Anderson on behalf of the Quandamooka People (Mulgumpin/Moreton Island Claim v State of Queensland

Anderson on behalf of the Quandamooka People (Mulgumpin/Moreton Island Claim v State of Queensland - [2019] FCA 2001 - FCA 2019 case summary — Zoe

[4]

The Determination Area is the land and waters described in Schedule 2, and depicted in the maps attached at Schedule 3. To the extent of any inconsistency between the written description of the Determination Area and the maps in Schedule 3, the written description of the Determination Area prevails.
As to the existence of native title: (a) subject to paragraph 2(a): (i) native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 2; (ii) native title does not exist in relation to that part of the Determination Area described in Part 4(a) of Schedule 2; (b) subject to paragraph 2(b), native title does not exist in relation to that part of the Determination Area described in Part 4(b) of Schedule 2.
The native title is held communally by the Quandamooka People described in Schedule 1 ("the native title holders").
Subject to paragraphs 10, 11 and 12, the nature and extent of the native title rights and interests, other than in relation to Water, are: (a) in relation to that part of the Determination Area described in Part 1 of Schedule 2, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; (b) in relation to that part of the Determination Area described in Part 2 of Schedule 2, the non-exclusive rights to: (i) Live and be present on the area; (ii) take, use, share and exchange Traditional Natural Resources for personal, domestic and non-commercial communal purposes; (iii) conduct burial rites; (iv) conduct ceremonies; (v) teach on the area about the physical and spiritual attributes of the area; (vi) 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; (vii) light fires for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and (viii) be accompanied into the area by non-Quandamooka people being:
1. people required by traditional law and custom for the performance of ceremonies or cultural activities; and
2. people required by the Quandamooka people to assist in observing or recording traditional activities on the area.
Subject to paragraphs 10, 11 and 12, the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to: (a) take and use Traditional Natural Resources from the Water for personal, domestic and non-commercial communal purposes; and (b) take and use the Water for personal, domestic and non-commercial communal purposes.
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.
The native title rights and interests referred to in paragraphs 8(b) and 9 do not confer possession, occupation, use or enjoyment of the area to the exclusion of all others.
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).
The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) ("the Other Interests") are set out in Schedule 5.
The relationship between the native title rights and interests described in paragraphs 8 and 9 of the determination and the Other Interests described in Schedule 5 is that: (a) the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency for so long as the Other Interests exist; and (c) the Other Interests and any activity that is required or permitted by or under, and done in accordance with, the Other Interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests to the extent of any inconsistency, but do not extinguish them except in accordance with the law.

[8]

All of the land and waters described in the following table and depicted in dark blue on the determination map in Schedule 3: Area Description Map Sheet (at date of determination) That part of Lot 2 on Plan SL12157 subject to a strip of land five chains wide (100.58 meters) landward of the High Water Mark * Sheet 9 That part of Lot 114 on Plan SP183608 commencing at a point on the eastern boundary of Lot 114 on SP183608 at Latitude 27.075227 South, and extending south-easterly then south-westerly along the boundaries of that lot to the north-westernmost corner of Lot 48 on SL10011; and continuing south-westerly to the intersection with the eastern boundary of Moreton Street at Latitude 27.076585 South; then northerly along the boundary of that road to Latitude 27.07628 South; then north-easterly back to the commencement point, passing through Longitude 153.371289 East, Latitude 27.075888 South. ** Sheet 3 Lot 53 on Plan SL12539 ** Sheet 10 Lot 54 on Plan SL12539 ** Sheet 10

[10]

