FEDERAL COURT OF AUSTRALIA Walker on behalf of the Eastern Kuku Yalanji People v State of Queensland [2007] FCA 1907 NATIVE TITLE – Determination for Eastern Kuku Yalanji People EILEEN WALKER, AGNES WALKER, JOHN WALKER JNR, HAZEL DOUGLAS AND PETER FISCHER ON THEIR OWN BEHALF AND ON BEHALF OF THE EASTERN KUKU YALANJI PEOPLE v STATE OF QUEENSLAND, COOK SHIRE COUNCIL, DOUGLAS SHIRE COUNCIL, WUJAL WUJAL ABORIGINAL SHIRE COUNCIL, TELSTRA CORP LTD, ERGON ENERGY CORPORATION LIMITED, ROBERT ALFRED HARLOW, ANDREW ALAN MARSHALL, RODERICK WILLIAM McLEAN, KEVIN JOHN BRANDT, TERRY ANNE ROGERS, ARNIFRIED BRENDECKE, ODETTE CATHERINE PHILLPOT, RUSSELL DAVID O'DOHERTY, VERNON JOHN GOODYEAR AND BURUNGU ABORIGINAL CORPORATION QUD 6008 OF 1998 ALLSOP J 9 DECEMBER 2007 DIWAN RESERVE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 6008 OF 1998 BETWEEN: EILEEN WALKER, AGNES WALKER, JOHN WALKER JNR, HAZEL DOUGLAS AND PETER FISCHER ON THEIR OWN BEHALF AND ON BEHALF OF THE EASTERN KUKU YALANJI PEOPLE Applicant AND: STATE OF QUEENSLAND First Respondent COOK SHIRE COUNCIL Second Respondent DOUGLAS SHIRE COUNCIL Third Respondent WUJAL WUJAL ABORIGINAL SHIRE COUNCIL Fourth Respondent TELSTRA CORP LTD Fifth Respondent ERGON ENERGY CORPORATION LIMITED Sixth Respondent ROBERT ALFRED HARLOW Seventh Respondent ANDREW ALAN MARSHALL Eighth Respondent RODERICK WILLIAM McLEAN Ninth Respondent KEVIN JOHN BRANDT Tenth Respondent TERRY ANNE ROGERS Eleventh Respondent ARNIFRIED BRENDECKE Twelfth Respondent ODETTE CATHERINE PHILLPOT Thirteenth Respondent RUSSELL DAVID O'DOHERTY Fourteenth Respondent VERNON JOHN GOODYEAR Fifteenth Respondent BURUNGU ABORIGINAL CORPORATION Sixteenth Respondent JUDGE: ALLSOP J DATE OF ORDER: 9 DECEMBER 2007 WHERE MADE: DIWAN RESERVE THE COURT NOTES THAT: A. The Applicant has brought native title determination application No QUD 6008 of 1998 ("the application") in relation to the Determination Area. B. The parties to the application ("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. C. Lot 156 on NR38, Lot 287 on SR864, Lot B on AP2630, that part of Lot 6 on USL8625 that was a road and that part of Lot 1 on USL8381 that was an esplanade are subject to previous exclusive possession acts and are excluded from the application in accordance with section 61A of the Native Title Act 1993 (Cth), and are excluded from the Determination Area. D. Lot 6 on USL8734 and Lot 1 on USL8733 are situated below the High Water Mark, and are excluded from the Determination Area. E. The parties have applied to the Court for a consent determination that native title exists in relation to the Determination Area. F. The parties acknowledge that the effect of this determination is that the Eastern Kuku 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. G. The traditional laws acknowledged and traditional customs observed by the Eastern Kuku Yalanji People include the authority as between Aboriginal people to: (a) resolve disputes about who is or who is not an Eastern Kuku Yalanji person; (b) determine as between Eastern Kuku Yalanji People what are the particular native title rights and interests that are held by particular Eastern Kuku Yalanji People in relation to particular parts of the Determination Area; (c) exclude particular Eastern Kuku Yalanji People 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 native title holders of adjoining areas where such assistance is necessary. 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, BY CONSENT THE COURT ORDERS, DECLARES AND DETERMINES THAT: 1. Native title exists in relation to the Determination Area. 2. The native title is held by the persons described in Schedule 1 ("the native title holders"). 3. Subject to orders 5, 6 and 8, the nature and extent of the native title rights and interests, other than in relation to Water, are: (a) in relation to that part of the Determination Area identified in Schedule 3, the rights to: (i) possession, occupation, use and enjoyment to the exclusion of all others; and (ii) inherit and succeed to the native title rights and interests referred to in order 3(a)(i). (b) in relation to that part of the Determination Area identified in Schedule 4, the non-exclusive rights to: (i) be present on, including by accessing, traversing and Camping on, the Determination Area; (ii) hunt Animals, gather Plants and take Natural Resources from the Determination Area, but not for the purposes of trade or commerce; (iii) conduct ceremonies on the Determination Area; (iv) be buried and to bury native title holders, by interment in the ground, within the Determination Area; (v) maintain Springs and wells in the Determination Area where underground Water rises naturally, for the sole purpose of ensuring the free flow of Water; (vi) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm; and (vii) the right to inherit and succeed to the native title rights and interests referred to in order 3(b)(i) to 3(b)(vi). 4. Subject to orders 5, 6 and 8, 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; (b) take, use and enjoy the Water for the purposes of satisfying personal, domestic and non-commercial communal needs; and (c) inherit and succeed to the native title rights and interests referred to in order 4(a) and 4(b). 5. There are no native title rights: (a) to gather Plants in relation to that part of the Determination Area identified in Schedule 5; (b) in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 6. 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. 