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Hoolihan on behalf of the Gugu Badhun People 2 v State of Queensland [2012] FCA 800

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 1 August 2012
Sub Category:Consent Determination (Native Title Act)
Location:In the Burdekin region , Queensland , Australia
The determination area is about 6,540 sq kms, located approximately 40 kms west of Ingham.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference: Tribunal file no.: QC05/7 Federal Court no.: QUD85/2005
Alternative Names:
  • Gugu Badhun #2
  • Subject Matter:Native Title | Pastoral Activities
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/800.html
    Summary Information:
    Between
    Ernie Hoolihan, Harry Gertz, Hazel Illin, Nardu Kennedy and Elsie Thompson on behald of the Gugu Badhun People #2 (APPLICANTS)

    and

    State of Queensland, Townsville City Council, Charters Towers Regional Council, Tablelands Regional Council, Etheridge Shire Council, Hinchinbrook Shire Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Australian Wildlife Conservancy and Alma Elisabeth Gwyneth Atkinson, Henry James Atkinson, Keith Ronald Atkinson, Susan Atkinson, Carolyn Jean Brabon, Graeme Richard Brabon, Gregory Colin Brown, Judith Margaret Brown, Rebecca Mary Burge, Richard Stewart Burge, Glen Patrick Cameron, Laurel Jean Cameron, Don Arthur Condon, Lincoln John Condon, Neville Graham Condon, Rita Ellen Condon, Gregory Neil Jonsson, Keough Holdings Pty Ltd, Edward John Marsterson, Ian James Marsterson, Joseph John Marsterson, Kenneth Edward Marsterson, Rosemary Ann Milton, William Dale Milton, Dino Fiorino Penna, Norma Myrtle Penna, Reedybrook Pastoral Company, Judith Elizabeth Sheahan, Thomas Patrick Sheahan, Raymond Victor Vains and Roselyn Elizabeth Vains (RESPONDENTS)

    Judge:

    Where made: Greenvale

    Determination:

