Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2016] FCA 1505

Northern Region

The determination area covers a total of approx. 144.5 sq kms, comprising rural and urban areas in and around Charters Towers. For a detailed description see Schedule 1A of the determination (Schedule 1. B (Map) is attached below).

The area is within the jurisdiction of the Charters Towers Regional Council.

Registered on the National Native Title Register

Between: Elizabeth Dodd, Andrew (Smoky) Anderson, Christine Hero, Priscilla Michelle Huen and Gloria Santo on behalf of the Gudjala People Core Country Claim #1 (Applicant) and State of Queensland, Charters Towers Regional Council, Flinders Shire Council, and others (Respondents)

Judge: Reeves J

Determination

The Court made orders under s 87A of the Native Title Act 1993 (Cth) (the NTA) for a determination that native title exists in the terms jointly proposed by the parties.

The determination area relates to a part (the remainder) of the area covered by Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 (Gudjala People Part A).

Each party bore its own costs.

Native title exists in the entire determination area

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

Native title holders

Native title is held by the Gudjala People.

Non-exclusive native title exists over parts of the determination area 

These rights and interests exist over the area described in Schedule 1 (Part 1: RURAL AREAS, Part 2: URBAN AREAS (ABORIGINAL LAND AREAS), and Part 3: URBAN AREAS) and include the right to:

• in Part 1 Area - access, be present, and move about on the area; camp; hunt, fish, and gather for non-commercial use; take and use natural resources, including water, for non-commercial use; light fires, but not for hunting or clearing of vegetation; conduct ceremonies, and burials; maintain and protect places of importance and areas of significance; teach on the area the physical and spiritual aspects of the area;
• in Part 2 Area - access, be present, and move about on the area; maintain and protect places of importance and areas of significance; and teach on the area the physical and spiritual aspects of the area;
• Part 3 Area - access, be present, and move about on the area.

Other (non-native title) rights and interests in the determination area include those held by:

• the parties to two Indigenous Land Use Agreements (ILUAs) (the Gudjala People and Local Government ILUA and the Gudjala People and Ergon Energy ILUA);
• Telstra Corporation Ltd under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
• Ergon Energy Corporation under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
• the State of Queensland, Charters Towers Regional Council and Flinders Shire Council under the Local Government Act 2009 (Qld), the Land Protection (Pest and Stock Route Management Act 2002 (Qld) and any other legislation, under any lease, licence, or trust of any reserve, and as owner and operator of infrastructure;
• the holders of any instrument under the Mineral Resources Act 1989 (Qld);
•  public access to waterways, stock routes, and areas that were public places at the end of 31 December 1993.

For further information about the non-native title rights and interests, see Schedule 4 of the court determination (via the url link above).

Schedule 5 of the determination (via the url link above) states that the native title will not be exercised in relation to certain areas within four pastoral leases (buildings, airstrips, constructed water storage facilities, stockyards and trap yards.

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

Prescribed body corporate

The native title is not held in trust. The Ngrragoonda Aboriginal Corporation performs the functions required under the Native Title Act 1993 (Cth) on behalf of the Gudjala People.

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

Background

On 18 March 2014, the Federal Court made a determination by consent that native title exists over part of the areas covered by the application area (Gudjala People Part A). Parts of that application area were affected by military orders and so held over for determination until the High Court had settled the question of extinguishment affecting military orders areas in State of Queensland v Congoo [2015] HCA 17.

Those military orders areas are covered by the application in the present case. The parties have an interest in the land and waters of the area and have applied to the Court for a determination of native title in accordance with their consent.

Details of Judgment

Since the Gudjala Part A and Part B areas are geographically close, Justice Reeves held that the evidentiary materials considered in Gudjala Part A were generally applicable here [16]. His Honour was satisfied that the parties' s 87 agreement had been entered into on a free and informed basis [16].

Being satisfied that all the conditions in s 87A of the NTA had been met, Reeves J found it appropriate to make a determination of native title consistent with the parties' proposed orders without holding a hearing [22].

Native title exists in parts of the determination area.

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