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Murgha on behalf of the Combined Gunggandji Claim v State of Queensland  FCA 1511
|Date:||19 December 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Yarrabah, Queensland , Australia|
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|The determination covers 7508 hecatres in the vicinity of Yarrabah in Far North Queensland.|
|Legal Status:||Registered on the National Native Title Register (of native title determinations).|
|Legal Reference:||Tribunal file no.: QC01/19; Federal Court no.: QUD6013/2001|
|Subject Matter:||Access | Fishing | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Water|
|Between: Leslie Murgha on behalf of the combined Gunggandji Claim (APPLICANT) and: |
State of Queensland (FIRST RESPONDENT)
Cairns Regional Council (SECOND RESPONDENT)
Yarrabah Aboriginal Shire Council (THIRD RESPONDENT)
Black and White (Quick Service) Taxis Pty Ltd (FOURTH RESPONDENT)
Ergon Energy Corporation Ltd (FIFTH RESPONDENT)
Miles Electronics Pty Ltd (SIXTH RESPONDENT)
Seven Network (Opertations) Ltd (SEVENTH REPONDENT)
Southern Cross Media Australia Pty Ltd (EIGHTH RESPONDENT)
Telstra Corporation Ltd (NINTH RESPONDENT)
Michael Connolly, Vance Henry Gordon, Percy & Alf Neal, Darryl Ralph Pollard, Elaine Marina Pollard and Allan Mimo Yeatman (TENTH RESPONDENTS)
Judge: Dowsett J
Where made: Yarrabah
Native title exists in the determination area. It consists of exclusive and non-exclusive native title rights.
Native title is held by people who are Gunggandji People either by descent or adoption.
The exclusive native title rights over part of the determination area consist of the rights to possession, occupation, use and enjoyment to the exclusion of all others.
In relation to the non-exclusive native title rights over part of the on-shore determination area, the rights and interests that exist include:
- the right to access; and
- the right to take and use traditional natural resources from the determination area for personal, domestic and non-commercial communal purposes.
In relation to water within the determination are the non-exclusive native title rights and interests that exist include:
- the right to hunt and fish and gather for personal, domestic and non-commercial communal purposes; and
- the right to take and use the water for personal, domestic and non-commercial communal purposes.
Non-native title rights and interests that exist within the determination area
- the rights and interests of the parties under the following indigenous land use agreements: Yarrabah Blockholders ILUA (QI2011/013); Yarrabah DOGIT Transfer ILUA (QI2011/014); Yarrabah Towers ILUA (QI2011/015); Yarrabah Protected Areas ILUA (QI2011/020); Yarrabah Local Government ILUA (QI2011/016); Cairns Regional Council/Combined Gunggandji ILUA (QI2011/048); and Ergon Energy ILUA (QI2011/017).
- the rights and interests of the Yarrabah Shire Council under the Deed of Grant in Trust (DOGIT) dated 25 October 1986;
- the rights and interests of any holder of a perpetual lease granted under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) within the external boundary of the DOGIT area;
- the rights and interests of the Yarrabah Aboriginal Shire Council and Cairns Regional Council as the local government authorities under the Local Government Act 2009 (Qld) including any rights the Councils or its employees or agents have as owner and operator of infrastructure, facilities and other improvements which are in the determination area or to enter and exercise rights within the Determination Area in accordance with the Local Government Act 2009 (Qld);
- the rights and interests of Telstra Corporation Limited as the the owner or operator of telecommunications facilities within the determination area or 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);
- the rights and interests of Ergon Energy Corporation Limited as as the owner and operator of 'works' as defined in the Electricity Act 1994 (Qld) within the determination area, as a distribution entity and the holder of a distribution authority and any rights created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
- the rights and interests of Black & White (Quick Service) Taxis Ltd, Miles Electronics Pty Ltd, Seven Network (Operations) Limited and Southern Cross Media Australia Pty Ltd as the owners or operators of telecommunications facilities and other infrastructure within the determination area, as the grantees of an authority under s 34 of the Nature Conservation Act 1992 (Qld) relating to the use and management of their telecommunications facilities in the determination area and as the permittees under an easement between the State of Queensland and the Yarrabah Aboriginal Shire Council which includes rights for Black & White Taxis, Miles Electronics, Seven Network or Southern Cross Media Australia or their employees, agents or contractors to access its telecommunications facilities within the determination area;
- the rights and interests of the State of Queensland pursuant to the Forestry Act 1959 (Qld) and Nature Conservation Act 1992 (Qld) relating to the use and management of of the Malbon Thompson Forest Reserve which is within the determination area;
- The rights and interests of the Wet Tropics Management Authority pursuant to the Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and the Wet Tropics Management Plan 1998 (Qld);
- the rights and interests of the holders of any current leases, agreements, licences, permits or authorities granted under the Forestry Act 1959 (Qld), the Nature Conservation Act 1992 (Qld) or the Wet Tropics Management Plan 1998 (Qld).
