Wonga on behalf of the Wanyurr Majay People v State of Queensland

Judgment (6 paragraphs)

[1]

Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth), BY CONSENT THE COURT ORDERS THAT:

There be a determination of native title in the terms set out below.
The determination will take effect on the registration on the Register of Indigenous Land Use Agreements, of the agreement referred to in paragraph 1(b) of Schedule 4.
In the event that the agreement referred to in paragraph 1(b) of Schedule 4 is not registered on the Register of Indigenous Land Use Agreements within six months of the date of this Order, the matter is to be listed for further directions. THE COURT DETERMINES THAT:
The Determination Area is the land and waters described in Schedule 1 (Part A), and depicted in the map attached to Schedule 1 (Part B).
Native title exists in relation to the Determination Area described in Schedule 1.
The native title is held by the Wanyurr Majay People described in Schedule 3 (the "native title holders").
Subject to orders 6, 7 and 8 the nature and extent of the native title rights and interests in the Determination Area, other than in relation to Water, are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp on the area and, for that purpose, erect temporary shelters on the area; (c) hunt, fish and gather on the area for personal, domestic and non-commercial communal purposes; (d) take, use, share and exchange Natural Resources from the area for personal, domestic and non-commercial communal purposes; (e) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; (f) conduct ceremonies on the area; (g) teach on the area the physical and spiritual attributes of the area; and (h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and to protect those places and areas from physical harm.

PART B - Determination Plan SCHEDULE 2 - AREAS NOT FORMING PART OF THE DETERMINATION AREA For the avoidance of doubt, the following areas claimed in the native title determination application filed on 15 September 2008, as amended, are excluded from the Determination Area because those areas are or were the subject of previous exclusive possession acts (as that expression is defined in the Native Title Act 1993 (Cth)): Lot 101 on Plan SP114737 Lot 187 on Plan NR800965 Lot 213 on Plan NR6342 Lot 214 on Plan NR6342 Lot 196 on Plan NR4450 Lot 23 on Plan RP803151 SCHEDULE 3 - NATIVE TITLE HOLDERS The native title holders are those Aboriginal People who are Wanyurr Majay People on the basis of descent through either male or female line from one of the following persons: (a) Njinggungara/Pannikin (b) Nellie Tobi/Pannican (c) Doranga and Tjanpumolo (d) Tilly Palmer (e) Minnie (f) Jack Baker (g) Lydia Murray (h) Larry Thompson/Larry Carney/Loui Waiangai (i) Jenny/Sinnie SCHEDULE 4 - OTHER INTERESTS The nature and extent of the other interests in relation to the Determination Area are the following, as they exist as at the date of the Determination:

The rights and interests of the parties under the following indigenous land use agreements: a. Annie Wonga, Andrew Miller, Mark Wilson, Adrian Murray, Lilian Willis (Senior), Wanyurr Majay Aboriginal Corporation, State of Queensland and Wet Tropics Management Authority as parties to the Wanyurr Majay People Protected Areas ILUA dated 25 January 2011; and b. Annie Wonga, Andrew Miller, Mark Wilson, Adrian Murray, Lilian Willis (Senior), and Cairns Regional Council as parties to the Cairns Regional Council Wanyurr Majay People ILUA dated 19 June 2011.
The rights and interests of the Cairns Regional Council ("Council") under "Local Government Acts" as defined in the Local Government Act 2009 (Qld) which apply to the Determination Area including any rights the Council or its employees or agents have:- a. as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of this determination; and b. to enter and exercise rights within the Determination Area in accordance with the Local Government Act 2009 (Qld).
The rights and interests of the State of Queensland in Lot 235 on NR4450 (part of Reserve 843 on plan NR4450) and Lots 117 - 120 on NR1099 (Reserve 1458), the rights of Cairns Regional Council as trustee of the reserves and the rights and interests of the persons entitled to access and use the reserves for the purposes for which they have been reserved.
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 that part of Lot 19 on Plan NPW970 within the Determination Area.
