The Lardil Peoples v State of Queensland

[2004] FCA 298

FEDERAL COURT OF AUSTRALIA

The Lardil Peoples v State of Queensland

[2004] FCA 298

NATIVE TITLE – determination of – land and waters in the Wellesley Islands region – claim to waters, bank and bed of river and seas – four applicant groups claiming native title over neighbouring ‘Countries’ – claim to shared native title by applicant groups over certain land and waters – boundaries between ‘Country’ of applicants – existence of sub-groups (estate groups) within identifiable community – whether traditional laws acknowledged and customs observed – rights and interests under traditional law and customs – concept of ‘ownership’

NATIVE TITLE – extinguishment – whether native title rights survived the assertion of British sovereignty – extinguishment of native title rights in relation to fishtraps

Native Title Act 1993 (Cth)
Aboriginal Land Act 1991 (Qld)
Harbours Act 1955 (Qld)
Harbour Boards Act 1892 (Qld)
Transport Operations (Marine Safety) Act 1994 (Qld)
Fisheries Act 1994 (Qld)
Mineral Resources Act 1989 (Qld)
Petroleum Act 1923 (Qld)

Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 followed
Western Australia v Ward [2002] HCA 28 followed
Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 followed
Commonwealth of Australia v Yarmirr (2000) 101 FCR 171 considered
Western Australia v Ward (1997) 76 FCR 492 considered

THE LARDIL, KAIADILT, YANGKAAL AND GANGALIDDA PEOPLES v STATE OF QUEENSLAND AND OTHERS
QG207 OF 1997

COOPER J
BRISBANE (HEARD MORNINGTON ISLAND AND BRISBANE)
23 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG207 OF 1997

BETWEEN:	THE LARDIL, KAIADILT, YANGKAAL AND GANGALIDDA PEOPLES APPLICANTS
AND:	STATE OF QUEENSLAND FIRST RESPONDENT
AND:	COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
AND:	PASMINCO CENTURY MINE LIMITED (ACN 006 670 300) THIRD RESPONDENT
AND:	MG KAILIS GULF FISHERIES PTY LTD (ACN 007 856 395) FOURTH RESPONDENT
AND:	LINDSAY KIRWAN CLEMSEN FIFTH RESPONDENT
AND:	BURKE SHIRE COUNCIL SIXTH RESPONDENT
AND:	ARMRAYNALD INVESTMENTS PTY LTD (ACN 068 291 403) SEVENTH RESPONDENT
AND:	ESCOTT CATTLE COMPANY (BN1927140) EIGHTH RESPONDENT
AND:	PANOY PTY LTD (ACN 010 023 346) NINTH RESPONDENT
AND:	GARY WARD TENTH RESPONDENT
AND:	QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC (INC NO A28588) ELEVENTH RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	23 MARCH 2004
WHERE MADE:	BRISBANE (HEARD MORNINGTON ISLAND AND BRISBANE)

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1.Native title exists in so much of the ‘determination area’ as is described in the first to fourth schedules inclusive, but otherwise, does not exist in the determination area.

2.The determination area is the area of land and waters between the visual horizon and the high water mark (‘the high water line’) marked on Australian Charts AUS303 and AUS304, forming part of Ex 164 in the proceedings, together with the land and waters of the Albert River from the coast inland to a notional line across the river where it meets the eastern boundary of Lot 122 on CP12, County of Porchester, Parish of Burke.

3.Native title is held by the Lardil peoples in the land and waters described in the first schedule.

4.Native title is held by the Yangkaal peoples in the land and waters described in the second schedule.

5.Native title is held by the Kaiadilt peoples in the land and waters described in the third schedule.

6.Native title is held by the Gangalidda peoples in the land and waters described in the fourth schedule.

7.The nature and extent of the native title rights and interests held by each of the Lardil, Yangkaal, Kaiadilt and Gangalidda peoples in respect of their separate land and waters described respectively in the first to fourth schedules inclusive is:

(1)The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed by and under their traditional laws and customs.

(2)The right to fish, hunt and gather living and plant resources, including the right to hunt and take turtle and dugong, in the inter-tidal zone and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under their traditional laws and customs.

(3)The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under their traditional laws and customs.

(4)The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within their respective traditional territory for the purposes of ritual or ceremony.

(5)In respect of the waters of the Albert River specified in the Fourth Schedule, the Gangalidda peoples have the right to:

(a)access the waters of the Albert River for the purposes of hunting, fishing and gathering for living and plant resources for personal, domestic and non-commercial consumption in accordance with and for the purposes allowed by and under their traditional laws and customs;

(b)fish, hunt and gather living and plant resources in the river for personal, domestic and non-commercial consumption in accordance with and for the purposes allowed by and under their traditional laws and customs;

(c)access the river in accordance with and for the purposes allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the river for purposes of ritual or ceremony.

8.The native title rights held by each of the native title holder groups do not confer possession, occupation, use and enjoyment of the land and waters to which they relate to the exclusion of all others.

9.There is no native title right or interest in minerals or petroleum within the meaning of those terms as defined in the Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) held by any of the native title holders in the determination area.

10.The nature and extent of other interests in relation to the determination area are the interests created by the Crown and the rights and interests of members of the public arising under the common law or international law recognised as applicable in Australia, set out in the fifth schedule.

11.The native title rights and interests described in par 7 are subject to regulation, control, curtailment or restriction by valid laws of the Commonwealth of Australia and/or the valid laws of the State of Queensland.

12.To the extent that any inconsistency exists between the native title rights and interests referred to in par 7 above and the rights conferred on other interests referred to in par 10 above, the native title rights and interests must yield to such other rights and interests.

13.Within 28 days the common law holders of native title are to file a minute of proposed determination under s 56 or s 57 of the Native Title Act 1993 (Cth) and if no such minute is filed, it is determined that native title is held by the common law holders in accordance with the terms of this determination.

