Wik Peoples v State of Queensland

Federal Court of Australia|2004-10-13|Before: Drummond J, Cooper J

REASONS FOR JUDGMENT Background 1 These proceedings seek a determination of native title under the Native Title Act 1993 (Cth) ('the NTA'). The claim is made by the applicants for themselves and on behalf of the Wik and Wik Way Peoples. The original claim was filed on 24 March 1994. 2 In June 2000 it was ordered that the claim be determined in two parts: Parts A and B. The lands in Part A were confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples. On 3 October 2000 Drummond J determined by consent that native title existed in the lands and waters within Part A of the claim. 3 Part B of the claim comprised the balance of the lands and waters of the claim area. The lands and waters in Part B contained lands held under pastoral and mining titles. 4 To the credit of all parties to the claim, they have mediated the issues which arose under Part B to the point where they have agreed two consent determinations. Their agreement is subject to the Court being satisfied that it has the power to make the determinations sought and that it is proper to do so. One agreement concerns exclusive rights of possession, occupation, use and enjoyment of the lands and waters in certain parts of the claim area; the second concerns non-exclusive rights in other parts of the claim area. Power of the Court 5 This Court has jurisdiction to hear and determine applications for a determination of native title in relation to an area for which there is no approved determination of native title: ss 13, 61 and 81 of the NTA. Division 1C of Part 4 of the NTA provides for agreements, to be made by some or all of the parties to an application, to settle the application or part of it. 6 Section 87 of the NTA provides that the Court may, if it is satisfied that such an order is within the power of the Court, make an order in, or consistent with, the terms of the parties' written agreement without holding a hearing. 7 Section 94A of the NTArequires that an order of this Court which makes a determination of native title must set out details of the matters mentioned in s 225 of that Act. Section 225 provides: 'A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.' Original emphasis