The rights and interests of the holders of any leases, agreements, licences, permits or authorities granted under the Nature Conservation Act 1992 (Qld) as may be current at the date of this determination.
The rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld) relating to the use and management of that part of Lot 19 on Plan NPW970, Lots 117-120 on Plan NR1099 and Lot 235 on Plan NR4450 within the Determination Area.
The rights and interests of the holders of any permits granted under the Wet Tropics Management Plan 1998 (Qld) as may be current at the date of this determination.
Any other rights and interests held by the State of Queensland or Commonwealth of Australia, or by reason of the force and operation of the Laws of the State and the Commonwealth, as may be current at the date of this determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 296 of 2008

REASONS FOR JUDGMENT 1 Annie Wonga, Andrew Miller, Mark Wilson, Lillian Mavis Willis and Adrian Clive Murray on behalf of the Wanyurr Majay People, have applied pursuant to s 61 of the Native Title Act 1993 (Cth) (the "Act") for a determination that native title exists in the land and waters identified in their application filed on 15 September 2008. The Determination Area includes rainforest areas in and around Mount Bellenden Ker in North Queensland and is described in Schedule 1 to the proposed orders. The application was accepted for registration on 4 February 2009 and was notified in accordance with s 66(3) of the Act on 11 March 2009. The parties who remain as respondents are the State of Queensland and the Cairns Regional Council. 2 Pursuant to the Act, the Court may make determinations concerning native title in relation to areas over which there is no existing approved determination. The parties have reached final agreement in respect of the application, and seek a Consent Determination by the Court pursuant to s 87(2) of the Act. That agreement was filed on 10 August 2011. The agreement between the parties is subject to the Court's being satisfied that it has the power to make orders in the terms sought, and that it is proper so to do. 3 Section 87 of the Act provides that if, at any stage of the proceedings after the close of notification, agreement is reached on a proposed determination of native title in relation to an area covered by the application, the Court may make a determination of native title without holding a hearing, if it is satisfied that the proposed determination is within power, and that it would be appropriate to make the order. 4 The Court resolves disputes between parties. The parties determine the ambit of each dispute. When they reach agreement as to part or all of the dispute, so much of it ceases to be in dispute. It follows that the Court will generally act upon such agreement. In some cases, including the present case, there is a public interest in the outcome, going beyond the interests of the parties. In such a case the Court must ensure that the public interest is protected. I am content to assume that the State and the Cairns Regional Council together represent the public interest. The agreement reached between the parties has been freely made on an informed basis and with the benefit of appropriate legal and other expert advice. I am content to act on the parties' agreement. I note also that there are no approved determinations of native title and no conflicting native title claims over the area the subject of the proposed determination. 5 The parties have had the benefit of extensive anthropological material prepared by Dr Anthony Redmond and Ms Diana McCarthy. The Applicant relies on the following reports which have been filed in the proceedings: (a) Dr Anthony Redmond and Ms Diana McCarthy (July 2006) Anthropological Report on the Southern Lower Coastal Yidinyji (Majanyji/Wanyurr) People's Connections to Land and Waters ("Connection Report"). (b) Dr Anthony Redmond (July 2010) Identifying the Relevant Level of Society in the Wayurr/Majay Native Title Claim ("Supplementary Report-Society"). (c) Dr Anthony Redmond (October 2010) Wanyurr Majay Supplementary Connection Report - Identification of the claimant group and its rights and interests - (a) Identification of Group ("Supplementary Report - Identification of Group"). (d) Dr Anthony Redmond (October 2010) Wanyurr Majay Supplementary Connection Report - Identification of the claimant group and its rights and interests (b) Rights and Interests ("Supplementary Report - Rights and Interests"). 6 I have been greatly assisted by this research. It identifies a separate society of Wanyurr Majay People within the broader Yidinji language bloc and their continuity of connection to the land and waters within the claim area. The reports identify the society at sovereignty, the normative laws and customs acknowledged and observed by the society at sovereignty and the current society. The Connection Report contains a genealogical record of the Wanyurr Majay people which is supported by supplementary reports on the identification of the claimant group and its rights and interests. 