| Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA 730
Between:
TERRANCE TAYLOR AND JACKY GREEN ON BEHALF OF THE GANGALIDDA AND GARAWA PEOPLES #2 (applicant);
and
STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, BURKE SHIRE COUNCIL, DOOMADGEE ABORIGINAL SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED and JOHN LEONARD CLARKE, NORMAN LEONARD CLARKE, SUSAN MAREE CLARKE, JUDITH ANNE GOODALL, JANICE NELSON, JOHN GEOFFREY NELSON, PANOY PTY LTD, PARAWAY PASTORAL COMPANY LIMITED, JOHN ROSS SMITH, VENLOCK PTY LTD AND WESTMORELAND PASTORAL COMPANY PTY LTD (respondents).
Judge: Dowsett J
Where made: Burketown
Determination:
Native title exists in parts of the determination area. It consists of areas of exclusive native title rights and areas of non-exclusive native title rights.
Native title is held by the Gangalidda People in the part of the determination area described in Schedule 4. Native title is held by the Garawa People in the part of the determination area described in Schedule 5.
Exclusive native title rights and interests
- exclusive native title rights and interests exist in relation to the part of the determination area described in Schedule 2;
- these rights do not cover the use and enjoyment of water;
- the nature and extent of the native title rights in the exclusive native title area is the right to possession, use and enjoyment of the determination area described in Schedule 2, to the exclusion of all others.
Non-exclusive native title rights and interests
- non-exclusive native title rights and interests exist in relation to the part of the determination area described in Schedule 3;
- these rights do not cover the use and enjoyment of water;
- these rights also do not cover the use and enjoyment of land and waters on the seaward side of the high water mark;
- the nature and extent of the non-exclusive native title rights and interests in relation to the use and enjoyment of determination area described in Schedule 3 (other than in relation to water, and land and waters on the seaward side of the high water mark), are non-exclusive rights:
(a) to access, to be present on and to traverse the area;
(b) to hunt, fish and gather Natural Resources on the area for personal, domestic, and non-commercial communal purposes;
(c) to take, use, share and exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes;
(d) to camp on the area but not to reside permanently or to erect permanent structures or fixtures;
(e) to light fires on the area for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation;
(f) to conduct religious and spiritual activities and ceremonies on the area;
(g) to be buried on, and bury Native Title Holders on the area; and
(h) to maintain places and areas of importance or significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm.
Non-exclusive native title rights and interests in relation to the use and enjoyment of water
- the nature and extent of the native title rights and interests in relation to the use and enjoyment of water in the determination area (other than in relation to waters on the seaward side of the high water mark), are non-exclusive rights:
(a) to hunt and fish in and on and gather natural resources from the water;
(b) to take, use, share and exchange natural resources from the water; and
(c) to take, use and enjoy the water,
for personal, domestic, and non-commercial communal purposes.
Non-exclusive native title rights and interests on the seaward side of the high water mark
- the nature and extent of the native title rights and interests in relation to the use and enjoyment of land and waters on the seaward side of the high water mark within in the part of the determination area described in Schedule 3, are non-exclusive rights:
(a) to access, to be present on and to traverse the area;
(b) to fish, hunt and gather Natural Resources on the area for personal, domestic or noncommercial communal purposes;
(c) to take, use, share and exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes;
(d) to take and consume fresh drinking water from fresh water springs in the intertidal zone for domestic or noncommercial purposes;
(e) to conduct religious and spiritual activities or ceremonies on the area; and
(f) to visit places or areas of importance or significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm.
The native title rights and interests are subject to and exercisable in accordance with:
- the Laws of the State and the Commonwealth; and
- the traditional laws acknowledged and traditional customs observed by the Native Title Holders.
There are no native title rights in or 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).
The native title rights and interests in relation to that part of the determination area described in Schedule 3 do not confer possession, occupation, use and enjoyment of the area on the Native Title Holders to the exclusion of all others.
