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[2010] FCA 1090
plaintiff. By consent the Court determined native title exists in the Determination Areas, described the native title holders (Schedule 1), recognised exclusive native title rights in specified parts...
Three consent determinations were made by the Federal Court (Dowsett J) recognising that native title exists for the Jirrbal People over specified areas near Herberton, Ravenshoe and Lake Koombooloomba. The Court, satisfied under the Native Title Act that it had power to make consent determinations and that statutory requirements were met, accepted detailed anthropological, genealogical and affidavit evidence showing continuity of traditional laws and customs and connection to country. The orders specify exclusive rights over parts of the first area (under s47B), non‑exclusive rights elsewhere (including specified water rights), exclude minerals and petroleum, record other existing interests and name Wabubadda Aboriginal Corporation as the prescribed body corporate, with operation contingent on ILUA registration. Each party bears its own costs.
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16 cited instruments linked from this judgment.
Three native title applications were brought by Betty Cashmere and Gerald McKenzie on behalf of the Jirrbal People: QUD 6001 of 2003, QUD 41 of 2004 and QUD 42 of 2004. The filings and notifications occurred in 2003–2004 and each application passed the s 190A registration test and remained on the Register of Native Title Claims (Reasons [2]). The State of Queensland and a number of statutory and private respondents were parties across the three matters (Reasons [3]).
In 2004 the matters were referred to the National Native Title Tribunal for mediation and, with Tribunal assistance, the parties reached agreement on the terms of proposed consent determinations for defined Determination Areas (Reasons [4]). Dowsett J, after considering the material and the parties' agreements, made consent determinations on 8 October 2010 recognising native title in the terms agreed. The formal Reasons for Judgment were certified on 27 July 2011.
The Court's orders, by consent, declared that native title exists in relation to the Determination Areas; identified the native title holders (Schedule 1); described the nature and extent of native title rights (exclusive possession, occupation, use and enjoyment over specified parcels in Schedule 2 of the first application relying on s 47B, and non‑exclusive rights over other areas, see Schedules 2 and 3 across the determinations); recognised specified non‑exclusive rights in relation to Water; excluded minerals and petroleum; made the native title subject to State and Commonwealth laws and to the native title holders' traditional laws and customs; recorded other interests (Schedules 4/5); provided that the orders take effect on registration of specified ILUAs; declared that native title is not held in trust and named Wabubadda Aboriginal Corporation as the prescribed body corporate; provided a six‑month timetable for ILUA registration before further directions; and ordered each party bear its own costs (Orders and Schedules; Reasons [11]–[14], [17]–[18]).
Two interlinked legal questions drove the Court's reasoning: (1) whether it had the statutory power and procedural basis to make the proposed consent determinations, and (2) whether, on the material before it, native title existed in the Determination Areas and in what form.
Power to make consent determinations: The Court grounded its power on provisions of the Native Title Act. It identified the applicable statutory framework, ss 13, 61, Part 4 Division 1C and, crucially, s 87, which authorises consent determinations where the Court is satisfied the proposed determination is within power and appropriate to make (Reasons [6]). The Court noted the absence of any existing approved determinations or conflicting native title claims over the relevant areas, and that the parties had reached agreement by negotiation, assisted by the Tribunal (Reasons [4], [6]). The matters of extinguishment and any reliance on ss 47–47B had been considered by respondents (Reasons [6]), giving the Court confidence that issues affecting legal power had been addressed.
Existence and content of native title: The Court relied on extensive factual material to determine the substantive question whether native title existed. It placed weight on detailed anthropological research (reports by Dr Benjamin R Smith and Dr John E Burton), genealogical material by Ms Rosalind Glass, and affidavits by claim group members (Reasons [7]). Archaeological and historical evidence tracing occupation and contact from pre‑history through early explorers and ethnographers provided further factual grounding (Reasons [8]–[13]). From that evidence the Court inferred continuity of physical connection to country and ongoing acknowledgement and observance of traditional laws and customs from sovereignty to the present. For s 94A purposes the judge expressly found that at sovereignty the Jirrbal People constituted a society observing traditional laws and customs, including those concerning rights and interests in land and water, and that their descendants have maintained connection (Reasons [16], [18]). That s 94A finding underpinned the s 225 conclusion that native title exists.
