Mundraby v State of Queensland

Mundraby v State of Queensland - [2006] FCA 436 - FCA 2006 case summary — Zoe

[9]

(a) in relation to that part of the determination area referred to in Part A of Schedule 2, the right, in accordance with traditional laws and customs, to possession, occupation, use and enjoyment of land and waters to the exclusion of all others; (b) in relation to that part of the determination area referred to in Part B of Schedule 2, the non-exclusive right to use and enjoy the land and waters being to: (i) access and be physically present thereon in accordance with traditional laws and customs; (ii) camp thereon in accordance with traditional laws and customs, not including the right to reside permanently or build permanent structures or fixtures; (iii) hunt, fish and gather thereon for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; (iv) take, use and enjoy the natural resources thereon for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; (v) maintain and protect from physical harm, by lawful means, places therein of importance to the native title holders in accordance with traditional laws and customs; (vi) perform social, cultural, religious, spiritual or ceremonial activities thereon and invite others to participate in those activities in accordance with traditional laws and customs; and (c) in relation to all land and waters in Part B of Schedule 2 (comprising lots 1, 5 and 6) the non-exclusive right to: (i) pass on native title in relation thereto in accordance with traditional laws and customs; (ii) make decisions in accordance with traditional laws and customs concerning access thereto and use and enjoyment thereof by aboriginal people who are governed by the traditional laws acknowledged, and traditional customs observed by, the native title holders; and (iii) determine membership and filiation to the native title holders in accordance with traditional laws and customs. 4. In relation to all water in the determination area the nature and extent of native title is the non-exclusive right to: (a) use, enjoy, hunt on, fish in and gather from the water for personal domestic, social, cultural, religious, spiritual, ceremonial and communal purposes; (b) take and use the water and its resources for personal domestic, social, cultural, religious, spiritual, ceremonial and communal purposes; provided that: · in all such cases, the purpose is non-commercial; and · such right to water does not confer any right to possession, occupation, use or enjoyment of the water to the exclusion of others.

[24]

PART A DETERMINATION AREA The determination area comprises all of the land and waters described in the following table, to the high-water mark. The determination area is shown on the determination plan. To the extent of any inconsistency between the description of the determination area in this Schedule and the determination plan, the description in this Schedule prevails. Note: the location references given in the tables in the Schedules are for ease of reference only and do not form part of the determination. Note: a reference in this determination to a lot number is a reference to the lot on the determination plan as described in the table below. LOT NUMBER DESCRIPTION Lot No. Area Location

Part of Lot 111 on NR7962                                               Giangurra Reserve

Lot 36 on AP7416 formerly described as part of Lot 36 on USL9876        Trinity Inlet

Part of Lot 34 on USL9876                                               Trinity Inlet

Lot 16 on USL9897                                                       Redbank Creek

Part of Lot 933 on AP6360 formerly described as part of Lot 933 FTY934  State Forest

Part of Lot 1391 on NPW373                                              National Park

[29]

The nature and extent of other interests in relation to the determination area are the following, as they exist as at the date of the determination: (a) 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 6 referred to in Schedule 1; (b) 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 5 referred to in Schedule 1; (c) the interests of the State of Queensland, the Wet Tropics Management Authority, the Mandingalbay Yidinji People and the Mandingalbay Yidinji Aboriginal Corporation under a deed of agreement dated 6 April 2006; (d) the rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and subordinate legislation relating to the use and management of lots 5 and 6 referred to in Schedule 1; (e) the rights, interests, powers and functions of the Cairns City Council under its local government jurisdiction and as an entity exercising statutory powers, including its interests under an indigenous land use agreement dated 22 December 2005 between the native title holders and Cairns City Council; (f) the rights, interests, powers and functions of the Cairns Port Authority as a government owned corporation in relation to the land within the determination area adjacent to the boundary of the Cairns Port Area including rights, interests, powers and functions under the Transport Infrastructure Act 1994 (Qld); (g) the rights and interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity distribution and transmission facilities within the determination area and its interests under an indigenous land use agreement dated 21 December 2005 between representatives of the native title holders and Ergon Energy Corporation Limited;

[34]

