Sullivan on behalf of the Yulluna People #3 v State of Queensland
[2014] FCA 659
•28 March 2014
FEDERAL COURT OF AUSTRALIA
Sullivan on behalf of the Yulluna People #3 v State of Queensland [2014] FCA 659
Citation: Sullivan on behalf of the Yulluna People #3 v State of Queensland [2014] FCA 659 Parties: BRIAN SULLIVAN, VALERIE PUNCH, HAZEL SULLIVAN, STAN SULLIVAN AND ALLAN NAUMANN ON BEHALF OF THE YULLUNA PEOPLE #3 v STATE OF QUEENSLAND, BOULIA SHIRE COUNCIL, CLONCURRY SHIRE COUNCIL, MCKINLAY SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, APT PIPELINES (QLD) PTY LIMITED, ROVERTON PTY LTD, CHINOVA RESOURCES CLONCURRY MINES PTY LTD ABN 22 106 255 216 (FORMERLY KNOWN AS INOVA RESOURCES CLONCURRY MINES PTY LTD), CHINOVA RESOURCES OSBORNE PTY LTD ABN 84 061 300 025 (FORMERLY KNOWN AS INOVA RESOURCES (OSBORNE) PTY LTD), EXCO RESOURCES LTD, EXCO RESOURCES (QLD) PTY LTD, RICHARD ANDREW NANCARROW and DULCIE CAROL ANDERSON, PHILLIP MARTIN PATRICK ANDERSON, ARGYLLA MOUNTAINS PASTORAL PTY LTD, WILLIAM HENRY CAMERON, ANDREW WILLIAM JESSE DANIELS, SAMUEL DONALD JAMES DANIELS, DONALD JAMES GRIMSHAW, HACON HOLDINGS PTY LTD, JERSEY PLAINS PASTORAL COMPANY PTY LTD, GABRIELLE KENNEDY, MDH PTY LTD ACN 010 114 468 AND DALE REGINALD NEILSON File number: QUD 189 of 2010 Judge: DOWSETT J Date of consent
determination:28 March 2014 Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Native Title Act 1993 (Cth) ss 13, 50, 55, 56, 57, 87, 94A, 225
Native Title (Prescribed Bodies Corporate) Regulations 1999Cases cited: Mabo v Queensland (No 2) (1992) 175 CLR 1 applied
Sampi (on behalf of the Bardi and Jawi People) (2010) 266 ALR 537 citedDate of hearing: 28 March 2014 Place: Osborne Mine Village Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 32 Solicitor for the Applicant: Queensland South Native Title Services Solicitor for the First Respondent: Crown Law Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Thirteenth Respondents: The Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Thirteenth Respondents did not appear Solicitor for the Twelfth Respondent: The Twelfth Respondent appeared in person
Table of Corrections 23 August 2016 On page 31 replace incorrect map “QUD189/2010 Yulluna People (QC2010/01) – Inset 5” (Orders Dowsett J made 26 July 2016).
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 189 of 2010
BETWEEN: BRIAN SULLIVAN, VALERIE PUNCH, HAZEL SULLIVAN, STAN SULLIVAN AND ALLAN NAUMANN ON BEHALF OF THE YULLUNA PEOPLE #3
ApplicantAND: STATE OF QUEENSLAND
First RespondentBOULIA SHIRE COUNCIL
Second RespondentCLONCURRY SHIRE COUNCIL
Third RespondentMCKINLAY SHIRE COUNCIL
Fourth RespondentERGON ENERGY CORPORATION LIMITED
Fifth RespondentAPT PIPELINES (QLD) PTY LIMITED
Sixth RespondentROVERTON PTY LTD
Seventh RespondentCHINOVA RESOURCES CLONCURRY MINES PTY LTD ABN 22 106 255 216 (FORMERLY KNOWN AS INOVA RESOURCES CLONCURRY MINES PTY LTD)
Eighth RespondentCHINOVA RESOURCES OSBORNE PTY LTD ABN 84 061 300 025 (FORMERLY KNOWN AS INOVA RESOURCES (OSBORNE) PTY LTD)
Ninth RespondentEXCO RESOURCES LTD
Tenth RespondentEXCO RESOURCES (QLD) PTY LTD
Eleventh RespondentRICHARD ANDREW NANCARROW
Twelfth RespondentDULCIE CAROL ANDERSON, PHILLIP MARTIN PATRICK ANDERSON, ARGYLLA MOUNTAINS PASTORAL PTY LTD, WILLIAM HENRY CAMERON, ANDREW WILLIAM JESSE DANIELS, SAMUEL DONALD JAMES DANIELS, DONALD JAMES GRIMSHAW, HACON HOLDINGS PTY LTD, JERSEY PLAINS PASTORAL COMPANY PTY LTD, GABRIELLE KENNEDY, MDH PTY LTD ACN 010 114 468 AND DALE REGINALD NEILSON
Thirteenth Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
28 MARCH 2014
WHERE MADE:
OSBORNE MINE VILLAGE
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 item 1 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.
3.In the event that the agreements referred to in paragraph 2 above are not registered on the Register of Indigenous Land Use Agreements within twelve (12) 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.Native title exists in relation to that part of the Determination Area described in Part 1 of Schedule 1A.
6.Native title does not exist in relation to that part of the Determination Area described in Part 2 of Schedule 1A.
7.The native title is held by the Yulluna 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 1A are the non-exclusive rights to:
(a) access the area;
(b) camp, and for that purpose build 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 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 ceremonies on the area;
(g)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;
(h) teach on the area the physical and spiritual attributes of the area; and
(i)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
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 paragraphs 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.
11.There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
12.The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.
13.The relationship between the native title rights and interests described in paragraph 8 and the other interests described in Schedule 4 (the "other interests") is that:
(a)the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; and
(b)the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
DEFINITIONS AND INTERPRETATION
14.In this determination, unless the contrary intention appears:
"Determination Area" is the land and waters described in Schedule 1A and depicted on the map in Schedule 1B and does not include the areas described in Schedule 2. To the extent of any inconsistency between Schedule 1A and Schedule 1B, Schedule 1A prevails;
"External Boundary" means the boundary described in Schedule 5;
"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 any animal, plant, fish and bird life, and ochre, found on or in the lands and waters of the Determination Area that have traditionally been taken and used by the native title holders, but does not include:
(a) animals that are the private personal property of another;
(b) crops that are the private personal property of another; and
(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);
"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; and
water from an underground water source.
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.The native title is to be held in trust.