Consideration of Agreements and Draft Determinations 8 In considering whether it is appropriate to make the orders which the parties seek, I have had the benefit of an affidavit and report of Dr Peter Sutton filed 15 September 2004. I have also read an earlier report dated 29 June 1997 prepared by Dr Sutton which was before Drummond J when his Honour made the consent determination in respect of Part A of the claim area. Dr Sutton is an Australian Research Council Professorial Fellow of the School of Social Sciences, University of Adelaide and the Division of Anthropology, South Australian Museum. He is also an Honorary Research Fellow of the Institute of Archaeology, University College, London. Dr Sutton has carried out studies of the Wik and Wik Way native title claimant group and worked with the members of that group and their predecessors since 1976. He is a specialist in the area of anthropological and linguistic research relating to Australian Aboriginal people and Aboriginal societies and he is eminently qualified to express the professional expert opinions which he does in his affidavit. 9 This is a case where there is a rich body of documented material which has been brought into existence over very many years. It establishes the existence of organised Aboriginal occupation and possession of the determination area extending back beyond the imposition of British sovereignty. It also establishes the continuity of an identifiable society of Aboriginal peoples having a connection with the lands and waters of the determination area in accordance with traditional laws which they acknowledged and traditional customs which they observed. Additionally, the content of these records, in terms of recorded Aboriginal names and language, enables the linguistic links to be made between the present claimants, their predecessors and the society which existed in the determination area at the time of sovereignty and the relationship of clan groups to particular parts of the determination area. There is also a history of long term field work and academic study in and of the determination area and its peoples which reveals a consistency and continuity in the research findings. This body of material enables the Court to make the findings as to the state of affairs which existed in the determination area at the time of sovereignty with greater confidence and to draw the inferences of connection and continuity between the present claimants and the state of affairs which existed at that earlier time. 10 The historical records of European contact with the claim area commence in 1606 with Willem Jansz and the crew of the 'Duyfken' sailing down the west coast of Cape York Peninsula for about 350 kilometres and record the presence of, and contact with, Aboriginal peoples who inhabited the claim area. The record includes sightings and observations of Carstenz (1633), Matthew Flinders (1802), the Jardine brothers (1864), Pennefather (1880) and others leading up to the gold rushes in the mid 1870s. 11 In 1897 Archibald Meston, a Special Commissioner for Aborigines, visited the Embley River area and published an account of his visit and his contact with the various Aboriginal people he encountered in the area. The Weipa Mission was founded in 1898. The Aurukun Mission was established in 1904. In the same year, the Mitchell River Mission began at Trubanaman and in 1915 moved to Kowanyama. The Edward River Mission was commenced in 1938. The records kept by these missions, especially those kept by William and Geraldine MacKenzie at Aurukun from the 1920s to the 1960s, have enabled anthropologists to identify traditional clan estates within the claim area, to construct genealogies, and to demonstrate continuity of members of the claimant group to particular clan estates back to at least the early 1800s. 12 In his report Dr Sutton details the substantial anthropological work carried out in respect of the claim area and its peoples. The first active period of work was between 1927 and 1935. It included long term anthropological field work by McConnel based in Aurukun, Thomson also based in Aurukun and Sharp in the Mitchell River area and Edward River area. The second active period of anthropological study commenced in the 1960s. It has involved a considerable number of professional studies throughout the claim area and has been ongoing. The anthropological work has given rise to a substantial body of published and unpublished work spanning the period 1929 to 2000 which is referenced in Dr Sutton's reports. This work demonstrates that, despite European contact and the growth of the pastoral industry in the claim area, the predecessors of the claimant group and the members of the present claimant group continued their connection with their country and had cohesion as a social group with traditional laws and customs which they continued to acknowledge and observe. Indeed, it was the use of Aboriginal labour in the pastoral industry, which in part operated to keep together Aboriginal communities based on and around pastoral stations and to give to the young Aboriginal men and women the opportunity to travel over and learn about their country. 13 I accept the evidence and opinions contained in Dr Sutton's affidavit and in his two reports. I am satisfied that: (a) native title exists in relation to the lands and waters identified as Part B of the applicants' claim and being the areas identified as the Exclusive Areas and the Non-Exclusive Areas in the two draft determinations agreed to by the parties ('the Exclusive Areas and the Non-Exclusive Areas'); (b) the members of the claimant group called the Wik and Wik Way Peoples are members of a society of peoples descended from the Aboriginal peoples who as a society at the time of sovereignty occupied the lands and waters identified as the Exclusive Areas and Non-Exclusive Areas in accordance with traditional laws and customs acknowledged and observed by them; (c) the laws and customs acknowledged and observed by the society at sovereignty are continued to be acknowledged and observed by the members of the claimant group and have been acknowledged and observed by their predecessors from the time of sovereignty to the present time; (d) the members of the claimant group and their predecessors through their continued acknowledgement and observance of the traditional laws and customs which existed at the time of sovereignty, have maintained since that time a connection to the Exclusive Areas and the Non-Exclusive Areas; (e) the native title rights and interests in the Exclusive Areas and the Non-Exclusive Areas are held by the persons who are or are entitled to be or become members of the claimant group called the Wik and Wik Way Peoples; (f) the nature and extent of the native title rights and interests in relation to the Exclusive Areas are as set out in pars 3, 4 and 5 of the agreed draft determination in respect of the Exclusive Areas; and (g) the nature and extent of the native title rights and interests in relation to the Non-Exclusive Areas are as set out in pars 3, 4, 5 and 6 of the agreed draft determination in respect of the Non-Exclusive Areas. 14 I am also satisfied on the materials that there are other interests in and in relation to the Exclusive Areas and the Non-Exclusive Areas. Those interests and their relationship with the native title interests are set out in pars 6, 7, 8 and 9 of the agreed draft determination in respect of the Exclusive Areas and pars 7, 8 and 9 of the agreed draft determination in respect of the Non-Exclusive Areas. Orders and Determinations 15 The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Wik and Wik Way Peoples as the common law holders of the native title are entitled to possess, occupy, use and enjoy the land and waters of the Exclusive Areas and to enjoy the native title rights and interests in the Non-Exclusive Areas, in accordance with their traditional laws and customs. The proposed Orders also recognise the other interests in the lands and waters in the determination area and the relationship of those interests with the native title interests. The proposed Order contains the elements required by s 94A and s 225 of the NTA. 16 I am satisfied that it is within the power of the Court to make the Orders sought and that these Orders can appropriately be made to give effect to the parties' agreement without a full hearing of the applicants' claim. I therefore make the Orders and determinations attached as Schedules A and B to these reasons. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Counsel for the Applicants: R Blowes SC

Solicitor for the Applicants: Ebsworth & Ebsworth

Solicitor for the State of Queensland: Crown Solicitor

Counsel for the Commonwealth of Australia: The Honourable Phillip Ruddock MP, Attorney-General

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

Solicitor for the Shire of Aurukun: Bottoms English Solicitors

Solicitor for the Napranum Aboriginal Council: S Coates

Solicitor for the Pormpuraaw Aboriginal Council: Farellys Lawyers

Solicitor for the Cook Shire Council: MacDonnells Solicitors

Solicitor for the Ports Corporation of Queensland: McCullough Robertson

Solicitor for the Queensland Seafood Industry Association: Gore & Associates

Solicitor for the Cape York Land Council: Cape York Land Council Aboriginal Corporation

Solicitor for the Telstra Corporation Limited: Blake Dawson Waldron

Solicitor for Darcy Thomas Byrnes, Raylee Frances Byrnes, Victor Patrick Byrnes & Carole Lyn Byrnes: Williams Love & Nicol Lawyers