- Any other current rights and interests held by the State of Queensland or Commonwealth of Australia.
In the case of conflict, the exercise of non-native title rights and interests will take precedence over the non-exclusive native title , which will, however, continue in their entirety.
Provisions Relevant to the Native Title Rights
Gunggandji PBC Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held in trust.
The consent determination relates to two applications that were made by the Gurubana Gunggandji and Gungandji People in 1994 and 1995 respectively in the Yarrabah area. The claim was joined in 2001 and registered in 2008.
In handing down the consent determination, the Federal Court recognised exclusive native title rights in relation to around 7508 hecatres of land with non exclusive native title rights over 789 hectares of land and waters. In total the Federal court recognised the Gunggandji People's rights to 8297 hectares of land in the vicinity of Yarrabah in far north Queensland (National Native Title Tribunal, Combined Gunggandji People's native title determination).
The claim concerns land and waters predominately to the east of the Yarrabah region. It includes the northern part of the Yarrabah Deed of Grant in Trust ('DOGIT'), including Yarrabah township, the foreshores of Mission Bay, Cape Grafton, Turtle Bay, Wide Bay and Oombunghi beach, part of Malbon Thompson Forest Reserve and two parcels of land on Fitzroy island.
The Gunggandji Claim also negotiated seven Indigenous Land Use Agreements (ILUAs) (National Native Title Tribunal, Combined Gunggandji People's native title determination).
- a local government ILUA between the Gunggandji People and Yarrabah Aboriginal Shire Council to provide for the protection of Aboriginal cultural heritage, while establishing how development in the future will proceed in the local government area;
- a blockholder ILUA between the State of Queensland, Yarrabah Aboriginal Shire Council, Gunggandji People and individual blockholders to enable the grant of leases for historical blockholders;
- a DOGIT transfer ILUA between the State of Queensland, Yarrabah Aboriginal Shire Council and Gunggandji people;
- a local government ILUA between the Gunggandji People and Cairns Regional Council which provides for the protection of Aboriginal cultural heritage, while establishing how development in the future will proceed in the local government area.
- a protected areas ILUA between the Gunggandji People and the State Government establishes how the native title rights and interests will be
exercised in parts of various conservation parks and forest reserves within the claim area;
- an ILUA between the Gunggandji People and the State Government to provide for future act consent for the creation of tenures to facilitate the services provided by various communication tower operators; and
- an ILUA between Ergon Energy Corporation Limited and the Gunggandji People provides for continued access by Ergon Energy to the determination area.
Aboriginal and Torres Strait Islander Partnerships Minister Curtis Pitt stated that the 'determination celebrates the Combined Gunggandji People's native title rights and interest in their traditional lands around Yarrabah.' Mr Pitt then went on to acknowledge the role of the elders in bringing about the determination (Indigenous Peoples Issues & Resources, 2011). Native title applicant Les Murgha said that the determination is 'a new beginning.' He also said that it was vital that local Yarrabah people unite together as a community 'and to show that unity that we are Yarrabah - one fire, burru kumil.' (Koori Mail, 2012).
Details of Judgement
The parties to the consent determination reached an agreement to the terms which was filed on 30 November 2011 with the Federal Court.
The Federal Court, in consideration of the circumstances including the parties access to legal representation, was satisfied that it had the authority to endorse the agreement.
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