Western Yalanji or "Sunset" peoples v Alan & Karen Pedersen & Ors [1998] FCA 1269 (28 September 1998)

Last Updated: 14 October 1998

FEDERAL COURT OF AUSTRALIA

NATIVE TITLE - Application under the Native Title Act 1993 (Cth) for a determination of permanent native title in relation to lands and waters near Mt Carbine in the Mareeba Shire of north Queensland - referral by the Registrar of the National Native Title Tribunal to the Federal Court pursuant to s 74 of the Act - order made by a judge of the Court under s 87 of the Act after agreement reached between the parties.

Native Title Act 1993 (Cth) - ss 74, 87

WESTERN YALANJI OR "SUNSET" PEOPLES v ALAN AND KAREN PEDERSEN & ors

QG 6002 of 1996

DRUMMOND J

CAIRNS

28 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6002 of 1996

BETWEEN:

WESTERN YALANJI OR "SUNSET" PEOPLES Applicants

AND:

ALAN AND KAREN PEDERSEN First Respondents PAN AUSTRALIAN RESOURCES NL (withdrawn) Second Respondent CENTAMIN LIMITED (withdrawn) Third Respondent DAVID COSTELLO (withdrawn) Fourth Respondent LEN ROSENDALE (withdrawn) Fifth Respondent SONNY LEVERS (withdrawn) Sixth Respondent MAREEBA SHIRE COUNCIL Seventh Respondent MINOTAUR GOLD NL (withdrawn) Eight Respondent JOHN PLATH (withdrawn) Ninth Respondent MESSRS JOHN W WITHERS and GARRY A DIBLEY (withdrawn) Tenth Respondents STATE OF QUEENSLAND Eleventh Respondent MR OLIVER J STRATTON (withdrawn) Twelth Respondent TELSTRA CORPORATION LIMITED (withdrawn) Thirteenth Respondent NOEL A ADAM Fourteenth Respondent

JUDGE:	DRUMMOND J
DATE OF ORDER:	28/09/98
WHERE MADE:	CAIRNS

THE COURT ORDERS AND DECLARES THAT:

1. Subject to order 2, native title rights and interests exist in relation to the determination area, marked on the map in Schedule 1 headed Plan of Determination Area, which Schedule is incorporated in Annexure A to these orders.

2. Native title rights and interests do not exist in relation to the areas described as "Area E" and shown on the said map or in relation to opened roads, dedicated roads and roads legally constructed for public use within the determination area referred to in order .

3. Native title rights and interests have not been extinguished by the grant of the interests over the land and waters set out in Schedules 2A and 2B incorporated in Annexure A to these orders.

The Court notes, however, that the parties acknowledge that the native title rights and interests may have been affected by a lawful physical activity carried out prior to the date of this determination on such land or waters pursuant to the granted interest.

4. The native title rights and interests are held by the following people as native title holders:

(a) The CUMMINS/KING-COSTELLO group, being descendants of Tippo King (aka Deppo/King of Maytown), and his sons Joe Cummins, Dick Cummins (aka Dick Wannacott/Simon King);

(b) The ROSENDALE group, being descendants of Leo Rosental and Eric Rosental Snr;

(c) The QAWANJI/BRADY group, being descendants of Qawanji Donald Brady;

(d) The DAVIS-O'SHANE and others group, being descendants of Caroline Kiju Rose Roberts;

(e) The LEE CHEU group, being descendants of Charlie Lee Cheu and Georgina Banjo;

(f) The GROGAN group, being descendants of Rosie Maytown (aka Rosie Palmer/Rosie Grogan);

(g) The BURTON-BRICKY group, being descendants of Jack Burton, Rupert Burton and Bula Burton;

(h) The MELDRUM group, being descendants of Ruby Meldrum and Molly Banjo;

(i) The MACNAMARA group, being descendants of Dolly and Harry and Frank MacNamara (MacNamara aka Quinlan);

(j) The MITCHELL group, being descendants of Wildtime, Mingkiji and Sambo Wannacott;

(k) The CROWLEY-RILEY group, being descendants of Jack and George Crowley and George Riley;

(l) The BANJO/GORDON group, being descendants of Lena Palmer and Bob Banjo (Banjo aka Gordon);

(m) The ROBERTS group, being descendants of Charlie and Dolly Curramore;

(n) The OLIVER-COLLESS group, being descendants of Janie Maytown;

(o) The SNIDER group, being descendants of Charlie Snider;

(p) The ROGERS group, being descendants of Rowdy Rogers and Charlotte (Rogers aka Davis);

(q) The FULLERTON-BRIM group, being descendants of Annie Fullerton and Dinah Fullerton-Brim

on behalf of their own groups and the Aboriginal tribal grouping known by the alternative designations "Western Yalanji", "Western Kuku-Yalanji", "Sunset Yalanji", and "Maytown People" ("the native title holders").

