Logan J
In this matter, the Court made a determination that native title is held by the Gugu Badhun people in relation to an area of about 6,540 km² of lands and waters in the Upper Burdekin region of far north Queensland. The Court was satisfied that the linguistically-defined Gugu Badhun people were descended from the community of Gugu Badhun speaking people who used and occupied the determination area prior to 1788. His Honour was further satisfied that while there had been some adaptation of laws and customs as a result of European settlement, the observance of those laws and customs has continued substantially uninterrupted.
Reasoning
Justice Logan cited the decision of Nelson v Northern Territory of Australia (2010) 190 FCR 344 in considering whether it was appropriate for the Court to make orders under s 87 of the Native Title Act 1993 (NTA). This decision states that the critical question for the Court in a determination for native title by consent ‘is whether the existence of a free and informed agreement is founded in fact, not whether the matters dealt with in the agreement, specifically the existence of native title, are founded in fact.’ Ultimately, Logan J said it was appropriate to make the orders sought as the parties had reached agreement that the claim group in the connection material comprises the persons who hold the claimed native title rights and interests in the determination area. The Court found that all the requirements of s 87, s 94A, s 223, and s 225 NTA had been met.
Rights and interests
Exclusive native title rights and interests, other than in relation to water, were recognised over an area described in Schedule 1 of the determination. The native rights and interests recognised over the area described in Schedule 2 include the non-exclusive rights to: access and move about the determination area; camp and live temporarily on the area; hunt, fish and gather from the water for non-commercial purposes; take and use natural resources and water for non-commercial purposes; conduct ceremonies; maintain places of significance under traditional laws and customs; teach the physical and spiritual attributes of the land; to light fires (not for hunting or clearing); and be buried and bury other native title holders within the area.
Schedule 6 lists other interests in the determination area that prevail over native title rights to the extent of any inconsistency. Other interests include those of the Queensland Government and various local councils under legislation specific to World Heritage, nature conversation, forestry, mineral resources, water, electricity, telecommunications and local government. Schedule 6 also includes the interests of numerous parties under Indigenous land use agreements authorised by the native title claim group. The determination also identifies the areas where native title has been wholly extinguished because of public works, pastoral leases and pastoral improvements such as homesteads, constructed watering points, air strips and stock yards.
Prescribed Body Corporate
The determination provides that native title is not to be held on trust. The parties nominated the Gugu Badhun Aboriginal Corporation to be the prescribed body corporate under s 57 NTA.