Woosup on behalf of the Ankamuthi People #2 v State of Queensland - [2017] FCA 832 - FCA 2017 case summary — Zoe

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Woosup on behalf of the Ankamuthi People #2 v State of Queensland

[2017] FCA 832

Federal Court of Australia|2017-07-26|Before: Greenwood J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2017-07-26

Before

Greenwood J

Catchwords

NATIVE TITLE - consideration of a native title determination application under ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) having regard to s 87 of that Act

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consideration of a native title determination application under ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) having regard to s 87 of that Act

Judgment (44 paragraphs)

[1]

A. The parties to the Application have reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. B. On 20 June 2014 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 156/2011. C. On 30 October 2014 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 157/2011. D. On the date of the making of this determination, being a determination that native title exists made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 392/2014, two further determinations will be made, namely: (a) a determination that native title exists made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 6158/1998; and (b) a determination that native title exists made by consent by the Federal Court of Australia over the land and waters covered by the Native Title Determination Application QUD 780/2016. E. This determination and the determinations identified in recitals B, C and D are related to the extent that they recognise native title held by persons either comprising or belonging to the Northern Cape York Peninsula Regional Society. F. The Applicant, the State of Queensland and RTA Weipa Pty Ltd (as assignee from the Rio Tinto Aluminium Limited, formerly Comalco Aluminium Limited) are parties to an agreement known as the Western Cape Communities Co-existence Agreement dated 14 March 2001 ("the WCCCA") which was registered as the Comalco ILUA on the Register of Indigenous Land Use Agreements on 24 August 2001, an extract of the relevant parts of which is contained in Schedule 5. BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth), BY CONSENT THE COURT ORDERS THAT:

[2]

BY CONSENT THE COURT DETERMINES THAT: 3. The Determination Area is the land and waters described in Schedule 1, and depicted in the determination map attached to Schedule 1. 4. Native title exists in relation to that part of the Determination Area described in Part 1 of Schedule 1. 5. The native title is held by the Ankamuthi People #2 Native Title Claim Group being the persons descended from the apical ancestors described in Schedule 3 ("the native title holders"). 6. Subject to paragraphs 7, 8 and 9 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are: (a) in relation to Water, the non-exclusive rights to: (i) hunt, fish and gather from the Water of the area; (ii) take and use the Natural Resources of the Water in the area; and (iii) take and use the Water of the area, for cultural, personal, domestic and communal purposes. 7. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; (b) the traditional laws acknowledged and traditional customs observed by the native title holders; and (c) the terms and conditions of the agreement referred to in paragraph 1 of Schedule 4. 8. The native title rights and interests referred to in paragraph 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 9. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 10. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4. 11. The relationship between the native title rights and interests described in paragraph 6 and the other interests described in Schedule 4 (the "other interests") is that: (a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and (c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. 12. For the avoidance of doubt, the relationship between the native title rights and interests described in paragraph 6 and the other interests of RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited in paragraph B of Schedule 4 is that on the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, the grant of Special Bauxite Mining Lease 1 or the registration of the WCCCA, the Comalco Act, the Comalco Agreement, the conferral of the Comalco Interests, the performance of the Comalco Activities or the WCCCA, whether done before or after the date of this determination, prevail over the native title rights and interests to the extent of any inconsistency. 13. For the avoidance of doubt, the relationship between the native title rights and interests described in paragraph 6 and the other interests of Rio Tinto Aluminium Limited in paragraph B of Schedule 4 is that the other interests continue to have effect and the rights conferred by or held under those other interests (including new rights and interests conferred pursuant to those other interests after the date of this determination) may be exercised notwithstanding the existence of the native title rights and interests, and any activity that is required or permitted by or held under, and done in accordance with, the other interests (including new rights and interests conferred pursuant to the rights and interests after the date of this determination) 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, subject to any application of s 24JA of the Native Title Act 1993 (Cth), does not extinguish them. 14. For the avoidance of doubt, the relationship between the native title rights and interests described in paragraph 6 and the other interests of Alcan South Pacific Pty Ltd in paragraph (1)(a) of Schedule 4 is that the other interests continue to have effect and the rights conferred by or held under those other interests (including new rights and interests conferred pursuant to those other interests after the date of this determination) may be exercised notwithstanding the existence of the native title rights and interests, and any activity that is required or permitted by or held under, and done in accordance with, the other interests (including new rights and interests conferred pursuant to the rights and interests after the date of this determination) 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, subject to any application of s 24JA of the Native Title Act 1993 (Cth), does not extinguish them.

