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Owens on behalf of the Tagalaka People v State of Queensland #2 [2012] FCA 1396

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 10 December 2012
Sub Category:Consent Determination (Native Title Act)
Location:Croydon, Queensland , Australia
Between the Norman and Gilbert Rivers around Croydon in north Queensland
Legal Status: Registered on the National Native Title Tribunal of Consent Determinations
Legal Reference: Tribunal file no.: QC1998/043 Federal Court no.: QUD6109/1998
Alternative Names:
  • Tagalaka People #2
  • Subject Matter:Local Government | Native Title | Pastoral Activities | Recognition of Native Title or Traditional Ownership
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/1396.html
    Summary Information:
    Between:
    Janet Busch, Beverly Bowyang, Gladys Callope, Maureen Douglas, Bill Fortune, and Janette Owens on behalf og the Tagalaka People #2

    (APPLICANTS) and

    State of Queensland, Carpentaria Shire Council, Croydon Shire Council, Etheridge Shire Council, Ergon Energy Corporation Ltd and Allen John Bethel, Carmel Maree Bethel, Sylvia Bing Chew, Wayne Bing Chew, Cedar Dawn Pty Ltd, Eric Mervyn Ellems, Terrence John Flute, G & C Connolly Pty Ltd as Trustee for the G & C Connolly Family Trust, Alan Ross Gaynor, Ursula Jane Gaynor, Colleen Olive Henry, Mervyn Roy Henry, Rayelene Margaret Henry, David Bailey Hinrichsen, Josephine Bathia Hobbs, Baryy Gilbert Hughes, Edward James Hughes, Sharon Dale Hughes, Tammy Marie Hughes, Diane Olive Jensen, Kelvin John Jensen, Robyn May Lethbridge, Barry John Martin, Ian Bruce Martin, John Albert Martin, Ray Joseph Martin, Kathleen May McFarlane, Robert Walter McFarlane, Carol Elizabeth Ryan, Gregory James Ryan, David Anthony Simmons, Helen Joyce Simmons, David Willis, James Hardwick Willis and Janette Pearl Willis

    (RESPONDENTS)

    Judge: Logan J

    Where made: Croydon

    Determination:

    Native title is held communally by the People:

    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 natural resources of the water; and
    - 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;
    - the right to camp on the area;
    - the right to hunt, fish and gather for personal, domestic and non-commercial communal purposes;
    - the right to take, use, share and exchange natural resources from the area for personal, domestic and non-commercial communal purposes;
    - the right to take and use the water of the area for personal, domestic and non-commercial communal purposes;
    - the right to light fires on the area for domestic purposes but not for the purposes of hunting or clearing vegetation;
    - the right to conduct ceremonies on the area;
    - the right to teach on the area the physical and spiritual attributes of the area; and
    - the right to 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.


    Non-native title rights and interests that exist within the determination area can be summarised as

    - The rights and interests of the parties that are signatories to the following Indigenous Land Use Agreements (ILUAs); Tagalaka Croydon Area ILUA, the Tagalaka (Town of Croydon) ILUA, the Croydon Shire Council/Tagalaka People True Blue Tourist Facility ILUA, the Tagalaka Croydon Area ILUA #2, the native title holders and the Croydon Shire Council registered on 11 February 2008, native title holders and the Carpentaria Shire Council authorised on 1 May 2012, native title holders and the Croydon Shire Council authorised on 1 May 2012, native title holders and the Etheridge Shire Council authorised on 1 May 2012, native title holders and Ergon Energy Corporation Limited authorised on 1 May 2012, Tagalaka People/Agantra ILUA, Tagalaka People/Alehvale and Mooremount ILUA, Tagalaka People/Arduno, Haydon and Timora ILUA, Tagalaka People/Beach ILUA, Tagalaka People/Belmore ILUA,
    Tagalaka People/Blancourt ILUA, Tagalaka People/Broadwater ILUA, Tagalaka People/Carnes ILUA, Tagalaka People/Chadshunt ILUA, Tagalaka People/Claraville ILUA, Tagalaka People/Clotilda ILUA, Tagalaka People/Dumas ILUA, Tagalaka People/Ella Vale and Yappar River ILUA, Tagalaka People/Entrona and Pepatra ILUA, Tagalaka People/Esmeralda ILUA, Tagalaka People/Florence ILUA, Tagalaka People/Fog Creek ILUA, Tagalaka People/Forest Home ILUA, Tagalaka People/Glenore ILUA, Tagalaka People/Golden Gate ILUA, Tagalaka People/Green Hills ILUA, Tagalaka People/Guildford ILUA, Tagalaka People/Gum Creek ILUA, Tagalaka People/Heliman Creek ILUA, Tagalaka People/Karron and May Vale ILUA, Tagalaka People/Linley ILUA, Tagalaka People/Lucksome ILUA, Tagalaka People/Malacura ILUA, Tagalaka People/Miecolon and Vena Park ILUA, Tagalaka People/Mundjuro ILUA, Tagalaka People/New Water ILUA, Tagalaka People/Northhead ILUA, Tagalaka People/Oakland Park ILUA, Tagalaka People/Paddy's Station (aka Candlow) ILUA, Tagalaka People/Prospect ILUA, Tagalaka People/Reigate ILUA, Tagalaka People/Rockyview ILUA, Tagalaka People/Roderick ILUA, Tagalaka People/Tabletop ILUA, Tagalaka People/The Lakes ILUA, Tagalaka People/Trenton ILUA;
    - The rights and interests of Croydon Shire Council, Carpentaria Shire Council or Etheridge Shire Council including any rights the Councils, its employees, agents or contractors have under their 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, or as the lessor under any leases, grantor of any licences or other rights and interests which were granted as at the date of the determination, or as the holder of any estate or interest in land, and as trustee of any reserves, that exist in the Determination Area, as the owner and operator of infrastructure, facilities and other improvements located in the determination area roads, gravel pits operated by council, water pipelines, other water supply infrastructure, cemetery and cemetery related facilities and
    th right of the council to enter the determination area to exercise any of the rights and interests referred to above, 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 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) including rights to inspect land, install and operate telecommunication facilities and to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication facilities;
    - The rights and interests of Ergon Energy Corporation Ltd as the owner and operator of works within the determination area, as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld), rights created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), rights in relation to any agreement relating to the determination area, rights to enter the determination area by its employees, agents or contractors to exercise any of the rights and interests referred to above and the right to inspect, maintain and manage any works in the determination area;
    - The rights and interests of the holders of any authorities, licences, permits or allocations issued under the Water Act 2000 (Qld);
    - The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld);
    - The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld); and
    - 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 or Commonwealth.


