Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 15 June 2023
• Neutral Citation: [2023] FCA 600
• Date: 15 June 2023
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600

Related matter:	Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369
File number:	QUD 33 of 2019
Judgment of:	RANGIAH J
Date of judgment:	15 June 2023
Catchwords:	NATIVE TITLE – determination of separate questions – whether native title exists in the claim area – whether claim group held rights and interests in the claim area at sovereignty – whether claim group were part of a regional society at sovereignty – whether there has been continued observance of pre-sovereignty laws and customs – whether there is continuing connection with land or waters by traditional laws and customs – whether regional society continues to exist – native title found not to exist – recommendation for law reform
Legislation:	Evidence Act 1995 (Cth) s 140(1) Native Title Act 1993 (Cth) ss 13, 61, 223 and 225 Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld)
Cases cited:	Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) (2010) 204 FCR 1; [2010] FCA 643 Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2003) 207 ALR 539; [2004] FCA 472 Ashwin on behalf of the Wutha People v State of Western Australia (No 4) (2019) 369 ALR 1 Blackman on behalf of the Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People v State of Queensland (No 3) [2017] FCA 1637 Bodney v Bennell (2008) 167 FCR 84; [2008] FCAFC 63 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (2015) 325 ALR 213; [2015] FCA 9 Daniel (on behalf of the Ngarluma People) v State of Western Australia [2003] FCA 666 De Rose v South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 Drill on behalf of the Purnululu Native Title Claim Group v State of Western Australia [2020] FCA 1510 Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 273 FCR 350; [2019] FCAFC 177 G v H (1994) 181 CLR 387; [1994] HCA 48 Gumana v Northern Territory of Australia (2005) 141 FCR 457; [2005] FCA 50 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1; [2007] FCA 31 Hatfield on behalf of Darumbul People v State of Queensland (No 3) [2016] FCA 723 Jango v Northern Territory of Australia (2006) 152 FCR 150; [2006] FCA 318 Jones v Dunkel (1959) 101 CLR 298 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176 Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) (2021) 397 ALR 397; [2021] FCA 1639 Members of the Yorta Yorta Aboriginal Community v Victoria; (2002) 214 CLR 422; [2002] HCA 58 Munn for and on behalf of the Gungarri People v State of Queensland (2001) 115 FCR 109; [2001] FCA 1229 Narrier v State of Western Australia [2016] FCA 1519 Neowarra v State of Western Australia [2003] FCA 1402 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442; [2005] FCAFC 135 Risk v Northern Territory of Australia (2007) 240 ALR 75; [2007] FCAFC 46 Risk v Northern Territory of Australia [2006] FCA 404 Rita Augustine v State of Western Australia [2013] FCA 338 Sampi (on behalf of the Bardi and Jawi People) v Western Australia (2010) 266 ALR 537; [2010] FCAFC 26 Sampi v Western Australia [2005] FCA 777 Sandy on behalf of the Yugara People v State of Queensland (No 2) (2015) 325 ALR 583; [2015] FCA 15 Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 Starkey on behalf of the Kokatha People v State of South Australia (2018) 261 FCR 183; [2018] FCAFC 36 State of Western Australia v Willis on behalf of the Pilki People (2015) 239 FCR 175; [2015] FCAFC 186 Western Australia v Sebastian (2008) 173 FCR 1; [2008] FCAFC 65 Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 Wyman on behalf of the Bidjara People v Queensland (No 2) [2013] FCA 1229 Wyman v Queensland (2015) 235 FCR 464; [2015] FCAFC 108 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53
Division:	General Division
Registry:	Queensland
National Practice Area:	Native Title
Number of paragraphs:	1248
Date of last filed submissions and emailed submissions requested by Judge:	Filed 28 January 2022 (Applicant) Filed 18 February 2022 (First Respondent) Email response 4 April 2023 (Applicant) Email response 17 April 2023 (First Respondent)
Date of hearing:	12–17 April 2021, 27 April 2021, 28–29 June 2021, 14 July 2021 and 14 December 2021
Counsel for the Applicant:	Mr J Waters with Mr J Creamer
Counsel for the Applicant 14 December 2021:	Mr J Waters SC with Mr J Creamer
Solicitor for the Applicant:	Saylor Legal
Counsel for the First Respondent:	Mr A Duffy QC with Mr M Taylor
Solicitor for the First Respondent:	Crown Law
Counsel for the Second to Seventy-Fourth Respondents:	The Second to Seventy-Fourth Respondents did not appear

ORDERS

		QUD 33 of 2019
BETWEEN:	LYNETTE GAIL BLUCHER, LYNETTE ANN ANDERSON, LILLIAN MAY HARRISON, RODNEY JOHN JARRO, MARGARET JENNIFER KEMP AND KEVINA FAY SUEY ON BEHALF OF THE GAANGALU NATION PEOPLE Applicant
AND:	STATE OF QUEENSLAND First Respondent ; BANANA SHIRE COUNCIL Second Respondent ; CENTRAL HIGHLANDS REGIONAL COUNCIL (and others named in the Schedule) Third Respondent

order made by:	RANGIAH J
DATE OF ORDER:	15 JUNE 2023

THE COURT ORDERS THAT:

1. The separate questions be answered as follows:

a. But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?

Answer: No

b. In relation to that part of the claim area where the answer to (a) above is in the affirmative:

i. Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

ii. What is the nature and extent of the native title rights and interests?

Answer: Not applicable.

2. The parties are to confer as to appropriate orders and advise the Court within 28 days as to whether they have...