16.The Yulluna Aboriginal Corporation (ICN 7112), 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 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and
(b)perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE 1 — DETERMINATION AREA
Schedule 1A Description of Determination Area
The Determination Area comprises all of the land and waters described in Parts 1 and 2 of Schedule 1A which are within the External Boundary and depicted on the map in Schedule 1B, and does not include the areas described in Schedule 2.
Part 1: Non-Exclusive Areas
(a) The land and waters comprised of the lots and part lots listed below:
Area Description Lot 12 on AP15630 Lot 13 on AP15630 Lot 14 on AP15630 Lot 16 on AP15630 Lot 17 on AP15630 Lot 18 on AP15630 Lot 21 on AP15630 Lot 22 on AP15630 Lot 24 on AP15630 Lot 25 on AP15630 Lot 26 on AP15630 Lot 30 on AP15630 Lot 33 on AP15630 Lot 36 on AP15630 Lot 37 on AP15630 Lot 41 on AP15630 Lot 42 on AP15630 Lot 45 on AP15630 Lot 11 on AP15744 Lot 4 on AP15759 That part of Lot 381 on AP15846 that falls within the External Boundary Lot 401 on AP15847 Lot 4 on AP15904 Lot 101 on B6821 Lot 102 on B6821 Lot 103 on B6821 Lot 104 on B6821 Lot 105 on B6821 Lot 106 on B6821 Lot 107 on B6821 Lot 108 on B6821 Lot 109 on B6821 Lot 110 on B6821 Lot 201 on B6821 Lot 202 on B6821 Lot 203 on B6821 Lot 204 on B6821 Lot 205 on B6821 Lot 206 on B6821 Lot 207 on B6821 Lot 208 on B6821 Lot 209 on B6821 Lot 210 on B6821 Lot 211 on B6821 Lot 212 on B6821 That part of Lot 2 on CP865896 that falls within the External Boundary Lot 1 on CP909828 Lot 1 on CW1 Lot 20 on CW1 Lot 14 on CW18 Lot 17 on CW19 Lot 12 on CW20 Lot 16 on CW26 Lot 10 on CW5 Lot 14 on CW52 That part of Lot 16 on CW62 that falls within the External Boundary and is not subject to Schedule 1A Part 2(a) Lot 4 on CW839955 Lot 2 on D5981 Lot 3 on D5981 Lot 4 on D5981 Lot 5 on D5981 Lot 6 on D5981 Lot 7 on D5981 Lot 22 on D5981 Lot 28 on D5981 Lot 29 on D5981 Lot 4 on D59811 Lot 1 on D59813 Lot 1 on D59814 Lot 4 on D5982 Lot 6 on D5982 Lot 21 on D5982 Lot 22 on D5982 Lot 23 on D5982 Lot 24 on D5982 Lot 25 on D5982 Lot 26 on D5982 Lot 27 on D5982 Lot 28 on D5982 Lot 29 on D5982 Lot 30 on D5982 Lot 31 on D5982 Lot 32 on D5982 Lot 33 on D5982 Lot 1 on D5984 Lot 2 on D5984 Lot 3 on D5984 Lot 4 on D5984 Lot 5 on D5984 Lot 6 on D5984 Lot 7 on D5984 Lot 8 on D5984 Lot 9 on D5984 Lot 10 on D5984 Lot 11 on D5984 Lot 12 on D5984 Lot 13 on D5984 Lot 14 on D5984 Lot 15 on D5984 Lot 16 on D5984 Lot 21 on D5984 Lot 22 on D5984 Lot 1 on D5986 Lot 11 on D5986 Lot 19 on D5986 Lot 20 on D5986 Lot 27 on D5986 Lot 28 on D5986 Lot 29 on D5986 Lot 31 on D5986 Lot 32 on D5986 Lot 35 on D5986 Lot 43 on D5986 Lot 44 on D5986 Lot 5 on D5988 Lot 24 on D5989 Lot 25 on D5989 Lot 1 on MN1 Lot 8 on MN7 Lot 1 on MPH13981 Lot 3 on MPH13981 Lot 5 on MPH13981 Lot 6 on MPH13981 Lot 7 on MPH13981 Lot 8 on MPH13981 Lot 9 on MPH13981 Lot 10 on MPH13981 Lot 20 on MPH13981 Lot 21 on MPH13981 Lot 22 on MPH13981 Lot 25 on MPH13981 Lot 26 on MPH13981 Lot 27 on MPH13981 Lot 28 on MPH13981 Lot 29 on MPH13981 Lot 30 on MPH13981 Lot 31 on MPH13981 Lot 32 on MPH13981 Lot 33 on MPH13981 Lot 34 on MPH13981 Lot 35 on MPH13981 Lot 36 on MPH13981 Lot 38 on MPH13981 Lot 40 on MPH13981 Lot 41 on MPH13981 Lot 42 on MPH13981 Lot 43 on MPH13981 Lot 44 on MPH13981 Lot 45 on MPH13981 Lot 46 on MPH13981 Lot 47 on MPH13981 Lot 48 on MPH13981 Lot 49 on MPH13981 Lot 50 on MPH13981 Lot 51 on MPH13981 Lot 52 on MPH13981 Lot 53 on MPH13981 Lot 54 on MPH13981 Lot 55 on MPH13981 Lot 56 on MPH13981 Lot 57 on MPH13981 Lot 58 on MPH13981 Lot 59 on MPH13981 Lot 60 on MPH13981 Lot 61 on MPH13981 Lot 62 on MPH13981 Lot 63 on MPH13981 Lot 64 on MPH13981 Lot 65 on MPH13981 Lot 66 on MPH13981 Lot 67 on MPH13981 Lot 68 on MPH13981 Lot 69 on MPH13981 Lot 70 on MPH13981 Lot 71 on MPH13981 Lot 72 on MPH13981 Lot 73 on MPH13981 Lot 74 on MPH13981 Lot 75 on MPH13981 Lot 76 on MPH13981 Lot 90 on MPH13981 Lot 12 on MPH13985 Lot 13 on MPH13985 Lot 16 on MPH13985 Lot 3 on MPH21881 Lot 4 on MPH21881 Lot 5 on MPH21881 Lot 6 on MPH21881 Lot 7 on MPH21881 Lot 24 on MPH21881 Lot 25 on