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:
Native title exists in relation to the Determination Area.
The native title is held by the persons described in Schedule 1 (the "native title holders").
Subject to paragraphs 5 and 6, and 7 the nature and extent of the native title rights and interests, other than in relation to Water, are as follows:
(a) In relation to that part of the Determination Area identified in Schedule 2, the rights to possession, occupation, use and enjoyment to the exclusion of all others; and
(b) In relation to that part of the Determination Area identified in Schedule 3 ("the Area"), the non-exclusive rights to:
(i) be present on, including by accessing, traversing and Camping on, the Area;
(ii) take and use Traditional Natural Resources from the Area for personal, domestic and non-commercial communal purposes;
(iii) conduct ceremonies on the Area;
(iv) 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
(v) teach on the Area the physical and spiritual attributes of the Area.
Subject to paragraphs 5, 6 and 7, 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) hunt and fish in or on, and gather 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.
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 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 3(b) and 4 do not confer the right to possession, occupation, use or enjoyment to the exclusion of all others.
The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 5.
The relationship between the native title rights and interests described in paragraphs 3 and 4 and the other rights and interests described in Schedule 5 (the "other rights and interests") is that:
(a) 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;
(b) to the extent that the other rights and 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 rights and interests to the extent of the inconsistency for so long as the other rights and interests exist; and
(c) the other rights and interests and any activity that is required or permitted by or under, and done in accordance with, the other rights and 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.
The words and expressions used in this order 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:
"Camping" does not include permanent residence or the construction of permanent structures or fixtures;
"Determination Area" means the land and waters described in Schedules 2 and 3 and shown on the plan in Schedule 4, and to the extent of any inconsistency between them, Schedules 2 and 3 prevail;
"Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
"Traditional Natural Resources" means:
(a) "animals" as defined in the Nature Conservation Act 1992 (Qld), but not including fish;
(b) "plants" as defined in the Nature Conservation Act 1992 (Qld); and
(c) any clay, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders; and
"Water" means water as defined by the Water Act 2000 (Qld).
THE COURT ORDERS THAT:
Paragraphs 1-10 take effect upon the agreements referred to in paragraphs 2 and 4(d) of Schedule 5 being registered on the Register of Indigenous Land Use Agreements.
Upon paragraphs 1-10 taking effect:
(a) The native title is not held in trust.
(b) The Wabubadda Aboriginal Corporation (ICN 7117), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
In the event that the agreements referred to in paragraph 11 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.
Each party to the proceeding is to bear its own costs.
[2]
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
[3]
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
[4]
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
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.
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.
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 new 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.
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.
The rights and interests of the Queensland Lapidary and Allied Crafts Clubs Association Inc ("QLACCA") under the Fossicking Act 1994 (Qld) and under an ILUA between Gerald McKenzie, Betty Cashmere and QLACCA dated 8 August 2010.
The rights and interests of Cameron Grenville Frederick Burtenshaw as the permittee under the permit to occupy for grazing purposes No. 233735 dated 4 November 2009 being title reference 40059402 comprising Lots 1 and 2 on Crown Plan AP19833.
The rights and interests of Consolidated Tin Mines Limited (ACN 126 634 606) as the holder of exploration permits for minerals ("EPMs") nos. 14185 and 17550 to the extent that the EPMs are within the Determination Area.
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.
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.
Any other rights and interests held by the State of Queensland or the Commonwealth of Australia, 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 41 of 2004
[5]
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #2
[6]
JUDGE: DOWSETT J
DATE OF ORDER: 8 OCTOBER 2010
WHERE MADE: RAVENSHOE
[7]
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:
Native title exists in relation to the Determination Area.
The native title is held by the persons described in Schedule 1 (the "native title holders").
Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area, other than in relation to Water, are the non-exclusive rights to:
(a) be present on, including by accessing, traversing and Camping on, the Determination Area;
(b) take and use Traditional Natural Resources from the Determination Area for personal, domestic and non-commercial communal purposes;
(c) conduct ceremonies on the Determination Area;
(d) 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
(e) teach on the Determination Area the physical and spiritual attributes of the Determination Area.
Subject to paragraphs 5, 6 and 7 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) hunt and fish in or on, and gather 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.
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 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 3 and 4 do not confer the right to possession, occupation, use or enjoyment to the exclusion of all others.
The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.
The relationship between the native title rights and interests described in paragraphs 3 and 4 and the other rights and interests described in Schedule 4 (the "other rights and interests") is that:
(a) 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
(b) the other rights and interests and any activity that is required or permitted by or under, and done in accordance with, the other rights and 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.
