Federal Court of Australia Judgment: Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA 730

 
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Melbourne: Federal Court of Australia has issued the following press release:

EDERAL COURT OF AUSTRALIA

Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA

Citation:

Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA

Parties:

TERRANCE TAYLOR AND JACKY GREEN ON BEHALF OF THE GANGALIDDA AND GARAWA PEOPLES #2 v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, BURKE SHIRE COUNCIL, DOOMADGEE ABORIGINAL SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED and JOHN LEONARD CLARKE, NORMAN LEONARD CLARKE, SUSAN MAREE CLARKE, JUDITH ANNE GOODALL, JANICE NELSON, JOHN GEOFFREY NELSON, PANOY PTY LTD, PARAWAY PASTORAL COMPANY LIMITED, JOHN ROSS SMITH, VENLOCK PTY LTD AND WESTMORELAND PASTORAL COMPANY PTY LTD

File number:

QUD 66 of 2005

Judge:

DOWSETT J

Date of consent

determination

1 April 2015

Catchwords:

NATIVE TITLE – consent determination – requirement under s 87 of the Native Title Act 1993 (Cth) – resolution by agreement of claim for determination of native title

Legislation:

Native Title Act 1993 (Cth) ss 57, 87, 94A, 223, 225

Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Cases cited:

Gangalidda and Garawa People v State of Queensland [2010] FCA 646

Place:

Burketown

Division:

GENERAL DIVISION

Category:

atchwords

Number of paragraphs:

Counsel for the Applicant:

Mr C Athanasiou

Solicitor for the Applicant:

HWL Ebsworth Lawyers

Solicitor for the First Respondent

Ms A Cope of Crown Law

Counsel for the Second Respondent:

The Second Respondent did not appear

Counsel for the Third Respondent:

Mr M Wright of Preston Law

Counsel for the Fourth Respondent:

The Fourth Respondent did not appear

Counsel for the Fifth Respondent:

The Fifth Respondent did not appear

Counsel for the Sixth Respondent:

The Sixth Respondent did not appear

Counsel for the Seventh Respondent:

The Seventh Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 66 of 2005

BETWEEN:

TERRANCE TAYLOR AND JACKY GREEN ON BEHALF OF THE GANGALIDDA AND GARAWA PEOPLES #2

Applicant

STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

BURKE SHIRE COUNCIL

Third Respondent

DOOMADGEE ABORIGINAL SHIRE COUNCIL

Fourth Respondent

ERGON ENERGY CORPORATION LIMITED

Fifth Respondent

TELSTRA CORPORATION LIMITED

Sixth Respondent

JOHN LEONARD CLARKE, NORMAN LEONARD CLARKE, SUSAN MAREE CLARKE, JUDITH ANNE GOODALL, JANICE NELSON, JOHN GEOFFREY NELSON, PANOY PTY LTD, PARAWAY PASTORAL COMPANY LIMITED, JOHN ROSS SMITH, VENLOCK PTY LTD AND WESTMORELAND PASTORAL COMPANY PTY LTD

Seventh Respondent

JUDGE

DOWSETT J

DATE OF ORDER:

1 APRIL 2015

WHERE MADE:

BURKETOWN

THE COURT NOTES THAT

The Applicant in these proceedings has made an application for a determination of native title in relation to land and waters in the Determination Area.

The Native Title Determination Application filed in these proceedings covers all land and waters in the Determination Area.

Each party to the proceedings has reached agreement with the Applicant as to the terms of a determination of native title to be made in the Determination Area.

The parties have agreed that the areas referred to in Schedule 9 are subject to:

(a)previous exclusive possession acts of the kind referred to in s 23B of the Native Title Act 1993 (Cth); or

(b)pre-existing rights based acts of the kind referred to in s 24IB of the Native Title Act 1993 (Cth),

and in accordance with s 61A of the Native Title Act 1993 (Cth) cannot be claimed and are therefore not in the Determination Area.

The parties have agreed that native title has been extinguished over the land and waters referred to in Schedule 10.

