Combined Dulabed Malanbarra Yidinji People v State of Queensland

Federal Court of Australia|2009-12-17|Before: Spender J

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:

the court determines by consent that: 1. Native title exists in relation to that part of the Determination Area identified in Schedule 3 and Schedule 4. 2. The native title is held by the persons described in Schedule 1 (the native title holders). 3. Subject to orders 5, 6 and 7 the nature and extent of the native title rights and interests, other than in relation to Water, are: (a) in relation to that part of the Determination Area identified in Schedule 3, 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 4, the non-exclusive rights to: (i) be present on, including by accessing, traversing and Camping on the Determination Area; (ii) take and use Traditional Natural Resources from the Determination Area for personal, domestic or non-commercial communal purposes; and (iii) perform cultural or spiritual activities on the Determination Area. 4. Subject to orders 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 or non-commercial communal purposes; and (b) take and use the Water for personal, domestic or non-commercial communal purposes. 5. 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). 6. 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. 7. The native title rights and interests referred to in orders 3(b) and 4 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 8. 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. 9. The relationship between the native title rights and interests described in orders 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 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 identified in Schedules 3 and 4, 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 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. 10. 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: (a) structures (other than grass huts known as bulmba); or (b) fixtures; "Determination Area" means the land and waters described in Part A of Schedule 2 and shown on the plan in Part B of Schedule 2, and to the extent of any inconsistency between them, Part A of 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 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 determines and orders THAT: 11. The native title is not held in trust. 12. The Dulabed Malanbarra and Yidinji Aboriginal Corporation, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of a s 57(2) of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. 13. Each party to the proceedings is to bear its own costs. 14. Orders 1 - 10, will take effect on the registration of the agreements referred to in paragraphs 3, 4, 5 and 6 of Schedule 5, on the Register of Indigenous Land Use Agreements.

SCHEDULE 1 - NATIVE TITLE HOLDERS The native holders are those people known as the Dulabed and Malanbarra Yidinji People. The Dulabed and Malanbarra Yidinji People are those Aboriginal people who are: 1. descended from Jimmy Longdon (also known as Jimmy Langdon); 2. descended from Tommy Longdon (also known as Tommy Langdon); 3. descended from Alec Morgan; 4. descended from Jack Stewart; 5. descended from Dolly Abbo; 6. descended from Paddy Bailey; 7. descended from Annie; or 8. recruited by adoption, in accordance with the traditional laws and customs of the Dulabed and Malanbarra Yidinji People.

SCHEDULE 2 - DETERMINATION AREA PART A The Determination Area comprises all of the land and waters described as: (a) Lot 1 on AP 19632; (b) Lot 2 on AP 19632; (c) Lot 3 on AP 19632; 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 exclusive native title exists Lot 2 on AP19632 Section 47B of the Native Title Act 1993 (Cth) applies to part of Lot 2 on AP19632.

SCHEDULE 4 - Areas where non-exclusive native title exists Lot 1 on AP19632 and Lot 3 on AP19632.

SCHEDULE 5 - Other interests in the Determination Area The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the Determination: 1. the rights and interests of the holder of occupation permit 02/003 Atherton granted under the Forestry Act 1959 (Qld); 2. the rights and interests of the holder of water licence 35095K granted under the Water Act 2000 (Qld); 3. the rights and interests of Ergon Energy Corporation Limited: (a) as an electricity entity under the Electricity Act 1994 (Qld) concerned in the generation, transmission and distribution of electricity, exercising statutory powers within the Determination Area; and (b) under an Indigenous Land Use Agreement between the native title holders and Ergon Energy Corporation Limited executed on 30 November 2009; 4. the rights and interests of the Cairns 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 dated 30 November 2009 between the native title holders and Cairns Regional Council; 5. 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 dated 27 November 2009 between the native title holders and Tablelands Regional Council; 6. the rights and interests of the Dulabed and Malanbarra Yidinji People, the Dulabed Malanbarra and Yidinji Aboriginal Corporation and State of Queensland in relation to the Determination Area, under an Indigenous Land Use Agreement dated 27 November 2009 between those parties; 7. the rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of Lot 1 on AP19632; 8. the rights and interests of the State of Queensland pursuant to the Forestry Act 1959 (Qld) and subordinate legislation relating to the use and management of Lot 3 on AP19632; 9. 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; 10. the rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Nature Conservation Act 1992 (Qld) as may be current at the date of this determination; 11. the rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Forestry Act 1959 (Qld) as may be current at the date of this determination; 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. the rights and interests of the holders of any licences, permits or allocations issued under the Water Act 2000 (Qld) as may be current at the date of this determination; 14. the rights and interests of the holders of any authorities issued under the Fisheries Act 1994 (Qld) as may be current at the date of this determination; 15. 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; 16. so far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this determination any existing rights of the public to access and enjoy, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) coastal waters; (d) beaches; (e) stock routes; and (f) areas that were public places at the end of 31 December 1993; 17. any other rights and interests held by the State of Queensland 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 eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION QUD 6012 of 2001

