Ngadjon-Jii People v State of Queensland

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

QUEENSLAND DISTRICT REGISTRY QUD 6027 OF 1999

BETWEEN: VERA FLORENCE KETCHELL, ERNIE DOUGLAS RAYMONT, STANLEY THOMAS MORTA, ELSIE ELIZABETH GO SAM, YVONNE SHIRLEY CANENDO, ENA EILEEN GERTZ, GRACE KIDNER, MARGARET PATRICIA RAYMONT and ILA ELIZABETH KIDNER on their own behalf and on behalf of the NGADJON-JII PEOPLE

REASONS FOR JUDGMENT 1 This proceeding arises out of an application for a determination of native title made by Vera Florence Ketchell, Ernie Douglas Raymont, Stanley Thomas Morta, Elsie Elizabeth Go Sam, Yvonne Shirley Canendo, Ena Eileen Gertz, Grace Kidner, Margaret Patricia Raymont and Ila Elizabeth Kidner, on their own behalf and on behalf of the Ngadjon-Jii People. The respondents are the State of Queensland, the Cairns City Council, the Eacham Shire Council and Ergon Energy Corporation Limited. 2 The claim area comprises approximately 13 287 hectares of land and waters within various reserves, environmental parks and national parks around Atherton, Mareeba and Cairns in Far North Queensland, including the southern portion of Wooroonooran National Park, including Broken Nose, the South Peak, the North Peak and the Northwest Peak of the Mt Bartle Frere, the Topaz Road National Park, the Malanda Falls Conservation Park, two parcels of land reserved for quarry purposes, and an island in the middle of the Russell River. The claim area is comprehensively defined as the 'Determination Area' in Schedule 1 of the Minute of Consent Order, filed 14 November 2007.

BACKGROUND OF THE APPLICATION: 3 The application for determination of native title was filed in the Court on 14 October 1999. That application was amended pursuant to an order of the Court on 19 June 2006 and an amended Claimant Application was filed on 29 June 2006. That amended Claimant Application forms the basis of the consent determination proposed to be made today. 4 The agreement reached between the parties and filed in the Court on 14 November 2007 confers exclusive and non-exclusive rights on the Ngadjon-Jii People to use and enjoy the land and waters in the determination area. 5 The agreement between the parties is subject to the Court being satisfied that it has the power to make orders in terms of those sought and the Court being satisfied that it is proper to do so.

POWER OF THE COURT: 6 Pursuant to s 13 of the Native Title Act 1993 (Cth) (the Act), applications for the determination of native title may be made to the Federal Court in relation to areas for which there is no approved determination of native title. Part 3 of the Act sets out the rules for making such applications to the Court. 7 Part 4, Division 1C of the Act provides that some or all of the parties involved in a native title proceedings may negotiate an agreed outcome for that application or part of that application. Section 87 of the Act allows the Court, if it is satisfied that such an order is within its power, to make an order in, or consistent with, the terms of the parties' written agreement without holding a hearing. 8 Where the Court makes an order in which a determination of native title is made, s 94A of the Act requires the Court to set out details of the matters mentioned in s 225. Section 225 provides: 'A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.'