14.Liberty to apply on five clear days notice.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

First Schedule

The land and waters in which the Lardil peoples hold native title are:

(i)subject to par (iii) below, the land and waters between the high water line on each of Mornington, Sydney and Wallaby Islands and a line five nautical miles seaward running parallel with it;

(ii)subject to par (iii) below, land and waters not within the area defined in par (i) above, being the lands and waters between the high water line on each of Rocky, Manowar, Moondalbee, Pisonia (or Turtle), Bountiful and Turrermurrer Islands and a line one-half of a nautical mile seaward and running parallel with it;

(iii)to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Yangkaal, Kaiadilt or Gangalidda peoples determined in accordance with this determination, the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay and in particular, the boundary between the land and waters of the Lardil and Yangkaal peoples is the mid-line of the Appel Channel.

Second Schedule

The land and waters in which the Yangkaal peoples hold native title are:

(i)subject to par (v) below, the land and waters between the high water line on each of Denham, Forsyth and Andrew Islands and a line five nautical miles seaward running parallel with it;

(ii)subject to pars (iii), (iv) and (v) below, land and waters not within the area defined in par (i) above, being the land and waters between the high water line on each of Roberts (or Pains), Allen, Little Allen, Francis (or Bayley) Islands and a line one-half of a nautical mile seaward and running parallel with it;

(iii)the land and waters of Allen, Little Allen and Horseshoe Islands as defined under par (ii) above, are shared equally with the Kaiadilt peoples and the Gangalidda peoples;

(iv)so much of the land and waters of Francis (or Bayley) and Robert Islands as defined under par (ii) above as are between the islands and the mainland at Bayley Point are shared equally with the Gangalidda peoples;

(v)to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Lardil, Gangalidda or Kaiadilt peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay, and in particular, the boundary between the land and waters of the Lardil and Yangkaal peoples is the mid-line of the Appel Channel.

Third Schedule

The land and waters in which the Kaiadilt peoples hold native title are:

(i)subject to pars (iii) and (iv) below, the land and waters between the high water line on each of Bentinck and Sweers Islands and a line five nautical miles seaward running parallel with it;

(ii)subject to pars (iii) and (iv) below, land and waters not within the area defined in par (i) above, being the land and waters between the high water line on each of Fowler, Albinia, Douglas, Bessie, Margaret, Allen, Little Allen, Horseshoe, Jawari and Dararrbayi Islands and a line one-half of a nautical mile seaward and running parallel with it;

(iii)the land and waters of Allen, Little Allen, and Horseshoe Islands as defined under par (ii) above, are shared equally with the Yangkaal and Gangalidda peoples;

(iv)to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Lardil, Yangkaal and Gangalidda peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay.

Fourth Schedule

The land and waters in which the Gangalidda peoples hold native title are:

(i)subject to par (vi) below, the land and waters between the high water line on the mainland coast between Massacre Inlet and the eastern bank of the Leichhardt River where it enters the Gulf of Carpentaria and a line five nautical miles seaward running parallel with it;

(ii)subject to pars (iv) and (vi) below, the land and waters not within the area defined in par (i) above, being the land and waters between Bayley Point and Francis (or Bayley) Island and Robert Islands within one-half of a nautical mile from the high water line on the southern shores of these islands;

(iii)subject to pars (v) and (vi) below, the land and waters not within the area defined in par (i) above, being the land and waters between Parker Point and Allen, Little Allen and Horseshoe Islands within one-half of a nautical mile from the high water line on the southern shores of these islands;

(iv)the land and waters in par (ii) above are shared equally with the Yangkaal peoples.

(v)the land and waters in par (iii) above are shared equally with the Yangkaal and Kaiadilt peoples;

(vi)to the extent that the waters defined in pars (i), (ii) and (iii) above overlay any waters of the Lardil, Yangkaal and Kaiadilt peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay.

(vii)the land and waters of the Albert River from the coast where it enters the Gulf of Carpentaria inland to a notional line across the river where it meets the eastern boundary of Lot 122 on CP 12, County of Porchester, Parish of Burke.

Fifth Schedule

The nature and extent of other interests in relation to the determination area are:

(a)other interests held by members of the public under the common law, including:

(i)the international law right of innocent passage;

(ii)the common law public right of navigation;

(iii)the common law public right to fish;

(b)the rights and interests of holders of a licence or an authority issued under the Fisheries Act 1994 (Qld), the Fisheries Regulation 1995 (Qld) and the Fisheries Management Act 1991 (Cth) or any other legislative scheme for the control, management and exploitation of the living resources within the determination area.

(c)the rights and interests of the holders of licences, certificates, permits and authorities issued under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld).

(d)the rights of Pasminco Century Mine Ltd ACN 006 670 300 under and subject to the conditions of a permit granted to it under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld) to place and maintain in position a buoy mooring in Investigator Road in the determination area.

(e)Albert River Reserve, being Lot 1 on Crown Plan 884324.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG207 OF 1997

BETWEEN:	THE LARDIL, KAIADILT, YANGKAAL AND GANGALIDDA PEOPLES APPLICANTS
AND:	STATE OF QUEENSLAND FIRST RESPONDENT
AND:	COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
AND:	PASMINCO CENTURY MINE LIMITED (ACN 006 670 300) THIRD RESPONDENT
AND:	MG KAILIS GULF FISHERIES PTY LTD (ACN 007 856 395) FOURTH RESPONDENT
AND:	LINDSAY KIRWAN CLEMSEN FIFTH RESPONDENT
AND:	BURKE SHIRE COUNCIL SIXTH RESPONDENT
AND:	ARMRAYNALD INVESTMENTS PTY LTD (ACN 068 291 403) SEVENTH RESPONDENT
AND:	ESCOTT CATTLE COMPANY (BN1927140) EIGHTH RESPONDENT
AND:	PANOY PTY LTD (ACN 010 023 346) NINTH RESPONDENT
AND:	GARY WARD TENTH RESPONDENT
AND:	QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC (INC NO A28588) ELEVENTH RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	23 MARCH 2004
WHERE MADE:	BRISBANE (HEARD MORNINGTON ISLAND AND BRISBANE)

REASONS FOR JUDGMENT

THE CLAIM

1. These proceedings are brought pursuant to s 61 of the Native Title Act 1993 (Cth) (‘the Act’). The applicants are the Lardil, Kaiadilt, Yangkaal and Gangalidda peoples (‘Lardil peoples’, ‘Kaiadilt peoples’, ‘Yangkaal peoples’, and ‘Gangalidda peoples’) currently living and their descendants. They seek a determination of native title in respect of the land and waters below the high water mark in an area of sea adjacent to the Wellesley Islands and adjacent to the coast of Queensland between Massacre Inlet and the Leichhardt River, in the Gulf of Carpentaria.