Non-native title rights and interests that exist within the determination area:
1. The rights and interests of the State of Queensland and the interests of any permittees or licencees pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation in relation to the Finucane Island ILUA Area;
2. The rights and interests of the parties under the following indigenous land use agreements ("ILUAs"):
(a) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and the State of Queensland, entitled Gangalidda People Finucane Island ILUA dated 16 December 2014;
(b) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC, the State of Queensland and the Burke Shire Council entitled Burketown ILUA dated 16 December 2014;
(c) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Westmoreland Pastoral Company Pty Ltd, entitled the Gangalidda and Garawa People Westmoreland Pastoral ILUA dated 5 March 2015;
(d) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Panoy Pty Ltd, entitled the Garawa People Wentworth Pastoral ILUA dated 26 March 2015;
(e) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Norman Leonard Clarke, entitled the Gangalidda People Almora Pastoral ILUA dated 11 March 2015;
(f) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and John Geoffrey Nelson and Janice Nelson, entitled the Gangalidda People Birkalla, Little Doab, Nierrina, Beamesbrook and Other Interests ILUA dated 18 December 2014;
(g) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Paraway Pastoral Company Limited, entitled the Gangalidda People Armraynald, Part Doab, Yarrum and Iluka Pastoral ILUA dated 17 March 2015;
(h) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Lorna Ann Elizabeth Smith, John Ross Smith, Judith Anne Goodall, Frederick James Edwards and Patricia Joy White, entitled the Gangalidda People Kotupna Pastoral ILUA dated 5 March 2015; and
(i) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Venlock Pty Ltd, entitled the Gangalidda People Punjaub Pastoral ILUA dated 27 March 2015;
3. The rights and interests of the grantee and others under the Deed of Grant of Land (Reference 50875488) over that part of Lot 6 on SP243581 ("Doomadgee DOGIT");
4. The rights and interests of Westmoreland Pastoral Company Pty Ltd ACN 009 711 602 under PH08/1406, over Lot 1 on SP217472 (“Westmoreland Pastoral Holding”);
5. The rights and interests of Panoy Pty Ltd ACN 010 023 346 as lessee under PH08/2353, over Lot 2353 on PH1515 (“Wentworth Pastoral Holding”);
6. The rights and interests of Norman Leonard Clarke as lessee under PH8/4876, over Lot 5 on Crown Plan BK39 and Lot 1 on Crown Plan BLR5 (“Almora Pastoral Holding”);
7. The rights and interests of John Geoffrey Nelson and Janice Nelson as lessees under:
(a) PH08/3218, over Lot 2 on CP817875 (“Birkalla Pastoral Holding”);
(b) PH08/4444, over Lot 4444 on PH888 (“Little Doab Pastoral Holding”);
(c) PH08/3298, over Lot 3298 on PH375 (“Nierrina Pastoral Holding”);
(d) Beamesbrook Term Lease (Title Reference 40064761) over Lot 3210 on Crown Plan 891359 (“Beamesbrook Term Lease”); and
(e) Term Lease TL0/215966 over Lot 4 on Crown Plan BK10 (“TL 0/215966”);
8. The rights and interests of Paraway Pastoral Company Limited ABN 14 122 572 641 as lessee under:
(a) PH08/1907, over Lot 3 on CP847166 (“Armraynald Pastoral Holding”);
(b) PH08/4697, over Lot 1 on CP889414 (“Part Doab Pastoral Holding”);
(c) PH08/3143, over Lot 3143 on PH2080 (“Yarrum Pastoral Holding”); and
(d) PH08/3234, over Lot 3234 on PH788 (“Iluka Pastoral Holding”);
9. The rights and interests of Turn Off Lagoons Pastoral Holding Company Pty Ltd ACN 085 377 304 as lessee under PH8/5440, over Lot 1 on CP887914 (“Turn Off Lagoons Pastoral Holding”);
10. The rights and interests of Juanita Mary Clarke and Leslie Gordon Clarke as lessees under PH08/3345, over Lot 3345 on CP PH731 (“Brinawa Pastoral Holding”);
11. The rights and interests of Venlock Pty Ltd ACN 010 198 893 as lessee under PH8/5027, over Lot 13 on CP BK32 (“Punjaub Pastoral Holding”).
