Between:
James Archer, George Alexander Archer, Lola Brown, Saul Burns Snr, Ernie Burns, Andrew Garrett, Kenneth Jackson, Alfred Neal Snr, Percy Neal, Walter Richards Snr, Maxwell Underwood and Vincent Wason on behalf of the Djungan People #1 (APPLICANTS) and
State of Queensland, Tablelands Regional Council, Ergon Energy Corporation Ltd and Owen Rankine (RESPONDENTS)
Judge: Logan J
Where made: Dimbulah
Determination:
Native title is held by the Djungan People:
Native title exists over all of the determination area. It consists of exclusive and non-exclusive native title rights.
The exclusive native title rights and interests that exist over land in the determination area include:
- the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
In relation to water in the exclusive native title area, the following non-exclusive rights apply:
- the right to hunt, fish and gather from the water;
- the right to take and use the natural resources of the water; and
- the right to take and use the water for personal, domestic and non-commercial communal purposes.
The non-exclusive native title rights and interests that exist over land in the determination area include:
- the right to access, be present on, move about on and travel over the area;
- to occupy, use and camp on the area and construct non-permanent structures;
- hunt, fish and gather on the land and waters of the area for personal, domestic, and non-commercial communal purposes;
- take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
- take and use the water for personal, domestic and non-commercial communal purposes;
- conduct ceremonies on 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 the physical and spiritual attributes of the area;
- light fires on the area for domestic purposes but not for hunting or clearing vegetation; and
- be buried and bury native title holders within the area.
Non-native title rights and interests that exist within the determination area can be summarised as
- the rights and interests of the parties under the agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Tablelands Regional Council (the Djungan People/Tablelands Regional Council Agreement) and the agreement between the Applicant, the Nguddaboolgan Native Title Aboriginal Corporation ICN 7727 and the Ergon Energy Corporation Limited dated 4 July 2012, (the Djungan People/Ergon Energy Corporation Limited Agreement);
- the rights and interests of the Tablelands Regional Council under the Local Government Act 2009 (Qld) as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area and to enter and exercise rights within the Determination Area;
- the rights and interests of Ergon Energy Corporation Limited as the owner and operator of any “Works” as defined in the Electricity Act 1994 (Qld) within the Determination Area and as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld) and rights created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including the rights to enter the Determination Area by its employees, agents or contractors and to inspect, maintain and manage any Works in the Determination Area;
- The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area, or rights 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), including rights to inspect land, install and operate telecommunications facilities and to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities. Telstra also has the right for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties and under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area;
- The rights and interests of the holder of Occupation licence 9/599 over various lots;
- the rights and interests held by the State of Queensland in respect of Lot 197 on Plan HG693 (being the Wolfram Police Reserve) and Lot 6 on Plan M6494 (being the Mount Mulligan Police Reserve);
- the rights and interests of the holders of any leases, claims, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), the Mineral Resources Act 1989 (Qld), the Forestry Act 1959 (Qld), the Water Act 2000 (Qld);
- any other current rights and interests held by the State of Queensland or Commonwealth, or by anyone under the laws of the State and the Commonwealth.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals or petroleum as defined in the Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
The Nguddaboolgan Native Title Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
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Background
This application was heard together with Djungan People #2, #3 and #4 due to their geographical proximity. The applicants sought a determination of native title on behalf of the Djungan People over various lands with and proximate to the townships of Dimbulah, Kingsborough, Thornborough and Mount Mulligan in Far North Queensland.
The Federal Court awarded the Djungan People exclusive rights to possession, occupation, use and enjoyment over approximately 149,915 ha of land within the Determination area. Non-exclusive native title was awarded over a further 33,058 ha within the Determination Area (Queensland Government, 2012).
The North Queensland Land Council (NQLC) says it has taken 14 years to reach the native title consent determination. Martin Dore of the NQLC states that the recognition of native title is extremely important for the Djungan people.
Minister Cripps stated that "preserving indigenous culture and identity through native title determinations is integral to achieving more economic benefits and independence for traditional owners on their land" (Queensland Government, 2012).
Details of Judgment
The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).
The court was satisfied that a determination of native title was within the power of the court.
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