed upon the nature and extent of native title rights and interests in relation to the determination area.

   Prescribed Body Corporate

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

3. The nomination is supported by the affidavit of Rebecca Guppy-Coles affirmed on 22 October 2014, which deposes that on 16 October 2014, Ms Reeghan Finlay, a Gunggari person and member of the applicant, formally nominated the Gunggari Aboriginal Corporation to be the prescribed body corporate for the purposes of s 56(2)(a) of the NTA. Ms Guppy-Coles further deposes that the Gunggari Aboriginal Corporation has consented to such nomination.

4. Accordingly, the Court determines that the Gunggari Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 56(1) of the NTA.

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

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:

Dated:       5 December 2014