7 The claimants are the descendants of Aboriginal people who spoke the Yidinji language, in particular the Wanyurr Majay dialect. The relationship of the Wanyurr Majay People to the Yidinyji People appears from the following submission on behalf of the applicant: 42. It is noted within the Connection Report that there are three group levels within the claim area: 1. The entire societal level at which the normative law and custom is held communally (in this case the Yidinyji/Gungganyji/Djabugay rainforest peoples); 2. The level of a broad group such as the Yidinyji people, which allows processes of succession to country over time and which can be reasonably demonstrated to be the broad group whose ancestors occupied the country under claim at sovereignty or first contact; and 3. A sub-group level such as Southern Lower Coastal/Yidinyji (or Majanyji/Wanyurr) which has emerged with a reasonably distinct identity in the contemporary situation. 43. Groupings, such as clans or families, which clearly exercise rights and interests in specific tracts of land at a level below these recognised groupings, do so as a consequence of the recognition afforded to those rights by the body of laws and customs held in common by a broader community of native title holders. In short, it is crucial to distinguish between: 1. The higher social level at which the system of law and custom ('ways of making relationships to country') is shared; and 2. The clan or family group level at which rights and interest in land are exercised and recognised. These local groups tend to be characterised by a fluidity of membership and are contextually produced at different scales in relation to the various projects which require a group's attention. 44. As Professor Bruce Rigsby has stated: There is no single regional Aboriginal jural public, and the several beneficial titles to particular lands and waters are not constituted in isolation from that wider jural public. 45. This way of understanding the communal nature of the native title group does not mean: that all the members of this community hold in common equal and identical rights and interests across the whole of the claim area. Rather, one of the defining features of such a system of law and custom is that local group…[otherwise known as clan or family groups] spoke for, and continue to speak for and manage…particular areas of country. 46. The claimant group for the application area was formulated on the basis that local rights and interests in regards to the land are able to be exercised only as a result of the claimants' adherence to the shared body of traditional laws and customs held at the level of a community which consists of all Wanyurr Majay People and a wider level Yidinji. 8 This rather complex explanation is explained in much clearer terms by many members of the claim group themselves and other members of the Yidinyji group. For example, Annie Wonga said: It's one big group, only like little clans having their own areas…The coastal Yidinyji are part of the big Yidinyji nation, some of that is from speaking the same language. Only coastal Yidinyji can speak for the country around here, say if Tableland people came here to visit they respect that we speak for this country. This is what I teach the children here "Remember who you are and where you come from, you have to respect each other that way". 9 Clive Murray said: The old laws and customs were shared across the whole Yidinyji people…The law of the Yidinyji people was the same across the region. 10 Allen Ambrym said: Tableland and coastal Yidinyji are only different for the land they speak for. They always travelled across each other's country. Gungganyji people are pretty much the same as us, they speak Yidin. In early days people lived as one, no big deal was made about language groups, we always lived together. 11 Mahalia Mathiesson said: When I was growing up we all treated each other as one even though we knew they were from different areas. Tableland Murris used to come down and visit us at the coast especially during certain hunting times. Coastal Yidinyji used to come up from down south. 12 James Noble said: When I was growing up Gungganyji people and Yidinyji were one mob. 13 Delmah Miller said: The Yidinyji are all one, we are bringing them back together but they speak for their own mobs. Granny Tilly [Palmer] used to travel up to Tableland to visit the families living up there. 14 Sandra Smith said: We are all the same Yidinyji but we speak for our own areas, like we do and Gimuy do but we are all the same Yidinyji tribe. 15 Henry Miller said: The Yidinyji are one group but we are placed different areas - like Seeth [Fourmile] and the Mundrabys - they have their own areas so we don't put our foot in different mobs areas. We support each other. In old times Tableland and coastal people were together…The different Yidinyji people talk for their own blocks and take care of their own places but belong to one big tribe. 