Solicitor for Robert John Fraser: Williams Love & Nicol Lawyers

Solicitor for Eddie Holroyd: Williams Love & Nicol Lawyers

Solicitor for Merluna Cattle Station: Thynne & Macartney

Solicitor for Richard Mathew Price: Williams Love & Nicol Lawyers

Solicitor for Cameron Clive Quartermaine and Doreen Ruth Quartermaine: Thynne & Macartney

Date of Judgment: 13 October 2004

SCHEDULE A IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG 6001 of 1998

ANTHONY KERINDUN, SILAS WOLMBY, VICTOR KUUKUMU LAWRENCE, GLADYS TYBINGOOMPA, HOGAN SHORTJOE and ROBERT BENON YEIUM HOLROYD on their own behalf and for and on behalf of the WIK and WIK WAY PEOPLES

STATE OF QUEENSLAND COMMONWEALTH OF AUSTRALIA COUNCIL OF THE SHIRE OF AURUKUN NAPRANUM ABORIGINAL COUNCIL PORMPURAAW ABORIGINAL COUNCIL EDDIE HOLROYD CAMERON CLIVE QUARTERMAINE & DOREEN RUTH QUARTERMAINE MERLUNA CATTLE STATION PTY LIMITED RICHARD MATTHEW PRICE ROBERT JOHN FRASER COOK SHIRE COUNCIL PORTS CORPORATION OF QUEENSLAND DARCY THOMAS BYRNES, RAYLEE FRANCES BYRNES, VICTOR PATRICK BYRNES & CAROLE LEIGH BYRNES TELSTRA CORPORATION LIMITED A NUMBER OF COMMERCIAL FISHING AUTHORITY HOLDERS CAPE YORK LAND COUNCIL

WIK AND WIK WAY NATIVE TITLE DETERMINATION No. 2 JUDGE MAKING ORDER: JUSTICE COOPER

A. The Applicant has brought Native Title Determination Application QG6001/98 ("the Application") which relates to an area which includes the land and waters the subject of the proposed determination.

B. On 3 October 2000 a determination that native title exists was made by consent by the Federal Court of Australia in relation to particular land and waters known as the "Aboriginal areas", being Part A of the area covered by the Application.

C. The Applicant, State of Queensland, Commonwealth of Australia, Council of the Shire of Aurukun, Napranum Aboriginal Council, Pormpuraaw Aboriginal Council, Cook Shire Council, Ports Corporation of Queensland, Eddie Holroyd, Telstra Corporation Limited, Cameron Clive Quartermaine and Doreen Ruth Quartermaine, Merluna Cattle Station Pty Limited, Richard Matthew Price, Robert John Fraser, Darcy Thomas Byrnes, Raylee Frances Byrnes, Victor Patrick Byrnes and Carole Leigh Byrnes, Cape York Land Council and a number of commercial fishing authority holders ("those parties") have reached an agreement as to the terms of a determination of native title to be made in relation to particular land and waters covered by the Application.

D. Those parties have agreed to the Federal Court of Australia making a consent order for a determination that native title exists in relation to the Determination Area, as defined in Schedule One to the attached Determination.

(a) s.47A(1)(b)(ii) of the Native Title Act 1993 (Cth) applies to the land and waters within the Determination Area the subject of the term lease for pastoral purposes dated 9 April 1959 known as Coen River Pastoral Holding, being Title Reference No. 17668093 comprising Lot 3819 on Crown Plan PH2262 ("the Merapah Lease") in that when the Application was made, the Merapah Lease was held expressly for the benefit of or was held on trust, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders and one or more members of the native title claim group occupied the area;

(b) s.47A(1)(b)(i) of the Native Title Act 1993 (Cth) applies to the land and waters within the Determination Area the subject of the Lease (Aboriginal Lands) No.1 dated 18 January 1979 comprising Lot 1 on Plan SC211 ("the Aurukun Shire Lease") in that when the Application was made the Aurukun Shire Lease was in force over those areas under the Local Government (Aboriginal Lands) Act 1978 that makes provision for the grant of such a lease only to or for the benefit of Aboriginal peoples or Torres Strait Islanders and one or more members of the native title claim group occupied the area;

(c) s.47A(1)(b)(ii) of the Native Title Act 1993 (Cth) applies to the land and waters within the Determination Area the subject of the Deed of Grant in Trust to the Napranum Aboriginal Council dated 27 October 1988, being Title Reference No. 21378037 comprising Lot 127 on Plan WP49, Lots 2, 4 to 11, 63, 65 and 66 on Plan WP50 and Lot 12 on Plan SP135863 ("the Napranum DOGIT") in that when the Application was made that area was held expressly for the benefit of Aboriginal peoples or Torres Strait Islanders and one or more members of the native title claim group occupied the area;

