FEDERAL COURT OF AUSTRALIA Sullivan on behalf of the Yulluna People #4 v State of Queensland [2017] FCA 122 File number: QUD 45 of 2015 Judge: DOWSETT J Date of consent determination: 20 February 2017 Catchwords: NATIVE TITLE – application for determination of native title under s 87 of the Native Title Act 1993 (Cth) – where original determination contained an error by excluding reference to a specific lot Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 55, 56(2)(b), 57(1) Native Title Act 1993 (Cth) ss 87, 225 Native Title (Prescribed Bodies Corporate) Regulations 1992 (Cth) Cases cited: Sullivan on behalf of the Yulluna People #3 v State of Queensland [2014] FCA 659 Date of hearing: 20 February 2017 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 12 Solicitor for the Applicant: Mr C Reiach of Queensland South Native Title Services Solicitor for the Respondent: Ms B Wrafter of Crown Law ORDERS QUD 45 of 2015 BETWEEN: BRIAN SULLIVAN ON BEHALF OF THE YULLUNA PEOPLE #4 (and others named in the Schedule) Applicant AND: STATE OF QUEENSLAND Respondent JUDGE: DOWSETT J DATE OF ORDER: 20 FEBRUARY 2017 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"). Each party to the proceedings is to bear its own costs. BY CONSENT THE COURT DETERMINES THAT: Native title exists in relation to the Determination Area described in Schedule 1. The native title is held by the Yulluna People described in Schedule 2 ("the native title holders"). Subject to paragraphs 6, 7 and 8 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 1 are the non-exclusive rights to: (a) access the area; (b) camp, and for that purpose build temporary shelters on the area; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (e) take and use the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) 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 from physical harm; (h) teach on the area the physical and spiritual attributes of the area; and (i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 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. The native title rights and interests referred to in paragraph 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others. There are no native title rights 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). The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3. The relationship between the native title rights and interests described in paragraph 5 and the other interests described in Schedule 3 (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, 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. DEFINITIONS AND INTErPRETATION In this determination, unless the contrary intention appears: "Determination Area" is the land and waters described in Schedule 1A and depicted on the map in Schedule 1B. To the extent of any inconsistency between the written description and the map, the written description prevails; "land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth); "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; "Natural Resources" means any animal, plant, fish and bird life, and ochre, found on or in the lands and waters of the Determination Area that have traditionally been taken and used by the native title holders, but does not include minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; (c) water from an underground water source. Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth). THE COURT DETERMINES THAT: The native title is held in trust. The Yulluna Aboriginal Corporation RNTBC (ICN 7112), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) 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. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Schedule 1-DETERMINATION AREA A. Description of Determination Area The Determination Area comprises all of the land and waters within Lot 103 on USL703, located near the town of Duchess in the State of Queensland and depicted in the map attached. B. Map of Determination Area Schedule 2- NATIVE TITLE HOLDERS 1. The native title holders are the Yulluna People. The Yulluna People: (a) are the biological descendants (if any) of: Mick Moonlight; Willie Sullivan; Rosie O'Sullivan; Kitty Casey; Momas; (b) identify themselves as members of the Yulluna People; and (c) are recognised by others who are Yulluna People as being Yulluna People. Schedule 3-OTHER INTERESTS IN THE DETERMINATION AREA 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: 1. The rights and interests granted by the State of Queensland pursuant to statute, regulation or subordinate legislation, or in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, authorities, allocations, leases, claims, agreements or other instruments. 2. Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State and the Commonwealth. REASONS FOR JUDGMENT DOWSETT J: 1 On 28 March 2014 at the Osborne Mine Village, I determined that the Yulluna People #3 were the traditional owners of approximately 10,027 square kilometres of land near Duchess in north western Queensland (Sullivan on behalf of the Yulluna People #3 v State of Queensland [2014] FCA 659). 2 On 25 March 2014, I refused an application to amend the Yulluna #3 claim to include a small area that had been erroneously omitted from the boundary description. On 2 February 2015 the Yulluna #4 claim was filed, covering one discrete area of Unallocated State Land ("USL") described as Lot 103 on USL 703 ("Lot 103"). The claim has been accepted for registration by the National Native Title Tribunal and notified in accordance with s 66(3) of the Native Title Act 1993 (Cth) ('the Act'). The State of Queensland ("the State") is the only respondent to the Yulluna #4 claim. There are no overlapping or competing claims on the Register of Native Title Claims. 