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Combined Dulabed Malanbarra Yidinji People v State of Queensland [2009] FCA 1498 (17 December 2009)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 23 August 2010
Sub Category:Consent Determination (Native Title Act)
Location:South of Cairns, Queensland, Australia
The determination area covers approximately 166.6 square kilometers. It is made up of areas of land and water and is located approximately 40 kilometers south-west of Cairns, within the upper Mulgrave River basin, in the Wet Tropics Heritage region of far north Queensland. The area is commonly known as the Goldsborough Valley. The area encompasses portions of Gadgarra Forest Reserve and Wooroonooran National Park. It also includes unallocated state land located near the Mulgrave River. The determination area is outlined in detail in Schedule 2 Part A of the decision.
Legal Status: Registered on the National Native Title Tribunal Register (of native title determinations)
Legal Reference: Federal Court No.: QUD6012/2001, National Native Title Tribunal No.: QC01/14
Alternative Names:
  • Combined Dulabed and Malanbarra Yidinji Claim
  • Subject Matter:Native Title
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1498.html
    Summary Information:
    Between: Lorraine Muckan and Len Royee on behalf of the Combined Dulabed Malanbarra Yidinji People (APPLICANTS) and State of Queensland, Cairns Regional Council, Tablelands Regional Council, Ergon Energy Corporation Limited and Jacqueline Spokes (RESPONDENTS)

    Judge: Spender J

    Where made: Gordonvale

    Determination:

    Native title exists in the determination area.

    The native title holders are the Dulabed and Malanbarra Yidinji People.

    The native title rights and interests that exist in the determination area include: the right to possess, occupy, use and enjoy the land to the exclusion of all others in the areas in which exclusive rights are held, and the right to access, traverse, camp, use natural resources, perform cultural activities and hunt and fish for non-commercial purposes in the areas in which non-exclusive rights are held.

    The non native title rights and interest that exist in the determination area include: various leases, licences, permits and authorities issued under a number of Commonwealth and State Acts.
    Detailed Information:
    Background

    This application was the combination of two earlier overlapped applications: the application of the Dulabed People (Federal Court File No.: QUD6011/98; Tribunal File No.: QC95/3) and the application of the Malabarra Yidinji People (Federal Court File No.: QUD6006/98; Tribunal File No.: QC94/9). These were combined in 2001 by order of the Federal Court. This application had a long history, with mediation between the parties proceeding between 2004 and 2009, but the parties reached an agreement regarding the terms of the various rights and interests in 2009.

    Details of consent order

    The Native Title holders are the Dulabed and Malanbarra Yidinji People. This includes those Aboriginal people who are descended from Jimmy Longdon (Langdon), Tommy Longdon (Langdon), Alec Morgan, Jack Stewart, Dolly Abbo, Paddy Bailey, Annie or recruited by adoption, in accordance with the traditional laws and customs of the Dulabed and Malanbarra Yidinji People.

    The consent determination recognises that the Dulabed and Malanbarra Yidinji People, as the native title holders, are entitled to the exclusive and non-exclusive use and enjoyment of the land and waters in accordance with their traditional laws and customs.

    In the areas where the Dulabed and Malanbarra Yidinji people hold exclusive native title rights and interests, these include the right to possession, occupation, use and enjoyment of the land to the exclusion of all others.

    In the land areas where the Dulabed and Malanburra Yidinji people hold non-exclusive native title rights and interests, these include:
    - the right to be present on, access, traverse, and camp on, the land
    - the right to take and use traditional natural resources for non-commercial purposes
    - the right to perform cultural or spiritual activities on the land

    In the areas of water where the Dulabed and Malanbarra Yidinji people hold non-exclusive rights and interests, these include:
    - the right to hunt and fish in or on the water for non-commercial purposes
    - the right to take and use the water for non-commercial purposes

    There are no native title rights in relation to minerals or petroleum. The native title rights are exercisable in accordance with:
    - the laws of the State and the Commonwealth
    - the traditional laws and customs acknowledged by native title holders