(d) s.47B(1)(b) of the Native Title Act 1993 (Cth) applies to the land and waters within the Determination Area comprising Lot 2 on Plan SP161882 in that when the Application was made that area was not covered by a freehold estate or a lease, or covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth or the State under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose, or subject to a resumption process, and one or more members of the native title claim group occupied the area; and

(e) s.47A(1)(b)(ii) of the Native Title Act 1993 (Cth) applies to the land and waters within the Determination Area the subject of the Deed of Grant in Trust to the Pormpuraaw Aboriginal Council dated 23 July 1987, being Title Reference No. 21345063 comprising Lot 5 on Plan LK2 and Lots 2 and 3 on Crown Plan KO8 ("the Pormpuraaw DOGIT") in that when the Application was made that area was held expressly for the benefit of Aboriginal peoples or Torres Strait Islanders and one or more members of the native title claim group occupied the area.

F. Those parties acknowledge that the effect of this Determination is that the Wik and Wik Way Peoples, in accordance with the traditional laws acknowledged and traditional customs observed by them, have a right as against the whole world to be acknowledged as the native title holders for the Determination Area.

G. The traditional laws acknowledged and traditional customs observed by the Wik and Wik Way Peoples include the authority as between Aboriginal people to:

(a) resolve disputes about who is or who is not a Wik person or a Wik Way person; (b) determine as between Wik and Wik Way Peoples what are the particular native title rights and interests that are held by particular Wik and Wik Way Peoples in relation to particular parts of the Determination Area; (c) exclude particular Wik and Wik Way Peoples from the exercise of particular native title rights and interests in relation to particular parts of the Determination Area; and (d) resolve disputes between Aboriginal people concerning native title rights and interests in relation to the Determination Area, with the assistance of native title holders of adjoining areas where such assistance is necessary. H. Those parties have requested that the Court hear and determine that part of the proceeding that relates to the Determination Area.

I. No nomination pursuant to s.56(2) of the Native Title Act 1993 (Cth) in regard to the holding of native title in trust has been made.

J. A representative of the Native Title Holders has nominated Ngan Aak Kunch Aboriginal Corporation, an Aboriginal association incorporated pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), to be a prescribed body corporate for the purposes of s.57(2) of the Native Title Act 1993 (Cth) and, after becoming a registered native title body corporate, to perform the functions mentioned in s.57(3) of the Native Title Act 1993 (Cth).

Being satisfied that a determination in the terms sought by those parties would be within the power of the Court and, it appearing to the Court appropriate to do so and by the consent of those parties:

Native title exists in relation to the Determination Area.

The native title is held by the Wik and Wik Way Peoples in accordance with the traditional laws acknowledged and traditional customs observed by them ("the Native Title Holders") as common law holders.

The nature and extent of the native title rights and interests in relation to the Determination Area, other than the flowing, tidal and underground waters, are that, subject to paragraph 5 and but for the rights and interests identified in paragraph 6, they confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders, including rights to do the following: (a) speak for, on behalf of and authoritatively about the Determination Area; (b) inherit and succeed to the native title rights and interests; (c) give or refuse, and determine the terms of any permission to enter, remain on, use or occupy the Determination Area by others; (d) make use of the Determination Area by: (i) engaging in a way of life consistent with the traditional connection of the Native Title Holders to the Determination Area; (ii) hunting and gathering on, in and from the Determination Area; (iii) living on and erecting residences and other infrastructure on the Determination Area; (iv) conducting ceremonies on the Determination Area; (v) being buried on, and burying Native Title Holders on, the Determination Area; (vi) maintaining and caring for springs, wells and other places in the Determination Area where underground water rises naturally, for the purpose of ensuring the free flow of water; (e) take, use and enjoy the natural resources from the Determination Area; (f) maintain and protect by lawful means those places of importance and areas of significance to the Native Title Holders under their traditional laws and customs in the Determination Area; and (g) use and enjoy the Determination Area and its natural resources for the purposes of teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the Native Title Holders in relation to the Determination Area. 4. The nature and extent of the native title rights and interests in relation to the flowing, tidal and underground waters of the Determination Area are that, subject to paragraph 5 and the rights and interests identified in paragraph 6, they confer on the Native Title Holders non-exclusive rights to:

(a) hunt, gather and fish on, in and from the flowing, tidal and underground waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs;

(b) take, use and enjoy the flowing, tidal and underground waters and natural resources and fish in such waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs;

and, to avoid any doubt, the rights to take, use and enjoy the flowing, tidal and underground waters and natural resources and fish in such waters are only rights to do so for non-commercial purposes.

