The Applicant has made a Native Title Determination Application No. QUD 6089 of 1998 ("the Application") in relation to the Determination Area.
The Applicant, the State of Queensland and other parties ("the Parties") have reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
The Parties have agreed to make application to the Federal Court of Australia for a consent order for a determination that native title exists in relation to the Determination Area.
The Parties acknowledge that the effect of this Determination is that the Western Yalanji People, in accordance with the traditional laws acknowledged and traditional customs observed by them, have a right as against the whole world to be acknowledged as the Native Title Holders for the Determination Area.
Being satisfied that a determination in the terms sought by the Parties would be within the power of the Court, and it appearing appropriate to the Court to do so,
[2]
BY CONSENT THE COURT ORDERS THAT:
Native title exists in relation to the Determination Area.
The native title is held by the Western Yalanji People as described in Schedule 2 (hereafter referred to, and defined in order 11, as "the Native Title Holders"), in accordance with the traditional laws acknowledged and traditional customs observed by them.
The nature and extent of the native title rights and interests in relation to the Determination Area other than Water are, subject to paragraphs 5 and 7 and the rights and interests identified in paragraph 8, non-exclusive rights to:
(a) be present on, use and enjoy the Determination Area by:
(i) hunting, fishing and gathering on, in and from the Determination Area for personal, domestic or non-commercial communal purposes;
(ii) conducting ceremonies on the Determination Area;
(iii) being buried on, and burying Native Title Holders on, the Determination Area;
(iv) maintaining Springs and wells in the Determination Area where underground water rises naturally, for the sole purpose of ensuring the free flow of Water;
(v) taking, using and enjoying the Natural Resources found on, or within, the Determination Area for personal, domestic or non-commercial communal purposes;
(vi) maintaining and protecting from physical harm, by lawful means, those places of importance and areas of significance to the Native Title Holders under their traditional laws and customs in the Determination Area; and
(b) inherit and succeed to the native title rights and interests.
The nature and extent of the native title rights and interests in relation to Water within the Determination Area are, subject to paragraphs 5 and 7 and the rights and interests identified in paragraph 8, non-exclusive rights to:
(a) hunt, fish and gather on, in and from Water for personal, domestic or non-commercial communal purposes; and
(b) take, use and enjoy Water and Natural Resources in such Water for personal, domestic or non-commercial communal purposes.
The native title rights and interests are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth; and
(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders.
Notwithstanding anything in paragraphs 3 and 4, the native title rights and interests in relation to the Determination Area do not extend to a right to control access to, or a right to control the use of, the Determination Area.
There are no native title rights and interests in or in relation to:
(a) minerals as defined in the Mineral Resources Act 1989 (Qld); and
(b) petroleum as defined in the Petroleum Act 1923 (Qld).
The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof identified below) are:
(a) the rights and interests of:
(i) the lessee of Special Lease No. 14/51183, Title Reference Number 17564123, being a term lease for primary industry (grazing) purposes comprising Lot 1 on Crown Plan CF14;
(ii) the licensee of Occupation License 14/285, Title Reference Number 17662194, comprising Lot 285 on Survey Plan 108034;
(iii) the lessees of Mining Leases 20083 and 20171, over parts of Lot 1 on Crown Plan CF14;
(iv) the permittees of Exploration Permits (Minerals) 12004, 12227, 13643, 13675, 13938 and 14740, over parts of Lot 1 on Crown Plan CF14;
(v) the permittees of Exploration Permits (Minerals) 13937 and 14738, over parts of Lot 285 on Survey Plan 108034;
(vi) the lessee, the State of Queensland and the Native Title Holders under an Indigenous Land Use Agreement dated 21 April 2005;
(vii) the Cook Shire Council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters in its local government area including its interests under an Indigenous Land Use Agreement dated 1 November 2005 between representatives of the Native Title Holders and the Cook Shire Council;
(viii) the Mareeba Shire Council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters in its local government area including its interests under an Indigenous Land Use Agreement dated 1 November 2005 between representatives of the Native Title Holders and the Mareeba Shire Council;
(ix) the Queensland Lapidary and Allied Craft Clubs Association ("QLACCA") under a permit issued pursuant to the Fossicking Act 1994 (Qld) and its interests under an Indigenous Land Use Agreement dated 4 November 2005 between representatives of the Native Title Holders and QLACCA; and
(b) any other rights, interests and powers held by reason of the effect and operation of the Laws of the State and the Commonwealth as may be current at the date of this Determination.