BACKGROUND 2 This application was first lodged with the National Native Title Tribunal ("the Tribunal") on 4 April 1995. On 30 September 1998, by force of amendments to the Act, all applications lodged with the Tribunal became proceedings filed in the Court. On 18 October 1999 the Court ordered that the application be combined with application QG 6094 of 1998. On 8 October 2004, the Court amended the application by removing land and waters south of Bells Peak South from the area previously claimed. The subject land and waters are hereinafter referred to as the "determination area", which term has the meaning attributed to it in Schedule 1 to these reasons. It comprises six separate "parcels". Those parcels will eventually be described as lots 1 to 6 on AP 9675 and are hereinafter referred to by such lot numbers. 3 The applicant claims that the Mandingalbay Yidinji people traditionally owned a much larger area which included those six lots. However they accept that native title over parts of that area has been extinguished. Other parts are subject to joint claims by the Mandingalbay Yidinji people and the Gunggandji people. The boundaries of the six lots have been drawn to exclude those parts. In Schedule 2 the six lots are divided into Parts A and B. Part A contains lots 2, 3 and 4 which comprise unassigned Crown land. Part B contains lots 1, 5 and 6 which comprise land appropriated for particular purposes not inconsistent with the continued non-exclusive use of, and access to, it by native title holders. 4 The Tribunal gave notice of the application pursuant to, and in accordance with, s 66 of the Act. Pursuant to s 84(3) of the Act, the State of Queensland, Cairns City Council, Cairns Port Authority, Ergon Energy Corporation Limited and Telstra Corporation Limited were joined, and remain, as parties to the proceedings. One hundred and thirty-nine other persons, categorised as indigenous people, professional fishers, irrigation and water supply recipients and tourist operators, were also joined as parties. They have all since withdrawn from the proceedings by giving written notice pursuant to s 84(6) of the Act. On 30 September 1998 the application was referred to the Tribunal for mediation pursuant to s 86B of the Act. The parties have reached agreement upon the terms of a draft determination. The agreement recognises the traditional rights of the Mandingalbay Yidinji People in relation to the determination area (except in relation to water) to: (a) possession, occupation, use and enjoyment of all land and waters in Part A of Schedule 2 (comprising lots 2, 3 and 4), to the exclusion of all others; (b) in relation to all land and waters in Part B of Schedule 2 (comprising lots 1, 5 and 6), the non-exclusive right to use and enjoy the land and waters, being the right to: (i) access and be physically present thereon in accordance with traditional laws and customs; (ii) camp thereon in accordance with traditional laws and customs, not including the right to reside permanently or to build permanent structures or fixtures; (iii) hunt, fish and gather thereon for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; (iv) take, use and enjoy the natural resources thereof for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; (v) maintain and protect from physical harm, by lawful means, places therein which are of importance to the native title holders in accordance with traditional laws and customs; (vi) perform social, cultural, religious, spiritual and ceremonial activities thereon and invite others to participate in those activities in accordance with traditional laws and customs; and (c) in relation to all land and waters in Part B of Schedule 2 (comprising lots 1, 5 and 6) non-exclusive rights to: (i) pass on native title in relation thereto in accordance with traditional laws and customs; (ii) make decisions in accordance with traditional laws and customs concerning access thereto and use and enjoyment thereof by aboriginal people who are governed by the traditional laws acknowledged, and traditional customs observed by, the native title holders; and (iii) determine membership and filiation to the native title holders in accordance with traditional laws and customs. 5 In relation to all water in the determination area the agreement recognizes the non-exclusive right to: (a) use, enjoy, hunt on, fish and gather from the water for personal domestic, social, cultural, religious, spiritual, ceremonial and communal purposes, and (b) take and use the water and its resources for personal domestic, social, religious, cultural, spiritual, ceremonial and communal purposes; provided that, in all such cases, the purpose is non-commercial. 6 It is agreed that such native title is subject to, and exercisable in accordance with: (a) the laws of the Commonwealth of Australia and the State of Queensland, including local laws and planning instruments; (b) traditional laws acknowledged, and traditional customs observed, by the native title holders; and (c) other interests in relation to the determination area as set out in Schedule 4 to this order, the relationship between the native title and those other interests being that: (i) such other interests continue to have effect, and the rights conferred by, or held thereunder may be exercised, notwithstanding the existence of the native title, and (ii) such other interests and any activity done in exercise of the rights conferred thereby or held thereunder, prevail over the native title and any exercise of the native title. 7 It is further agreed that there is no native title in or in relation to: (a) minerals as defined in the Mineral Resources Act 1989 (Qld); or (b) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 8 The parties seek orders in, or consistent with, the terms of their agreement, provided that the Court is satisfied that it is appropriate to do so: s 87 of the Act.

[36]