5. The native title rights and interests do not confer possession, occupation, use and enjoyment of the determination area referred to in order 1 on the native title holders, to the exclusion of all others, because the native title rights and interests held by them or their predecessors:

(a) are and have been subject to:

(i) the operation of the laws of the Commonwealth and of the State (past and present) including any Local Government Planning Scheme, Local Laws or Local Government regulations;

(ii) the rights (past and present) conferred upon persons pursuant to the laws of the Commonwealth and of the State; and

(iii) any rights and interests conferred by or the subject of an agreement under s 21 the Native Title Act 1993 (Cth); and

(b) have been diminished or modified over time such that they are not exclusive as against all others. To avoid doubt, it is declared that to the extent that the native title rights and interests were ever exclusive, the character of exclusivity has been extinguished.

6. The native title rights and interests which the Court considers to be of importance are the rights of the common law holders in accordance with and subject to their traditional laws and customs to:

(a) have possession, occupation, use and enjoyment of the determination area referred to in order 1;

(b) have access to and use of the natural resources of the determination area including the right to:

(i) maintain and use the determination area;

(ii) conserve the natural resources of the determination area;

(iii) safeguard the determination area and the natural resources of the determination area for the benefit of the native title holders;

(iv) manage the determination area for the benefit of the native title holders;

(v) use the determination area and its natural resources for social, cultural, economic, religious, spiritual, customary and traditional purposes;

and more particularly to:

A. reside on, camp on, and travel across the land within this area and, subject to regional customary-lawful expectations and protocol, permit non-native title holders to do so;

B. exercise rights of use and disposal over the natural resources, including the right to confer use of those natural resources upon non-native title holders;

C. exercise and carry out economic life on the determination area including the creation, growing, production, husbanding, harvesting and exchange of natural resources and that which is produced by the exercise of the native title rights and interests;

D. discharge cultural, spiritual, traditional and customary rights, duties, obligations and responsibilities on, in relation to, and concerning this determination area and its welfare including to:

(i) preserve sites of significance to the native title holders and other Aboriginal people on the determination area;

(ii) conduct secular ritual and cultural activities on the determination area;

(iii) conduct burials on the determination area;

(iv) determine, give effect to, pass on, and expand the knowledge and appreciation of the culture and tradition;

(v) regard the determination area as part of the inalienable affiliation of the native title holders to the determination area;

(vi) maintain the cosmological relationship beliefs, practices and institutions through ceremony and proper and appropriate custodianship of the determination area and special and sacred sites, to ensure the continued vitality of culture, and the well being of the native title holders;

(vii) inherit or dispose of native title rights and interests in relation to the determination area in accordance with custom and tradition;

(viii) determine who are the native title holders and determine amongst them the connections of particular individuals and sub-groups to specific portions of the determination area (such determinations being made by reference to multiple criteria, eg, descent, birth/conception sites, succession practices and indigenous subdivisions of the land); and

(ix) resolve disputes between the native title holders and other Aboriginal persons in relation to the determination area;

E. construct and maintain structures for the purpose of exercising the native title rights.

7. Any other native title rights and interests are derived from those native title rights and interests listed in order 6.

8. The native title rights and interests are subject to the laws of the Commonwealth and of the State, including any Local Government Planning Scheme, Local Laws or Local Government regulations.

9. The native title rights and interests are or may be affected by, and to the extent of any inconsistency yield to, all rights and interests validly created within the determination area which exist or may hereafter exist pursuant to valid laws of the Commonwealth of Australia and of the State of Queensland, including the rights and interests of the holder of Occupation Licence 285, Cooktown, and those of the mining interests set out in Schedule 2A incorporated in Annexure A as are validly existing at the date of this determination.