2. As lodged, the claim is brought as a single claim by the constituent group for exclusive ownership of the land and waters within the claim area, with each of the four groups claiming exclusive ownership to what it claims as their traditional territory.  The territories in issue are adjoining territories and in certain locations are shared.

3. The traditional territory claimed by the Lardil peoples is said to comprise the following islands of the North Wellesley group and the waters surrounding them:

   a.        Mornington Island (Gununa);
   b.        Sydney Island (Langunganji);
   c.        Wallaby Island (Lingunganji);
   d.        Rocky Island (Kalamburriya);
   e.        Manowar Island (Delmerriya or Wudma);
   f.         Moondalbee Island (Mundalbi);
   g.        Pisonia (or Turtle) Island (Meldan);
   h.        Bountiful Islands (Kalngkawa);  and

   i.         Turrermurrer Island (Kanhthathurru)

4. The boundary between the Lardil peoples’ territory and the territory of the Yangkaal peoples is formed by the Appel Channel.

5. The traditional territory claimed by the Yangkaal peoples is said to comprise the following islands of the North Wellesley group and the waters surrounding them: 

   a.Andrews Island (Walbadiin);

   b.Forsyth Island (Mayiyanba);

   c.Denham Island (Bathungan);

   d.Robert (or Pains) Island (Marrangkarba);

   e.Allen and Little Allen Island (Dijara);  and

   f.Francis (or Bayley) Island (Jurrmanki).

6. The Yangkaal peoples acknowledge shared interests in the waters between Francis and Robert Islands and the mainland with the Gangalidda peoples, and acknowledge shared interests with the Kaiadilt peoples in Allen, Little Allen and Horseshoe Islands and with the Kaiadilt peoples and the Gangalidda peoples in the waters surrounding them.

7. The traditional territory claimed by the Gangalidda peoples is said to comprise the coastal land stretching along the mainland coast of the Gulf of Carpentaria from Massacre Inlet to the eastern bank of the Leichhardt River, where it enters the Gulf of Carpentaria and the adjacent waters.  The Gangalidda peoples acknowledge that they have shared interests with the Yangkaal peoples in the waters from Bayley Point out to Bayley (Francis) Island and Robert (Pains) Island, and shared interests with the Yangkaal peoples and Kaiadilt peoples in the waters from Point Parker towards Allen, Little Allen and Horseshoe Islands.  They also claim the waters, banks and bed of the Albert River from where it enters the Gulf inland to a notional line drawn across the river where it meets the eastern boundary of Lot 122 on Crown Plan 12.

8. The traditional territory claimed by the Kaiadilt peoples is said to comprise the following islands in the South Wellesley group and the waters surrounding them: 

   a.        Bentinck Island;
   b.        Sweers Island (Ringurrng);
   c.        Fowler Island (Barthayi);
   d.        Albinia Island (Dalwayi);
   e.        Douglas Island (Nathayiwinda);
   f.         Bessie Island (Bildi-Kaarrku);
   g.        Margaret Island (Karndingarrbayi);
   h.        Allen Island (Ngaarrkinab or Thaliwirndiwuru);

   i.         Little Allen Island;
   j.         Horseshoe Island (Dijirr);
   k.        Jawari;  and
   l.         Dararrbayi.

9. The Kaiadilt peoples acknowledge shared interests with the Yangkaal peoples in Allen, Little Allen and Horseshoe Islands and with the Yangkaal and Gangalidda peoples in the waters surrounding them.

10. The Yangkaal, Kaiadilt and Gangalidda peoples claim exclusive joint ownership in the areas of shared interests.

11. The original application was lodged with the National Native Title Tribunal on 12 March 1996 for a determination of the native title.  By that application, the applicants sought a determination that they had the right of ownership to the claim area, being the right to exclusive and undisturbed occupation, possession, use and enjoyment of the land and waters including the natural resources (living and mineral) within the area.  That is, the applicants claimed ownership of:

    a.the land between high water mark and low water mark and the reefs within the claim area;

    b.        the waters within the claim area;
    c.        the sea bed within the claim area;
    d.        the subsoil within the claim area;  and
    e.        all natural resources, living and mineral, within the claim area.

1. The evidence in these proceedings was prepared and tendered in support of a determination in the form sought in the original application.  That is, the evidence was tendered to support a claim to ownership with the right to hold and enjoy all of the incidents which flowed from ownership of the land and waters in the claim area.  Subsequent to the conclusion of the evidence, the High Court of Australia handed down its decisions in three matters which impacted directly on the issues which arose in these proceedings.  The decisions of the High Court were Commonwealth of Australia v Yarmirr [2001] HCA 56 (‘Yarmirr’); (2001) 208 CLR 1; Western Australia v Ward [2002] HCA 28 (‘Ward’), and Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (‘Yorta Yorta’).

2. As a result of these High Court decisions, the applicants and each constituent group individually amended the terms of the Points of Claim previously filed and sought a determination in the following terms:

   ‘1.       Native title exists in relation to the Determination Area.

   2.        The native title is held by the Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples in accordance with the traditional laws acknowledged and traditional customs observed by them (“the Native Title Holders”) as common law holders.