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:
"Camping" does not include permanent residence or the construction of permanent structures or fixtures;
"Determination Area" means the land and waters described in Schedule 2 and shown on the plan in Schedule 3, and to the extent of any inconsistency between them, Schedule 2 prevails;
"Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
"Traditional Natural Resources" means:
(a) "animals" as defined in the Nature Conservation Act 1992 (Qld), but not including:
(i) fish; or
(ii) animals that are the private personal property of another;
(b) "plants" as defined in the Nature Conservation Act 1992 (Qld); and
(c) any clay, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders; and
"Water" means water as defined by the Water Act 2000 (Qld).
THE COURT ORDERS THAT:
Paragraphs 1-10 take effect upon the agreements referred to in paragraphs 1 and 3(d) of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.
Upon paragraphs 1-10 taking effect:
(a) The native title is not held in trust.
(b) The Wabubadda Aboriginal Corporation (ICN 7117), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
In the event that the agreements referred to in paragraph 11 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.
Each party to the proceeding is to bear its own costs.
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 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 290 (Pt) on CWL3517 Lot 20 on AP17646
Lot 290 (Pt) on CWL3517 Lot 21 on AP17646
Lot 290 (Pt) on CWL3517 Lot 22 on AP17646
Lot 191 on CWL2941 Lot 23 on AP17646
Lot 276 on H25327 Lot 24 on AP17646
Lot 285 on CWL2912 Lot 25 on AP17646
Lot 158 on CWL3681 Lot 26 on AP17646
Lot 260 on K103695 Lot 27 on AP17646
Lot 181 on CWL894 Lot 28 on AP17646
Lot 64 on CWL232 Lot 29 on AP17646
Lot 68 (Pt) on CWL3165 Lot 30 on AP17646
Lot 7 on R59913 Lot 31 on AP17646
Lot 307 (Pt) on CWL2908 Lot 32 on AP17646
Lot 5 on R5997 Lot 33 on AP17646
Lot 297 on CWL2892 Lot 34 on AP17646
Lot 7 (Pt) on R59915 Lot 35 on AP17646
Lot 251 on CWL1426 Lot 36 on AP17646
Lot 157 on CWL3657 Lot 37 on AP17646
Lot 248 on CWL201 Lot 38 on AP17646
Lot 310 on CWL270 Lot 39 on AP17646
Lot 4 on CWL1618 Lot 40 on AP17646
Lot 3 on CWL1903 Lot 41 on AP17646
Lots 12-14 on SP193022 Lot 42 on AP17646
[8]
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
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 indigenous land use agreement ("ILUA") dated 10 August 2010 between Gerald McKenzie, Betty
Cashmere and the Tablelands Regional Council.
The rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities within th
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.
The rights and interests of Ergon Energy Corporation Ltd:
(a) as the owner and operator of electricity transmission and 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:
(i) rights in relation to any wayleave agreement relating to the
Determination Area existing or entered into before the date on which
these orders are made; and
(ii) rights to enter the Determination Area by its employees, agents or
contractors to exercise any of the rights and interests referred to in this paragraph; and to inspect, maintain and manage any electricity
transmission and 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.
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.
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.
The rights and interests of Alfred Bevan Wieland and William John Wieland as the
permittee under the permit to occupy for grazing purposes dated 22 October 1995 being
title reference 17766249 comprising Lot 1 on Crown Plan PER201923 over part of Lot
25 on AP17646.
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.
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.
Any other rights and interests held by the State of Queensland or Commonwealth of Australia, 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 42 of 2004
[9]
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #3
[10]
MURRAY LYALL WALMSLEY, ALFRED BEVAN WIELAND AND WILLIAM JOHN WIELAND
[11]
JUDGE: DOWSETT J
DATE OF ORDER: 8 OCTOBER 2010
WHERE MADE: RAVENSHOE
[12]
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:
Native title exists in relation to the Determination Area.
The native title is held by the persons described in Schedule 1 (the "native title holders").
Subject to paragraphs 5, 6 and 7 the nature and extent of the native title rights and interests in relation to the Determination Area, other than in relation to Water, are the non-exclusive rights to:
(a) be present on, including by accessing, traversing and Camping on, the Determination Area;
(b) take and use Traditional Natural Resources from the Determination Area for personal, domestic and non-commercial communal purposes;
(c) conduct ceremonies on the Determination Area;
(d) 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
(e) teach on the Determination Area the physical and spiritual attributes of the Determination Area.
Subject to paragraphs 5, 6 and 7 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) hunt and fish in or on, and gather 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.
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 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 3 and 4 do not confer the right to possession, occupation, use or enjoyment to the exclusion of all others.
The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.
The relationship between the native title rights and interests described in paragraphs 3 and 4 and the other rights and interests described in Schedule 4 (the "other rights and interests") is that:
(a) 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
(b) the other rights and interests and any activity that is required or permitted by or under, and done in accordance with, the other rights and 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.
