Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251

Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251

The Kurtjar people possess, by traditional law/custom and licit succession, non-exclusive native title rights and interests over the whole claim area, including Miranda Downs. Licit succession was established as the Kurtjar, as part of the overarching normative society, demonstrated the ability to manage the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 October 2021
Procedural Posture
Native Title Determination / Judgment Addressing Key Issues Prior to Final Native Title Determination Orders
Outcome
Native title recognised (rights and connection established) over the whole claim area including Miranda Downs, with formulation of 'right to access and take for any purpose resources' subject to further submissions.
Legal Topics
['continuity of Connection' 'licit Succession' 'succession of Native Title Rights' 'apical Ancestors' 'non Exclusive Native Title Rights' 'right to Take Resources' 'traditional Laws and Customs' 'spiritual Correspondence' 'anthropological Evidence' 'expression of Native Title Rights in Determination']
['native Title' 'aboriginal and Torres Strait Islander Law'] ['continuity of Connection' 'licit Succession' 'succession of Native Title Rights' 'apical Ancestors' 'non Exclusive Native Title Rights' 'right to Take Resources' 'traditional Laws and Customs' 'spiritual Correspondence' 'anthropological Evidence' 'expression of Native Title Rights in Determination']

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Procedural Posture

Native Title Determination / Judgment Addressing Key Issues Prior to Final Native Title Determination Orders

Legal Issues

  1. 1 ['Whether the Kurtjar people have continuous traditional connection or succeeded to rights in the disputed claim area (Miranda Downs) according to traditional laws and customs since sovereignty' 'Appropriate apical ancestors to be included for the Kurtjar claim group' 'Proper common law formulation of the right to access and take resources, including whether it should reference purpose/limits']

Ratio Decidendi

The Kurtjar people possess, by traditional law/custom and licit succession, non-exclusive native title rights and interests over the whole claim area, including Miranda Downs. Licit succession was established as the Kurtjar, as part of the overarching normative society, demonstrated the ability to manage the country's spirituality according to tradition. The right to access and take resources should be expressed as 'for any purpose' in the determination, being consistent with both the normative content of traditional law/custom and existing High Court authority. Apical ancestors to be recognised include Gilbert, Alice Reid (also Alice Gee/McGilvray), Iffley Tommy senior, Paddy Macaroni,...

Court Disposition

Native title recognised (rights and connection established) over the whole claim area including Miranda Downs, with formulation of 'right to access and take for any purpose resources' subject to further submissions.

Orders

  • ['Parties to confer and prepare determination of native title consistent with prior agreements and judgment reasons.' "If any party opposes inclusion of 'to access and take for any purpose resources in the claim area', written submissions (max 5pp) to be filed by 5 November 2021; responses by 26 November 2021."...