Recognition of specific rights: Parties had agreed specified forms and extents of native title rights (exclusive in parts via s47B reliance; non‑exclusive elsewhere; specified water rights; exclusions for minerals/petroleum). The Court accepted those agreed descriptions as compliant with the Act and consistent with the evidential record and statutory permissions (Reasons [5], [17]–[18]). The Court also addressed the relationship between native title rights and other interests in detail in the orders and schedules (Orders and Schedules; Reasons [9]).
In short, the Court treated the question as primarily factual (connection, continuity, laws and customs) informed by extensive expert and genealogical material, and procedural/statutory (s 87 consent power, ss 47–47B extinguishment issues), concluding both statutory power and substantive criteria were satisfied.
Before this determination in the subject areas: the Jirrbal claims were registered native title claims (passed s 190A), with no prior approved determinations covering the same lands. The legal framework determining how consent determinations operate remained the Native Title Act 1993 (Cth), including the mechanism to disregard extinguishment by ss 47, 47A and 47B, and the ability to have exclusive possession recognised where applicable.
After the determination: the Court recorded the legal recognition of native title rights for the Jirrbal People in the specified Determination Areas. For the parcels identified in Schedule 2 of the first application the Court recognised exclusive native title rights, relying on s 47B, while non‑exclusive rights were recognised elsewhere. The orders also formalise the relationship between native title and other statutory or private interests (Schedules 4/5), make the native title subject to State and Commonwealth laws and traditional laws and customs, and set a pathway for post‑determination administration by identifying a prescribed body corporate (Wabubadda Aboriginal Corporation) to perform the s 57(3) functions once registered. Practically, the legal landscape for the particular parcels changed from claims on a register to recognised native title rights and clarified how those rights coexist with other interests.
Statutory power for consent determinations (Reasons [6]):
Evidence base relied on (Reasons [7]):
Finding of occupation and descent (Reasons [16]):
s 94A finding (Reasons [18]):
Concluding recognition (Reasons [19]):
This decision is directly relevant where:
In such fact patterns Dowsett J's approach shows a Court will accept carefully documented factual materials and negotiated consent terms, provided statutory issues (including extinguishment, ILUA registration conditions and PBC arrangements) are identified and addressed.
This judgment itself does not analyse how later courts have treated it. The Reasons contain no discussion of subsequent judicial consideration or binding precedents derived from this decision. As a consent determination and Judge‑made reasons, it stands as an authoritative recognition of native title facts and the parties' agreed legal framework for these areas; practitioners should check subsequent citations in case law databases to see if and how other courts or tribunals have referred to or applied this particular determination or its reasoning.
The judgment is self‑contained and focused on making the consent determinations. It does not engage with several potentially litigated issues that often arise in other native title contexts:
Readers should note that this deep dive is based solely on the text of the judgment and its orders. It identifies what the Court found and why, and highlights areas where the reasons are silent or where future factual or legal disputes could arise.
This is general legal information, not legal advice. I can make mistakes. Before you rely on this analysis or take any step based on it, get a qualified Australian lawyer to check it.
Being satisfied that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so, BY CONSENT THE COURT DETERMINES THAT:
SCHEDULE 1 - Native title holders The native title holders are the descendants of the following persons: (a) Jerry Linedale or Maggie. (b) Polly Robinson (1) (aka Polly Ingham) or her husband Mick Robinson. (c) Nellie Keough/James, Merti/ Bertie or Peter. (d) Tommy Toombs or his wife Polly. (e) Una Woodleigh. (f) Romeo Robson (aka Robinson) or his wife Topsy. (g) Minnie Silent. (h) Bonnel Logan and Jinnie. (i) Chloe McKenzie/Cameron. (j) Lucy Gordon/Lifu. (k) King Sandy Maynard or his wife Annie Thomas. (l) Polly Robson (2). (m) Wanmal and Yugibidjal. (n) Youall Biddy-Robinson or her husband Tommy Herberton. (o) Youall Biddy-Robinson's siblings. (p) Tommy Herberton's siblings. (q) Tommy Gardiner (aka Tommy Anderson). (r) Charlie (Jurabagle) Woods. (s) Linda Duffin (aka Linda McGuire). (t) Nellie Googoonburra. (u) Murrigami (aka Jim Clarke). (v) Jack Robinson. (w) Nellie Williams. (x) Ethel Perrott. (y) Toby and