BETWEEN: LORRAINE MUCKAN AND LEN ROYEE ON BEHALF OF THE COMBINED DULABED MALANBARRA YIDINJI CLAIM

1 This proceeding arises out of an application for determination of native title made by Lorraine Muckan and Len Royee on their own behalf and on behalf of the Combined Dulabed Malanbarra Yidinji People. The Respondents are the State of Queensland, the Cairns Regional Council, the Tablelands Regional Council, Ergon Energy Corporation Limited and Mrs Jacqueline Spokes. 2 The claim area comprises approximately 166.6 square kilometres of land and waters and lies within the upper Mulgrave River basin approximately 40 kilometres south-west of Cairns in the Wet Tropics World Heritage region of far north Queensland. The area is commonly known as the Goldsborough Valley and is comprehensively defined as the "Determination Area" in Schedule 1 of the agreement filed on 30 November 2009.

Background of the Application 3 This application, which is the combination of two earlier overlapped applications, has a long and chequered history. The original Malanbarra Yidinji People's application was lodged with the National Native Title Tribunal (the Tribunal) on 21 August 1994 and an application by George Davis on behalf of the descendants of Jimmy Longdon, members of the Dulabed Aboriginal Corporation, was lodged with the Tribunal on 23 February 1995. On 12 June 1996 the Malanbarra Clan of Yidinji People lodged an application with the Tribunal but discontinued that application on 7 February 2000. 4 On 30 September 1998, by force of amendments to the Native Title Act 1993 (Cth) (the Act), all applications lodged with the Tribunal became proceedings filed in the Court. 5 On 23 March 2001, by order of Justice Drummond, the Dulabed and Malanbarra Yidinji applications were combined and became proceeding QUD 6012/01 as the Combined Dulabed Malanbarra Yidinji People's application for a determination of native title. The application has been amended on four separate occasions, the last being on 16 November 2009. 6 The combined application was notified by the Tribunal pursuant to, and in accordance with, s 66 of the Act and a number of parties became respondents to the proceeding. The State of Queensland, Cairns Regional Council (formerly City of Cairns Council), Tablelands Regional Council (formerly Eacham Shire Council), Ergon Energy Corporation Limited and Jacqueline Spokes remain parties. The combined application was referred to mediation with the Tribunal on 11 May 2004. 7 The Act encourages the parties to resolve applications through mediation without the necessity for contested adversarial hearings. With the assistance of the Tribunal, the parties have reached agreement as to the terms of the determination for the purposes of s 87 and s 94A of the Act that native title exists in respect to the Determination Area as described in the s 87 Agreement that was filed on 30 November 2009.

The Native Title Claim Group 8 The amended application names Lorraine Muckan and Len Royee as the Applicant. The Dulabed claim group is made up of the persons descended from their apical ancestor, Jimmy Longdon or Langdon, and the Malanbarra Yidinji claim group is made up of persons who are descended from Jimmy Longdon (also known as Jimmy Langdon); Tommy Longdon (also known as Tommy Langdon); Alec Morgan, Jack Stewart; Dolly Abbo; Paddy Bailey; Annie; or recruited by adoption in accordance with traditional laws and customs of the Dulabed and Malanbarra Yidinji People.

Power of the Court 9 Pursuant to s 13 of the Act, applications for the determination of native title may be made to the Federal Court in relation to areas for which there is no approved determination of native title. Part 3 of the Act sets out the rules for making such applications to the Court. 10 Part 4 Division 1C of the Act provides that some or all of the parties involved in native title proceedings may negotiate an agreement for the application or part of the application. Section 87 of the Act allows the Court, if it is satisfied that such an order is within power, to make an order in, or consistent with, the terms of the parties written agreement without holding a hearing. 11 I am satisfied that the proposed orders that have been freely agreed to by all of the parties on an informed basis are appropriate. There are now a number of decisions of this Court that have considered the requirements of this section of the Act that promotes a resolution of native title applications by way of negotiated agreement. Justice Greenwood, in Deborah Hobson and Ors on behalf of the Kuuku Ya'u People v State of Queensland [2009] FCA 679 at [12] referred to the observations made by Chief Justice French in his paper, Lifting the Burden of Native Title - Some Modest proposals for Improvement, that the Court will not lightly second-guess the agreement the parties have reached by requiring formal proof of the content of the subject matter of each proposition contained in the proposed orders which in turn must necessarily address the elements of ss 223 and 225 of the Act. Otherwise the Applicant would be burdened with, in effect, a subset of a trial in establishing the appropriateness of consensual orders.