7. The native title rights and interests referred to in orders 3(b) and 4 do not: (a) extend to a right to control access to or a right to control the use of the Determination Area; or (b) otherwise confer possession, occupation, use or enjoyment to the exclusion of all others. 8. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 6. 9. The relationship between the native title rights and interests described in orders 3 and 4, and the other rights and interests described in Schedule 6 (the "other rights and interests") is that: (a) the other rights and interests continue to have effect; (b) to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area identified in Schedule 3, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights to the extent of the inconsistency for so long as the other rights and interests exist; and (c) the other rights and interests and any activity that is required or 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 an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests, but will not extinguish them, except in relation to acts that consist of the construction or establishment of a public work, done after this determination, where section 24JA of the Native Title Act 1993 (Cth) applies. 10. The native title is held in trust. 11. The Jabalbina Yalanji Aboriginal Corporation, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of s 56(1) of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. 12. The words and expressions used in this determination 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" means "animal" as defined in the Nature Conservation Act 1992 (Qld), but does not include fish; "Camping" does not include permanent residence or the construction of permanent: (a) structures; or (b) fixtures; "Determination Area" means the land and waters within the area described in Part A of Schedule 2 and shown on the plan in Part B of Schedule 2 to this determination, and to the extent of any inconsistency between them, Part A of Schedule 2 prevails; "High Water Mark" has the meaning given in the Land Act 1994 (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 legislation, regulations, statutory instruments, local planning instruments and local laws; "Natural Resources" means any clays, soil, sand, gravel and rock on or below the surface of the Determination Area but does not include minerals as defined in the Minerals Resources Act 1989 (Qld) and petroleum as defined in the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "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; "Tidal Navigable River" has the meaning given in the Land Act 1994 (Qld); "Tidal Water" has the meaning given in the Land Act 1994 (Qld); and "Water" means water as defined by the Water Act 2000 (Qld) and Tidal Water. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. SCHEDULE 1 NATIVE TITLE HOLDERS In respect of the Determination Area, the common law holders are those people known as the Eastern Kuku Yalanji People. The Eastern Kuku Yalanji People are those Aboriginal people who are: a) descended from the following Eastern Kuku Yalanji Maja Maja Ngujakarimun (apical ancestors in descent groups): (i) Siblings Wawuyilkinga, Lily Kajakaja, Ulurban, Kurlur, Juwalkji, Jinabaji; (ii) Kilkil (Gilgil) and Yougie (Emera); (iii) Ngamubaralba; (iv) Jimmy Johnson Snr and his brothers Toby King and Peter King; (v) Brothers Billy King, Willie King 1 and Willie King 2; (vi) Siblings Nambaji, Bijun (Dangara) and Jimmy (Mandilba) Rossville; (vii) Old Man Jimmy and Sarah; (viii) Kurukuna and Nellie; (ix) Bluja King Kunarra and his three wives Ngingkibaji #1 and Ngingkibaji #2, and Baral-Baral; (x) Dimbanga and Mara Baril Baril; (xi) Sisters Mujala and Rosie; (xii) Brothers Dickie Springvale and Mundy Nunn; (xiii) Jilngarr; (xiv) Burradi and Wawu Dimbi; (xv) Siblings Jimmy, Polly (Jukura), Nellie (Wuynkul-baka), Charlie (Junjurr or Munjurr), Lily (Jabi or Chubby) Blanket; (xvi) Rosie Gurrmurragudgee; (xvii) Brothers George Doughboy, Toby Bloomfield and Peter Bloomfield (Kalka Jurungu); (xviii) Brothers Charlie Ball (Dirrakari) and Billy Collins and Davey Douglas and Sandy Peterson; (xix) Isabella Henderson (Wawu-kuwa) (xx) Ginny Bamboo; (xxi) Siblings Archibald (Bauly) Mossman, Jessie Mossman (Bawanya) and Billy Mossman; (xxii) Siblings Jessie Buchanan (Babi Milbija or Narrijinya) and King Charlie Diamond; (xxiii) Henry Bloomfield; (xxiv) Yangki and Buji; (xxv) Willy Ngamu-Darrba and his two wives Molly Kalumba and Yimaday; (xxvi) Kalkamanangu and Duraja; (xxvii) Kalkaymba; (xxviii) Rosie Maund Jankarji and her husbands Tommy Jinjarrba Lefthand, Tommy Ngangkun Johnson (Buchanan), Barney Lunn (Lund), Billie Lunn (Lund) and Tommy Jindalman Hide; (xxix) Big Friday Ngamu-Ngulmbay and Ruby; (xxx) Leslie Yerry; (xxxi) Brothers King Toby and Old Man Toby (Jinjirrba); (xxxii) Maggie Queen; (xxxiii) Siblings Miliji, Kalkabinda, Kuruwuja, Peter Smith (Marray-Marray or Murranbi or Jinakulu); (xxxiv) Kitty Wulbar (Maymi); (xxxv) Rosie Rosie; (xxxvi) Brothers Old Man Juwalba (Willie Cross-eye) and Wunbu Cross-eye; (xxxvii) Jimmy Mossman; (xxxviii) Wabaji; (xxxix) Old Kokoe ; (xl) Charlie Ogilvie and Maggie; (xli) Old Man Yorkey and Rosie; (xlii) George Mero; (xliii) Old Man Kooka and Maudie; (xliv) Jerry Wotton and Frances Diamond; or b) recruited by adoption, in accordance with the traditional laws and customs of the Eastern Kuku Yalanji People. SCHEDULE 2 DETERMINATION AREA PART A: Determination Area Description The Determination