Polly. (z) Murriguemie. (aa) Nellie Deagon. (bb) Rosie Congoo. (cc) Katie Cameron. (dd) Jimmy Murray (aka Jimmy Minegan) or his wives Jinnie (aka Jay Minigan) and Misashay (aka Maryanne). (ee) Jimmy Darcy or his wives Polly and Lassie Darcy. (ff) Dubula Lorna Lawrence (nee Robinson). (gg) Bulbulyarraman Willie Mango or his wives Nellie and Calida. (hh) Joe Robinson or Eva Robinson. (ii) Betty (aka Biddy) Gordon. (jj) King Jimmy Robertson/Robinson (aka Jimmy King) or his wives Kitty Robertson or Polly Malone. (kk) Polly Hull. (ll) Lizzie Palmer, Maggie Cross or Mary Todd. (mm) Jack (Deinjo) Watson/Major. (nn) Harry Maloon. SCHEDULE 2 - Areas where exclusive native title exists The following land and waters described in Column 1 of the table below and shown on the Determination Plan as described in Column 2: Column 1 - Area Description Column 2 - Determination Plan Description Lot 67 on USL39300 Lot 2 on AP17645 Lot 144 on USL39299 Lot 3 on AP17645 Lot 10 on USL39297 Lot 4 on AP17645 Lot 34 on USL39304 Lot 6 on AP17645 Lot 35 on USL39309 (now Lot 1 on AP19833) Lot 7 on AP17645 Lot 82 on USL39309 (now Lot 2 on AP19833) Lot 8 on AP17645 Lot 36 on USL39421 Lot 9 on AP17645 Lot 56 on USL39415 Lot 10 on AP17645 Lot 85 on USL39399 Lot 11 on AP17645 Lot 129 on USL39399 Lot 12 on AP17645 Lot 131 on USL39399 Lot 13 on AP17645 Lot 10 on USL39412 Lot 14 on AP17645 Lot 64 (Pt) on USL36300 Lot 15 on AP17645 Lot 30 (Pt) on AP20151 Lot 16 on AP17645 Lot 46 on USL39431 (now Lot 139 (Pt) on NPW836) and that area of road contained within stations 18-16-13-12-11-10-9-Ck-Ck-20-19-13a-23-16a-B-A on CP900987 Lot 17 on AP17645
excluding any area of land and waters on which a public work is, or has been, established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. SCHEDULE 3 - Areas where non-exclusive native title exists The following land and waters described in Column 1 of the table below and shown on the Determination Plan as described in Column 2: Column 1 - Area Description Column 2 - Determination Plan Description Lot 64 (Pt) on USL36300 Lot 1 on AP17645 Lot 30 (Pt) on AP20151 Lot 5 on AP17645
excluding any area of land and waters on which a public work is, or has been, established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. SCHEDULE 4 - Determination plan SCHEDULE 5 - Other interests in the determination area
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #2
JUDGE: DOWSETT J DATE OF ORDER: 8 OCTOBER 2010 WHERE MADE: RAVENSHOE
Being satisfied that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so, BY CONSENT THE COURT DETERMINES THAT:
excluding any area of land and waters on which a public work is, or has been, established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. SCHEDULE 3 - Determination Plan SCHEDULE 4 - Other interests in the Determination Area
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #3
MURRAY LYALL WALMSLEY, ALFRED BEVAN WIELAND AND WILLIAM JOHN WIELAND
JUDGE: DOWSETT J DATE OF ORDER: 8 OCTOBER 2010 WHERE MADE: RAVENSHOE
Being satisfied that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so, BY CONSENT THE COURT DETERMINES THAT:
excluding any area of land and waters on which a public work is, or has been, established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. SCHEDULE 3 - Determination plan SCHEDULE 4 - Other interests in the Determination Area 1 The rights and interests of Gerald McKenzie, Betty Cashmere, the State of Queensland and the Wet Tropics Management Authority under an indigenous land use agreement ("ILUA") entitled the 'Jirrbal People Protected Areas Indigenous Land Use Agreement (Area Agreement)' dated 6 September 2010 to the extent that the ILUA applies to the Determination Area. 2 The rights and interests of the Tablelands Regional Council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters in its local government area including its interests under an ILUA dated 10 August 2010 between Gerald McKenzie, Betty Cashmere and the Tablelands Regional Council. 3 The rights and interests of the Cassowary Coast Regional Council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters in its local government area. 4 The rights and interests of Telstra Corporation Limited: (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 telecommunication facilities; (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication facilities; and (iv) for its employees, agents or contractors to access the Determination Area for the purposes of exercising the rights in (i), (ii) and (iii) above in respect of telecommunications facilities in and in the vicinity of the Determination Area; and (c) under any licences, access agreements or easements relating to its telecommunication facilities in the Determination Area. 5 The rights and interests of Ergon Energy Corporation Ltd: (a) as the owner and operator of electricity distribution facilities 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 rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and to inspect, maintain and manage any electricity distribution facilities in the Determination Area; and (d) under an ILUA between Gerald McKenzie, Betty Cashmere and Ergon Energy Corporation Limited dated 10 August 2010. 