MPH21881 Lot 26 on MPH21881 Lot 27 on MPH21881 Lot 31 on MPH21881 Lot 32 on MPH21881 Lot 33 on MPH21881 Lot 34 on MPH21881 Lot 35 on MPH21881 Lot 36 on MPH21881 Lot 41 on MPH21881 Lot 43 on MPH21881 Lot 44 on MPH21881 Lot 45 on MPH21881 Lot 52 on MPH21881 Lot 53 on MPH21881 Lot 14 on MPH21882 Lot 15 on MPH21882 Lot 16 on MPH21882 Lot 19 on MPH21882 Lot 20 on MPH21882 Lot 25 on MPH21882 Lot 26 on MPH21882 Lot 27 on MPH21882 Lot 28 on MPH21882 Lot 31 on MPH21882 Lot 32 on MPH21882 Lot 33 on MPH21882 Lot 34 on MPH21882 Lot 35 on MPH21882 Lot 36 on MPH21882 Lot 37 on MPH21882 Lot 1244 on MPH21889 Lot 1336 on MPH21889 Lot 1339 on MPH21889 Lot 1343 on MPH21889 Lot 1346 on MPH21889 Lot 1351 on MPH21889 Lot 1352 on MPH21889 Lot 1355 on MPH21889 Lot 629 on MPH4209 Lot 679 on MPH4209 Lot 529 on MPH4212 Lot 604 on MPH4212 Lot 618 on MPH4212 Lot 619 on MPH4212 Lot 634 on MPH4212 Lot 639 on MPH4212 Lot 648 on MPH4212 Lot 647 on MPH4222 Lot 5 on MPH4232 Lot 677 on MPH4235 Lot 1 on MPH4236 Lot 2 on MPH4236 Lot 3 on MPH4236 Lot 4 on MPH4236 Lot 5 on MPH4236 Lot 31 on MPH4236 Lot 32 on MPH4236 Lot 33 on MPH4236 Lot 34 on MPH4236 Lot 35 on MPH4236 Lot 774 on MPH4238 Lot 1152 on MPH4240 Lot 1240 on MPH4240 Lot 739 on MPH4247 Lot 731 on MPH4248 Lot 734 on MPH4248 Lot 763 on MPH4248 Lot 764 on MPH4248 Lot 768 on MPH4248 Lot 769 on MPH4248 Lot 2017 on MPH4248 Lot 2163 on MPH4248 Lot 725 on MPH4249 Lot 701 on MPH4255 Lot 702 on MPH4255 Lot 715 on MPH4255 Lot 716 on MPH4255 Lot 834 on MPH4259 Lot 1256 on MPH4259 Lot 829 on MPH4260 Lot 802 on MPH4263 Lot 845 on MPH4263 Lot 866 on MPH4263 Lot 965 on MPH4268 Lot 969 on MPH4268 Lot 1817 on MPH4268 Lot 1893 on MPH4268 Lot 976 on MPH4277 Lot 1054 on MPH4281 Lot 1088 on MPH4281 Lot 1 on MPH4292 Lot 856 on MPH4293 Lot 5554 on MPH4293 Lot 187 on MPH4294 Lot 197 on MPH4294 Lot 1 on MPH4295 Lot 1 on MPH4296 Lot 1 on MPH4297 Lot 1137 on MPH4300 Lot 1119 on MPH4309 Lot 1155 on MPH4310 Lot 1170 on MPH4310 Lot 1144 on MPH4311 Lot 1171 on MPH4311 Lot 1179 on MPH4311 Lot 5520 on MPH4314 Lot 1 on MPH4315 Lot 1 on MPH4316 Lot 1 on MPH4317 Lot 1 on MPH4318 Lot 1199 on MPH4320 Lot 1200 on MPH4320 Lot 1 on MPH4327 Lot 1 on MPH4341 Lot 3 on MPH4341 Lot 1 on MPH4345 Lot 1 on MPH4346 Lot 1437 on MPH4367 Lot 1411 on MPH4377 Lot 1428 on MPH4377 Lot 1441 on MPH4377 Lot 1453 on MPH4377 Lot 474 on MPH4381 Lot 486 on MPH4381 Lot 2 on MPH4413 Lot 1 on MPH4466 Lot 780 on MPH4466 Lot 3462 on PH1022 Lot 3722 on PH1492 Lot 3380 on PH1494 Lot 3268 on PH1495 Lot 5328 on PH1749 That part of Lot 4747 on PH1763 that is not subject to Schedule 1A Part 2(a) Lot 5354 on PH1831 Lot 5212 on PH1878 Lot 5364 on PH1891 Lot 2999 on PH1926 That part of Lot 3562 on SP261206 formerly Lot 3562 on PH2280 that is not subject to Schedule 1A Part 2(a) Lot 4596 on PH26 That part of Lot 4174 on PH45 that is not subject to Schedule 1A Part 2(a) Lot 5 on S5892 Lot 1 on S5893 Lot 2 on S5893 Lot 3 on S5893 Lot 3 on S5894 Lot 4 on S5894 Lot 5 on S5894 Lot 6 on S5894 Lot 7 on S5894 Lot 7 on S5895 That part of Lot 1 on SP150176 that is not subject to Schedule 1A Part 2(a) Lot 109 on SP213577 Lot 2949 SP223508 That part of Lot 22 on SP223509 that is not subject to Schedule 1A Part 2(a) That part of Lot 13 on SP223510 formerly Lot 13 on SP150177 that is not subject to Schedule 1A Part 2(a) That part of Lot 346 on SP255339, formerly part of Lot 346 on PH1950 that falls within the External Boundary Lot 9 on SW6 Lot 8 on USL621 Lot 79 on USL703 Lot 148 on USL753 Lot 201 on USL753 Lot 207 on USL753 Lot 265 on USL753 Lot 266 on USL753 Lot 85 on USL756 Lot 92 on USL756 That part of Lot 1 on WB13 that falls within the External Boundary Lot 5 on WNR10 Lot 5 on WNR6 Lot 2 on WNR7 Schedule 1A Part 1 – Non-Exclusive Areas (continued):
(b) The waters within the External Boundary including but not limited to:
(i)that part of the Burke River which borders between Lot 3462 on PH1022 and Lot 4747 on PH1763 at the southern aspect; and
(ii)that part of Wills Creek which is part of the External Boundary description on the east which refers to the “centreline of Wills Creek” and then “along the centreline of that creek”.