[9]

OTHER INTERESTS IN THE DETERMINATION AREA The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination: A. The rights and interests of the parties under the WCCCA. B. The rights and interests of RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited (and any successors in title) under: (a) the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) ("Comalco Act") and the Commonwealth Aluminium Corporation Pty Limited Agreement (which is given statutory force by the Comalco Act) ("Comalco Agreement") to utilise, be present on, mine and/or perform other activities on the Determination Area, including: (i) the Comalco Interests and the rights to perform the Comalco Activities; and (ii) the rights in the Comalco Agreement with respect to: (A) access; (B) areas within the "bauxite field" (as defined in the Comalco Agreement) or the "western bauxite field" (as defined in the Comalco Agreement); (C) areas adjacent to, in the vicinity of or outside the bauxite field or the western bauxite field, being any part of the Determination Area; (D) land outside Mining Lease No. 7024; and (E) foreshores, tidal land and tidal water; (b) the WCCCA; and (c) Mining Lease No. 7024. C. The rights and interests of Alcan South Pacific Pty Ltd (and any successors in title) under: (a) the Alcan Queensland Pty Limited Agreement Act 1965 (Qld) ("Alcan Act") and the agreement made and varied pursuant to the Alcan Act (which is given statutory force by the Alcan Act) ("Alcan Agreement") to utilise, be present on, mine and/or perform other activities on, and to obtain other rights and interests with respect to, the Determination Area, including the rights in the Alcan Agreement with respect to: (i) access; (ii) areas within the "bauxite field" (as defined in the Alcan Agreement); (iii) areas adjacent to, in the vicinity of or outside the bauxite field, being any part of the Determination Area; (iv) areas on or in the vicinity of the Ducie River and its catchment area; (v) areas adjacent to Mining Lease No. 7031; and (vi) a site on Port Musgrave; and (b) Mining Lease No. 7031. D. The rights and interests of members of the public arising under the common law, including but not limited to the following: (a) any subsisting public right to fish; and (b) the public right to navigate. E. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) coastal waters; (d) beaches; (e) stock routes; and (f) areas that were public places at the end of 31 December 1993. F. Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State or the Commonwealth.

[11]

