Hart on behalf of the Djiru People #2 v State of Queensland
[2011] FCA 1056
•1 September 2011
FEDERAL COURT OF AUSTRALIA
Hart on behalf of the Djiru People #2 v State of Queensland [2011] FCA 1056
Citation: Hart on behalf of the Djiru People #2 v State of Queensland [2011] FCA 1056 Parties: DAWN HART, JOHN ANDY, BERYL BULLER, JOHN CLUMPOINT, RAE KELLY, MARGARET MURRAY AND CHARITY RYAN ON BEHALF OF THE DJIRU PEOPLE #2 v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, CASSOWARY COAST REGIONAL COUNCIL, ERGON ENERGY CORPORATION LIMITED, GARY BAINBRIDGE, DAVID CARACCIOLO, JOHN COOK, ANDREW GIBSON, TED B KOY, NOEL LOLLBACK, RUSSELL WILLIAM MARRIAGE, TREVOR LAWRENCE PURKIS, LESLIE JOHN STEPHENS AND BARRY WILSON, EL ARISH SPORTS AND RECREATIONAL ASSOCIATION INC and NORTH QUEENSLAND CLUMP MOUNTAIN PROJECT COOPERATIVE SOCIETY LIMITED
DAWN HART, JOHN ANDY, BERYL BULLER, JOHN CLUMPOINT, RAE KELLY, MARGARET MURRAY AND CHARITY RYAN ON BEHALF OF THE DJIRU PEOPLE #3 v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, CASSOWARY COAST REGIONAL COUNCIL AND ERGON ENERGY CORPORATION LIMITED
File numbers: QUD 6003 of 2003
QUD 6006 of 2003Judge: DOWSETT J Date of Consent Determination: 1 September 2011 Place: Mission Beach Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 26 In matter QUD 6003 of 2003 Solicitor for the Applicant: Ms L Brown of North Queensland Land Council Solicitor for the First Respondent: Mr J Heaney of Crown Law Solicitor for the Second Respondent: Mr B Powell of Australian Government Solicitor Solicitor for the Third, Fourth and Sixth Respondents: Ms J Humphris of MacDonnells Law Solicitor for the Fifth Respondents: Mr P Gore of Gore & Associates Solicitor for the Seventh Respondent: Mr T Cameron of Williams Graham Carman Solicitors In matter QUD 6006 of 2003 Solicitor for the Applicant: Ms L Brown of North Queensland Land Council Solicitor for the First Respondent: Mr J Heaney of Crown Law Solicitor for the Second Respondent: Mr B Powell of Australian Government Solicitor Solicitor for the Third and Fourth Respondents: Ms J Humphris of MacDonnells Law
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6003 of 2003
BETWEEN: DAWN HART, JOHN ANDY, BERYL BULLER, JOHN CLUMPOINT, RAE KELLY, MARGARET MURRAY AND CHARITY RYAN ON BEHALF OF THE DJIRU PEOPLE #2
ApplicantAND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentCASSOWARY COAST REGIONAL COUNCIL
Third RespondentERGON ENERGY CORPORATION LIMITED
Fourth RespondentGARY BAINBRIDGE, DAVID CARACCIOLO, JOHN COOK, ANDREW GIBSON, TED B KOY, NOEL LOLLBACK, RUSSELL WILLIAM MARRIAGE, TREVOR LAWRENCE PURKIS, LESLIE JOHN STEPHENS AND BARRY WILSON
Fifth RespondentsEL ARISH SPORTS AND RECREATIONAL ASSOCIATION INC
Sixth RespondentNORTH QUEENSLAND CLUMP MOUNTAIN PROJECT COOPERATIVE SOCIETY LIMITED
Seventh Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
1 SEPTEMBER 2011
WHERE MADE:
MISSION BEACH
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.This Determination takes effect upon the making of the Order.
THE COURT DETERMINES THAT:
1.The determination area is the land and waters described in Schedule 1, and shown on the plans attached to Schedule 1 (the “Determination Area”).
2.Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1.
3.The native title is held by the Djiru People described in Schedule 2 (the “native title holders”).
4.Subject to paragraphs 7, 8 and 9 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:
(a)other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
(b)in relation to Water, the non-exclusive rights to:
(i)hunt, fish and gather from the Water of the area; and
(ii)take and use the Water of the area for personal, domestic and non-commercial communal purposes.
