Rares J
In this matter, the Court made orders by consent recognising that the Juru people hold native title rights and interests over land and waters in North Queensland extending from the coast near Home Hill, along the Burdekin River in the north-west, south to the head of the Don River, east towards Bowen, and approximately 20 kilometres seaward of the coastline in the Coral Sea, including the lands and waters around Guthalungra.
This area was a significant part, but not the entire area, of the lands and waters claimed by the Juru people. Rares J made orders under s 87A of the Native Title Act 1993 (Cth) (NTA), which empowers the Federal Court to make a determination of native title for part of an area. The Court ordered that separate questions concerning some lands in township areas and some other rural areas would be determined separately at a later date.
The 12 respondents in this matter included the Commonwealth of Australia, the State of Queensland, Whitsunday Regional Council, Burdekin Shire Council, Telstra and Ergon Energy, mining and development interests such as Gfb Developments Pty Ltd, Energy Minerals Pty Ltd, Aurizon Network Pty Ltd, Aurizon Property Pty Ltd, Hancock Coal Infrastructure Pty Ltd, various pastoralists and other individual persons.
Background
On 26 July 2011, Rares J made a consent determination recognising the Juru people’s native title rights and interests over Juru country, known as Cape Upstart (Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819.
The description of the apical ancestors was changed and the current members of the application were substituted (Smallwood v State of Queensland [2014] FCA 331). On 27 June 2014, Ms Prior applied to be joined as a respondent as she wished to investigate and possibly challenge the inclusion of an apical ancestor. Ms Prior's application was refused as she was unwilling to act in accordance with her authorisation as a member of the applicant and was removed .
Consideration
Rares J found that a determination of native title creates rights and interests that, subject to the Act and the terms of the determination itself, the holders can exercise forever after against any other person, including the Commonwealth and the State: cf Northern Territory of Australia v Alyawarr,Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at 463 [70].
In determining that the agreement was rooted in reality, Rares J referred to evidence showing a substantive and real founding. This included evidence of members of the claim group as well as anthropological evidence provided in the Prior case by Dr Sandra Pannell as well as a report by Dr Kevin Mayo, prepared with respect to examination of whether four particular family groups were Juru.
Rares J was satisfied that there was a factual and legal foundation for the orders to be made under s 87A NTA.
Rights and interests
The nature and extent of the native title rights and interests in relation to the land and waters are the non-exclusive rights to:
access, be present on, move about on and travel over the area;
camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
take and use the Water of the area for personal, domestic and non-commercial communal purposes;
conduct ceremonies on the area;
be buried and bury native title holders within the area;
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 from physical harm;
teach on the area the physical and spiritual attributes of the area;
hold meetings on the area; and
light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
PBC appointed for purposes of s 56 NTA
The native title is held in trust.
The Kyburra Munda Yalga Aboriginal Corporation ICN 7581 is to be the prescribed body corporate for the purpose of sections 56 and 57 NTA.
Of note
Rares J stated, at [32]-[34] that some very significant native title rights are not presently to be held on trust by Kyburra Munda Yalga Aboriginal Corporation. This was because these interests were covered by two indigenous land use agreements:
Between the original applicant in the proceedings and Adani Abbot Point Terminal Pty Ltd, Adani Abbot Point Terminal Holdings Pty Ltd, Mundra Port Holdings Pty Ltd and Mundra Port Pty Ltd, which are developing a large coal mine and the Abbot Point facilities.
Between 14 people, including 2 people who were found not to be members of the claim group (Prior on behalf of the Juru People v State of Queensland [2014] FCA 332), and Hancock Alpha Coal Pty Ltd, which is also developing a large coal mine.
The Court explained:
the potentially very valuable native title rights and interests covered by these agreements will result in a situation where those other persons can exploit what will be from today the Juru people’s legally held native title rights and interests.
The NTA and the agreement for the consent determination intended, instead, that Kyburra Munda Yalga Aboriginal Corporation would own and hold those rights and interests on trust for the Juru people.
The Juru people claim group should have these rights protected by having Kyburra Munda Yalga Aboriginal Corporation take complete control of them.