Logan J
In this matter the Court made orders by consent recognising the native title rights and interests of the Gudjala people over approximately 10,617 square kilometres of traditional lands in an area generally known as Western Queensland, in the Regional Shire Councils of Etheridge, Flinders and Charters Towers.
The area claimed is situated predominantly to the north and west of Charters Towers and includes both lands and waters within the claim area. The terrain is comprised of open woodlands and sclerophyll forest that is bordered by the Clarke River to the north, the Burdekin River to the east, the Cape River to the south and the Einasleigh River to the west.
The determination relates to two applications: the Gudjala People Core Country Claim #1 (Gudjala #1) and the Gudjala People Core Country Claim #2 (Gudjala #2). Logan J decided these matters together due to their geographic proximity and similarity of anthropological evidence.
The State of Queensland, the Commonwealth of Australia, Charters Towers Regional Council, Flinders Shire Council, Citigold Corporation Limited, Ergon Energy Corporation Limited, Great Mines Pty Ltd, James Cook University and various Pastoralists are respondent parties to the applications.
This consent determination was made pursuant to s 87 of the Native Title Act 1993 (Cth) (NTA) on the basis that an agreement was reached between the parties, within required timeframes and in the proper form. Also as required by s 87 NTA, the Court was satisfied that the order was within power, was appropriate in the circumstances and reflected an agreement freely entered into on an informed basis.
Logan J found that the connection material satisfies s 223 NTA and supported the determination of native title as set out in s 225 NTA. His Honour stated at [27], with respect to connection, that:
'despite forced dislocations, frontier conflict, coercive labour practices and draconian state interventions into Gudjala people’s personal and social lives, the Gudjala native title claim group and their predecessors have continuously exercised their right of possession, occupation, use and enjoyment of their traditional country since before the assertion of British Sovereignty (26 January 1788 (the date of legal Sovereignty)).'
In setting out his reasons, Logan J stated at [7] that 'native title claims which linger unresolved on a court list are an affront to our system of justice' and commended the responsible action of the parties, guided by dedicated, hard-working and experienced legal advisors and the work of the Court’s registrars in bring the parties to final, consensual resolution.
Logan J also referred to the Native Title Respondent Funding Scheme, cancelled in 2012 and reinstituted in January 2014, as funding that beneficially contributed to the administration of justice, making a connection between this funding, the length of time native title matters may take to resolve, and parliament’s goal of national reconciliation.
Rights and interests Claim #1
The native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 of the Orders are:
other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
in relation to Water, the non-exclusive rights to:
hunt, fish and gather from the Water of the area;
take and use the Natural Resources of the Water; and
take and use the Water of the area,
for personal, domestic and non-commercial communal purposes.
The native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 of the Orders are the non-exclusive rights to:
access, be present on, move about on and travel over the area;
camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
hunt, fish and gather on the land and waters;
take and use Natural Resources from the land and waters;
take and use the Water;
conduct ceremonies;
be buried and bury native title holders within the area;
maintain places of importance and areas of significance and protect those places and areas from physical harm;
teach on the area the physical and spiritual attributes of the area; and
light fires, but not for the purpose of hunting or clearing vegetation.
for personal, domestic and non-commercial communal purposes.
The native title rights and interests in relation to the land and waters described in Part 3 of Schedule 1 of the Orders, being urban areas (Towers Hill), are the non-exclusive rights to:
access, be present on, move about on and travel over the area;
maintain places of importance and areas of significance and protect those places and areas from physical harm; and
teach on the area the physical and spiritual attributes of the area.
The nature and extent of the native title rights and interests in relation to the land and waters described in Part 4 of Schedule 1 is:
the non-exclusive right to access, be present on, move about on and travel over the area.
Claim # 2
The nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 of the Orders are the same rights and interests declared in Claim #1 Part 2 (see above).
The native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 of the Orders is:
the non-exclusive right to access, be present on, move about on and travel over the area.
Prescribed Body Corporate
The native title is not held in trust.
The Ngarragoonda Aboriginal Corporation ICN 7982 is to be the prescribed body corporate.