Schedule 1A Part 2 - Areas within the Determination Area where native title does not exist:
(a)The land and waters described below in respect of which native title rights and interests were taken by the State of Queensland by Proclamation dated 30 January 1997 as amended by Proclamation dated 11 June 1998:
(i) Easement U on SP101035;
(ii) Easements X and Y on SP101037;
(iii) Easements S,T and V on SP101034;
(iv) Easements W, A and B on SP101036;
(v) Easement C on SP101038;
(vi) Easement D on SP101039; and
(vii) Easements E, F and G on SP101040.
SCHEDULE 1B MAP OF DETERMINATION AREA
Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA
1. Tenure Based Exclusions:
The land and waters within the External Boundary
(a)which are subject to Previous Exclusive Possession Acts within the meaning of s 23B(2) and s 23B(3) of the Native Title Act 1993 (Cth), and
(b)to which none of ss 47, 47A and 47B of the Native Title Act 1993 (Cth) applied at the time of lodgement of the native title determination application (QUD189 of 2010); and
(c)which, because of paragraphs (a) and (b) above, and in accordance with s 61A of the Native Title Act 1993 (Cth) could not be claimed.
2. Public Works Based Exclusions:
(a)The land and waters within the External Boundary 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), and in accordance with s 61A of the Native Title Act 1993 (Cth), could not be claimed.
(b)Specifically, and to avoid any doubt, the land and waters described in paragraph 2(a) immediately above includes the whole of the land and waters described as Lot 1 on TM11202.
Schedule 3 — NATIVE TITLE HOLDERS
1. The native title holders are the Yulluna People. The Yulluna People:
(a) are the biological descendants (if any) of:
(i) Mick Moonlight;
(ii) Willie Sullivan;
(iii) Rosie O’Sullivan;
(iv) Kitty Casey;
(v) Momas;
(b) identify themselves as members of the Yulluna People; and
(c) are recognised by others who are Yulluna People as being Yulluna People.
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 Indigenous Land Use Agreements (ILUAs):
(a)Yulluna People/Buckingham Downs ILUA executed by the parties on 15 December 2013 and 14 February 2014;
(b)Yulluna People/Burnham (aka Chatsworth), Chatsworth and Stanbroke (aka Stradbroke) ILUA executed by the parties on 15 December 2013 and 27 January 2014;
(c)Yulluna People/Cannington ILUA executed by the parties on 15 December 2013 and 26 February 2014;
(d)Yulluna People/Corrie Downs, Digby Peaks and Windsor Park (aka Willsdown) ILUA executed by the parties on 15 December 2013 and 24 February 2014;
(e)Yulluna People/Cukadoo ILUA executed by the parties on 15 December 2013 and 14 February 2014;
(f)Yulluna People/Fort William ILUA executed by the parties on 15 December 2013 and 28 January 2014;
(g)Yulluna People/Kheri ILUA executed by the parties on 15 December 2013 and 12 February 2014;
(h)Yulluna People/Lurnea (aka Two Rivers) ILUA executed by the parties on 15 December 2013 and 31 January 2014;
(i)Yulluna People/Pilgrim ILUA executed by the parties on 15 December 2013 and 27 January 2014;
(j)Yulluna People/Starcross ILUA executed by the parties on 15 December 2013 and 10 January 2014;
(k)Yulluna People and Local Government ILUA executed by the parties on 15 December 2013, 17 December 2013, 30 January 2014 and 6 February 2014; and
(l)Yulluna People and Ergon Energy ILUA executed by the parties on 15 December 2013 and 8 January 2014.
2.The rights and interests of Richard Andrew Nancarrow as the holder of mining lease ML5553 granted under the Mineral Resources Act 1989 (Qld).
3. The rights and interests within the Determination Area held by the following lessees:
(a)MDH Pty Ltd ACN 010 114 488 Trustee for the Devonshire Trust in pastoral development holdings (PDHs):
(i) PDH 13/345 being Lot 13 on SP223510; and
(ii) PDH 4/5328 being Lot 5328 on PH1749;
(b)MDH Pty Ltd ACN 010 114 468 in pastoral holding (PH) 13/5398 being Lot 16 on CW62;
(c)James Cameron Brown and Elizabeth Veronica Brown in PH 13/5353 being Lot 22 on SP223509;
(d)Hacon Holdings Pty Ltd ACN 094 617 759 in PDH 13/2999 being Lot 2999 on PH1926;
(e) Phillip Gregory Prince in pastoral holdings:
(i) PH 13/3405 being Lot 2 on CP865896;
(ii) PH 13/3268 being Lot 3268 on PH1495;
(iii) PH 13/3380 being Lot 3380 on PH1494; and
(iv) PH 13/3722 being Lot 3722 on PH1492;
(f)Dale Reginald Neilson in pastoral holding PH 4/3462 being Lot 3462 on PH1022;
(g)Andrew William Jesse Daniels, Samuel Donald James Daniels, Gabrielle Kennedy, Jeffrey Robert James Daniels and Luke William Jesse Daniels in term lease for pastoral purposes TL 0/2366039 being Lot 346 on SP255339;
(h)Chinova Resources Cloncurry Mines Pty Ltd ACN 106 255 216 in pastoral holding PH 13/5364 being Lot 5364 on PH1891;
(i)Donald James Grimshaw, Dulcie Carol Anderson and Phillip Martin Patrick Anderson in preferential pastoral holdings (PPHs):
(i) PPH 13/4174 being Lot 4174 on PH45;
(ii) PPH 13/3562 being Lot 3562 on SP261206; and
(iii) PPH 13/4596 being Lot 4596 on PH26;
(j)Jersey Plains Pastoral Company Pty Ltd ACN 010 615 246 in preferential pastoral holding PPH 4/4747 being Lot 4747 on PH1763;
(k)Argylla Mountains Pastoral Pty Ltd ACN 059 843 999 in preferential pastoral holding PPH 13/5212 being Lot 5212 on PH1878;
(l)William Henry Cameron in preferential pastoral holding PPH 13/5354 being Lot 5354 on PH1831; and
(m)Robert John McDonald in term Lease TL 0/234185 (pastoral) being Lot 2949 on SP223508.
4. The rights and interests of Telstra Corporation Limited ACN 051 775 556:
(a)as the owner or operator of telecommunications facilities within the Determination Area;
(b)created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land;
(ii)to install and operate existing and new telecommunication facilities; and
(iii)to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c)for its employees, agents or contractors to access its telecommunication facilities; and
(d)under any licences, access agreements or easements relating to its telecommunications facilities in the Determination Area, including under Term Lease 0/211376 over Lot 4 on CW839955.
5. 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.