    Native title is held by the Gugu Budhun 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 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 State of Queensland pursuant to any licence, permit or authority granted or issued pursuant to the Radio Communicators Act 1992 (Cth);
    - the rights and interests of the parties under the following indigenous land use agreements:
    the Gugu Badhun People Protected Areas Indigenous Land Use Agreement, the Gugu Badhun People and Local Government Indigenous Land Use Agreement, the Ergon Energy/Gugu Badhun People Agreement, the Australian Wildlife Conservancy/Gugu Badhun People Agreement, the Gugu Badhun/Camel Creek ILUA, the Gugu Badhun/Eland and Lucky Downs ILUA, the Gugu Badhun/ Craiglee North and Craiglee South ILUA, the Gugu Badhun/Meadowbank (aka Kinrara) ILUA, the Gugu Badhun/Lamonds Lagoon ILUA, the Gugu Badhun/Lynwater ILUA, the Gugu Badhun/Conjuboy ILUA, the Gugu Badhun/Mount Fullstop ILUA, the Gugu Badhun/Oak Hills ILUA, the Gugu Badhun/Jervoise ILUA, the Gugu Badhun/Spring Creek (Lynwater) ILUA, the Gugu Badhun/Christmas Creek ILUA, the Gugu Badhun/ Craigs Pocket ILUA, the Gugu Badhun/Ryeburn and Sea View ILUA, the Gugu Badhun/Kangaroo Hills ILUA, the Gugu Badhun/Lincoln Springs ILUA, the Gugu Badhun/Hopewell, Redbank Creek and Valley of Lagoons ILUA, the Gugu Badhun/Glendhu (aka New Farm) ILUA, the Gugu Badhun/Kallanda ILUA;
    - 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) and any rights and interests of any holders of permits granted under the plan relating to the use and management of part of the Determination Area;
    - the rights and interests of the State of Queensland and the interests of any permittees, licensees or authorities pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the use and management of Undara Volcanic National Park, Kinrara National Park, Girringun National Park, Paluma Range National Park and Paluma State Forest;
    - The rights and interests of the holders of any permit, licence, claim, allocation, lease, other authority, agreement or contract issued or made under the Forestry Act 1959 (Qld), Mineral Resources Act 1989 (Qld), under the Petroleum Act 1923 (Qld) or the Petroleum and Gas (Production and Safety) Act 2004 (Qld), Land Act 1994 (Qld), Water Act 2000 (Qld) and any relevant regulations or subordinate legislation made under those Acts;
    - the rights and interests of Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland as an electricity entity exercising statutory functions, powers or rights and as the owner and operator of electricity transmission facilities, and associated infrastructure situated upon the Determination Area.
    - The rights and interests of the State of Queensland, Charters Towers Regional Council, Etheridge Shire Council, Hinchinbrook Shire Council, Tablelands Regional Council and Townsville City 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 roads;
    - the rights and interests of Ergon Energy Corporation Limited as the owner and operator of any 'Works' within the Determination Area, as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld) and created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld).
    - The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area, 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), and under any lease, licence, access agreement or easement relating to its telecommunication facilities in the Determination Area;
    - the rights and interests of the Australian Wildlife Conservancy under pastoral lease TL221091, title reference 40043707;
    - the rights and interests of Charters Towers Council including any rights the Council, its employees, agents or contractors have under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within its local government area, as defined in the Local Government Act 2009 (Qld), as the lessor under any leases, grantor of any licences or other rights and interests, holder of any estate or interest in land, and as trustee of any reserves, as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area and the right to enter and inspect maintain and repair the infrastructure, facilities and other improvements and undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management;
    - the rights and interests of Etheridge Shire Council, Hinchinbrook Shire Council, Tablelands Regional Council and Townsville City Council including any rights the Councils, their employees, agents or contractors have under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within their respective local government areas, as owner and operator of infrastructure, facilities and other improvements which are in the Determination Area as at the date of the Determination and to enter and exercise rights within the Determination Area in accordance with the Local Government Act 2009 (Qld);
    - the rights and interests of Keith Ronald Atkinson and Alma Elisabeth Gwyneth Atkinson the Pastoral Holding known as Camel Creek;
    - the rights and interests of Eugene John Phillip Matthews and Heather Jean Matthews under Term Lease known as Christmas Creek;
    - the rights and interests of Don Arthur Rankine Condon, Rita Ellen Condon, Neville Graham Condon and Lincoln John Condon under Pastoral Holding 22/4594 known as Conjuboy;
    - the rights and interests of Graeme Richard Brabon and Carolyn Jean Brabon under Preferential Pastoral Holding 24/5233 known as Craiglee North and Preferential Pastoral Holding 24/5234 known as Craiglee South;
    - the rights and interests of Edward John Marsterson, Kenneth Edward Marsterson, Joseph John Marsterson and Ian James Marsterson under Preferential Pastoral Holding 22/5038 known as Craigs Pocket;
    - the rights and interests of Henry James Atkinson and Susan Atkinson under Pastoral Holding 24/4836 known as Eland and Pastoral Holding 24/547 known as Lucky Downs;
    - the rights and interests of Garry Lawrence Core and Trevor Alan Core under Pastoral Holding 11/4844 known as Mount Fullstop;
    - The rights and interests of Michael John Toohey under Preferential Pastoral Holding 22/4984 known as Glendhu (aka New Farm);
    - the rights and interests of Thomas Patrick Sheahan and Judith Elizabeth Sheahan under Pastoral Holding 22/5281 and Occupation Licence 22/227 known as Hopewell, Preferential Pastoral Holding 24/5138 known as Redbank Creek and Pastoral Holding 22/593 known as Valley of Lagoons;
    - the rights and interests of Gregory Neil Jonsson under Preferential Pastoral Holding 22/3162 known as Jervoise;
    - the rights and interests of Lachlan Alexander Thomson and Penelope Ann Milton-Thomson under Pastoral Holding 24/4054 known as Kallanda;
    - the rights and interests of Dino Fiorino Penna and Norma Myrtle Penna under Pastoral Holding 24/5433 known as Kangaroo Hills;
    - the rights and interests of Richard Stewart Burge and Rebecca Mary Burge under Preferential Pastoral Holding 22/5203 known as Lamonds Lagoon;
    - the rights and interests of George Wayne Shadforth and Joanne Shadforth under Preferential Pastoral Holding 24/5126 known as Lincoln Springs;
    - the rights and interests of Victor Gerald Collins under Pastoral Holding 18/5287 known as Lynwater;
    - the rights and interests of Gregory Colin Brown, Judith Margaret Brown, Glen Patrick Cameron and Laurel Jean Cameron under Preferential Pastoral Holding 22/537 known as Meadowbank (aka New Farm);
    - the rights and interests of Wayne William Crisp and Glenda Desley Crisp under Pastoral Holding 24/5318 known as Oak Hills;
    - The rights and interests of William Dale Milton and Rosemary Ann Milton under Preferential Pastoral Holding 24/3198 known as Ryeburn and Preferential Pastoral Holding 24/3862 Sea View;
    - the rights and interests of Keough Holdings Pty Ltd under Term Lease 220131 known as Spring Creek (aka Lynwater);
    - The rights and interests of Reedybrook Pastoral Co Pty Ltd under Permit to Occupy 209909;
    - the rights and interests of Raymond Victor Vains, Roselyn Elizabeth Vains, Mark Damien Olditch and Raeleen Mae Olditch under Term Lease 211860;
    - the rights and interests of Ryan Bradley Jones and Sue-Ann Jones under Term Lease 219125;
    - Any existing public access to, and enjoyment of waterways, beds and banks of waterways and areas that were public places at the end of 31 December 1993 in the determination area;
    - The rights and interests of members of the public arising under the common law, including the public right to fish and the public right to navigate;
    - any other rights and interests held by the State of Queensland or Commonwealth of Australia, or by reason of the force and operation of the Laws of the State of Queensland and the Commonwealth of Australia.