The relationship between the native title rights and interests and the other rights and interests described in paragraph 8 (the "other rights and interests") is that:
(a) the other rights and interests continue to have effect; and
(b) for the avoidance of doubt, any activity that is permitted by or under, and done in accordance with, the other rights and interests or any activity that is associated with or incidental to, such activity, prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them.
The native title rights and interests do not confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others.
The words and expressions used in this order have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:
"Animal" has the meaning given in the Nature Conservation Act 1992 (Qld)
"Determination Area" means the land and waters within the area described and shown as Lots 1 and 2 in Schedule 1
"Forest Products" has the meaning attributed to it in the Forestry Act 1959 (Qld)
"Laws of the State and the Commonwealth" means the common law and the laws of the State and the Commonwealth of Australia, and includes regulations, statutory instruments, local planning instruments and local laws
"Native Title Holders" means the Western Yalanji People as described in Schedule 2.
"Natural Resources" means any Plant, Animal, including shells and Forest Products, found on or in the Determination Area from time to time and flints, clays, soil, sand, gravel and rock on or below the surface of the Determination Area
"Plant" has the meaning given in the Nature Conservation Act 1992 (Qld)
"Spring" means the land to which water rises naturally from below the ground and the land over which the water then flows
"Water" means "water" as defined in the Water Act 2000 (Qld)
The native title is not held in trust.
The Western Yalanji Aboriginal Corporation, incorporated under the Aboriginal Councils and Association Act 1976 (Cth), is to:
(a) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and
(b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
Paragraphs 1 - 10 will take effect on the registration of the agreements referred to in paragraphs 8(a)(vii), 8(a)(viii) and 8(a)(ix) on the Register of Indigenous Land Use Agreements.
In the event that the agreements referred to in paragraphs 8(a)(vii), 8(a)(viii) and 8(a)(ix) are 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.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
[3]
SCHEDULE 1
DETERMINATION AREA
The Determination Area is comprised of land and waters in Lot 1 and Lot 2 on determination plan AP9684, covering Lot 285 on Survey Plan 108034 and Lot 1 on Crown Plan CF14 as shown below:
[4]
SCHEDULE 2
NATIVE TITLE HOLDERS
In respect of the Determination Area, the Native Title Holders are those people known as the Western Yalanji People. The Western Yalanji People are those Aboriginal people who are:
(a) descended from:
(i) Tippo King (aka Deppo / King of Maytown) and his sons Jack Cummins, Dick Cummins (aka Dick Wannacott / Simon King), Johnny (aka Cookie / Ted Palmer), John / Joe Cummins and daughter Gunman;
(ii) George Maytown (aka Jerry Dola / Jungga) and his children Eric Rosendale, Amy Locke, Ettie Murphy, Leo Rosendale and Elsie Russ;
(iii) Sandy King and his children Rosie, Larry Thomas, Jack Brady and Kitty Docherty;
(iv) Caroline Rose Roberts (aka Kitcha / Kitchayi) and her children Edgar, Kathleen, Charles Arthur, Caroline, Gladys, Harold, Ernest, Beryl and Verna;
(v) Caesar Lee Cheu and Georgina Banjo;
(vi) Rosie Maytown (aka Rosie Palmer / Rosie Grogan);
(vii) Jack Burton, Rupert Burton and Bula Burton;
(viii) Rob Miller, Ruby Barney / Meldrum and Molly Banjo;
(ix) Dolly McNamara;
(x) Wildtime and her son Mingkiji (aka Sambo Wannacott);
(xi) Billy and Maggie, Lizzie Riley, Emu Kelly, Wallaby Kelly, George Kelly (aka Baldy / Johnny Mossman) and George Kelly (aka George Sibley) ;
(xii) Billy and Kitty, Jimmy Riley, Bertie and Edward;
(xiii) Billy and Nellie, Bawlie and Rosie Buchanan;
(xiv) Lena Palmer and Bob Banjo (aka Gordon);
(xv) Charlie and Dolly Curramore;
(xvi) Jeanie Maytown and Mala Oliver;
(xvii) Charlie Snider;
(xviii) Rowdy Rogers and Charlotte Rogers (aka Davis);
(xix) Annie Fullerton and Dinah Fullerton-Brim;
(xx) Johnny Cake (aka Stewart); and
(b) recruited by adoption into one of the above descent groups in accordance with the traditional law and custom of the Western Yalanji People.