5.Subject to paragraphs 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 above the High Water Mark are the non-exclusive rights to:
(a)access, be present on, move about on and travel over the area;
(b)camp on the area and, for that purpose, erect temporary shelters on the area;
(c)hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(d)take, use, share and exchange Natural Resources from the land and waters for personal, domestic and non-commercial communal purposes;
(e)take and use the Water of the area for personal, domestic and non-commercial communal purposes;
(f)conduct ceremonies on the area;
(g)be buried and bury native title holders within the area;
(h)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(i)teach on the area the physical and spiritual attributes of the area; and
(j)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
6.Subject to paragraphs 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 below the High Water Mark are the non-exclusive rights to:
(a)access, be present on, move about on and travel over the area;
(b)hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
(c)take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d)conduct ceremonies on the area;
(e)maintain places and areas of importance or significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; and
(f)teach on the area the physical and spiritual attributes of the area.
7.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.
8.The native title rights and interests referred to in paragraphs 4(b), 5 and 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
9.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).
10.The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
11.The relationship between the native title rights and interests described in paragraphs 4, 5 and 6 and the other interests described in Schedule 3 (the “other interests”) is that:
(a)the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b)to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c)the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
12. The native title is not held in trust.
13.The Djiru Warrangburra Aboriginal Corporation, ICN 7257, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(a)be the prescribed body corporate for the purpose of ss 57(2) and 57(3) of the Native Title Act 1993 (Cth); and
(b)perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
14. In this Determination, unless the contrary intention appears:
“High Water Mark” means the ordinary high-water mark at spring tides;
“land” and “waters”, respectively, have the same meanings as in the Native Title Act 1993 (Cth);
“Laws of the State and the Commonwealth” means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
“Natural Resources” means:
(a)any animal, plant, fish and bird life found on or in the Determination Area; and
(b)any clays, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders, but does not include:
(c)minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld), and
“Water” means:
(a)water which flows, whether permanently or intermittently, within a river, creek or stream;
(b)any natural collection of water, whether permanent or intermittent;
(c)water from an underground water source; and
(d)tidal water.
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).
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, excluding any area of land and waters on which any other public work, as defined in s 253 of the NTA, is constructed, established or situated, and to which ss 23B(7) and 23C(2) of the NTA and/or s 23B(7) of the NTA 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 NTA.
Part 1 Exclusive Areas
All of the land and waters described in columns 1 and 2 of the following table and shown on the determination plan described in column 3 of the following table:
Area Description
(at time of Determination)Area Description
(at time of claim)Lot on Determination Plan Lot 6 on Plan NR5195* Lot 6 on Plan NR5195 Lot 27 on Plan AP20078 Lot 113 (Pt) on Plan NPW876 Lot 113 (Pt) on Plan NPW631 Lot 28 on Plan AP20078 ‘*’ denotes areas to which s 47A of the Native Title Act 1993 (Cth) applies.
Part 2 Non-Exclusive Areas
All of the land and waters described in columns 1 and 2 of the following table and shown on the determination plan described in column 3 of the following table:
Area Description
(at time of Determination)Area Description
(at time of claim)Lot on Determination Plan Lot 1 on Plan AP13775 Lot 1137 (Pt) on Plan AP6378 Lot 25 on Plan AP20078 Lot 2 on Plan AP13775 Lot 1137 (Pt) on Plan AP6378 Lot 25 on Plan AP20078 Lot 480 on Plan CP881723 Lot 480 on Plan CP881723 Lot 5 on Plan AP20078 Lot 560 on Plan CWL1993 Lot 560 on Plan CWL1993 Lot 14 on Plan AP20078 Lot 617 on Plan CWL3370 Lot 617 on Plan CWL3370 Lot 21 on Plan AP20078 Lot 109 on Plan CWL3519 Lot 109 on Plan CWL3519 Lot 19 on Plan AP20078 Lot 113 on Plan E7291 Lot 113 on Plan E7291 Lot 7 on Plan AP20078 Lot 705 on Plan E7295 Lot 705 on Plan E7295 Lot 26 on Plan AP20078 Lot 601 on Plan E7298 Lot 601 on Plan E7298 Lot 8 on Plan AP20078 Lot 1445 (Pt) on Plan NPW191 Lot 1445 (Pt) on Plan NPW191 Lot 4 on Plan AP20078 Lot 115 (Pt) on Plan NPW502 Lot 115 (Pt) on Plan NPW502 Lot 25 on Plan AP20078 Lot 113 (Pt) on Plan NPW876 Lot 113 (Pt) on Plan NPW631 Lot 22 on Plan AP20078