6.The rights and interests of the State of Queensland, the Boulia Shire Council, the Cloncurry Shire Council and the McKinlay Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.
7.The rights and interests of the Boulia Shire Council, the Cloncurry Shire Council and the McKinlay Shire Council:
(a)under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be their respective local government area;
(b) as the:
(i)lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;
(ii)grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; or
(iii)holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area;
(c)as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:
(i)undedicated but constructed roads except for those not operated by Council;
(ii) water pipelines and water supply infrastructure;
(iii) drainage facilities; and
(iv) watering point facilities;
(d)to enter the land for the purposes described in paragraphs 7(b) and (c) above by their employees, agents or contractors to:
(i)exercise any of the rights and interests referred to in paragraph 7 above;
(ii)inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above; or
(iii)undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management.
8. The rights and interests of APT Pipelines (Qld) Pty Limited ACN 080 382 387:
(a)as the owner and operator of gaseous petroleum and associated liquid petroleum distribution facilities within the Determination Area; and
(b)as the holder of Pipeline Licence No. 42 dated 14 May 1998 granted under the Petroleum Act 1923 (Qld).
9.The rights and interests granted by the State of Queensland pursuant to statute, regulation or subordinate legislation, or in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, authorities, allocations, leases, claims, agreements or other instruments.
10. 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 or the Commonwealth.
11.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) stock routes;
(b) beds, banks and foreshores of waterways; and
(c) areas that were public places at the end of 31 December 1993.
Schedule 5 — External Boundary
The area described below does not include any areas that were not previously subject to:
• QUD189/10 Yulluna People (QC10/1) as accepted for registration 16 July 2010.
The External Boundary covers all the land and waters with the area described as:
Commencing at a point on a southern boundary of Native Title Determination QUD579/05 Kalkadoon People #4 (QC10/4), being the northernmost north eastern corner of Lot 22 on SP223509 (Trekelano Pastoral Holding), and extending generally south-westerly and southerly along boundaries of that pastoral holding to the northern boundary of Lot 2949 on SP223508 (Pilgrim Term Lease); then generally easterly along northern boundaries of that lot, northern and eastern boundaries of Lot 13 on SP223510 (Chatsworth Pastoral Development Holding) and northern boundaries of Lot 5364 on PH1891 (Starcross Pastoral Holding) to its intersection with the western bank of Maggie Creek; then generally south-easterly along banks of that creek to Longitude 140.553633° East; then generally southerly, generally south-easterly and easterly passing through the following coordinate points:
Point Longitude East Latitude South A 140.558182 21.563685 B 140.565037 21.595185 C 140.569749 21.636886 D 140.562114 21.667506 E 140.555417 21.687947 F 140.563388 21.716041 G 140.564307 21.751031 H 140.585267 21.768739 I 140.606406 21.793218 J 140.621460 21.815544 K 140.628345 21.848173 L 140.673230 21.858693 M 140.704098 21.886393 N 140.743639 21.922977 O 140.812359 21.922924 P 140.894246 21.919257
Then easterly to the western bank of the Hamilton River at Latitude 21.919465° South; then generally southerly along banks of that river to its intersection with a point due east of the easternmost corner of Lot 5328 on PH1749 (Burnham Pastoral Development Holding); then west to that corner and generally south-westerly, generally westerly, generally north-westerly, generally south-westerly, and westerly along boundaries of Lot 5328 on PH1749 to the eastern boundary of Lot 4174 on PH45 (Corrie Downs Preferential Pastoral Holding); then generally southerly, generally westerly and generally northerly along eastern boundaries of that lot, eastern, southern and western boundaries of Lot 4747 on PH1763 (Fort William Preferential Pastoral Holding), southern and western boundaries of Lot 3462 on PH1022 (Lurnea Pastoral Holding) and the western boundary of the western severance of Lot 3562 on SP261206 (WilIsdown Preferential Pastoral Holding) to the north-westernmost corner of that severance; then north-westerly to the centreline of Wills Creek at Longitude 139.837931° East; then generally north-westerly along the centreline of that creek to its intersection with a line joining coordinate points Longitude 139.772244° East, Latitude 22.122913' South and Longitude 139.774024° East, Latitude 22.122613° South, a point on the southern boundary of Native Title Determination QUD579/05 Kalkadoon People #4 (QC10/4); then generally north-easterly along the boundaries of that determination passing through the following coordinate points:
Point Longitude East Latitude South Q 139.774024 22.122613 R 139.776477 22.122410 S 139.781874 22.121963 T 139.791381 22.120024 U 139.811343 22.116162 V 139.842535 22.106118
Then easterly to the western boundary of Lot 13 on SP223510 (Chatsworth Pastoral Development Holding) at Latitude 22.097375° South; then generally northerly along boundaries of that lot and again boundaries of native title determination QUD579/05 Kalkadoon People #4 (QC10/4) to the southern boundary of Lot 16 on CW62 (Stanbroke Pastoral Holding); then generally westerly along boundaries of that lot and again boundaries of that native title determination to its intersection with the eastern bank of Wills Creek; then generally northerly along eastern banks of that creek and again boundaries of that native title determination to its intersection with the southern boundary of Lot 14 on CW52; then westerly, northerly, generally south-easterly and generally north-easterly along boundaries of that lot, and western boundaries of Lot 22 on SP223509 (Trekelano Pastoral Holding) to its intersection with the south-easterly prolongation of the southern boundary of Lot 79 on USL703; then north westerly to the boundary of that lot and generally north-westerly, generally northerly, generally easterly and southerly along western and north boundaries of that lot to the northern boundary of Lot 24 on D5989; then easterly along the boundary of that lot to again the western boundary of Lot 22 on SP223509 (Trekelano Pastoral Holding); then generally northerly and generally easterly along boundaries of that lot back to the commencement point.
This application does not include any land and waters subject to the following Native Title Determinations:
•QUD579/05 Kalkadoon People #4 (QC10/4) as determined by the Federal Court 12 December 2011 and effective 12 June 2012.
•QUD6025/99 Pitta Pitta People (QC99/27) as determined by the Federal Court 28 August 2012 and effective 17 January 2014.
Note:
Reference Data and Source:
•Application boundary based in part on spatial data sourced from Commonwealth of Australia, NNTT, November 2012.
•Native title determination boundaries sourced from Commonwealth of Australia, NNTT, November 2012.
Cadastral data sourced from Department of Natural Resources & Mines, Qld (October 2012).
•Rivers and creeks are based on Cadastral data where possible. Otherwise reference is made to 100k topographic vector data.
