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Native Title on Redlands Coast

Current Quandamooka Coast Native Title Claim

There is currently a native title claim, QC2017/004 – Quandamooka Coast Claim, over much of Redlands Coast. It was entered on the Register of Native Title claims in May 2017.

This claim covers most of mainland Redlands and part of Brisbane City, as well as islands including Lamb Island, Macleay Island, Karragarra Island, Coochiemudlo Island, Cassim Island, Sandy Island, Tindappah Island (Garden Island), Green Island (Milwarpa), King Island (Erobin), St Helena Island (Noongoon) and Mud Island (Bungumba).

A map of the Quandamooka Coast claim is available on the National Native Title Tribunal website.

The claim is currently filed in the Federal Court, which follows an assessment process including public notification and the exchange of archaeological and connection material and related submissions on the potential extent of native title interests and rights.

Council seeking clarity on extent of native title on public lots

Redland City Council is seeking clarity from the Federal Court regarding whether native title has been extinguished on Council-owned or managed land that is related to the current Quandamooka Coast Native Title Claim.

The claim, registered in 2017 and not yet determined, covers around 530 square kilometres including the bulk of the Redland City mainland local government area and Macleay, Karragarra, Coochiemudlo, and Lamb Islands in southern Moreton Bay.

While native title does not include land in private or public freehold ownership, such as houses and businesses, Council is seeking clarity from the Federal Court about whether native title had been extinguished on Council-owned or managed sites including key parks, reserves, infrastructure and foreshores.

Council has been working through procedures established over the past 30 years to help facilitate the claim process by identifying the extent to which native title may exist over the public lots within the Quandamooka Coast Claim area. 

Council acknowledges and respects the Native Title interests and aspirations of the Quandamooka people and its efforts to clarify the status of the land is in no way seeking to stand in the way of the Native Title interests.

Council agrees that there is a Quandamooka cultural connection to the land and is clarifying how native title rights can be exercised. 

Having clarity over the history of the lots of land – and whether that extinguishes native title or not – will ensure there are no legacy issues down the track.

Details of the Council-owned and managed land relating to the Quandamooka Coast Native Title Claim, have been lodged by Redland City Council with the Federal Court.

The properties are listed in schedules prepared by Council following research that aims to document the status of native title over land through evidence of previous exclusive possession acts that are either public works or previous grants of tenure.

Approximately 3500 Council-owned or managed properties are included in the current native title claim area, with the State Government advising that native title had been extinguished on approximately 1000 of those properties.

That leaves about 2500 Council-owned or managed sites where Council is seeking to determine whether native title has been extinguished or not.

Of these there are around 80 in particular that Council is looking for clarity on whether or not public works at the sites, or prior tenure, extinguishes native title. These include Wellington Point, Cleveland Point and Victoria Point. 

There are also 147 areas of interest that Council manages such as foreshores, creeks and canals where we are also seeking clarity on native title status.

Since 2021, Council has made a number of submissions to the State Government and Native Title Applicant about many properties where Council’s research indicates that native title has been extinguished due to the previous tenure of the sites and/or prior public works, such as the building of roads, playgrounds, shelters and other buildings.

Native title rights were determined on Minjerribah/North Stradbroke Island in Redland City in 2011 (see below).

 

Quandamooka Peoples' 2011 Native Title determinations

I have not come here today to give anything to the Quandamooka People. These orders give them nothing. Rather, I come on behalf of all Australian People to recognise their existing rights and interests, which rights and interests have their roots in times before 1788, only some of which have survived European settlement. Those surviving rights and interests I now acknowledge – Judge Dowsett, 4 July 2011

The Quandamooka Peoples' 2011 native title consent determinations (Quandamooka People #1 and Quandamooka People #2) cover most of North Stradbroke Island, Peel Island, Goat Island, Bird Island, Stingaree Island, Crab Island and the surrounding waters of Moreton Bay. These areas are the result of two claims made by the Quandamooka Peoples in 1995 and 1999, on which the Federal Court made its determinations. 

