Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1402

Year: 
2019
Jurisdiction: 
Queensland
Forum: 
Federal Court
Legislation considered: 
s 87 Native Title Act 1993 (Cth)
s 23B Native Title Act 1993 (Cth)
Native Title Act (Queensland) Act 1993 (Qld)
s 61 Native Title Act 1993 (Cth)
s 225 Native Title Act 1993 (Cth)

Rangiah J

In this matter the Court made orders by consent recognising the native title rights and interests of the Gunggari People over lands and waters situated in South Central Queensland, generally between the towns of Amby, Morven and Mount Moffat, comprised of approximately 19,349 square kilometres.

The respondents to the proceedings are the State of Queensland, Central Highlands Regional Council, Maranoa Regional Council and 26 other parties. 

Background

This application by the Gunggari People was filed on 10 October 2012.  There have also been two prior determinations of native title in favour of the Gunggari People in areas adjoining the present claim area: Kearns on behalf of the Gunggari People #2 v State of Queensland [2012] FCA 651 (Kearns); Foster on behalf of the Gunggari People #3 v State of Queensland [2014] FCA 1318. See Related Content.

Reasoning and Decision

The Court noted that the first application for a determination of native title on behalf of the Gunggari People was lodged in 1996 and their claims have had a "long and complicated procedural history", at [14]. This determination is therefore an important step towards the final resolution of the Gunggari People's claims.

His Honour found that all parties had reached agreement that native title exists, the nature and extent of those native title rights and interests in relation to the claimed area and was satisfied that the conditions of s 87 of the Native Title Act 1993 (Cth) (NTA) were met.

Rangiah J reiterating that the evidence provided by the claim group regarding traditional laws and customs ‘is of the highest importance’ ([16]) and the reports given by the claim group provided detailed examinations of ‘the continued acknowledgement and observance of a range of laws and customs in respect to language, cultural knowledge, totemic and spiritual beliefs, sites, dispute resolution, decision making, bush tucker and medicines’ ([18]). His Honour observed that the applicant provided ‘cogent evidence that the Gungarri People have maintained a continuous presence on their country, despite the pressures of colonisation…’ ([22]).

Rights and Interests recognised

Exclusive Possession

The native title rights and interests recognised in relation to the land and waters described in Part 1 of Schedule 4 are:

(a) other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and

(b) in relation to Water, the non-exclusive rights to:

(i) hunt, fish and gather from the Water of the area;

(ii) take and use the Natural Resources of the Water in the area; and

(iii) take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

Non-Exclusive Possession

Subject to certain exemptions, the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 4 are the non-exclusive rights to:

(a) access, be present on, move about on and travel over the area;

(b) camp on the area and, for that purpose, erect temporary shelters on the area;

(c) take (including by hunting and gathering) and use traditional Natural Resources from the area for personal, domestic and non-commercial communal purposes;

(d) conduct religious and spiritual activities and ceremonies on the area;

(e) maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places and areas, by lawful means, from physical harm;

(f) teach on the area the physical and spiritual attributes of the area;

(g) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;

(h) hunt and fish in or on, and gather from, the Water for personal, domestic and non-commercial communal purposes; and

(i) take and use the Water for personal, domestic and non-commercial communal purposes.

Prescribed Body Corporate

The native title is held in trust and the Gungarri Native Title Aboriginal Corporation RNTBC is to be the prescribed body corporate for the purposes of the NTA.