REASONS FOR JUDGMENT
1 On 27 April 2001, the Court ordered the combination of two separate claims lodged with the National Native Title Tribunal in 1994 and 1995 by the Gurrabana-Gungganyji People and by Les Murgha and Vincent Schreiber for and on behalf of the Gunggandji People. Both claims sought Native Title determinations pursuant to the Native Title Act 1993 (Cth) (the "Act"). The combined proceeding (QUD 6013 of 2001) are now described as the "Combined Gunggandji claim". I shall refer to them as the "Gunggandji claim". Progress towards this determination has been slow, the matter being complicated by the need to resolve difficult legal questions arising under state legislation enacted for the benefit of Aboriginal people.
2 The Gunggandji claim was originally brought by Les Murgha, Frederick Noble and Stewart Harris on their own behalf and on behalf of the Combined Gunggandji People. In 2005 Mr Noble ceased to be a member of the applicant group. Sadly, as is often the case in Native Title matters, Mr Stewart Harris, the Gurrabana elder passed away in 2010. Mr Harris was a very knowledgeable, and highly respected elder in his community and an important source of information for the anthropologists and the linguists working in North Queensland over many years. Mr Murgha alone now constitutes the applicant group.
3 The respondents to the Gunggandji claim are the State of Queensland, the Cairns Regional Council, the Yarrabah Aboriginal Shire Council, Black and White (Quick Service) Taxis Pty Ltd, Ergon Energy Corporation Limited, Miles Electronics Pty Ltd, Seven Network (Operations) Limited, Southern Cross Media Australia Pty Ltd, Telstra Corporation Limited and a number of Yarrabah residents who have statutory and other interests in parts of the claim area which are held pursuant to a deed of grant in trust. The North Queensland Land Council is the native title representative body for the area. It represents the applicant in these proceedings.
4 Since May 2010 the claim has been the subject of intense case management under the supervision of court staff. This has led to closely focussed negotiations concerning the outstanding issues. Two of those responsible for that management are here today, Ms Louise Anderson and Ms Chris Fewings. Ms Anderson has administrative responsibility for the court's Native Title work throughout Australia. Ms Fewings is responsible for all Native Title work in Queensland. That they have spent so much time on this claim is evidence of the difficulties which have had to be resolved and the symbolic importance of Yarrabah in the wider Native Title process. The parties have reached an agreement which has been signed by all of them. The agreement was filed on 30 November 2011. The orders to be made today arise out of that agreement.
5 Pursuant to s 13 and Parts 3 and 4 of the Act, the Court may make determinations concerning Native Title in relation to areas over which there is no existing approved determination. I note that there are no approved determinations of Native Title over the area which is the subject of the proposed determination. Section 87 of the Act provides that if the parties to an application reach written agreement as to proposed orders in relation to the proceedings or part of the proceedings, the Court may make appropriate orders in, or consistent with, the terms of the agreement without conducting a full hearing of the application. The Court must take a number of matters into account in determining whether the proposed orders are appropriate.
6 The primary evidence in this case is contained in the report of Dr Bruce Rigsby dated July 2002. The applicant relies on that report to establish the existence of traditional laws and customs linking the Combined Gunggandji People to the claim area. The parties have also had the benefit of the assistance of other eminent anthropologists, historians and linguists. Dr Rigsby relies on the earlier work of anthropologists and ethnographers such as Archibald Meston, Walter Roth, Eric Mjöberg, Lauriston Sharp, Norman Tindale and Joseph Birdsell. He has also had regard to the work of Ernest Gribble, the son of the Reverend John Gribble who landed at Mission Bay on 17 June 1892. Ernest Gribble spent a considerable period of his life living amongst the people of Yarrabah.
7 The claim group is a combination of three smaller groups, the Gurrabana-Gungganyji (sometimes called the "Harris Family"), the Greater Gunggandji (for which group Mr Murgha speaks) and the Descendants of George Christian. The list of apical ancestors appears elsewhere in these reasons. The claim relates primarily to the Yarrabah region. It includes land held under the deed of grant in trust to which I have referred and surrounding lands. Over the years agreement has been reached with the other indigenous peoples in the Yarrabah area, the Mandingalbay Yidinji and the Lower Coastal Yidinji, as to areas of exclusive and shared traditional ownership. Broadly speaking, this claim lies to the east of the Yarrabah region. The Mandingalbay Yidinji land is to the west. The Lower Coastal Yidinji claim an area to the south.