12. The rights and interests of Lawn Hill and Riversleigh Pastoral Holding Company Pty Ltd ACN 083 607 470 as lessee under TL0/221407 over Lot 5 on SP111112 (“Lawn Hill Pastoral Holding”);
13. The rights and interests of Lorna Ann Elizabeth Smith, John Ross Smith, Judith Anne Goodall, Frederick James Edwards and Patricia Joy White as lessees under PH8/3505 over Lot 3505 on CP PH1038 (“Kotupna”);
14. The rights and interests of William Archibald Olive and McRae Investments Pty Ltd ACN 008 696 731 as lessees under TL0/237237 over Lot 2 on SP217472 (“Cliffdale Term Lease”);
15. The rights and interests of Telstra Corporation Limited ACN 051 775 556:
(a) as the owner or operator of telecommunications facilities within the determination area;
(b) 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:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the Determination Area in the performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area including under:
(i) Term Lease 0/233251 over Lot 117 on Crown Plan PC43 (Title Reference 40058255);
(ii) Term Lease 0/221724 over Lot 5 on Crown Plan BK38 (Title Reference 40046528); and
(iii) a permissive occupancy issued by the Department of Community Services Queensland on 10 June 1986 providing for the use of an area measuring 150m by 150m on the Doomadgee DOGIT;
16. The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:
(a) as the owner and operator of "Works" as that term is defined in the Electricity Act 1994 (Qld) within the determination area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), including:
(i) rights in relation to any agreement entered into before the date on which these orders are made relating to the determination area and to which ss 113A or 113B of the Electricity Act 1994 (Qld) apply;
(ii) rights to enter the determination area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and
(iii) to inspect, maintain and manage any Works in the determination area;
17. The rights and interests of the State of Queensland and Burke Shire Council to access, use, operate, maintain and control the dedicated roads in the determination area and the rights and interests of the public to use and access those roads;
18. The rights and interests of Burke Shire Council as the local government to exercise its powers and responsibilities of a local government under the Local Government Act 2009 (Qld) and any other legislation within the Burke local government area under the Local Government Regulations 2012 (Qld);
19. The rights, interests or powers of the Doomadgee Aboriginal Shire Council:
(a) under the Local Government Act 2009 (Qld) and under any other legislation, for that part of the determination area within the Doomadgee local government area under the Local Government Regulations 2012 (Qld); and
(b) as the holder of any estate or interest in land that exists in the determination area, including as the trustee under the Doomadgee DOGIT,
including:
(c) as the owner, operator or holder of any interest in infrastructure, facilities, or other site improvements, including:
(i) roads as defined in the Local Government Act 2009 (Qld);
(ii) buildings or other structures, including fencing;
(iii) gravel pits; and
(iv) water bores, water point facilities and other infrastructure for the supply of water; and
(d) any rights of its employees, agents or contractors to enter land, including:
(i) to perform its local government operational activities such as feral animal and weed control, erosion control, waste management, and fire and land management; and
(ii) to operate, inspect, maintain and repair its infrastructure, facilities and other site improvements;
20. The rights and interests of the holders of any leases, licences, permits or authorities granted under the Forestry Act 1959 (Qld) as may be current at the date of this determination;
21. In relation to the land and waters comprising that part of the determination area on the seaward side of the High Water Mark:
(a) the rights and interests granted by the State of Queensland or the Commonwealth pursuant to statute including, but not limited to, the rights and interests of persons holding licences, certificates, permits, authorities and permissions pursuant to:
(i) the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld); and
(ii) the Fisheries Act 1994 (Qld), the Fisheries Regulation 1995 (Qld) and the Fisheries Management Act 1991 (Cth); and
(b) the rights and interests of members of the public arising under:
(i) the common law public right to navigate; and
(ii) the common law public right to fish; and
(c) the rights under the international right of innocent passage;
22. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) coastal waters;
(d) beaches;
(e) stock routes; and
(f) areas that were public places at the end of 31 December 1993;
23. Any other rights and interests:
(a) held by the State of Queensland or Commonwealth of Australia; or
(b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
(a) the other interests continue to have effect;
(b) in areas where s 47A of the Native Title Act 1993 (Cth) applies, and prior extinguishment is disregarded in accordance with s 47A(2) of the Native Title Act 1993 (Cth), the non-extinguishment principle in s 238 of the Native Title Act 1993 (Cth) applies to any prior interest in relation to the area in accordance with s 47A(3)(b) of the Native Title Act 1993 (Cth);
(c) in areas where s 47B of the Native Title Act 1993 (Cth) applies, and prior extinguishment is disregarded in accordance with s 47B(2) of the Native Title Act 1993 (Cth), the non-extinguishment principle in s 238 of the Native Title Act 1993 (Cth) applies to any prior interest in relation to the area in accordance with s 47B(3)(b) of the Native Title Act 1993 (Cth); and
(d) the Other Interests, and any activity that is required or permitted by or under and done in accordance with the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them except in accordance with law.
Provisions relevant to the Native Title rights:
- the Gangalidda and Garawa Native Title Aboriginal Corporation (RNTBC ICN 7365), as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;
- native title is not held in trust.
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Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA 730 - Schedule 11 Determination Map - ( 
Taylor on behalf of the Gangalidda and Garawa Peoples #2 v State of Queensland [2015] FCA 730 - Schedule 1 Description of Determination Area - (