Consideration of Agreement and Draft Determination 12 In considering whether it is appropriate to make the order that the parties seek, I have had the benefit of reading Dr Sandra Pannell's excellent summary of three reports, Evidence for the Continuous Traditional Connection to the Claim Area in the Matter of Yidinji/Malanbarra Native Title Claim by Averil Ginn, the Anthropological Report for the Dulabed Aboriginal Corporation by Petronella Vaarzon-Morel, and the Anthropological Report of the Upper Yidinji Attachments to Land in the Atherton-Goldsborough Valley Region by Athol Chase and Marcus Lane. These three reports were prepared prior to the High Court decisions in Western Australia v Ward (2002) 191 ALR 1 and Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538. I have also considered the Executive Summary on the Dulabed/Malanbarra Yidinji Genealogies prepared by Jennifer Gabriel. 13 Dr Pannell's Summary of Connection Material (dated November 2006 and amended October 2009) clearly explores the available evidence on the identification of the claim group, continuity of connection and the normative system of traditional law and custom of the claim group. The reports examine the society at the time of European intrusions into the Determination Area, the normative laws and customs acknowledged and observed by that society at and subsequent to European settlement and the genealogical record. I have found the wealth of personal information in the affidavits of senior members of the claim group, exhibited to the affidavit of Martin Edwin Ellis Doré, the Principal Legal Officer employed by the North Queensland Land Council, and filed on 30 November 2009, to be very informative and helpful in respect to the current society. 14 In order to establish that there are today native title holders, it must first be established that, at the time of sovereignty, a society of persons bound together by observance of traditional laws and customs existed. Petronella Vaarzon-Morel in her anthropological report refers to the first recorded sighting of Aborigines in the claim area as occurring in October 1873 when George Elphinstone Dalrymple led the north-east coast expedition up the North Johnstone to the Mulgrave River in an attempt to ascend Bellenden Ker Range. She refers to Dalrymple's journal where he noted Aboriginal camps and bora grounds in the area and that "Mount Bellenden Ker was shrouded in dense clouds of smoke of blacks fires". At the junction of Tighes Creek and the Mulgrave River he observed Aboriginal encampments and saw them daily crossing the river or fishing in their canoes. At a point 15 miles further up the Mulgrave he noted numerous outrigger canoes, rafts and that the canoes were all well furnished with fish spears, lines hand nets, etc. Dalrymple recorded that: Blacks were seen crossing the reaches ahead of us on our way up but hid themselves on our approach. 15 Continuing upstream to the foothills of Walsh's Pyramid, Dalrymple noted that: Numerous round topped palm leaf gunyahs occupied picturesque sites on the banks at the bends of the river, generally commanding a view along both reaches. Returning downstream in the dark, we pass numerous large fires of a black's camp. Visiting the camp, then deserted, a few days later, we found that they had been feasting on a large crocodile. 16 There were subsequent expeditions into the area by, amongst others, Archibald Meston who made extensive notes of his scientific expeditions within the north Queensland rainforest region. Reference is made in the report to Meston meeting the same aborigines encountered by Dalrymple thirty one years earlier. 17 The Vaarzon-Morel report refers to the first white settlement in the area in 1877 when the Alley family took up 640 acres of land at Riverstone (now Gordonvale). The report contains the following extract from an 1878 report by Police Commissioner Seymour: The whole coast from the Mulgrave to the Mossman is studded with timber-getters and settlers, by whom the blacks are disturbed and prevented from obtaining their natural food while on the other side of the range the country is all occupied by small cattle stations which again cut them off from their hunting and fishing grounds. The intervening scrub is small, affording but a scanty supply of fruits in their season, and the natives are literally starving, and take advantage of the cover afforded by the scrub to make sudden raids on the cattle and huts (cited in Glass 1997). 18 In 1879, Fanning Town, otherwise known as Goldsborough, was established approximately 20 kilometres from Gordonvale on the Mulgrave River at a point just below the junction of the Mulgrave River with Toohey Creek. Fanning Town was within the traditional country of the Dulabed Malanbarra Yidinji People. Mining activity was focused within the claim area between Toohey Creek and Butcher Creek. There were approximately 140 miners working in the field and police records note that "the blacks are numerous" and that although they had not yet caused problems their presence in the area urgently warranted "a native police detachment to keep the blacks in check". 19 A detachment of native police was subsequently sent to the area and a period of conflict followed. Ms Vaarzon-Morel says that it was during this period that Jimmy Longdon, the father of the original Dulabed Applicant, the late George Davis, first encountered Europeans. 20 The Combined Dulabed Malanbarra Yidinji People's traditional entitlement to ownership of the ancestral lands and waters derives from their physical, cultural and spiritual connection to the claim area. I am satisfied that I can infer from the well documented historical and anthropological material that at the time of sovereignty, a society of persons bound together by observance of traditional laws and customs existed. 21 I have been greatly assisted by the personal information contained in the affidavits referred to above. The deponents provide a clear picture of the contemporary society that demonstrates its connection to the Determination Area. These include activities such as:

(i) occupying the remnant forests or otherwise utilising them to gather food and medicinal plants;

(ii) hunting and fishing within the determination area;

(iv) working on local farms whilst occupying traditional dwellings;

(v) engaging in occupations carried on out on country, such as timber cutting or fossicking, and in some cases returning to their country upon release from government missions.