8 The Yarrabah region is bordered to the east by the Pacific Ocean, between Cape Grafton in the north and Deception Point (or Wunggu) in the south. The northern boundary is marked by various bays and waterways including Trinity Inlet. The western boundary is in the vicinity of Wright Creek and the Mulgrave River as far south as its confluence with the Russell River. The region is dominated by three mountain ranges running more or less north-south, the Murray Prior Range, the Nisbet Range and the Malbon Thompson Range. Dr Rigsby describes the division of traditional ownership as follows:
The Combined Gunggandji and Mandingalbay Yidinji claimant groups agreed to recognise the area east of a line between Mick Creek and Jilji as being Combined Gunggandji land today. Although the core members of the Mandingalbay Yidinji claimant group know much of that area well and they recognise sites and places on it which figure in their oral history and myths or legends, they agreed not to contest the Combined Gungganji claim there. Similarly, the two claimant groups recognised the claim area west of the crest of the Malbon Thomson Range (including a separate area at Woolanmaroo, just north of Mutchero Inlet) as being Mandingalbay Yidinji land. Although many Gungganyji people know much of that area well and they recognise sites and places on it that figure in their oral history and myths or legends, they agreed not contest the Mandingalbay Yidinji claim there. Finally, the Combined Gunggandji and Mandingalbay Yidinji claimant groups agreed to lodge a joint claim over the area whose eastern boundary runs along the coast from Jilji to Palmer Point and whose western boundary runs northward along the crest of the Malbon Thompson Range, then to May Peak. From May Peak, its western boundary is less easily described, but we can say that the country it includes lies west of the crest of the Murray Prior Range and it takes in the Nisbet Range.
9 As to the Lower Coastal Yidinji, Dr Rigsby says:
Some of the members of the group listed just above do not now identify themselves as Mandingalbay Yidinji people, but as Lower Coastal Yidinji people. Nonetheless, they assert that they have traditional ownership and native title rights at Woolanmaroo and in the coastal area from Palmer Point to Jilji. …
10 Dr Rigsby reports the history of the Gunggandji people's early contact with Europeans. In 1770, some eighteen years prior to British sovereignty, Captain James Cook, in the Endeavour, sailed up the eastern coast of Australia. In his journal he recorded that on the night of June 8, some of his crew saw numerous fires on the shore. At the first light on June 9, they found their ship "abreast of some small islands", known to the local people as "Wanaga". Cook named them "Frankland Islands" after Admiral Sir Thomas Frankland. The Endeavour rounded Yanggija, which Cook called "Cape Grafton". The Duke of Grafton was Prime Minister at the time of the Endeavour's departure from England. Cook dropped anchor in the sheltered waters of Mission Bay. He later wrote in his journal:
As soon as the ship was brought to anchor I went ashore accompanied by Mr Banks and Dr Solander, the first thing I did was to look for fresh water and with that view rode out towards the Cape [Grafton] because in the bottom of the bay was a low mangrove island and found two small streams which were difficult to get to on account of the surf and rocks along the shore. As we came around the Cape we saw in Sandy Cove a small stream of water run over the beach but here I did not go in the boat because I found it was not easy to land.
11 Dr Rigsby says that the Harris family still tell the story of Cook's visit. The rock art site at Wijiny Cave (just north of King Beach) pictures a ship which they believe to be Cook's. Dr Rigsby visited the site on September 7, 2001 with Edgar "Man" Harris and Clayton Harris, and saw an image of a sailing ship. However he notes that it is "sloop rigged" and therefore probably not a representation of the Endeavour.
12 Dr Rigsby provides detail concerning the earlier European explorers in the region. He refers to an incident on June 22, 1819, when the Mermaid, under Phillip King's command, anchored in the bay on the western side of Fitzroy Island to shelter from a fresh south easterly wind. Fitzroy Island is within the claim area and is of particular significance to the Gurabana clan of the Gunggandji People. The naturalist, Cunningham and others went ashore. They found water. Cunningham noted in his log that:
An 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 (quoted by Jones 1964:4).
