Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1402

Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1402 

Between Marshall Foster, Reeghan Finaly, Don Harding, Jamie Robert Frid, Michelle Saunders and Grant Jackson on behalf of the Gunggari People #4 (Applicants) and State of Queensland, Central Highlands Regional Council, Maranoa Regional Council (Respondents)

Judge Rangiah J 

Determination

Native title exists in part of the determination area.

Native title is held by the Gunggari people.

The exclusive native title rights over part of the determination area, namely: the right to possession, occupation and enjoyment of the area described in Part 1 of Schedule 4 (see attached) to the exclusion of all others (other than in relation to water).

Non-exclusive native title rights and interests that exist in the determination area include

• the right to hunt, fish and gather from the water of the area described in Part 1 of Schedule 4 (see attached) for personal, domestic and non commercial communal use
• the right to take and use the natural resources of the water in the area described in Part 1 of Schedule 4 (see attached) for personal, domestic and non commercial communal use 
• the right to take and use the water in the area of Par 1 of Schedule 4 (see attached) for personal, domestic and non commercial communal use
• the right to access, be present on, move about on and travel over the area described in Part 2 of Schedule 4 (see attached)
  
• the right to camp on the area described in Part 2 of Schedule 4 (see attached) and to erect temporary shelter on the area for camping purposes
• the right to take and use traditional natural resources from the area described in Part 2 of Schedule 4 (see attached) for personal, domestic and non-commercial communal purposes
• the right to conduct religious and spiritual activities and ceremonies on the area described in Part 2 of Schedule 4 (see attached)
• the right to maintain places of importance and areas of significance to the Gunggari People on the area described in Part 2 of Schedule 4 (see attached) under their traditional laws and customs and protect those places and areas by lawful means, from harm
• the right to teach on the area described in Part 2 of Schedule 4 (see attached) about the spiritual and physical attributes of the area
• the right to light fires on the area described in Part 2 of Schedule 4 (see attached) for domestic purposes including cooking but not for clearing vegetation or hunting
• the right to hunt and fish in or on and gather from the water in the area described in Part 2 of Schedule 4 (see attached) for personal, domestic and non-commercial communal purposes
• the right to take and use the water in the area described in Part 2 of Schedule 4 (see attached) for personal, domestic and non-commercial communal purposes
  

Other rights and interests in the determination area

• the rights and interests of the parties under Indigenous Land Use Agreements made between the Gunggari People and other parties regarding the determination area
• the rights and interests of holders of water allocations
• the rights and interests of the holders of leases granted pursuant to the Land Act 1962 (Qld) and Land Act 1994 (Qld) and other leases such as pastoral holding leases and leases for grazing purposes
• the rights and interests of the holders of permits, licenses and leases granted pursuant to the Mineral Resources Act 1989 (Qld), Petroleum Act 1923 (Qld)

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title. 

The Gunggari Aboriginal Corporation, as the prescribed body corporate, is to perform the functions required under the Native Title Act 1993 (Cth).

Background

The application was filed on behalf of the Gunggari People on 10 October 2012. It was amended on 21 October 2014, 19 November 2018, and 8 August 2019. The Kearns claim area adjoins the areas already successfully determined in Kearns on behalf of the Gunggari People #2 v State of Queensland [2012] FCA 651 (Kearns) and Foster on behalf of the Gunggari People #3 v State of Queensland [2014] FCA 1318.

The procedural history of the Gunggari People's claims which first commenced in 1996 is partly set out in the frequently cited decision of Emmet J in Kearns.

Details of judgment 

Justice Rangiah noted that this is an important step towards the final resolution of the Gunggari People's claims [14].

The parties reached an agreement as to the terms of the native title determination to provide recognition of the Gunggari People's native title rights and interests. The signed agreement was filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth). The Court was satisfied that a determination of native title was within its power.

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