1.1 Definitions When used in this Agreement, including the Recitals, the following terms will have the following meanings unless the subject or the context otherwise requires: Term Meaning … Additional Native Title Parties The applicants in Non-conforming Applications or Conforming Applications in respect of any part of the ILUA Area who as at the Commencement Date have not signed this Agreement. … Associate An employee, servant, agent or contractor of, or person providing or receiving goods or services to or from, Comalco, a Related Body Corporate of Comalco, a person having any right or interest in relation to any Comalco Interest that is derived from, or granted by, Comalco (for example, a sublessee of part of ML 7024), or a person exercising rights with the permission or authority of Comalco and includes a Comalco Contractor. Aurukun Community Aboriginal people who are ordinarily resident in or around the Shire of Aurukun. … Claim In relation to any person, a demand, claim, action, proceeding, damage, loss, cost, expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent. Claim Area The land the subject of a Conforming Application. Comalco Comalco Aluminium Limited (ACN 009 679 127). Comalco Act The Commonwealth Aluminium Corporation Pty. Limited Agreement Act 1957 (Qld). Comalco Activities Any activity or operation authorised, reasonably contemplated, permitted or required by the Comalco Interests and includes the Weipa Operations. Comalco Agreement The agreement between Queensland and Comalco referred to in s2 of the Comalco Act, as varied from time to time pursuant to s4 of that Act. … Comalco Interests Each of the following as they relate to the ILUA Area: (a) the Comalco Act; (b) the Comalco Agreement; (c) the Mining Leases; (d) various property interests held by Comalco now or, as of right pursuant to any other interest listed in paragraphs (a)-(c) and (e)-(l) of this definition, in the future (for example, SPMPLs) located inside the boundaries of ML 7024; (e) land within the ILUA Area leased by Comalco from the Ports Corporation; (f) any area of land within the ILUA Area over which Comalco has any continuing right or interest and which land has been excised from ML 7024 (since its grant), including Other Interests; (g) any area of land (not subject to a Mining Lease) on which Comalco or an Associate has a right to place plant, facilities, infrastructure or property in connection with the Weipa Operations (for example, the wharves and related structures at Lorim Point, Humbug Point and Evans Landing); (h) any past act (as the term is defined in the NTA), or any Pre-Existing Right-Based Act the basis for which is the Comalco Act or the Comalco Agreement or any other Comalco Interest and which is conferred on Comalco; (i) any right of Comalco under the Comalco Act or the Comalco Agreement to obtain a further right or interest; (j) any right or interest of Comalco under any law in connection with any other Comalco Interest; (k) any other right or interest that Comalco is entitled to exercise, or have granted to it, in accordance with or as permitted by this Agreement; and (l) any right of renewal, extension, regrant or replacement of the Comalco Interests, and the renewals, extensions, regrants and replacements so obtained. … Communities Each of the following: (a) the signatories to this Agreement other than Comalco, Queensland and CYLC; (b) Possible Native Title Holders (including the Native Title Parties); (c) Traditional Owners; (d) members of the following Aboriginal peoples, traditional owner groups, associations and communities (which are believed to comprise all the Aboriginal communities with traditional or historic connections to lands within the ILUA Area) and Aboriginal communities in the vicinity of such lands: (i) the Aurukun Community; (ii) the Mapoon Community; (ii) the Napranum Community; and (iii) the New Mapoon Community; and (e) all other Aboriginal persons who ordinarily reside in and around the land the subject of the Mining Leases. Conforming Application A claimant application made or to be made pursuant to this Agreement by a Native Title Party or other applicants on behalf of a Traditional Owner Group for a Model Determination to part of the ILUA Area and certified by CYLC pursuant to s203BE of the NTA, a pro forma for which appears as Schedule 13. … CYLC Any entity that is determined to be a representative Aboriginal body under the NTA for any part, or all, of the ILUA Area, which at the Commencement Date is Cape York Land Council Aboriginal Corporation. … Designated Minerals Bauxite and kaolin and does not include minerals that are subsequently designated pursuant to clause 1 of the Comalco Agreement. … Hindering Action An act or omission of a Traditional Owner Group or a Traditional Owner or any person on their behalf which causes or contributes to, directly or indirectly, the cessation of the registration of this Agreement or the non-registration of this Agreement (whichever is relevant). … ILUA An indigenous land use agreement (area agreement) under subdivision C, division 3 of part 2 of the NTA to which the Native Title Parties are parties as registered native title claimants, applicants or proposed applicants in relation to areas totalling the ILUA Area, but a reference to a separate ILUA is taken to be a reference to such an agreement to which the Native Title Parties are the registered native title claimants, applicants or proposed applicants to the "Claim Area or such other area within the ILUA Area determined by Comalco" as referred to in clause 2.5.1. ILUA Area The land within the area shown on the map in Attachment 1, subject to the area being decreased under clauses 2.5 or 5.5. ILUA Area B The area marked as area B in the plan of the ILUA Area. … … Mining Leases ML 6024 (formerly ML 3), ML 7024, any other mining lease (or lease that is ancillary to mining) granted to Comalco in accordance with the Comalco Act and the Comalco Agreement and any renewal, extension, regrant or replacement of any of them within the ILUA Area. Model Determination A native title determination in favour of a Native Title Party in the terms of the draft determination set out in Schedule 1. … Native Title Application An application, claim or proceedings in relation to native title (including any application claiming native title or seeking a native title determination), whether under the NTA or otherwise. Native Title Parties Those Possible Native Title Holders who: (a) are authorised, in accordance with s251A of the NTA, by the Possible Native Title Holders in each of the Traditional Owner Groups to make and sign this Agreement as an ILUA on behalf of each of the Traditional Owner Groups; (b) pursuant to obligations contained in this Agreement: (i) either are or will be the applicants in Conforming Applications; or (ii) must endeavour to procure other applicants to amend their Non-conforming Applications to render them Conforming Applications; and (c) have signed this Agreement on the Commencement Date namely: (i) the current registered native title claimants; and (ii) authorised signatories for each Traditional Owner Group, being those persons named in Schedule 16; and (d) from their respective dates of signing, those Additional Native Title Parties who sign this Agreement pursuant to clause 2.4.5. ... New SPMPL Any SPMPL granted or purported to be granted, on or after 23 December 1996, or to be granted in the future, for any land within the Weipa Township. … Non-conforming Application A claimant application which is: (a) made on behalf of a Traditional Owner Group; (b) not a Conforming Application; and (c) made before the registration of this Agreement. NTA Native Title Act 1993 (Cth). Other Interests Any SPMPL granted for any land within the Weipa Township and any title into which it may have been converted, whether held by Comalco or not. ... Parties Comalco, the State of Queensland, CYLC and each other person signing this Agreement, every member of the Communities and all persons to whom s24EA(1)(b) of the NTA applies. … Ports Corporation The Ports Corporation of Queensland. Possible Native Title Holders All persons who hold or may hold native title in the ILUA Area. Pre-Existing Right-Based Act Has the meaning in s24IB of the NTA, and to the extent they are not covered by that definition, includes the acts under the Comalco Act or the Comalco Agreement as they relate to the ILUA Area which are listed in Schedule 12. … Procedural Requirements The procedural rights (as that term is defined in s253 of the NTA) set out in s241D of the NTA but excluding those relating to compensation. … SBML 1 Special Bauxite Mining Lease 1 granted pursuant to the Comalco Act and the Comalco Agreement. Short Term Non-registration Event Where there has been a Hindering Action relating to the non-registration of this Agreement and this Agreement has not been registered within 12 months from the Commencement Date. … SPMPL A Special Perpetual Mining Purposes Lease granted or to be granted pursuant to clause 27 of the Comalco Agreement. … Traditional Owner Groups The native title claim groups of the ILUA Area on whose behalf Conforming Applications have been made or are required to be made pursuant to the obligations in the Agreement, namely: (a) the Alngith People; (b) the Anathangayth People; (c) the Ankamuthi People; (d) the Peppan People; (e) the Taepadhighi People; (f) the Thanikwithi People; (g) the Tjungundji People; (h) the Warranggu People; (i) the Wathayn People; (j) the Wik and Wik-Way Peoples; and (k) the Yupungathi People. Trustee The trustee of the WCCT. … Weipa Operations The activities and operations carried on and things done, from time to time, by Comalco or an Associate: (a) within the ILUA Area pursuant to or in connection with any of the Comalco Interests; or (b) outside the ILUA Area, but which relate to the matters referred to in (a) including shipping cargo and minerals to and from the ILUA Area and use of the Port of Weipa or any other port within the ILUA Area and shipping channels. …