13 On 17 June 1821, Cunningham again sailed past Fitzroy Island, noting further evidence of Aboriginal use and occupation as follows:
(W)e all proceeded to go north to a passing between Grafton and the Island, we remark'd several Natives at the extremity of the Coral beach of the latter, whereon we had land'd two year's since. These people on being seen, arose and brandish'd their wammarah's, and then resumed their Seat again on the rocks.
14 Given the abundance of resources in the coastal region, it seems probable that the people seen by Cook were part of the same society as was subsequently seen by Cunningham. There is no reason to believe that they did not remain in the area until European settlement.
15 In 1873, the Queensland Government commissioned George Dalrymple to "explore the coast and rivers between Cardwell and Cooktown". He described the valley floor country around the Mulgrave and Russell Rivers as "eminently suitable for European occupation". Dalrymple's report soon attracted settlers. In a few years Cairns was a growing township. The influx of settlers, including miners and timber getters, inevitably displaced Aboriginal people, including the Gunggandji people. When the Yarrabah Mission was established by the Reverend John Gribble in June 1892, many Aboriginal people, dispossessed of their land by European and Chinese settlers, moved to the relative safety of the mission. Dr Rigsby says that the mission was a place of safety and sustenance for local people, for people from the wider region and for people from further away in Queensland who were also adversely affected by European settlement. The missionaries aimed to protect Aboriginal people from European vices and to convert them to Christianity. These well-motivated activities had the unfortunate, but inevitable effect of creating a relationship of authority over the Aboriginal people. Dr Rigsby's report also discloses the sad history of Aboriginal life on the mission. Another consequence was that traditional owners, the Gunggandji People, were seen to be sharing their country with others who had come voluntarily to the mission or been forcibly moved there from their own country. This sharing of country created conflicting interests and expectations which have continued to the present time. Some of the conflict has been resolved in the course of these proceedings. No doubt other aspects remain to be resolved in the future.
16 It is interesting to note that Dr Fiona Powell found, in Gribble's diaries, reference to Aboriginal people regularly visiting the Yarrabah Mission lands for ceremonial, social and economic reasons, suggesting that in the midst of dislocation, the Gunggandji People retained their identity and contact with their lands.
17 In 1960, the Church ceded its control of the mission to the State government. However it was not until the deed of grant in trust dated 31 October 1986, that the people on the Yarrabah reserve received a degree of autonomy.
18 The native title claim group is identified as being the descendants, by birth or adoption, of the following persons:
(i) Merumanai II, or his wife Tonkobulu of King Beach (being the parents of Albert Underwood, Djaradjoan, Menmuny/King John Barlow/Merumanai III, and Nellie married to Loui);
(ii) Billy Brown (husband of Jinny Katchewan of Cape Grafton);
(iii) Billy Church/Goondor (the father of Maggie 1, Maggie 2 and Nora);
(iv) Kari (the father of George Christian);
(v) Mandi Tjapir (sister of Kari and wife of Billy Church);
(vi) Kutuba/Bertie Harris;
(vii) Mary Ann, or her brother Paddy of Jilji (husband of Nora);
(viii) Nego/Nengo (the mother of Maggie 2);
(ix) Mandekala of Cape Grafton or Njemnga/Njewnga of Cape Grafton (the parents of Jinny Katchewan of Cape Grafton);
(x) Rosie of Buddabadoo;
(xi) Billy (Woopah) of Buddabadoo; and
(xii) Harry Myngha.
19 Dr Rigsby provides much genealogical and historical information concerning the Gunggandji people, their lands and the connection between the two. He provides quite specific information concerning some sites such as Jimijimi, King Beach, Ganyjuganyju and Gidila and the off-shore islands and reefs. He also gives a more general overview of the traditional laws and customs concerning the ownership of land in the Yarrabah region. He identifies incidents of such laws and customs concerning:
the right to possession, occupation, use and enjoyment;
responsibility for maintenance and proper use;
the cultural property of the claimant group; and
the power to transmit ownership to descendants.
He also refers to procedures for dispute resolution concerning these matters.
20 Prima facie, the grant of land pursuant to the deed of grant in trust extinguished Native Title in the subject land. However s 47A of the Act provides for the disregard of that consequence for present purposes. I accept that relevant investigations have been carried out by the parties, and that s 47A has been engaged.