EVIDENCE 10 I have examined the anthropological and genealogical report prepared by Professor Bruce Rigsby, consultant anthropologist and a helpful summary of Professor Rigsby's report, contained in several affidavits sworn by Michael Hugh Southon, Director of Research-Anthropology with the North Queensland Land Council Native Title Representative Body. 11 Mr Southon records that: 'The Mandingalbay Yidinji claimant group describe themselves as the descendants of the man known as "Jabulum Mandingalpai", usually spelt now as "Yabalum Mandingalbay", and as Jimmy in English. Yabalam and his wife Biddie had four children, who were, in birth order, Tommy Read, Maggie Mundraby, Fred Mundraby and Amy Hyde, but the spokesmen for the current group are a sub-set of Fred Mundraby's descendants, namely, Basil Vincent Mundraby (aka Vincent Mundraby Sr), his nephew Alf Mundraby and his son Vincent Mark ("Boy") Mundraby. They know that their family name "Mundraby" has its origins in the missionaries' attempts to pronounce and write the indigenous personal name, Mandi Ngarrbay. (Rigsby 2002:171 ) Tindale's Yarrabah genealogy sheet 5 recorded Yabalam as a Yidinyji man "Idinji Trfibe], of Dumbunji", which is Site 26 in the connection report. Dumbunji, or Mount Gorton, lies in the Murray Prior Range, 3 kilometres north-east of the northernmost point of the claim area. (Rigsby 2002:171) Tindale's Sociology Card #611 for Yabalam's son, the first Fred Mundraby (cl883-1945), recorded Fred's birthplace as "oombunghi - n. Yarrabah Qu", and his physical anthropology measurements card #611 also recorded Fred's birthplace as "Dumbunji". Birdsell's Yarrabah genealogy sheets El and X-5 recorded Yabalam's and Fred's relationship, but not their place of birth or origin. Dixon (1991a:132, 134 and elsewhere) identified Ngumbunji as the Yidiny / Yidiy language name for Mount Gorton, so the straightforward interpretation is to take this as evidence for the two men's connection to the Mount Gorton area, i.e. to the mountain itself and to its associated country. (Rigsby 2002:171) There were the following groups of people at Yarrabah in the early years following the 1897 Act: 1. Gungganyji people (with their children), who were the traditional owners of the land where the central mission site was situated, as well as the eastern portion of the Reserve. 2. Yidinyji people (with their children), some of whom were the ancestors of the current Mandingalbay Yidinji claimant group; they were traditional owners on the western portion of the Reserve (Rigsby 2002:113). Dr Powell found information in Ernest Gribble's diaries that located Fred Mundraby, one of Yabalam's four children, at the mission from its beginning. On Wednesday, May 22, 1893, Gribble wrote: "Today found a little boy (Fred) sick at the camp. Had him removed to my room and attended. His mother (as is their custom in times of illness) cut a vein on the top of his head to bleed him with a piece of glass and cut too much and the poor little fellow lost a great quantity of blood before we could manage to stop the flow. He is in consequence of the great loss of blood very weak. I laid him on my bed and a cup of hot tea and a piece of bread and jam soon made the little chap feel better but it was a narrow escape from bleeding to death." (Rigsby 2002:179). "This child was surely the first Fred Mundraby, as Dr Powell and Rigsby found only one "Fred" in the records. Furthermore, Fred Mundraby's personal information card (in the Menmuny Museum) listed his birth year as about 1883, which made him about ten years old at the time of his illness." (Rigsby 2002:180)' 12 Mr Southon continues: 'The Mundrabys identify themselves as Yidinyji people, and they further name themselves as Mandingalbay Yidinji people, where Mandingalbay is a personal name which has been handed down to them. Sometimes they and others describe themselves as the Mandingalbay "clan" group. (Rigsby 2002:182) Rigsby states that from his knowledge of the classical ethnography of the region and what he knows from elsewhere on Cape York Peninsula, it is unlikely that Mandingalbay was in the past both a clan name and a personal name. He is confident, however, that it was a personal name. (Rigsby 2002:182) Rigsby nonetheless believes that the Mandingalbay Yidinji claimant group does represent the continuation of an older clan group, namely, the Yidinyji clan group which Stan Connolly called the Manggarra Yidinyji - Connolly (n.d.3, n.d.4, n.d. 8). (Rigsby 2002:182). The Manggarra Yidinyji were and are the immediate western neighbours of Gungganyji people. When Yabalam, his wife Biddie and their son Fred came in to the old mission site across the Range, they did not come as strangers. The Manggarra Yidinyji people who came in were not refugees from the Atherton Tableland or some other distant place: they were the next-door neighbours, and they were relations of Minminiy and other Gungganyji people who were the traditional owners of the country around the mission. (Rigsby 2002:182). Although Mundraby spokesmen told Dr Sackett in 1995 that they owned their traditional lands and waters through patrilineal inheritance, Rigsby has concluded that this was an ideologised representation of culture, an attempt to present the contemporary group as conforming to the popular view of what classical social organisation was like. (Rigsby 2002:182) In 2001 Rigsby asked the claimants whether their daughters' children were strangers who had no rights in their land, and the answer he received was no. Rigsby told them that their omission from the earlier genealogy meant that they were not members of their claimant group, that they would not share in the benefits to be gained by a native title consent determination, and suggested that the genealogy should be expanded to include all descendants of Yabalam, which the claimants agreed with. (Rigsby 2002:182) On the basis of what claimants told Rigsby, he defines their system of tenure and ownership as based on cognatic descent, where membership in the group is traced through both men and women from some one or more apical ancestors. (Rigsby 2002:182)' 13 Mr Southon continues: The expert Anthropologist's report describes four key facets of Mandingalbay Yidinji proprietary relationship to the land: a) beneficial right to the land and its resources b) responsibility for the maintenance of the land c) the claimants' group identities are an intrinsic part of the proprietary relationship with the land d) right to acquire ownership of land through descent and to transmit ownership of land to descendants On the basis of these four aspects of Mandingalbay Yidinji proprietary relationship to the land, the report divides Mandingalbay Yidinji native title rights and interests into four categories that flow from these four aspects of their land tenure:

Occupation and Economic Rights
Control and Management Rights
Cultural Property Rights
Membership and Dispute Settlement Rights The native title rights and interests listed in the Determination correspond to the these four categories of rights in the following way:
Occupation and Economic Rights i) the right to access and be physically present upon the Determination Area in accordance with traditional laws and customs; ii) the right to camp on the Determination Area in accordance with traditional laws and customs which does not include the right to permanently reside or build permanent structures or fixtures; iii) the right to hunt, fish and gather on the Determination Area for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; iv) the right to take, use and enjoy the Natural Resources of the Determination Area for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual ceremonial and non-commercial communal needs in accordance with traditional laws and customs; x) use, enjoy, hunt on and fish and gather from the Water for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes; and xi) take and use the Water and its resources for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes
Control and Management Rights iv) the right to maintain and protect from physical harm, by lawful means, places within the Determination Area of importance to the Native Title Holders in accordance with traditional laws and customs: and viii) make decisions in accordance with traditional laws and customs about the access, use and enjoyment of the Determination Area by Aboriginal People who are governed by the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
Cultural Property Rights vi) the right to perform social, cultural, religious, spiritual or ceremonial activities on the Determination Area and invite others to participate in those activities in accordance with traditional laws and customs.
Membership and Dispute Settlement Rights vii) pass on native title rights and interests in relation to the Determination Area in accordance with traditional laws and customs ix) determine membership of and filiation to the native title holding group in accordance with traditional laws and customs.' 14 Mr Southon continues: 'As the expert Anthropologist notes, these are the most straightforward of the rights and interests which flow from the proprietary-beneficial right and include the right to live on and erect residences on the claim area and the right to a portion of the benefit of resources taken by others from the claim area. (Rigsby 2002:205) He also notes that "unlike many other Aboriginal groups, (the Mandingalbay Yidinji) were not removed from their homelands to other regions and despite the authoritarian control to which they were subjected at times by the missionaries and the state native affairs department in previous periods, many, if not most, of their members have always lived on, camped, hunted, gathered, fished and ranged over their traditional lands and waters." (Rigsby 2002:211) He testifies to the fact that "many of the Gungganyji and Mandingalbay Yidinji claimants reside on their homelands. Others visit their country on a regular, e.g. weekly basis. They know particular places in the country by their indigenous language names and they use them, not English names. And although they no longer produce all their living and other needs from their own land, hunting, fishing and gathering remain important and meaningful pursuits. Claimants continue to use indigenous language names for many plants and animals, particularly for those species which are edible or used in making artefacts. Moreover, parents and grandparents pass on knowledge of traditional resources and techniques of taking or manufacturing them to their children and grandchildren". (Rigsby 2002:56). In 2004, Mandingalbay Yidinji claimant Alfred Mundraby made the following statements in support of continuing economic rights of Mandingalbay Yidinji people in the claim area: "Fred and I went up there (to the State Forest) about six months ago. There had been a fire and we went hunting after the fire to get food for our families. While we were there we were visiting this cave there, there are two caves up high on the ridges, we had to go and check it out and make sure it hadn't been disturbed. We go round, especially after a fire when access is easier, and we check out the caves and landmarks and the middens left by our old people and we manage our interests in this way, we look after the forest and that's how Murris manage it. We check the damage the fire has done to our land, our caves, our animals and lakes." "When I used to get the cassowaries up there with the old fellow, where the cassowaries dropped he'd burn it where it dropped, where he's speared it, later on where he shot it, burn all the hair off it, right there, you know cassowaries have hair not really feathers, that's the Yidinji way. Then we'd clean it out right there too, gut it. We'd make afire right there along side it to burn the hair off and gut it, then we'd carry it home to have a big feast, lots of Mandingalbay Yidinji families at that feast. I've gone that a lot. Made a fire on the banks of a creek that they run down to after they get shot, and fall. Where the cassowaries run to. Then carried them back to Buddabaddoo." … Another claimant, Fred Mundraby, also offered testimony as to continuing exercise of economic rights in the claim area: "We like to hunt porcupines (i.e. echidna) bandicoots, turkeys, birds, rock wallabies there's plenty of tucker in our country. We can live and camp out there for days." … Each generation of the claimant groups from the time of the Crown's acquisition of sovereignty has enjoyed access to the claimed land through the present time by and large unimpeded by others. For each such generation, the majority of members of the claimant group lived on the land and had access to other parts of the land by foot and canoe, and now also by motor vehicles, power boats and the like. The majority of members of the claimant group in each generation have lived continuously within the claim area since its inception in 1893 as an Aboriginal mission. (Rigsby 2002:212) The claimants regard their responsibility for land as an indivisible aspect of their rights and interests in it. Indeed, rights are so strongly allied to responsibility that people with the strongest traditional-customary rights in an area often make their initial up-front statement of ownership in such terms as "We are the people who look after that area". (Rigsby 2002:205) For example, members of the Mandingalbay Yidinji claimant group expressed their concern to Prof. Rigsby about the actions of a road construction crew which several years ago opened up an area with a bulldozer to excavate fill for repairing the road between Jilji and Buddabadoo. The excavation was immediately next to the widely known Shield Rock / Walba Bigun site, which lies outside the claim area but is part of Mandingalbay Yidinji traditional country. Had it been extended a bit further, could have dislodged the large boulder and caused it to roll down the hill onto the roadway. But more importantly, Mandingalbay Yidinji people considered that the actions of the construction crew might have disturbed and upset the