Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251

Federal Court of Australia

Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251 File number(s): QUD 483 of 2015

Judgment of: RARES J

Date of judgment: 15 October 2021

Catchwords: NATIVE TITLE –– application under s 225 of Native Title Act 1993 (Cth) for determination of non-exclusive native title over land and waters in disputed portion of claim area – whether continuity of claimant group connection since sovereignty with land and waters of disputed portion by acknowledgement of traditional laws and observance of traditional customs – where uncertainty whether claimant group or other now extinct group(s) in possession of disputed portion at sovereignty – whether claimant group succeeded to or had transmitted native title rights and interests of extinct group(s) – whether extinct and claimant groups part of overarching society at sovereignty that had sufficient common traditional laws and customs – whether necessary to prove actual process or other facts to establish licit succession of incoming claimant group to native title rights and interests of extinct group(s) – whether sufficient spiritual correspondence between traditional laws and customs of extinct and claimant groups, as members of broader overarching society – where experts disagreed on indicia of process of licit succession – where claimant group confident in their connection to country and ability to manage its spiritual dangers – Held: licit succession manifested when incoming group able to deal with spirituality of the country, including actual or postulated spiritual dangers, according to traditional laws and customs – applicant has, by transmission, non-exclusive native title rights and interests over whole claim area. NATIVE TITLE – where applicant claimed right to access natural resources and take, use, share and exchange resources for any purpose – whether expression of right to take resources in determination of native title under s 225 of Act should include limitations on exercise of enjoyment of right provided for in traditional laws and customs, such as requirement not to exploit resources for personal financial gain – Held: appropriate to express non-exclusive right as right to access and take resources in claim area for any purpose.