    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 Gugu Badhun Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth). The Native Title rights are not to be held in trust.

    Detailed Information:
    Background

    The application lodged by the Gugu Badhun encompasses land in the Upper Burdekin region of Far North Queensland, west to the Great Diving Range and north of Charters Towers. The application included the town of Greenvale and the Valley of Lagoons.

    The Gugu Badhun people have used and occupied Gugu Badhun country prior to the assertion of British Sovereignty in 1788. The use of the Gugu Badhun language and acquisition and transfer of Gugu Badhun cultural knowledge has continued throughout the 20th Century to the present day. Historical material shows that the earliest evidence of Aboriginal occupation of the claim area was recorded by explorer Ludwig Leichardt during his overland expedition from Moreton Bay to Port Essington in 1844. Anthropological and historical evidence shows that the Gugu Badhun people have an identity and a connection to the land through the application of normative rules associated with dreaming stories and significant places.

    Dale Gertz, a representative for the Gagu Badhun people said that the native title determination was an important day for his people who have been working towards the determination for seven years.

    "It certainly was a hard slog and particularly for our elders who were the main applicants for this," he said.

    Details of Judgement

    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.

    Related Entries

    Agreement
  • Gugu Badhun People and Australian Wildlife Conservancy Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People and Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Jervoise Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Spring Creek (aka Lynwater) Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Meadowbank (aka Kinrara) Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People Exploration Permit Backlog Project Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Mount Fullstop Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/ Kallanda Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Oak Hills Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Lynwater (aka Spring Creek) Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Hidden Valley Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Glendhu (aka New Farm) Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Kallanda Indigenous Land Use Agreement (ILUA )
  • Gugu Badhun People / Kangaroo Hills Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People / Lincoln Springs Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Hopewell, Redbank Creek and Valley of Lagoons Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Lamonds Lagoon Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Mount Fullstop Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Camel Creek Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Christmas Creek Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Conjuboy Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Craiglee North & Craiglee South Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Craigs Pocket Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People/Eland and Lucky Downs Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People and Local Government Indigenous Land Use Agreement (ILUA)
  • Gugu Badhun People and Hidden Valley Cabins Indigenous Land Use Agreement (ILUA)
  • Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691
  • Organisation
  • State of Queensland - Respondent
  • Townsville City Council - Respondent
  • Charters Towers Regional Council - Respondent
  • Tablelands Regional Council - Respondent
  • Etheridge Shire Council - Respondent
  • Hinchinbrook Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • Australian Wildlife Conservancy - Respondent
  • Gugu Badhun Aboriginal Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Electricity Act 1994 (Qld)
  • Local Government Act 2009 (Qld)
  • Government Owned Corporations Act 1993 (Qld)
  • Telecommunications Act 1975 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Post and Telegraph Act 1901(Cth)
  • People
  • Gugu Badhun People - Native Title Applicants
  • Harry Gertz, Ernie Hoolihan, Hazel Illin, Narda Kennedy and Elsie Thompson on behalf of the Gugu Badhun People #2 - Native Title Claimant
  • Tenth to fortieth pastoral respondents - Alma Atkinson to Roselyn Vains - Respondent

  • References

    General Reference
    ABC News (2012) 'Hard slog' over for Burdekin native title bid
    National Native Title Tribunal (2012) Native title determination summary - Gugu Badhun People #2

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Local Government | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | Native Title Determination (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Respondent | Native Title Registers

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