3 The members of the native title claim group are the same as the native title holders identified in the Yulluna #3 determination. The Applicant group comprises: (a) Brian Sullivan; (b) Valerie Punch; (c) Hazel Sullivan; (d) Stan Sullivan; and (e) Allan Naumann. 4 The Applicant and the State rely on the connection material that was filed in relation to the Yulluna #3 claim. I referred extensively to this material in my reasons for that determination. Reports prepared by Mr Peter Blackwood, Dr Bruce and Mrs Elaine Sommer, Ms Ophelia Rubinich and Dr Nancy Williams are relied upon by the Applicant as demonstrating continuity of connection to the determination area. I have also referred to the affidavits from members of the claim group, which affidavits were filed in the earlier proceedings. I find that the Yulluna People have demonstrated an unbroken physical connection to their country, including the present claim area, from the date of sovereignty to the present day. 5 In his affidavit filed on 13 February 2017, John Craig Reiach, the solicitor with the carriage of this matter says, at paras 5-8: 5. Lot 103 was the subject of an interlocutory application filed on 18 March 2014 by the Applicant in Yulluna People #3 (QUD189/2010). The orders sought in the interlocutory application were for leave to further amend the native title determination application to include Lot 103 on the basis that the original application contained a defect or error by excluding reference in the written boundary description to that specific lot. 6. On 25 March 2014, the Court ordered that the interlocutory application be refused. 7. Following the orders made on 25 March 2014, the Applicant and the State reached agreement in principle that any native title determination application over Lot 103 would be progressed to a consent determination as soon as possible in terms consistent with the then proposed Yulluna People #3 determination. 8. The agreement in principle referred to at paragraph [7] above was made in the context of the Applicant and the State having negotiated Yulluna People #3 on the erroneous basis that Lot 103 was included in the claim. 6 Michael Luxford, a State Negotiator in the Aboriginal and Torres Strait Islander Land Services branch of the Department of Natural Resources and Mines, in his affidavit filed on 14 February 2017, confirms the State's willingness to rectify the error that was made in the original boundary description. 7 The parties agree that the Applicant may rely on the connection material filed in the Yulluna #3 application and seek, in respect of Lot 103, recognition of the same non-exclusive native title rights as were recognised in that determination. The terms of the agreement reached between the Applicant and the State are reflected in a document filed on 27 January 2017, pursuant to s 87 of the Act. Annexed to that agreement is a copy of the orders now sought by the Applicant and agreed to by the State. 8 The Applicant and the State have agreed that the Native Title rights and interests in Lot 103 are the non-exclusive rights to: (a) access the area; (b) camp, and for that purpose, build temporary shelters on the area; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (e) take and use the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) 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 from physical harm; (h) teach on the area the physical and spiritual attributes of the area; and (i) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 9 I am satisfied on the evidence that such rights and interests are derived from the traditional laws and customs of the Yulluna People. I am also satisfied that the procedural requirements of s 87 have been met. The orders satisfy the requirements of s 225 of the Act and are consistent with the terms agreed between the consenting parties. The orders recognize that the Yulluna People, as the common law holders of the Native Title in the determination area, are entitled to non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs. Schedule 3 to the orders recognizes the other interests in the determination area, and the relationship between those interests and the Native Title interests. 10 Section 55 of the Act requires the Court to determine whether the Native Title is to be held on trust and, if so, by whom it is to be held. Order 12 of the proposed orders provides that the Native Title is to be held on trust. Ms Valerie Punch and Mr Brian Sullivan, representing the claimants as Native Title holders, have notified the Court that Yulluna Aboriginal Corporation (ICN3789) (incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)) is to be the prescribed body corporate for the purposes of s 56(2)(b) of the Act, to hold the Native Title for the common law holders, to perform the functions set out in the Act and the Native Title (Prescribed Bodies Corporate) Regulations 1992 (Cth) and for the other objects and purposes set out in its Rules. By proposed order 13, the Yulluna Aboriginal Corporation RNTBC (ICN7112) is to be the prescribed body corporate for the purposes of s 56(2)(b) of the Act and, as such is to perform the functions set out in s 57(1). 11 I am satisfied that it is within the power of the Court to make the orders sought. It is clear from the evidence before the Court that a genuine error was made with respect to the external boundary description in the earlier determination. 12 I make orders in terms of the draft which I now initial and place with the papers. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 20 February 2017 SCHEDULE OF PARTIES QUD 45 of 2015 Applicants VALERIE PUNCH HAZEL SULLIVAN STAN SULLIVAN ALLAN NAUMANN