Reference Datum
•Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.
Use of Coordinates
Where coordinates are used within the description to represent cadastral or topographic boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 189 of 2010
BETWEEN: BRIAN SULLIVAN, VALERIE PUNCH, HAZEL SULLIVAN, STAN SULLIVAN AND ALLAN NAUMANN ON BEHALF OF THE YULLUNA PEOPLE #3
ApplicantAND: STATE OF QUEENSLAND
First RespondentBOULIA SHIRE COUNCIL
Second RespondentCLONCURRY SHIRE COUNCIL
Third RespondentMCKINLAY SHIRE COUNCIL
Fourth RespondentERGON ENERGY CORPORATION LIMITED
Fifth RespondentAPT PIPELINES (QLD) PTY LIMITED
Sixth RespondentROVERTON PTY LTD
Seventh RespondentCHINOVA RESOURCES CLONCURRY MINES PTY LTD ABN 22 106 255 216 (FORMERLY KNOWN AS INOVA RESOURCES CLONCURRY MINES PTY LTD)
Eighth RespondentCHINOVA RESOURCES OSBORNE PTY LTD ABN 84 061 300 025 (FORMERLY KNOWN AS INOVA RESOURCES (OSBORNE) PTY LTD)
Ninth RespondentEXCO RESOURCES LTD
Tenth RespondentEXCO RESOURCES (QLD) PTY LTD
Eleventh RespondentRICHARD ANDREW NANCARROW
Twelfth RespondentDULCIE CAROL ANDERSON, PHILLIP MARTIN PATRICK ANDERSON, ARGYLLA MOUNTAINS PASTORAL PTY LTD, WILLIAM HENRY CAMERON, ANDREW WILLIAM JESSE DANIELS, SAMUEL DONALD JAMES DANIELS, DONALD JAMES GRIMSHAW, HACON HOLDINGS PTY LTD, JERSEY PLAINS PASTORAL COMPANY PTY LTD, GABRIELLE KENNEDY, MDH PTY LTD ACN 010 114 468 AND DALE REGINALD NEILSON
Thirteenth Respondent
JUDGE:
DOWSETT J
DATE:
28 MARCH 2014
PLACE:
OSBORNE MINE VILLAGE
REASONS FOR JUDGMENT
On 1 June 2010 Brian Sullivan, Valerie Punch, Hazel Sullivan, Stan Sullivan and Allan Naumann, on behalf of the Yulluna People, applied for a determination that Native Title exists over an area of approximately 10,027 km2 in northwest Queensland, south of Mt Isa and Cloncurry and to the west of Dajarra. The State of Queensland, the Boulia, Cloncurry and McKinlay Shire Councils, various mining and exploration companies and twelve pastoralists are respondents to the application. A number of other persons were, but are no longer respondents.
Pursuant to s 13 and Pts 3 and 4 of the Native Title Act 1993 (Cth) (the “Act”), the Court may make determinations concerning Native Title in relation to areas over which there is no existing approved determination. The claim area is not subject to any such claim or determination.
On 21 February 2014 the parties filed an agreement pursuant to s 87 of the Act. The draft orders attached to the agreement recognize non‑exclusive Native Title rights and interests over the claim area. I must now decide whether I should make a Native Title determination which reflects the terms of that agreement. In considering whether it is appropriate that I do so, I must consider the interests of the parties, the efficient use of resources and the public interest.
Courts resolve matters which are in dispute between parties. The ambit of those disputes 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 generally narrowed. However where, as here, the proceedings may have significance for people other than the parties, the Court must give special consideration to the appropriateness of making consent orders.
In the present case the parties have identified the issues and resolved them by negotiation. The Yulluna People have had the benefit of appropriate legal advice as, I infer, have the other parties. I keep in mind the substantial public interest in matters of this kind. I see no reason to doubt that the proposed orders have been drafted with appropriate regard to that interest. The State and the three respondent local authorities are well placed to protect it.
Much of the evidence to which I shall refer comes from a report prepared by Mr Peter Blackwood, an anthropologist. The report is dated March 2013. Concerning the claim area he says:
25.The Yulluna claim area is one of variable and unpredictable rainfall. Mount Isa to the north has a mean annual rainfall of around 460 mm while Boulia to the south west receives a little over half that at 260 mm, with temperatures in the area averaging 17 to 31 Celsius. There is a degree of seasonality, with generally more rainfall in the summer months, and a distinctly cooler and drier winter.
26.The Yulluna claim area comprises a huge catchment dominated by the Burke and Mort Rivers and their innumerable tributaries, as well as, in the east, Sandy Creek and several other major tributaries of the Hamilton River. All these flow south and west out of the Selwyn Ranges into, ultimately, Lake Eyre. Indeed, a defining feature of Yulluna country mentioned by many claimants is that it is the country of the inland flowing rivers, as distinct from that of their Kalkadoon and Maithakuri (aka Mitakoodi) neighbours, whose countries lie on the other side of the Selwyn watershed, and whose rivers and tributaries, the Leichhardt and Cloncurry, all flow north to the Gulf of Carpentaria.
27.While the headwaters of these rivers and creeks in the Selwyn Ranges are quite rugged, their lower reaches in the southern and eastern area of the claim area flow through gentler country, much of which is relatively open and only lightly timbered. Permanent waterholes are numerous in the large creeks and rivers, with smaller soaks and rock holes found along the perennial watercourses. Applicant Brian Sullivan has commented “that the eastern country is good country; it is sort of flat, has pebbles, it is Mitchell grass and Flinders grass; very good cattle country”. Brian’s comments echo those made by Eglinton almost a century earlier, who wrote:
Much of it (North-west Queensland) consisting of open plains covered in rich Mitchell grass, which is of such a fattening nature that stock reared on it were able to travel many hundred miles to market, arriving there as fat as when leaving home (Eglinton 1920:1).
Mr Blackwood describes the subsistence economy of the Yulluna People at the time of first European contact as having the following characteristics:
• the dominance of woodland vegetation interspersed with grassland;
•main food resources of the region were those of rivers and swamps, grassland and woodland;
•patterns of seasonal movement and occupation dependent upon the cycle of flood and drought, and its effects on river levels;
• the burning-off of grasslands for hunting small game;
• harvesting of seed;
• extracting some animals and reptiles from ground burrows;
• harvesting of tree fruit and root foods;
• consumption of larvae, termites and the like;•on the rivers and waterholes, fish, waterbirds and aquatic vegetable species;
• hunting kangaroo, wallaby and emu.
