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Erica Deeral (on behalf of herself and the Gamaay Peoples) & Ors v Gordon Charlie & Ors  1408 FCA (8 December 1997)
|Binomial Name:||Federal Court of Australia|
|Date:||8 December 1997|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Hopevale, near Cooktown, Queensland, Australia|
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|The Determination Area comprises 110,000 hectares of land in the Hopevale area, near Cooktown.|
|Legal Status:||Registered on the National Native Title Register o|
|Legal Reference:||Federal Court No: QG174/97; National Native Title|
|Subject Matter:||Native Title | Recognition Agreement / Acknowledgement | Recognition of Native Title or Traditional Ownership|
|Erica Deeral (on behalf of herself and the Gamaay Peoples) & Ors v Gordon Charlie & Ors  1408 FCA|
Between: Erica Deeral (on behalf of herself and the Gamaay Peoples), Phillip Baru (on behalf of himself and the Dingaal Peoples), Bertie Gordon (on behalf of himself and the Nugal Peoples), Herman Bambie (on behalf of himself and the Thuubi Peoples), Brian Cobus (on behalf of himself and the Nguurruumungu), Wayne Coats (on behalf of himself and the Dharrpa Peoples), Pat Wallace (on behalf of himself and the Binhthi Peoples), Eddie Deemal (on behalf of himself and the Thiithaarr Peoples), Hector Michael (on behalf of himself and the Thanil Peoples), George Rosendale (on behalf of himself and Nguymbaarr Nguymbaarr Peoples), Terrence Jacko (on behalf of himself and the Ngaatha Peoples), Martin James (on behalf of himself and the Gulaal Peoples) jointly, and in their capacities as representatives of their respective clans; and Bertie Gordon, Herman Bambie, Pat Wallace, Eddie Deemal and Terrence Jacko in their respective capacities jointly on behalf of the Buurnga Peoples (APPLICANTS) AND
Gordon Charlie, State of Queensland, Hopevale Aboriginal Council, Cape Flattery Silica Mines Pty Limited, Cook Shire Council, Far North Queensland Electricity Corporation, Telstra Corporation Limited, Robert William Dunn by his agent the Queensland Commercial Fishermen's Organisation, Australian Maritime Safety Authority, Cape York Land Council Aboriginal Corporation (RESPONDENTS)
Judge: Beaumont J
Where: Hopevale, north of Cooktown, Queensland
Native title rights and interests exist in relation to land and waters near Cooktown in circumstances where the interested parties have reached agreement.
|In June 1996, a native title determination application was made to the National Native Title Tribunal under the Native Title Act 1993 on behalf of 11 of the 'Hopevale clans' in relation to land in the Hopevale area, near Cooktown. The clans had agreed to apply collectively for native title rights as a result of the Hopevale Heads of Agreement. Two other clans later joined these clans. In February 1996, all the clans agreed to form a body called the Hopevale Congress of Clans, comprising one representative from of each of the clans. This relationship was later formalised with a 'Compact of Association' between the clans in October 1997. Following a series of mediations, several internal issues between the applicants were resolved. In particular, the delimitation of clan boundaries was agreed upon. In response to a detailed anthropological report, the State Government accepted that the applicants were the traditional owners of the area under application. The Hopevale Aboriginal Council had also given similar recognition to the applicants. The land in question had been granted to the Hopevale Aboriginal Council in 1986 to be held on trust for the Aboriginal inhabitants. |
Between May 1997 and October 1997, an agreement concerning native title was developed through consultation with all parties to the consent determination. This agreement was signed and executed in October and November 1997.
Justice Beaumont concluded that the Court had the power to make a determination of native title in this instance. The court thus determined by consent that native title rights and interests exist in relation to land and waters near Cooktown in circumstances where the interested parties have reached agreement. This consent determination did not include details of the nature of the rights and interests conferred on the native title holders nor did it outline the other interests recognised in the agreement.
The details of the principal Deed of Agreement between the parties in the consent determination was described in the Australian Indigenous Law Reporter in an article entitled 'Erica Deeral (On behalf of herself and the Gamaay Peoples) & Ors v Gordon Charlie & Ors  1408 FCA (8 December 1997)'. The Deed of Agreement contained a series of annexures relating to agreements between the native title applicants and Telstra, the Far North Queensland Electricity Corporation, the Hopevale Aboriginal Council and the State of Queensland. Part of the Deed of Agreement included a schedule of lands in which the native title interests and rights were agreed to have been extinguished. In addition the Hopevale clans made a separate agreement with the Queensland Commercial Fisherman's Organisation who acted as an agent for Robert William Dunn.
The parties had a further hearing in Erica Deeral (On behalf of herself and the Gamaay Peoples) & Ors v Gordon Charlie & Ors  723 FCA (1 June 1998) in relation to seeking a extension of time by which to nominate the corporate bodies which would care for the native title on behalf of the native title holders in accordance with the Native Title Act 1993. Justice Beaumont granted an extension of time. It was later agreed that the Dhubbiwarra Aboriginal Corporation, the Hope Vale Congress Aboriginal Corporation and the Walmbaar Aboriginal Corporation would be the registered native title body corporates.
|Significant outcomes in Mediation|
There were a number of significant outcomes in mediation.
In January, February, and March 1997, the applicants participated in a number of intensive workshops covering various internal issues.
1. Clan Boundaries
The applicants mapped their internal clan boundaries, and prepared a clan boundary map for submission to the State, to facilitate the recognition of native title for each clan over their respective clan estates.
2. Anthropology report on connection
Following an extensive consultation process with their anthropologist which brought to light a number of issues later requiring the amendment of the native title application, the applicants provided the State Government with a detailed advice on their traditional connection to the area.
3. Shared Land at Cape Flattery
Through the mediation process, including the mapping and anthropologist reporting process, an `arrangement' was worked out whereby the Dingaal and Nguurruumungu clans agreed to `share' an area of land. The two clans also entered into a confidential agreement regarding use of the shared land area.
4. Compact Of Association
The traditional owners who are the native title holders of the clans agreed to form a body called the Hopevale Congress of Clans in February 1996 (See Hopevale Heads of Agreement) at the Cooktown meetings. The Congress is comprised of one representative of each clan. The Congress, together with other members of the clans met approximately once every three weeks at Hopevale throughout the mediation of the application.
5. Interest Regularisation Process
An issue arose during mediation regarding the status of people (traditional owners and historical owners) living on the dogit on tenures apparently issued by the Hopevale Aboriginal Council and the State Government.
5.1 A question of validity of the leases was resolved within an extensive mediation process, conducted to determine how the interests of the "lease holders" and the applicants could be reconciled.
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