    The non-native title rights that exist in relation to the determination area include:
    - the rights and interests of holders of a particular occupation permit
    - the rights and interests of holders of water licences
    - the rights and interests of Ergon Energy Corporation Limited in their capacity as an electricity entity under the Electricity Act 1994 (Qld) and under an ILUAs signed on 30 November 2009
    - the rights of interests of the Cairns Regional Council under its local government jurisdiction and under an ILUA registered 30 November 2009
    - the rights and interest of the Tablelands Regional Council under its local government jurisdiction and under an ILUA signed on 27 November 2009
    - the rights of the Dulabed and Malanbarra Yidinji people, the Dulabed Malanbarra and Yidinji Aboriginal Corporation and State of Queensland under a ILUA signed 27 November 2009
    - the rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld)
    - the rights and interest of the State of Queensland pursuant to the Forestry Act 1959 Qld
    - 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 interest of any holders of leases, agreements, licences, permits of authorities granted under the Nature Conservation Act 1992
    - the rights and interest of any holders of leases, agreements, licences, permits of authorities granted under the Forestry Act 1959(Qld)
    - the rights and interests of holders of any permits granted under the Wet Tropics Management Plan 1998 (Qld)
    - the rights and interests of the holders of any licences, permits or allocations granted under the Water Act 2000 (Qld)
    - the rights and interest of the holders of authorities under the Fisheries Act 1994(Qld)
    - the rights and interests of the holders of any permits, claims, licences or leases issued under the Mineral Resources Act 1989(Qld)
    - any existing right for the public to access and enjoy waterways, beds and banks or foreshores, coastal waters, beaches, stock routes and areas that were public place at the end of 31 December 1993
    - any other rights and interests held by the State of Queensland or the Commonwealth of Australia pursuant to the laws of the State and the Commonwealth.

    Details of judgment

    Spender J was satisfied that the proposed orders were appropriate and that they had been freely agreed to by all parties. In particular, in considering the appropriateness of the order, Spender J considered whether the claimants, at the time of sovereignty, formed a society of persons bound together by observance of traditional laws and customs. After consdering historical and anthropological reports, in particular, the records of early explorers and settlers, Spender J concluded that such a society did exist at the time of sovereignty. The court was therefore able to make the consent determination.

    Related Entries

    Agreement
  • Wooroonooran Indigenous Land Use Agreement (ILUA)
  • Cairns Regional Council - Combined Dulabed & Malanbarra Yidinji - Goldsborough Valley Indigenous Land Use Agreement (ILUA)
  • Combined Dulabed & Malanbarra Yidinji - Tablelands Regional Council Area Indigenous Land Use Agreement (ILUA)
  • Combined Dulabed & Malanbarra Yidinji & Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Commonwealth of Australia
  • State of Queensland - Respondent
  • Cairns and District Regional Council - Respondent
  • Tablelands Regional Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • National Native Title Tribunal
  • Federal Court of Australia
  • North Queensland Land Council Native Title Representative Body Aboriginal Corporation
  • Dulabed Malanbarra and Yidinji Aboriginal Corporation
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • People
  • Yidinji People - Native Title Claimant
  • Dulabed and Malanbarra Yidinji People - Native Title Claimant
  • Jacqueline Spokes - Native Title Claimant
  • Lorraine Muckan and others on behalf of the Combined Dulabed Malanbarra Yidinji People - Native Title Claimant
  • Len Royee and others on their own behalf and on behalf of the Combined Dulabed and Malanbarra Yidinji People - Native Title Applicants

  • References

    Article
    Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) (2009) Recent Cases: Combined Dulabed Malanbarra Yidinji People v State of Queensland [2009] FCA 1498
    Fact Sheet
    National Native Title Tribunal (17 December 2009) Backgrounder: Combined Dulabed and Malanbarra Yidinji Native Title Determination
    Case Law
    Federal Court of Australia (17 December 2009) Combined Dulabed Malanbarra Yidinji People v State of Queensland [2009] FCA 1498 (17 December 2009)
    Media Release
    National Native Title Tribunal (17 December 2009) Native title success for Dulabed and Malanbarra Yidinji
    Publication
    National Native Title Tribunal (February 2010) Combined Dulabed Malanbarra Yidinji Determination

    Documents

    Map
    Combined Dulabed Malanbarra Yidinji People Consent Determination Map - ( PDF)

    Glossary

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

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