Lot 23 on Plan AP20078
Lot 24 on Plan AP20078Lot 25 on Plan AP20078
Lot 114 on Plan SP123190 Lot 113 (Pt) on Plan NPW631 Lot 25 on Plan AP20078 Lot 66 (Pt) on Plan NPW890 Lot 758 (Pt) on Plan AP6343 Lot 11 on Plan AP20078 Lot 55 (Pt) on Plan NPW896 Lot 757 (Pt) on Plan AP6355 Lot 2099 (Pt) on Plan AP6367 Lot 1 on Plan AP20078
Lot 11 on Plan AP20078
Lot 13 on Plan AP20078
Lot 171 (Pt) on Plan NPW902 Lot 190 (Pt) on Plan AP6366 Lot 25 on Plan AP20078 Lot 173 on Plan NPW960 Lot 1137 (Pt) on Plan AP6378 Lot 25 on Plan AP20078 Lot 301 on Plan NR1612 Lot 301 on Plan NR1612 Lot 13 on Plan AP20078 Lot 109 on Plan NR2085 Lot 109 on Plan NR2085 Lot 3 on Plan AP20078 Lot 306 (Bal) on Plan NR2305 Lot 306 (Bal) on Plan NR2305 Lot 12 on Plan AP20078 Lot 451 (Pt) on Plan NR4272 Lot 451 on Plan NR4272 Lot 17 on Plan AP20078 Lot 64 on Plan NR4624 Lot 64 on Plan NR4624 Lot 2 on Plan AP20078 Lot 52 on Plan NR6006 Lot 52 on Plan NR6006 Lot 10 on Plan AP20078 Lot 112 on Plan NR6007 Lot 112 on Plan NR6007 Lot 12 on Plan AP20078 Lot 543 on Plan NR6994 Lot 543 on Plan NR6994 Lot 15 on Plan AP20078 Lot 544 on Plan NR6994 Lot 544 on Plan NR6994 Lot 16 on Plan AP20078 Lot 16 (Pt) on Plan NR7309 Lot 16 (Pt) on Plan NR7309 Lot 9 on Plan AP20078 Lot 540 on Plan NR7350 Lot 540 on Plan NR7350 Lot 18 on Plan AP20078 Lot 550 on Plan NR7351 Lot 550 on Plan NR7351 Lot 18 on Plan AP20078 Lot 198 (Pt) on Plan NR7854 Lot 198 (Pt) on Plan NR7854 Lot 6 on Plan AP20078 Lot 366 on Plan NR839145 Lot 366 on Plan NR839145 Lot 25 on Plan AP20078 Lot 367 on Plan NR839146 Lot 367 on Plan NR839146 Lot 25 on Plan AP20078 Lot 3 (Pt) on Plan SP125434 Lot 3 (Pt) on Plan SP125434 Lot 20 on Plan AP20078 B. Determination Plans
SCHEDULE 2 – NATIVE TITLE HOLDERSThe Djiru People means those persons who are:
(i)The Clumpoint, Geia, Spencer, Nona and Sarabo family groups being the descendants of Polly Illich and her descendants Biddy Illich, Paddy Illich and Major Clumpoint.
(ii)The Masina, Andy, Mow, Mooner, Assan and Ryan family groups being the descendants of siblings Minnie (Buynoo), Rosie (Koojilun), Maggie and Kitty Nguyam.
(iii)The Barney, Dickman and Thaiday family groups being the descendants of Toby King and Nellie and their son Barney King.
(iv)The Palmer and Obah family groups being the descendants of Lucy Palmer and her children Alf Palmer, Daisy Obah and Daphne Palmer.
(v)The Nullajar family group being the descendants of Bobby Nullajar and his son, Mick Nullajar.
(vi)The Parker family group being the descendants of Charlie Mungoola (also known as Charlie Mungalla).
(vii)The Banfield, Bonner, Thimble and Pickles family groups being the descendants of Jimmy Banfield and his mother.
(viii) And includes persons adopted by any of those descendants according to the traditional laws and customs of the claim group.
SCHEDULE 3 – 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 Cassowary Coast Regional Council under:
(a)the Local Government Act 2009 (Qld) for that part of the Determination Area within its local government area, as defined in that Act, including:
i)as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this Determination; and
ii)to enter and exercise rights within the Determination Area,
(b)an Indigenous Land Use Agreement between Dawn Hart, John Clumpoint, Charity Ryan, Beryl Buller, Rae Kelly, Margaret Murray and John Andy on their own behalf and on behalf of the native title holders and the Cassowary Coast Regional Council registered on 29 April 2010.
2.The rights and interests of the holder of an authority, licence, permit or permission granted under the Fisheries Act 1994 (Qld) or any Fisheries Regulation made under that Act that authorises a commercial fishing operation in the waters of the Determination Area as may be current as at the date of this Determination.
3. The rights and interests of Ergon Energy Corporation Limited (CAN 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 of this Determination; and
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 to inspect, maintain and manage any Works in the Determination Area,
(d)under an Indigenous Land Use Agreement between the native title holders and Ergon Energy Corporation Limited dated 9 March 2011.
4.The rights and interests of the North Queensland Clump Mountain Project Cooperative Society Limited pursuant to a written agreement dated 4 October 1996 between the North Queensland Clump Mountain Project Cooperative Society Limited as licensee and the Cooperative for Aborigines Limited as licensor.
