Lampton on behalf of the Juru People v State of Queensland

The Federal Court of Australia heard a case between the Juru people and the State of Queensland regarding the determination of native title consent under section 87 of the Native Title Act 1993. The case involved the scattered parcels of land and waters in the Kennedy district, which were to be combined with the land and waters in the two earlier consent determinations. The Juru people sought to exercise their native title rights and interests over the entire area with the full authority of the law of the nation through the orders of the Court.

The court was required to decide on the issues of the identity of the apical ancestors of the Juru people, the continuing connection of the Juru people to the land and waters within the claim area, and the appropriateness of Kyburra Munda Yalga Aboriginal Corporation to hold native title interests on trust for the Juru people. The applicant provided additional evidence to the State, including outlines of evidence that eight lay witnesses would give, an historical report by Dr Rosalind Kidd, and a supplementary anthropology report by Dr Sandra Pannell. The State also provided the applicant with the results of some additional tenure research that it had undertaken.

The court found that Dr Kidd's review of historical records showed continuous Aboriginal presence in the Kennedy district from and after first contact with Europeans in 1859. Dr Kidd located an article in the Sydney Morning Herald of 24 November 1859, which reported the discovery of a new harbour in Edgecumbe Bay by Captain Sinclair, the master of the ship Santa Barbara. The article reported Captain Sinclair had said that when the ship anchored near Gloucester Island in mid-October 1859, the natives came off to them in canoes, and brought them two casks of water, for which they gave them two tomahawks and sundry articles of wearing apparel. Dr Kidd concluded that the Europeans quickly realised the pastoral potential of that district.

Dr Sandra Pannell's supplementary report specifically considered the anthropological issues relating to the Bowen, Merinda, Home Hill and rural areas. She opined that contemporary Juru people know about their laws and customs, because each earlier generation had passed these on orally to the next generation or because each generation had observed and been instructed about them through interacting with other Juru and Birri Gubba people. While Dr Pannell could not say unequivocally that the Juru people had acknowledged and observed those laws and customs continuously since European settlement, nonetheless, in her opinion, it was likely that they had done so. The court found that the Juru people appeared to have continued substantially to acknowledge and observe their traditional laws and customs.

The court was satisfied that it was appropriate to act on the basis of the earlier findings and the further material in respect of the identity of the apical ancestors of the Juru people, the continuing connection of the Juru people to the land and waters within the claim area and the appropriateness of Kyburra Munda Yalga Aboriginal Corporation to hold native title interests on trust for the Juru people. The court congratulated the parties in achieving this important milestone and in finalizing this whole claim. The court determined that the Juru people would have certainty about the entire area of land and waters over which they could exercise their traditional native title rights and interests.

The court made the following orders: The exercise of the native title rights and interests referred to in paragraph 8 of the determination in relation to the areas specified in the order would be suspended for a period of 12 months from the date of the determination. The exercise of the native title rights and interests referred to in paragraph 9 of the determination in relation to the areas specified in the order would be suspended for a period of 12 months from the date of the determination. Each party to the proceedings would bear its own costs. The native title was held by the Juru People described in Schedule 3 (the “native title holders”). 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 were the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others, except in relation to Water, where the rights were non-exclusive. 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 were the non-exclusive rights to access, be present on, move about on and travel over the area, among other rights. The nature and extent of the native title rights and interests in relation to the land and waters described in Part 3 of Schedule 1 were the non-exclusive rights to access, be present on, move about on and travel over the area, among other rights. The nature and extent of the native title rights and interests in relation to the land and waters described in Part 4 of Schedule 1 were the non-exclusive rights to access, be present on, move about on and travel over the area, among other rights. The nature and extent of the native title rights and interests in relation to the land and waters described in Part 5 of Schedule 1 were the non-exclusive rights to access, be present on, move about on and travel over the area. The native title rights and interests were subject to and exercisable in accordance with the Laws of the State and the Commonwealth, the traditional laws acknowledged and traditional customs observed by the native title holders, and the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4. The nature and extent of any other interests in relation to the Determination Area were set out in Schedule 4. The relationship between the native title rights and interests and the other interests was that the other interests continued 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. To the extent the other interests were 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 continued to exist in its entirety but the native title rights and interests had no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests existed. The other interests and any activity that was required or permitted by or under, and done in accordance with, the other interests, or any activity that was associated with or incidental to such an activity, prevailed over the native title rights and interests and any exercise of the native title rights and interests.