Reeves J
In this matter, the Court recognised the Gunggari people’s native title rights and interests over approximately 13,600 km² of lands and waters in the South Central region of Queensland. The first Gunggari claim was lodged in 1996, and in 2001 the claim area was divided into Parts A and B. Part B was removed from that application in 2002, and the claim over Part A was dismissed in 2009 after the claimants concluded an Indigenous land use agreement (ILUA) with the State. The current application, dealing with Part B, was lodged in 2001 and was referred to mediation in 2003. The application was amended on four separate occasions, the most recent being on 15 December 2011.
Reasoning
In order to make a consent determination of native title under s 87 of the Native Title Act 1993 (Cth) (NTA), the Court needs to be satisfied of certain matters. In this case, the Court was satisfied that: at least three months had passed since the original notification of the claim; the agreement of the parties related to the whole proceedings; and the agreement had been reduced to writing and signed by all parties. The Court was satisfied the orders complied with s 94A of the NTA, which requires that the determination addresses all of the details set out in s 225. Finally, the Court noted that the central issue under s 87 was whether there is a free and informed agreement between the parties. Justice Reeves was satisfied of this on the basis that the parties reached an agreement after considering extensive anthropological material and all parties had the advantage of competent legal representation. After describing some of the anthropological evidence, Reeves J stated that the Gunggari people had provided sufficient evidence to establish a continuing connection to the determination area.
In his decision, Justice Reeves highlighted the protracted nature of the proceedings and his concern that, ‘during that inordinately long period, some members of the Gunggari people had passed away. Those persons had detailed knowledge of their people’s traditional laws and customs and their connection to the claimed land and waters.’ In this respect, his Honour endorsed the observations of Rares J: ‘Delays of the kind experienced in this litigation cannot be tolerated. Justice delayed is justice denied’ (Prior on behalf of the Juru (Cape Upstart) People v State OF Queensland & Ors (No 2) [2011] FCA 818). His Honour noted that delays had been reduced in recent years, particularly since the 2009 amendments to the NTA and through priority listing of native title proceedings.
Rights and interests
The native title rights and interests recognised in this consent determination include the non-exclusive rights to: access and move about the determination area; take (by hunting or gathering) natural resources for non-commercial purposes; conduct religious and spiritual activities and ceremonies; maintain places of significance under traditional laws and customs; to teach the physical and spiritual attributes of the land; and to light fires (not for hunting or clearing). Their rights in relation to the waters are the non-exclusive rights to hunt, fish, and gather from water for non-commercial purposes and to take and use the water for non-commercial purposes. The determination identified some areas where native title has been wholly extinguished because of pastoral improvements such as homesteads, constructed watering points and stock yards.
Prescribed Body Corporate
The parties nominated the Gunggari Native Title Aboriginal Corporation to be the prescribed body corporate for the purpose of s 56(1) NTA. This determination is conditional upon the registration of a number of Indigenous land use agreements (ILUAs) with Ergon Energy Corporation Ltd and various pastoralists and other lessees.