Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447

South Western Downs

Registered on the National Native Title Tribunal Register.

Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447.

Between: Russell Doctor, Elaine Georgetown, Cyril Logan, and Rhonda Sandow on Behalf of the Bigambul People (Applicants) and the State of Queensland, and others as named in Schedule 1 of the determination.

Judge: Reeves J.

Determination:

Native title exists in the entire determination area. It consists of exclusive and non-exclusive native title rights. 

Native title is held by the Bigambul People. 

Exclusive native title rights and interests exist over the area described in Part 1 of Schedule 1 of the determination.

Other than in relation to water, these are the right to possession, occupation, use and enjoyment of the area to the exclusion of all others.

In relation to water:

• the non-exclusive rights to hunt, fish and gather from the water within the area
• to take and use the natural resources of the water in the area
• to take and use the water of the area for domestic and non-commercial communal purposes.

Non-exclusive native title rights and interests exist over the area described in Part 2 of Schedule 1 of the determination.

These are the rights to:

• access, be present and move about on and travel over the sea;
• camp and live temporarily on the area;
• hunt, fish, and gather on the area;
• take, use, share and exchange natural resources; 
• take and use water;
• conduct ceremonies;
• be buried and bury native title holders;
• teach on the area;
• maintain places of importance and significance to the Bigambul People and protect those areas from physical harm;
• light fires on the area for domestic purposes, but not for hunting or clearing vegetation; and
• be accompanied onto the area by certain non-Bigambul people required for ceremonial or cultural purposes.

These non-exclusive native title rights do not confer possession, occupation, use or enjoyment of the determination area to the exclusion of all others.

These non exclusive rights do not create any rights in relation to:

• minerals as defined by the Mineral Resources Act 1989 (Qld);
• petroleum as defined by the Petroleum Act 1923 (Qld); and
• the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

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

• any rights created under the Bigambul People Revenue Share ILUA, the Bigambul People and Local Government ILUA, the Bigambul People and Ergon Energy ILUA, and the Bigambul Protected Areas Indigenous Land Use Agreement;
• the rights of the State of Queensland and any local government to use, maintain, operate, and control any dedicated roads in the determination area and the rights of the public to use those roads;
• all rights the of the local governments in their respective parts of the determination area;
• the rights of the State of Queensland in reserves, and the rights and interests of the trustees of those reserves to access and use those reserves for their reserved purpose.
• the rights and interests of persons and organisations that exist under the laws of the State and Commonwealth, including the Telstra Corporation Limited, Ergon Energy Corporation Limited, the Trust Company Limited (ACN004027749), Australia Pacific LNG Pty Ltd, Origin Energy Resources Limited, Moonie Pipeline Company Pty Ltd, Santos Limited, and others as set out in Schedule 4 of the determnation;
• the rights and interests of the public under common law, including the right to fish, and under s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) 1993 (Qld) any public access to waterways, stockways, and areas that were public places at the end of 31 December 1993; and
• any other rights and interests held by the State of Queensland or the Commonwealth.

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

The Bigambul Native Title Aboriginal Corporation as the prescribed body corporate, is to perform the functions required under the Native Title Act 1993 (Cth) and holds the Bigambul Peoples' native title in trust.

Access the full text of the determination via the URL link above.

Background:

The Bigambul application for a determination of native title was filed on 14 April 2009. The application was for a determination that native title exists over certain land and waters in the South Western Downs region of Queensland, an area covering approximately 20,000 square kilometres (Bigambul Native Title Aboriginal Corporation, 2020).

On 18 October 2016, the Court made orders splitting the Bigambul application into Parts A and B. Part A comprises the majority of the claim area.

This Bigambul application was filed seven and a half years before the agreement was made, however, the Bigambul People's first application over this area was made more than eighteen years prior. The positive outcome of the Bigambul Part A application, on 1 December 2016, brought recognition of the Bigambul People's native title over approximately 2,600 square kilometres of land and waters. 

Bigambul Traditional Owner Cheryl Moggs stated on the day of the decision that '[n]ow the dance starts once again on country to celebrate, as we take our place, shed a tear, heal, and once again walk together' (Lynham, 2016).

Details of Judgment:

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Bigambul People in relation to all land and waters of the determination area. 

The Court was satisfied that a determination of native title was within the powers of the court. 

Native title exists in the entire determination area.

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