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[2012] FCA 1377
Federal Court of Australia
2012-12-05
Mr P, Dowsett J
Original judgment source is linked above.
Number of paragraphs: 33
Solicitor for the Applicant: Mr M Moharich of Cape York Land Council
Solicitor for the First Respondent: Mr S Grant of Crown Law
Solicitor for the Second Respondent: The Second Respondent did not appear
Solicitor for the Third and Sixth Respondents: The Third and Sixth Respondents did not appear
Solicitor for the Fourth, Fifth and Tenth Respondents: The Fourth, Fifth and Tenth Respondents did not appear
Solicitor for the Seventh Respondent: The Seventh Respondent did not appear
Solicitor for the Eighth and Thirteenth Respondents: The Eighth and Thirteenth Respondents did not appear
Solicitor for the Ninth Respondent: Mr P Gore of Gore & Associates
Solicitor for the Tenth, Eleventh and Twelfth Applicants: The Eleventh and Twelfth Respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 6119 of 1998
BETWEEN: GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE
GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD
JUDGE: DOWSETT J DATE OF ORDER: 5 DECEMBER 2012 WHERE MADE: KOWANYAMA
A. The Applicant has brought Native Title Determination Application QUD 6119 of 1998 ("the Application") which relates to an area which includes the land and waters the subject of the proposed determination. B. On 22 October 2009 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Part A of the area covered by the Application. C. The parties to the Application that hold an interest in relation to the land or waters of Part B of the area covered by the Application have asked the Court to make a consent order for a determination of native title over that area. 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, pursuant to s 87A of the Native Title Act 1993 (Cth) BY CONSENT THE COURT ORDERS THAT:
BETWEEN: GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL NMICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE
GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD
JUDGE: DOWSETT J DATE OF ORDER: 5 DECEMBER 2012 WHERE MADE: KOWANYAMA
A. The Applicant has brought Native Title Determination Application QUD 6119/98 ("the Application") which relates to an area which includes the land and waters the subject of the proposed determination. B. On 22 October 2009 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Part A of the area covered by the Application. C. The parties to the Application that hold an interest in relation to the land or waters of Part C of the area covered by the Application have asked the Court to make a consent order for a determination of native title over that area. 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, pursuant to s 87A of the Native Title Act 1993 (Cth) BY CONSENT THE COURT ORDERS THAT:
BETWEEN: GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE
GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD
JUDGE: DOWSETT J DATE: 5 DECEMBER 2012 PLACE: KOWANYAMA
REASONS FOR JUDGMENT 1 On 25 March 1997 the Kowanyama People applied in the National Native Title Tribunal (the "Tribunal") for a determination as to the existence of Native Title. On 30 September 1998 proceedings were commenced in this Court. The claim area lies between the Coleman and Staaten Rivers on the western side of Cape York Peninsula. It is centred on the township of Kowanyama and covers an area of approximately 1,639,641.8 hectares including land within Deed of Grant in Trust No 21345064 over land described as Lot 19 on DB 16 (the "DOGIT"). The claim area also includes the Balurga, Harkness, Koolatah, Rutland Plains, Inkerman, Dunbar and Dinah Island pastoral properties. 2 On 22 October 2009 Greenwood J made a partial determination affecting part of the land within the boundaries of the original claim area, which part was, in his Honour's reasons, described as "Part A". As I understand it Part A includes the land contained in the DOGIT other than that occupied by the Kowanyama township and dedicated roads, and also including a long, narrow coastal strip running along the coast of the DOGIT from the southern bank of the Coleman River in the north to the southern boundary of the DOGIT, and then south along the coast adjoining the Rutland Plains and Inkerman pastoral leases. Its southern boundary is the line of latitude at the southern end of a fauna sanctuary (Pelican Rookery) to the south of the Staaten River. Whilst that part of Part A which is within the DOGIT was determined to be subject to exclusive Native Title rights and interests, the coastal section was held to be subject to non-exclusive Native Title rights and interests. 