Area comprises all of the land and waters described in the following table, to the extent that the area is above the High Water Mark: Lot on Determination Plan AP14233 Area Description 1 and 9 (pt) Lot 165 on FTY 1722 (formerly described as Lot 165 on FTY 1542), excluding: Lot B on SR859 Lot 1 on ML3071 Lot 544 on OL133 Lot 1 on MC3294 Lot A on SR775 Lot B on SR775 Lot 1 on MC2800 Lot 1 on MC2801 Lot 1 on MC2802 Lot 1 on MC2797 Lot 1 on ML5404 Lot 1 on MC2799 Lot B on AP2630 Lot 161 on CP893403 Lot A on SP139257 Lot W on AP6994 Lot C on SR888 Lot L on SR889 Lot C on BS280 Lot 1 on MC2086 Lot 3 on SR576 Lot N on BS801687 20 Lot 78 on FTY 809 9 (pt) Lot 173 on BK 15769 9 (pt) Lot 15 on USL 8844 9 (pt) Lot 7 on SR 235 9 (pt) Lot 1 on USL 8838 9 (pt) Lot 226 on BK 15769 9 (pt) Lot 272 on BK 15780 39 Lot 206 on FTY 1322 41 Lot 6 on USL8625, excluding that part previously a road 50 Lot 6 on USL 8931 (formerly described as Lot A on FTY1583 and Lot A on FTY1606) 49 Lot 44 on USL 8667 47 Lot 5 on USL 8735 34 Lot 4 on USL 8888 33 Lot 2 on USL 8832 31 Lot 3 on USL 8832 32 Lot 4 on USL 8832 29 Lot 3 on USL 8888 30 Lot 6 on USL 8888 19 Lot 15 on USL 8831 17 and 18 Lot 79 on SR 845, excluding Lot 1 on CP891017 14 Lot 5 on USL 8841 15 Lot 7 on USL 8841 16 Lot 8 on USL 8841 11 and 12 Part of Lot 50 on AP7008 (formerly described as Lot 82 on USL8943 and Lot 83 on USL8943) 10 Lot 84 on USL 8943 8 Lot 21 on USL 8500 7 Lot 2 on USL 8491 5 Lot 20 on SR 505, excluding Lot 20 on SR857 2 Lot 4 on USL 8462 3 Lot 7 on USL 8462 4 Lot 1 on USL 8381, excluding that part that was an esplanade 6 Lot 20 on USL 8398 13 Lot 47 on SR 841 21 Lot 2 on USL 8897 36 Lot 19 on USL 8901 37 Lot 23 on USL 8901 38 Lot 58 on USL 8901 22 Lot 1 on USL 8848 24 Lot 17 on USL 8892 25 Lot 104 on USL 20207 26 Lot 21 on USL8885 27 Lot 22 on USL 8885 28 Lot 23 on USL 8885 35 Lot 29 on USL 8889 40 Lot 97 on USL 8922 42 Lot 8 on USL 8626 43 (pt) Lot 1 on USL 8767 48 (pt) Lot 165 on N157119 48 (pt) Lot 166 on N157119 48 (pt) Lot 167 on N157119 43 (pt) Lot 1 on USL 8764 44 Lot 1 on AP8350 (formerly described as part of Lot 1 on USL8787) 45 Lot 2 on AP8350 (formerly described as part of Lot 1 on USL8787) 46 Lot 3 on AP8350 (formerly described as part of Lot 1 on USL8787) 23 Lot 19 on USL 8892 9 (pt) Lot D on SR 876 9 (pt) Lot 43 on SR 804 1 (pt) Lot A on SR 518 1 (pt) Lot M on BS 289 1 (pt) Lot 9 on BS158 1 (pt) Lot 60 on BS158 PART B: Determination Plan SCHEDULE 3 EXCLUSIVE AREAS The land and waters in the following table, being areas to which s 47B of the Native Title Act 1993 (Cth) applies, to the extent that the area is above the High Water Mark: Lot on Determination Plan AP14233 Area Description 20 Lot 78 on FTY 809 9 (pt) Lot 173 on BK 15769 9 (pt) Lot 15 on USL 8844 9 (pt) Lot 7 on SR 235 9 (pt) Lot 1 on USL 8838 9 (pt) Lot 226 on BK 15769 9 (pt) Lot 272 on BK 15780 39 Lot 206 on FTY 1322 41 Lot 6 on USL8625, excluding that part previously a road 50 Lot 6 on USL 8931 (formerly described as Lot A on FTY1583 and Lot A on FTY1606) 49 Lot 44 on USL 8667 47 Lot 5 on USL 8735 14 Lot 5 on USL 8841 15 Lot 7 on USL 8841 16 Lot 8 on USL 8841 11 and 12 Part of Lot 50 on AP7008 (formerly described as Lot 82 on USL8943 and Lot 83 on USL8943) 10 Lot 84 on USL 8943 8 Lot 21 on USL 8500 7 Lot 2 on USL 8491 5 Lot 20 on SR 505, excluding Lot 20 on SR857 13 Lot 47 on SR 841 21 Lot 2 on USL 8897 36 Lot 19 on USL 8901 37 Lot 23 on USL 8901 38 Lot 58 on USL 8901 40 Lot 97 on USL 8922 43 (pt) Lot 1 on USL 8767 48 (pt) Lot 165 on N157119 48 (pt) Lot 166 on N157119 48 (pt) Lot 167 on N157119 43 (pt) Lot 1 on USL 8764 44 Lot 1 on AP8350 (formerly described as part of Lot 1 on USL8787) 45 Lot 2 on AP8350 (formerly described as part of Lot 1 on USL8787) 46 Lot 3 on AP8350 (formerly described as part of Lot 1 on USL8787) and the land and waters in the following table, to the extent that the area is above the highest astronomical tide, as defined by the Marine Parks Regulation 1990 (Qld), and above the High Water Mark: Lot on Determination Plan AP14233 Area Description 34 Lot 4 on USL 8888 33 Lot 2 on USL 8832 31 Lot 3 on USL 8832 32 Lot 4 on USL 8832 29 Lot 3 on USL 8888 30 Lot 6 on USL 8888 19 Lot 15 on USL 8831 17 and 18 Lot 79 on SR 845, excluding Lot 1 on CP891017 2 Lot 4 on USL 8462 3 Lot 7 on USL 8462 4 Lot 1 on USL 8381, excluding that part that was an esplanade 6 Lot 20 on USL 8398 22 Lot 1 on USL 8848 24 Lot 17 on USL 8892 25 Lot 104 on USL 20207 26 Lot 21 on USL8885 27 Lot 22 on USL 8885 28 Lot 23 on USL 8885 23 Lot 19 on USL 8892 SCHEDULE 4 NON-EXCLUSIVE AREAS The land and waters in the following table, to the extent that the area is above the High Water Mark: Lot on Determination Plan AP14233 Area Description 1 and 9 (pt) Lot 165 on FTY 1722 (formerly described as Lot 165 on FTY 1542), excluding: Lot B on SR859 Lot 1 on ML3071 Lot 544 on OL133 Lot 1 on MC3294 Lot A on SR775 Lot B on SR775 Lot 1 on MC2800 Lot 1 on MC2801 Lot 1 on MC2802 Lot 1 on MC2797 Lot 1 on ML5404 Lot 1 on MC2799 Lot B on AP2630 Lot 161 on CP893403 Lot A on SP139257 Lot W on AP6994 Lot C on SR888 Lot L on SR889 Lot C on BS280 Lot 1 on MC2086 Lot 3 on SR576 Lot N on BS801687 35 Lot 29 on USL 8889 42 Lot 8 on USL 8626 9 (pt) Lot D on SR 876 9 (pt) Lot 43 on SR 804 1 (pt) Lot A on SR 518 1 (pt) Lot M on BS 289 1 (pt) Lot 9 on BS158 1 (pt) Lot 60 on BS158 and the land and waters in the following table, to the extent that the area is below the highest astronomical tide, as defined by the Marine Parks Regulation 1990 (Qld), and above the High Water Mark: Lot on Determination Plan AP14233 Area Description 34 Lot 4 on USL 8888 33 Lot 2 on USL 8832 31 Lot 3 on USL 8832 32 Lot 4 on USL 8832 29 Lot 3 on USL 8888 30 Lot 6 on USL 8888 19 Lot 15 on USL 8831 17 and 18 Lot 79 on SR 845, excluding Lot 1 on CP891017 2 Lot 4 on USL 8462 3 Lot 7 on USL 8462 4 Lot 1 on USL 8381, excluding that part that was an esplanade 6 Lot 20 on USL 8398 22 Lot 1 on USL 8848 24 Lot 17 on USL 8892 25 Lot 104 on USL 20207 26 Lot 21 on USL8885 27 Lot 22 on USL 8885 28 Lot 23 on USL 8885 23 Lot 19 on USL 8892 SCHEDULE 5 no native title right to GAther plants The land and waters in the following table, to the extent that the area is below the highest astronomical tide, as defined by the Marine Parks Regulation 1990 (Qld), and above the High Water Mark: Lot on Determination Plan AP14233 Area Description 34 Lot 4 on USL 8888 33 Lot 2 on USL 8832 31 Lot 3 on USL 8832 32 Lot 4 on USL 8832 29 Lot 3 on USL 8888 30 Lot 6 on USL 8888 24 Lot 17 on USL 8892 26 Lot 21 on USL8885 27 Lot 22 on USL 8885 28 Lot 23 on USL 8885 23 Lot 19 on USL 8892 SCHEDULE 6 Other interests (a) the interests of the State of Queensland under the Forestry Act 1959 (Qld) and subordinate legislation relating to the use and management of Lot 1 on AP14233 and part of Lot 9 on AP14233; (b) the rights and interests of 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; (c) the rights and interests of the Douglas 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; (d) the rights and interests of Telstra Corporation Limited, being: (i) rights and interests as the owner or operator of telecommunications facilities installed within the Determination Area, including customer radio terminals and optic fibre and local distribution cabling, and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (ii) rights and interests created under 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); (iii) rights of access over the Determination Area by employees, agents or contractors of Telstra Corporation Limited to its telecommunications facilities in, and in the vicinity, of the Determination Area in the performance of their duties; (e) the rights and interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity transmission and distribution facilities within the Determination Area; (f) the rights and interests of the parties to the following agreements, under those agreements: (i) Eastern Yalanji, Queensland and WTMA (Freehold Grants) Indigenous Land Use Agreement executed on 19 March 2007; (ii) Eastern Yalanji, Queensland and WTMA (National Parks) Indigenous Land Use Agreement executed on 19 March 2007; (iii) Eastern Yalanji, Queensland and DSC Indigenous Land Use Agreement executed on 19 March 2007; (iv) Eastern Yalanji and DSC Indigenous Land Use Agreement executed on 6 March 2007; (v) Eastern Yalanji, Queensland and CSC Indigenous Land Use Agreement executed on 19 March 2007; (vi) Eastern Yalanji and CSC Indigenous Land Use Agreement executed on 6 March 2007; (vii) Eastern Yalanji, Queensland and WWASC Indigenous Land Use Agreement executed on 19 March 2007; (viii) Eastern Yalanji, Queensland and BAC Indigenous Land Use Agreement executed on 19 March 2007; (ix) Eastern Yalanji, Queensland and BMAC Indigenous Land Use Agreement executed on 19 March 2007; (x) Eastern Yalanji, Queensland and Harlow Indigenous Land Use Agreement executed on 19 March 2007; (xi) Eastern Yalanji, Queensland and Marshall Indigenous Land Use Agreement executed on 19 March 2007; (xii) Eastern Yalanji, Queensland and Brandt Indigenous Land Use Agreement executed on 19 March 2007; (xiii) Eastern Yalanji, Queensland and McLean Indigenous Land Use Agreement executed on 19 March 2007; (xiv) Eastern Yalanji and Telstra Indigenous Land Use Agreement executed on 6 March 2007; and (xv) Eastern Yalanji and Ergon Indigenous Land Use Agreement executed on 20 March 2007; (g) the rights and interests of the holders of the following special leases granted under the Land Act 1962 (Qld)and the Forestry Act 1959 (Qld): (i) SL14/50125 for primary industry (grazing) purposes in relation to part of Lot 9 on AP14233; (ii) SL14/47767 for primary industry (grazing) purposes in relation to part of Lot 9 on AP14233; (iii) SL14/50020 for primary industry (grazing) purposes in relation to part of Lot 1 on AP14233; (iv) SL14/50795 for primary industry (grazing) purposes in relation to part of Lot 1 on AP14233; and (v) TL231001 for grazing purposes in relation to part of Lot 1 on AP14233; (h) the rights and interests of the holders of the following interests granted under the Mineral Resources Act 1989 (Qld): (i) mining leases ML2796, ML2827, ML3065, ML3066, ML3067, ML3068, ML3069 and ML3070; and (ii) mineral development licences MDL111 and MDL112; (i) 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), and 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; (j) any rights and interests of the holder of an authority issued under the Fisheries Act 1994 (Qld) that authorises a commercial fishing operation in the Water of the Determination Area as may be current at the date of this determination; (k) the rights and interests of the holders of the following licences issued under the Water Act 2000 (Qld): (i) 35843K in relation to Lot 1 on AP14233; (ii) 46817K in relation to Lot 1 on AP14233; (iii) 35939K in relation to Lot 9 on AP14233; (iv) 36167K in relation to Lot 1 on AP14233; (v) 46683K in relation to Lot 1 on AP14233; (vi) 46764K in relation to Lot 