   3.        Subject to paragraph 4 and the rights and interests identified in paragraph 5, the nature and extent of the native title rights and interests in relation to the Determination Area are:

   3.1the right of non-exclusive possession, occupation, use and enjoyment of the waters and land;

   3.2alternatively to 3.1, the non-exclusive right to occupy, use and enjoy the waters and land;

   3.3the right to enjoy the amenity of the Determination Area;

   3.4the right of access to the waters and land;

   3.5the right to take and use the resources of the waters and land, other than minerals and petroleum, including the right to -

   (i)        fish in the waters;

   (ii)       hunt and take turtle and dugong in the waters;

   (iii)      take plants and animals;

   (iv)      take soil, shell, clay, sand, gravel and rock;

   (v)       take spring water;

   3.6the right to protect sites of significance located in or on the waters or land, including the right to -

   (i)have access to sites of significance;

   (ii)carry out ritual and perform ceremony at sites of significance;

   (iii)prevent acts which may desecrate, damage or destroy sites of significance;

   3.7the right to construct, repair and maintain permanent structures, including rock wall fishtraps, on the land or in the waters;

   3.8the right to grant or refuse access to the waters or the land to people other than people exercising the public right of fishing or navigation, the right of innocent passage, or a right lawfully conferred by or granted pursuant to statute;

   3.9the right to grant or refuse permission to use the waters or the land to people other than people exercising the public right of fishing or navigation, the right of innocent passage, or a right lawfully conferred by or granted pursuant to statute;

   3.10the right to grant or refuse permission to take and use the resources of the waters or the land to people other than people exercising the public right of fishing or navigation, the right of innocent passage, or a right lawfully conferred by or granted pursuant to statute, including to -

   (i)hunt and take turtle and dugong in the waters;

   (ii)take animals which are not the subject of the right to fish;

   (iii)take plants;

   (iv)take soil, shell, clay, sand, gravel and rock;

   (iv)[sic]take spring water;

   3.11the right to protect the resources of the waters and land by taking steps to prevent acts which are not consistent with the reasonable exercise of public or statutory rights and which may cause damage, spoliation or destruction of the habitat of fish, plants or animals in or on the waters or land.

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

   (i)the laws of the State of Queensland and of the Commonwealth and valid interests conferred under those laws;  and

   (ii)traditional laws acknowledged and traditional customs observed by the Native Title Holders.

   5.        The nature and extent of any other interests in relation to the Determination Area are:

   (i)the rights and interests of the public under Reserve R14 which covers the Albert River;

   (ii)the international law right of innocent passage;

   (iii)the common law public right of navigation;

   (iv)the common law public right to fish;  and

   (v)any rights and interests of the holder of an authority issued under the Fisheries Act 1994 (Qld) and the Fisheries Management Act 1991 (Cth) that authorises a commercial fishing operation in the waters of the determination area as may be current at the date of the determination;

   (vi)any other rights and interests held by or under the Crown by the force and operation of the laws of the State or the Commonwealth as may be current at the date of this Determination.

   6.        The relationship between the native title rights and interests and the other rights and interests described in paragraph 5 (“the other rights and interests”) is that:

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

   (ii)the other rights and interests and an activity done in exercise of the rights conferred by or held under the other rights and interests prevail over the native title rights and interests and any exercise of those native title rights and interests.

   7.        The native title rights and interests do not confer a right of “possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others”.

   8.        The words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:

   “animal” has the meaning attributed to it in the Nature Conservation Act 1992 (Qld) as in force at the date of this determination;

   “Determination Area” means the waters and land as depicted on the attached chart, being the waters and land below the mean high water mark including the sea-bed and subsoil within the boundaries determined by the charts showing the distance to the sea horizon in the report prepared by the Australian Hydrographic Service filed in the proceeding on 9 December 1998 (Exhibit 164), together with the waters and land of the Albert River, not including the islands or banks above the high water mark, from the coast to a notional line across the river where it meets the eastern boundary of Lot 122 on CP 12, County of Porchester, Parish of Burke;

   “fish” means a member (whether living or dead) of a species that throughout its life cycle usually lives -

   (a)in water;  or

   (b)in or on foreshores;  or

   (c)in or on land under water;

   including all species of -

   (i)gilled invertebrates;

   (ii)sharks;

   (iii)stingrays, squid, octopus and jellyfish;

   (iv)prawns, crayfish, rock lobsters, crabs and other crustaceans;

   (v)scallops, oysters and other molluscs;

   (vi)shell fish;

   (vii)beche-de-mer and other holothurians;

   “minerals” has the meaning attributed to it in the Mineral Resources Act 1989 (Qld) as in force at the date of this determination;

   “petroleum” has the meaning attributed to it in the Petroleum Act 1923 (Qld) as in force at the date of this determination;

   “plant” has the meaning attributed to it in the Nature Conservation Act 1992 (Qld) as in force at the date of this determination and to avoid doubt includes seaweed and seagrass.’

   (Original emphasis)

3. In his final submission, Mr Basten QC, senior counsel on behalf of the applicants, put forward an alternative form of determination, which provided:

   ‘3.1     an interest in maintaining the land and waters of the determination area free from intrusion, interference and affectation inconsistent with the spiritual connection and responsibility for the land and waters;

   3.2      a right to be acknowledged as the native title holders for the determination area by:

   (a)Aboriginal people who are governed by the traditional laws and customs acknowledge [sic] and observed by the native title holders;

   (b)any person requiring consent to enter upon or use the land and waters of the determination area, and

   (c)any person seeking to do an act of the kind referred to in a relevant provision of Part 2, Div 3 of the Native Title Act in relation to the land or waters of the determination area.’

4. The boundaries of the claim area ultimately were fixed by reference to the high water mark on each of the islands and on the coast of Queensland between Massacre Inlet and the eastern bank of the Leichhardt River where it enters the Gulf of Carpentaria, and the sea horizon, the position of which was calculated by reference to certain high points on some of the islands within the claim area.  The boundary is shown on the charts in the report of the Australian Hydrographic Service (Ex 164 in the proceedings).  The boundaries were fixed on the basis that the rights were claimed in the seas for ‘as far as the eye could see’.  The claim area also includes the waters and lands of the Albert River, not including the islands or banks above the high water mark, from the coast to a notional line across the river where it meets the eastern boundary of Lot 122 on CP 12, County of Porchester, Parish of Burke.

   THE PARTIES

5. Section 84 of the Act makes provision for parties to applications made pursuant to s 61 of the Act. Pursuant to s 66 of the Act, numerous persons notified the Court that they wanted to be a party to the proceedings. Those persons became parties by the operation of s 84(3) of the Act. The State of Queensland became a party by operation of s 84(4) because part of the area covered by the application is within the jurisdictional limits of the State of Queensland. The Commonwealth of Australia became a party by intervention pursuant to s 84A of the Act.

