Ngadjon-Jii People v State of Queensland [2007] FCA 1937

FEDERAL COURT OF AUSTRALIA

Ngadjon-Jii People v State of Queensland [2007] FCA 1937

NATIVE TITLE – consent determination – whether order under s 87 Native Title Actappropriate ` Native Title Act 1993 (Cth) VERA FLORENCE KETCHELL, ERNIE DOUGLAS RAYMONT, STANLEY THOMAS MORTA, ELSIE ELIZABETH GO SAM, YVONNE SHIRLEY CANENDO, ENA EILEEN GERTZ, GRACE KIDNER, MARGARET PATRICIA RAYMONT and ILA ELIZABETH KIDNER on their own behalf and on behalf of the NGADJON-JII PEOPLE v STATE OF QUEENSLAND, CAIRNS CITY COUNCIL, EACHAM SHIRE COUNCIL AND ERGON ENERGY CORPORATION LIMITED QUD 6027 OF 1999

SPENDER J

12 DECEMBER 2007

MALANDA IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 6027 OF 1999

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

Applicant

AND: STATE OF QUEENSLAND

First Respondent

CAIRNS CITY COUNCIL

Second Respondent

EACHAM SHIRE COUNCIL

Third Respondent

ERGON ENERGY CORPORATION LIMITED

Fourth Respondent

JUDGE: SPENDER J DATE OF ORDER: 12 DECEMBER 2007

WHERE MADE: MALANDA

THE COURT NOTES THAT:

