Blackman on behalf of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People v State of Queensland (No 3) [2017] FCA 1637

Gladstone

Registered on the National Native Title Register.

Between:

Kerry Blackman, Lurleen Blackman, Matthew Cooke, Neville Johnson, Richard Johnson, Nathaniel Minniecon and Dean Sarra on Behalf of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People(APPLICANTS) and State of Queensland, Bundaberg Regional Council, Gladstone Regional Council, North Burnett Regional Council, Ergon Energy Corporation Ltd, Telstra Corporation Ltd, Cement Australia (Exploration) Pty Ltd, Cement Australian (Queensland) Pty Ltd, Esso Australia Resources Pty Ltd, Jemena Queensland Gas Pipeline (1) Pty Ltd, Jemena Queensland Gas Pipeline (2) Pty Ltd, Rio Tinto Aluminium Ltd, RTA Yarwun Pty Ltd, Craig Bauer, Dianne Bauer, Graham Charles Bauer, Calliope Cattle Co, Edward Roy Goody, Vernon Ian Goody George Wilson Mackay, Hugh Walker Mackay, Michael Mcguire, Monte Christo Pty Ltd, Brian Maxwell Cronin, Darren John Cronin, Selwyn Maxwell Cronin, Redtrail Pty Ltd, Janene Ruth Scott, David Alexander Scott, David Charles Zunker, Judith Ann Zunker, Kevin Earlston Zunker, Susan Judith Zunker(RESPONDENTS).

Judge: Dowsett J.

Where made: Gladstone.The determination was made at a special on-country hearing (Inga Stunzner), which more than 400 Indigenous Australians from around the country attended (Ingra Stunzner).

Determination:

Native title exists in the determination area (subject to the exclusions set out in schedule 2 of the attached NNTT extract). It consists of non-exclusive native title rights and interests.

Native title is held by the Bailai, Gurang, Gooreng Gooreng, Tarbelang Bunda People.

Non-exclusive native title rights that exist in the determination area:

As set out in paragraph 8 of the determination, the non-native title rights and interests recognised by the court include:

• the right to access, be present on, and move across the area;
• the right to camp, and build temporary shelters for camping purposes;
• the right to hunt, fish and gather on the land and waters of the area for non-commercial personal, domestic and communal purposes;
• the right to collect and use water in the area for non-commercial personal, domestic and communal purposes;
• the right to participate in cultural activities on the area;
• the right to hold meetings on the area;
• the right to maintain places of significance or importance related to the native title holders' traditional laws and customs, including the right to protect these places from physical harm;
• the right to teach the physical and spiritual attributes of the area, while on the area;
• the right to light fires, limited to domestic purposes such as cooking as opposed to purposes of hunting or clearing vegetation;
• the right to be buried and bury native title holders within the area; and
• the right to be accompanied onto the area by spouses or partners of native title holders, their immediate family, and persons reasonably required by the native title holders under traditional laws and custom for the performance of cultural activities, even though these persons are not native title holders.

These non-exclusive native title rights and interests are subject to the laws of the Commonwealth, the State of Queensland, and the traditional laws and customs acknowledged by the native title holders.

Additionally, these non-exclusive rights do not create any rights in relation to:

• minerals as defined in the Mining Act 1989(Qld).
• Petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

Finally, these rights do not include occupation, possession, use and enjoyment rights by the native title holders to the exclusion of all others.

The First Nations Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda Aboriginal Corporation (ICN 8650), as the prescribed body corporate, is to perform the functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held in trust for the native title holders.

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

As set out in schedule 5 of the determination, the other non-native title, rights and interests found to exist at the date of the determination in relation to the area include:

