REASONS FOR JUDGMENT
1 On 17 May 1770 Captain Cook sailed by Stradbroke Island (Minjerriba), naming both Moreton Bay and Point Lookout. He saw smoke rising from the island, almost certainly from fires started by the inhabitants. However the first contact between island people and European settlers occurred when Flinders visited the island in 1799. He returned in 1803, well before European settlement in what is now south-east Queensland. Flinders found substantial huts and saw people in canoes driving fish into nets. A nearby island was being exploited for edible nuts. When he returned in 1803 he anchored near Point Lookout and went ashore for water. Point Lookout continues to be a watering place, but in a somewhat different sense. He encountered island people who were friendly and good-humoured.
2 As is well-known, in 1823 three convicts from Port Phillip were shipwrecked on Moreton Island, finding their way to Stradbroke Island and then to the mainland. Oxley arrived in 1823, and the penal settlement was established in 1824 at Redcliffe, then moving to the present site of Brisbane. Stradbroke Island quickly became closely involved in the settlement, partly for navigational reasons. It became the site of a pilot station and a quarantine station. At that time there was a substantial indigenous population from which the Quandamooka People are descended. The members of that society were then asserting some form of dominance over the general area and continued to do so, notwithstanding the arrival of European settlers. Of course, their activities were increasingly limited as European occupation and use extended. Amity Point and Dunwich became centres of European activity on the island. The former had been, and continued to be a major centre for the indigenous inhabitants. Initially, the indigenous and European peoples enjoyed good relations, including some commercial dealings. However the indigenous people remained self-sufficient in this resource-rich area.
3 From the early 1830s relations declined and, inevitably, the indigenous people suffered the consequences. There was considerable disruption to their community, particularly after 1880, with the development of a mission, a school and housing. Between 1912 and 1938, there were some removals, but many people remained on the island, and others returned. Some Europeans continued to have good relations with the indigenous people and left records of their association. They include names which are well-known in the history of south-east Queensland such as Welsby and Petrie. The Quandamooka People have, on numerous occasions since 1916, tried to persuade government that, by virtue of historical connection and descent, they are entitled to legal title over at least part of the island.
4 The anthropological evidence describes in some detail the Quandamooka society as at the time of first assertion of British Sovereignty.
5 Dr Whalley says:
(a) When the British Penal Colony first arrived in Quandamooka, Europeans found, but refused to officially recognise, a stable socio-political order and an easily apparent number of autonomous Indigenous peoples, each with their distinct spheres of authority and law and rights to land. They found well developed and stable settlement patterns, large populations, and on the coast small territories, large trade and ceremonial networks and clear systems of territorial, linguistic and political affiliation. High population figures were still noted some twenty years after European occupation while it is still fairly clear that during this time, if not before, we have one, possibly two, smallpox epidemics through the area.
(b) In Quandamooka itself large gatherings of huts and relatively permanent structures spaced a few kilometres apart were regularly reported along the western side of Gnoorganpin, north western side of Minjerriba … and around the west coast of the Bay. These reports are confirmed by the extant archaeological record and we might here note most of these Aboriginal 'villages' occur around the mouth of freshwater creeks and streams emptying into Quandamooka, providing an environment rich in a wide range of resources.
6 From the above it emerges that the word "Quandamooka" has a geographical significance in addition to its demographic significance. Mr Wood says:
(a) The people of those parts of Moreton Bay stretching from Moreton Island and the Wynnum area southwards were distinguished as mostly dialect-named drainage groups that held proprietary countries around the Bay rim.
(b) They also had a distinctively marine oriented economy and culture.
(c) Their laws and customs … cohered with and were essentially the same as those diffuse over coastal southeast Queensland and adjacent New South Wales.
(d) A degree of Moreton Bay autonomy had more to do with the island and marine geography which contributed to some isolation, and was also resource rich and so lent a degree of economic self-sufficiency and capacity for reproductive self-sufficiency.