6. By the time the application was to proceed to a hearing, many persons who had become parties withdrew or were excused from participation in the proceedings.  The only parties to take an active role to a greater or lesser extent in the hearing were the State of Queensland (described as the first respondent), the Commonwealth of Australia (described as the second respondent), Pasminco Century Mine Ltd ACN 006 670 300 (described as the third respondent), the pastoral companies Amraynald Investments Pty Ltd and Escott Cattle Company (described respectively as the seventh respondent and eighth respondent) and the Queensland Seafood Industry Association (described as the eleventh respondent).

7. On the hearing of the application, which occurred on Mornington Island in the Gulf of Carpentaria (in two instalments) and in Brisbane, affidavit material or witness statements were received into evidence from 58 indigenous persons, 55 of whom gave oral evidence and were cross-examined.  Evidence was given either orally or in written form by 47 non-indigenous witnesses, other than experts.

8. Expert reports and oral evidence were given by architect and anthropologist, Dr Paul Memmott in respect of the Lardil peoples and Yangkaal peoples, by linguist and anthropologist Dr Nicholas Evans in respect of the Kaiadilt peoples, and by anthropologist Dr David Trigger in respect of the Gangalidda peoples.  Each anthropologist prepared genealogies in respect of the particular group he was reporting on.  Each genealogy contains details of all currently identified members of each of the constituent groups.  An historical report made by Dr Thom Blake was tendered and marked Ex 143, as was a literature survey, marked Ex 172 and a report on fishtraps, marked Ex 173 by Dr Richard Robins, Senior Curator Archaeology at the Queensland Museum on behalf of the applicants.  Neither of these authors were cross-examined on these documents.  Numerous documents totalling several thousand pages were tendered on behalf of various parties.

   HISTORY OF EUROPEAN CONTACT

9. The relevant history is not contentious.  The first recorded exploration of the Gulf of Carpentaria was that of Jan Carstenez, Commander of the ship ‘Pera’ in 1623.  This was followed by Abel Tasman in 1642-43, and on a second occasion in 1644.  In 1788, British sovereignty was asserted in relation to the territory called New South Wales, extending from the northern cape or extremity of the coast called Cape York and all country inland westward as far as the 135th degree of east longitude.  In 1859, by letters patent issued pursuant to s 7 of the New South Wales Constitution Act 1855 (Imp), the colony of Queensland was established.  The colony’s western boundary was fixed at the 141st degree of east longitude.  In March 1862, pursuant to s 2 of the Australian Colonies Act 1861 (Imp), Queen Victoria annexed to the colony of Queensland all the adjacent islands in the Gulf of Carpentaria and extended the colony’s western boundary from the 141st degree of east longitude to the 138th degree of east longitude.  Upon acquiring sovereignty of the landmass of New South Wales, Great Britain acquired the adjoining territorial sea:  New South Wales v Commonwealth (1975) 135 CLR 337 at 361, 362 - 363, 374, 486, 487, 493, 494. The seaward boundary of the colony of New South Wales and later the colony of Queensland, did not extend into the territorial sea. That territorial sea extended three nautical miles. Since the original assertions of sovereignty, the territorial sea has become the territorial sea of Australia and has been extended in accordance with customary international law and international conventions to which Australia has become a party.

10. Matthew Flinders in the ‘HMS Investigator’ reached the southern part of the Gulf of Carpentaria in November 1802, and remained in the vicinity of the Wellesley Islands for over a month.  Flinders named the group of islands after Richard Wellesley, the second Earl of Mornington, and individually named Sweers, Bentinck, Allen and Mornington Islands.  He also named the safe anchorage between Bentinck and Sweers Islands as ‘Investigator Road’:  Blake Ex 143 at 2.

11. The journal of Flinders’ journey was published in 1814.  In 1962, Norman Tindale, the Curator of Anthropology and Acting Director of the South Australian Museum, published some of the findings of Flinders as well as quotes from his journal describing his encounter with the indigenous people.  In this article, entitled ‘Geographical Knowledge of the Kaiadilt People of Bentinck Island, Queensland’ (Records of the South Australian Museum, Vol 14, No 2, 27 July 1962), Tindale wrote (at 262 - 263):

    ‘Sweers Island, the eastern-most of the Bentinck Island group was the first high ground in the Gulf of Carpentaria seen by Flinders.  He describes his first anchorage at the southern end of the island but makes no reference to a low rounded island known to present day Kaiadilt aborigines as Dingkari [’Dinkari].  This islet lies due south of Bardatur [’Bardatur].  Dingkari is stated to be a nesting place for gannets and on our visit they were seen flying there.  Between it and Sweers Island is a reef called Karandjalt [’Karandjalt].

    Flinders anchored off Bardatur and on 17 November 1802 landed on the beach called Tjilki [’Tji:lki] making his way to Inspection Hill, a limestone elevation 104 feet high, from which he had his first extensive view of the island group.  This hill is the Durakara [’Du:rakar, ’Du:rakara] of the Kaiadilt;  the name is applied specifically to the supposedly never-failing spring which oozes from rocks at the eastern base of the hill and trickles into the sea at low tide from small rock pools.  This water is quite fresh.

    Flinders found safe anchorage off the western point of Sweers Island, known to present day natives as Milt [’Milt], and after exploring to the west spent several weeks repairing his ship.

    He described his one close encounter with the aborigines, near Allen Island on the 20th November 1802, in the following passages.  “I went eastward to a smaller island, two miles off, where several Indians were perceived.  The water was too shallow for the boat to get near them;  but we landed at a little distance, and walked after three men who were dragging six small rafts toward the extreme northern rocks, where three other natives were sitting.

    “These men not choosing to abandon their rafts, an interview was unavoidable, and they came on shore with their spears to await our approach.  One of us advanced towards them, unarmed;  and signs being made to lay down their spears, which was understood to mean that they should sit down, they complied;  and by degrees a friendly intercourse was established ... The rafts consisted of several straight branches of mangrove, very much dried, and lashed together in two places with the largest ends one way, so as to form a broad part, and the smaller ends closing to a point.  Near the broad end was a bunch of grass, where the man sits to paddle, but the raft, with his weight above, must swim very deep;  and also I should scarcely have supposed it could float a man at all.  Upon one of the rafts was a short net, which from the size of the meshes was probably intended to catch turtle;  upon another was a young shark;  and these, with their paddles and spears seemed to constitute the whole of their earthly riches ...