Story-Woman who lives there and the spirits of the Old People who look after the land. Their statements not only expressed deep ties of sentiment to the land, but also their sense of responsibility to it Rigsby reports that a confrontation took place in which the Mandingalbay Yidinji native title holders sought to assert their rights with force. (Rigsby 2002:205) Apart from resource protection, the management of country involves such matters as approaching sites in the correct manner prescribed by traditional law and custom specific to them so as to avoid giving offence to the spirits of these sites. Examples include the proper introduction of strangers to the sites, and the avoidance of loud or disrespectful conduct at them. Proper introduction may require the traditional owners to "talk Language" and introduce the visitors to the spirits there. An improper approach may threaten the community and the traditional owners by antagonising and aggravating the spirits. But sites are seen also as resources themselves, the sources of the spiritual power responsible for the maintenance of the land and the social order. (Rigsby 2002:205) In regard to fire, the Mandingalbay Yidinji share the widespread Cape York Peninsula view that traditional law and custom oblige traditional owners or aboriginal title-holders to keep their country "clean" (i.e. with open vistas of grass, free of undergrowth, etc.). Claimants frequently say that they do this to promote the growth of new grass for wallabies and other species, but they also acknowledge they do it as much so for aesthetic reasons (Rigsby 2002:206). The use of fire is subject to customary restrictions as to who directs it, the amount of country which should be burned at any one time (a limited area, with the object of producing a mosaic patchwork of burned and unburned areas) and the times of year when firing is to be done. (Rigsby 2002:206) "Marking or changing" the claim area includes the marking of rock faces, the construction of private roads, tracks and dwellings, the removal or modification of vegetation, and the removal of soil materials. Marking the land is something the claimants believe that "Stories" / Ancestral Beings did during the Story-Time. The rich regional oral literature recounts the deeds of many Story-Beings as they fashioned the landscape and its topographic features, and the traditional owners consider that their prerogative of marking and changing the landscape comes to them by their descent from the Stories. Marking the landscape perhaps carries some deeper meanings, especially cutting the surface, given that the soil is, in a diffuse sense, identified with the Ancestral Beings. (Rigsby 2002:207) Apart from the significance in itself of cutting the surface, the cutting of roads and tracks and the clearing of vegetation is also related to a concern that such activities might intrude upon or damage Story-Places and burial sites. Recall Rigsby's remarks about the road construction crew taking fill from near Walba Bigun "Shield Rock". (Rigsby 2002:207) The right to control the access, occupation, use and enjoyment of any part of the claim area by others is a traditional one. The available historical record prior to population reduction during the colonial period indicates that owners displayed very low tolerance for people intruding into their lands and using their resources without permission or some prior understanding. Today the Mandingalbay Yidinji and fellow Aboriginal Yarrabah residents still exercise such control as they can over their homelands by insisting that Aboriginal non-owners ask for permission, and, in turn, they reinforce their traditional ownership by recognising and respecting other groups' property rights in land by refraining from trespass and intrusion on it. (Rigsby 2002:207)' 15 Mr Southon continues: 'In 1968 P.C. Griffin, the Yarrabah Superintendent, wrote that: "Within the borders of the Yarrabah Aboriginal Reserve,... there is yet much of the old ways that is pure, and has been preserved by these people in their own dialect, in their songs, and to some extent in their dances. Similarly, there are the songs, dances, and the language of the neighbouring Yedtinji. Their legends are kept before them by the various physical manifestations of the stories which they serve to explain. Like all Aboriginal people they have maintained very close bonds with their tribal lands, lands which are full of spiritual significance for them, were painted in cave-drawings by their forefathers, and were explained and glorified in legend." (Rigsby 2002:55) Rigsby concurs with Griffin's view: "The impact of over a century of colonisation and close missionary and state native affairs department control cannot be disregarded, but neither should ongoing social and cultural continuity be ignored. The claimants and their neighbours may no longer act and believe just as their ancestors did, but they by no means have abandoned or lost all that which their ancestors held dear. Importantly, they retain strong attachments of belief and emotion to their traditional lands. Indeed, it is in regard to land that they actively and clearly express and demonstrate traditional beliefs and practices". (Rigsby 2002:56) In the traditional law and custom of the Mandingalbay Yidinji and their regional Aboriginal neighbours with whom they share the same system of customary doctrines and presumptions, land is not only the property of the aboriginal title-holders in the sense of material property, but is also cultural and identity property. The most obvious examples of cultural property are the Story-Places (sometimes called "sacred sites") found on Mandingalbay Yidinji lands, together with their associated oral narratives. These, along with the paint designs, songs, dances and names associated with them, are the cultural property of the Mandingalbay Yidinji. Most significantly, the land itself in the specific claim area is in Aboriginal doctrine held to be the source of the aboriginal title-holders' membership and group identity. (Rigsby 2002:208) The choice of the terms "to own" and "to talk for" the claim area as cultural property arises from the claimant group's own speech usages and the conceptual presumptions behind them, by which "talking for" signifies that the speaker has the authority to make decisions about land use and to release information about cultural matters pertaining to the land. This is a core proprietary right of the aboriginal title-holders alone. (Rigsby 2002:209) The "cultural estate" pertaining to a specific claim area includes the total body of its claimant group's or groups' knowledge about the land and associated features of its topography, species and other resources, including traditions, customs and practices relating to: i) ancestral sites and tracks; ii) landscape knowledge such as socially relevant topographical divisions, sub-group areas, and sites of relevance to the social history of the aboriginal title-holders such as burial sites and old residential sites; iii) indigenous knowledge of the culinary, medical and "spiritual" properties of plants, animals and other natural resources. (Rigsby 2002:209) Cultural authority and responsibilities may be shared with elders of neighbouring groups as, for example, where a