The determinations recognise the Quandamooka Peoples' rights to:

  • live and be present on the determination areas
  • conduct traditional ceremonies
  • take, use, share and exchange traditional natural resources
  • conduct burial rites, teach about the physical and spiritual attributes of the area
  • maintain places of importance and areas of significance.

On Monday 4 July 2011, the Redland City Council and the Quandamooka Peoples signed an Indigenous Land Use Agreement, setting out broad principles and mechanisms for how the parties will work together and meet responsibilities for mutual benefits.

Questions and answers

Native title is the recognition that Aboriginal and Torres Strait Islander people have rights and interests to land and waters according to their traditional law and customs as set out in Australian law. 

Native title is recognised and protected by the Commonwealth Native Title Act 1993 and state legislation such as the Native Title (Queensland) Act 1993.

Native title rights describe a bundle of rights applying to land. These may include traditional rights and interests to:

  • live and be present in the determination areas
  • conduct traditional ceremonies
  • take, use, share and exchange traditional natural resources
  • conduct burial rites
  • teach about the physical and spiritual attributes of the area
  • maintain places of importance and sites of significance.

Native title comes in two forms: non-exclusive possession and exclusive possession.

Non-exclusive native title is native title across areas where there is a shared interest with another party. Non-exclusive native title rights holders do not have exclusive rights to the lands or access to the land. 

Exclusive possession in native title includes the right to possess and occupy an area to the exclusion of all others. 

All native title rights are subject to the laws of the State and the Commonwealth.

The process begins under the Commonwealth Native Title Act 1993 when a native title claim group files (lodges) an application in the Federal Court seeking a determination that recognises them as native title holders over the area claimed.

Native title requires Aboriginal people to prove they have had a continuous and unbroken connection to their country since colonisation.

If an Aboriginal person or group wants to establish a native title claim, they must submit a claim application to the Federal Court, responsible for managing all aspects of native title.

The Commonwealth Native Title Act 1993 establishes two important bodies for responding to and determining native title claims. The Federal Court of Australia is responsible for determining native title and compensation, including orders giving effect to a claim agreement. 

The National Native Title Tribunal has the power to decide if a claim can be made and to provide assistance or undertake mediation.

The Claim was filed in the Federal Court and covers approximately 530 square kilometres across Redlands Coast mainland and islands excluding North Stradbroke Island (as subject to the 2011 Native Title determination); Russell Island and approximately 33 square kilometres in the southern areas of Mount Cotton and Redland Bay. The Claim seeks a Federal Court Order that native title rights and interests exist to possess, occupy, use and enjoy the lands and waters of the application area, excluding those areas where Native Title has been extinguished, for example, freehold land and public works. 

Quandamooka Coast Native title Claim (currently before the Federal Court) was entered on the Register of Native title claims in 2017 and is in the process of determination.

This claim covers most of mainland Redlands Coast and part of Brisbane City, as well as islands including Lamb Island, Macleay Island, Karragarra Island, Coochiemudlo Island, Cassim Island, Sandy Island, Tindappah Island (Garden Island), Green Island (Milwarpa), King Island (Robin), St Helena Island (Noongoon) and Mud Island (Bungumba). 

The claim registered in 2017 covers major areas of Redland City and potentially affects thousands of properties under management by Council and Council ownership and trust.

Redland City Council acknowledges and respects the native title interests and aspirations of the Quandamooka people. Council agrees that there is a Quandamooka cultural connection to the land and is clarifying how native title rights can be exercised.

Council’s research has sought to assist in identifying the status of public land in the claim area, and the extent to which native title rights exist. This has been provided in part to the State Government and the applicant and this process is continuing.

The efforts of Redland City Council to clarify the status of land under claim are not designed or intended to defeat the Native Title interests or aspirations of the Quandamooka people. Rather they are a fundamental step in clarifying the status of native title and responding to the claim under the established process and legislation that has been in place for the past 30 years.

Council’s research has sought to assist in identifying the status of native title rights on public land in the claim area, and the extent to which those rights exist. Council has provided in part this research to the State Government and the native title claim applicant.

In the interests of providing certainty for all parties sooner, Redland City Council has applied to the Court to formally seek a determination as to  the status of native title for the many properties in which Council has an interest. This action seeks to ensure the final determination of the native title claim by the Court is the most complete outcome available and avoids the need to revisit the Court's determination in the future.  