16 Frank Willis said: The way I see it we were all one family group in Yidinyji…you had a big block of country with family groups in each area, they would look after that bit of country. 17 Mary Stewart said: Coastal Yidinyji are part of the Yidinyji group - you might as well say we're all related really. 18 Stewart Bong said: In 1992 we had meetings in Gordonvale where we tried to act as a single group. We should try to keep it going. 19 Dr Redmond observes: 39. These sentiments expressed by Wanyurr Majay people regarding the unity of the Yidinyji and Gungganyji peoples under whose laws and customs local groups had responsibilities for particular tracts of country was echoed by other Yidinyji people with whom I spoke. And he set out the following comments made by people from the wider Yidinji People: 20 Viola Davis told him: What I was taught is that Yidinyji are one people but here on the tableland and down to Yarrabah. When we were kids we were taught Yidinyji were the biggest tribal mob and only the land claims has split us up, though, of course, they always had different names for different areas. My husband is Yidinyji from over at Garra, also the Tableland mob, his country is from the top to the bottom at Mulgrave. Top Yidinyji is Tableland and bottom Yidinyji is the Mulgrave River mobs. My great grandmother, Polly, and my grandmother Anning told me we were one mob. All Yidinyji were close people, together more or less and knew everyone. My mum would always point out our relatives across the whole Yidinyji area. We had many visitors from the coast. The Stewarts lived on the range to Gordonvale, they came to visit, Connie's mother is my grand-aunt on Nellie Parker's side. We know a lot of the Ngadjan people. Auntie Maggie Anning and her kids are Ngadjan but I was taught one fella came from Ngadjan further down the coast, took Yidinyji women and started a tribe of his own. They were always gathering and get together with Ngadjan; there was no separation in those days. We knew people from Atherton to Ravenshoe. Barabaram people are all intermarried with Yidinyji families. The walking tracks connected Big Mulgrave to the top and Kuranda and Redlynch, visiting in the early days. Sometimes in seasons people would go to gather their kinds of food, in those days it was one tribe. Jabugayi are Yidinyji people. 21 Dr Redmond refers to other statements to similar effect by Lloyd Connie Stewart, Francine Barlow, Nola Joseph and Davey Turpin. 22 The Connection Report contains a summary of the observations of early European explorers and settlers in the claim area. In June 1770 Banks, a member of Cook's party, recorded fires on the Frankland Islands, within the broader Yidinji country. They were spotted in the evening and Banks records in the morning "a group of about 30 men, women and children standing all together looking attentively at us". 23 In 1873 an expedition led by Captain George Dalrymple explored the coast from Cardwell to Cooktown. The noted linguist RMW Dixon who has worked extensively with the rainforest people of North Queensland, refers to Dalrymple's notes on the profusion of native flora and fauna near the junction of the Mulgrave River and observations of Aboriginal people in the area crossing the river in outrigger canoes all well furnished with fishing spears, lines and hand nets. Dalrymple also noted "neat blacks' gunyahs near the junction of the Mulgrave River and Tighe's Creek". Both Tindale and Dixon have recognized a distinct language group identifiable with the present claim group, and historically located in the claim area. 24 The years following European settlement brought great disruption to the lives of the Yidinji people in the coastal areas and up into the rainforest on the Great Dividing Range. Roads, railways, sugar cane farms and gold mining brought an influx of European settlers to the region. With the settlers came epidemics of measles and influenza which decimated the Aboriginal population who had no immunity to these diseases. Redmond and McCarthy refer in their report to the cedar cutters taking advantage of the groves of timber which the Yidinji used for their canoes. Those trees grew in the same richly forested areas as some of their major food sources. 25 In 1892 the Reverend John Gribble established what was to become the Yarrabah Mission at Mission Bay. This had a significant effect on the people of the area. Dr Bruce Rigsby refers to the missionaries intention to "curb and destroy" what were regarded as heathen social and cultural practices of the Yidinji and Gunggandji residents. 26 With intensive farming of the areas where the people had once obtained their food supply, large numbers of Yidinji people moved onto the Mission or found work in the new industries established by the European settlers. Redmond and McCarthy say that: lacking a means to secure their sustenance from the land alone, Yidinji people, while carrying on some traditional food gathering and hunting were gradually forced in varying degrees of coercive labour relationships in the new rural industries of cane growing, timber getting, pearling and beche-de-mer gathering, and later in coffee and rice plantations. 