Being satisfied that a determination in the terms sought by the parties would be within the power of the Court pursuant to 87 of the Native Title Act 1993 (Cth), and it appearing to the Court appropriate to do so, and with the consent of those parties,

BY CONSENT THE COURT ORDERS THAT:

  1. There be a determination of native title in the terms set out below ("the Determination").

  2. The Determination will take effect upon the agreements referred to in paragraph 2 of Schedule 8 being registered on the Register of Indigenous Land Use Agreements.

  3. In the event that the agreements referred to in paragraph 2 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

  4. Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

Native title exists in relation to the area described in Schedule 1, being areas that are also described in:

Schedule 2 - which describes that part of the Determination Area in which there are exclusive native title rights and interests; or

Schedule 3 - which describes that part of the Determination Area in which there are non-exclusive native title rights and interests,

and shown on the Determination Map at Schedule 11.

Section 47A of the Native Title Act 1993 (Cth) applies to the areas denoted with a * described in Schedule 2.

Section 47B of the Native Title Act 1993 (Cth) applies to the areas denoted with a + described in Schedule 2.

Native title is held by the Gangalidda People in that part of the Determination Area described in Schedule 4.

Native title is held by the Garawa People in that part of the Determination Area described in Schedule 5.

The Gangalidda People are those people described in Schedule 6.

The Garawa People are those people described in Schedule 7.

Subject to rders 16, 17 and 20, the nature and extent of the native title rights and interests in relation to that part of the Determination Area described in Schedule 2 and shown in Schedule 11, other than in relation to the use and enjoyment of Water (which is dealt with in 14), is the right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

Subject to rders 16, 17, 18 and 20, the nature and extent of the native title rights and interests in relation to that part of the Determination Area described in Schedule 3 and shown in Schedule 11, other than in relation to the use and enjoyment of Water (which is dealt with in 14) and land and waters on the seaward side of the High Water Mark (which is dealt with in 15), are non-exclusive rights:

to access, to be present on and to traverse the area;

to hunt, fish and gather Natural Resources on the area for personal, domestic, and non-commercial communal purposes;

to take, use, share and exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes;

to camp on the area but not to reside permanently or to erect permanent structures or fixtures;

to light fires on the area for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation;

to conduct religious and spiritual activities and ceremonies on the area;

to be buried on, and bury Native Title Holders on the area; and

to maintain places and areas of importance or significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm.

Subject to rders 16, 17, 18 and 20, the nature and extent of the native title rights and interests in relation to the use and enjoyment of Water within the Determination Area, other than in relation to waters on the seaward side of the High Water Mark (which is dealt with in 15), are non-exclusive rights:

to hunt and fish in and on and gather Natural Resources from the Water;

to take, use, share and exchange Natural Resources from the Water; and

to take, use and enjoy the Water,

for personal, domestic, and non-commercial communal purposes.

Subject to rders 16, 17, 18 and 20, the nature and extent of the native title rights and interests in relation to the use and enjoyment of land and waters on the seaward side of the High Water Mark within that part of the Determination Area described in Schedule 3 and shown in Schedule 11 are non-exclusive rights:

to access, to be present on and to traverse the area;

to fish, hunt and gather Natural Resources on the area for personal, domestic or noncommercial communal purposes;

to take, use, share and exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes;

to take and consume fresh drinking water from fresh water springs in the intertidal zone for domestic or noncommercial purposes;

to conduct religious and spiritual activities or ceremonies on the area; and

to visit places or areas of importance or significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm.

There are no native title rights or interests 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 native title rights and interests are subject to and exercisable in accordance with:

the Laws of the State and the Commonwealth; and

the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

The native title rights and interests in relation to that part of the Determination Area described in Schedule 3 do not confer possession, occupation, use and enjoyment of the area on the Native Title Holders to the exclusion of all others.

The nature and extent of other interests in relation to the Determination Area are the rights and interests described in Schedule 8 (the Other Interests") that are current at the date of this determination.

The relationship between the native title rights and interests and the Other Interests is that:

the Other Interests continue to have effect;

in areas where s 47A of the Native Title Act 1993 (Cth) applies, and prior extinguishment is...

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