6 The rights and interests of Stanwell Corporation Limited as an entity generating electricity pursuant to the Electricity Act 1994 (Qld) and to divert and use the waters of the Tully River for the purposes of generating electricity pursuant to the Water Act 2000 (Qld), including access to and the construction, operation and maintenance of associated infrastructure. 7 The interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland (ACN 078 849 233) as an electricity entity exercising statutory functions, powers or rights and as owner and operator of electricity transmission facilities, and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with those facilities and infrastructure in accordance with the law. 8 The rights and interests of Alfred Bevan Wieland as the holder of grazing authorities 07/015WT and 07/021WT over part of Lot 3 on AP20113. 9 The rights and interests of Murray Lyall Walmsley and Judith Walmsley as the holders of grazing authority 08/007WT over part of Lot 3 on AP20113. 10 The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld) as may be current at the date of this determination. 11 The rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld) relating to the use and management of the Determination area. 12 The rights and interests of the holders of any permits granted under the Wet Tropics Management Plan 1998 (Qld) as may be current at the date of this determination. 13 Any other rights and interests held by the State or Commonwealth, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6001 of 2003
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #1
QUEENSLAND LAPIDARY AND ALLIED CRAFT CLUBS ASSOCIATION
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 41 of 2004
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #2
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 42 of 2004
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #3
MURRAY LYALL WALMSLEY, ALFRED BEVAN WIELAND AND WILLIAM JOHN WIELAND
JUDGE: DOWSETT J DATE OF ORDER: 8 OCTOBER 2010 WHERE MADE: RAVENSHOE
introduction 1 In each of these three applications brought pursuant to s 61 of the Native Title Act 1993 (Cth) (the "Act"), Gerald McKenzie and Betty Cashmere constitute the applicant. Each application is made on behalf of the Jirrbal People and seeks a determination pursuant to s 225 of the Act that they hold native title over land and water in various areas in the vicinity of Herberton, Ravenshoe and Lake Koombooloomba which lies south-south-east of Ravenshoe. 2 Application No QUD 6001 of 2003 (the "first application") was filed on 16 January 2003. Application No QUD 41 of 2004 (the "second application") and application No QUD 42 of 2004 (the "third application") were filed on 18 February 2004. The first application was notified by the Native Title Registrar on 17 December 2003. The second and third applications were notified on 25 August 2004. Each application passed the registration test prescribed by s 190A of the Act and remains on the Register of Native Title Claims. 3 The State of Queensland and Ergon Energy Corporation Limited are respondents to all three applications. The Tablelands Regional Council was created by the amalgamation, pursuant to State legislation, of a number of smaller councils. It is also a respondent to all three applications. Queensland Lapidary and Allied Craft Clubs Association is a respondent to the first application. Stanwell Corporation Limited is a respondent to the second and third applications. Murray Walmsley and Alfred and William Wieland are respondents to the third application. The North Queensland Land Council represents the applicant in each application. 4 In 2004 all three applications were referred to the National Native Title Tribunal for mediation. With the assistance of the Tribunal, the parties have reached agreement as to the terms of proposed consent determinations over land and water in various identified areas. In each of the three proposed consent determinations the subject land and water are described as the "Determination Area". I adopt that terminology in these reasons. 5 The Determination Areas are all located in the southern part of the Atherton Tableland and on the eastern side of the Great Dividing Range, around the townships of Ravenshoe and Herberton. Pursuant to the proposed consent determination in connection with the first application, exclusive rights to possession, occupation, use and enjoyment of the areas identified in Schedule 2 to that determination will be recognised, relying on s 47B of the Act. Non-exclusive rights in the areas identified in Schedule 3 will be recognised. The proposed consent determinations in connection with the second and third applications will recognise non-exclusive rights in the areas identified in Schedule 2 to each determination.