3 The parties have now agreed that Native Title exists over two further areas within the boundaries of the original claim. They have been designated as Parts B and C. Part B consists of two areas, one lying to the north-east of the DOGIT and the other, to the south-east. It has been agreed that non-exclusive Native Title rights and interests exist over both areas, subject to certain exceptions. Part C is, in effect, the area covered by the Kowanyama township and is within the DOGIT. The parties agree that exclusive Native Title rights and interests exist over that area. 4 The applicant group presently consists of Glenette Greenwool, Gary Hudson, Evans Josiah, Griffith Patrick, Dennis Michael, Ravin Greenwool, Jenny Paul, Donna Brumby, Priscilla Major, Roslyn Gilbert, Una Claude, Corrine Daniel, Kelvin Greenwool, Douglas Eric, Teddy Bernard, Rosemary Henry, Christopher Henry, Roger Inkerman, Lyndell Michelle Anne Jimmy, Roy Dennis Maggable, Hazel Paul, Angela Fiona Edwards, Shaun Kalk Edwards, May Edwards, Lindsay Edwards, Glennis Rose Mudd, Shenane Jago, Colin Lawrence, Arthur Luke, Christine Lawrence, Ivan Jimmy, Shirley Yam, Maria Dick and Robert Holness, on their own behalf and for and on behalf of the members of the Kowanyama People who comprise those people known as Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin. 5 Since the partial determination by Greenwood J, the application has been amended twice. On 1 April 2011, leave was granted to amend to include a more detailed list of native title rights and interests, and a list of specific examples of activities undertaken by the claimants. On 29 November 2012, the application was further amended to remove deceased members of the applicant group and to designate a small area to the south of the Staaten River, at the southern extremity of the claim area, as Part D. Part D is not included in the present determination. 6 The respondents having interests in Part B are the State of Queensland, the Tablelands Regional Council, Cook and Carpentaria Shire Councils, Telstra Corporation Limited, MDH Pty Ltd, Douglas Price, Harvest Home Pty Ltd and various fishing parties. The respondents having interests in Part C of the claim are the State of Queensland, the Commonwealth of Australia, Kowanyama Aboriginal Shire Council, Airservices Australia, Telstra Corporation Limited, and Ergon Energy Corporation Limited. 7 Following long and complex negotiations, the matter was, on 16 July 2012, removed from the Tribunal and subjected to intensive case management in the Court. The Court is grateful for the efforts of the Honourable Stanley Jones AO QC, the former Far Northern Judge of the Supreme Court of Queensland. Mr Jones, supported by Court staff, assisted the parties to resolve issues which may otherwise have required protracted hearings. The Court also recognizes the efforts made by the parties in achieving resolution of their differences. 8 The Native Title Act 1993 (Cth) (the "Act") authorizes the Court to determine that Native Title exists over areas in respect of which there is no existing determination. Where, at any time after notification, the parties agree upon the orders to be made in relation to such proceedings, the Court may make appropriate orders. In exercising the judicial power of the Commonwealth, this Court resolves disputes identified by the parties. The parties may narrow those issues by admission or concession, provided that such agreements or concessions are made freely and on an informed basis. In some cases, the Court may decline to act upon them. 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. 9 I see no reason to doubt the appropriateness of the parties' consensual resolution of the matters previously in dispute. They have had the benefit of legal advice and substantial anthropological and other research. The claim has been on foot for almost 16 years and has been publicized in accordance with the Act. I am satisfied that the proposed orders have been drafted with regard to the public interest which has been represented by the State of Queensland and interested local authorities. 10 In his reasons Greenwood J carefully recorded the relevant evidence upon which the Kowanyama people rely to establish their claims. Hence it is not necessary that I do so in detail. His Honour and I have relied heavily on the work of Dr JC Taylor. The detail which follows comes from his reports. 11 The first European contact in this area occurred long before Captain Cook's arrival in eastern Australia. The Dutch, in the person of William Jansz, visited Cape York Peninsula in November 1605. He returned in March 1606, making landfall near either the Skardon River or the Pennefather River. He sailed south as far as Cape Keerweer (which is north of the claim area), then turned north and sailed up the coast before turning west to head back to Banda. He had hostile encounters with Aboriginal people at the Batavia River and at Cape Keerweer. He may have lost up to four crew members. Dr Taylor notes in his evidence that one of those encounters is still recalled in Aboriginal oral tradition. 