5.The rights and interests of Queensland Electricity Transmission Corporation Limited (ACN 078 849 233) trading as Powerlink Queensland as an electricity entity exercising statutory functions, powers or rights and as owner and operator of electricity transmission facilities, and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area in order to access, use, maintain, repair, replace, upgrade, or otherwise deal with those facilities and infrastructure in accordance with the law.
6.The rights and interests of the holders of any licences, permits or allocations issued under the Water Act 2000 (Qld) as may be current at the date of this Determination.
7.The rights and interests of the Djiru People, the Djiru Warrangburra Aboriginal Corporation, the Wet Tropics Management Authority and the State of Queensland in relation to the Determination Area as parties to the Djiru People Protected Areas Indigenous Land Use Agreement dated 22 February 2011.
8.The rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld) relating to the use and management of part of the Determination Area.
9.The rights and interests of the holders of any permits granted under the Wet Tropics Management Plan 1998 (Qld) as may be current at the date of this Determination.
10.The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of part of the Determination Area.
11.The rights and interests of the holders of any leases, agreements, licenses, permits or authorities granted under the Nature Conservation Act 1992 (Qld) as may be current at the date of this Determination.
12.The rights and interests of El Arish Community Sports and Recreational Association Incorporated as the trustee of a reserve held for the purpose of Soldier’s Memorial Hall School of Arts over land described as Lot 113 on Crown Plan E7291 Title reference 49001918.
13.The rights and interests of the Commonwealth of Australia pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) and relevant, regulations, declarations and plans made under the EPBC Act relating to the use and management of that part of the Determination Area that is a declared World Heritage property or a National Heritage place within the meaning of the EPBC Act.
14.The rights and interests of the Great Barrier Reef Marine Park Authority and any other person existing by reason of the force and operation of:
(a)the Great Barrier Reef Marine Park Act 1975 (Cth);
(b)the Great Barrier Reef Marine Park Regulations 1983 (Cth);
(c)the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth); and
(d)the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth).
15.So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy, the following places in the Determination Area:
(a)waterways;
(b)beds and banks or foreshores of waterways;
(c)coastal waters;
(d)beaches; and
(e)areas that were public places at the end of 31 December 1993.
16.The rights and interests of members of the public arising under the common law, including but not limited to the following:
(a)the public right to fish; and
(b)the public right to navigate.
17. The rights under the international right of innocent passage.
18.The rights and interests granted or conferred by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, statutory fishing rights, or other statutory rights pursuant to:
(a)the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act; and
(b)any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area.
19.Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this Determination.
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 6006 of 2003
BETWEEN: DAWN HART, JOHN ANDY, BERYL BULLER, JOHN CLUMPOINT, RAE KELLY, MARGARET MURRAY AND CHARITY RYAN ON BEHALF OF THE DJIRU PEOPLE #3
ApplicantAND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentCASSOWARY COAST REGIONAL COUNCIL
Third RespondentERGON ENERGY CORPORATION LIMITED
Fourth Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
1 SEPTEMBER 2011
WHERE MADE:
MISSION BEACH
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.This Determination takes effect upon the making of the Order.
THE COURT DETERMINES THAT:
1.The determination area is the land described in Schedule 1, and shown on the plans attached to Schedule 1 (the “Determination Area”).
2.Native title exists in relation to that part of the Determination Area identified in Part 1 of Schedule 1.
3.The native title is held by the Djiru People described in Schedule 2 (the “native title holders”).
4.Subject to paragraphs 5 and 6 below the nature and extent of the native title rights and interests in relation to the land described in Part 1 of Schedule 1 are the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
5. 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.
6.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).
7.The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3.
8.The relationship between the native title rights and interests described in paragraph 4 and the other rights and interests described in Schedule 3 (the “other interests”) is that:
(a)the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
(c)the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
9. The native title is not held in trust.
10.The Djiru Warrangburra Aboriginal Corporation, ICN 7257, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(a)be the prescribed body corporate for the purpose of ss 57(2) and 57(3) of the Native Title Act 1993 (Cth); and
(b)perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
11. In this Determination, unless the contrary intention appears:
“land” has the same meaning 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; and
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).
SCHEDULE 1 – DETERMINATION AREA
A. Description of Determination Area
The Determination Area comprises all of the land described in Part 1 below, excluding any area of land on which any other public work, as defined in s 253 of the NTA, is constructed, established or situated, and to which ss 23B(7) and 23C(2) of the NTA and/or s 23B(7) of the NTA 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 NTA.
