REASONS FOR JUDGMENT
1 On 30 May 1995 the Kalkadoon people lodged a claim to Native Title pursuant to the Native Title Act 1993 (Cth) (the "Act"). Six further claims were filed. Following a research project commissioned by the Carpentaria Land Council the current claim, known as Kalkadoon #4, was filed on 22 December 2005. The Kalkadoon #5 claim was filed on 13 January 2006.
2 Kalkadoon #4 and #5 claims were accepted for registration on 4 September 2006 and 11 December 2006 respectively. On 28 March 2007 both claims were notified in accordance with the Act. On 8 December 2010 the Court ordered that the Kalkadoon #4 and #5 claims be combined. The remaining respondents to the combined claim are the State of Queensland, the Commonwealth of Australia, the Boulia, Bourke, Carpentaria, Cloncurry and McKinlay Shire Councils, the Mt Isa City Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, CS Energy Mica Creek Pty Ltd, Michael McKeon, MMG Australia Limited, Mt Isa Mines Limited, Noranda Pacific Pty Ltd, Roverton Pty Ltd, Xstrata Copper Exploration Pty Ltd (formerly MIM Exploration Pty Ltd) and a large number of pastoralists.
3 The combined claim covers an area of about 38,720 square kilometres. It includes low lying plains in the north, north east and southern sections; the Cloncurry Ranges in the mountainous centre; the City of Mt Isa; the townships of Gunpowder, Kajabbi, Quamby, Mary Kathleen and Duchess; branches and tributaries of the Leichhardt River; the south western headwaters of the Cloncurry River; and the middle and upper reaches and tributaries of the Georgina River.
4 The parties to these proceedings have been involved in long and complex negotiations concerning the terms of this proposed consent determination. On 5 October 2009, the Court ordered that the matter be set down for trial, and that mediation in the Tribunal cease. Since that time, the case has been in intensive case-management under the supervision of court staff. As a result, the parties have reached final agreement pursuant to Part 4 Division 1C of the Act. The agreement was filed in the Court on 6 December 2011. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make orders without holding a full hearing, provided that it is satisfied that the proposed orders are within its power, and that it is appropriate that they be made. 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, I must give careful consideration to the appropriateness of the proposed consent orders. Further, the agreement reached between the parties must be freely made, on an informed basis, by all parties. I accept that the State and all other parties, after consideration of the available evidence and archival material, support the orders sought by the applicant. The parties have provided extensive expert and non-expert evidence in support of the claim. I have also been assisted by written submissions filed by the applicant.
5 Sixteen Kalkadoon claimants, ranging in age from 50 to 78 years, and drawn from six different descent groups, have provided affidavit evidence attesting to the continued acknowledgement and observance of traditional laws and customs by the Kalkadoon people. The deponents display a detailed knowledge of their lines of descent and their respective relationships to the claim area. The deponents are:
Richard Percy;
Thelma Sullivan;
Alec Sullivan;
Pat Donovan;
Hazel Munro;
Judy Sam;
Lawrence "Sonny" Condren;
Doug Bruce;
Dawn Sam;
Cornelia Craigie;
Clive Sam;
Cecil Moonlight;
Ron Nemo;
Noleen Dempsey;
Keith Percy; and
James Watts Taylor.
6 The affidavits contain valuable evidence which supports the asserted exercise of continuing native title rights and interests by the claim group. They also contain comprehensive descriptions of traditional law and customs, dreaming stories, spiritual matters, language and significant sites, as well as detail concerning the methods of transmission of such knowledge.
7 Dr Gavin Breen has studied the Kalkatungu language since 1967. He considers that it is not closely related to any other language, a fact which re-inforces the perception of the claim group as a discrete group or nation. Historians Dr Jonathan Richards and Dr Roslyn Kidd have provided reports which detail the history of European contact with the Kalkadoon people. The first European contact was probably with the Burke and Wills party which entered the claim area in 1861. S.E. Pearson, writing in 1948, recorded that he had spoken to Kalkadoon people who recalled seeing that party. Wills recorded evidence of indigenous presence in the claim area, but the party saw few people. In 1861 and 1862 search parties looking for Burke and Wills, encountered many aboriginal groups.
8 George Sutherland brought sheep into the area in 1864, finding a substantial aboriginal settlement and evidence of fishing by line and net. He established the "Rocklands" station. Initially, there was little hostility between European settlers and the indigenous population, but this situation was not to continue. In 1864, William Campbell established a station at Clifton. He experienced at least one raid upon his camp and saw evidence of savage retribution visited upon the indigenous people as punishment for similar raids. In 1866, Ernest Henry commenced to explore the area. In 1867, with the assistance of aboriginal people, he found a copper oxide deposit. Thus the indigenous people contributed to the establishment of Queensland's present wealth. They also played an important role in establishing the grazing industry in north-west Queensland. By 1868, many sheep stations had been established in the area. As early as the 1870s, the local indigenous people were identified by European settlers as Kalkadoon.
9 The influx of European settlers led to increased hostility between them and the Kalkadoon people. Curiously, Ernest Henry continued to have good relations with indigenous people, suggesting that the hostility was not directed against all European interlopers. Henry was, himself, to be attacked, but he refused to permit retaliation. Hostilities seem to have commenced in about 1881. The settlers sought to resolve the problem by driving the Kalkadoon out of their traditional homeland. By the mid-1890s, aboriginal people in the north-west, including the Kalkadoon, were suffering severely from the effects of such displacement, leading to the introduction of protective legislation in 1897. Pursuant to that legislation, Dr Walter Roth was appointed Northern Protector of Aboriginal People. His writing is frequently cited in Native Title cases. Curiously, he seems to have foreseen the Native Title process as we now know it. In 1900, he wrote, in opposition to the practice of driving aboriginal people off leasehold runs:
These runs are held only on grazing rights - the right to the grass - and can only be upheld as against people taking stock, &c., through them. It certainly is illegal for station-managers, &c., to use physical force and threats to turn blacks (or Europeans) so travelling off such lands. Carrying the present practice (might against right) to a logical conclusion, it would simply mean that, were all the land in the north to be thus leased, all the blacks would be hunted into the sea.