12 Eighteen years later, two other Dutch vessels visited the area, making landfall near to Cape Keerweer. Indigenous people were observed burning grass. Those on board also landed further south, encountering Aboriginal people. This encounter appears to have been in the vicinity of Topsy Creek which forms the northern boundary of Rutland Plains Station and the southern boundary of the DOGIT. Thus such landing was within the claim area. The first post-sovereignty contact seems to have been Leichhardt's arrival in the course of his 1845 journey. He had quite extensive contact with Aboriginal people within the present claim area. 13 In 1864-65 the Jardine Brothers took a herd of 250 cattle overland from Carpentaria Downs on the Upper Einasleigh River to Somerset at the tip of Cape York Peninsula. They entered the claim area at the Staaten River which they followed westwards until they reached the coastal plain. They turned north and travelled 300 km along the west coast flood plains, crossing the Kendall River and heading for higher ground in the north-east. They noted many signs of human occupation, including camp sites and fish weirs, and saw Aboriginal groups hunting and fishing. Sometimes the party was stalked. At other times their passage was openly disputed. 14 The gold rushes provoked the establishment of new pastoral properties on Cape York Peninsula, including the claim area. The pastoralists used Aboriginal labour in their stock camps and around the stations. A number of these properties had close associations with ancestors of members of the present claim group. In particular Dunbar, Rutland Plains and Inkerman Station were of considerable significance. Dr Taylor provides much detailed information concerning the relationships between European settlers and indigenous people over the ensuing years, including the work of Anglican missionaries in the area. In 1964 the mission transferred its operation to the State government. From that time the authorities followed a policy of assimilation but, in 1982 local councils were given the benefit of DOGITs, fostering a degree of local responsibility. A full cash economy was instituted although wage levels were very low. 15 The remoteness of Kowanyama was no barrier to the dislocation and suffering which inevitably accompanied European settlement. The incursion of the pastoralists, the Church and the State government significantly disrupted many elements of traditional life and culture, with the typical accompanying decline in health and society. 16 As Dr Taylor demonstrates, there has been a substantial amount of anthropological, linguistic and other research in connection with the Kowanyama people. His reports identify a distinctive group, with an ongoing and close connection to the land which is the subject of the claim. The traditional laws and customs pursuant to which they regulate their relationship with the land and one another emerge clearly from the report. For example at para 4.3 and following of his first report Dr Taylor observes: The native title rights and interests of the claimants on pastoral properties derive from a uniquely Aboriginal worldview that, in relationship to land, has remained little changed since it was first described by Lauriston Sharp. In the absence of any evidence to the contrary, it is reasonable to assume that this body of tradition, law and customary practice stems directly from the tradition, laws and customary practices of the claimants' ancestors at the time of sovereignty. The elements of the contemporary worldview are set out as follows: • The precursors to the present Aboriginal occupiers of the land were beings with extraordinary powers. Sometimes they had human form. Others took the form of animals or forces of nature. • The accounts of the actions of these beings in the landscape are contained in a set of orally transmitted myths (know locally as "stories", "dreamings" or sometimes "totems"). • Among other things the myths relate how features of the landscape and the characteristics of species were derived from the actions of the supernatural precursors. Their interactions with each other set precedents and rules for the humans that succeeded them. • Some creative beings are still immanent in the landscape and manifest themselves to contemporary Aboriginal people. Others exchanged their human form for a particular natural species (eg. emu, brolga, mopoke, frog etc.) and persist in that form. Others yet again metamorphosed into natural features. • The creative beings also left behind places of power and potency. Ritual manipulations at these places can increase natural species or affect the environment in other ways. Some places of power can also harm or maim if proper rituals were ignored. • Particular places in the landscape are linked to the creative acts of the "story people". The places and the acts are in turn associated via a totemic ideology with the past, present and future generations of the claimants. • As described by Sharp (1939:446), segments of the landscape and its myths are owned by Aboriginal corporations called clans. They are constructed according to the principles of patrilineal descent, or perhaps, serial patrifiliation. We may call these segments "estates". • Clan members are also linked to country through the process of conception filiation. Human spirits have an existence prior to their incarnation as humans. Signs reveal when a "baby spirit" has emerged from its ancestral centre and to spiritually amalgamate with a child in