[5]
QUEENSLAND DISTRICT REGISTRY QUD 6089 OF 1998
[6]
BETWEEN: RODNEY RILEY ON HIS OWN BEHALF AND ON BEHALF OF THE WESTERN YALANJI PEOPLE
[7]
QUEENSLAND LAPIDARY AND ALLIED CRAFT CLUBS ASSOCIATION
[8]
REASONS FOR JUDGMENT
1 This proceeding arises out of an application for a determination of native title made by Rodney Riley on his own behalf and on behalf of the Western Yalanji People. The determination area comprises land and inland waters on Cape York Peninsula on country located south of Laura and south west of Cooktown in the State of Queensland.
2 An earlier and separate application (QG 6002 of 1996), also brought by the Western Yalanji People, was determined by Drummond J on 28 September 1998, at which time orders were made recognising native title to adjacent country.
[9]
BACKGROUND
3 This application was first lodged with the National Native Title Tribunal ("the Tribunal") on 22 September 1998 pursuant to s 61(1) of the Native Title Act 1993 (Cth) ("the Act"). The original application was made over land and waters described as Lot 1 on plan CF14 and part of Lot 285 on plan OL455. On 30 September 1998, by force of amendments to the Act, all applications lodged with the Tribunal became proceedings filed in the Court.
4 A notice of motion to amend the application was filed in the Court on 2 February 2000. Leave to amend the original application was granted by order of the Court on 14 February 2000. The amendments to Schedule A provided further particularisation of the native title claim group as the persons claiming to hold the native title.
5 A further notice of motion to amend the application was filed in the Court on 18 January 2002. Leave to amend the first amended application was granted by order of Drummond J on 4 February 2002. The amendments affected Schedules B and C by removing the Mitchell River from the area previously claimed. This further amended application is the current form of the application the subject of the agreement of the parties and the subject of the orders to be made today.
6 The Tribunal gave notice of the application pursuant to and in accordance with s 66 of the Act. Thereafter, at various times, parties applied, and were permitted, to be joined as respondents to the proceeding. Various persons and a company were made parties to the proceedings, but voluntarily withdrew from the proceeding, they being Noel Alexander Adam, Diatreme Resources Limited, Allen Douglas Robinson, Ernest Robert Townsend, Gwennyth Marjorie Townsend and William James Robinson.
7 Following the closing of the notification period under s 66 of the Act, on 22 May 2000, the matter was referred to the Tribunal for mediation on 8 August 2000 pursuant to s 86B of the Act.
8 Though it is not appropriate to disclose the conduct of any mediation, it is not inappropriate to recognise, on an occasion such as this, the success of the mediation process brought about by the skill of the Tribunal and the goodwill and the skilled and constructive efforts of the parties and their advisers. All are to be congratulated.
9 The parties have reached agreement upon the terms of a draft determination which is the subject of these reasons and, shortly, orders in this proceeding.
10 The agreement reached between the parties confers non-exclusive rights on the Western Yalanji People to use and enjoy the land and waters in the determination area. The agreement between the parties is subject to the Court being satisfied that it has the power to make orders in, or consistent with, the terms as sought by the parties and the Court being satisfied that it is appropriate to do so: s 87 of the Act.
[10]
POWER OF THE COURT
11 Pursuant to s 13 of 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.
12 Part 4, Division 1C of the Act provides that some or all of the parties involved in native title proceedings may negotiate an agreed outcome for that application or part of that application. Section 87 of the Act empowers 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 full hearing.
13 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 in the order in question. Section 225 of the Act provides as follows:
'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.'
[11]
CONSIDERATION OF AGREEMENT AND DRAFT DETERMINATION
14 I have had the benefit of an affidavit of Mr Michael Southon filed on 10 February 2006. Mr Southon is an anthropologist employed by the North Queensland Land Council Aboriginal Corporation.
15 The affidavit contains a helpful summary of anthropological research report prepared by Mr Ray Wood dealing with the connection of the Western Yalanji claim group to the determination area and is otherwise based on a genealogical report of Ms Dawn Glass and the results of consultation with officers of the State of Queensland, consultant anthropologists and elders of the native title claim group.
16 I have also had the benefit of examining the underlying anthropological and genealogical material referred to by Mr Southon upon which all parties and their advisers have been working during the conduct of the proceeding and the mediation.
17 I have also had the benefit of an affidavit of Mr Kevin John Murphy, filed by the State of Queensland. Mr Murphy sets out the basis for the State's agreement with the proposed orders and for the precise terms of some of the orders.
18 The report of Mr Southon illuminates, with some clarity, the existence of organised Aboriginal occupation and possession of the determination area extending back beyond the imposition of British sovereignty over the area. The report also confirms the continuity of an identifiable society of Aboriginal people having a connection with the lands and waters of the determination area in accordance with traditional laws which they acknowledged and traditional customs which they observed.