(e) The Moreton Bay people were numerous and self-sufficient enough, and certainly united by common laws and customs, to form a small-scale society in their own right.
(f) This was most pronounced on Moreton Island, between which and Bribie Island there was little or no social fabric, so that Moreton's social contacts were largely with and via Stradbroke Island and thence to the southern mainland of the Bay.
7 The evidence also demonstrates in some detail the continued connection between the Quandamooka People and the island. Various witnesses attest to the connection as follows:
Margaret Iselin said -
[We] all shared our tracks and waterways, no one had certain parts they called their own.
Sid Coolwell said -
I recall that when we were young, we would often go to Russell Island and get vegetables such as tomatoes, potatoes and cabbage. My grandfather told me that all those islands, including Moreton Island, North and South Stradbroke Islands were joined together and this was all my country. We would often go to Peel and Goat Island where we would get quampies, mud crabs, oysters and fish. My grandfather would often say to me 'this is your land'. I wouldn't take any notice much as a kid, but I know that all of that land is my land. I know that all of the water around that land is my water too. When I was a child, I always believed that all the aboriginal people living at North Stradbroke Island, Dunwich, One Mile and Two Mile were all the one mob. By this I mean we were all the same people and this was all of our country.
It has always been known to me that all the islands in Moreton Bay was our country and that it was our responsibility to look after it, and if anyone came to the island they needed our permission to stay, if they didn't ask for permission or they played up while they were there, they would be told to go away and be put off the island. That is still the case today. Our spirits have always been on that island and they will always stay there.
Ian Delaney said -
Quandamooka Country as I have been taught by the grannies and my uncles includes Wynnum, Cleveland, Moreton Island across to Doboy Creek then to the ranges at Belmont, down to the Logan River, all the foreshores, the whole bay and all the Moreton bay islands down to Southport.
Darren Burns said -
I have always understood that all of the Moreton Bay, the Bay Islands are my country. I have learned about this from my grandfather.
It is my understanding that South Stradbroke Island, Peel Island and Moreton Island, and all the southern bay islands are part of my country. I have learned this from my grandfather and it is what I tell my children.
8 The following paragraphs from the applicant's submissions further demonstrate the point:
38. The current Quandamooka community consists of the resident population and those living on the mainland. Many Quandamooka people have lived in the claim area for their lifetime. Whalley noted (in 1991) "that the majority of the Aboriginal people who today reside on Minjerriba are in fact descendants of the original indigenous landowners and can conclusively demonstrate their Ancestral title to the lands and waters of Quandamooka."
39. The contemporary group of Quandamooka people who are entitled to speak for and make decisions about Quandamooka country are the descendants of identified apical ancestors all of whom were Quandamooka people and were present in or on Stradbroke or Moreton Island in the period between 1830 and 1880.
40. Memmott and Stacy list and discuss the functions of some 13 organisations the members of which are Quandamooka people. These include the Quandamooka Land Council, the Minjerribah Mulgumpin Elders Council, the Noonuccal Land Council and various other associations many providing particular services to Quandamooka people. They also refer to a number of other means by which Quandamooka people engage with each other including public meetings, family histories, funerals and cultural events, and sport.
41. Memmott and Stacy note that many functions and decisions require the attendance of a wide range of Quandamooka people. "When cultural matters arise that are of significance to several or more families, involving such laws and customs, they are frequently dealt with using a process of community debate and action that may encompass either Elders-in-Council or the Quandamooka Land Council or the Men's Council or all of them. They refer to processes of consultations with families for the purpose of achieving consensus or a vote, and for the need for their representatives to "take decisions back to their community for resolution."
42. They conclude this section by saying:
This again demonstrates:
(a) how social Law and decision-making is maintained at a communal level through communal decision-making;
(b) how the concept of community is constantly re-represented back to its members, and hence is a self-maintaining concept.