The native title rights and interests are subject to and exercisable in accordance with:

(a) the laws of the State and the Commonwealth; and

(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

The nature and extent of any other interests in relation to the Determination Area (or the respective parts thereof identified below) are:

(a) the rights and interests of the lessee and others under a term lease for pastoral purposes dated 9 April 1959 known as Coen River Pastoral Holding, being Title Reference No. 17668093 comprising Lot 3819 on Crown Plan PH2262 ("the Merapah Lease");

(b) the rights and interests of the lessee and others under Lease No 601426920, being former Special Lease No. 34/48011 dated 10 July 1986, comprising Lease A in Lot 5 on Plan LK2 as shown on Plan LK3;

(i) the lessee and others under the Lease (Aboriginal Lands) No.1 dated 18 January 1979 comprising Lot 1 on Plan SC211 ("the Aurukun Shire Lease");

(ii) the Council of the Shire of Aurukun as an entity exercising statutory powers in respect of the Aurukun Shire Lease, in particular, pursuant to the Local Government (Aboriginal Lands) Act 1978 (Qld);

(iii) the grantee and others under the Deed of Grant in Trust dated 27 October 1988, being Title Reference No. 21378037 comprising Lot 127 on Plan WP49, Lots 2, 4 to 11, 63, 65 and 66 on Plan WP50 and Lot 12 on Plan SP135863 ("the Napranum DOGIT");

(iv) the Napranum Aboriginal Council as an entity exercising statutory powers in respect of the Napranum DOGIT, in particular, pursuant to the Community Services (Aborigines) Act 1984 (Qld) and the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld);

(v) the grantee and others under the Deed of Grant in Trust dated 23 July 1987, being Title Reference No. 21345063 comprising Lot 5 on Plan LK2 and Lots 2 and 3 on Crown Plan KO8 ("the Pormpuraaw DOGIT");

(vi) the Pormpuraaw Aboriginal Council as an entity exercising statutory powers in respect of the Pormpuraaw DOGIT, in particular, pursuant to the Community Services (Aborigines) Act 1984 (Qld) and the Aboriginal and Torres Strait Islander (Land Holding) Act 1985 (Qld);

(d) the rights and interests of Telstra Corporation Limited:

(i) as the owner and operator of telecommunication facilities installed within the Determination Area;

(ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth); and

(iii) for its employees, agents or contractors to access its telecommunication facilities in, and in the vicinity of the Determination Area, in the performance of their duties;

(e) the rights and interests of the Cook Shire Council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters comprising the Merapah Lease and Lot 2 on Plan SP161882 including its interests under an Indigenous Land Use Agreement dated 11 October 2004 between the Native Title Holders and the Cook Shire Council;

(f) any rights and interests of the holder of an authority issued under the Fisheries Act 1994 (Qld) that authorises a commercial fishing operation in the waters of the Determination Area as may be current at the date of this Determination;

(g) the rights and interests of the Ports Corporation of Queensland as an entity exercising statutory powers in respect of that part of the land and waters of the Determination Area within the limits of the Port of Weipa;

(h) any rights of the public arising under the common law to fish and navigate in any tidal navigable river or tidal waters of the Determination Area; and

(i) any other rights and interests held by or under the Crown by the force and operation of the laws of the State and the Commonwealth as may be current at the date of this Determination.

In relation to the following areas within the Determination Area:

(a) section 47A(1)(b)(i) of the Native Title Act 1993 (Cth) applies to the land and waters comprising the Aurukun Shire Lease;

(b) section 47A(1)(b)(ii) of the Native Title Act 1993 (Cth) applies to the land and waters comprising the Merapah Lease, the Pormpuraaw DOGIT and the Napranum DOGIT; and

(c) section 47B(1)(b) of the Native Title Act 1993 (Cth) applies to the land and waters comprising Lot 2 on Plan SP161882.

The relationship between the native title rights and interests and the other rights and interests described in paragraph 6 ("the other rights and interests") is that:

(a) to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights to the extent of the inconsistency for so long as the other rights and interests exist; and

(b) for avoidance of doubt, any activity that is required or permitted by or under, and done in accordance with, the other rights and interests or any activity that is associated with or incidental to, such an activity, prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them.

The native title rights and interests confer, subject to paragraph 5 and the rights and interests identified in paragraph 6, possession, occupation, use and enjoyment of the Determination Area, other than the flowing, tidal and underground waters, on the Native Title Holders to the exclusion of all others.