1 on AP14233; (vii) 48267K in relation to Lot 1 on AP14233; (viii) 49996K in relation to Lot 1 on AP14233; (ix) 49997K in relation to Lot 1 on AP14233; (x) 49998K in relation to Lot 1 on AP14233; (xi) 53604K in relation to Lot 1 on AP14233; and (xii) 55316K in relation to Lot 1 on AP14233; (l) the rights and interests of the holder of a licence, permit, permission or other authority in relation to the Determination Area as may be current at the date of this determination, under the Forestry Act 1959 (Qld), the Marine Parks Regulation 1996 (Qld), or the Maine Park (Great Barrier Reef Coast) Zoning Plan 2004 (Qld); (m) the public right to fish in any Tidal Water and to navigate in any Tidal Navigable River within the Determination Area; and (n) any other rights and interests held by the State or Commonwealth, or by reason of the force and operation of the laws of the State or the Commonwealth, as may be current at the date of this determination. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 6008 OF 1998 BETWEEN: EILEEN WALKER, AGNES WALKER, JOHN WALKER JNR, HAZEL DOUGLAS AND PETER FISCHER ON THEIR OWN BEHALF AND ON BEHALF OF THE EASTERN KUKU YALANJI PEOPLE Applicant AND: STATE OF QUEENSLAND First Respondent COOK SHIRE COUNCIL Second Respondent DOUGLAS SHIRE COUNCIL Third Respondent WUJAL WUJAL ABORIGINAL SHIRE COUNCIL Fourth Respondent TELSTRA CORP LTD Fifth Respondent ERGON ENERGY CORPORATION LIMITED Sixth Respondent ROBERT ALFRED HARLOW Seventh Respondent ANDREW ALAN MARSHALL Eighth Respondent RODERICK WILLIAM McLEAN Ninth Respondent KEVIN JOHN BRANDT Tenth Respondent TERRY ANNE ROGERS Eleventh Respondent ARNIFRIED BRENDECKE Twelfth Respondent ODETTE CATHERINE PHILLPOT Thirteenth Respondent RUSSELL DAVID O'DOHERTY Fourteenth Respondent VERNON JOHN GOODYEAR Fifteenth Respondent BURUNGU ABORIGINAL CORPORATION Sixteenth Respondent JUDGE: ALLSOP J DATE: 9 DECEMBER 2007 PLACE: DIWAN RESERVE REASONS FOR JUDGMENT 1 This proceeding arises out of an application for a determination of native title made by Agnes Walker, Eileen Walker, Peter Fischer, John Walker Jnr and Hazel Douglas on behalf of the Eastern Kuku Yalanji People. 2 The Determination Area covers approximately 144,000 hectares of unallocated state land and timber reserve in Far North Queensland, with some 62 separate parcels of land, and incorporates an area of tropical rain forests, beaches, reefs and mountain ranges between Mossman in the south, the Annan River (south of Cooktown) in the north and the Great Dividing Range to the west, and includes Yalanji communities at Wujal Wujal and Mossman. It also includes the Daintree, Cape Tribulation, Black Mountain and Cedar Bay national parks. The claimed parcels fall within an area which is located within the Wet Tropics Bioregion and which is of international significance due to its outstanding natural and cultural values. The majority of the area is within the Daintree River catchment, and also spans a number of other catchments include the Endeavour River, Normanby River, Mitchell River and the Mossman River. BACKGROUND 3 This application was first lodged with the National Native Title Tribunal ("the Tribunal") on 7 December 1994 pursuant to s 61(1) of the Native Title Act 1993 (Cth) ("the Act"). On 30 September 1998, by force of amendments to the Act, all applications lodged with the Tribunal became proceedings filed in the Court. (The expression "native title" used in these reasons is only used because of the need to reflect the terms of the Act.) 4 A notice of motion to amend the application was filed in the Court on 26 August 1999. Leave to amend the original application was granted by order of Spender J on 6 September 1999. The extensive amendments included changes in the composition of the Applicant group and the native title claim group, the identification of boundaries, the description of the native title rights and interests and current activities of the native title claim group, land and tenure issues and the authorisation process. 5 A further notice of motion to amend the application was filed in the Court on 24 March 2004. By order on 17 May 2004, I granted leave to amend the first amended application. The amendments included further refinement of the earlier amendments in 2004. 6 A third notice of motion to amend the application was filed in the Court on 5 September 2007. Leave was granted on 12 September 2007 to amend the application and on 21 November 2007, the amended application was filed. This 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. 7 The Tribunal gave notice of the application pursuant to and in accordance with s 66 of the Act. Following the closing of the notification period on 31 July 1995, the application was deemed to be in mediation with National Native Title Tribunal. Thereafter, at various times, parties applied, and were permitted, to be joined as respondents to the proceeding. 8 The matter was substantively allocated to my docket in June 2002. Subsequently, I referred the proceeding for closer case management by Registrars of the Court to facilitate a narrowing of issues in dispute and, if possible, achieve a resolution of the claim. The process of mediation in the Tribunal was supplemented with this case management by Court Registrars. I wish to pay particular thanks to Deputy District Registrar Robson who invested not only much time, but also considerable personal energy and commitment to the advancement of the resolution of the proceeding. The resolution of this proceeding is attributable, not a little, to his capacity to deal with resolving the particular difficulties faced at the level of professional engagement. Deputy District Registrar Fewings has continued his work. Close appreciation of their work in this proceeding allows it to be confidently stated that the work of the Court while the proceeding was in mediation was essential to the consensual outcome. 