All of the land and waters described in the following table and depicted in light blue on the determination map in Schedule 3: Area Description Map Sheet (at date of determination) That part of Lot 109 on Plan USL20221 excluding former Allotment 1 of Section 7 on Plan B731 Sheet 4 That part of Lot 111 on Plan USL20220 excluding former Lot 9 on Plan SL2265 Sheet 5 That part of Lot 114 on Plan SP183608 excluding the area described as commencing at a point on the eastern boundary of Lot 114 on SP183608 at Latitude 27.075227 South, and extending south-easterly then south-westerly along the boundaries of that lot to the north-westernmost corner of Lot 48 on SL10011; and continuing south-westerly to the intersection with the eastern boundary of Moreton Street at Latitude 27.076585 South; then northerly along the boundary of that road to Latitude 27.07628 South; then north-easterly back to the commencement point, passing through Longitude 153.371289 East, Latitude 27.075888 South. Sheet 3 Lot 115 on Plan SP183608 Sheet 3 Lot 18 on Plan SL11788 Sheet 7 Lot 1 on Plan K94311 Sheet 10 Lot 1 on Plan SP135368 Sheet 5 Lot 20 on Plan SL11396 Sheet 6 Lot 21 on Plan SL12508 Sheet 10 Lot 26 on Plan SL837107 Sheet 6 That part of Lot 27 on Plan USL20221 excluding former Allotment 1 of Section 7 on Plan B731 Sheet 3 That part of Lot 2 on Plan SL12157 excluding a strip of land five chains wide (100.58 meters) landward of the High-Water Mark Sheet 9 That part of Lot 36 on Plan NPW662 excluding former Lots 45-47 on Plan DP813318, Lot 9 on Plan SL2265 and Lot 17 on Plan CWL3856 All Sheets except sheet 4 Lot 3 on Plan AP22155 Sheet 10 That part of Lot 406 on Plan C9562 excluding former Lot 9 on Plan SL2265 Sheet 5 Lot 46 on Plan SP135368 Sheet 5 Lot 46 on Plan USL20258 Sheet 3 Lot 47 on Plan USL20258 Sheet 1 Lot 48 on Plan SL10011 Sheet 3 That part of Lot 49 on Plan SL10012 excluding former Lot 9 on SL2265 Sheet 5 Lot 52 on Plan SL12538 Sheet 10 Lot 55 on Plan SL12829 Sheet 10 Lot 56 on Plan SL12829 Sheet 10 Lot 9 on Plan AP22155 Sheet 10

[15]

SCHEDULE 3 MAP OF DETERMINATION AREA SCHEDULE 4 AREAS NOT FORMING PART OF THE DETERMINATION AREA The following areas of land and waters are excluded from the Determination Area as described in Part 3 of Schedule 2:

Those land and waters which at the time the native title determination application was made were the subject of one or more previous exclusive possession acts, within the meaning of s 23B of the Native Title Act 1993 (Cth) as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).
Specifically, and to avoid any doubt, the land and waters described in (1) above include: (a) the previous exclusive possession acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies, and to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, including, but not limited to the whole of the land and waters described as: (i) that part of Lot 19 on SP106585 formerly described as Lot 15 on SL3058, which was subject to Special Lease 22860; (b) the land and waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld) apply, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth). SCHEDULE 5 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:
The rights and interests of the parties under the following agreements: (a) the agreement between Robert Anderson on his own behalf and on behalf of the Quandamooka People, the Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC ICN 7564 and the State of Queensland, which was authorised by the native title claim group on 30 September 2019 and executed by Mr Robert Anderson, the Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC ICN 7564 and the State of Queensland on 14 October 2019 (the Quandamooka People Tenure Resolution Indigenous Land Use Agreement - Mulgumpin / Moreton Island); (b) the agreement between Robert Anderson on his own behalf and on behalf of the Quandamooka People, the Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC ICN 7564, the State of Queensland, Tangalooma Pty Ltd and Tangalooma Island Resort Pty Ltd, which was authorised by the native title claim group on 30 September 2019 and executed by Mr Robert Anderson, the Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC ICN 7564, the State of Queensland, Tangalooma Pty Ltd and Tangalooma Island Resort Pty Ltd on 21 October 2019 (the Quandamooka People and Tangalooma Indigenous Land Use Agreement);
The rights and interests of Telstra Corporation Limited (ACN 051 775 556): (a) as the owner or operator of telecommunications facilities installed 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, occupy and operate 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 in and in the vicinity of the Determination Area in the performance of their duties; and (d) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities in the Determination Area.
The rights and interests of Brisbane City Council: (a) under its local government jurisdiction and functions under the City of Brisbane Act 2010 (Qld) and any other legislation, for all parts of the Determination Area within the area declared to be Council's local government area under the City of Brisbane Regulations 2012 (Qld), and (b) as trustee under the Land Act 1994 (Qld) of the following reserves: (i) Lot 115 on SP183608 Reserve for Environment and Open Space (Public Toilet); (ii) Lot 21 on SL12508 Reserve for Park (Public Toilet); (iii) Lot 406 on C9562 Reserve for Local Government, Historical Park and Recreation (Signal Station); (iv) Lot 48 on SL10011 Reserve for Local Government, Refuse Disposal; (v) Lot 49 on SL10012 Reserve for Local Government, Refuse Disposal; and (vi) Lot 52 on SL12538 Reserve for Local Government, Refuse Disposal; including any rights and interests it or its employees, or agents have to enter land to perform those functions and as the owner and operator of infrastructure located in the Determination Area;
The rights and interests of the Tangalooma Island Resort Pty Ltd (ACN 010 170 902) as registered permittees under Permit No 0/210290, to occupy Lot 18 on SL11788 for the purposes of tourism, ancillary tourism and tourism supportive purposes in conjunction with the tourist activities on the adjoining Lot 8 on SL8209.
The rights and interests of Kooringal Aquacultural Company Pty Ltd (ACN 010 390 931) as registered permittee, for the purposes of conducting any and all activities relating to the permitted activity storage or equipment used in primary production (oyster production) on part of Lot 9 on AP22155, being the area described as Lot 1 on PER 6896.
The rights and interests of the Commonwealth of Australia, represented by the Bureau of Meterology, for its employees, agents and contractors to access its facilities located at Lot 528 on NPW 663 in the exercise of powers and functions under the Meterology Act 1955 (Cth).
The rights and interests of the Australian Maritime Safety Authority as the owner, manager or operator of aids to navigation pursuant to s 190 of the Navigation Act 2012 (Cth).
The rights and interests of members of the public arising under the common law, including but not limited to the following: (a) any subsisting public right to fish; and (b) the public right to navigate.
So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) coastal waters; (d) beaches; and (e) areas that were public places at the end of 31 December 1993.
Any rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State and the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[17]