Part 1 Exclusive Areas
All of the land described in columns 1 and 2 of the following table and shown on the determination plan described in column 3 of the following table:
Area Description
(at time of Determination)Area Description
(at time of claim)Lot on Determination Plan Lot 646 on Plan AP17230 Lot 646 on Plan CAR124226 Lot 39 on Plan AP20076 Lot 341 on Plan CWL3153 Lot 341 on Plan CWL3153 Lot 39 on Plan AP20076 Lot 634 on Plan CWL3519 Lot 634 on Plan CWL3519 Lot 34 on Plan AP20076 Lot 7 (Pt) on Plan CWL631 Lot 55 (Pt) on Plan USL42304 Lot 33 on Plan AP20076 Lot 113 (Pt) on Plan NPW876 Lot 1 on Plan SP125434 Lot 37 on Plan AP20076 Lot 199 on Plan NR3587 Lot 199 on Plan NR3587 Lot 31 on Plan AP20076 Lot 459 on Plan NR4627 Lot 459 on Plan NR4627 Lot 32 on Plan AP20076 Lot 2 on Plan SP125433 Lot 2 on Plan SP125433 Lot 37 on Plan AP20076 Lot 2 on Plan SP125434 Lot 2 on SP125434 Lot 37 on Plan AP20076 Lot 3 on Plan SP171843 Lot 3 on Plan USL42219 Lot 36 on Plan AP20076 Lot 38 on Plan USL42219 Lot 38 on Plan USL42219 Lot 35 on Plan AP20076 Lot 26 on Plan USL42247 Lot 26 on USL42247 Lot 38 on Plan AP20076 Lot 163 (Pt) on Plan USL42248 Lot 163 (Pt) on Plan USL42248 Lot 40 on Plan AP20076 B. Determination Plans
SCHEDULE 2 – NATIVE TITLE HOLDERSThe Djiru People means those persons who are:
(i)The Clumpoint, Geia, Spencer, Nona and Sarabo family groups being the descendants of Polly Illich and her descendants Biddy Illich, Paddy Illich and Major Clumpoint.
(ii)The Masina, Andy, Mow, Mooner, Assan and Ryan family groups being the descendants of siblings Minnie (Buynoo), Rosie (Koojilun), Maggie and Kitty Nguyam.
(iii)The Barney, Dickman and Thaiday family groups being the descendants of Toby King and Nellie and their son Barney King.
(iv)The Palmer and Obah family groups being the descendants of Lucy Palmer and her children Alf Palmer, Daisy Obah and Daphne Palmer.
(v)The Nullajar family group being the descendants of Bobby Nullajar and his son, Mick Nullajar.
(vi)The Parker family group being the descendants of Charlie Mungoola (also known as Charlie Mungalla).
(vii)The Banfield, Bonner, Thimble and Pickles family groups being the descendants of Jimmy Banfield and his mother.
(viii)And includes persons adopted by any of those descendants according to the traditional laws and customs of the claim group.
SCHEDULE 3 – 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 Cassowary Coast Regional Council under:
(a)the Local Government Act 2009 (Qld) for that part of the Determination Area within its local government area, as defined in that Act, including:
i)as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area, as at the date of this Determination; and
ii)to enter and exercise rights within the Determination Area,
(b)an Indigenous Land Use Agreement between Dawn Hart, John Clumpoint, Charity Ryan, Beryl Buller, Rae Kelly, Margaret Murray and John Andy on their own behalf and on behalf of the native title holders and the Cassowary Coast Regional Council registered on 29 April 2010.
2. 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 of this Determination; and
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 to inspect, maintain and manage any Works in the Determination Area,
(d)under an Indigenous Land Use Agreement between the native title holders and Ergon Energy Corporation Limited dated 9 March 2011.
3.The rights and interests of Queensland Electricity Transmission Corporation Limited (ACN 078 849 233) trading as Powerlink Queensland as an electricity entity exercising statutory functions, powers or rights and as owner and operator of electricity transmission facilities, and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area in order to access, use, maintain, repair, replace, upgrade, or otherwise deal with those facilities and infrastructure in accordance with the law.
4.The rights and interests of the Djiru People, the Djiru Warrangburra Aboriginal Corporation and the State of Queensland in relation to the Determination Area as parties to the Djiru People Tenure Resolution Indigenous Land Use Agreement dated 22 February 2011.
5.The rights and interests of the Djiru People, the Djiru Warrangburra Aboriginal Corporation, the Wet Tropics Management Authority and the State of Queensland in relation to the Determination Area as parties to the Djiru People Protected Areas Indigenous Land Use Agreement dated/registered dated 22 February 2011.
6.The rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld) relating to the use and management of part of the Determination Area.
7.The rights and interests of the holders of any permits granted under the Wet Tropics Management Plan 1998 (Qld) as may be current at the date of this Determination.
8.The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of part of the Determination Area.