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:
"Camping" does not include permanent residence or the construction of permanent structures or fixtures;
"Determination Area" means the land and waters described in Schedule 2 and shown on the plan in Schedule 3, and to the extent of any inconsistency between them, Schedule 2 prevails;
"Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;
"Traditional Natural Resources" means:
(a) "animals" as defined in the Nature Conservation Act 1992 (Qld), but not including:
(i) fish; or
(ii) animals that are the private personal property of another;
(b) "plants" as defined in the Nature Conservation Act 1992 (Qld); and
(c) any clay, soil, sand, gravel or rock on or below the surface of the Determination Area,
that have traditionally been taken and used by the native title holders; and
"Water" means water as defined by the Water Act 2000 (Qld).
THE COURT ORDERS THAT:
Paragraphs 1-10 take effect upon the agreements referred to in paragraphs 2 and 5(d) of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.
Upon paragraphs 1-10 taking effect:
(a) The native title is not held in trust.
(b) The Wabubadda Aboriginal Corporation (ICN 7117), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of s57(2) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
In the event that the agreements referred to in paragraph 11 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.
Each party to the proceeding is to bear its own costs.
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 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 194 (Pt) on FTY1776 (now Lot 194 (Pt) on FTY1870) Lot 1 on AP20113
Lot 194 (Pt) on FTY1776 (now Lot 194 (Pt) on FTY1870) Lot 2 on AP20113
Lot 179 (Pt) on NPW922
Lot 194 (Pt) on AP6354 (now Lot 483 (Pt) on NPW922")
Lot 754 on FTY1844 (now Lot 754 (Pt) on FTY1853) Lot 3 on AP20113
Lot 754 on FTY1844 (now Lot 754 (Pt) on FTY1853) Lot 4 on AP20113
Lot 438 (Pt) on FTY1575 Lot 5 on AP20113
Lot 438 (Pt) on FTY1575 Lot 6 on AP20113
Lot 298 on CWL2671
Lot 438 (Pt) on FTY1575 Lot 7 on AP20113
Lot 438 (Pt) on FTY1575 Lot 8 on AP20113
Lot 488 on FTY1421 Lot 9 on AP20113
Lot 754 on FTY1844 (now Lot 754 (Pt) on FTY1853) Lot 10 on AP20113
Lot 521 on NPW641
Lot 511 (Pt) on FTY1845 Lot 11 on AP20113
Lot 511 (Pt) on FTY1845 Lot 12 on AP20113
Lot 139 on NPW677 (now Lot 139 (Pt) on NPW836)
Lot 139 on NPW677 (now 139 (Pt) on NPW836) Lot 13 on AP20113
Lot 194 (Pt) on AP6354 (now Lot 179 (Pt) on NPW922) Lot 14 on AP20113
Lot 650 (Pt) on AP6363 (now Lot 175 (Pt) on NPW892) Lot 15 on AP20113
Lot 650 (Pt) on AP6363 (now Lot 175 (Pt) on NPW892) Lot 16 on AP20113
Lot 650 (Pt) on AP6363 (now Lot 175 (Pt) on NPW892) Lot 17 on AP20113
Lot 650 (Pt) on AP6363 (now Lot 175 (Pt) on NPW892) Lot 18 on AP20113
Lot 650 (Pt) on AP6363 (now Lot 175 (Pt) on NPW892) Lot 19 on AP20113
Lot 251 (Pt) on AP6376 (now Lot 60 (Pt) on NPW928 and Lot 486 (Pt) on NPW928) Lot 20 on AP20113
Lot 756 (Pt) on AP6370 (now Lot 60 (Pt) on NPW928) and Lot 487 (Pt) on NPW921
Lot 101 (Pt) on NPW351 (now Lot 66 (Pt) on NPW890)
Lot 605 on AP6377
Lot 251 (Pt) on FTY1618
Lot 1 on AP14637
Lot 1 on AP14608
Lot 758 (Pt) on AP6343 (now Lot 484 (Pt) on NPW890)
[13]
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
[14]
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #1
[15]
QUEENSLAND LAPIDARY AND ALLIED CRAFT CLUBS ASSOCIATION
[16]
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION QUD 41 of 2004
[17]
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #2
[18]
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION QUD 42 of 2004
[19]
BETWEEN: BETTY CASHMERE AND GERALD MCKENZIE ON BEHALF OF THE JIRRBAL PEOPLE #3
[20]
MURRAY LYALL WALMSLEY, ALFRED BEVAN WIELAND AND WILLIAM JOHN WIELAND
[21]
JUDGE: DOWSETT J
DATE OF ORDER: 8 OCTOBER 2010
WHERE MADE: RAVENSHOE
[22]
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.
[23]
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.
[24]
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.
[25]
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".
[26]
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.
[27]
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.
[28]
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.
[29]
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.
[30]
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.
Parties
Applicant/Plaintiff:
Cashmere on behalf of the Jirrbal People #1
Respondent/Defendant:
State of Queensland
Legislation Cited (16)
(Cth), the Telecommunications Act 1975(Cth)
(Cth), the Australian Telecommunications Corporation Act 1989(Cth)