George on behalf of the Gkuthaarn and Kukatj People v State of Queensland [2020] FCA 1310

Gulf of Carpentaria, Normanton.

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Phillip George and Leanne Edwards on behalf of the Gkuthaarn and Kukatj People (Applicant) and Commonwealth of Australia, Carpentaria Shire Council, Ergon Energy Corporation Limited ACN 087 646 062, Far North Queensland Ports Corporation Limited (Trading as Ports North) ACN 131 836 014, Geoffrey Charles Fry, Ashley Thomas James Gallagher, Calvin Edward Gallagher, Edward Michael Gallagher, Nola June Gallagher, Troy Patrick Gallagher, Gambamora Industries Pty Ltd ACN 009 941 173,  Judith Ellen Heslin, Alister Robert McClymont, Joanne Therese McClymont, MDH Pty Ltd ACN 010 114 468, Maria Sellings, Melville Sellings, Alan James Webber, Wondoola Pty Ltd ACN 009 736 805 and Century Mining Limited (Formerly Known as MMG Century Limited) ABN 59 006 670 300 (Respondents)

Judge: Griffiths J 

Determination

Native title exists in parts of the determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Native title is held by the Gkuthaarn and Kukatj People. This includes the biological or adopted descendants of Sisters Nellie, Rosie, Alice and Mabel, Paddy and Lucy, Louie Richards, Harry Hayes, Maggie Kukatj and Charlie B, Joker Jack or Jock Inverleigh (aka Inverleigh Jock).

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Part 1 and Part 2 of Schedule 4 and include:

• access, be present on, move about on and travel over the area;
• camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
• hunt, fish and gather on the land and waters of the area for personal domestic and non-commercial communal purposes;
• take natural resources from the land and waters of the area for personal, domestic, and non-commercial communal purposes;
• take water of the area for personal, domestic, and non-commercial communal purposes;
• conduct ceremonies on the area;
• be buried and bury Native Title Holders within the area (described in Part 1 of Schedule 4 only);
• 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;
• teach on the area the physical and spiritual attributes of the area; and
• light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

There are no native title rights to minerals defined by the Mineral Resources Act 1989 (QLD) and petroleum defined by the Petroleum Act 1923 (QLD) and the Petroleum and Gas (Production and Safety) Act 2004 (QLD).

Other rights and interests in the determination area include:

• those created under the Gkuthaarn and Kukatj People Commercial Fishers ILUA (QI2016/023), Gkuthaarn and Kukatj People Tenure Resolution ILUA (Area Agreement) (QI2020/002), Gkuthaarn and Kukatj People and Ergon Energy ILUA (Area Agreement) (QI2020/001) and Carpentaria Shire Council Gkuthaarn and Kukatj ILUA (Area Agreement) (QI2020/003); 
• seven pastoral leases, four term leases for pastoral purposes and two term leases for grazing purposes granted pursuant to the Land Act 1962 (QLD) or Land Act 1994 (QLD);
• Ergon Energy Corporation Limited ACN 087 646 062 rights as defined under Electricity Act 1994 (QLD);
• Century Mining Limited ban 59 06 670 300 as the holder of various licences granted under the Transport Infrastructure Act 1994 (QLD) and the Transport Planning and Coordination Act 1994 (QLD);
• Far North Queensland Port Corporation Limited (trading as Ports North) ACN 131 836 014 as the port authority for the Port of Karumba and provider of port services under Chapter 8 of the Transport Infrastructure Act 1994 (QLD) and the Transport Infrastructure (Ports) Regulation 2016 (QLD);
• Carpentaria Shire Council rights as set out under the Local Government Act 2009 (QLD) and Local Government Regulation 2012 (QLD) including rights in its position as lessor under any leases, the grantor of licences, holder of estates and interests, trustee of any interest in land and owner and operator of any infrastructure in the area;
• State of Queensland and Carpentaria Shire Council rights to access the determination area for the purpose of using, operating maintaining and controlling the current roads in that area including the public right to use and access those roads;
• the rights of the public to fish and navigate arising under common law;
• other rights that may be held by the State of Queensland, Commonwealth of Australia or any other person existing due to the operation of any legislation.

See Schedule 2 for further information about the non-native title rights and interests. 

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

The Gkuthaarn and Kukatj Aboriginal Corporation (ICN: 8895) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) after becoming the Registered Native Title Body Corporate (RNTBC) and acts as agent for the Gkuthaarn and Kukatj People. The native title is not held in trust for the native title holders.

Full text of the determination is available via the URL link above.

Background

The Gkuthaarn and Kukatj People lodged various claims to recognise their native title in 1996 and 1999  in response to proposed mining projects [10]. These claims were all later discontinued.

With the assistance of the Carpentaria Land Council Aboriginal Corporation (CLCAC), the Gkuthaarn and Kukatj People lodged the application for this determination on 28 November 2012.

In 2014 the Commonwealth joined as a party to this claim but withdrew following an amended description of the maritime boundary in 2018. Similarly, commercial fishers withdrew as parties to this claim following the Gkuthaarn and Kukatj People Commercial Fishers ILUA registered on 10 February 2017. Since 2012 the Gkuthaarn and Kukatj People have negotiated a further four ILUA's with various parties, including Ergon Energy and the Carpentaria Shire Council, to resolve this claim by consent.

In preparation for the hearing of this matter various expert reports were filed and after considering the evidence the respondents 'formed the view that they could agree to the recognition of native title rights and interests over part of the area under claim' [31]. Therefore, on 28 August 2020 the parties filed an agreement containing the terms of the proposed determination pursuant to s87 of the Native Title Act 1993 (Cth). 

Details of Judgment

The Court acknowledged that the parties had been legally represented throughout the process of the application, that there was 'extensive evidence' filed in relation to the claim, and that the parties had reached the agreement 'on a free and informed basis' [47]. The Court found that it was within its power to give effect to this agreement to recognise the Gkuthaarn and Kukatj People's native title in part of the determination area.

The Court also found that it was within the its power to make a determination that native title does not exist in relation to part of the determination area (see the area described in Part 3 of Schedule 4). In considering whether it was appropriate for the Court to make a negative determination of native title Griffiths J considered the following;

• the parties had legal representation throughout the application process [53];
• the CLCAC and the Queensland South Native Title Services were aware of the proposed negative determination and took no steps to oppose it [53];
• this determination area has never been subject to an overlapping native title claim and there have never been any Indigenous respondents to the claim since its initial filing in 2012 [54];
• the Gkuthaarn and Kukatj People are the only Indigenous persons or group to have made any native title claims over this area since 8 December 2009 [55];
• there have been nine historical native claims made over parts of this area but they have all been withdrawn, dismissed or discontinued prior to the filing of this application [55];
• there was differing expert evidence over whether the 'applicant could prove that the claim group had any native title rights or interests' in this area [57];
• there are two ILUAs in place over this area; the Tenure Resolution ILUA and the Stanbroke ILUA. The Court inferred from this that the Gkuthaarn and Kukatj Peoples authorised the 'surrender of native title rights and interests under those ILUAs in exchange for the respective benefits provided, and in preference to pursuing a contested determination of native title' [61]; and
• the negative determine 'will provide the public and parties with certainty in respect of rights...and interests in real property' in the determination area which is a public benefit [62].

Native title exists in part of the determination area.

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