9.The rights and interests of the holders of any leases, agreements, licenses, permits or authorities granted under the Nature Conservation Act 1992 (Qld) as may be current at the date of this Determination.
10.The rights and interests of the Commonwealth of Australia pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) and relevant, regulations, declarations and plans made under the EPBC Act relating to the use and management of that part of the Determination Area that is a declared World Heritage property or a National Heritage place within the meaning of the EPBC Act.
11.So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing rights of the public to access and enjoy, the following places in the Determination Area:
(a)beaches; and
(b)areas that were public places at the end of 31 December 1993.
12.Any other rights and interests held by the State of Queensland or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this Determination.
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 6003 of 2003
BETWEEN: DAWN HART, JOHN ANDY, BERYL BULLER, JOHN CLUMPOINT, RAE KELLY, MARGARET MURRAY AND CHARITY RYAN ON BEHALF OF THE DJIRU PEOPLE #2
ApplicantAND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentCASSOWARY COAST REGIONAL COUNCIL
Third RespondentERGON ENERGY CORPORATION LIMITED
Fourth RespondentGARY BAINBRIDGE, DAVID CARACCIOLO, JOHN COOK, ANDREW GIBSON, TED B KOY, NOEL LOLLBACK, RUSSELL WILLIAM MARRIAGE, TREVOR LAWRENCE PURKIS, LESLIE JOHN STEPHENS AND BARRY WILSON
Fifth RespondentsEL ARISH SPORTS AND RECREATIONAL ASSOCIATION INC
Sixth RespondentNORTH QUEENSLAND CLUMP MOUNTAIN PROJECT COOPERATIVE SOCIETY LIMITED
Seventh Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6006 of 2003
BETWEEN: DAWN HART, JOHN ANDY, BERYL BULLER, JOHN CLUMPOINT, RAE KELLY, MARGARET MURRAY AND CHARITY RYAN ON BEHALF OF THE DJIRU PEOPLE #3
ApplicantAND: STATE OF QUEENSLAND
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentCASSOWARY COAST REGIONAL COUNCIL
Third RespondentERGON ENERGY CORPORATION LIMITED
Fourth Respondent
JUDGE:
DOWSETT J
DATE:
1 SEPTEMBER 2011
PLACE:
MISSION BEACH
REASONS FOR JUDGMENT
On 7 March 2003, Dawn Hart, John Clumpoint, Charity Ryan, Beryl Buller, Rae Kelly, Margaret Murray and John Andy, on behalf of the Djiru People, filed two applications, QUD 6002 of 2003 (“Djiru #1”) and QUD 6003 of 2003 (“Djiru #2”). Djiru #1 was discontinued on 18 July 2003, prior to registration testing and notification. On 7 July 2003, the applicant filed a further application QUD 6006 of 2003 (“Djiru #3”). Djiru #2 and Djiru #3 were both notified by the Native Title Registrar on 28 January 2004 in accordance with s 66 of the Act. The applications passed the registration test pursuant to s 190A of the Act and remain on the Register of Native Title claims. The Commonwealth of Australia, the State of Queensland, Cassowary Coast Regional Council and Ergon Energy Corporation Limited are parties to both proceedings. El Arish Sports and Recreational Association Incorporated, North Queensland Clump Mountain Project Co-operative Society Limited and various fishing interests are respondents to Djiru #2. The North Queensland Land Council represents the applicant group in relation to their applications.
The parties to each application have reached agreement as to its disposition. The terms of each agreement were filed on 15 August 2011. The parties now seek consent orders recognizing exclusive and non-exclusive native title rights in the Determination Areas. That term has the meaning prescribed in Schedule 1 to each of the proposed orders. The determination areas are located in and around the townships of El Arish and Mission Beach in North Queensland.
Schedule 1 to the proposed orders in Djiru #2 comprises two parts, Part 1 listing those areas where exclusive native title will be recognised and Part 2, where non-exclusive native title will be recognised. Schedule 1 to the proposed orders in Djiru #3 lists areas where exclusive native title is to be recognised.
Pursuant to s 13 and Parts 3 and 4 of the Act, the Court may make determinations concerning native title in relation to areas over which there is no existing approved determination. Neither determination area is subject to any other claim or determination by the Court.
The agreements are subject to the Court being satisfied that it has the power to make orders in the terms sought, and that it is proper so to do. Courts resolve matters which are in dispute between parties. The ambit of each dispute is identified by the parties. Only disputes so identified fall for resolution by the Court. When parties make admissions or concessions, the issues for determination are narrowed. Nonetheless, the Court may decline to act on an admission in some circumstances. Where, as here, the proceedings have significance for people other than the parties, the Court must give especial consideration to the appropriateness of making consent orders. In the present case, I see no reason to depart from the parties’ identification of the issues and their consensual resolution. They have had the benefit of appropriate legal and other advice. These proceedings have been on foot for eight years and have been appropriately publicized. I keep in mind the substantial public interest in matters of this kind. The Commonwealth, the State and the local authority are suitable guardians of that interest.