The words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined expressions:

"Determination Area" means the land and waters within the area described and shown in Schedule One to this Determination; "fish" has the meaning attributed to it in the Fisheries Act 1994 (Qld); "flowing, tidal and underground waters" means: (a) water in a watercourse, lake or spring; (b) underground water, being artesian water, sub-artesian water and water from an underground source of supply; (c) water forming part of the sea ordinarily within the ebb and flow of the tide at spring tides, but, except where the phrase is used in paragraph 3, only extends to underground water accessed by traditional means. "forest products" has the meaning attributed to it in the Forestry Act 1959 (Qld);

"lake" means a natural collection of water including a lagoon, swamp or marsh whether permanent or intermittent;

"laws of the State and the Commonwealth" means the common law and the laws of the State and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

"natural resources" means: (a) any plant and animal (other than fish), including shells and forest products, found on, or in the land and waters of the Determination Area from time to time, and flints, clays, soil, sand, gravel and rock on or below the surface of Determination Area and all other matter comprising the Determination Area; but does not include: (b) minerals as defined in the Minerals Resources Act 1989 (Qld) and petroleum as defined in the Petroleum Act 1923 (Qld); or (c) flowing, tidal and underground waters; "plant" and "animal"have the meanings attributed to them in the Nature Conservation Act 1992 (Qld);

"spring" means the land to which water rises naturally from below the ground and the land over which the water then flows; and

"watercourse" means a river, creek or stream in which water flows permanently or intermittently.

AND THE COURT FURTHER ORDERS THAT 11. The native title is not to be held in trust.

(a) be the prescribed body corporate for the purposes of s.57(2) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in s.57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

This determination of native title is to take effect on the registration of the agreement referred to in paragraph 6(e) on the Register of Indigenous Land Use Agreements.

In the event that the agreement referred to in paragraph 6(e) is not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

("Determination Area" - where native title is determined to exist) "Determination Area" is the land and waters within the area described and shown on the plan in Annexure A, being Lots 1 to 6 (inclusive) on Crown Plan AP9682 covering Lot 3819 on PH2262, part of Lot 1 on SC211, part of Lot 5 on LK2, part of Lot 2 on WP50, Lot 10 on WP50, Lot 11 on WP50, Lot 12 on SP135863 and Lot 2 on SP161882, and includes the land and waters inland of the high water mark at mean Spring tide of the main sea of the Gulf of Carpentaria but does not include: (a) the land and waters described in Schedule Two; (b) that part of the land and waters comprising the Aurukun Shire Lease within the area covered by a corridor 15 metres either side of the centre line of the present alignment of the existing road which connects the town of Aurukun to the Peninsula Development Road as described and shown on Lot 4 on Crown Plan AP9682; and (c) minerals as defined in the Minerals Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld).

(Areas excluded from the Determination Area) The land and waters within the area the subject of the road traversing the Merapah Lease as described and shown on Lot 5 on Crown Plan AP9682, the two roads traversing part of the Napranum DOGIT as described and shown on the northerly section of Lot 4 on Crown Plan AP9682 and Sub-lease A on the Aurukun Shire Lease as described and shown on Lot 4 on Crown Plan AP9682 are excluded from the Determination Area in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23B(7) of the Native Title Act 1993 (Cth) and sections 20 and 21 of the Native Title (Queensland) Act 1993 (Qld)) because they are areas where previous exclusive possession acts have occurred, native title has been extinguished in relation to the whole of these areas and no claimant application to these areas can be made.

SCHEDULE B IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG 6001 of 1998

ANTHONY KERINDUN, SILAS WOLMBY, VICTOR KUUKUMU LAWRENCE, GLADYS TYBINGOOMPA, HOGAN SHORTJOE and ROBERT BENON YEIUM HOLROYD on their own behalf and on behalf of the Wik and Wik Way Peoples Applicant

STATE OF QUEENSLAND COMMONWEALTH OF AUSTRALIA COUNCIL OF THE SHIRE OF AURUKUN PORMPURAAW ABORIGINAL COUNCIL NAPRANUM ABORIGINAL COUNCIL EDDIE HOLROYD CAMERON CLIVE QUARTERMAINE & DOREEN RUTH QUARTERMAINE MERLUNA CATTLE STATION PTY LIMITED RICHARD MATTHEW PRICE ROBERT JOHN FRASER COOK SHIRE COUNCIL PORTS CORPORATION OF QUEENSLAND DARCY THOMAS BYRNES, RAYLEE FRANCES BYRNES, VICTOR PATRICK BYRNES & CAROLE LEIGH BYRNES TELSTRA CORPORATION LIMITED A NUMBER OF COMMERCIAL FISHING AUTHORITY HOLDERS CAPE YORK LAND COUNCIL Respondents

C. The Applicant, the State of Queensland, the Commonwealth of Australia, Darcy Thomas Byrnes, Raylee Frances Byrnes, Victor Patrick Byrnes and Carole Leigh Byrnes ("the Holroyd River Lessee"), Richard Matthew Price ("the Southwell Lessee"), Robert John Fraser, Cook Shire Council, Telstra Corporation Limited, Ports Corporation of Queensland, Napranum Aboriginal Council, Pormpuraaw Aboriginal Council, Council of the Shire of Aurukun, Cameron Clive Quartermaine and Doreen Ruth Quartermaine, Merluna Cattle Station Pty Limited, Cape York Land Council and a number of commercial fishing authority holders ("those parties") have reached an agreement as to the terms of a determination of native title to be made in relation to particular land and waters covered by the Application.

