Kearns on behalf of the Gunggari People #2 v State of Queensland  FCA 651
|Binomial Name: ||Federal Court of Australia|
|Date: ||22 June 2012|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||South Central Queensland , Queensland , Australia|
|The determination area covers approximately 13,600 square kilometres (approximately 118,449 hectares) of land and water in the South Central region of Queensland, roughly situated between the towns of Charleville, Mitchell, St George and Bollon. The town of Mitchell is located approximately 580 kilometres west of Brisbane.|
|Legal Status: ||Registered on the National Native Title Register (of native title determinations).|
|Legal Reference: ||Federal Court Number: QUD 6027 of 2001. National Native Title Tribunal No: QC01/28|
|Subject Matter:||Access | Cultural Heritage | Customary Law | Fishing | Housing, Construction and Infrastructure | Local Government | Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests | Water|
|Summary Information: |
|Kearns on behalf of the Gunggari People #2 v State of Queensland  FCA 651|
Katheen Kearns, Erica Walker, Bernys Faulkner, Bradley Saunders And Marshall Foster On Behalf Of The Gunggari People #2 (Applicants)
State of Queensland, Balonne Shire Council, Maranoa Regional Council, Murweh Shire Council, Ross Mitchell, Ergon Energy Corporation Limited, Telstra Corporation Limited, Darryl A Abraham, Thora V Unold, Darcy Gordon Cavanough, Mcinnerney Bros Grazing Pty Ltd, D Walter Mclean, Eric Peter Noon, Susanne Noon, Aaron B Tiller, Jane Alexandra Hanly (Respondants)
Judge: Reeves J
Where made: Mitchell
The claim subject to determination covers an area of land and waters of approximately 13,600 square kilometres in the South Central region of Queensland roughly situated between the towns of Charleville, Mitchell, St George and Bollon.
Native title exists in the entire determination area. It consists of the non-exclusive rights to:
- access, travel over, and (temporarily) camp on the determination area (see para 10(b)); take traditional natural resources(any animals, plants, clay, soil, sand, gravel or rock that have traditionally been taken and used by the native title holders: see para 10(e)), including by hunting and gathering, for non-commercial purposes; conduct religious and spiritual activities and ceremonies on the area; maintain and protect areas of cultural significance; pass on traditional knowledge on the area; light fires (for domestic purposes) on the area; hunt and fish the water for non-commercial purposes; and to take or use water for non-commercial purposes. These native title rights and interests do not confer the right to possession, occupation, use or enjoyment to the exclusion of all others (para 7).
Native title is held by the Gunggari People (Schedule 1)
Native title is excluded from areas where permanent constructions have been established subject to Pastoral leases (Schedule 3), or in areas where public works have been established prior to 1996 (the date the claim was made) (Schedule 2). The Schedules also exclude native title from adjacent lands or waters relevant to these areas.
Non-native title rights and interests also exist within the determination area (para 8).
These other rights and interests continue to have effect, and may continue to be exercised despite the existence of native title in the determination area (para 9(a)).
In the case of conflict, the exercise of non-native title rights and interests will prevail over the existence or exercise of non-exclusive native title rights (para 9(b)).
The non-native title rights and interests in relation to the determination area are set out in Schedule 5. They include: the rights and interests of the Balonne Shire Council, Maranoa Regional Council and Murweh Shire Council, as the owners and operators of local government infrastructure, to enter and exercise rights within the determination area; the rights and interests of the Telstra Corporation Limited, as the owner and operator of telecommunications facilities, to access, operate, and perform works on these facilities; the rights and interests of Ergon Energy Corporation Ltd, as owner and operator of electricity works, the rights from agreements entered into before the determination, the rights to enter, maintain and manage any works; and the rights and interests of private landholding or licensed individuals or companies.
There are a number of ancillary agreements between the parties. These include: an Indigenous Land Use Agreement between Robert John Munn as the registered native title claimant for the Gunggari People and the Maranoa Regional Council, Balonne Shire Council and Murweh Shire Council registered on 15 December 2008; an Indigenous Land Use Agreement between the native title holders and Ergon Energy Corporation Limited executed on 13 March 2012; Gunggari People/Rundalua Indigenous Land Use Agreement dated 15 April 2012; Gunggari People/Ularunda Indigenous Land Use Agreement dated 15 April 2012; Gunggari People/Sherwood Indigenous Land Use Agreement dated 18 April 2012; Gunggari People/ Leinster West Indigenous Land Use Agreement dated 15 April 2012; Gunggari People/Kalyan Indigenous Land Use Agreement dated 25 April 2012.
Paragraphs 1-10 of the determination take effect upon the Registration of relevant Indigenous Land Use Agreements with the Register of Indigenous Land Use Agreements (para 11) .
The native title is held in trust (para 12(a)).
The Gunggari Native Title 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, after becoming a registered native title body corporate. The Corporation was registered on 14 May 2012.
|Detailed Information: |
The Gunggari People first filed a native title application in March 1996. The application was then effectively split into two parts in 2001, with the first part resulting in a signing of an Indigenous land use agreement between the Gunggari People and the State of Queensland in December 2008. As a result, parcels of land in Dunkeld were handed over to the Gunggari People as ordinary freehold and Aboriginal freehold.
The second part, which was subject to this consent determination, resulted from negotiations between the Gunggari People and the various government parties, businesses, pastoral groups and individuals, including the State of Queensland, Balonne Shire Council, Murweh Shire Council, Maranoa Regional Council, Ergon Energy and Telstra.
As part of the settlement, the Gunggari People have also negotiated seven Indigenous land use agreements that establish how rights and interests will be exercised on the ground.
The Gunggari People’s determination recognises their non-exclusive native title rights to access, hunt, fish, camp, gather and use the natural resources within the relevant area. The determination also recognises their ability to undertake cultural activities, conduct ceremonies and meetings and protect places of cultural and religious significance.