The Terms of the Proposed Order 22 Where the Court makes an order in which a determination of native title is made, section 94A of the Act requires the Court to set out details of the matters mentioned in section 225. It is necessary to consider whether the terms of the proposed determination satisfy the requirements of s 225 of the Act which provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 23 Paragraph 225(a) deals with the identification of the persons holding the common or group rights comprising the native title. This is set out Schedule 1 to the determination. 24 Paragraph 225(b) deals with the nature and extent of the native title rights and interests in relation to the Determination Area. This is set out in orders 3 to 8. 25 Paragraph 225(c) deals with the nature and extent of any other interests in relation to the Determination Area. This is dealt with in order 8 and Schedule 5. 26 Paragraph 225(d) deals with the relationship between the rights and interests in par 225(b) and (c), taking into account the effect of the Act. This is dealt with in order 9. 27 Paragraph 225(e) deals with the question of exclusion of others. The proposed determination properly distinguishes between those areas where rights are recognised to the exclusion of all others (Schedule 3) and those areas where rights and interests are non-exclusive (Schedule 4). 28 In my judgment, the requirements of the sub-section have been met in the proposed determination. 29 Having regard to the material I have considered to support the application, the terms of the proposed determination and the submissions of the Applicant, I am satisfied that all of the matters in s 225 of the Act have been properly addressed. 30 The proposed order, which is consistent with the terms agreed by the parties, recognises that the Combined Dulabed Malanbarra Yidinji People, as the holders of the native title in the Determination Area, are entitled to the exclusive and non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. 31 The proposed orders further recognise other interests in the Determination Area and the relationship of those interests with the native title interests. The proposed order contains other provisions, required by the Act which are unnecessary for me to set out here. 32 Section 55 of the Act requires the Court either to make a determination where native title is held on trust as contemplated by s 56 or a determination under s 57 of the Act. The parties have agreed that the native title is not to be held in trust. Section 57(2) of the Act provides: 57 Determination of prescribed body corporate etc. … Where not trustee (2) If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3): (a) first, it must request a representative of the common law holders to: (i) nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and (ii) include with the nomination the written consent of the body corporate; (b) secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions; (c) thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions. 33 Ms Lorraine Muckan, in her affidavit filed on 27 November 2009, says that the Applicant has nominated the Dulabed Malanbarra and Yidinji Aboriginal Corporation (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)) (the Corporation) as the prescribed body corporate for the purposes of s 57 (2) of the Act to act for the common law holders, to perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and for the other objects and purposes set out in the Rules of the Corporation. The Corporation was registered on 5 November 2009. Order 12 reflects the agreement of the parties and I am satisfied that the proposed determination meets the requirements of ss 55 and 57 of the Act. 34 I congratulate the Combined Dulabed Malanbarra Yidinji People, the State of Queensland and the other respondent parties who have, in the spirit of this beneficial legislation, reached an agreement that is reflected in the orders that I make today. I am saddened that so many of the senior elders have died before seeing their native title recognised by Australia and its laws. I wish to acknowledge the contribution that those persons made to the transmission of the law and custom to the younger generations of Dulabed and Malanbarra Yidinji People. 35 I am satisfied that the Court has power to make a determination in the terms proposed by the parties by agreement and that these orders can give effect to the agreement of all the parties. Such orders determine under the laws of Australia that native title exists in the Determination Area according to the traditional laws and customs of the Combined Dulabed Malanbarra Yidinji People. This is recognition of what the people have always understood the position to be. 36 For the above reasons I have concluded that it is proper to make the orders sought by the parties to give effect to their agreement, and I now so order. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate: Dated: 17 December 2009 Solicitor for the Applicant: North Queensland Land Council Native Title Representative Body Aboriginal Corporation

Solicitor for the State of Queensland Crown Law

Solicitor for the Cairns Regional Council Preston Law

Solicitor for the Tablelands Regional Council MacDonnells Law

Solicitor for the Ergon Energy Corporation Limited MacDonnells Law

Native Title Act 1993(Cth)ss 13, 47B, 55, 57, 66, 87, 94A, 223, 225

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