    “After being five minutes with them, the old men proposed to go to our boat;  and this being agreed to, we proceeded together, hand in hand.  But they stopped half way, and retreating a little, the oldest made a short harangue which concluded with the word jahree! Pronounced with emphasis;  they then returned to the rafts, and dragged them towards their three companions, who were sitting on the furthest rocks.  These I judged to be women, and that the proposal of the men to go to our boat was a feint to get us further from them;  it did not seem, however, that the women were so much afraid of us, as the men appeared to be on their account;  for although we walked back, past the rafts much nearer than before, they remained very quietly picking oysters.  It was not my desire to annoy these poor people;  and therefore leaving them to their own way we took an opposite direction to examine the island.”

    The rafts, shell water vessels, fish nets, and fillets described by Flinders are still in use.

    In addition to the six natives on Horse-shoe Island, natives were repeatedly seen both on Sweers and Bentinck Islands and one of his officers found a small hole containing a little muddy water with a shell lying near it.  This was dug out to become the well near Milt which has remained in use up to the present time.

    The natives were elusive.  Fireplaces were found under trees and one instance a large hole was found to contain two “apartments” in each of which a man might lie down.  Flinders considered these “caves” to be their foul-weather residences and the fireplaces under the shade of the trees, with dried grass spread around, their fine-weather camps.  The earth of dry swamps was found to be so dug up with pointed sticks that it resembled the work of a herd of swine.  He inferred that they obtained a “fern or similar root” from the mud.’

12. The next recorded observation of the Wellesley Islands was that of Captain J L Stokes in the ‘Beagle’ in July 1841.  Tindale records (at 264) that Stokes observed three separate groups of indigenous peoples on Bentinck, Sweers and Allen Islands in July 1841 in the same three areas in which indigenous peoples were noted by Flinders in 1802.

13. In 1865, Burketown was established 12 miles inland from the Gulf.  Burketown was surveyed in 1866 and a town reserve proclaimed in the Queensland Government Gazette on 8 August 1866.  In May 1866, William Landsborough, Police Magistrate, directed that fever victims in Burketown be moved to Sweers Island for their recuperation:  Blake Ex 143 at 16.  In 1867, construction of a Court House, lock-up and Crown Lands Office in Burketown was approved.

1. On Sweers Island a township was surveyed and called Carnarvon.  The surveyed lots in Carnarvon were sold in 1867, and by July 1868 the town was reported as comprising about 35 residents with 15 houses, a hotel, a store and Customs House:  Blake Ex 143 at 18.  In his report, Blake records the interaction between the Kaiadilt peoples and the European settlers on Sweers Island by reference to the available historical records and studies:  at 19 - 23.  That contact was at times violent, with the Kaiadilt peoples retreating to Bentinck Island, but still visiting Sweers Island.

2. By 1873, the township of Carnarvon was in serious decline and the Customs House was moved from Sweers Island in that year.  The township was abandoned and the last resident, McLennan, died there in 1874.

3. Blake records the land exploration in the mainland areas adjacent to the southern end of the Gulf in the 1840s to the 1860s, and the reports of contact with the indigenous peoples of that area:  at 7 - 8.  He also notes the development of the pastoral industry in that area and its fall by 1872.  Importantly, he records the closure, in September 1894, of the camps which had been established by indigenous people near Burketown, and the return of those people ‘to their old hunting grounds’ by Inspector J Lamond of the Queensland Police.  Blake Ex 143 at 26, quotes a letter from L Ordish, the officer in charge of the Turn Off Lagoons Police, dated 12 November 1899, which states:

   ‘There are about 430 blacks in the District distributed throughout the districts as follows:

   “Carawa” tribe 130 camping at the head of the Nicholson
   “Miukius” 30 camping on the Leichhardt
   “Waggias” 50 camping on Gun Porbaer Creek
   “Wauyee” 30 camping the Gregory
   “Yanular” 10 camping on the Nicholson
   “Point Parker Tribe” 130 camping on Moonlight Creek
   “Euchlo” 50 camping between Point Parker and SA border.

   The blacks are all in very good health, especially those who have been constantly living in the bush on native food.’

4. Police Inspector F Urquhart, Commissioner of Police, in a report dated 25 June 1896, reported that the coastal strip between the Northern Territory border and Point Parker was ‘wholly unoccupied except by the blacks’:  Blake Ex 143 at 27.  It was an area unsuitable for cattle and thus unoccupied by pastoralists:  Blake Ex 143 at 27.

5. In 1897, the Queensland Government passed the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (‘the AP Act’).  The AP Act provided for the appointment of protectors to discharge certain statutory functions and for the establishment of reserves administered by superintendents.  There was statutory authority under the AP Act to remove indigenous persons to a reserve.  Dr Walter Roth was appointed the Northern Protector of Aboriginals.

6. Roth first visited the Wellesley group in June 1901.  Roth encountered indigenous persons on Bentinck Island and Mornington Island.  He undertook further visits in 1902 and 1903.  In relation to the two later visits, Blake observed (at 30):

   ‘Roth returned to the Wellesley Islands in 1902 and again in 1903.  (No report of Roth’s second visit appears in the official correspondence.  Roth, in the report of his 1903 visit, states it was his third visit to the island (WE Roth to Under Secretary, Department of Public Lands, 27 June 1903, QSA A/33681)).  In what had been a familiar pattern, the Kaiadilt showed no interest in dialogue with outsiders.  On this trip Roth failed to make any direct contact with the Kaiadilt.  From an examination of their camps, Roth concluded that “the Bentinck Islanders, from an ethnological point of view would appear to have been isolated from the mainland for generations past”.  (Ibid.)  Roth visited other islands and make [sic] contact with a group on Forsyth Island.  Indeed, Roth had the “opportunity of examining closely some 10 of these aboriginals, male and female, adult and infant”.  (Ibid.)  He observed several differences to the Kaiadilt and concluded that the Forsyth Islanders had close contact with the mainland via Raines and Bayley Islands.  Roth spent three days walking across Mornington Island but again had only limited success in having close contact with the Lardil.  After observing all three main groups on the Wellesley Islands, Roth concluded that the Forsyth and Mornington Islanders were linguistically related to the Nicholson River language, but not with the Bentinck Islanders.  (Ibid.)’

