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Djabugay v Queensland [2004] FCA 1652

Category: Agreement
Date: 17 December 2004
Sub Category:Consent Determination (Native Title Act)
Location:Barron Gorge National Park, Northwest of Cairns, Queensland, Australia
The area covered by the determination comprises the land and waters of the Barron Gorge National Park being lot 880 on Plan 459 as set out in Schedule 1 to the determination.
Legal Status: Registration of this determination is conditional
Legal Reference: Federal Court No: QG 6002; Tribunal File No: QC94/
Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
Summary Information:
Djabugay v Queensland [2004] FCA 1652

Between: Barry Hunter, Ivan Brim, Lloyd Levers, Gerald Hobbler, Melvyn Hunter, Patrick Hastie and Rhonda Brim on their own behalf and on behalf of the Djabugay People (APPLICANTS) AND
State of Queensland and Cairns City Council (RESPONDENTS)

Judge: Spender J

Where: Kuranda, Queensland

Determination:
Native title exists in the determination area. The determination recognises that the persons holding the commununal and group rights are the Djabugay People, who are the common law holders of native title. The nature and extent of the native title rights and interests in relation to the determination area are the non-exclusive rights of the Djabugay People.

The area covered by the determination is shown on the plan in Schedule 1. Native title exists in relation to the land and waters within Lot 880 on Plan NPW 459 (known as Barron Gorge National Park) (with some exclusions: see Order 1(a) - (o)).

Native title is held by the Djabugay People as described in Order 2.

The native title rights and interests identified in Order 3, held by the Djabugay People over the determination area, confer non-exclusive rights to use and enjoy the land and waters of the Determination Area subject to Orders 4, 5 and 6.

The native title right in relation to land and water set out in Order 3 is a non-exclusive right to:
'(a) be physically present on the Determination Area;
(b) camp on the Determination Area;
(c) hunt, fish, gather on, and take the natural resources of, the Determination Area for the purpose of satisfying their personal, domestic social, cultural, religious, spiritual, ceremonial, and communal needs for non-commercial purposes;
(d) maintain and protect by lawful means places within the Determination Area of importance to the Djabugay People;
(e) perform social, cultural, religious, spiritual or ceremonial activities on the Determination Area and invite others to participate in those activities;
(f) make decisions about the use and enjoyment of the Determination Area by Aboriginal people who are governed by the traditional laws acknowledged and traditional customs observed by the Djabugay People.'

The native title rights and interests set out above do not confer possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. Nor do they extend to a right to control access to or a right to control the use of the Determination Area.

The native title rights identified are subject to and exercisable in accordance with Commonwealth and State laws and the common law, and with traditional laws and customs observed by the Djabugay People. They are also subject to the Nature Conservation Act 1992 (Qld) and the operation of s 24JA of the Native Title Act 1993 (Cth) such that some existing native title rights might be extinguished in the future.

Other (non-native title) interests recognised in the area are set out in Order 7. These include the interests of the State of Queensland in relation to the use and management of the Barron Gorge National Park; the interests of the State of Queensland and the Djabugay People under a deed of agreement dated 10 December 2004 (an Indigenous Land Use Agreement); permittee and licencee interests relating to the use and management of the Barron Gorge National Park; Shire statutory powers; interests of utilities companies;and interests of registered proprietors of various lots (see Order 7(a) - (o)).

The interests set out in Order 7 may be exercised notwithstanding the existence of native title. To the extent of any inconsistency between the native title rights and other interests, the other interests prevail over native title.

The native title is not to be held in trust. The Djabugay Native Title Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).

The terms of the order are to take effect on the registration of an Indigenous Land Use Agreement (see Order 7(b)).

In the event that no such ILUA is registered within eight months of the date of this order (17 December 2004), the matter will be listed for further directions.

This consent determination was registered on the Native Title Register of Consent Determinations on 25 July 2005.
Detailed Information:
The initial application for determination of native title was lodged with the National Native Title Tribunal on 26 May 1994. The application was filed by Andrew Duffin. The claim was entered onto the Native Title Register on 17 January 2002. The application was subsequently amended and Andrew Duffin was removed as applicant. The joint applicants became Barry Hunter, Ivan Brim, Lloyd Levers, Gerald Hobbler, Melvyn Hunter, Patrick Hastie and Rhonda Brim. The main objective of the applicants was to have their native title rights and interests in the Barron Gorge National Park recognised.

This consent determination is the first to be made over a national park in Queensland without litigation.The area covered by the determination is located in Far North Queensland covering an area of approximately 2,800 hectares.

Certain areas within the National Park are not covered by the determination. These include:
-Areas that were previously covered by a freehold grant or exclusive lease;
-Leases and cable way for Skyrail; and
-Areas where there are public works. These include the boardwalk linking Barron Gorge train station with the carpark off Barron Falls Road, the Cairns Kuranda railway corridor and other works associated with Barron Gorge Hydro-Electric Power Station.

Prior to making the final determination, the Federal Court noted that the parties to the determination - the Djabugay People, the State of Queensland and the Cairns City Council - had reached agreement on the terms of the native title determination. Accordingly, the parties acknowledged the Djabugay's long-standing and strong connection to the land in question, that the effect of the determination is that the Djabugay People will have a right to be acknowledged as the native title holders for the Barron Gorge National Park in accordance with their traditional laws and customs which includes the authority to resolve disputes between Aboriginal people concerning the exercise of native title rights and interests in relation to the National Park.

The Environmental Protection Agency is presently working with the Djabugay People to develop a management plan for the National Park.

The application of the determination is conditional upon the registration of the Barron Gorge Indigenous Land Use Agreement (the ILUA). This ILUA was registered on 25 July 2005. The ILUA is to be binding on all native title holders of the area covered by the agreement, whether or not they are parties to the agreement. The area covered by the ILUA is the same as that covered by the consent determination and reflects agreement about the exercise of native title rights and interests in the National Park.

Related Entries

Agreement
  • Barron Gorge National Park Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Cairns City Council - Respondent
  • State of Queensland - Respondent
  • Djabugay Native Title Aboriginal Corporation
  • Federal Court of Australia
  • National Native Title Tribunal
  • Environmental Protection Agency (Queensland)
  • Cairns Regional Council - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Nature Conservation Act 1992 (Qld)
  • People
  • Djabugay People
  • Barry Hunter and others on their own behalf and on behalf of the Djabugay People - Native Title Claimant

  • References

    Case Law
    Federal Court of Australia (2004) Djabugay People v State of Queensland [2004] FCA 1652 (17 December 2004)
    Media Release
    National Native Title Tribunal (2004) Native Title Recognised over Barron Gorge National Park
    Resource
    National Native Title Tribunal (2004) Djabugay Determination: Background Information 17 December 2004
    National Native Title Tribunal (2004) Native Title Hotspots

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia)

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