9 The parties have now reached agreement upon the terms of a draft determination which is the subject of these reasons and orders in this proceeding. 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 The agreement reached between the parties confers both exclusive and non-exclusivenative titlerights and interests on the Eastern Kuku Yalanji People to use and enjoy the land and waters in the Determination Area. Order 3 of the proposed determination sets out the exclusive rights (s 225(e) of the Act) and non-exclusive rights (s 225(b) of the Act) as follows: 3. Subject to orders 5, 6 and 8, the nature and extent of the native title rights and interests, other than in relation to Water are: (a) in relation to that part of the Determination Area identified in Schedule 3, the rights to: (i) possession, occupation, use and enjoyment to the exclusion of all others; and (ii) inherit and succeed to the native title rights and interests referred to in order 3(a)(i). and the non-exclusive rights in relation to that part of the Determination Area identified in Schedule 4, are to: (i) be present on, including by accessing, traversing and Camping on, the Determination Area; (ii) hunt Animals, gather Plants and take Natural Resources from the Determination Area but not for the purposes of trade or commerce; (iii) conduct ceremonies on the Determination Area; (iv) be buried and to buy native title holders, by interment in the ground, within the Determination Area; (v) maintain Springs and wells in the Determination Area where underground Water rises naturally, for the sole purpose of ensuring the free flow of Water; (vi) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and area, by lawful means, from physical harm; and (vii)the right to inherit and succeed to the native title rights and interests referred to in order 3(b)(i) to 3(b)(vi) . 11 The Court has also been invited to note that the traditional laws acknowledged and the traditional customs observed by the Eastern Kuku Yalanji People include the authority as between Aboriginal people as follows: (a) to resolve disputes about who is or who is not an Eastern Kuku Yalanji person; (b) to determine as between Eastern Kuku Yalanji People what are the particular native title rights and interests that are held by particular Eastern Kuku Yalanji People in relation to particular parts of the Determination Area; (c) to exclude particular Eastern Kuku Yalanji People from the exercise of particular native title rights and interests in relation to particular parts of the Determination Area; and (d) to resolve disputes between Aboriginal people concerning native title rights and interests in relation to the Determination Area, with the assistance of native title holders of adjoining areas where such assistance is necessary. POWER OF THE COURT 12 Pursuant to ss 13 and 81 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. 13 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. 14 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, they being: (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 15 I have considered the affidavit of Mr Cordell Scaife, a solicitor employed by Cape York Land Council, filed on 3 August 2007. Attached to Mr Scaife's affidavit is a helpful summary report entitled Anthropological Overview Report by Mr Peter Blackwood, a consultant anthropologist, and prepared for the Cape York Land Council. Mr Blackwood has addressed the evidentiary requirements of s 225 of the Act in his report, which is a comprehensive summary of anthropological research undertaken in the claim area relevant to the connection of the Eastern Kuku Yalanji claim group to the Determination Area. He has undertaken a chronological overview of the primary written sources, including the work of anthropologists who have worked extensively with indigenous communities in Cape York. He has looked at the impact of European settlement on the continuity of Yalanji connection and contemporary social organisation. I express my gratitude to him for his careful elucidation of the history of the Yalanji people. I commend the affidavit to anyone interested in gaining a familiarity with the deep and long standing connection of the Yalanji people with country claimed. 16 The report of Mr Blackwood illustrates, 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. This identifiable society is primarily identified by the principle of cognatic descent with an emphasis on patrilineal descent. Descent is traced from persons and groups recognised in the regional Aboriginal community as associated with Eastern Kuku Yalanji identity, and with the claim area, soon after European occupation. 