[12]

1.2 Interpretation In this Agreement, including the Recitals, except to the extent that the subject or the context otherwise requires: 1.2.1 the following terms have the meanings respectively assigned to them in the NTA: 1.2.1.1 applicant; 1.2.1.2 claimant application; 1.2.1.3 native title claim group; 1.2.1.4 registered native title claimant; 1.2.1.5 representative body; 1.2.1.6 native title; 1.2.1.7 native title group; 1.2.1.8 native title holder; 1.2.1.9 native title rights and interests; and 1.2.1.10 for the purposes of any provisions in this Agreement concerning native title or native title rights and interests: 1.2.1.10.1 land; and 1.2.1.10.2 waters. 1.2.2 a reference to Aborigines, Aboriginal People or Aboriginals is a reference to Aboriginal peoples as defined in s253 of the NTA; 1.2.3 reference to any legislation or to any provision of any legislation includes any modification or re-enactment of, or any legislative provision substituted for, and all legislation and statutory instruments issued under, such legislation or such provision and includes the corresponding legislation in such other State or Territory of the Commonwealth of Australia as may be relevant from time to time; 1.2.4 words (including words defined in this Agreement) denoting the singular number include the plural and vice versa; 1.2.5 words importing natural persons (where appropriate) include corporations, firms, unincorporated associations, partnerships, trusts and any other entities recognised by law and vice versa; 1.2.6 words denoting any gender include all genders; 1.2.7 words "written" and "in writing" include any means of visible reproduction of words in a tangible and permanently viable form; 1.2.8 reference to a "right" includes an entitlement, remedy, discretion and power; 1.2.9 reference to "interest" includes any estate or interest, legal or beneficial, and whether real or personal; 1.2.10 reference to "permit" includes consent to, authorise and allow; 1.2.11 reference to "valid" includes having full force and effect and reference to "invalid" includes not having full force and effect; 1.2.12 reference to a "People" in the list of the Parties on page 1 of this Agreement is a reference to the Native Title Parties for those People, as detailed in the definition of Native Title Parties in clause 1.1; 1.2.13 reference to a "native title determination" means a native title determination as defined in s225 of the NTA; 1.2.14 reference to "registration" in relation to applications for native title determinations refers to registration on the Register of Native Title Claims and in relation to this Agreement refers to registration on the Register; 1.2.15 when referring to native title, "affects" has the same meaning as in s227 of the NTA; 1.2.16 when referring to native title or native title rights and interests, a "surrender" takes place on the later of: 1.2.16.1 immediately after the registration of this Agreement; or 1.2.16.2 the event on the occurrence of which the Parties have agreed the surrender is to occur, and means a surrender of those native title rights and interests to Queensland; 1.2.17 reference to "consent" to an act after the Registration Date by the Communities or the Native Title Parties means that the Communities or the Native Title Parties also give that consent from the Commencement Date by virtue of the operation of this Agreement at common law; 1.2.18 if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing; 1.2.19 reference to anything (including a right, obligation or concept) includes each part of it; 1.2.20 where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; 1.2.21 reference to a Schedule or an Attachment is a reference to a schedule or attachment to this Agreement; 1.2.22 reference to a sub-clause is a reference to the sub-clause of the clause in which it appears, reference to a paragraph is a reference to a paragraph of the sub-clause in which it appears and reference to a sub-paragraph is a reference to a sub-paragraph of a paragraph in which it appears; 1.2.23 reference to a document or agreement, or provision of a document or agreement, is to that document, agreement or provision as novated, supplemented, varied or replaced from time to time; 1.2.24 a recital, schedule, annexure or a description of the Parties forms part of this Agreement; 1.2.25 a reference to any party to this Agreement or any other document or arrangement or other party identified in this Agreement or any other document or arrangement includes that party's executors, administrators, substitutes, successors and permitted assigns and agents; 1.2.26 a reference to a Minister, Department, authority, body or person includes the Minister, Department, authority, body or person for the time being performing the functions performed by the Minister, Department, authority, body or person at the Commencement Date; 1.2.27 unless otherwise stated, a reference to "dollars" or "$" is to Australian currency; 1.2.28 a reference in the body of this Agreement or in a Schedule to a clause is a reference to a clause in the body of this Agreement or that Schedule, respectively; 1.2.29 … 1.2.30 where under this Agreement, Comalco commits to discriminate positively in favour of Aboriginal persons, Comalco will use its best endeavours to obtain such authorisations, if any, as may be necessary to allow it to lawfully discriminate in the manner outlined in this Agreement but Comalco's commitments are only activated once Comalco has obtained those authorisations; 1.2.31 a reference to "relevant Traditional Owner Groups" is to those Traditional Owner Groups whose Claim Areas include the land to which the operation of a provision applies and if there is uncertainty as to their identity those nominated by the Co-ordinating Committee; 1.2.32 a reference to land is to be taken to be also a reference to waters; 1.2.33 … 1.2.34 "extension" refers to an extension of term; and 1.2.35 consents in this Agreement when given on behalf of a native title holder are deemed to have been authorised in accordance with s251A of the NTA.