Story Track (the route taken by an Ancestral Being) crosses the territories of a number of groups, in which case knowledge of, and custodial responsibility for, the associated knowledge may be diffused inter-tribally. There is such a Story Track between Fitzroy Island and Walsh's Pyramid which, some people believe, was formed when Jarruga "Scrub-Hen" travelled from Fitzroy to the Pyramid. Other people believe her direction of movement and her pathway were different again. (Rigsby 2002:209) Rigsby found that senior members of the claimant group had a good knowledge of the old walking tracks and the locations of Story-Places and their site-specific law and custom. For example, Vincent Mundraby Sr and Alf Mundraby took Rigsby to visit Guliga (which means "wild, angry"). Guliga is a fresh water lagoon in the Buddabadoo area, which lies outside the claim area but is part of Mandingalbay Yidinji traditional country, where some years ago a spirit Whirlpool surrounded Vincent Sr and frightened him after he broke three traditional laws for the place. First, he remained in the Guliga and Buluba areas after sundown, whereas traditional law says to stay away from them after dark. Second, he fished there after sundown, whereas traditional law says that people should hunt, fish and gather there in the daytime, not at night. Third, he took more than he and his family could eat that day; traditional law says that people should take only as much as they need and can use. (Rigsby 2002:209) Over much of classical and contemporary Aboriginal Australia, groups own their own indigenous languages as a result of the actions of the ancestral spirits (Stories or Dreamings or Histories) who placed them in and on the landscape - see Merlan (1981) and Rumsey (1989, 1993, 1994). Even when people no longer speak their indigenous languages, they continue to speak of them as their languages and to identify strongly with them (Rigsby 2002:210). There have been no fully fluent speakers of the Yidiny / Yidiy language for some years, but people still identify as Yidinji. Many people of all ages know and use the Yidiny / Yidiy words and names for plant and animal species, place names, personal names, etc. and to sing songs in the language. (Rigsby 2002:210) Many place names are also traditional personal names, i.e. they are handed down the generations in family lines. They also establish special connections between the persons and the countries they name. We can also regard these traditional names as intellectual property because they are not available for anybody and everybody to bestow and use but only senior traditional owners of the country named can make the decisions and bestow the names. For example Djullja Mundraby, a young boy, is named for Jalja, a place that lies outside the claim area but within the Mandingalbay Yidinji traditional estate. (Rigsby 2002:210)' 16 Mr Southon concludes: 'Membership of land-owning groups, whether cognatic descent groups or the wider tribal or regional groups, is transmitted from one generation of men and women to the next by patrifiliation based on biological descent in the usual case. People do not acquire property rights and interests in land by inheriting them on the deaths of predecessors, but they gain them automatically, as it were, at birth from their fathers and mothers. The contemporary ethnographic evidence is comprehensive and conclusive on this point, but in classical times by the serial patrifilial principle, people did not gain full or core rights from women, except where there were no other heirs, and occasionally by adoption and the like. (Rigsby 2002:210) The kinds of ambiguities and/or disputes that can at times arise include the following: i) The distribution of specific family or descent group interests in particular portions of a tribal or regional group estate or territory; ii) The landed status of persons and descent groups of mixed "tribal" or sub-group affiliation, and the status of portions of the land of such mixed or disputed affiliation; iii) The distribution of custodial rights and duties in relation to ancestral and other culturally distinguished sites on the group's estate or territory; iv) Succession to sub-divisions of the groups' estate or territory where the original male clan owners left no children; v) Matters of breach of rights and interests between the aboriginal title-holders and neighbouring groups, or between sub-groups of the aboriginal title-holders. (Rigsby 2002:211) Regarding the reference to neighbouring groups' elders, disputes in relation to an area of land or water or details of the membership of the traditional owner or aboriginal title-holder groups usually involve boundaries, bordering estates or tracts, or persons of mixed affiliation. Resolution necessarily involves both groups, so the statement of rights and interests needs to make this clear rather than to be read as though it delivers the right to resolve such a matter (or impose a resolution) solely to the claimant aboriginal title group or groups. (Rigsby 2002:211) The right to "pass on native title rights and interests in relation to the Determination Area" is one of the native title rights that would be included under this category of "Membership and Dispute Settlement Rights". In 2004 the claimant Alfred Mundraby made the following statement in support of the continuing exercise of the right to pass on native title rights and interests: "Old Fred (Alf's father) took me up there when I was about 12, it's a Yidinji way that boys get taken to check country when they are about at puberty. I went then to walk our country with my dad and he pointed out lots of thins to me and told me stories that went with the country. We'd go hunting in the wet when ail the tucker comes down from the ridges, easier to get then." Another claimant, Fred Mundraby, also offered testimony as to the continuing exercise of the right to pass on native title rights and interests: "I went with Alf and Uncle Fred too and I go there with Alf now, like he said. You know its uncles and fathers that train up our boys, my sons still too young, but soon 1 take them too, bring their uncle Alf too." On the founding of the mission, its staff and later the staff of the state native affairs department enforced the laws of Queensland and special by-laws which sometime inhibited the full expression of the Gungganyji and Mandingalbay Yidinji peoples' right to possess, occupy, use and enjoy their land and exclude others from it. Nevertheless, group heads and leaders, such as Yabalam and Minminiy, explicitly granted rights to live on their lands and to hunt, fish and gather over it to the non-Gungganyji and non-Mandingalbay Yidinji Aboriginal people who were sent to the Yarrabah Mission or who were born there. As well, people taught the newcomers where the special places were and the law and custom connected with them, so that they could occupy, use and enjoy them too without giving offence to the Stories and the spirits of the Old People. (Rigsby 2002:212) There was a clear difference between the situation as the missionaries and native affairs staff saw it and the reality of the claimant groups exercising their traditional rights to the land and to naturalise and incorporate others to do so too. (Rigsby 2002:212)'