E. Those parties acknowledge that the effect of this Determination is that the Wik and Wik Way Peoples, in accordance with the traditional laws acknowledged and traditional customs observed by them, have a right as against the whole world to be acknowledged as the native title holders for the Determination Area.

F. Those parties have agreed that the Determination Area has in the past been subject to acts which have partially extinguished native title rights and interests.

G. The traditional laws acknowledged and traditional customs observed by the Wik and Wik Way Peoples include the authority as between Aboriginal people to:

(e) resolve disputes about who is or who is not a Wik person or a Wik Way person; (f) determine as between Wik and Wik Way Peoples what are the particular native title rights and interests that are held by particular Wik and Wik Way Peoples in relation to particular parts of the Determination Area; (g) exclude particular Wik and Wik Way Peoples from the exercise of particular native title rights and interests in relation to particular parts of the Determination Area; and (h) resolve disputes between Aboriginal people concerning native title rights and interests in relation to the Determination Area, with the assistance of native title holders of adjoining areas where such assistance is necessary. H. Those parties have requested that the Court hear and determine that part of the proceeding that relates to the Determination Area.

I. No nomination pursuant to s.56(2) of the Native Title Act 1993 (Cth) in regard to the holding of native title in trust has been made.

Native title exists in relation to the Determination Area.

The native title is held by the Wik and Wik Way Peoples in accordance with the traditional laws acknowledged and traditional customs observed by them ("the Native Title Holders") as common law holders.

The nature and extent of the native title rights and interests in relation to the Determination Area, other than the flowing and underground waters, are, subject to paragraph 5 and the rights and interests identified in paragraph 7, non-exclusive rights to:

(a) be present on, use and enjoy the Determination Area;

(i) hunting and gathering on, in and from the Determination Area;

(ii) conducting ceremonies on the Determination Area;

(iii) being buried on, and burying Native Title Holders on, the Determination Area;

(iv) maintaining springs and wells in the Determination Area where underground water rises naturally, for the sole purpose of ensuring the free flow of water;

(d) maintain and protect by lawful means those places of importance and areas of significance to the Native Title Holders under their traditional laws and customs in the Determination Area; and

(e) use and enjoy the Determination Area and its natural resources for the purposes of teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the Native Title Holders in relation to the Determination Area,

and the right to inherit and succeed to the native title rights and interests.

The nature and extent of the native title rights and interests in relation to the flowing and underground waters of the Determination Area are that, subject to paragraph 5 and the rights and interests identified in paragraph 7, they confer on the Native Title Holders non-exclusive rights to:

(a) hunt, gather and fish on, in and from the flowing and underground waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs;

(b) take, use and enjoy the flowing and underground waters and natural resources and fish in such waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs;

and, to avoid any doubt, the rights to take, use and enjoy the flowing and underground waters and natural resources and fish in such waters are only rights to do so for non-commercial purposes.

The native title rights and interests are subject to and exercisable in accordance with:

(a) the laws of the State and the Commonwealth; and

(b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

Notwithstanding anything in paragraphs 3 and 4, the native title rights and interests in relation to the Determination Area do not extend to a right to control access to or a right to control the use of the Determination Area.

The nature and extent of any other interests in relation to the Determination Area (or the respective parts thereof identified below) are:

(i) the lessee and others under the term lease for pastoral purposes known as Strathburn Holding dated 23 January 1964, being Title Reference No. 17668099 comprising Lot 4149 on Crown Plan PH31 ("the Strathburn Lease");

(ii) the lessee and the Native Title Holders under a deed of agreement dated 8 October 2004 between the Gregory Paul Jenkins and Margaret Glennie Atkinson as lessees of the Strathburn Lease, the State of Queensland and the Native Title Holders;

(iii) the lessee and others under the term lease for pastoral purposes known as Holroyd River Holding dated 27 March 1975, being Title Reference No. 17668104 comprising Lot 4652 on Crown Plan PH988 ("the Holroyd River Lease");

(iv) the lessee and the Native Title Holders under a deed of agreement dated 8 October 2004 between the Holroyd River Lessee, the State of Queensland and the Native Title Holders;

(v) the lessee and others under the term lease for pastoral purposes known as Southwell Pastoral Development Holding dated 19 February 1987, being Title Reference No. 17668135 comprising Lot 1 on Crown Plan LK4 ("the Southwell Lease");