43. The evidence noted and summarised above of continued use and occupation of areas in the vicinity of the claim area and a significant number of biological links with previous generations and other evidence of continued connection between Quandamooka people and their country, shows the existence, acknowledgement and observance of a body of laws and customs over many generations extending beyond first contact, and by inference prior to sovereignty.
9 The applications are brought pursuant to the Native Title Act 1993 (Cth) (the "Act") by Ian Delaney on his own behalf and for and on behalf of the members of the Quandamooka native title claim group. Membership of the claim group depends upon descent from one or more of the identified apical ancestors who are described in the material. The following is an edited version of that material. The apical ancestors are:
Nellie/Lilly Kidgeree who married a European man, Harry Thompson. Their daughter, Margaret Thompson, was born in about 1867. Her death was recorded in the diary of Gustavus Birch of Amity Point in the year 1873.
Mary Indoole Compignie who was born in about 1854 and married George Costello (Snr) in 1898. Following his death in 1901, she married Henry Jarrett. She died on 25 July 1921.
Elizabeth Ruska was the daughter of an aboriginal woman and a Filipino man, Fernando Gonzales. Historical accounts conflict as to whether her mother was Juno or a sister of Juno, Elizabeth (Snr). She is known to have married Frederick Ruska, with whom she had four children.
Charlie Moreton (Dandruba) who was born on Stradbroke Island in about 1871. In 1898 he married Daisy Thompson, with whom he had ten children. He died in 1949.
Sidney Rollands (Kingal/Winyeeaba) who was born in 1837 on Moreton Island. She died in 1917 at Dunwich. Welsby's historical account suggests that she was well known in Brisbane as an experienced nurse.
Lillian Lyons (Dungoo) who was born in about 1869 and married a New Caledonian man, John Roberts. When she died in 1943, she was thought to be 74 years of age, although some records indicate that she was closer to 80 years of age.
King Billy Toompani who was born in about 1810 and died on 5 September 1886. His wives were Kindara Sambo, Scroggins and Timgil. King Billy helped to save the lives of 40 people when the Sovereign, an iron paddle steamer, was ship-wrecked on the Amity bar. The Queensland Government gave him a brass plate and a fishing boat in recognition of his heroic conduct.
Juno (Gonzales) who married Fernando Gonzales. There is no recorded date of birth or death for Juno, however, her first child was born in about 1856, and she was still living in 1882.
Liza Jungerboi (mother of Rose Martin nee Bain) who is thought to have been born on Stradbroke Island, although there is no direct evidence in relation to her birth or death. She married Jim Bain, with whom she had a daughter in 1866.
Tommy Nuggin (Gendarieba) who was born in about 1850 and married a woman of aboriginal descent identified as Sarah. He died on 14 December 1914.
Tilly or Matilda (mother of Tommy Dalton, Richard Dalton and Henry Lea), who was born on Stradbroke Island. There is no evidence as to her date of birth or death, but her sons were born between 1875 and 1878.
Kindarra who was born in the mid 1800s and died on 3 October 1934.
10 The first of the present applications was commenced in the National Native Title Tribunal (the "Tribunal") on 3 January 1995. It came to the Federal Court on 30 September 1998. A second application was made in 1998. The two applications relate to different claim areas. The State of Queensland, Redland City Council, Energex Limited, Telstra Corporation Limited, ACI Operations Pty Ltd and Consolidated Rutile Limited are respondents to both applications. The Brisbane City Council, the Commonwealth of Australia, Stradbroke Ferries Pty Ltd, a number of fishing parties and a number of oyster growers are respondents to the first application only. The Queensland Seafood Industry Association, Michael and Terence Connolly, Ellie Durbidge and James Sommer are respondents to the second application only.
11 Pursuant to s 13 and Parts 3 and 4 of the Act, the Court may make determinations concerning native title in relation to areas where there is no existing approved determination. The relevant areas are not the subject of any other application or determination. The State of Queensland has, for the purposes of both applications, admitted that:
(a) a pre-sovereignty society existed and that there has been continuity from sovereignty to the present day;
(b) the Quandamooka People have maintained their connection and have connection with North Stradbroke Island and the surrounding waters but not with Peel Island, Bird Island, Goat Island and Lot 32 on Plan SL12751 in Cleveland;
(c) in respect of the sea part of the claim the Quandamooka People hold native title rights similar to those determined to exist in tidal waters in previous sea claims such as Yarmirr 1, Lardil 2 and Gumana 3.
