Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland  FCA 1084
|Binomial Name: ||Federal Court of Australia|
|Date: ||26 July 2007|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Far North Queensland, Queensland, Australia|
|Strathgordon Pastoral Lease is located 415km north-west of Cairns and 56km east of Pormpuraaw, in Far North Queensland. |
|Legal Status: ||Registered on the National Native Title tribunal Register. |
|Legal Reference: ||Federal Court No.: QUD6005 of 2003, National Native Title File No. QC03/5.|
|Subject Matter:||Access | Land Use | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Water|
|Summary Information: |
|Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland  FCA 1084|
Between: Timothy James Malachi, Gavin James Kendall, Isobella Jennifer Coleman, Danny Timothy Coleman, Horace Lowdown, Jerry Ned, Freddie Glen Coleman, Paul Michael John Ballie and Ivan James Ned on behalf of the Strathgordon Mob (APPLICANT)
State Of Queensland Cook Shire Council and Queensland Lapidary Allied Craft Clubs Association (RESPONDENTS)
Date: 26 July 2007
Judge: Greenwood J
Where: Strathgordon Station, Cape York Peninsula
Determination: Exclusive native title rights exist over the land in the determination area, and non-exclusive native title rights exist over waters in the determination area.
|Detailed Information: |
|The Cape York Land Council, acting on behalf of the applicants in this matter, lodged the native title claim in the Federal Court on 29 May 2003. The application related to an area described as ‘the land and waters within the external boundary of Lot 2 on Crown Plan 911380, excluding the existing dedicated roads, as shown and described as Lot 1. The area amounts to approximately 1180 sq km, bounded by sections of the Edward and Coleman Rivers of Cape York Peninsula and is described generally as Strathgordon.'|
The claimants in this case are the descendants of a number of language groups identified in and around the Determination Area at the time of colonial contact, ‘described as the Bakanh, Wik, Iyeny and Olkol/Olkola language groups.'
The claim passed National Native Title Tribunal’s registration test, and was registered on 31 July 2003. On 18 March 2004, the Federal Court directed parties to the National Native Title Tribunal for mediation. This mediation continued until April 2007. During this time, the parties reached agreement on two Indigenous Land Use Agreements, the Strathgordon Roads ILUA and the Strathgordon Area ILUA. For more information on these two agreements, see below.
Greenwood J made a determination reflecting this agreement, recognising native title rights over the determination area as:
(a) ‘except in relation to water – the right of possession, occupation, use and enjoyment to the exclusion of all others; and
(b) in relation to water – non exclusion rights to:
(i) hunt and fish in or on, and gather from, Water for the purpose of satisfying personal, domestic and non commercial communal needs; and
(ii) take and use water for the purpose of satisfying personal, domestic or non commercial communal needs.
The native title in relation to water does not confer possession, occupation, use and enjoyment of the water on the Native Title Holders to the exclusion of all others’ (Determination Paragraph 3).
These rights and interests are to be held by the Thaa-Nguigaar Strathgordon Aboriginal Corporation on behalf of the Strathgordon Mob, a group defined as:
(a) ‘the descendants of Old Ned (Bungkuw); Manpungka (father of Shortjoe, Stan Monday and Wonhtha); the siblings Mimosa, Alison Yam and May Yam; Philip (father of Phil Coleman and Judy Killarney); Iinchar; Frank Yam; the siblings Polly (wife of Mustard and mother of Clara Sellars) and Lilly Boxer; and Jim Coleman; and
(b) those persons adopted by those descendants in accordance with the traditional laws acknowledged and traditional customs observed by those descendants’ (Determination Paragraph 2).
The determination also outlines rights and interests held by other parties over the determination area. These include:
(a) ‘the rights and interests of the lessee and others under the term lease for pastoral purposes dated 1 July 1986 being Title Reference No. 17668134 comprising Lot 2 on Crown Plan 911380 and known locally as the Strathgordon Pastoral Lease;
(b) the rights and interests of Telstra Corporation Limited...for its employees, agents or contractors to access its telecommunication facilities in, and in the vicinity of the Determination Area, in the performance of their duties;
(c) the rights and interests of the Cook Shire Council under its local government jurisdiction and functions and as an entity exercising statutory powers including its interests under an Indigenous Land Use Agreement dated 1 June 2007 between the Native Title Holders and the Cook Shire Council;
(d) the rights and interests of the lessee of the Strathgordon Pastoral Lease, the Cook Shire Council, the State of Queensland, the applicant and the Native Title Holders under an Indigenous Land Use Agreement (known as the Strathgordon Roads Indigenous Land Use Agreement) dated 5 July 2007 between the Poonko/Strathgordon Aboriginal Corporation as lessee of the Strathgordon Pastoral Lease, the applicant, the Cook Shire Council and the State of Queensland;
(e) the rights and interests of the Queensland Lapidary and Allied Craft Clubs Association under a licence issued pursuant to the Fossicking Act 1994 (Qld);
(f) any other rights and interests held by the Crown or by reason of the force and operation of the laws of the State and the Commonwealth’ (Determination Paragraph 6).
These rights are not affected by the native title rights and interests, and in the case of an inconsistency take precedent over rights and interests held by the native title holders. This includes the doing of any activity that is required or permitted by the other interests prevailing over the native title but not extinguishing it (Determination Paragraph 7).