The Native Title Act 2 In its preamble, the Act recognises, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited the country for many years prior to European settlement and that the Aboriginal peoples were progressively dispossessed of their lands. It records that the Constitution was amended, by the overwhelming vote of the people of Australia, to enable laws such as the Act to be passed and to facilitate recognition by our shared legal system of native title rights and interests. 3 Section 3 of the Act states that the main objects of the Act are to protect and recognise native title, establish ways in which future dealings in relation to native title should proceed, and set standards for those dealings and establish a mechanism for determining native title claims. 4 An objective of the Act is the resolution of claims for the recognition of native title by agreement. That objective was facilitated by amendments to s 87 of the Act made by the Native Title Amendment Act 2009 (Cth). The agreement of the parties to the terms of the proposed orders is consistent with that object of the Act. 5 The Court is asked to make a determination that native title is held by the Quandamooka People in the claim area. By making that determination, the Australian community will collectively recognise that status. But, it is important to emphasise that the Court's orders do not grant native title. The Court is merely recognising rights and interests that have existed under the traditional laws and customs of the Quandamooka People since thousands of years before European settlement. 6 Section 61 of the Act provides that a native title determination application may be made by persons authorised by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. 7 Section 223(1) of the Act explains the meaning of "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. 8 Section 225 of the Act describes what is meant by a "determination of native title": 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.

[18]

The application 9 The application was filed on 18 November 2014 and amended on 28 October 2019. It seeks a determination on behalf of the Quandamooka People over land and waters within the external boundaries of the application area. 10 There has already been a determination of native title in favour of the Quandamooka People over neighbouring North Stradbroke Island: Delaney on behalf of the Quandamooka People v State of Queensland [2011] FCA 471. This application therefore represents an important step in the resolution of the Quandamooka People's claims. It is the culmination of a great deal of effort and cooperation between the parties. 11 In these proceedings, the parties agree that the Quandamooka People are the native title holders for the claim area. That agreement, made under s 87(2) of the Act was filed on 30 October 2019. 12 The respondents to the application are: Brisbane City Council, the Commonwealth of Australia, the State of Queensland, Telstra Corporation Limited, Kooringal Aquaculture Company Pty Ltd, Tangalooma Island Resort Pty Ltd and Tangalooma Pty Ltd. 13 The applicant relies on the following expert evidence in support of a determination: (1) Whalley, P (1991) Connection Report to the Quandamooka Tribal Lands Council, filed 18 October 2019; (2) Memmott and Stacy, (1998) Connection Report for Mediation with Queensland State Government for Native Title Claim No. QC 95/2, filed 18 October 2019; (3) Blackwood, P and Memmott, P (2003) Quandamooka decision making: A report prepared for the Federal Court, filed 18 October 2019; (4) Waters, K (2007) Quandamooka Genealogy Final Report, filed 21 October 2019; (5) Robins, R (2008) Supplementary Archaeological Report on the Quandamooka Native Title Application, filed 21 October 2019; (6) Wood, Ray (2008) Supplementary Anthropology Report on the Quandamooka Native Title Application: Report to the Federal Court, filed 21 October 2019; and (7) Wood, Ray, (2009) Response to Queries Raised by Graham Hiley in Relation to his Review of Wood (2008), filed 21 October 2019. 14 These expert reports provide detailed examinations of the continued acknowledgement and observance of a range of laws and customs in respect to language, cultural knowledge, totemic and spiritual beliefs, sites, dispute resolution, decision making, bush tucker and medicines. Much of the connection evidence the applicant relies upon in this application relates to Quandamooka country as a whole and was therefore considered by Dowsett J in Delaney. 15 As noted by Dr Memmott and Dr Stacy, unlike the situation in most other areas of Australia where indigenous communities were forced from their lands to missions, the Quandamooka People have been left relatively undisturbed. However, that does not mean the Quandamooka People were immune from the impacts of colonisation. Indeed, between 1912 and 1938, many removals occurred, with many Quandamooka People eventually managing to escape the mainland and return to the claim area. Many Quandamooka People have lived in the claim area for their entire lifetimes. 16 Dr Memmott and Dr Stacy's state: "The Quandamooka People comprise an identifiable society or 'community' that has never ceased to exist. The members are identified by themselves and by the outside world, including by neighbouring Aboriginal groups". 17 The applicant also relies on evidence of connection filed by Dr Vincent Anderson, Evelyn Enid Parkin, Darren John Burns, Alan Charles Perry, Joan Patricia Hendriks, Michael James Costelloe, Gavin Stanley Costelloe, Anne Maree Day, Ian Delany, Sidney Coolwell, Graham Hamilton Dillon, Vincent George Martin, Darren John Burns, Sam Watson, Kenneth Paul Murphy, Shirley Rose Borey, Joshua Jude Walker, Irene Paula Clarey nee Tippo and Peter Baryney Delaney. The evidence of members of the native title claim group about their traditional laws and customs and rights and responsibilities in respect to land and waters is of the highest importance: Sampi v Western Australia [2005] FCA 777 at [48] per French J. 18 The Quandamooka People are the biological descendants of the following apical ancestors: Nellie / Lilly Kidgeree; Mary Indoole Compignie; Elizabeth Ruska; Charlie Moreton (Dandruba); Sidney Rollands (Kingal / Winyeeaba); Lillian Lyons (Dungoo); King Billy Toompani; Juno (Gonzales); Liza Jungerboi (mother of Rose Martin nee Bain); Tommy Nuggin (Gendarieba); Tilly (mother of Tommy Dalton, Richard Dalton and Henry Lea); and Kindarra. 19 Both the expert and lay material reveals substantial evidence of continued acknowledgment and observance of laws and customs. These traditions are handed down from forebears to new generations of Quandamooka People. Examples include the continuation of language and place names; communication with dolphins during fishing; corroboree or dances; the collection of wildflowers, midgin berries, bush lemon and passionfruit, oysters and crabs; and swimming and diving. Elders continue to teach practices observed since pre-sovereignty including fire management techniques, on-country burial, and the sharing of natural resources.