27 In 1986 the Yarrabah Mission Reserve lands was made the subject of a Deed of Grant in Trust. Redmond and McCarthy have concluded that: throughout this entire time Yidinji people, and their relatives living in the regional townships and on the farms surrounding the reserve lands, have, as far as practicable, continued to use and occupy their traditional lands for sustenance and recreation, and to educate their younger generations in the Stories attaching to their country and in the use of the lands in accordance with a body and custom handed down through generations. 28 The genealogies contain clearly identified descent groups who trace their ancestry, in a number of cases, from first contact with European settlement of the claim area to the present time. The genealogies and other material provide a clear and comprehensive explanation of the composition of the claim group. It is described as all those persons who are descended from the following ancestors: (a) Njinggungara/Pannikin (b) Nellie Tobi/Pannican (c) Doranga and Tjanpumolo (d) Tilly Palmer (e) Minnie (f) Jack Baker (g) Lydia Murray (h) Larry Thompson/Larry Carney/Loui Waiangai (i) Jenny/Sinnie 29 I am satisfied that the Wanyurr Majay People were a normative society at the time of assertion of British sovereignty. Through the continued acknowledgement and observance of their traditional laws and customs they have maintained a connection with the Determination Area. 30 The parties to the s 87 agreement have agreed that the native title rights and interests in the Determination Area, other than in relation to Water, are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp on the area and, for that purpose, erect temporary shelters on the area; (c) hunt, fish and gather on the area for personal, domestic and non-commercial communal purposes; (d) take, use, share and exchange Natural Resources from the area for personal, domestic and non-commercial communal purposes; (e) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; (f) conduct ceremonies on the area; (g) teach on the area the physical and spiritual attributes of the area; and (h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and to protect those places and areas from physical harm. 31 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: (a) hunt and fish in or on, and gather from, the Water for personal, domestic and non-commercial communal purposes; and (b) take and use the Water for personal, domestic and non-commercial communal purposes. 32 Having regard to the evidence, the terms of the proposed orders and the written submissions of the Applicant, I am satisfied that all of the matters prescribed by s 225 of the Act are properly dealt with in the proposed orders. I am satisfied that agreements reached between the parties are in accordance with the requirements of s 87(2) of the Act. 33 The applicant has nominated the Wanyurr Majay Aboriginal Corporation (ICN4429) (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)) (the "Corporation") as the prescribed body corporate for the purposes of s 57(2) of the Act to act for the common law holders, 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 the Rules of the Corporation. The Corporation was registered on 11 January 2006. The Applicant has filed all relevant material including specific submissions to satisfy the requirements of s 57 of the Act. 34 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' agreements without a full hearing of the applications. For the above reasons, I have concluded that it is appropriate to make the orders sought by the parties which I now do by initialling the draft which has been provided to me and directing that it be placed with the papers. 35 The orders which I have made recognize the Wanyurr Majay People's native title rights and interests within the Australian legal system and extend the protection of that system to those rights and interests. I have not come here today to give anything to the Wanyurr Majay People. Rather I come on behalf of all Australian people to recognize their traditional rights and interests, which rights and interests have their roots in times before 1788. Only some of those traditional rights and interests have survived European settlement. Those surviving rights and interests I now acknowledge. In so doing I bind all people, for all time, including the Commonwealth, the State of Queensland and the Cairns Regional Council. 36 We know that the history of the Wanyurr Majay People since European settlement has been hard. We hope that in what we do today, we will assist them to enjoy a better future, in which we hope to share. 37 On behalf of all Australians, but particularly on behalf of the Judges of the Court and our staff, we congratulate you on your achievement today and wish you well for the future. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

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