Lampton on behalf of the Juru People v State of Queensland

Background 7 In preparation for the hearing set to commence on 29 January 2015, the applicant provided additional evidence to the State to support the Juru people's case. That evidence comprised outlines of evidence that eight lay witnesses would give, an historical report by Dr Rosalind Kidd and a supplementary anthropology report by Dr Sandra Pannell. The State also provided the applicant with the results of some additional tenure research that it had undertaken. 8 Dr Kidd concluded from her review of historical records that, from and after first contact with Europeans in 1859, there was significant evidence of continuous Aboriginal presence in the Kennedy district. That district stretched over an area of about 51,000 square miles, or 132,000 square kilometres, from the coast and contains the towns of Bowen, Euri Creek/Merinda and Inkerman/Home Hill. She found that the Europeans quickly realised the pastoral potential of that district. 9 Dr Kidd located an article in the Sydney Morning Herald of 24 November 1859. That article reported the discovery of a new harbour in Edgecumbe Bay by Captain Sinclair, the master of the ship Santa Barbara. He named the harbour Port Denison. In 1861, Port Denison was renamed Bowen. The article reported Captain Sinclair had said that when the ship anchored near Gloucester Island in mid-October 1859: The natives came off to us in canoes, and brought us two casks of water, for which we gave them two tomahawks and sundry articles of wearing apparel. They appeared very anxious for us to go ashore, which we declined. 10 Dr Kidd said that the article reported that several Aboriginal men again came aboard the ship the following morning, and again urged the crew to land. They offered to bring more fresh water, and returned with two filled buckets provided by the crew. When men from a second canoe also boarded, the crew discovered they had weapons hidden under the shirts given to them the previous day. They left hurriedly when challenged: The natives here appeared to be very strong and daring, and more ingenious than any part of the coast we have visited. Their canoes are formed with three pieces of bark sewn together with grass-tree, and forming very pretty models. They are exceedingly light and buoyant, and are capable of carrying five men. 11 Over many years the Juru people have since shown similar qualities in seeking orders under the Native Title Act recognising their rights and interests in the three consent determinations that now cover a considerable area of the land and waters that were theirs in and before 1859. 12 Dr Pannell's supplementary report specifically considered the anthropological issues relating to the Bowen, Merinda, Home Hill and rural areas. She opined that contemporary Juru people know about their laws and customs, because each earlier generation had passed these on orally to the next generation or because each generation had observed and been instructed about them through interacting with other Juru and Birri Gubba people. While Dr Pannell could not say unequivocally that the Juru people had acknowledged and observed those laws and customs continuously since European settlement, nonetheless, in her opinion, it was likely that they had done so. That was because, she said, there was considerable evidence that this had occurred for over a century. She observed that some adaptations had occurred to those laws and customs as a result of the Juru people's interactions with the European settlers. However, Dr Pannell considered that the Juru people appeared to have continued substantially to acknowledge and observe their traditional laws and customs. 13 Dr Pannell identified ways in which Juru people expressed their physical, social and spiritual connection with the areas over which I will make the new consent determination today. She also opined that, under their traditional laws and customs, the Juru people held their native title rights and interests in their traditional lands and waters to the exclusion of all others. 14 Of course, the consent determinations of 2011, 2014 and today must take into account the impact of the Native Title Act and common law on the extent to which the Court can recognise those native title rights and interests in light of all that has happened since European settlement. Therefore, the consent determinations provide that in some areas the Juru people can exercise their rights and interests to the exclusion of everyone else while in other areas they can do so non-exclusively. 15 Geoffrey Renouf is the acting director of claim resolution within the Aboriginal and Torres Strait Islander Land Services of the State's Department of Natural Resources and Mines. He said in his affidavit of 5 June 2015 that he had overall responsibility for the management of these proceedings. 16 Mr Renouf said that each of counsel for the State, solicitors from Crown Law, an expert anthropologist and an expert historian engaged by the State reviewed the new material provided by the applicant for the separate trial. Once he had considered those reviews, Mr Renouf then instructed Crown Law to negotiate the terms of a draft consent determination. Those settlement negotiations resulted in the parties' application, that I granted on 17 December 2014, to vacate the 29 January 2015 hearing with a view to me making a consent determination today. 17 Mr Renouf explained that the parties wanted the operation of orders 2 and 3 in the consent determination to be suspended for 12 months to allow time for further negotiations to resolve two outstanding matters. He said that was because the parties had to deal with, first, some unauthorised structures that have been erected on the areas referred to in order 2 and, secondly, the safe operation of two gun clubs that affects the areas referred to in order 3. I am satisfied that, in those circumstances, it is appropriate to suspend the operation of orders 2 and 3, as the parties seek.