CONSIDERATION OF AGREEMENT AND DRAFT DETERMINATION: 9 In considering whether it is appropriate to make the order that the parties seek, I have had the benefit of the Summary of Connection Material report of Dr Sandra Pannell, Anthropologist, prepared in September 2007 and filed as an annexure to the affidavit of Martin Edwin Ellis Dore on 7 November 2007. That summary document of Dr Pannell's earlier anthropological report material was prepared at the request of the solicitor for the applicant and the North Queensland Land Council to assist the Court in considering the agreement between the parties. 10 In order to establish that there are today native title holders, it must first be established that, at the time of sovereignty, a society of persons bound together by observance of traditional laws and customs existed. In identifying the Ngadjon-Jii People, Dr Pannell's summary report explains that: '[7] The claimants describe the native title claim group as the Ngadjon-People (or 'Ngadjon) 'tribe'. The 'tribe' consists of two sub-groups or 'clans', the Barron River and the Russell River clan groups, which, at any given moment in time, are also associated with specific family names. While each of the two riverine groups is traditionally associated with different areas within Ngagjon-Jii territory, the claimants identify their traditional rights and interests as communally vested in the group at the tribal level. Whether a 'people' or a 'tribe', the Ngadjon-Jii claimants also see themselves as quintessentially 'rainforest Aborigines'.' 11 The Ngadjon-Jii People's traditional entitlement to ownership of the ancestral lands and waters derives from their physical, cultural and spiritual connection to the claim area. In reviewing the Ngadjon-Jii People's claimed physical connection, Dr Pannell explains: '[55] Ngadjon-Jii patterns of physical occupation, both historically and in the contemporary period, can be characterised as multi-sited. Thus, while some individuals lived at Top Camp and Gulkagulka, other Ngadjon-Jii people, during the same period, occupied camp sites in 'the Jungle' (in Malanda), at the junction of the Ithaca and North Johnstone Rivers, on farms at Glen Allyn, at Bunjabilli (aka 'Bottom Camp' in reference to Top Camp, at Lamins Hill) at Butcher's Creek, and at the camp at the Malanda Falls. … [57] Twentieth-century anthropological and linguistic accounts provide further evidence of the general physical connection of the Ngadon-Jii people to the claimed areas. For example, based upon fieldwork with Ngadon-Jii informants in the 1930s and again in the 1970s, including several of the claimants' immediate forebears, Norman Tindale, recorded that "Ngatjan territory was virtually all in rainforest extending from Atherton in the west to near Innisfail on the coastal plains".' 12 In reviewing the Ngadjon-Jii People's claimed cultural connection, Dr Pannell continues: '[58] For the claimants, language is identified as one of the distinctive cultural features of their group. … [59] The Ngadjon dialect was acquired from the Ngadjon-Jii relatives in the parental and grant-parental generation. Knowledge of the claimant group's traditional language is actively transmitted to younger generations of Ngadjon-Jii people through daily instruction, and through the production of written texts. … [63] The cultural connection between Ngadjon-Jii people and named places within the claimed area is illustrated by the personal names of the claimants. Claimants, whether old or young, posses language names, which, among other things, refer to rainforest faunal or floral species or to named places on Ngadjon-Jii country.' 13 In reviewing the Ngadjon-Jii People's claimed spiritual connection, Dr Pannell writes: '[65] Ngadjon-Jii people maintain a spiritual connection to the claimed lands through the transmission of oral narratives about 'Dreamtime' beings and Ngadjon-Jii ancestors, known as the 'old people'. The language-named Storytime or 'Dreamtime' places acknowledged and protected by the Ngadjon-Jii people point to the claimants' belief that their traditional lands and waters constitute a sentient landscape, forever occupied by both Dreaming and ancestral spirits.' 14 Dr Pannell states in her report that the entitlement of the Ngadjon-Jii claimants to possession of the claim area is recognised by members of neighbouring Aboriginal groups. Dr Pannel's summary report notes: '[38] The traditional connection and identity of the Ngadjon-Jii claimants is acknowledge [sic] by members of neighbouring Aboriginal groups, including other dialect speakers of the Dyirbal language group. Prior to lodging the native title determination application, senior Ngadjon-Jii people convened several meetings with elders from neighbouring groups, including, Mamu, Majaanji, Kairi Yidindji, Gordonvale Yidindji, Dulabed Yidindji, Dugulbara Yidindji, Malanbara Yidindji, Barbaram and Jirrabal tribal people. At these meetings, senior Aboriginal members from each of these groups agreed that the claimants possessed a traditional connection to the areas claimed by them.' 15 This same report then concludes: '[39] In addition to these group meetings, the anthropologist researching Ngagjon-Jii peoples' native title interviewed elders and others members of neighbouring Aboriginal groups. On the basis of these interviews, and also based upon the outcome of the group meetings, it is the opinion of the research anthropologist that there is a widespread consensus in the regional Aboriginal community, that the claimants are; (1) Ngadjon-Jii, and (2) that they are the 'Traditional Owners' of the lands and water under claim by the claimant group.' 16 Dr Pannell's report contains many examples in which the Ngadjon-Jii People have maintained their connection to the determination area. These include: occupying the remnant forests or otherwise utilizing them to avoid being taken to missions that operated during the first half of the twentieth-century; working on local farms whilst occupying traditional dwellings; engaging in occupations carried out on the country, such as timber cutting or fossicking; and in some cases, returning to Ngadjon-Jii country upon release from government missions. 17 According to Dr Pannell's report: '[92] With the exception of some of the members of the Parkinson family, who reside on Palm Island, at the time when the native title claim was lodged, practically all of the Ngadjon-Jii claimants lived either in Malanda or in Atherton.' 18 I am satisfied, based on all of the information available to the Court, that the Ngadjon-Jii People have a long-standing and continuing connection to the determination area under traditional laws acknowledged and traditional laws observed by them.

