[1] – [2] In this matter the Court recognised by consent the native title rights and interests of the Nywaigi people in relation to land and waters in and around Victoria Creek to the north and Rollingstone Creek to the south, west to the Paluma Ranges and east to the waters of Halifax Bay. Halifax Bay is to the north and west of the City of Townsville in the State of Queensland. The main respondents to the application were the State of Queensland; Ergon Energy Limited, Telstra Corporation Limited; Catherine Maree Bornis, Crystal creek Hut Owners Association; Halifax Bay Recreation & Lifestyle Association Inc. and others. The Nywaigi People application was originally filed on 10 April 2015.
The agreement, made under s 87(2) of the Native Title Act 1993 (Cth) (NTA), was filed on 6 April 2018. [21] The applicant submitted that it was appropriate for the Court to exercise its discretion under section 87 to make an order in the terms of the proposed determination without holding a hearing having regard to the principles in Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229. [23] Robertson J found that the requirements of section 87(2) had been established. The determination recognises the exclusive right to possession, occupation, use and enjoyment of the area to the exclusion of all others in relation to land and non-exclusive rights in relation to waters.
Robertson J: [40] ‘I accept the submissions on behalf of the applicant that the material establishes the following. Aboriginal people who spoke a dialect of the Nywaigi language, known as the Nywaigi dialect, used and occupied Nywaigi country prior to 1788. There has been ongoing use of the Nywaigi dialect and acquisition and transfer of Nywaigi cultural knowledge throughout the twentieth century, from which I infer that the Nywaigi People today are descended from a community of people who spoke the Nywaigi dialect of the wider Nywaigi language and who used and occupied Nywaigi country prior to 1788. The material provides a basis for Nywaigi identity and links the Nywaigi People today to land and language through the application of normative rules associated with “dreaming stories”. It identifies Nywaigi ancestors and locates them as a community of Nywaigi People in the early days of sustained European contact in Nywaigi country (from the 1870s). It links the Nywaigi People and establishes a basis for inferring that they are descended from a pre-sovereignty community of Nywaigi ancestors. It establishes the Nywaigi People today, and in 1900, as an organised society that possesses native title rights and interests in accordance with observed and acknowledged traditional laws and customs. The material also supports the intergenerational transfer of those laws and customs and I infer that they, as well as the rights possessed in accordance with them, have their origins in a pre-sovereignty Nywaigi society.’
[49] Robertson J ordered that the Warga Badda Nywaigi Aboriginal Corporation be the prescribed body corporate to hold the native title as an agent. [57] The Court made orders by consent which recognised that the native title claimants have, and always have had, native title rights and interests in land and waters within the area the subject of the Application.