In Djiru #2, the agreed native title rights and interests in the part of the Determination Area identified in Part 1 of Schedule 1 to the proposed orders (other than in relation to water) are to possession, occupation, use and enjoyment, to the exclusion of all others, subject to paragraphs 7, 8 and 9 of the proposed orders. The nature and extent of the native title rights and interests over that part of the Determination Area identified in Part 2 of Schedule 1 above the High Water Mark (other than in relation to water) are, subject to paragraphs 7, 8 and 9, the non-exclusive rights to:
(a)access, be present on, move about on and travel over the area;
(b)camp on the area and, for that purpose, erect temporary shelters on the area;
(c)hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d)take, use, share and exchange natural resources from the land and waters for personal, domestic and non-commercial communal purposes;
(e)take and use the water of the area for personal, domestic and non-commercial communal purposes;
(f)conduct ceremonies on the area;
(g)be buried and bury native title holders within the area;
(h)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(i)teach on the area the physical and spiritual attributes of the area; and
(j)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation
Subject to paragraphs 7, 8 and 9 the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 below the High Water Mark are the non exclusive rights to:
(a)access, be present on, move about on and travel over the area;
(b)hunt, fish and gather on the land and waters of the area for personal, domestic, and non commercial communal purposes;
(c)take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non commercial communal purposes;
(d)conduct ceremonies on the area;
(e)maintain places and areas of importance or significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; and
(f)teach on the area the physical and spiritual attributes of the area.
The nature and extent of the native title rights and interests in relation to water within the determination area in Djiru #2 are the non-exclusive rights to:
(i)hunt, fish, and gather from the water of the area; and
(ii)take and use the water for personal, domestic and non-commercial communal purposes.
In Djiru #3 the nature and extent of the native title rights and interests in the Determination Area are, subject to paragraphs 5 and 6 of the proposed orders, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
Where the Court makes a determination of native title, s 94A of the Act requires that it set out details of the matters mentioned in s 225.
The findings I make in relation to the elements of s 225 are supported by the material filed by the applicant on 21 July 2011. The material includes the Connection Report of March 2005 and the Supplementary Report of March 2010 by Dr Sandra Pannell, together with her very helpful and concise summary of those reports. An affidavit by Mr Leonard Andy explains the claim group’s occupation and exercise of rights and interests within the determination areas. I have also been assisted by the submissions filed by the applicant and adopted by the State.
The Djiru people are described in Schedule 2 to each proposed order as:
(i)The Clumpoint, Geia, Spencer, Nona and Sarabo family groups being the descendants of Polly Illich and her descendants Biddy Illich, Paddy Illich and Major Clumpoint;
(ii)The Masina, Andy, Mow, Mooner, Assan and Ryan family groups being the descendants of siblings Minnie (Buynoo), Rosie (Koojilun), Maggie and Kitty Nguyam;
(iii)The Barney, Dickman and Thaiday family groups being the descendants of Toby King and Nellie and their son Barney King;
(iv)The Palmer and Obah family groups being the descendants of Lucy Palmer and her children Alf Palmer, Daisy Obah and Daphne Palmer;
(v)The Nullajar family group being the descendants of Bobby Nullajar and his son, Mick Nullajar;
(vi)The Parker family group being the descendants of Charlie Mungoola (also known as Charlie Mungalla);
(vii)The Banfield, Bonner, Thimble and Pickles family groups being the descendants of Jimmy Banfield and his mother;
and the group includes persons adopted by any of those descendants according to the traditional laws and customs of the claim group.
The Determination Areas have been occupied for a long time. In 1770 Cook sighted Aboriginal people on the islands of the Friendly group. However archaeological evidence suggests Aboriginal occupation of the rainforest area for at least 5,100 years and continued use and occupation of the off-shore islands for the last 1,700 years. The coastal flood plain has been occupied and exploited for the last 2,000 years. Aboriginal occupation of upland rainforest areas dates from about 700 year ago. Cook and other coastal explorers recorded the presence of villages, canoes, fishing activities, body adornments and barter.
Sustained European settlement in the area dates from the arrival in 1882 of the four Cutten brothers who settled at Bingil Bay. Bingal Bay became famous in the 1960s as the retreat of Harold Holt when he was preparing his annual budgets as Treasurer in the enduring Menzies Governments. In 1891 the Rev JB Gribble, founder of the Yarrabah Aboriginal Mission, recorded the presence of the “Jir.oo” tribe in the area of Maria Creek.
