Collier J orders that there be a determination of native title.
This judgment concerns the application QUD 659 (Konka claim) filed by the Gangalidda People on 24 November 2017. The Gangalidda People also filed the QUD 660 (Pendine Claim) at the same time. That separate judgement is examined in Taylor on behalf of the Gangalidda People v State of Queensland (The Gangalidda People Pendine Claim) [2019] FCA 302.
The parties to the claim are the applicant and the State of Queensland, the Burke Shire Council and Telstra Corporation Limited. The Konka Claim Area includes two term leases held by Telstra Corporation Limited. The Konka Claim area was previously included in the claim area of QUD 84 of 2004 of the Gangalidda People, but then later removed, along with the Pendine Claim. The Konka application is in respect of a claim area which related to four other sets of native title determinations involving the Gangalidda People.
The parties agreed that the proposed consent orders, filed 15 February 2019, be made by the Court. His Honour held that the provisions of s 87(2) of the Native Title Act 1993 (Cth) (NTA) were met, granting the Court the power to make orders consistent with the agreement of the parties, provided that the Court is satisfied it is within the power of the Court, and appropriate, to do so. His Honour reiterated (at [17]) the rule that the State, not the Court, must inquire into and scrutinise the evidence of native title claim, and that in the present case, the State of Queensland had evidently taken such steps to satisfy itself that there is a credible basis for the application.
The proposed determination also satisfied s 225 of the NTA.
His Honour noted that at the time the Konka application was made, a pastoral lease for a period of 30 years was held over the Konka Claim area, held by Walaji Pty Ltd: a trust for the benefit of the community, including the Gangalidda people. The sole shareholder of Walaji is the Gangalidda and Garawa Native Title Corporation RNTBC (GGNTAC). As the terms of the s 87 agreement satisfied s 47 of the Land Act 1994 (Qld), Collier J held it is within the Court’s power to make orders granting the applicant exclusive right to this land, described as Lot 4536 on SP204559.
Rights and interests
The Court recognised the Gangalidda People’s exclusive native title rights in relation to the use and enjoyment of the land, other than on the two term leases held by Telstra, for which they were granted non-exclusive rights and interests to access, camp, hunt, fish and gather for personal, domestic and non-commercial communal purposes, take, use, share and exchange natural resources for personal, domestic and non-commercial communal purposes, take and use the water for personal, domestic and non- commercial communal purposes, conduct ceremonies, conduct burials, maintain places of importance and areas of significance, and light fires for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
The Gangalidda People’s non-exclusive rights in relation to water were also recognised as the rights to hunt, fish and gather, 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 GGNTAC was held to be the prescribed body corporate for the purposes of ss 57(2) and 57(3) of the NTA.