[37]

Continuing connection 17 I infer that all respondents have taken such expert advice as they deem appropriate. I note that there are no conflicting native title claims over the subject areas. The other claimant group in the immediate vicinity is the Gunggandji people. The history of this application and other applications in the area demonstrates that both peoples have carefully identified the land with which they traditionally relate. Clearly, the Gunggandji people and the Mandingalbay Yidinji people were in the area in 1892 when a mission was established in 1892. Equally clearly, they have maintained their contact with the area ever since. The question is, then, as to the position between the establishment of British sovereignty in 1788 and 1892. 18 I turn to the history of European contact. Cook visited in June 1770. He arrived at Cape Grafton on Saturday 9 June 1770. On the previous day, when further to the south, he saw people on small islands off the northern point of Rockingham Bay. At about 6.00 am on Saturday 9 June, he identified and named the "Frankland Isles", (now the Frankland Islands) and later, Cape Grafton. Banks recorded the sighting of people on the Frankland Islands. That night fires were sighted on the shore of Cape Grafton and during the day, people were seen. On Sunday 10 June Cook sailed around Cape Grafton and entered what is now Mission Bay. He, Banks and Solander went ashore looking for fresh water. They found streams but access was too difficult. They neither encountered people, nor saw signs of habitation. 19 On 26 June 1819 Allan Cunningham visited on the ship "Mermaid". He landed on Fitzroy Island and found water. Cunningham noted in his log that: '(A)n old beaten path from the beach to the back thick brushes, proved to us the Island had been visited (although not recently) by the Aborigines … . Traces of natives were noticed in various parts such as the remains of fires, large holes formed in the search for grubs or larvae of insects and two old huts were discovered on an angle of the shore … .' 20 He returned in 1821 and noted further evidence of Aboriginal use and occupation, recording that: '… (B)oth temporary, as well as more … substantial Huts were seen by us, … near the beach, the latter being well thatch'd, with the leaves of the Calamus of which likewise some of their water baskets were constructed. Quantities of burnt shell were strew'd around their fires, the remains of their mussel or cockle feasts, and a canoe form'd from the stem of a Tree 12 feet long, with an outrigger and paddles, was found, hauled up among the mangroves - a fishing, line and hook made by grinding a shell down was taken from a Hut.' 21 A fisherman, Mein, landed at Fitzroy Island in 1857. He later moved to Green Island. He claimed to have traded with the people of Cape Grafton prior to his departure in 1858. 22 The above summary is sufficient to identify an apparently permanent occupation of the region by Aboriginal peoples as far back as 1770 and continuing until about 1858. There is every reason to assume that occupation continued thereafter and until 1892 when the mission was founded. By that time there were clearly two distinct groups, the Gunggandji people and the Yidinji people, of which latter group the Mandingalbay Yidinji people are part. There is no reason to conclude that the division was recent. Had it been, one might reasonably have expected the fact to have been reported. It seems more likely that it was an established fact of life as far as the Aboriginal people were concerned. If there were two groups, then they probably identified areas as being the exclusive province of one or other of them. This is their own traditional understanding of their history. There is no reason to doubt it. 23 The Gunggandji people claim the area of a peninsular which is bounded by Mission Bay to the north, the Coral Sea to the north-east, east and south-east, and the Murray Prior Range to the south-west. To the west of the Gunggandji claim lies a combined claim by both peoples. Further to the west lies the land of which the Mandingalbay Yidinji people claim to be traditional owners. It stretches from Trinity Bay and Trinity Inlet in the north and north-west to Bell Peak South in the south. In the north much of the area has been dealt with in ways which have extinguished native title. Lot 1 is on Trinity Bay and lots 2, 3 and 4 are on Trinity Inlet. Lots 5 and 6 are further to the south. They are adjoining. 24 The people encountered by Cook, Banks, Cunningham and Mein were probably Gunggandji coastal dwellers rather than the Yidinji people who lived further inland. It seems quite unlikely that there would have been substantial cultural, social or technological differences between them. The former concentrated on resources available from the ocean, whilst the latter probably resorted to Trinity Bay and Trinity Inlet. If the Gunggandji people had canoes and built huts, it seems likely that the Mandingalbay Yidinji people did so. If the Gunggandji people traded, then presumably, the Mandingalbay Yidinji people did so. 25 The claim group is comprised of the descendants of a man called "Jabalum" and others recruited by adoption in accordance with traditional laws and customs. His name is sometimes spelt in other ways. Professor Rigsby suggests that the usual spelling is now "Yabalum". However I understand the preferred spelling to be "Jabalum". Professor Rigsby suggests that Jabalum was born about 1853. Although this estimate is based on rather tenuous evidence, it is probably reasonably accurate. His birth therefore pre-dated Mein's arrival in the area. According to oral family history, Jabalum was chief of a clan or group. That clan occupied the larger area of which the determination area is part. He is mentioned in early mission records as the father of a child. In 1972 a researcher conducted a lengthy interview with a grandson. There is thus no reason to doubt that Jabalum existed. It seems that his descendants are the only known survivors of that sub-group of the Yidinji people who occupied the determination area prior to 1892. 26 Early maps prepared by government officials and others, offer general support for the claim. They indicate that the Yidinji people or the Yidinji people and the Gunggandji people occupied areas which included the determination area. They include maps drawn by the then Commissioner of Police, W. E. Parry Okeden (1897), by W. E. Roth (1910, but based on 1898 research concerning language distribution), U. McConnell (1939), D. S. Davidson (1938) and L. Sharp (1939). In 1974 Norman B Tindale published his work, 'Aboriginal Tribes of Australia' which has become a standard reference work on the subject. His research also offers some support for the claim, but he appears to have been equivocal concerning the northern areas on Trinity Bay and Trinity Inlet. His field work dated from as early as 1938. Professor Rigsby's report demonstrates that the Mandingalbay Yidinji culture includes a great wealth of folklore concerning geographical features within, and around, the determination area. 27 In this very brief summary I have not done justice to the detail in Professor Rigsby's report, nor to the helpful summary of it provided by Mr Southon in his affidavits and oral evidence. It is an available inference that the Mandingalbay Yidinji people have occupied the determination area continuously since prior to 1770. That is the only matter about which I have felt concern. I am now satisfied in that regard and that it is appropriate to make the consent determination sought by the parties.