• the rights and interests of parties under the PCCC Protected Areas ILUA QIA2017/019, lodged for registration on the Indigenous Land Use Agreements (ILUAs) register;
• the rights and interests of parties under the PCCC Tenure Resolution ILUA QIA2017/025, lodged for registration on the ILUAs register;
• the rights and interests of parties under the Bailai, Gurang, Gooreng Gooreng, and Taribeland Bunda People/Monte Christo ILUA, lodged for registration on the ILUAs register;
• the rights and interests of parties under ILUA QIA2000/004, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2003/063, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2005/029, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2006/051, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2008/023, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2010/009, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2010/011, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2010/017, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2010/042, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2012/092, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2014/026, registered on the ILUAs register;
• the rights and interests of parties under ILUA QI2016/045, registered on the ILUAs register;
• the rights and interests of the holders of water allocations 623, 624, 641 and 1505, granted pursuent to the Water Act 2000 (Qld);
• the rights and interests of the holder of pastoral lease No 35/3780 over Lot 9 on RN1607 ('Barmundoo');
• the rights and interests of the holder of pastoral lease No 19/4176 over Lot 82 on CTN355 ('Dawes');
• the rights and interests of the holder of pastoral lease No 19/4134 over Lot 4134 on PH1510 ('Glassford');
• the rights and interests of the holder of the term lease for grazing TL 0/237400 over Lot 21 on BON613;
• the rights and interests of the holder of the term lease for tourism TL 0/220087 over Lot 11 on CP860464 ('Monte Christo Tourist Resort');
• the rights and interests of the holder of the term lease for grazing and tourism TL 0/213279 over Lot 11 on SP257867 ('Monte Christo Pastoral Station');
• the rights and interests of the holder of the term lease for grazing TL 0/231907 over Lot 6 on YL864;
• the rights and interests of the holder of the term lease for grazing TL 0/232732 over Lot 17 on RW903;
• the rights and interests of the holder of the term lease for grazing TL 0/230560 over Lot 22 on YL975, located within Lot 53 on NPW737;
• the rights and interests of the holder of the term lease for grazing TL 0/218782 over Lot 65 on BN37332;
• the rights and interests of the holder of the term lease for grazing TL 0/214061 over Lot B on SP104428;
• the rights and interests of the holder of the term lease for grazing TL 0/230531 over Lot J on SP104420;
• the rights and interests of the holder of the rolling term lease for grazing TL 0/232515 over Lot A on DS627;
• the rights and interests of the holder of the rolling term lease for pastoral purposes TL 0/237337 over Lot 1 on SP263705;
• the rights and interests of the holder of the special lease for telecommunications SL 35/53149 over Lot 1 on CTN839958 ('Mount Alma Radar');
• the rights and interests of the holder of exploration permit for minerals EPM13575, granted pursuant to the Mineral Resources Act 1989 (Qld);
• the rights and interests of the holder of mining development licence MD179, granted pursuant to the Mineral Resources Act 1989 (Qld);
• the rights and interests of the holder of mining lease ML3664, granted pursuant to the Mineral Resources Act 1989(Qld);
• the rights and interests of the holder of mining lease ML7629, granted pursuant to the Mineral Resources Act 1989(Qld);
• the rights and interests of the holder of pipeline licence PPL25, granted and administered by the Petroleum Act 1923 (Qld) and Petroleum and Gas (Production and Safety) Act 2004 (Qld) respectively;
• the rights and interests of the holder of pipeline licence PPL30, granted and administered by the Petroleum Act 1923 (Qld) and Petroleum and Gas (Production and Safety) Act 2004 (Qld) respectively;
• the rights and interests of Airservices Australia's licences over Lot 15 on DS83959 and Lot 212 on NPW784;
• the rights and interests of Ergon Energy Corporation (ACN 087646062) as the owner or operator of any works in the area, and created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
• the rights and interests of Queensland Electricity Transmission Corporation Limited, trading as Powerlink Queensland (ACN 078849233), as an electrical entity under the Electricity Act 1994 (Qld) and created under and lease, licence, easement, permit or agreement within the area;
• the rights and interests of Telstra Corporation Limited (ACN 051775556), created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth), and the Telecommunications Act 1997 (Cth);
• the rights and interests of Bundaberg Regional Council, Gladstone Regional Council and North Burnett Regional Council, the extent of which are set out in schedule 2, para 11 of the determination;
• the rights and interests of the State of Queensland to use, operate, maintain and control the roads in the area;
• the rights and interests of members of the public to access and use those roads in the area;
• the rights and interests of the State of Queensland or any person arising out of the operation of the laws of the State of Queensland; and
• the rights and interests of the public to access and enjoy public places within the area.

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

Special provisions, provided for in paragraph 13(b) of the determination and detailed in schedule 6, dictate the relationship between the exercise of native title rights and interests and pastoral lease land.

Background:

Between 1997 and 1999, five separate applications were made for native title determinations over various parts of the determination area. As a result of uncertainty around the individual area boundaries of each claim (Ingra Stunzner), on 17 August 2001 Justice Drummond ordered the five applications be combined. On 28 August 2017 the application was amended to reflect the names of the four claimant groups on behalf of whom the original five applications were brought - the Bailai, Gurang, Gooreng Gooreng and Tarbeland Bunda Peoples (FCA).

This determination has been heralded as a landmark native title determination, believed the first to include multiple language groups. Overcoming challenges through robust (often conflicting) discussion, the capacity of the four groups to work together to reach a consensus is unique (Ingra Stunzner). The Minister for State development and natural resources and mines, Dr Anthony Leydon, has championed the success of the determination, particularly emphasising the potential for economic development benefits well into the future through infrastructure and other major projects. Furthermore, Dr Leydon emphasised the People's commitment to the care of their ancestral lands, evidenced by the ILUAs to protect the 26 national parks within the determination area (Qld Government).

Although the determination has provided much cause for celebration, Kerry Blackman stresses that this only the beginning, attention necessarily turning to native title sea country rights. The Port Curtis Coral Coast Native Title group, supported by the First Nations Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People Aboriginal Corporation, is currently working to have more than 26,000 square kms of adjacent sea country recognised (Inga Stunzner).

Judgment Details:

The parties to the determination reached an agreement as to the terms of the determination of the Determination Area. 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 the orders were appropriate and in accordance with s.87. The Court stressed that the resolution of this application has taken much time and effort, recognising the collective strength and resilience of the Bailai, Gurang, Gooreng Gooreng, Taribeland Bunda People to have maintained connection to their traditional lands. The court concludes by congratulating the Traditional Owners.

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