10. The exercise of the native title rights and interests is subject to the rights conferred on any other party by or pursuant to any of the agreements contained in Schedules 3 and 4 incorporated in Annexure A.

11. The native title rights and interests are held by the native title holders and are not held on trust for the native title holders.

12. The native title rights and interests will be affected by the future acts authorised by the Land Tenure Agreement contained in Schedule 3 incorporated in Annexure A.

13. The exercise of the native title rights and interests over the determination area other than area A on the map contained in Schedule 1 headed Plan of Determination Area and incorporated in Annexure A is governed by the Land Use and Access Agreement contained in Schedule 4 that is also incorporated in Annexure A.

14. The agreements referred to in orders 12 and 13 commence to operate and are effective from the time of making of this determination (whether those agreements are executed or not).

15. Each of the Schedules in Annexure A to these orders forms part of this determination.

16. The native title rights and interests set out in this determination are the particular property of the native title holders and the enunciation of those rights is based to an extent on material contained in and referred to in the report prepared by Mr Ray Wood, and filed in the Court on 22 May 1998 ("the Wood Report").

17. Accordingly, where in this determination it is necessary to decide whether a particular right exists, or the nature or extent of a right where that right is said to be a "customary right, duty or obligation", or to be exercised "in accordance with custom and tradition", initial reference is intended to be made to the custom, tradition, right, duty or obligation referred to in the Wood Report.

18. In this determination, unless the context otherwise requires:

(a) Terms used in this determination have the meanings given to those terms in the Native Title Act 1993 (Cth).

(b) "determination area" means the land and waters marked as areas A and B on the map contained in Schedule 1, headed Plan of Determination Area and incorporated in Annexure A, namely the area described as lot 285 on plan OL455, County of Dagmar, Parishes of Tregoora and Gorilbee but excluding the area described as area D on the map contained in Schedule 1, headed Plan of Determination Area and incorporated in Annexure A.

(c) "fauna" has the meaning given to it in the Fauna Conservation Act 1974 (Qld).

(d) "laws of the Commonwealth and of the State" includes the common law.

(e) "minerals" has the same meaning as "mineral" in s 5 the Mineral Resources Act 1989 (Qld);

(f) "natural resources" means animal, fish and plant life found on the determination area from time to time (but does not include fauna) and water, clays and soils but excludes minerals, petroleum and other resources won by mining;

(g) "party" means the party and includes any assignee or successor of that party;

(h) "site of significance" means a site or area of land or water that is sacred to the native title holders or is otherwise of significance according to Aboriginal custom and tradition, and includes burial, birth, conception, navel, story and social history sites;

(i) the expressions "native title holders" and "common law holders" have the same meaning.

19. Pursuant to sub-section 57(2) the Native Title Act 1993 (Cth), Derrick Oliver, a representative of the common law holders, must nominate in writing to the Court within six months of the date of this determination, a prescribed body corporate to perform the functions mentioned in sub-section 57(3) the Native Title Act 1993 (Cth) after that prescribed body corporate becomes a registered native title body corporate.

20. That where any common law holder named in this determination ("the existing person") is unable, by reason of death, infirmity or incapacity or other reasons associated with custom and tradition, to do anything required pursuant to this determination within the time set out in that determination, any other common law holder has liberty to apply to be substituted as the representative of the common law holders in place of the existing person.

21. Until such time as a body is registered as the registered native title body corporate representing the common law holders, any agreement, certificate or other document which would otherwise be entered into or executed by the registered native title body corporate may be so entered into or executed on behalf of the common law holders by the person entitled to make the nomination referred to in order 19, together with four other common law holders.

22. Until such time as body becomes registered as the registered native title body corporate for the common law holders, any notice, correspondence or other document required to be forwarded to the registered native title body corporate may be given to the representative of the common law holders at the following address:

Attn: Mr Michael Neal

Phillips Fox

Lawyers

PO Box 2043

Cairns Mail Centre Q 4870.

23. The Deed of Agreement (exhibit 1) incorporating the various schedules will be Annexure A to the orders of the Court and the Agreement between the applicants, the State of Queensland and Mr Adam (exhibit 3) will be Annexure B to these orders.

24. The applicants have leave to uplift the exhibits and to prepare a consolidated Agreement to be filed as soon as reasonably practicable.