10 Roth also observed:
In their day the Kalkadoons formed the most warlike and desperate of the tribes that the early pioneers had to contend with.
11 There is much additional material concerning the history of the Kalkadoon through the 20th century. Dr Kevin Mayo has prepared detailed genealogies of the descent groups from the apical ancestors and other Kalkadoon ancestors. Mr Peter Blackwood has prepared a three volume connection report as well as a supplementary report, addressing specific issues relating to the succession of the Kalkadoon people to lands of neighbouring groups. Mr Blackwood acknowledges the benefit of extensive earlier research carried out by anthropologists such as Dr Lee Sackett, Dr Paul Memmott and Dr Sandra Pannell. The State of Queensland has obtained a report from Professor Peter Sutton. It is in evidence. The anthropological evidence demonstrates that the Kalkadoon people lawfully hold rights and interests in the claim area in accordance with traditional laws and customs, including areas which were occupied by neighbouring groups at the assertion of British sovereignty.
12 I infer from the evidence that the Kalkadoon occupied much of the claim area at the time of first European contact in 1861, and that they similarly occupied that area in 1788. They have also succeeded earlier occupiers in other areas. The evidence demonstrates continued association with the claim area since 1861. Despite the sad consequences of European settlement, the Kalkadoon have continued to observe traditional laws and customs in their relationship with the claim area.
13 Dr Mayo's genealogies clearly identify descent groups, tracing their ancestry from first contact with European settlement in the claim area to the present time. The claim group is described as all of those persons who are descended from the following ancestors:
Lardie Roberts (aka Lardie Moonlight);
Dolly Prosser;
Kitty Frogg;
Annie Whip (mother of Martin Connelly (Snr));
Ida (aka Ada) Elston;
Leichardt Toby;
Rosie Waddibungera (mother of George Thorpe);
Willy Malcolm;
Nancy Daniels;
Fanny (Nellie) McLennan;
Nellie and Jimmy (parents of Topsy Harry, Annie Sam and Jack Kippen);
Maggie Sautelle;
Daisy Barton (nee McLean);
Mundi MacDonald (aka King Mundie);
Charlie Caldwell (Snr);
Carbine;
Jimmy Rolleston and Louisa Muni (parents of Bessie Mowbray);
Gypsy Reid (aka Gypsy Ryan);
Nellie Monkira;
Polly Wilson (nee Hopkins) Marajundu;
Jack Elston;
Jessie Frogg (Snr);
Polly Alroy (aka Polly George);
Nobie Clay;
Spider;
Maryann (mother of Annie Reid and Eva Patterson);
Sophie MacDonald;
Julie (mother of Eulie and Lizzie Hickson); and
Bessie Ah Fat.
14 That part of the determination area which is identified in schedule 2 to the proposed orders, is unallocated State land. The parties agree that Native Title rights and interests (other than in relation to water) in that area are the rights to possession, occupation, use and enjoyment to the exclusion of all others, subject to paras 5, 6 and 7 of the proposed orders. The nature and extent of native title rights and interests in that part of the determination area identified in schedule 3 (the "Area") (other than in relation to water) are, subject to paras 5, 6 and 7 of the proposed orders, the non-exclusive rights to:
(i) be present on, including by accessing, traversing and Camping on, the Area;
(ii) take (including by hunting), use, share and exchange Traditional Natural Resources from the Area for personal, domestic and non-commercial communal purposes;
(iii) conduct cultural and spiritual activities and ceremonies on the Area;
(iv) be buried and to bury native title holders in the ground, within the Area;
(v) 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;
(vi) teach on the Area the physical and spiritual attributes of the Area; and
(vii) hold meetings on the Area.
15 I do not doubt the appropriateness of the parties' identification of the issues or their consensual resolution of them. They have had the benefit of legal advice and substantial anthropological and other research. The proceedings have been on foot for a long time and have been publicised in accordance with the Act. The proposed orders have been drafted with regard to the public interest, represented by the Commonwealth, the State and the local authorities. I thank and congratulate all of the parties. The level of co-operation over the last two or three years has been remarkable, evidencing real respect for the Native Title process and the Kalkadoon people.
16 I should say a little more about such co-operation. It is only in recent years that we have been able to bring Native Title cases in north Queensland to the point at which consent determinations are possible. Recent determinations, and some which will occur in the near future, have reached that point only through the efforts of many people. The parties, particularly claim groups, miners, pastoralists and local authorities have played a large part by their pragmatic and co-operative approaches.
17 Those responsible for Native Title matters within the Queensland government have also played a key role through their constructive and timely participation in the process.
18 Curiously, it has fallen to a body known as the Queensland South Native Title Services Aboriginal Corporation to conduct Native Title cases in north-west Queensland. Their lawyers, past and present, both in-house and in private practice, have done sterling work. I mention in particular Mr Colin Hardie whose willingness to have this matter listed for trial did much to bring about its resolution today. I acknowledge too the efforts made by the National Native Title Tribunal, particularly in the earlier stages of processing of the application.
19 Finally, I wish to acknowledge the efforts of our Native Title registrar in Queensland, Ms Chris Fewings. Her efforts have also contributed significantly to today's determination. Her family is from this part of the world. Her satisfaction at the outcome rivals that of the Kalkadoon people, themselves.