First Nations people step closer to Native Title for massive slice of QLD

It’s taken a decade and more than 100 documents submitted to the federal court for First Nations peoples but they’ve cleared a major hurdle in the fight to get native title determinations over a large stretch of Queensland. KEY UPDATE

• Native Title questions answered

Two native title claims could be just steps away from achieving determination for more than 7800sq km in Central Queensland more than 10 years after the applications were first filed.

The National Native Title Tribunal has stated the claims from the Barada Kabalbara Yetimarala People “satisfies all of the conditions” under the Native Title Act “therefore the claim(s) must be accepted for registration and entered on the Register of Native Title Claims”.

The Native Title claims from the Barada Yabalbara Yetimarala People concern 7512sq km of land stretching from Sarina down to Rockhampton that encompasses five regional council jurisdictions, as well as 294sq km of land and waters north of Rockhampton.

Both applications were first filed in July of 2013.

Both cases will be heard before the Federal Court later this year which will decide whether to grant determination.

If this happens, it will be the first Native Title determination affect the Isaac region west of Mackay in five years.

Those claiming to hold native title over both areas were ‘apical’ ancestors – meaning through adoption or ‘raising up’ of persons including unnamed Barada Woman (spouse of Johnny and Charlie Budby), Lucy and/or Jimmy Barber, Kitty aka Kitty Eaglehawk, Yatton Boney, Maggie (mother of Jack Mack and Gypsy Tyson), and King Boco.

Court documents state historical sources proved the ancestors had “association within and close to the claim area(s)” around the “effective date of sovereignty” in 1865.

For example, a person named JB Shannon in November, 1887 wrote about selling rations to the “n-ggers” Lucy, Sugar, Kitty and Boco for two shillings before they “sent the darkies off”.

The documents further state the evidence heard during on-country hearings – which included traditional knowledges passed down from grandparents to grandchildren like warnings to not eat emu or Goondalo as they were ancestors – provided enough facts to determine native title rights.

What does the native title determination mean?

Determinations would allow the Barada Yabalbara Yetimarala People “the right to possess, occupy, use and enjoy the lands and waters of the application area(s) as against the whole world, pursuant to the traditional laws and customs of the claim group.”

The National Native Title Tribunal states a native title determination gives the Barada Kabalbara People the right to move about on or travel over the areas; to camp and erect temporary shelters; and to hunt, fish and gather on the lands or have access to, take and use natural resources from the lands for personal, domestic and non-commercial communal purposes.

The Barada Kabalabara Yetimarala People can also hold meetings, conduct ceremonies, maintain places of importance and areas of significance, teach, live, and be buried on or bury native title holders on the grounds within the native title boundaries.

The Barada Kabalbara Yetimalara People are pushing for Native Title determination over a 7800sq km area of Central Queensland between Sarina and Rockhampton. Picture: Documents submitted to National Native Title Tribunal

They can also “speak authoritatively about the areas among other Aboriginal People in accordance with traditional laws and customs”, “make decisions about the use and enjoyment of the area(s) by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged and observed by the native title holders”, and “transmit the cultural heritage of the native title claim group including knowledge of particular sites”.

However, any native title rights remain “subject to and exercisable in accordance with” state and federal government laws and any traditional laws and customs acknowledged and observed by native title holders.

What parties were involved in the native title case over land between Sarina and Rockhampton?

Sam Dallachy and Ors on behalf of the Barada Kabalbara Yetimara People filed proceedings before the Federal Court in January, 2019.

The case was then heard no fewer than 50 times up until May this year with multiple conferences, court mentions, administrative listings, and hearings with three judges – Justice Sarah Derrington, Justice Darryl Rangiah and Justice John Reeves – all involved at various points.

More than 120 documents were filed over the almost five-year period including myriad affidavits, expert reports, chronological lists, statements and submissions.

Applicants listed throughout the case also included Lalu Asela, Elizabeth Doyle, Juanita Mason, Skye Muller, Norman Ross, Deborah Santo, Vanessa Saunders, Michael Smith, Davina Tilberoo Snr, Claudine Walsh, Anthony Henry and Margaret Hornagold.

More than 30 respondents were named during matters including the Central Highlands, Isaac Regional, Livingstone Shire, Rockhampton Regional, and Woorabinda Aboriginal Shire councils.

There were also several resource companies and miners including Anglo Coal, Caml Resources, Foxleigh Coal, Nippon Steel Australia, Sumitomo Metal Australia, Orion Gold, Pan Investments, and Peabody, with Telstra, Amplitel, Ergon and the state government also involved.

What parties were involved in the native title case over land and waters north of Rockhampton?

The same applicants were involved in the native title determination for the 294 sqkm area north of Rockhampton.

The Barada Kabalbara Yetimalara People are pushing for Native Title determination over this 294sq km of land north of Rockhampton. Picture: Documents submitted to National Native Title Tribunal

But the respondents differed with Ergon Energy, Livingstone and Rockhampton councils, Gwm Resources, Pan Investments and the state government involved in the matter.

Where else does native title apply in Queensland?

Since 1994, there has been at least 400 applications for native title in Queensland, with 180 of them consented-to, the first of which covered land in the Hope Vale Aboriginal Shire north of Cooktown.

The local government area with the highest number of native title determinations is the Mareeba Shire with 28, followed by Torres Shire with 23, Cook Shire with 16, Tablelands with 14, Torres Strait Islands with 11, Central Highlands and Cairns with 10 each, and the Cassowary Coast with eight.

On the opposite end of the count with nil native determinations are the LGAs of Ipswich, Gold Coast, Lockyer Valley, Noosa, Gympie, Longreach and the Aboriginal Shires of Cherbourg, Palm Island, Lockhart River, and Wujal Wujal.

There are currently 39 active claims for native title across the state, the latest filed in January this year from the Djabugay Nation peoples covering a stretch from Port Douglas south to Cairns and west to Mareeba.

Editor’s Note:

This story originally stated the Barada Yabalbara Yetimarala Peoples had won determinations for both Native Title applications. This was incorrect. The applications had instead received endorsement from the National Native Title Tribunal to be accepted for registration, meaning the Federal Court is now able to decide on whether or not to grant determinations. This publication apologises for the misunderstanding.