17 Mr Blackwood writes: Eastern Yalanji country comprises the drainage system falling eastwards from the Great Dividing Range to the Coral Sea within the catchments of Mossman, Daintree, Bloomfield and upper Annan Rivers. Along the coast it extends from the Mossman valley in the south to approximately Mt Amos and the Black Mountain in the north. The river catchments are significant for Eastern Yalanji social organisation, as groupings of clans associated with the catchment basins comprise the primary land using units of the group's traditional system of land tenure. Eastern Yalanji are recognised as the traditional owners and occupiers of this land within the regional system of Aboriginal law and custom held among the group of neighbouring language tribes of south east Cape York Peninsula. Mr Blackwood goes on: Though Kuku Yalanji now live either in a few concentrated settlements such as Wujal Wujal and Mossman Gorge community, or interspersed in predominantly European towns, such as Mossman or Cooktown, or Aboriginal communities such as Hope Vale where other language groups predominate, this pattern of organisation based upon catchment clusters continues to be an outstanding principle of Eastern Kuku Yalanji society, identity and traditional land tenure. This involves Kuku Yalanji, for example, retaining connections to specific sites of significance, such as birth sites, burial sites and mythological sites, even where these may today stand in the middle of cane fields and other private property. Mr Blackwood continues: Yalanji land law is embedded within the regional system of law and custom which is shared with the neighbouring language names tribes in the South East York Peninsula. Within this regional system, Yalanji are recognised as the Aboriginal owners and occupiers of the coastal land between the upper Annan and Mossman Valleys. The regional system is the jural society which ultimately and in a practical sense validates Yalanji title and occupancy to this tract of land. From this perspective, the native title rights and interests held by the Eastern Kuku Yalanji are embedded not just in laws and customs integral to their particular kuku language or tribal group, but are consistent with the laws and customs of all groups in the region, for all ultimately are drawn from a common system of law and custom which generates shared values and cultural models among neighbouring groups. Eastern Kuku Yalanji have their own word for this law, Ngujakura, which in the local English vernacular is expressed as "Bama law" or "Aboriginal law"… In describing the Eastern Kuku Yalanji's claim to the area, Mr Blackwood states: Rights to land and waters within a territory, to its occupancy, the use of its resources and to exclude others for sharing these rights derive ultimately from the law and custom established by the Ngujakura, according to which people, species, cultural practices and languages are distributed and implanted on earth. And: The idea that the Ngujakura law bequeaths possession through the creation of a bond of belonging, with the corollary rights to both exclude others or to grant them permission, is one which is evident in the claims, aspirations and efforts of Kuku Yalanji people to keep and/or to regain their land, as these have been recorded at various times in the past. 18 Whilst these are the expression of the Court's reasons for being satisfied that it is appropriate to make the declarations and orders sought by the parties, it is appropriate to place these views of Mr Blackwood in their historical context. This reveals the forces against which the traditional laws, customs and organisation have had to struggle to maintain the connection of the Yalanji people with country. 19 The early maritime explorers such as Cook (1770), Flinders (1802), Jeffereys (1815) and King (1819) made no serious challenge to the indigenous inhabitants of the coast of far north Queensland. Land exploration by Europeans began in the early 1870s. Gold discovery in the Palmer River led to a rush to North Queensland, though not in the immediate area of Eastern Kuku Yalanji country. Timber getters and tin miners did, however, push into Yalanji country. The effects of the tin miners were less destructive of the indigenous communities than gold miners. Tin mining was more stable in its activity and Kuku Yalanji groups became important participants in the industry. 20 More difficulty to the Yalanji, however, came with the influx of selectors, pastoralists and sugar cane growers. The intrusion of these Europeans into wider areas of Kuku Yalanji land caused deep resentment and violence. This led to Government policies to manage hostilities such as "letting in" onto selection, providing rations and the development of residential camps. 21 From the mid-1880s, missions such as Bloomfield and Mossman, camps developed in association with them and reserves dominated and restricted Aboriginal movement. 22 Forced relocation of families continued well into the modern era, touching members of the claim group. 23 Through all this buffeting by others, the evidence makes clear that Yalanji law, including land law and Yalanji custom, survived, underpinning the continued connection of the Yalanji people with country. Thus, Mr Blackwood was able to conclude from the evidence before him that: …despite approximately 130 years of European settlement on their lands, the Eastern Kuku Yalanji people have maintained both a physical and a spiritual connection to their land, and that the latter, in particular, continues to be located within active system of Bama law which the basis of traditional title and that this has remained substantially unchanged throughout the post-settlement period. 