[38]

The Determination 28 I determine that native title exists in the whole of the determination area. I further determine, pursuant to s 225 of the Act that: · the persons holding the communal or group rights comprising the native title are as set out in Schedule 3 to these reasons; · save as to water, the nature and extent of the native title rights and interests in relation to the determination area are: · in relation to the land and waters in Part A of Schedule 1 to these reasons, the right, in accordance with traditional laws and customs, to possession, occupation, use and enjoyment thereof to the exclusion of all others; and · in relation to the land and waters in Part B of Schedule 2 to these reasons, the non-exclusive right to the use and enjoyment thereof, including the right to: s access and be physically thereon in accordance with traditional laws and customs; s camp thereon in accordance with traditional laws and customs, not including the right to reside permanently or build permanent structures or fixtures; s hunt, fish and gather thereon for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; s take, use and enjoy the natural resources thereof for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; s maintain and protect from physical harm, by lawful means, places therein which are of importance to the native title holders in accordance with traditional laws and customs; and s perform social, cultural, religious, spiritual and ceremonial activities thereon and invite others to participate in those activities in accordance with traditional laws and customs; · in relation to the land and waters in Part B of Schedule 1 to these reasons, the non-exclusive right to: s pass on native title in relation thereto in accordance with traditional laws and customs; s make decisions in accordance with traditional laws and customs concerning access, use and enjoyment thereof by aboriginal people who are governed by the traditional laws acknowledged, and traditional customs observed, by the native title holders; and s determine membership and filiation to the native title holders in accordance with traditional laws and customs. · in relation to all water on, or in, the determination area, the right to: s use, enjoy, hunt on, fish in and gather from the water for personal domestic, social, cultural, religious, spiritual, ceremonial and communal purposes, and s take and use the water and its resources for personal domestic, social, cultural, spiritual, ceremonial and communal purposes, provided that: · in all such cases, the purpose is non-commercial; and · such right to water does not confer any right to possession, occupation, use or enjoyment of the water to the exclusion of others. 29 Such native title is subject to, and exercisable in accordance with: · the laws of the Commonwealth of Australia and the State of Queensland, including local laws and planning instruments; and · traditional laws acknowledged, and traditional customs observed by, the native title holders; and 30 Notwithstanding anything to the contrary in this order there are no native title rights in, or in relation to: · minerals as defined in the Mineral Resources Act 1989 (Qld); or · petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 31 Other interests in relation to the determination area are set out in Schedule 4 to these reasons, the relationship between the native title and those other interests being that: · such other interests continue to have effect, and the rights conferred thereby or held thereunder, may be exercised notwithstanding the existence of the native title; and · such other interests and any activity done in exercise of the rights conferred thereby or held thereunder prevail over the native title and any exercise of the native title. 32 The order will contain the following definition clause: 'If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth), then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order: · "application" means the Mandingalbay Yidinji native title application QUD 6015 of 1998; · "Cairns Port Area" means the Port of Cairns as identified in Schedule 1 of the Transport Infrastructure (Ports) Regulation 1994 (Qld); · "determination area" means the land and waters described in Part A of Schedule 1 and shown on the determination plan and does not include the land and waters as describes in Part B of Schedule 1; · "determination plan" means the plan contained in Schedule 1; · "government owned corporation" has the meaning given to it in the Government Owned Corporations Act 1993 (Qld); · "high water mark" has the meaning given to it in the Land Act 1994 (Qld); · "laws of the Commonwealth of Australia and the State of Queensland" means the common law and the laws of the Commonwealth of Australia and the State of Queensland, including local laws and planning instruments; · "local government" has the meaning given to it in the Local Government Act 1993 (Qld); and · "native title holders" means the persons described in Schedule 3; · "natural resources" means animal, plant, fish and bird life found on or in the determination area from time to time and clays, sands, shell or soil found on or below the surface of the determination area but does not include minerals or petroleum; and · "tidal water" has the meaning given to it in the Land Act (1994) (Qld).' 33 I determine that the native title is not to be held in trust and that the Mandingalbay Yidinji Aboriginal Corporation: · be the prescribed body corporate for the purposes of s 57(2) of the Act; and · after becoming a registered native title body corporate, perform the functions mentioned s 57(3) of the Act. 34 This determination is to take effect over lots 5 and 6 in Schedule 1 upon registration on the Register of Indigenous Land Use Agreements of the agreement referred to in paragraph (c) to Schedule 4. 35 In the event that the agreement referred to in paragraph (c) of Schedule 4 is not registered on the Register of Indigenous Land Use Agreements within six months of the date of this order or such later time as the Court may order, the matter is to be listed for further directions. 36 Each party to the proceedings is to bear its own costs.

[48]

Part of Lot 111 on NR7962                                               Giangurra Reserve

Lot 36 on AP7416 formerly described as part of Lot 36 on USL9876        Trinity Inlet

Part of Lot 34 on USL9876                                               Trinity Inlet

Lot 16 on USL9897                                                       Redbank Creek

Part of Lot 933 on AP6360 formerly described as part of Lot 933 FTY934  State Forest

Part of Lot 1391 on NPW373                                              National Park

At a glance

Court

Decision date

Before

Source

Judgment (55 paragraphs)

Parties

Legislation Cited (17)

Cited By (2)