utero. • Clan members also share a common set of totems one or more of which are singled out as clan emblems (eg. emu, red-tailed black snake etc.). Members also draw their personal language names from some section of their mythic heritage or from their place of conception filiation. In Sharp's depiction of Kunjen/Olkola land tenure, totemic associations provide a concise, emblematic guide to the identification of land-owning groups and their inalienable relationship with particular creative beings and the landscape in which they moved. Known totemic associations for the Kunjen/Olkola groups at Kowanyama are described in Taylor 1999b. • When a person dies, her/his spirit must be ritually "sent back" to the deceased person's country where it resides in spirit form. • Rights to use the land of other clans are mediated through cognatic links, marriage affiliations, conception filiation and standing invitations between the elders of neighbouring clans. • In the contemporary situation, the management and control of estates and homeland cores is vested in the senior members of owning patrilines. It is the duty of experienced clan members to ensure that newcomers to their lands are properly introduced to the supernatural hazards left behind by the creative acts of the "story people". Those using the state have a duty to ensure the good health of that estate by carrying out the prescribed observations and rituals associated with it. Such elders may apply sanctions to those who flout the conventions pertaining to the use of land and its cultural content. The elementary propositions of the claimants' worldview set out in a general way how rights and privileges in persons and things as well as responsibilities towards them are to be validly distributed across the claimant community. It represents a kind of constitution - a system of fundamental laws and principles governing the nature, functions, and limits of an Aboriginal land tenure system. … Sutton described a core rights as follows: An elementary core right is that which enables a person to claim a certain area as their own main place, their own proper or real country, and thus to assert a fundamental proprietary relationship to it. Some of the other core rights asserted by native title claimants are concerned with the bestowal or recognition of specific other rights, and might be described in particular as meta-rights (rights about rights), or rights-generating rights. These include the right to transmit further transmissible rights to make proprietary claims on the country, and the right to pass on certain aspects of group identity through the assignment of names, languages or totems to children, for example, as well as through the handing on of knowledge, including designs and songs, which may symbolise the relationship between a group and its country. (Sutton op. cit.) In the registration materials for the Kowanyama claim, a set of four general rights were distinguished. They were all aspects of the elemental proprietary/beneficial right that each claimant asserts over her/his country and in that sense were core rights. They were also interdependent and interlocking, being all derivations from a consistently held worldview. The core rights were: 1. The physical possession, occupation, use and enjoyment of the claim area as of right. 2. The carriage of responsibility for the care and maintenance of the claim area. 3. The right to hold the claim area as the cultural property of the native title group and the source of its identity. 4. The right to act as sole authority to speak for the country. The core rights have specific content in terms of human action. In their various forms they are validly possessed by those who, within the community of traditional owners, have an acknowledged identity as owners of a particular area of land - in other words as clan members identified with a particular estate whose rights in the estate are transmitted from fathers to children over the generations. Other non-clan members may exercise some rights in an estate similar to those exercised by the corporation members. The assertion by non-clan members of these rights is contingent upon certain conditions, e.g. cognatic descent from the grandparental generation. These, following Sutton, I term contingent rights. Contingent rights are: • acquired by non-corporation members; • are not transmissible; and • depend on individual circumstances. Contingent rights, it should be stressed are rights possessed by core rights holders that they share with others. … A further point should be made. What are presented here are the native title rights and interests of a community of native title claimants. There is no discernible difference between the native title rights and interests of those whose lands lie on pastoral properties and those whose lands lie on the DOGIT and the National Park. The community responds to issues affecting land and relating to the land-based identity of traditional owners in a homogeneous and consistent way. As Strang (1997:100) noted: While people are still clear about their individual and