7. In 1905, a reserve was declared in respect of the Wellesley Islands group (with the exception of Sweers Island).  The reserve was by proclamation under s 19 and s 190 of the Land Act 1897 declared in respect of an area of about 383 square miles ‘Comprising all the islands in the Gulf of Carpentaria known as the Wellesley Group, including the Forsyth Group and the South Wellesley Islands, with the exception of Sweer’s Island’:  Queensland Government Gazette, 22 April 1905, p 1403.  The reserve was for the use of the indigenous inhabitants of the State.

8. In May 1914, the Presbyterian Church established the Mornington Island Mission with Robert Hall as superintendent.  Hall was murdered by a Lardil man in October 1917 and was replaced by Rev R H Wilson in 1918.  By 1925, a girls dormitory had been built with a second completed by 1931.  The boys dormitory was built in 1929.  During the same period some Lardil people established a permanent camp near the mission.

9. Between 1919 and 1936, 63 indigenous people were removed to Mornington Island, two-thirds of whom were children:  Blake Ex 143 at 38.

10. In 1934, a reserve for the use of the indigenous inhabitants of the State was declared in respect of Sweers Island, exclusive of freehold allotments in the town of Carnarvon and streets giving access thereto:  Queensland Government Gazette, 4 August 1934, p 344.

11. In 1944, the mission staff, who had been withdrawn in 1941 because of World War II, returned to Mornington Island.

12. The movement of the Kaiadilt peoples to Mornington Island began in 1945.  They are recorded by Tindale in his 1962 paper (at 269 - 271): 

    ‘In early June 1945 Gully Peters who had been for so long a leader in attempting to make contact with the Kaiadilt and had been present on the launch during the attack at Milt, took the Mission launch Albinia to the western end of Bentinck Island.  He had a friendly meeting with the Bentinck Islanders and on 6th June returned to Mornington Island with 29 persons aboard.  These people were of more than one western dolnoro, including six men, four boys, thirteen women and six children.  A month later, after seeing life on a Mission Station, these people were taken back to Bentinck Island.

    In September and October 1946 drought conditions prevailed in the area.  Brief contacts were made with Bentinck Islanders while searches were being made for the Albinia which had disappeared in a storm, with all hands.  At first it was though the Islanders had been responsible for her loss.

    On 10 June 1947 a young Bentinck Island male, two women and a boy and girl were found in distress on Allen Island, remnants of a party which had fled from Bentinck Island after a fight.  They were suffering from a shortage of water and were removed to the Mission.

    On 3 August, 1947, Mission Superintendent J.B. McCarthy found 42 men, women and children on Sweers Island and took them to the Mission.  They were in poor condition because of the drought.  Dr. J.A. Spalding examined these people in December 1947 and also visited Bentinck Island, himself suffering shipwreck during the return voyage.  He noted the presence of some edible berries, fruits, roots and grasses on the banks of the Markaruki river.  Ten of seventeen children examined by him showed some degree of malnutrition.  He noted that smears were negative but that symptoms of “chronic lung infections ? [sic] tuberculosis” were present, mainly among women.  Hook-worm was absent.  He concluded that the Bentinck Islanders were rapidly dying out and ascribed their decline to “(1)  tribal warfare, (2) disease, mainly tuberculosis(?) and dysentery and (3) malnutrition among the young.”

    The aborigines still remaining on Bentinck Island in February 1948 suffered the effects of an extraordinary high tide or tidal wave, described elsewhere in this paper.  This appeared to be a culminating event in the deterioration of the homeland of the Kaiadilt.

    Drought conditions continued in the Gulf of Carpentaria during 1948 and because of the tidal wave the main coastal waterholes on Mornington Island were salty.  Alarm was expressed at the possible fate of the remaining \population of Bentinck Islanders and smoke signals seen were interpreted as being distress calls.  A police party in the launch Marlin therefore went to the island on 16th October 1948.  According to a report by Missioner McCarthy they found pot holes dug along the beach, all of them dry;  the usual camps were deserted;  one hole at the eastern end of Dalwai [’Dalwai:] (Albinia Island) still contained water.  Tracks were found on the south coast at “MacKenzie Creek”.  The whole of the area around the waterhole had been burned off and looked as if it had been ploughed, “probably by the women, digging with sticks for roots”.  The aboriginal explanation, given in 1960 was that water-bearing frogs had been sought in the swampy soil.  Sixteen persons were found and taken to Mornington Island;  three people still remained on the island.  The latter were picked up during a second visit on 21st October 1948, thus bringing to a close the occupation of the island.

    McCarthy’s notes, written at the time, state that “Bentinck Island is in an appalling condition.  There is no drinkable water in the north of the island and this has forced [the] remaining population to come together, probably for their betterment, as they had evidently hunted together and this would have assisted them very much.  The physical condition of the men and women is not as bad as that of the people brought over in 1947 but the children are in very bad shape.  I think my figures are correct when I estimate that there have been ten deaths among women and children and only two births since my visit in December 1947.”

    Since 1948 the Kaiadilt have lived in a small closed community near the Mission on Mornington Island.  Here they have built their own fish traps and have learned to speak a little English.  They have not married out of their community. ...’

13. The granting of land along the coast at the southern end of the Gulf of Carpentaria for pastoral purposes which began in the 1860s is described by Blake in his report at pp 10 - 11.  The reservations of land for public purposes along the Albert and Leichhardt Rivers in 1865 and the granting of special leases under the Land Act 1910 (Qld) between 1936 and 1960 are set out in the Tenure History Ex 94.

14. In 1932, a mission (Old Doomadgee) was established by the Christian Brethren on a reserve at Bayley Point, 100 kilometres north-west of Burketown.  In 1936, much of the mission was destroyed by a cyclone and, at the suggestion of Chief Protector Bleakley, a new Doomadgee Mission was established on the Nicholson River, 80 kilometres west of Burketown.  Melville Read was appointed superintendent of the new Doomadgee Mission and indigenous groups and families were moved from the Burketown camp and from the surrounding station camps to the new Doomadgee Mission.  The mission consisted of a mission area and a village area for indigenous residents.  The mission included provision for dormitory accommodation for children.  Ultimately, with the operation of the mission ceasing, the reserve area was administered under the Community Services (Aborigines) Act 1984 (Qld).