POWER OF THE COURT 6 Pursuant to s 13 of the Act, applications for the determination of native title may be made to the Court in relation to areas in respect of which there is no existing approved determination. Part 3 of the Act regulates such applications. The present applications are made under s 61 of the Act. Part 4, Division 1C of the Act provides that some or all of the parties to native title proceedings may negotiate an agreed outcome. In the event of such agreement, s 87 authorises the Court to make appropriate consent determinations if it is satisfied that the proposed determination is within power, and that it is appropriate that it be made. I note that there are presently no approved determinations of native title and no conflicting native title claims over the relevant areas. I find that the requirements of s 87(1) are satisfied. The Court must be satisfied that native title has not been extinguished or if it has, that such extinguishment should be disregarded pursuant to provisions of ss 47, 47A and 47B. I accept that those matters have been considered by the respondents, and that the relevant investigations have been conducted.
research 7 The Jirrbal People enjoy the great advantage of extensive and thorough research concerning their anthropological history. It was conducted by Dr Benjamin R Smith and Dr John E Burton. They have submitted a detailed report. I have read a useful summary of it and have referred to various parts of the full report. There is extensive genealogical material prepared by Ms Rosalind Glass. I have also read affidavits by members of the claim group. This material clearly demonstrates a long-standing association between various families in the claim group and a wider area which includes the Determination Areas. In some cases such association goes back to the mid-19th century. The material also demonstrates a system of normative laws and customs acknowledged and observed by the Jirrbal People at about the time of first European contact and thereafter. There is clear evidence of the nature and content of the rights and interests claimed under traditional laws acknowledged, and traditional customs observed by them, including rights and interests in land and water, the continued acknowledgement and observance of those traditional laws and customs and the continuity of connection of the Jirrbal People to the land and water which are the subject of these applications.
archaeology and history 8 Archaeological evidence suggests that human beings have occupied southern Cape York for about 40,000 years. Some of the identified pre-historic sites are quite close to the Determination Areas. Explorers Leichhardt, Kennedy and Mulligan entered, or passed near to the area between 1845 and 1875. While travelling through the area in 1845, Leichhardt saw large numbers of Aboriginal men, women and children. In the evidence there is a summary of Kennedy's encounters with indigenous people in 1848 as follows: In early August Kennedy's expedition reached the 'summit of the coast range', camping at Blunder Creek (a tributary of the Herbert River) on the 9th August [sic]. On the 12th they camped in 'uneven forest country' close to Quamber Creek. The Wild River, at the head of the Herbert, was reached on the 15th, Kennedy's camp being 'probably about 4 miles above the modern Woodleigh cattle station and 20 miles below the tin-mining township of Herberton' (Jack 1921:213). Passing Nettle Creek and the future path of Mulligan's 1875 route, Kennedy reached the main divide, close to Coolgarra, where waters flow east to the Pacific and west towards the Gulf, which contemporary Jirrbal people give as a key landmark dividing their country, on eastern flowing waters, from that of their neighbours, on the western flowing watersheds of the range. Dixon (1972:365) notes that William Carron, the botanist whose journal provides the principal record of the Kennedy expedition, made the first (amateur) attempt by a European to transcribe a Jirrbal-type language (probably Girramay, which neighbours Jirrbal to the east). ………… This provides the first available linguistic evidence for the broad region of the continuing occupation of the region, since early European contact, by people who spoke varieties of Jirrbal-type indigenous languages. Settlement on the lower Herbert River commenced in 1864. In 1875 Mulligan saw native townships consisting of well thatched gunyahs near the present site of Herberton. Tin and other minerals were discovered at Herberton in 1880. 9 Christie Palmerston made several expeditions to the rain forest region in the 1880s and 1890s, including areas within Jirrbal country and adjoining country associated with related language groups. He recorded the existence of, and used a network of "blacks' tracks" through the rainforest. These walking tracks were of core importance to past generations of Jirrbal people and continue to occupy a significant place in Jirrbal traditions. Palmerston recorded some details of Aboriginal customary systems of ownership of places. 10 In the late 19th and early 20th centuries Scandinavian ethnographers, Carl Lumhottz, Conrad Fristedt and Eric MjÖberg recorded aspects of Jirrbal culture. MÖberg's ethnographic notes record "the existence of food taboos and rules and inherited traditions including trespass and proprietorship rights which are, where appropriate, safeguarded under the strictest laws".