TERMS OF THE PROPOSED ORDER: 19 The proposed order, which is consistent with the terms agreed by the parties, recognises that the Ngadjon-Jii People, as the holders of the native title in the determination area, are entitled to the exclusive and non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. 20 The proposed orders further recognise other interests in the determination area and the relationship of those interests with the native title interests. The proposed order contains other provisions, required by the Act, which it is unnecessary for me to set out here. 21 It is a cause of great satisfaction when native title claims are settled through agreement rather than through protracted litigation. I am most pleased to observe that the number of native title determinations by this Court, which have been reached by consent, has dramatically increased in recent years. This suggests that governments and other parties are increasingly aware of the benefits of negotiated settlements of native title claims, which otherwise have the potential to be lengthy, costly and divisive in the community. 22 I am satisfied that the Court has power to make a determination in the terms proposed by the parties by agreement. Such an order determines under the laws of Australia that native title exists in the determination area according to the traditional laws and customs of the Ngadjon-Jii People. This is recognition of what has long been held by the Ngadjon-Jii People. 23 For the above reasons, I have concluded that it is proper to make the order sought by the parties to give effect to their agreement, and I now make that order. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Solicitor for the Applicant: North Queensland Land Council Aboriginal Corporation

Solicitor for the First Respondent: Crown Law

Solicitor for the Second, Third and Fourth Respondents: MacDonnells Law

Date of Hearing: 12 December 2007

Date of Judgment: 12 December 2007

SCHEDULE 1 DETERMINATION AREA The Determination Area comprises all of the land and waters described in the following Parts, excluding any area of land and waters on which a public work, as that expression is defined in the Native Title Act 1993 (Cth), is or has been established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. Note: a reference in this Schedule to a Determination Plan lot number is a reference to the depiction on the Determination Plan of the relevant areas as described in the tables below. EXCLUSIVE AREAS Part A The land and waters, being: Area Determination Plan lot number Lot 31 on AP16251 Lot 2 on AP14230

NON-EXCLUSIVE AREAS Part B The land and waters, being: Area Determination Plan lot number Lot 130 on NR910 Lot 6 on AP14230 Lot 142 on NR7206, excluding the area of land and waters subject to former Lease of Agricultural Farm 180 which commenced on 1 July 1909 Lot 7 on AP14230 Lot 301 on NR6075 Lot 5 on AP14230

Part C The land and waters, being: Area Determination Plan lot number Part of Lot 19 on NPW921 formerly described as Part of Lot 19 on NPW696, excluding the area of land and waters subject to former Lease of Land Selection 323 which commenced on 1 January 1883, and excluding the area of land and waters subject to former Deed of Grant No.18557 for Agricultural Farm 1344 dated 9 June 1960 situated in former portion 116 in Parish of Bellenden Ker in the County of Nares, and excluding the area of land and waters subject to former freehold Lot 3 on RP855879. Lots 1 and 4 on AP14230 Lot 1421 on NPW396, excluding the area of land and waters subject to former Lease for Special Purposes No.5054 which commenced on 1 December 1926, and excluding the area of land and waters subject to former Lease for Special Purposes No.14990 which commenced on 1 December 1946 Lot 3 on AP14230

SCHEDULE 2 DESCRIPTION OF THE NATIVE TITLE HOLDERS In respect of the Determination Area, the common law holders are those people known as the Ngadjon-Jii People. The Ngadjon-Jii People are those Aboriginal people who are: (i) the descendants of Barry Clarke; (ii) the descendants of Sally Beard (aka Charlie Beard); (iii) the descendants of Lydia Murray; (iv) the descendants of Bella Williams; (v) the descendants of Mick Calico; (vi) the descendants of Anne Belson; (vii) the descendants of Mick Ameur; (viii) the descendants of Joe Battle (aka Joe Beringo); (ix) the descendants of Polly Robinson; (x) the descendants of Lucy Gordon; (xi) Florrie and Elliot Lifu who, upon the death of their biological mother, were adopted by their father's second wife, the Ngadjon-Jii ancestor, Lucy Gordon; or (xii) recruited by adoption, in accordance with the traditional laws and customs of the Ngadjon-Jii People.