clan identity and their ownership of tracts of country, they now stress that certain areas of land are Kunjen, Kokobera or Kokomunjen, and that all three language groups are now a community with rights over an area of 'Aboriginal land'. Accidents of history are the only characteristics that distinguish one group from another. Since the employment of Aboriginal people on pastoral properties has declined, there have been fewer opportunities for pastoral property claimants to visit their lands and through physical occupation, assert rights and interests. None of the pastoral leases in the claim area have reservations in favour of Aboriginal people as is the case in some other Australian states. This has not diminished the assertion of their rights and interests in their countries nor their desire to give them expression by physical occupation. 17 I do not normally quote at such length from the anthropological evidence but it seemed to me that Dr Taylor's summary so clearly identified the ambit of traditional law and custom in language which is familiar to lawyers in the European system that it was worth recording it in my reasons today. 18 The claim group is comprised of a body of people descended from a relatively long list of apical ancestors. The list appears in Schedule 1 to each of the proposed orders. It includes persons recruited by adoption in accordance with traditional laws and customs. 19 In the case of Part B, subject to paras 5, 6 and 7 of the orders, the nature and extent of the Native Title rights and interests in relation to land and waters within the determination area are the non-exclusive rights to: (i) access, be present on, move about on and travel over the area; (ii) hunt and fish in or on, and gather from, the land and water for non commercial, cultural, spiritual, personal, domestic or communal purposes; (iii) take, use, share and exchange natural resources for non commercial, cultural, spiritual, personal, domestic or communal purposes; (iv) take and use the water for cultural, personal, domestic and non commercial communal purposes; (v) live and camp on the area and for those purposes erect shelters and other structures on the area; (vi) light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation; (vii) be buried and bury native title holders within the area; (viii) conduct ceremonies on the area; (ix) hold meetings on the area; (x) teach on the area the physical and spiritual attributes of the area; (xi) 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 harm; and (xii) be accompanied on to the area by those persons who, though not native title holders, are: a. spouses or partners of native title holders; b. people who are members of the immediate family of a spouse or partner of a native title holder; c. people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the determination area; or d. people who have specialized knowledge based on their training, study or experience who are requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the determination area. 20 As to Part C, subject to paras 6 and 7 of the orders, the nature and extent of the native title rights and interests in relation to that part of the determination area identified in Schedule 2, other than in relation to water, are the rights to possession, occupation, use and enjoyment to the exclusion of all others. The parties agree that the native title rights and interests in relation to water in the Schedule 2 area are, subject to paras 6 and 7 of the proposed orders, the non-exclusive rights to: (i) hunt and fish in or on, and gather from, the water for non-commercial, cultural, spiritual, personal, domestic or communal purposes; and (ii) take and use the water for non-commercial, cultural, spiritual, personal, domestic or communal purposes. 21 In addition to Dr Taylor's reports, extensive affidavit material from the traditional owners has been filed to demonstrate the exercise of the rights to live and to be accompanied onto the determination area. In particular I have been greatly assisted by seven comprehensive affidavits, filed on 24 October 2012, by John Clark, George Lawrence, Leslie Gilbert, Priscilla Major, Roger Inkerman, Ezra Michael and Paddy Yam who, save for John Clark, all reside within the determination area and are able to demonstrate their strong connection to their country. Paddy Yam was born at a waterhole on Koolatah in 1929. He says that: I was reared up at Koolatah Station and started work there. I did not go to school. I worked at Koolatah for many, many years as a stockman. I worked at Koolatah with my father, my brothers and other aboriginal people. I have travelled all over Koolatah and I know that country well. The only other place that I have worked for a long time is Dunbah Station on Kunjen Country. 22 Paddy Yam says that: I lived on my country at Koolatah for many, many years. Under our law I had every right to be there because I am one of the traditional owners of that country. Me and the other traditional owners have the right to live and to be on our country for as long as we like. Nobody has the right under aboriginal law to tell us to go. One time when we can't go to our country is when it is closed when somebody dies. When the country is closed, nobody goes there until it is opened up again. 