15. In 1978, the reserve created in 1905 in respect of the Wellesley group of islands and amended in 1978, was rescinded:  Queensland Government Gazette, 6 April 1978, p 741.

16. In 1978, the Mornington Island Shire Council was created under the Local Government (Aboriginal Lands) Act 1978 (Qld). Leasehold title, for the objects and purposes of this Act, in respect of ‘ALL THAT LAND in the County of WELLESLEY, PARISH OF MORNINGTON containing an area of 119 200 hectares approximately, and comprising all the islands known as the Wellesley Islands, Forsyth Islands and the South Wellesley Islands, exclusive of Sweers Islands, bounded by the high water mark at mean spring tides of the main sea of the Gulf of Carpentaria, and being the area delineated on map No. SC212 deposited in the Department of Mapping and Surveying at Brisbane.’ for a period of 50 years was vested in the Council.

17. On 5 August 1989, the reserve with respect to Sweers Island, created in 1934, was placed under the control of the Under-Secretary, Department of Community Services and Ethnic Affairs as trustee:  Queensland Government Gazette, 5 August 1989, p 293.  The reserve was repealed in 1994:  Queensland Government Gazette, 13 May 1994, p 257 - 258.

18. In 1994, a deed of grant in trust under the Aboriginal Land Act 1991 (Qld) was granted to the Kaiadilt Aboriginal Land Trust as trustee for the Kaiadilt peoples of Sweers, Fowler, Bentinck, Albinia, Little Allen, Horseshoe, Margaret, Bessie and Douglas Islands, subject to the encumbrances noted on the deed of grant. The deed of grant took effect on 22 September 1994.

19. In 1994, a deed of grant in trust under the Aboriginal Land Act 1991 (Qld) was also granted to the Ngaarrkinaba/Mildiji Land Trust as trustee in respect of Allen Island. This deed of grant also took effect on 22 September 1994.

    THE LAW IN RELATION TO NATIVE TITLE

20. The native title, which it is the object of the Act to recognise and protect, is that defined in s 223, which so far as presently relevant, provides:

    ‘223     Native Title

    Common law rights and interests

    (1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

    (a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;  and

    (b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters;  and

    (c)the rights and interests are recognised by the common law of Australia.

    Hunting, gathering and fishing covered

    (2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

    Statutory rights and interests

    (3)Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

    Note:   Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a permissible future act.

    Subsection (3) does not apply to statutory access rights

    (3A)Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

    Case note covered by subsection (3)

    (4)To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

    (a)in a pastoral lease granted before 1 January 1994; or

    (b)in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.’

    (Original emphasis)

21. What is to be determined upon a determination of native title is contained in s 225 of the Act, which provides:

    ‘225     Determination of native title

    A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

    (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

    (b)the nature and extent of the native title rights and interests in relation to the determination area; and

    (c)the nature and extent of any other interests in relation to the determination area; and

    (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

    (e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

    Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.’
    (Original emphasis)

22. Guidance as to how the requirements of s 225 are to be discharged by this Court, which are relevant to the form of the draft determination contended for by the applicants in this application, is given in the majority judgment in Ward (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Their Honours said:

    ‘[51] A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area. (s 225(b))  Where, as was the case here in relation to some parts of the claim area, native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.

    [52]     It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants’ statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.

    [53]     Further, to find that, according to traditional law and culture, there is a right to control access to land, or to make decisions about its use, but that the right is not an exclusive right, may mask the fact that there is an unresolved question of extinguishment. At the least, it requires close attention to the statement of “the relationship” between the native title rights and interests and the “other interests” relating to the determination area. (s 225(d))’
    (Original emphasis)

23. In Yarmirr, the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said, as to the rights and interests with which the Act deals:

    ‘[9]     The rights and interests with which the Act deals may be communal, group or individual rights and interests. They are described as rights and interests in relation to land or waters. They are rights and interests which must have three characteristics (s 223).  First, they are possessed under the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned. Secondly, those peoples, by those laws and customs, must have a “connection” with the land or waters. Thirdly, the rights and interests must be recognised by the common law of Australia.

    [10]     Disputes of the present type require examination of the way in which two radically different social and legal systems intersect. As was pointed out in the joint judgment in Fejo v Northern Territory ((1998) 195 CLR 96 at 128 [46], per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ):

    “Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title (Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58 per Brennan J). Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law (Mabo [No 2] (1992) 175 CLR 1 at 59 - 61 per Brennan J). There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.”’

    (Original emphasis)

I certify that the preceding two hundred and forty-five (245) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:       

Dated:            23 March 2004

Counsel for the Applicant:

J Basten QC, R Howie SC and D Parsons SC

Solicitor for the Applicant:

Chalk & Fitzgerald

Counsel for the First Respondent:

D Mullins SC until 20 March 2000

And then G Hiley QC and S McLeod

Solicitor for the First Respondent:

Crown Law

Counsel for the Second Respondent

J Bond SC and G Loughton

Solicitor for the Second Respondent:

Australian Government Solicitor

Counsel for the Third Respondent:

D O’Brien

Solicitor for the Third Respondent:

Blake Dawson Waldron

Solicitor for the Seventh, Eighth and Ninth Respondents:

M Boge, Thynne and Macartney

Counsel for the Eleventh Respondent:

P Flanagan

Solicitor for the Eleventh Respondent:

Gore and Associates

Dates of Hearing:

20, 21, 22, 23 and 24 September 1999

14, 18, 19, 20 21, 22, 23, 25, 26 and 27 September 2000

9, 10, 11, 17, 30 and 31 October 2000

1, 2, 3, 6, 7, 8, 9, 10, 13 and 14 November 2000

Further Written Submissions:

30 September 2002,

1 November 2002

5 and 6 November 2002

Further Dates of Hearing:

16 and 17 December 2002

Date of Judgment:

23 March 2004