A. On 14 October 1999, the Applicant filed a native title determination application Q6027 of 1999 ("the Application") in relation to land and waters. B. The parties have reached an agreement as to the terms of a determination of native title to be made in relation to the land and waters covered by the Application. C. The area covered by the Application is approximately 13,287 hectares of land and waters in the far north of the State of Queensland (the "Determination Area"). The Determination Area is the land and waters described in Schedule 1. D. The Determination Plan shows the Determination Area. E. The parties accept that the effect of the determination is that the Ngadjon-Jii People, in accordance with the traditional laws acknowledged and the traditional customs observed by them, are recognised as the Native Title Holders for the Determination Area. F. The parties acknowledge that the Ngadjon-Jii People have a long-standing strong connection to the Determination Area under traditional laws acknowledged and traditional customs observed by them. G. The parties have agreed to make application to the Federal Court of Australia for a determination that native title exists in relation to the land and waters covered by the Application. Being satisfied that the determination of native title in the terms sought by the parties is within the power of the Court, and it appearing to the Court to be appropriate to do so: THE COURT DETERMINES BY CONSENT THAT: Existence of native title 1. Native title exists in relation to the land and waters described in Schedule 1 ("the Determination Area"). Native title holders 2. The native title is held by the persons described in Schedule 2 (the "Native Title Holders"). The nature and extent of native title rights and interests 3. Subject to paragraphs 4, 5, 6, 8 and 9 the nature and extent of the native title rights and interests in relation to the Determination Area, except in relation to Water, are as follows: 3.1 In relation to the land and waters referred to in Part A of Schedule 1, the native title is a right of the Native Title Holders in accordance with traditional laws and customs to possession, occupation, use and enjoyment to the exclusion of all others. 3.2 In relation to the land and waters referred to in Part B and Part C of Schedule 1, non-exclusive rights of the Native Title Holders to use and enjoy the land and waters, being to: (i) access and to be physically present on the Determination Area in accordance with traditional laws and customs; (ii) hunt, fish and gather on the Determination Area for the purpose of satisfying personal, domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; (iii) take, use and enjoy the Natural Resources of the Determination Areafor the purpose of satisfying personal, domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs; (iv) maintain and protect from physical harm, places within the Determination Area of importance to Native Title Holders in accordance with traditional laws and customs; and (v) perform social, cultural, religious, spiritual or ceremonial activities on the Determination Area and invite others to participate in those activities in accordance with traditional laws and customs. (vi) pass on native title rights and interests in relation to the Determination Area in accordance with traditional laws and customs; (vii) make decisions in accordance with traditional laws and customs about the use and enjoyment of the Determination Area by Aboriginal People who are governed by the traditional laws acknowledged and traditional customs observed by the Native Title Holders; 3.3 In relation to the land and waters referred to in Part C of Schedule 1, the non-exclusive right of the Native Title Holders to camp in accordance with traditional laws and customs which does not include the right to permanently reside or build permanent structures or fixtures. 4. Subject to paragraphs 5, 6, 8 and 9, the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights, in accordance with traditional laws and customs to: (a) use, enjoy, hunt on and fish in and gather from the Water for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes; and (b) take and use the Water and its resources for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes; provided that: · in all such cases, the purpose is non-commercial; and · such right to Water does not confer any right to possession, occupation, use or enjoyment of the Water to the exclusion of others. 5. The native title rights and interests described in paragraphs 3.2, 3.3 and 4:- (a) do not confer possession, occupation, use and enjoyment of that land and waters on the Native Title Holders to the exclusion of others; and (b) do not extend to a right to control access to or a right to control the use of that land and waters. 6. Notwithstanding anything in the determination, 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) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 7. If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth), then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words and expressions defined in this order: (a) "Determination Area" means the land and waters described in Schedule 1; (b) "Determination Plan" means the plan AP14230 attached to Schedule 1 and which shows the Determination Area. To the extent of any inconsistency between the description of the Determination Area and the Determination Plan, the description of the Determination Area prevails. (c) "Laws of the State of Queensland and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia and to avoid doubt, includes, but is not limited to, regulations, statutory instruments, local planning instruments and local laws; (d) "Local Government" has the meaning given to it in the Local Government Act 1993 (Qld); (e) "Native Title Holders" means the persons described in Schedule 2; (f) "Natural Resources" means animal, plant, fish and bird life found on or in the Determination Area from time to time and clays, sand, shell and soil found on or below the surface of the Determination Area but does not include minerals or petroleum; and (g) "Water" means water as defined in the Water Act 2000 (Qld)and tidal water as defined in the Land Act 1994 (Qld). 8. The native title rights and interests are subject to and exercisable in accordance with the Laws of the State of Queensland and the Commonwealth. The nature and extent of any other interests 9. The nature and extent of other interests in relation to the Determination Area are the following, as they exist at the date of the determination: 9.1 the interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of the Wooroonooran National Park, the Topaz Road National Park and the Malanda Conservation Park; 9.2 the interest of permittees or licensees pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of the Wooroonooran National Park, the Topaz Road National Park and the Malanda Conservation Park; 9.3 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 other subordinate legislation; 9.4 the interest of permittees or licensees pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld); 9.5 the rights, interests, powers and functions of the Cairns City Council as a Local Government under its local government jurisdiction and as an entity exercising statutory powers; 9.6 the rights, interests, powers and functions of the Eacham Shire Council as a Local Government under its local government jurisdiction and as an entity exercising statutory powers; 9.7 the rights and interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity distribution and transmission facilities within the Determination Area; 9.8 the rights and interests of Telstra Corporation Limited being: (i) rights and interests as the owner or operator of the telecommunications facilities installed within the Determination Area and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (ii) rights and interests 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) rights to enter the Determination Area by employees, agents or contractors of Telstra Corporation Limited in the performance of their duties to enable access to its telecommunications facilities in, and in the vicinity of, the Determination Area; 9.9 any other rights and interests held by or under the Crown by the force and operation of the Laws of the State of Queensland and the Commonwealth as may be current at the date of this determination; 9.10 the interests of members of the public to access the Wooroonooran National Park, the Topaz Road National Park and the Malanda Conservation Park for recreation purposes in accordance with the Nature Conservation Act 1992 (Qld); 9.11 the interests of the State of Queensland and the Ngadjon-Jii People under a deed of agreement authorised by the Ngadjon-Jii People on 7 October 2007; 9.12 the interests of members of the public pursuant to section 18 of the Native Title (Queensland) Act 1993 in accessing and enjoying:- (i) waterways, beds and banks and foreshores of waterways including the beds and banks of the Russell River adjoining Lot 31 on AP16251; and (ii) areas that were public places as at 31 December 1993 including the Russell River; and 9.13 the rights and interests held by force and operation of the Laws of the State of Queensland and the Commonwealth. Relationship between native title rights and other interests 10. The relationship between the native title rights and interests described in paragraphs 3 to 4 and the other interests described in paragraph 9 ("the other interests") is that: (a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; and (b) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests prevail over the native title rights and interests and any exercise of the native title rights and interests. 11. The native title is not to be held in trust. 12. An Aboriginal Corporation whose name will be nominated in writing within 12 months 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). 13. In the event that there is no nomination within the time specified in paragraph 12 or such later time as the Court may order, the Registered Native Title Claimants are to forthwith apply to the Court for further directions. 14. Until such time as there is a prescribed body corporate in relation to the Determination Area any notices required under the Native Title Act 1993 (Qld) or otherwise to be served on the Native Title Holders, the native title claim group or the Registered Native Title Claimants may be served upon the North Queensland Land Council Native Title Representative Body Aboriginal Corporation, and such notice shall be deemed to be sufficient. 15. This determination of native title is to take effect on the registration of the agreement referred to in paragraph 9.11, on the Register of Indigenous Land Use Agreements. 16. In the event that the agreement referred to in paragraph 9.11 is not registered on the Register of Indigenous Land Use Agreements within twelve 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.