The claim remains subject to the Native Title legislation [the Native Title Act 1993 (the Act)] and established procedures for identifying and settling claims under the jurisdiction of the Federal Court of Australia.

Further progress of the claim will depend on the position of all parties following their consideration of all the material provided by the parties, including Council, and the direction of the Federal Court.

As with all native title claims, the Quandamooka people's claims cannot cover freehold land or many types of leasehold land, so most landholders will not be directly affected.

The Commonwealth Native Title Act 1993 also guides where native title may be extinguished or partially extinguished due to past acts by Government called Previous Exclusive Possession Acts (PEPAs).  

These acts may relate to the exercise of sovereign authority and ensuring the intent of legislation and the Constitution are not invalidated or overcome. PEPAs may include grants of tenure (for example, freehold) that confer exclusive possession and "public works" done before 23 December 1996.  

Public works include those works by local Government in any of its capacities that include buildings, structures (including a memorial), fixtures, roads, railways, bridges, wells, bores, major earthworks and a building constructed with the authority of the Crown, other than on a lease.

As a party to the Quandamooka Coast Native Title Claim Council considers native title has been extinguished in areas of the claim under the established native title principles of Previous Exclusive Possession Acts (PEPAs). 

Council has sought to place this information before the State, the claim applicant and the Federal Court to aid in determining the claim.

A successful native title claim may determine that exclusive or non-exclusive rights exist over all or parts of public parks, reserves and public spaces.  

Where exclusive native title is granted, access may only be available to native title rights holders.  

A determination of non-exclusive native title access may result in shared use of areas like public parks, reserves and public spaces.

Native title is extinguished by Previous Exclusive Possession Acts (PEPA).  PEPAs are grants of tenure that confer exclusive possession and “public works” that were done prior to 23 December 1996.

Section 23B(2) of the Native Title Act 1993 provides that an act is a PEPA if, it is valid, it took place on or before 23 December 1996 and it consists of the grant or vesting of any of the following:

  • A Scheduled interest
  • A freehold estate
  • A commercial lease that is neither an agricultural lease nor a pastoral lease
  • An exclusive agricultural lease or an exclusive pastoral lease
  • A residential lease
  • A community purpose lease
  • Any lease, other than a mining lease, that confers a right of exclusive possession over particular land or waters.

Section 23B(7) provides than an act is a PEPA if it is valid and it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996 and includes:

  • a building, or other structure (including a memorial), that is a fixture
  • a road, railway or bridge  
  • [in certain circumstances] a stock-route
  • a well, or bore, for obtaining water
  • any major earthworks
  • a building that is constructed with the authority of the Crown, other than on a lease

“Major earthworks” is defined to mean “earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters”.

The establishment of public work extinguishes native title on the land on which the public work is constructed, as well as adjacent land or water which is/was necessary for, or incidental to, the construction, maintenance and operation of the public work.

Extinguishment of native title is permanent. This means that the native title rights and interests cannot revive, even if the Previous Exclusive Possession Acts (PEPA) that resulted in the extinguishment ceases to have effect (for example if a public work was later demolished).

The Quandamooka Coast Native title Claim is a new claim over areas of the mainland and is currently in the process of determination.

It is separate from the already settled claims in the two 2011 native title consent determinations made by Justice Dowsett of the Federal Court of Australia at Dunwich, North Stradbroke Island, on 4 July 2011.

Council's community and corporate plans identify the unique interests and history of the Quandamooka people in Redlands. The plans commit to working together to protect and respect that history for the whole community's benefit.

Council’s Kanara Malara – One People 2019–2021 Reconciliation Action Plan is about building strong foundations and continued investment in reconciliation. It aims to encourage greater understanding and respect and ensure that Council employees and elected representatives can actively contribute to the reconciliation process.

Council continues its strong focus on developing reconciliation actions designed to grow cultural awareness and knowledge of Aboriginal and Torres Strait Islander history and culture.

Redland City Council will continue to promote a culture of inclusiveness and celebration of the rich cultures and traditions of the First Nations People of this land.

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