25. There be liberty to all parties to apply.

26. There be no order as to the costs of or incidental to this action.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 6002 of 1996

BETWEEN:

WESTERN YALANJI OR "SUNSET" PEOPLES Applicants

AND:

ALAN AND KAREN PEDERSEN First Respondents PAN AUSTRALIAN RESOURCES NL (withdrawn) Second Respondent CENTAMIN LIMITED (withdrawn) Third Respondent DAVID COSTELLO (withdrawn) Fourth Respondent LEN ROSENDALE (withdrawn) Fifth Respondent SONNY LEVERS (withdrawn) Sixth Respondent MAREEBA SHIRE COUNCIL Seventh Respondent MINOTAUR GOLD NL (withdrawn) Eight Respondent JOHN PLATH (withdrawn) Ninth Respondent MESSRS JOHN W WITHERS and GARrY A DIBLEY (withdrawn) Tenth Respondents STATE OF QUEENSLAND Eleventh Respondent MR OLIVER J STRATTON (withdrawn) Twelth Respondent TELSTRA CORPORATION LIMITED (withdrawn) Thirteenth Respondent NOEL A ADAM Fourteenth Respondent

JUDGE:	DRUMMOND J
DATE:	28/09/98
PLACE:	CAIRNS

REASONS FOR JUDGMENT

This is an application under s 87 the Native Title Act 1993 (Cth) for orders determining that native title rights and interests exist in relation to land and waters near Mt Carbine in the Mareeba Shire of north Queensland in circumstances in which all interested parties have been able to reach agreement.

Today's hearing originated in an application made in May 1995 by members of the Western Yalanji people to the National Native Title Tribunal. A number of persons and organisations with interests in the claimed lands became parties to those proceedings. They included Mr and Mrs Pedersen, who hold a grazing right in the area and who remain respondents to the application; various mining companies and persons with mining interests in the lands, of whom only Mr Adam remains a party; the Mareeba Shire Council, which has indicated some time ago its intention to abide by such order as the Court sees fit to make; and the State of Queensland, which also, of course, remains a party.

The Western Yalanji claim was the subject of mediation conducted by the National Native Title Tribunal in 1996. That did not resolve the competing interests of the parties. The Tribunal, accordingly, transferred the claim to this Court in October 1996. Negotiations have continued between the parties and, happily, full agreement has now been able to be reached. There is, in the documents that have been tendered, a record of their agreement as to how their various interests in the subject lands can be accommodated, the one with the other.

I am satisfied that the Court both has the power to make a determination to the effect contained in the documents (which incorporate the amendments set out in exhibit 2) and that it is appropriate to make such a determination. In reaching this view, I take into account the material before the Court, including the anthropological material from Mr Wood that is mentioned in the material, and, importantly, the fact that negotiations have achieved an outcome which all parties with interests in the land are prepared to support.

I will, therefore, make the following orders and declarations:

Subject to order 2, native title rights and interests exist in relation to the determination area, as indicated on the map in schedule 1.

I do not propose to read out verbatim all the other provisions of the document headed Determination of Native Title incorporated in exhibit 1, but I will make orders in terms of the following paragraphs, as amended by exhibit 2: paras 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 20, 21 and 22.

There will be certain further orders in terms of paras 6, 7, 8 and 9 of the document headed Draft Determination (exhibit 6).

The Deed of Agreement incorporating the various schedules will be Annexure A to the orders of the Court and the Agreement between the applicants, the State of Queensland and Mr Adam will be Annexure B to these orders.

There will also be an order giving the applicants leave to uplift the exhibits and to prepare a consolidated Agreement, and there will be a direction that the consolidated Agreement be filed forthwith, ie, as soon as it is reasonably practicable.

There will also be liberty to all parties to apply.

The Court will make no order as to the costs of or incidental to this action.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 28/09/98

Solicitor for the Applicants:	Phillips Fox (assisted by North Queensland Land Council)
Counsel for the First Respondents:	Mr GE Hiley QC and Mr GJ Koppenol
Solicitors for the First Respondents:	Corrs Chambers Westgarth
Solicitors for the Seventh Respondent:	MacDonnells
Solicitor for the Eleventh Respondent:	Crown Law
Solicitors for the Fourteenth Respondent:	Macrossans
Date of Hearing:	28 September 1998
Date of Judgment:	28 September 1998