19 As Mr Southon writes:
We can confidently take the pre-contact normative society rather than the pre-sovereignty normative society as the benchmark for assessing contemporary Western Yalanji native title rights and interests. Wood has argued, convincingly, that there were no influences or events between the time of sovereignty and the time of the Palmer gold rush in 1873 that would have disrupted in any way the continuity of normative Western Yalanji society:
(Mr Southon then quotes Wood):
First, the exploration records - especially those of Hann and Mulligan over 1872-4 - provide good reason to infer unbroken transmission of rights and interests in land under Aboriginal law and custom in the area between sovereignty and the goldrush. These records are relatively detailed because they were created in the course of a search for minerals. They show that at on the arrival of the European explorers the area was fully subject to an Aboriginal pattern of occupation and use, and was a totally indigenous domain unreduced by pastoralists or massive epidemic. Hence the laws and customs distributing rights in land, and the Kuku Yalanji identity of the owner occupants documented in the early ethnography can have no sources but those of the immediate pre-goldrush community. The only possible source of that community in turn, and of its laws and customs, is unacculturated Aboriginal society continuous with times preceding sovereignty. (Wood 2004: para 127)
20 Mr Southon continues:
The first ethnographic records relating to Western Yalanji were made in the 1880s and 1890s, 10 or 15 years after first contact. They are fragmentary and record little more than group names, section names and moiety names. However, the information that these early reports do contain does show that in broad outline the social organization of the claimants is rooted in the pre-contact normative society:
(Mr Southon then further quotes from Wood):
Comparison of the early ethnography of the 1880s-1930s and that of the intermediate (1930s-50s) and more recent periods shows that these elements (contemporary language-named groupings) are rooted in the classical landed group organization of the region. For example, the presence in the 1880s-90s of large language-named groupings is unambiguous in the early ethnography, and the names of the groupings of that period are largely the same as those with which people identified themselves to ethnographers in the intermediate period and identify with today. (Wood 2004: para 9)
In short, the early ethnography and archival sources confirm that the occupants of the upper Palmer and Mitchell River country were Kuku Yalanji. They also confirm the claim group's oral record as to the presence there of a number of their apical ancestors (Wood 2004: Para 10)
21 Mr Southon continues:
The first Western Yalanji to "come in" did so in 1888 - a small group of 25 individuals. The 1890's mark the end of hostilities between Western Yalanji and Europeans. Wood remarks that "the density of the records of frontier violence" during this period suggest that "a sizeable population retaining clearly defined landed identities remained present at the conclusion of it" (Wood 2004: Para 128).
Wood also argues that it would be wrong to conclude that with the end of hostilities the Western Yalanji abandoned their traditional law and custom:
(Mr Southon then further quotes from Wood):
Any assumption that coming in marked a collapse of Aboriginal society or abandonment of their own system of laws and connections to the land is neither consistent with the records nor realistic with respect to the nature of colonial society in the 1890s to 1930s. Being let in did not constitute an admission to European society, the closure of which limited the possibilities for Aboriginal acculturation and left them essentially dependent on their own cultural terms of reference for a sense of place. (Wood 2004:Para 164)
22 Mr Southon continues:
The second layer of ethnography relating to the claim area consists of three ethnographic surveys conducted in the 1930s by McConnel, Sharp and Tindale. Like the earlier and more fragmentary records, these ethnographic records also confirm that the claim area belonged at that time to the Western Yalanji. Again, these records support the fundamental principle underlying the claimants' native title rights and interests: the association of the claim area with a language-named grouping now known as the Western Yalanji.
At various points in [his second] report, Wood discusses how contemporary Western Yalanji law and custom has evolved from 'classical' Western Yalanji law and custom. In doing so, Wood is again demonstrating how the present law and custom is derived from the pre-contact normative society:
(Mr Southon then further quotes from Wood)
In general, post-classical systems greatly reduce the number of rights and interests distinctions internal to a communal title. Most obviously, the cognatic reworking of descent and thus group membership, and the dissolving of clan interests into larger consolidated language-named proprietary identities, both tend to either blur or dissolve the matrifiliate-patrifiliate distinction and the internal divisions of a country into clan estates. In the Yalanji case, like the trajectory of others documented in detail elsewhere …, the membership of the language-named group now asserts relatively undifferentiated joint rights in the group's country as a whole. Of course, part of the historical roots of the joint right lie in the earlier component descent group estates, of which run traditions are the legitimating imprint. In the contemporary Aboriginal law of the region, this joint tribal title is conceived as essentially the right to possession inclusive of all beneficial rights and interests. (Wood 2004:Para 323)
23 Mr Southon concludes as follows:
In summary, although we do not have details about the normative society of Western Yalanji at time of contact, we do know that the fundamental principle on which the claimants native title rights and interests are based - traditional ownership of the claim area by a language-named group that is now known as Western Yalanji - is attested to by both the early ethnographic records of the 1880s and 1890s and by the later ethnographic surveys of the 1930s.
