On 26 July 2022, at a ceremonial Federal Court hearing held at a marquee near the homestead of the Kurtjar owned and operated Delta Downs station, situated to the north of Normanton in the Gulf of Carpentaria, Justice Rares delivered the final determination judgment which recognises the Kurtjar People’s native title over significant parts of their traditional country. Chelsea Griffin-Breen (Special Counsel, Brisbane), who had the carriage of the claim for the Kurtjar People, along with Philip Hunter (Partner, Brisbane) attended the Court hearing together with the legal representatives for the State of Queensland (State) and a large number of Kurtjar People.
The determination hearing follows the delivery of Justice Rares’ long awaited trial judgment on the Kurtjar People’s native title claim on 15 October 2021, which had been reserved since March 2020.
The Kurtjar claim was filed in the Federal Court in 2015 and covers part of Staaten River national park and a number of pastoral stations between the Staaten and Carron Rivers. The Kurtjar People’s traditional connection to the claim area was contested by a number of pastoralist respondents and also, for a period of time, the State. Some of these pastoralists opted to no longer contest connection following an unsuccessful application for leave to file a further expert anthropological report which, if granted, would have qualified materially what that expert had agreed in a joint expert report. Stanbroke Pty Ltd (Stanbroke), who was the lessee of Miranda Downs station at the time of the trial, continued to contest the Kurtjar People’s connection to the majority of the station that was covered by the Kurtjar claim.
The trial involved an on-country lay evidence hearing conducted on Delta Downs station (August 2019) and an expert evidence hearing (March 2020). The lead-up to the on-country lay evidence hearing was at times difficult, with the other pastoral respondents impeding the Kurtjar People’s and their legal team’s access to their stations to prepare for the hearing, and following the team in helicopters and vehicles during the on-country trial preparation. The Federal Court was required to make orders to facilitate access to these stations and which ensured that the manager of the stations remained more than 500 metres away from the attendees, and out of their sight, at all times and that the manager could not convey or repeat anything that they had witnessed concerning the attendees to any person.
Following the lay evidence hearing, the State no longer contested the Kurtjar People’s connection to all of the claim area, leaving Stanbroke to contest their connection to that part of Miranda Downs station that was within the claim area. In July 2021, while awaiting Justice Rares’ judgment, Stanbroke sold Miranda Downs station.
Extensive work in the lead up to the trial included obtaining lay witness statements on-country, using helicopters to access remote locations on-country to film aspects of the claimants’ evidence and managing complex anthropological and genealogical issues arising from the various expert reports. Support for the Kurtjar claim, including logistic support for the on-country work and hearing, was provided by Carpentaria Land Council Aboriginal Corporation, a Commonwealth funded body under the Native Title Act.
A further hearing before Justice Rares was required to finalise the terms of the native title determination following the delivery of Justice Rares’ judgment in October 2021, with the State contesting the formulation of a number of important native title rights. The Kurtjar People’s arguments on these outstanding native title rights prevailed, with the determination recognising their non-exclusive rights to access and take resources from the determination area for any purpose, access and take water in the determination area for any purpose not vested in the Crown in right of the State by reason of restrictions on such vesting in relevant State water legislation and light fires on the determination area for cultural, spiritual or domestic purposes.
This unprecedented result for the Kurtjar People was hard fought and sadly a number of senior Kurtjar People passed away during the course of the claim.
Whilst there have been a large number of consent determinations of native title and also successfully litigated native title claims in Western Australia, South Australia, the Northern Territory and in relation to offshore waters in the Torres Strait and Gulf of Carpentaria, the determination of native title made in favour of the Kurtjar People represents the first successfully litigated native title claim in mainland Queensland, New South Wales and Victoria since the Native Title Act commenced in January 1994.
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