24 In examining Mr Blackwood's report, I am conscious that other experienced lawyers, 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. There has also been close participation, if I may use that expression, by the other respondents to the proceeding. There have been 15 Indigenous Land Use Agreements that have dealt with various grants of Aboriginal freehold and the creation of national parks and conservation reserves, the exercise of native title rights and interests in conservation areas and the development of infrastructure by local government, Telstra and Ergon Energy. 25 In that context, and in the absence of contest about the material which has been placed before me, it is appropriate that I act on the material of Mr Blackwood 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 Eastern Kuku Yalanji People have a long standing connection to the Determination Area under traditional laws acknowledged and observed by them. ORDERS AND DETERMINATION 27 It is necessary 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. 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. 29 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. The respondent parties are satisfied and have 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 Eastern Kuku Yalanji People. 30 Paragraph 225(c) deals with the nature and extent of any other interests in relation to the Determination Area. This is set out in Schedule 6 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. 31 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. 32 Paragraph 225(e) deals with the question of exclusion of others. Order 7 deals with this. The native title rights and interests the subject of orders 3(b) and 4 (but not 3(a)) do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of all others in relation to the entire claim area. 33 The orders, which are consistent with the terms agreed by the parties, recognise that the Eastern Kuku Yalanji People, as the common law holders of the native title in the Determination Area, are entitled to some exclusive, as well as 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. 34 The parties to the proceeding acknowledge that s 47B of the Act applies to the land and waters identified in Schedule 3 of the determination. The Act provides that any acts of prior extinguishment over those areas must be disregarded 35 Section 55 of the Act requires the Court to either make a determination where the native title is held on trust as contemplated by s 56 of the Act or a determination for the purposes of s 57 of the Act. Section 56 of the Act provides: (1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom. Steps in making determination (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and (c) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders. 36 The parties have agreed in the determination that the native title rights and interests are to be held in trust, and the Applicant has nominated the Jabalbina Yalanji Aboriginal Corporation ("the Corporation") to be the prescribed body corporate for the purposes of s 56(1) of the Act and perform the functions mentioned in s 57(1) of the Act after becoming a registered native title body corporate. 37 Mr Cordell Scaife, a solicitor employed by Cape York Land Council, filed an affidavit on 21 November 2007, in which he says that the Corporation will hold the native title of the Eastern Kuku Yalanji common law holders on trust. A criterion for membership of the Corporation is described in the same terms as the composition of the Eastern Kuku Yalanji native title claim group. The Corporation was registered by the Registrar of Aboriginal Corporations on 5 October 2007 and at the first general meeting of the Corporation, the members voted unanimously that the Corporation should act as the Prescribed Body Corporate for those people determined to be the native title holders in the Eastern Kuku Yalanji native title claim. Mr Scaife annexes to his affidavit a copy of the rules of the Corporation and the Certificate of Incorporation. I am satisfied that the native title rights and interests are to be held on trust by the Jabalbina Yalanji Aboriginal Corporation for the common law holders of the native title. 38 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 make those orders. 39 This is a very significant day for the parties, most particularly, of course, for the applicant and the claim group. The recognition of native title takes place under the Act. It is the clear, solemn and final recognition by Australia and its laws of the reality of historical occupation of country by the Kuku Yalanji people and of the existence of their laws and customs long, long before European settlement. 40 It has, also, another importance. If I may be permitted to say, this recognition of the long existing rights of the Kuku Yalanji people is not only an event of enduring importance for them, the applicant and the claim group, but also it is an event of enduring importance for all Australians. This is so, because it is part of the creation of a new national legacy within the framework of the laws of Australia. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 9 December 2007 Counsel for the Applicant: Ms S Phillips Solicitor for the Applicant: Ms M Stinton and Mr C Scaife as solicitors employed by the Cape York Land Council Solicitor for the First Respondent and agent for the Fifth Respondent: Ms M Gittins Crown Law Solicitor for the Second, Third and Sixth Respondents: Mr A Kerr MacDonnells Solicitors Solicitor for the Fourth and Sixteenth Respondent: Mr M Neal p&e Law Solicitor for the Seventh to Fifteenth Respondents: Mr D Kempton Date of Determination: 9 December 2007