(vi) the lessee and the Native Title Holders under a deed of agreement dated 8 October 2004 between the Southwell Lessee, the State of Queensland and the Native Title Holders;

(b) the rights and interests of Telstra Corporation Limited:

(i) as the owner and operator of telecommunication facilities installed within the Determination Area;

(iii) for its employees, agents or contractors to access its telecommunication facilities in, and in the vicinity of the Determination Area, in the performance of their duties;

(c) the rights and interests of Cook Shire Council under its local government jurisdiction and functions and as an entity exercising statutory powers including its interests under an Indigenous Land Use Agreement dated 11 October 2004 between the Native Title Holders and Cook Shire Council;

(d) any rights or interest of the holder of an authority issued under the Fisheries Act 1994 (Qld) that authorises a commercial fishing operation in the waters of the Determination Area as may be current at the date of this Determination;

(e) any other rights and interests held by or under the Crown by the force and operation of the laws of the State and the Commonwealth as may be current at the date of this Determination.

The relationship between the native title rights and interests and the other rights and interests described in paragraph 7 ("the other rights and interests") is that:

(a) the other rights and interests continue to have effect; and

The native title rights and interests do not confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others.

The words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth) except for the following defined words and expressions:

"Determination Area" means the land and waters within the area described and shown in Schedule One;

"fish" has the meaning attributed to it in the Fisheries Act 1994 (Qld);

(b) underground water, being artesian water, sub-artesian water and water from an underground source of supply,

but, except where the phrase is used in paragraph 3, only extends to underground water accessed by traditional means;

"forest products" has the meaning attributed to it in the Forestry Act 1959 (Qld);

"lake" means a natural collection of water including a lagoon, swamp or marsh whether permanent or intermittent;

"laws of the State and the Commonwealth" means the common law and the laws of the State and the Commonwealth of Australia, and includes regulations, statutory instruments, local planning instruments and local laws; and

(a) any plant and animal (other than fish), including shells and forest products, found on, or in the land and waters of the Determination Area from time to time, and flints, clays, soil, sand, gravel and rock on or below the surface of the Determination Area and all other matter comprising the Determination Area;

(b) minerals as defined in the Minerals Resources Act 1989 (Qld) and petroleum as defined in the Petroleum Act 1923 (Qld); and

"plant" and "animal" have the meanings attributed to them in the Nature Conservation Act 1992 (Qld);

"spring" means the land to which water rises naturally from below the ground and the land over which the water then flows; and

"watercourse" means a river, creek or stream in which water flows permanently or intermittently.

(a) be the prescribed body corporate for the purposes of s.57(2) of the Native Title Act 1993 (Cth); and

(b) perform the functions mentioned in s.57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

This determination of native title is to take effect on the registration of the agreements referred to in paragraphs 7(a)(ii), 7(a)(iv), 7(a)(vi) and 7(c) on the Register of Indigenous Land Use Agreements.

In the event that the agreements referred to in paragraph 7(a)(ii), 7(a)(iv), 7(a)(vi) and 7(c) are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

Native Title Determination QG6001/98 (Wik Native Title Determination No. 3) SCHEDULE ONE ("Determination Area"- where native title is determined to exist) "Determination Area" is the land and waters within the area described and shown on the plan in Annexure A, being Lots 7 and 8 on Crown Plan AP9681 covering Lot 1 on ABL3, Lot 1 on LK4, Lot 4652 on PH988 and part of Lot 4149 on PH31, but does not include: (a) the land and waters described in Schedule Two; and (b) minerals as defined in the Minerals Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld).

Native Title Determination QG6001/98 (Wik Native Title Determination No. 3) ANNEXURE A to SCHEDULE ONE DETERMINATION AREA

Native Title Determination QG6001/98 (Wik Native Title Determination No. 3) SCHEDULE TWO (Areas excluded from the Determination Area) The land and waters within the area the subject of the road traversing the Strathburn Lease as described and shown on Lot 8 on Crown Plan AP9681 are excluded from the Determination Area in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23B(7) of the Native Title Act 1993 (Cth) and sections 20 and 21 of the Native Title (Queensland) Act 1993 (Qld) because it is an area where previous exclusive possession acts have occurred, native title has been extinguished in relation to the whole of the area and no claimant application to the area can be made.

Local Government (Aboriginal Lands) Act 1978(Qld)

Community Services (Aborigines) Act 1984(Qld)

Aborigines and Torres Strait Islanders (Land Holding) Act 1985(Qld)

Aboriginal and Torres Strait Islander (Land Holding) Act 1985(Qld)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Minerals Resources Act 1989(Qld)

At a glance

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Judgment (162 paragraphs)

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Legislation Cited (17)

Cited By (3)