21 Where the Court makes a determination of native title, s 94A of the Act requires that it set out details of the matters mentioned in s 225. I am satisfied that the evidence demonstrates that the Combined Gunggandji People were a normative society at sovereignty. Through the continued acknowledgement and observance of the traditional laws and customs identified in Chapters 7 and 8 of Dr Rigsby's report, they have maintained a connection with the Determination Area. I am satisfied that the claimed rights and interests are derived from the observance of traditional laws and customs.
22 Having regard to the evidence, the terms of the proposed orders and the applicant's submissions, I am satisfied that all of the matters addressed in s 225 of the Act are appropriately dealt with in the proposed orders. I am also satisfied that the orders sought by the parties are in accordance with the requirements of s 87(2) of the Act.
23 Pursuant to s 223 of the Act:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
24 The "Determination Area" is defined in para 1 of the proposed orders and described in Schedule 2, Part A. Schedule 3 lists those areas where exclusive Native Title is to be recognised. Schedule 4 lists those areas where non-exclusive Native Title is to be recognized.
25 The proposed orders recognize that, subject to paras 5, 6 and 7 the nature and extent of the Native Title rights and interests (other than in relation to water) are, in respect of the area which is described in Schedule 3, the rights to possession, occupation, use and enjoyment to the exclusion of all others. In relation to that part of the Determination Area which is identified in Schedule 4, the Native Title rights and interests (other than in relation to water) are non-exclusive rights to be present on, including by accessing and traversing the Determination Area, and to take and use traditional natural resources from the Determination Area for personal, domestic and non-commercial communal purposes.
26 Subject to paras 5, 6 and 7 the nature and extent of the Native Title rights and interests in relation to water within the Determination Area are the non-exclusive rights to hunt and fish in or on, and gather from, the water for personal, domestic and non-commercial communal purposes, and to take and use the water for personal, domestic and non-commercial communal purposes.
27 Where Native Title is to be held on trust, s 55 of the Act requires the Court to make a determination as contemplated by s 56 of the Act. In other cases, the Court is to act pursuant to s 57(2). Order 12(a) of the proposed orders provides that Native Title is not to be held on trust. By order 12(b) the Gunggandji PBC Aboriginal Corporation (ICN7421) is to be the prescribed body corporate for the purposes of s 57(2) of the Act, and is to perform the functions set out in s 57(3). The applicant has nominated that corporation as the Prescribed Body Corporate to perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and for the other objects and purposes set out in its rules. The corporation was registered on 22 July 2010. On 17 November 2011, the applicant filed the affidavit of Martin Doré and submissions in support the Prescribed Body Corporate determination. I am satisfied that the requirements of s 57 are satisfied. I am also satisfied that it is within the power of the Court to make the orders sought, and that such orders may properly be made without a full hearing of the application. I congratulate all those who have assisted the Gunggandji People in reaching this point in their history. In particular, the lawyers, including those acting for the other parties, have played a significant role. I congratulate the respondents upon their cooperation and, of course, I congratulate the Gunggandji People.
28 I do not come here today to give anything to the Gunggandji people. I come on behalf of the Australian people to recognize their traditional ownership of this land in a way which will bind all people, for all time. In particular, my order will bind the State of Queensland, the Cairns Regional Council, the Yarrabah Aboriginal Shire Council, Black and White (Quick Service) Taxis Pty Ltd, Ergon Energy Corporation Limited, Miles Electronics Pty Ltd, Seven Network (Operations) Limited, Southern Cross Media Australia Pty Ltd, Telstra Corporation Limited, together with all other people and all other corporations.
29 Not all of the Gunggandji peoples' traditional rights have survived the arrival of European settlers. Much has been lost, but perhaps something has also been gained. The merging of cultures usually involves both positive and negative consequences for all involved.
30 I now make orders in the form of the draft which I initial and place with the papers.
31 On behalf of all Australians, I congratulate the Gunggandji people upon this recognition of their traditional rights. Particularly I congratulate you on behalf of the Judges of this Court and our staff. We wish you well and hope that our shared future will reflect the qualities of your society and culture as well as those of all other people who now or will, in the future, make up the Australian nation.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.