24 In examining Mr Southon's report together with the underlying anthropological and genealogical material, I bear in mind that other learned and experienced anthropologists and historians retained by the State of Queensland have been closely involved in the mediation of this application and thus in the bringing forward of this consent determination.
25 In that context, and in the absence of contest about the material which has been placed before me, indeed with the expressed views of the State of Queensland that I should accept the material that has been placed before me, it is appropriate that I act on the material of Mr Southon and the anthropological and genealogical material which he summarises.
26 Based on this material I am satisfied:
(1) that native title exists in relation to the lands and waters identified in Schedule 1 of the applicant's claim in the draft determination agreed to by the parties and which is Schedule 1 to the orders; and
(2) that the Western Yalanji People have a long standing connection to the determination area under traditional laws acknowledged and observed by them.
[12]
ORDERS AND DETERMINATION
27 It is appropriate to return to s 225 of the Act. Section 94A requires that the matters mentioned in s 225 be set out in the orders. The orders proposed by the consent of the parties must therefore deal with those matters.
28 Paragraph 225(a) deals with identification of the persons holding the common or group rights comprising the native title. This is set out in Schedule 2 to the orders.
29 I should add at this point that the State of Queensland is satisfied and has the view that the identity of the native title claim group is established by the connection material to which I have earlier referred.
30 Paragraph 225(b) deals with the nature and extent of the native title rights and interests in relation to the determination area. These are set out in orders 3 and 4.
31 I should add at this point that the State of Queensland is satisfied and has the view that the native title rights and interests set out in paragraphs 3 and 4 of the draft determination (being orders 3 and 4) are substantiated by the traditional laws and customs as described in the connection material provided on behalf of the Western Yalanji People.
32 Paragraph 225(c) deals with he nature and extent of any other interests in relation to the determination area. This is set out and dealt with by order 8. The precision and accuracy of the matter dealt with there has been the product of the careful work of the parties, in particular the State of Queensland.
33 Paragraph 225(d) deals with the relationship between the rights and interests in s 225(b) and (c) taking into account the effect of the Act. This is dealt with in order 9.
34 Paragraph 225(e) deals with the question of exclusion of others. Order 10 deals with this. The native title rights and interests the subject of the orders do not confer possession, occupation, use and enjoyment of the determination area on the native title holders to the exclusion of all others.
35 The orders, which are consistent with the terms agreed by the parties, recognise that the Western Yalanji People, as the common law holders of the native title in the determination area, are entitled to the non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. The orders further recognise other interests in the determination area and the relationship of those interests with the native title interests. The orders contain other provisions, required by the Act which are self explanatory.
36 I am satisfied that it is within the power of the Court to make the orders sought and that these orders can appropriately be made to give effect to the parties' agreement without a full hearing of the applicant's claim. For the above reasons, I have concluded that it is appropriate to make the orders sought by the parties to give effect to their agreement and I will, in a moment, make those orders.
37 This is a very significant day for the parties, in particular the applicant and the claim group. The recognition of native title takes place under the Act. It is the recognition by Australia and its laws (through orders made by the judicial arm of the Commonwealth) of the reality of the historical occupation of country by the Western Yalanji People and of the existence of their traditional laws and customs in relation to country long before European settlement. This recognition is not only an event of enduring importance for the Western Yalanji People, the applicant and the claim group, but it is also an event of enduring importance for all Australians. That is so because, one hopes, it is one part of the creation of a new national legacy within the framework of legislation of the Commonwealth of Australia.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.
[13]
Associate:
Dated: 17 February 2006
Solicitor for the Applicant: Mr M Ascione (North Queensland Land Council Aboriginal Corporation)
[14]
Solicitor for the First Respondent: Ms K Snape (Crown Solicitor)
[15]
Solicitor for the Second Respondent: Mr A Kerr (MacDonnells)
[16]
Solicitor for the Third Respondent: Mr A Kerr (MacDonnells)
[17]
Solicitor for the Fourth Respondent: No appearance
[18]
Solicitor for the Fifth Respondent: Mr A Kerr (MacDonnells)
[19]
Solicitor for the Sixth Respondent: Mr H Prokuda (Corrs Chambers Westgarth)