Native Title

Native Title is the contemporary legal recognition of pre-existing Aboriginal rights and interests in land, water and resources based on ancient and continuing traditional law and practices. We lodged our native title claim over our traditional country in 2002.

On 24^th April 2006 the Federal Court of Australia determined that the Mandingalbay Yidinji People hold continuing native title over parts of our traditional Country, referred to as Lots 1 to 6:

Lot 1 is Giangurra Reserve, which is a 10 hectare environmental reserve managed by Cairns Regional Council (formerly Cairns City Council), over which the Federal Court has determined that Mandingalbay Yidinji People hold co-existing native title;
Lots 2 and 3 comprise two blocks of formerly Unallocated State Land located between the bund wall and Trinity Inlet, over which the Federal Court has determined Mandingalbay Yidinji People hold exclusive native title above the mean high tide level;
Lot 4 is an 8 hectare island in the upper reaches of Trinity Inlet near the Redbank boat ramp, over which the Federal Court has determined that Mandingalbay Yidinji People hold exclusive native title above the mean high tide level;
Lot 5 is Grey Peaks National Park, comprising about 1,000 hectares of Malbon Thompson Range, over which the Federal Court has determined that Mandingalbay Yidinji People hold co-existing native title;
Lot 6 comprises two portions of State Forest lying to the north and south of Grey Peaks National Park, totalling approximately 2,000 hectares, over which the Federal Court has determined that Mandingalbay Yidinji People hold co-existing native title.

Exclusive Native Title

The Federal Court determination recognises our native title rights with respect to Lots 2, 3 and 4 as the rights in accordance with traditional laws and customs to:

…possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

Non-exclusive Native Title

The Federal Court determination recognises our native title rights with respect to Lots 1, 5 and 6 as the non-exclusive right to use and enjoy the land and waters, including to:

Access and be physically present thereon in accordance with traditional laws and customs;
Camp thereon in accordance with traditional laws and customs, not including the right to reside permanently or build permanent structures or fixtures;
Hunt, fish and gather thereon for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs;
Take, use and enjoy the natural resources thereon for the purpose of satisfying personal domestic, social, cultural, religious, spiritual, ceremonial and non-commercial communal needs in accordance with traditional laws and customs;
Maintain and protect from physical harm, by lawful means, places therein of importance to the native title holders in accordance with traditional laws and customs;
Perform social, cultural, religious, spiritual or ceremonial activities thereon and invite others to participate in those activities in accordance with traditional laws and customs;
Pass on native title in relation thereto in accordance with traditional laws and customs;
Make decisions in accordance with traditional laws and customs concerning access thereto and use and enjoyment thereof by aboriginal people who are governed by the traditional laws acknowledged, and traditional customs observed by, the native title holders;
Determine membership and filiation to the native title holders in accordance with traditional laws and customs.

Map showing areas of Mandingalbay Yidinji Native Title determined and under claim

Interpreting the determination

As noted above, the Federal Court determined that Mandingalbay Yidinji hold exclusive native title to Lots 2 and 3 above high tide level. The meaning of ‘high tide’ in the determination is the meaning given in the Land Act 1994 (Qld); which defines ‘high tide’ as "the ordinary high water mark at spring tides" – not a very precise definition.

In 1996 the Queensland Supreme Court^¹ determined that "the ordinary high water mark at spring tides" means:

"The long term average of the heights of two successive high waters during those periods of 24 hours (approximately once a fortnight) when the range of tide is greatest, at full and new moon”.

The Supreme Court’s interpretation corresponds to the definition of the tidal plane Mean High Water Spring Tide published in Queensland's Official Tide Table and Boating Safety Guide. The level of the Mean High Water Spring Tide for Cairns is 2.57 metres above datum (i.e. 2.57 metres above the Lowest Astronomical Tide).

The Mandingalbay Yidinji native title determination therefore recognises exclusive possession over all areas of Lots 2, 3 and 4 that are higher than 2.57 metres above datum.