early written references 11 The first written use of the name "Jirrbal" occurs in the 1891 diary of a Yarrabah missionary, John Gribble. A map prepared in 1897 for official purposes shows the area from Herberton to the Lower Tully River as being occupied by the "Chirpal". In 1897, Walter Roth was appointed the Northern Protector of Aboriginals. His ethnographic research provides an important source of information on social organisation, tradition and culture among the Jirrbal People around the turn of the century. There has been significant subsequent research. 12 In summary, the area has been inhabited by indigenous people for thousands of years. Non-indigenous records demonstrate that the Jirrbal People were recognised by that name at least from 1891 and associated with the Herberton-Ravenshoe area. There is evidence that non-Jirrbal indigenous people recognise the Jirrbal as traditional owners of the area. The Jirrbal People's own traditions are to similar effect.
the jirrbal people and their traditional laws and customs 13 The Jirrbal People comprise a group identified by its language. That language fits into a wider range of language groups which are associated with areas surrounding the Determination Areas. The Jirrbal people maintain a rich cultural history which associates them with the Determination Areas. The evidence provides substantial detail of this association. I cannot do justice to that evidence without unduly prolonging these reasons. The evidence suggests that the Jirrbal People maintained their traditional way of life until as late as 1910. It seems that they were not re-located by government to the extent that some other indigenous groups were. Nonetheless they suffered substantial dislocation and pain as the result of European settlement. The evidence about Jirrbal traditional laws and customs concerning rights and interests in land and water is both extensive and detailed, as is the evidence concerning the continued observance of such laws and customs and the continued connection between the Jirrbal People and the Determination Areas. 14 The genealogies identify descent groups, some traced back to the mid-19th and early 20th centuries, in other words, to the time of first European contact. The genealogies, together with other evidence, provide a clear and comprehensive explanation of the composition of the claim group. It is described as all of those persons who are descended from the following ancestors: (a) Jerry Linedale or Maggie (b) Polly Robinson (1) (aka Polly Ingham) or her husband Mick Robinson (c) Nellie Keough/James, Merti/Bertie or Peter (d) Tommy Toombs or his wife Polly (e) Una Woodleigh (f) Romeo Robson (aka Robinson) or his wife Topsy (g) Minnie Silent (h) Bonnel Logan and Jinnie (i) Chloe McKenzie/Cameron (j) Lucy Gordon/Lifu (k) King Sandy Maynard or his wife Annie Thomas (l) Polly Robson (2) (m) Wanmal and Yugibidjal (n) Youall Biddy-Robinson or her husband Tommy Herberton (o) Youall Biddy-Robinson's siblings (p) Tommy Herberton's siblings (q) Tommy Gardiner (aka Tommy Anderson) (r) Charlie (Jurabagle) Woods (s) Linda Duffin (aka Linda McGuire) (t) Nellie Googoonburra (u) Murrigami (aka Jim Clarke) (v) Jack Robinson (w) Nellie Williams (x) Ethel Perrott (y) Toby and Polly (z) Murriguemie (aa) Nellie Deagon (bb) Rosie Congoo (cc) Katie Cameron (dd) Jimmy Murray (aka Jimmy Minegan) or his wives Jinnie (aka Jay Minigan) and Misashay (aka Maryanne) (ee) Jimmy Darcy or his wives Polly and Lassie Darcy (ff) Dubula Lorna Lawrence (nee Robinson) (gg) Bulbulyarraman Willie Mango or his wives Nellie and Calida (hh) Joe Robinson or Eva Robinson (ii) Betty (aka Biddy) Gordon (jj) King Jimmy Robertson/Robinson (aka Jimmy King) or his wives Kitty Robertson or Polly Malone (kk) Polly Hull (ll) Lizzie Palmer, Maggie Cross or Mary Todd (mm) Jack (Deinjo) Watson/Major (nn) Harry Maloon 15 The evidence provides details of the association of family groups with, and responsibility for particular areas within the Determination Areas.
summary 16 Clearly, the area around Herberton and Ravenshoe was occupied by indigenous people in 1845 and had been so occupied for many years before that time. Such occupation has continued until the present time, although in different forms. It pre-dated British sovereignty. The occupants at the time of sovereignty were, almost certainly, ancestors of the Jirrbal people subsequently encountered by explorers and settlers, from which people the claim group members are descended. The evidence demonstrates an unbroken physical connection with land during the whole period of European settlement and, as I infer, from before British sovereignty. I also infer that the Jirrbal people, at the time of sovereignty, had and observed traditional laws and customs concerning rights and interests in land and water. I infer that members of the claim group are, according to traditional laws and customs, as modified by changing conditions and the passage of time, the successors to those who held native title at sovereignty, and that the claim group and their ancestors have, since sovereignty, continued to observe those laws and customs and maintained connection with their traditional lands of which the Determination Areas are part.