    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 native title is not to be held in trust. An Aboriginal Corporation whose name will be nominated in writing within three months is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth) and perform the functions required under s 57 of the Native Title Act 1993 (Cth).


    Detailed Information:
    Background
    The native title claimants lodged applications in 1998 and 2001 seeking a determination of native title on behalf of the Tagalaka People over various lands in the Gulf Savannah region around the townships of Croydon, Normanton and East Hayden. The two applications were heard together due to their geographical proximity.

    The Federal Court awarded the Tagalaka People exclusive native rights to possession, occupation, use and enjoyment over approximately 105 square kilometres of land within the Determination area. Non-exclusive native title was awarded over a further 29,817 square kilometres within the Determination Area (Department of Natural Resources, Queensland Government, 2012). Native title rights and interests were therefore awarded over approximately 29,800 square kilometres of land over 469 parcels in Far North Queensland.

    Croydon Mayor Trevor Pickering says the ruling affirms the Tagalaka People as the traditional owners of land and waters within the Croydon shire and congratulated the Tagalaka People on their native title win. The Croydon Shire Council signed an indigenous land use agreement (ILUA) in 2008 with the Tagalaka people giving native title rights over public land held by the council to the Tagalaka people, but allowing for the continued operation of water infrastructure, historical buildings, sports grounds and the airport (The Australian News, 2012).

    Traditional owner Patrick Wheeler said the land in the area contains many special sites (ABC Rural, 2012).

    The consent determinations will operate along with a number of ILUAs that the Tagalaka People have negotiated with local councils, pastoralists and service providers. The ILUAs provide for the management and the on going protection of land within the determination area. They complement the ILUAs the Tagalaka People negotiated with the State Government in 2005 and 2008 (Queensland Government DNRM, 2012).


    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
  • Owens on behalf of the Tagalaka People v State of Queensland [2012] FCA 1396
  • Tagalaka Croydon Area Indigenous Land Use Agreement (ILUA) #1
  • Tagalaka - Croydon Area Indigenous Land Use Agreement (ILUA) #2
  • Croydon Shire Council/Tagalaka People - True Blue Tourist Facility Indigenous Land Use Agreement (ILUA)
  • Tagalaka (Town of Croydon) Indigenous Land Use Agreement (ILUA)
  • Etheridge Shire Council -Tagalaka People #2 Indigenous Land Use Agreement (ILUA)
  • Carpentaria Shire Council - Tagalaka People #2 Indigenous Land Use Agreement (ILUA)
  • Croydon Shire Council - Tagalaka People Determination Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Croydon Shire Council - Respondent
  • State of Queensland - Respondent
  • Carpentaria Shire Council - Respondent
  • Etheridge Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Legislation
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Water Act 2000 (Qld)
  • Land Act 1994 (Qld)
  • Electricity Act 1994 (Qld)
  • Mineral Resources Act 1989 (Qld)
  • Government Owned Corporations Act 1993 (Qld)
  • People
  • Tagalaka People - Native Title Claimant
  • Janet Busch and others on their own behalf and on behalf of the Tagalaka People #2 - Native Title Claimant

  • References

    General Reference
    Virginia Tapp (10.12.2012) Tagalaka people win native title claim
    National Native Title Tribunal (10/12/2012) Native title determination summary - Tagalaka People #2
    National Native Title Tribunal (10.12.2012) Native title determination summary - Tagalaka People
    News.com.au (10.12.2012) Tagalaka people win Native Title in Qld
    ABC Rural (10.12.2012) Tagalaka people win native title claim
    Media Release
    Department of Natural Resources and Mines (2012) Tagalaka People’s native title rights recognised
    Newspaper Article
    AAP (10.12/2012) Tagalaka people win Native Title in Qld

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | Native Title Registers | Native Title Determination (Australia) | Respondent | Native Title Representative Body (NTRB) (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Party to an Indigenous Land Use Agreement (ILUA) (Australia)

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