Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland [2007] FCA 1084

FEDERAL COURT OF AUSTRALIA

Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland [2007] FCA 1084

NATIVE TITLE – determination of native title pursuant to s 87 of the Native Title Act 1993 (Cth)

Native Title Act 1993 (Cth) Water Act 2000 (Qld) TIMOTHY JAMES MALACHI, GAVIN JAMES KENDALL, ISOBELLA JENNIFER COLEMAN, DANNY TIMOTHY COLEMAN, HORACE LOWDOWN, JERRY NED, FREDDIE GLEN COLEMAN, PAUL MICHAEL JOHN BALLIE AND IVAN JAMES NED ON BEHALF OF THE STRATHGORDON MOB v STATE OF QUEENSLAND AND OTHERS, COOK SHIRE COUNCIL AND QUEENSLAND LAPIDARY ALLIED CRAFT CLUBS ASSOCIATION QUD6005 OF 2003

GREENWOOD J

26 JULY 2007

STRATHGORDON STATION, CAPE YORK PENINSULA IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD6005 OF 2003

BETWEEN: TIMOTHY JAMES MALACHI, GAVIN JAMES KENDALL, ISOBELLA JENNIFER COLEMAN, DANNY TIMOTHY COLEMAN, HORACE LOWDOWN, JERRY NED, FREDDIE GLEN COLEMAN, PAUL MICHAEL JOHN BALLIE AND IVAN JAMES NED ON BEHALF OF THE STRATHGORDON MOB

Applicant

AND: STATE OF QUEENSLAND COOK SHIRE COUNCIL AND QUEENSLAND LAPIDARY ALLIED CRAFT CLUBS ASSOCIATION

Respondents

JUDGE: GREENWOOD J DATE OF ORDER: 26 JULY 2007

WHERE MADE: STRATHGORDON STATION, CAPE YORK PENINSULA

THE COURT NOTES THAT:

A. The applicant, the State of Queensland and the other respondents to the proceeding have reached an agreement as to the terms of a determination of native title to be made in relation to the area covered by the application. B. The Native Title Holders are a group within a broader regional society whose relationships within that society extend from the Kendall River in the north to the Mitchell River in the south. They are affiliated to the proposed Determination Area by laws and customs that are shared by other Aboriginal people in the region, the majority of whom now reside in the communities of Aurukun, Pormpuraaw and Kowanyama. C. The traditional laws acknowledged and traditional customs observed by the Native Title Holders include the authority as between Aboriginal people to: (a) resolve disputes about who is or who is not a Native Title Holder; (b) determine as between the Native Title Holders what are the particular native title rights and interests that are held by particular Native Title Holders in relation to particular parts of the Determination Area; (c) exclude particular Native Title Holders from the exercise of particular native title rights and interests in relation to particular parts of the Determination Area; and (d) resolve disputes between Aboriginal people concerning native title rights and interests in relation to the Determination Area, with the assistance of traditional Aboriginal owners or native title holders of adjoining areas where such assistance is necessary. D. The parties have agreed that s 47A(1)(b)(ii) of the Native Title Act 1993 (Cth) applies to the land and waters of the Determination Area, the subject of a term lease for pastoral purposes commencing 1 July 1986 being Title Reference No. 17668134 and, when the application was made, one or more members of the native title claim group occupied the Determination Area. BEING SATISFIED that a determination of native title in the terms that follow would be within the power of the Court and, it appearing to the Court appropriate to do so by consent of the parties and pursuant to s 87 of the Native Title Act 1993 (Cth). THE COURT DETERMINES THAT: Existence of native title 1. Native title exists in relation to the Determination Area. The Native Title Holders 2. The native title is held by the Strathgordon mob, being: (a) the descendants of Old Ned (Bungkuw); Manpungka (father of Shortjoe, Stan Monday and Wonhtha); the siblings Mimosa, Alison Yam and May Yam; Philip (father of Phil Coleman and Judy Killarney); Iinchar; Frank Yam; the siblings Polly (wife of Mustard and mother of Clara Sellars) and Lilly Boxer; and Jim Coleman; and (b) those persons adopted by those descendants in accordance with the traditional laws acknowledged and traditional customs observed by those descendants, (Native Title Holders). The nature and extent of native title rights and interests and exclusiveness of native title 3. Subject to paragraphs 4 and 5 the nature and extent of the native title rights and interests in relation to the Determination Area are: (a) except in relation to Water – the right of possession, occupation, use and enjoyment to the exclusion of all others; and (b) in relation to Water – non exclusion rights to: (i) hunt and fish in or on, and gather from, Water for the purpose of satisfying personal, domestic and non‑commercial communal needs; and (ii) take and use Water for the purpose of satisfying personal, domestic or non‑commercial communal needs. The native title in relation to Water does not confer possession, occupation, use and enjoyment of the Water on the Native Title Holders to the exclusion of all others. 4. The native title is subject to and exercisable in accordance with: (a) the Laws of the State and Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders. 5. There is no native title in: (a) 'minerals' as defined in the Mineral Resources Act 1989 (Qld); and (b) 'petroleum' as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). Nature and extent of any other interests 6. The nature and extent of other interests in relation to the Determination Area are the following as they exist at the date of this determination: (a) the rights and interests of the lessee and others under the term lease for pastoral purposes dated 1 July 1986 being Title Reference No. 17668134 comprising Lot 2 on Crown Plan 911380 and known locally as the Strathgordon Pastoral Lease; (b) the rights and interests of Telstra Corporation Limited: (i) as the owner and operator of telecommunication facilities installed within the Determination Area and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and (iii) for its employees, agents or contractors to access its telecommunication facilities in, and in the vicinity of the Determination Area, in the performance of their duties; (c) the rights and interests of the Cook Shire Council under its local government jurisdiction and functions and as an entity exercising statutory powers including its interests under an Indigenous Land Use Agreement dated 1 June 2007 between the Native Title Holders and the Cook Shire Council; (d) the rights and interests of the lessee of the Strathgordon Pastoral Lease, the Cook Shire Council, the State of Queensland, the applicant and the Native Title Holders under an Indigenous Land Use Agreement (known as the Strathgordon Roads Indigenous Land Use Agreement) dated 5 July 2007 between the Poonko/Strathgordon Aboriginal Corporation as lessee of the Strathgordon Pastoral Lease, the applicant, the Cook Shire Council and the State of Queensland; (e) the rights and interests of the Queensland Lapidary and Allied Craft Clubs Association under a licence issued pursuant to the Fossicking Act 1994 (Qld); (f) any other rights and interests held by the Crown or by reason of the force and operation of the laws of the State and the Commonwealth. Relationship between native title and other interests 7. The relationship between the native title and the other rights and interests described in paragraph 6 (other interests) is that: (a) to the extent that the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title, the native title continues to exist in its entirety but the native title has no effect in relation to the other rights and interests to the extent of the inconsistency for so long as the other interests exist; and (b) the doing of any activity that is required or permitted by or under the other interests or any activity that is associated with or incidental to such an activity and done in accordance with the other interests, prevails over the native title and any exercise of the native title but does not extinguish it. Definitions and interpretation 8. If a word or expression is not defined in this order and is defined in the Native Title Act 1993 (Cth), it has the meaning given to it in the Native Title Act 1993 (Cth). 9. In addition to the other words defined in this order: 'Determination Area' means the land and waters within the external boundary of Lot 2 on Crown Plan 911380, excluding the existing dedicated roads, as shown and described as Lot 1 on the Determination Plan AP14817 in Schedule 1; 'Laws of the State and the Commonwealth' means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; 'Water' means water as defined in the Water Act 2000 (Qld). AND THE COURT ORDERS THAT: 10. The native title is not to be held in trust. 11. Thaa-Nguigaar Strathgordon Aboriginal Corporation (Aboriginal Corporation) is to: (a) be the prescribed body corporate for the purposes 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 prescribed body corporate. 12. There be liberty to any party to apply in relation to matters arising out of Order 11 of these Orders. 13. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.