Concerning first European contact, Mr Blackwood says:
29.Although they made no contact with the local people as they passed through this area, the presence of Aboriginal people on what is now the Yulluna claim area and evidence of their economic activity were first recorded by the exploration parties of Burke and Wills, who traversed the claim area from south to north over the period of about a week in the summer of 1861 and McKinlay who, searching for the missing Burke and Wills party, passed to the east of the claim area in 1862.
30.McKinlay in particular realised the grazing potential of this country, noting that it was relatively well watered and well grassed (McKinlay 1862:77,79). By the mid 1870s the first wave of pastoralists had begun taking up blocks on the claim area, which by 1880 was virtually entirely covered by pastoral leases, and has remained so since that time.
31.As will be discussed in the following chapter, by the end of the 19th century, the observations made by writers such as Roth show that while the traditional Aboriginal economy still existed, it did so as an adjunct and buffer to the dominant pastoral and mining industries, and while the descendants of the original Aboriginal groups for the area continued to live on and maintain a connection to their country, their mode of existence had shifted from hunter‑gatherer nomadism to that of semi-sedentary station and town camps.
In the claim area and in the wider region, the arrival of European settlers led to conflict between them and the traditional owners, inevitably causing great suffering and loss to the indigenous people. By 1897 the violence had more or less ceased, but the adverse consequences for the traditional owners remained.
At about the same time, the long history of the north‑west as a rich source of minerals and resulting wealth commenced. The Duchess copper mine opened in 1897. As might be expected, government administration of the indigenous people also started at this time, providing a mixed bag of benefits and further damage to traditional community life.
From as early as 1881, the indigenous people in the claim area were identified by Europeans as Yulluna. Their neighbours were the Kalkadoon and the Pitta Pitta. The Yulluna People have always shared a common language and traditional laws and customs, dealing with issues such as kinship, marriage and dietary restrictions. Mr Blackwood identifies the recognition in the literature, from early times, of Yulluna laws and customs concerning ownership and possession of land, stories, descent, filiation and authority. He traces the continuous connection of the Yulluna People to the claim area from prior to 1881 to the present time. I shall later deal with that evidence in a little more detail.
A number of members of the claim group have provided evidence concerning the matters in issue in these proceedings. This evidence gives a clear narrative of the ways in which traditional rights and interests are exercised today.
Brian Sullivan was born on the banks of the Malbon River. He learned much about Yulluna beliefs and stories from his grandfather. He tells of stories concerning the weather, the boundaries of Yulluna land and spiritual life. He outlines taboos and identifies sacred sites. He knows of bush medicines and bush food. He is now passing on his learning to his grandsons.
Valerie Punch was born on Chatsworth Station. Her grandfather was a big man in corroborees and traditional ways. Her mother showed her the graves on Chatsworth. At Mount Merlin there is a bore named after her other grandfather. Her father told her that the boundaries to Yulluna land could be identified by hills, rivers, paintings and stories. Ms Punch knows much about the dreaming sites, spiritual life and the bush.
Hazel Sullivan was born on the Mort River at Chatsworth. She considers the Selwyn Ranges watershed to be Yulluna country where she feels comfortable. On Chatsworth, she can feel the spirits of the departed elders. Her father was a ceremonial boss who arranged corroborees. Ms Sullivan knows much about sacred stories and bush tucker. She is passing on her knowledge to her grandchildren.
Stan Sullivan was born in Cloncurry. For all of his life he has maintained contact with Yulluna country. He knows much about the use and protection of country and the rules relating to entering other people’s country and other people entering Yulluna country. He knows about mining and how the miners should respect and use the country. As an elder he takes special interest in the education of the young people and their care. He also knows about spiritual matters. He understands the importance of looking after burial sites, campsites and corroboree grounds.
Allan Naumann was born in Richmond. His grandmother came from Chatsworth Station. He knows much about bush tucker and has been actively engaged in cultural heritage surveys and negotiation with mining and exploration companies.
I have also received evidence from Monique Shepherd, William Bamford, Evelyn James, Lauralee Punch, Shayman Shepherd, Melinda Punch, Tarhynee Punch, Grant Punch, Lyle James, Dan Long, Kathleen Sellers and Dorrie Prowse. Ms Prowse tells of growing up on Chatsworth Station and working there. She knows much concerning the boundaries of Yulluna land and about trails, bora grounds and other sacred sites. She also speaks of responsibilities for country, totems and taboos, marriage rules, hunting and fishing for, and gathering food, other natural resources, access to country and trespassing, spirits and magic, ceremony and dance, language and the teaching and learning of Yulluna law, custom and culture.
I have received extensive anthropological material in support of the application. I have previously referred to one of Mr Blackwood’s reports. The full list of such material is as follows:
·Dr Bruce Sommer & Elaine Sommer (2000) A Report on the Yulluna Peoples’ Connection with Their Land;
·Ophelia Rubinich (2009) Yulluna Peoples Pre-Sovereignty Report;
·Ophelia Rubinich (2010) Preliminary Anthropological Report Laws, Customs, Rights and Interests;
·Peter Blackwood (2012) Report on Yanda Tribe in relation to Yulluna Native Title Claim;
·Dr Nancy Williams (2013) Peer Review of Yulluna Connection Report;
·Peter Blackwood (2013) Yulluna Native Title Society Supplementary Report to Yulluna connection report.
A Native Title determination may only be made in favour of a claim group if it demonstrates that it is the successor to the group which, pursuant to traditional laws and customs, held rights and interests over the claimed lands and waters at the time of the first assertion of British sovereignty. The applicant must also show that over the intervening period, connection to the claim area has been maintained. As Brennan J said in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61:
But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its law and customs, the communal native title survives to be enjoyed by the members according to the rights and interests in which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.
Similarly, in Sampi (on behalf of the Bardi and Jawi People) v State of Western Australia (2010) 266 ALR 537 the Full Court (North and Mansfield JJ) said at [45]:
A relevant factor among the constellation of factors to be considered in determining whether a group constitutes a society in the Yorta Yorta sense is the internal view of the members of the Group – the emic view. The unity among members of the group required by Yorta Yorta means that they must identify as people together who are bound by one set of laws and customs or normative system.