native title rights and interests 17 The parties to the first application have agreed that the Native Title rights and interests in unallocated State land within the Determination Area (other than in relation to water) are the rights to possession, occupation, use and enjoyment thereof, to the exclusion of all others, subject to paras 5, 6 and 7 of the proposed consent determination. The nature and extent of the native title rights and interests in the balance of that Determination Area and in the Determination Areas of the other two applications (other than in relation to water) are, subject to paras 5, 6 and 7 of the proposed consent determinations, the non-exclusive rights to: be present on, including by accessing, traversing and camping on, the Determination Areas; take and use traditional natural resources from the Determination Areas for personal, domestic and non-commercial communal purposes; conduct ceremonies on the Determination Areas; 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, by lawful means, from physical harm; and teach on the Determination Areas the physical and spiritual attributes of the Determination Areas. The nature and extent of the native title rights and interests in relation to water (as the term "Water" is defined in the proposed consent determinations) within the Determination Areas are the non-exclusive rights to: hunt and fish in or on, and gather from, the water for personal, domestic and non-commercial communal purposes; and take and use the water for personal, domestic and non-commercial communal purposes.
conclusion 18 For the purposes of s 94A of the Act I find that the Jirrbal People constituted, at sovereignty, a society observing traditional laws and customs, including laws and customs concerning rights and interests in land and water. Through the continued acknowledgement and observance of such traditional laws and customs, their descendants, including the claim group, have maintained a connection with the Determination Areas. I am satisfied that the claimed rights and interests are derived from the observance of such traditional laws and customs which the proposed consent determinations recognise. Having regard to the evidence and the submissions of the applicant and the State, I am also satisfied that all of the matters identified in s 225 of the Act are adequately addressed in the proposed consent determinations. I am satisfied that agreements reached by the parties are in accordance with the requirements of s 87(2) of the Act. For the purposes of ss 55, 56 and 57 of the Act I note that the proposed consent determinations provide that the native title is not to be held in trust. Wabubadda Aboriginal Corporation (ICN7117) is to be the prescribed body corporate for the purposes of s 57(2) of the Act and (after becoming a registered native title body corporate) is to perform the functions set out in s 57(3). The material demonstrates compliance with the requirements of s 57. I am satisfied that it is within the power of the Court to make the proposed determinations by consent, giving effect to the parties' agreements, without full hearings of the applications. I consider that it is appropriate to make the proposed determinations by consent. 19 I have not come here today to give anything to the Jirrbal People. I have rather come to recognise, on behalf of the whole Australian nation, their traditional ownership of the land and water which are the subject of these consent determinations. The rights and interests which I recognise today are rights and interests which have descended to the claim group through their ancestors from the people who occupied this part of Australia in 1788, and for many, many years before that time. My recognition of those rights and interests binds all people for all time. On behalf of all Australian people I congratulate the Jirrbal People upon their achievement of this recognition. In particular I congratulate you, on behalf of the Judges of this Court and our staff. Your journey to today has not been easy. Quite apart from the other hardships and injustices which you have suffered, these proceedings have been difficult and time-consuming. I hope that this determination will, in some way, make up for past hardships and provide a basis for a better future. I wish you well in your future endeavours. I also congratulate the other parties to these proceedings, particularly the State, for their efforts which have brought about this great day. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Cashmere on behalf of the Jirrbal People #1
State of Queensland
By consent the Court determined native title exists in the Determination Areas, described the native title holders (Schedule 1), recognised exclusive native title rights in specified parts (Schedule 2 of first application) relying on s47B, recognised specified non‑exclusive rights (Schedules 3 etc), recognised non‑exclusive water rights, excluded minerals and petroleum rights, made native title subject to State and Commonwealth laws and traditional laws and customs, recorded other interests (Schedule 5/4), provided that paragraphs take effect upon registration of ILUAs, declared native title not held in trust and nominated Wabubadda Aboriginal Corporation as prescribed body corporate, directed listing if ILUAs not registered within six months, and ordered each party bear its own costs (Orders and Schedules; Reasons [11]–[14], Orders dated 8 October 2010).