Kinjun on Behalf of the Gulngay People and State of Queensland [2019] FCA 446

Approximately 37,000 hectares of land and waters in and around Tully

This area encompasses lands and waters located on the coastal plain between the Hull River in the north and the Murray River in the South, and is framed by in the west by foothills of the Great Dividing Range, and in the east by Rockingham Bay and the Coral Sea [3]. For a detailed description of the area see Schedule 4 of the determination. For a map of the Determination Area see Schedule 6. The areas not forming part of the Determination Area are found in Schedule 5. The schedules are attached below under documents. The area is within the jurisdiction of the Cassowary Coast Regional Council.

Registered with the National Native Title Tribunal on the Native Title Register 04/04/2019.

Between: Doris Kinjun, Clarence Kinjun and Joanne Kinjun on behalf of the Gulngay People (Applicant)

and

The State of Queensland, Commonwealth of Australia, Cassowary Coast Regional Council, Ergon Energy Corporation Limited, Stephen Esserty, Desmond Gary Finlay, Ted Loveday, Thomas James Neil, Daniel Alexander Pope and Michael Wayne Wood (Respondents)

Judge: Robertson J 

Determination

Native title exists in the entire 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 Gulngay People, as described in Schedule 1 of the determination.

Exclusive native title rights and interests over part of the determination area

The exclusive area is described in Part 1 of Schedule 4. In relation to the exclusive area, the native title holders have the right to possession, occupation, use and enjoyment of the area (except in relation to water), to the exclusion of all others. In relation to water in this area, the native title holders have the non-exclusive rights to:

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

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

These rights exist over the area described in Schedule 4, Part 2, 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 build temporary shelters for that purpose; 
• hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; 
• take and use natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; 
• take and use the 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; 
• 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. 

Other rights and interests in the determination area include:

• the rights and interests of Ergon Energy Corporation; 
• the rights and interests of the Cassowary Coast Regional Council;
• the rights and interests granted by the Commonwealth of Australian in exercise of its executive power, including those made by the Minister of Defence pursuant to regulation 49 of the Defence Force Regulations; 
• the rights and interests of the State of Queensland or any other person, that exists pursuant to the laws of the State of Queensland, and any regulation or other statutory instrument created per the Fisheries Act 1994 (Qld) or the Land Act 1994 (Qld); and 
• any other rights and interests held by the State of Queensland or Commonwealth of Australia, or arising through the operation of laws. 

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 Gulngay Kinjufile Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as an agent for the Gulngay People.

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

Background

The application for this consent determination was filed on 27 June 2014 [9]. The Court was satisfied that the requirements under s 87 of the Native Title Act 1993 (Cth) had been met, and as such made "orders by consent which recognise the native title claimants have, and always have had, native title rights and interests in land and waters within the area the subject of the application" [53].

Details of Judgment

In recognising the continuity of connection that Gulngay People have to their Country, Justice Robertson pointed to the fact that "Gulngay identify and the Gulngay People today are linked to land and language through the application of normative rules associated with dreaming stories" [22]. Furthermore, Robertson J found that there had "been intergenerational transfer of the [Gulngay] laws and customs and inferentially that [such laws and customs], as well as the rights possessed in accordance with them, have their origins in a pre-sovereignty Gulngay society" [22]. 

Related Entries

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