Detailed topographic maps provided by DNRWY indicate that most of Lots 2 and 3 and approximately half of Lot 4 lie above 2.57 metres, and hence comprise exclusive native title land.

The Trinity Inlet Section of the Great Barrier Reef Coast State Marine Park Area includes coastal land and water up to the level of the highest tide² (known as the Highest Astronomical Tide, which for the Cairns area is 3.42 above datum). This means that Mandingalbay Yidinji exclusive native title land in Lots 2, 3 and 4 lies entirely within the Marine Park and the Fish Habitat Area.

Though the determination of native title on Lots 1, 5 and 6 led to the negotiations of Indigenous Land Use Agreements (ILUAs) between Mandingalbay Yidinji People and various government agencies (see below), no such negotiations have yet been undertaken towards possible ILUAs with respect to Lots 2, 3 and 4. However, during the development of IPA Plan, officers of the both the Queensland Department of Environment and Resource Management (responsible for the management of the Marine Park) and the Fisheries Queensland (responsible for the management of the Fish Habitat Area) expressed their commitment to ongoing collaboration with Mandingalbay Yidinji People in the management of these areas.

Indigenous Land Use Agreements

Following the determination of native title, ILUAs were negotiated between Mandingalbay Yidinji People and the following organisations and agencies with respect to the use and management of Lots 1, 5 and 6:

State of Queensland
Wet Tropics Management Authority (WTMA)
Cairns City Council
(now Cairns Regional Council)
Ergon Energy
Telstra

Of particular relevance to the implementation of this IPA Plan are the ILUAs with the State of Queensland, WTMA and Cairns City Council, with respect to Grey Peaks National Park, the State Forest and Giangurra Reserve. Key features of these ILUAs are summarised below.

Grey Peaks National Park and Malbon Thompson State Forest

The ILUA covering these two protected areas contains specific commitments that Queensland Parks and Wildlife Service, Wet Tropics Management Authority and Mandingalbay Yidinji people will:

Co-operatively undertake a baseline review of the resources of Grey Peaks National Park, to be completed by October 2007); and
Negotiate a long term agreement to address each party’s concerns about land management, employment, cultural heritage protection; these negotiation are not restricted to but may include:

a.       the establishment of new walking tracks for use by the Mandingalbay Yidinji People in commercial tourism enterprises;

b.      the training and accreditation of specific members of the Mandingalbay Yidinji People as Conservation Officers under the Nature Conservation Act 1992 (Qld);

c.       fire management;

d.      collaborative weed and feral animal control;

e.      the establishment of scientific research areas: and

f.        the development of a Management Plan.

While EPA has consulted us with regards to fire management and other on-ground activities in these protected areas, which we welcome, no formal negotiations have occurred regarding the implementation of the key aspects of the ILUA listed above. The deadline (October 2007) for the completion of the baseline review of resources in Grey Peaks National Park has expired before work on the review has commenced.

Giangurra Reserve

The ILUA between Mandingalbay Yidinji People and Cairns Regional Council recognises the authority of Council to undertake its normal local government management activities in Giangurra Reserve (and elsewhere in the native title determination area) without requiring the consent from the native title holders. The ILUA also protects the continued public access to and enjoyment of the Reserve.

The ILUA, however, is silent on collaboration between Cairns Regional Council and Mandingalbay Yidinji People on the management of Giangurra Reserve. Through the implementation of our Strategic Plan we seek to work with the Cairns Regional Council in the sustainable use and management of the Reserve as part of our holistic management approach through collaboration with all the agencies responsible for managing protected areas on our Country.

Additional Native Title Claim

Mandingalbay Yidinji people have joined with Gungganyji people to claim the southern section of the former Yarrabah Reserve and adjacent islands. When this claim was determined (in September 2012) we began to expand our management partnerships to include Gungganyji people and develop more comprehensive management of the regional land and sea country.

1 Svendsen, 1999 N Svendsen vs State of Queensland and Anon., Queensland Supreme Court, No 32 of 1996, Demack J - April, 1999
2 See (Marine Parks (Declaration) Regulation 2006, Schedule 2, Section 2, page 70)