Reeves J
This matter involved a dispute between the Gunggandji-Mandingalbay Yidinji Peoples Prescribed Bodies Corporate Aboriginal Corporation (GMYPPBCAC) and various individuals over 102,595 square metres of land in North Queensland. The GMYPPBCAC successfully proved that the Murray family, the respondents in the matter, lack the native title right to occupy and possess the area, and the court made a declaratory order to that effect.
Background
In 1986, under now-repealed state legislation, Queensland granted land (inclusive of the relevant area) in fee simple to the Yarrabah Aboriginal Council. In 1998, a native title claim was filed and was positively determined by consent in 2012 (Mundraby on behalf of the Combined Mandingalbay Yidinji-Gunggandji People v State of Queensland [2012] FCA 1039). In accordance with the determination and an earlier indigenous land use agreement, the land was transferred to the GMYPPBCAC. In early 2009, the Murray family began to occupy the land at Bloomis Point, near Yarrabah. The family, excluding Mrs Murray, are descendants of one of the apical ancestors listed within the native title determination.
The Murrays lodged an expression of interest to occupy the land three times to the Yarrabah Aboriginal Council (2009, 2010 and 2014). The family cared for and built upon the land, occupying the premises on weekends and holidays. The GMYPPBCAC stated it had never given permission to do so and sought for the Murray family to vacate the land.
In 2018, the GMYPPBCAC started proceedings in the District Court of Queensland, seeking both a declaration that the Murray’s occupation of the GMYPPBCAC land was unlawful and orders that the family remove the unauthorised construction on the land. These proceeding was stayed in 2020 by agreement of the parties. The GMYPPBCAC then sought a declaration from the Federal Court on the basis that the Murray family holds no rights and interests which entitle them to occupy or possess the land, applying for a declaration which stipulates this.
Submissions
The Murray family relied exclusively on the native title rights and interests which they hold under the determination. The GMYPPBCAC contended that merely belonging to a native title group does not give rise to individual rights capable of individual discretionary exercise. All parties relied on affidavit evidence.
Decision
Reeves J articulated that the application was a dispute between parties over their private rights, but proceeded under the form of a native title determination (s 225 Native Title Act 1993 (Cth)). The GMYPBCAC was held to bear the onus of proving all facts necessary to enable the declaration to be made. Reeves J found the corporation had successfully discharged this burden on the balance of probabilities.
First, the GMYPBCAC established that the land, as part of their native title determination area, is held communally by the Mandingalbay Yidinji-Gunggandji People. Secondly, the GMYPBCAC, in its capacity as the representative body for these native title holders, had not given permission to the Murray family to occupy and possess the land. Thirdly, while accepting the possibility that the Murray family were given permission from Elders in the community (as supplied in their evidence), the GMYPBCAC would likely have greater means to assess this, although not enough evidence was submitted to conclude on this issue. Satisfied on these bases, Reeves J made a declared that the Murray family held no rights which entitle them to lawfully occupy and remain in possession of the land.