12 Telstra Corporation Limited, Consolidated Rutile Limited, ACI Operations Pty Ltd, and the fishing parties have adopted the State's admissions. The Redland City Council has made similar admissions.
13 With the Court staff closely involved in the supervision and co-ordination of numerous anticipated consent determinations throughout Queensland and the rest of Australia, on 5 May 2010, I asked the Tribunal to facilitate negotiations amongst the parties as to consent determinations in these matters. Final agreement was reached this year. The recent enthusiasm and co-operation leading to these consent determinations compares favourably with the endemic inactivity which attended almost all Native Title proceedings for many years prior to the Court's decision in 2003 to become closely involved in the management of Queensland Native Title claims. The Court appreciates the assistance provided by the Tribunal in this case.
14 Section 87 of the Act provides that the Court may, in some circumstances, make a determination of native title by consent over an area covered by a native title application without holding a hearing. The requirements of s 87 of the Act have been satisfied. This Court resolves disputes between parties, which disputes are identified by the parties. Only disputes so identified fall for resolution by the Court. When parties make admissions or concessions, the issues in dispute are narrowed. In some cases the Court may decline to act on such admissions or concessions. Where, as here, the proceedings have significance for people other than the parties, the Court must give especial consideration to the appropriateness of making consent orders. In this case, I see no reason to doubt the appropriateness of the parties' identification of the issues or of their consensual resolution of them. They have had the benefit of appropriate legal advice. The proceedings have been on foot for a long time and have been appropriately publicized. I also see no reason to doubt that the proposed orders have been drafted with appropriate regard to the public interest, represented by the State and the local authorities.
15 The agreement recognizes exclusive rights to possess, occupy, use and enjoy the area identified in Schedule 4, other than in relation to water. The proposed orders in relation to non-exclusive native title rights (other than in relation to water) are:
(b) in relation to that part of the Determination Area identified in Schedule 5, the non-exclusive rights to:
(i) Live and be present on the area;
(ii) take, use, share and exchange Traditional Natural Resources for personal, domestic and non-commercial communal purposes;
(iii) conduct burial rites;
(iv) conduct ceremonies;
(v) teach on the area about the physical and spiritual attributes of the area;
(vi) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
(vii) light fires for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
(viii) be accompanied into the area by non-Quandamooka people being: −
i. people required by traditional law and custom for the performance of ceremonies or cultural activities; and
ii. people required by the Quandamooka people to assist in observing or recording traditional activities on the area.
(c) in relation to that part of the determination area identified in Schedule 6, the non-exclusive rights to:
(i) be present on the area, including by accessing and traversing the area;
(ii) take, use, share and exchange traditional natural resources and seawater for any non-commercial purpose.
16 The extensive material filed in this matter provides ample grounds for the findings required by s 94A of the Act. That material is described in Exhibit 1 and I should only add the names of the various deponents:
Dale Alfred Eugene Ruska;
Ian Delaney;
Sidney Coolwell;
Vincent George Martin;
Darren John Burns;
Evelyn Parkin (nee Delaney);
Shirley Rose Borey;
Joshua Jude Walker;
Margaret Iselin dated;
Darren John Burns dated;
Darren John Burns dated;
Evelyn Parkin dated;
Irene Paula Clarey nee Tippo;
Peter Barney Delaney; and
Shirley Rose Borey.
17 In considering this material, I have been greatly assisted by a summary filed by the applicant on 3 June 2011. It provides a very clear overview of the anthropology, archaeology and history of the Quandamooka People, based upon the material referred to above, describing the Quandamooka society from pre-sovereignty to present times.