23 Ezra Michael was born in Kowanyama in 1927. His bushname is Chi Chi which is Kokomenjen for possum. He says that before Cyclone Dora in 1964: We all used to live in cabbage tree houses at Kowanyama. These houses kept water out in the wet season. Every year maintenance and repairs were done on the houses, and they lasted a long time. These houses were not, however, strong enough to survive Cyclone Dora, which flattened the cabbage tree houses. 24 Priscilla Major speaks of her country as being both on the DOGIT and on Rutland Plains Station. She says it is Koko Bera country from north of the Nassau River to somewhere up near the South Mitchell River. She speaks the Koko Bera language of her father and the Kokomenjen language of her mother. 25 John Clark was born in 1958 and says he is a Koko Bera man through his father and his father's father. His father was born under an old mango tree at Old Lochnagar on Rutland Plains. His father died in 1995 and he is buried at Old Lochnagar as he had requested. He says that under his law he is not allowed to take people on to country if it is closed because of the death of one of the people who were connected to that country. Anyone who breaks this rule would get into trouble. 26 He goes onto say that one family's special story on Rutland is the Moving Rock story. This story is along the coastline and it is about a rock that moves up and down the coast. An old man many years ago built a mud humpy and he kept a young girl inside it. This mud humpy eventually turned into the Moving Rock. Everyone knows that, if you see the track of the Moving Rock, you cannot go onto it because it is sacred. If you do go on the track or cross over it then your leg will get burnt and will be eaten away, like cancer taking over. I have not seen the Moving Rock or the track myself, but whenever we go on country we look out for it and if we see it we will not go across it. 27 These affidavits contain comprehensive descriptions of the traditional laws and customs that govern the exercise of the rights and interests that we, today, recognize over pastoral leases. They demonstrate a continued observance of those laws which dictate the day to day lifestyle of the Kowanyama people, their custody and care of significant sites and boundaries, as well as detail concerning the methods of transmission of traditional knowledge. 28 I infer that the members of the claim group are the descendants of those persons who encountered Leichhardt in 1845 and, later, the first European settlers. Such persons were probably the descendants of people who lived there prior to 1788.
ORDERS AND DETERMINATION 29 The Court has had the benefit of the applicant's submissions. The State has conducted a thorough examination of the available material and is satisfied that the proposed determinations are appropriate. The respondent parties, including local authorities agree. 30 I find that the claim group comprises Kowanyama people descended from people who, pursuant to traditional law and custom, were in occupation of the land and waters of the claim area at the time of assertion of British sovereignty. Those people formed and form a society, united in and by their acknowledgement and observance of those traditional laws and customs. Through their observance of these traditional laws and customs, the Kowanyama people have maintained a connection with the claim area since a time prior to 1788. 31 Order 11 of each of the proposed orders provides that Native Title is not to be held on trust. The Abm Elgoring Ambung Aboriginal Corporation is a prescribed body corporate for the purposes of s 57 of the Act. In his affidavit, filed on 29 November 2012, Mr Moharich, the Principal Legal Officer of the Cape York Land Council, says that at an authorization meeting held in Kowanyama on 20 November 2012, a resolution was passed approving the nomination of Abm Elgoring Ambung Aboriginal Corporation as the entity to hold the native title pursuant to s 57(2) and (3) of the Act. I am satisfied that the Kowanyama People have approved that nomination. 32 I make orders in terms of the drafts which have been signed by the parties, which drafts I now initial and place with the papers. 33 I have not come here today to give anything to the Kowanyama people. Rather, I have come to recognize, on behalf of all Australians, that the Kowanyama people are the traditional owners of this land pursuant to traditional laws and customs which have their roots in ancient times. I now recognize that traditional ownership. In so doing, I bind all Australians for all time, including the Commonwealth of Australia, the State of Queensland, the Kowanyama Aboriginal Shire Council, the Cook and Carpentaria Shire Councils, the Tablelands Regional Council and other respondents. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Greenwool for and on behalf of the Kowanyama People
State of Queensland