[19]

The agreement reached between the parties 20 Section 87 of the Act gives the Court the power to make an order consistent with the terms of an agreement between the parties to the proceeding without holding a hearing in relation to the application. 21 The conditions under s 87 of the Act that enable the Court to make the determination without a hearing are: (1) The period specified in the notice given under s 66 of the Act in relation to the application had ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings: s 87(1)(a). (2) The terms of the proposed determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court: s 87(1)(b). (3) The Court is satisfied that an order in, or consistent with, those terms would be within its power: s 87(1)(c). (4) The Court considers it appropriate to make the orders sought: s 87(1A) and (2). 22 The Court is not required to embark upon an inquiry as to the merits of the claim to be satisfied that the orders are supportable and in accordance with the law: Cox on behalf of the Yugngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the parties who have agreed to compromise the claim, particularly the State on behalf of the community generally, have made a rational decision and are acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [30] per Emmett J. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 at [14] per North J. 23 State and Territory governments are responsible for ensuring that community interests are protected by getting involved in a process that assesses the underlying evidence as to the existence of native title. In this case, the State of Queensland is satisfied that the claim group is an appropriate one to be recognised as holders of native title rights and interests, that it is appropriate to recognise the rights and interests proposed and that it is appropriate for the State to enter into the determination 24 The requirements of s 87 of the Act have been satisfied: (1) The period for notification of the Application under s 66 of the Act has ended: s 87(1)(a). (2) The parties have reached an agreement as to the terms of a determination of native title: s 87(1)(a). (3) The parties have recorded their agreement in a Minute of Consent: s 87(1)(b). (4) An order in terms of the Minute, or consistent with the Minute, would be within the Court's power because: (a) the application has been made in accordance with s61 of the Act; (b) the application is for a determination of native title in relation to an area for which there was no approved determination of native title: s 13(1)(a); and (c) the Minute agreed to by the parties complies with ss 94A and 225 of the Act: s 87(1)(c). 25 In addition, it is appropriate for the Court to make the orders sought because: (1) The active parties have freely entered into agreement. (2) The parties have agreed as to the nature and extent of rights and interests, and the proposed determination is unambiguous and certain as to the rights and interests declared. (3) There are no proceedings before the Court relating to native title determination applications that cover any part of the area that is the subject of this application. (4) The State has played an active role in the negotiation of the determination and, in doing so, has taken an interest in the proceeding on behalf of the community and given appropriate consideration to the connection material. 26 The terms of the proposed determination also satisfy the requirements of s 225 of the Act.

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (21)

Cases Cited (5)

Cited By (1)