The Hull River Aboriginal Settlement, in the southern part of Djiru country, was established in 1914, when many Aboriginal people were forcibly removed from their traditional lands. The 1918 tropical cyclone devastated the Settlement and led to its abandonment. A number of the Aboriginal people escaped and returned home. Dr Pannell says that EJ Banfield, who resided on Dunk Island from 1896 to 1923, reported that a considerable number of Aboriginal people disappeared into the surrounding rainforest where, “for a time, the bush kept them in strict seclusion, providing food and shelter”. Roth observed that local Aboriginal people attributed the advent of cyclones to human beings and their actions. Cyclones have continued to be an element of life in the Determination Areas, including Cyclone Yasi in January, this year.
The Connection Report refers to the Djiru People’s belief that the natural environment is imbued with a range of supernatural beings, including their ancestors. This belief also informs their knowledge of Djiru country and of specific named places within it. There are story places, ceremonial grounds (including initiation and corroboree grounds), occupation sites, resource sites, burial sites, massacre sites, rock art sites and archaeological sites. This list demonstrates the cultural richness of the Djiru People. The ancestral spirits or “old people” are said to recognize and welcome the traditional owners to country. I am sure that they will be looking favourably upon these proceedings today.
Roth, Banfield and Dixon all recorded beliefs regarding the rainbow snake. Rainbows continue to form part of traditional law and custom. According to tradition the rainbow snake and the rainbow make all rain and lightning.
The Connection Report demonstrates organised Aboriginal occupation and possession of the Determination Area. There can be no doubt that the Djiru People recorded by Gribble in 1891 were the same people who were here when the Cutten brothers arrived in 1882. In turn, I have no difficulty in inferring that their ancestors were seen by Cook in 1770. The Djiru people have demonstrated, through the extensive research undertaken by Dr Pannell, that they have an unbroken physical connection to their country from first contact with European explorers and settlers. That connection continues to the present day. Dr Pannell has also demonstrated that Djiru laws and customs, derived from traditional beliefs continue to be acknowledged and observed by the current society. She has also identified in great detail the ways in which the Djiru People continue to maintain connection with their land and observance of their traditional laws and customs.
Dr Pannell has referred to genealogies compiled by Norman Tindale and his colleague, Joseph Birdsell in late 1938. She opines that:
The Tindale genealogies provide information about the existence of a group of “Djiru” people who were born and lived in the Clump Point area well before the mid 1880’s. Tindale’s material provides a solid factual basis for temporally tracking the genealogical connections between some present day Djiru people, a number of the nominated “native title” apical ancestors, and named Djiru individuals, who were born in the pre-settlement era and who, based upon reasonable inference, were members of the pre-sovereignty Djiru tribal grouping.
It is necessary to return to s 225 of the Act. Section 94A requires that the matters mentioned in s 225 be set out in the orders. I am satisfied that the proposed orders deal with those matters. The orders, which are consistent with the terms agreed by the consenting parties, recognize the applicant group, as the common law holders of the native title in the determination areas and their entitlement to exclusive and non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. The orders further recognize, at Schedule 3, other interests in the Determination Areas and the relationships between those interests and the native title interests.
Order 12 of the proposed orders in Djiru #2 and order 9 of the proposed orders in Djiru #3 provide that native title is not to be held in trust. By order 13 in Djiru #2 and order 10 in Djiru #3, the Djiru Warrangburra Aboriginal Corporation (ICN7257) is to be the prescribed body corporate for the purposes of s 57(2) of the Act. It is to act for the common law holders, to perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and for the other objects and purposes set out in the Rules of the Corporation. The Corporation was registered on 11 January 2006.
I am satisfied that it is within the power of the Court to make the orders sought, and that these orders should be made to give effect to the parties’ agreements without a full hearing of the applications.
I therefore will make the orders proposed. I initial a draft and order that it be placed with the papers.
The orders which I have made recognize the Djiru People’s native title rights and interests within the Australian legal system and extend the protection of that system to those rights and interests. I have not come here today to give anything to the Djiru People. Rather I come on behalf of all Australian people to recognize their traditional rights and interests, which rights and interests have their roots in times before 1788. Only some of those traditional rights and interests have survived European settlement. Those surviving rights and interests I now acknowledge. In so doing I bind all people, for all time, including the Commonwealth of Australia, the State of Queensland and the Cassowary Coast Regional Council.
We know that the history of the Djiru People since European settlement has been hard. There was substantial dislocation by removals, both before and after the 1918 cyclone. We hope that in what we do today, we will assist the Djiru People to enjoy a better future in which we hope to share.
On behalf of all Australians, but particularly on behalf of the Judges of the Court and our staff, we congratulate you on your achievement today and wish you well for the future.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 28 September 2011
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