This means that the group must, in effect, identify itself. Very often, this is done by identifying those recognized by the group as being its members, and then describing them by reference to identified ancestors. The next step is to explain how those ancestors were related to the area, going back to the first contact with European people. The Yulluna People are described in Schedule 3 to the proposed orders as being those people who are descended from Mick Moonlight, Willie Sullivan, Rosie O’Sullivan, Kitty Casey and Momas, or identify themselves as members of the Yulluna People and are so recognized by other Yulluna People.
Mr Blackwood’s March 2013 report provides a detailed overview of Yulluna society from 1861 until the present day. It identifies family groupings, traditional laws and customs, rights and interests arising out of such laws and customs and the activities undertaken by Yulluna People in, or with respect to the claim area, in the past, at present and in between those times. Mr Blackwood refers to a statement by a Yulluna elder, Lance Sullivan, concerning what it is to be Yulluna today. He said: “What makes people Yulluna is identity, old people, country, bloodline.”
Much information concerning the Yulluna People was recorded by Walter Roth. His records have been used extensively in later research. Roth qualified as a surgeon in London and was, from 1894 to 1897, surgeon to the Boulia, Cloncurry and Normanton Hospitals in North West Queensland. In this role he travelled throughout the region on horseback, closely observing the indigenous inhabitants. In 1897 he published his study of the various tribal groups, including the Yulluna People whom he identified as “Yelanga”.
By reference to Roth’s work and that of subsequent researchers, Mr Blackwood concludes that the Yulluna People continue to observe and acknowledge Yulluna traditional law and custom and to exercise their rights and interests, having done so from the first contact to the present day. Dr Nancy Williams, in reviewing the Blackwood Report, concludes that:
[i]t is reasonable to infer that ‘at the time of sovereignty’, interpreted as the date at which pastoralists took up property in the Claim Area and the ensuing decade during which direct observations were made on the life of Aboriginal people in the area, Yulluna people formed a discrete society: they continued to exist in identifiable communities on what had become pastoral properties on their land; they spoke a language that was distinguished from neighbouring others; they had distinctive customs. Their identity was based on their language and was transmitted by serial filiation.
Dr Williams continues:
[i]t is reasonable to infer from the evidence in the early post-sovereignty sources that at the time of sovereignty Yulluna formed a coherent and discrete society, although physically discontinuous. The material that Blackwood cites provides relevant detail of laws and customs, rights and interests. The inference, as Blackwood expresses it, is best derived from Roth’s work; that is that in north-west central Queensland a regional system of social organisation existed which transcended not only language-named tribes but also Roth’s ethnographical districts. These systems may be seen ‘to provide a wider regional framework within which there are laws of specific content which are held by each language named tribe, which are distinct from, while at the same time consistent systematically, with analogous laws in each tribe. These laws… derive ultimately from the beings and actions of the mythological era which is the framework of Yulluna (and their neighbours) cosmologies’.
Mr Blackwood has included a register of significant sites, including burial sites. He considers that the stories and dreamings of the mythological era and their associated sites continue to be, for the Yulluna, the basis of law in relation to connection to country. Stan Sullivan told him that:
Stories were drummed into us by my father [Willie Sullivan] and my grandfather [Mick] Moonlight. Some of the orders were from grandmother passed on to Lardie from Moonlight and Dad. For example, never go on anyone else’s country. If we were, we could feel we had done something wrong and it is a serious thing … We had to be careful. Later when we were in the workforce, [if] we went out of Yulluna country, say into Pitta Pitta tribe’s [area]. When you go there you got to have respect. Even if the people aren’t there the spirits are. You got to have respect for that country.
The evidence demonstrates the existence of organised indigenous occupation and possession of the claim area since first European contact. In all probability, the situation at that time was similar to that at the time of the first assertion of British sovereignty. The Yulluna People have shown that they have an unbroken physical connection to their country, from the date of sovereignty to the present day.
The parties to the s 87 agreement have agreed that the Native Title rights and interests in the area identified in Schedule 1 to the proposed orders are the non-exclusive rights to:
(a) access the area;
(b) camp, and for that purpose, build 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 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 ceremonies on the area;
(g)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;
(h) teach on the area the physical and spiritual attributes of the area; and
(i)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
Where the Court makes a determination of Native Title, ss 94A and 225 of the Act require that it set out details of relevant matters, particularly:
·the identity of the persons, or each group of persons, holding the common or group rights comprising the Native Title;
·the nature and extent of the Native Title rights and interests in relation to the determination area;
·the nature and extent of any other interests in relation to the determination area;
·the relationship between those rights and interests, (taking into account the effect of the Act); and
·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.
The draft orders, which are consistent with the terms agreed by the consenting parties, recognize that the Yulluna People, as the common law holders of the Native Title in the determination area, are entitled to non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. Schedule 3 to the orders recognizes other interests in the determination area and the relationship between those interests and the Native Title interests. The requirements of ss 94A and 225 are satisfied.
Sections 50 and 55 of the Act require the Court to determine whether the Native Title is to be held on trust and, if so, by whom it is so to be held. Order 15 of the proposed orders provides that the Native Title is to be held on trust. Mr Stan Sullivan, representing the claimants as Native Title holders, has notified the Court that Yulluna Aboriginal Corporation (ICN3789) (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)) is to be the prescribed body corporate for the purposes of s 56(2)(b) of the Act, to hold the Native Title for the common law holders, to perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1992 and for the other objects and purposes set out in its Rules. By draft O 16 the Yulluna Aboriginal Corporation (ICN 7112) is to be the prescribed body corporate for the purposes of s 56(2)(b) of the Act and, as such is to perform the functions set out in s 57(1).
I am satisfied that it is within the power of the Court to make the orders sought, and that those orders should be made, giving effect to the parties’ agreement. There is no need for a full hearing of the application. I therefore make orders in terms of the draft which I now initial and place with the papers.
These orders recognize the rights and interests of the Yulluna People, derived from their traditional laws and customs. In making these orders I hold that the law of Australia recognizes and protects those rights and interests. I have not come here today to give anything to the Yulluna People. Rather, I come on behalf of all Australian people to recognise existing rights and interests, which rights and interests have their roots in times before 1788. By such recognition I bind all people, for all time, including the State of Queensland and the Boulia, Cloncurry and McKinlay Shire Councils.
I acknowledge that such recognition comes very late in the history of the relationship between our indigenous people and other Australians whose traditional roots lay elsewhere. We hope that the proceedings today, and the process which has led to them will provide a base for a better future which we will all share.
On behalf of all Australians, but particularly on behalf of the Judges of this Court and our staff, I congratulate you, the Yulluna People upon this happy event and wish you well for the future.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 27 June 2014
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