[22]

2.2 Acknowledgments of Past Matters and Present and Future Consents The Parties make the following acknowledgments and agree to the stated effects of the acknowledgments and, subject to this Agreement, give the stated consents. 2.2.1 The Comalco Interests, the Other Interests, and the performance of the Comalco Activities to the Registration Date are valid. If any of the Comalco Interests and Other Interests, or the performance of any of the Comalco Activities, have ever been invalid to any extent, the Parties agree to their validation, and that they are taken to be valid and always to have been valid. 2.2.2 On the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1, any native title rights which may have existed yielded to the extent of any inconsistency between them and the Comalco Act, the Comalco Agreement, the conferral of any of the Comalco Interests and the performance of the Comalco Activities, whether done before or after the Registration Date. The yielded native title rights therefore do not and would not affect, by preventing, inhibiting, restricting, or otherwise qualifying, the conferral of the Comalco Interests or the performance of the Comalco Activities in any way at any time. 2.2.3 In relation to Other Interests and New SPMPLs: 2.2.3.1 at the times of the grants, or purported grants of any Other Interests or any New SPMPLs prior to the Registration Date; and 2.2.3.2 at the time of the grants of any New SPMPLs after the Registration Date, native title has been, or will be, whichever is relevant, extinguished to the land the subject of the grants, and any that has otherwise survived or would otherwise have survived, is surrendered with that intention. The Communities consent to the grant of any New SPMPLs after the Registration Date. 2.2.4 In recognition of the benefits Comalco and Queensland has agreed to make available to the Communities under this Agreement and the position Comalco is adopting regarding the possible survival of native title to the ILUA Area, to allay doubt, if any native title rights presently subsist to all, or a portion of, the Designated Minerals either presently within, or previously taken from, the Mining Leases, those native title rights are surrendered with the intention that they be extinguished. The effect of this clause applies notwithstanding any decision of any Court regarding the extinguishment or otherwise of native title in minerals generally. The Communities will not contend the existence or survival of native title to any of the Designated Minerals, or a portion of the Designated Minerals as resources taken from the Mining Leases, either presently within, or previously taken from, the Mining Leases, from the enactment of the Comalco Act in 1957, the making of the Comalco Agreement, or the grant of SBML 1. Comalco and Queensland may plead this clause in bar to any Claim brought by the Communities, any member of the Communities or any person on or for their behalf, so contending the existence or survival of native title to the Designated Minerals. The Communities by entering into this Agreement consent to Comalco or Queensland becoming a party in any matter where such a Claim is made. 2.2.5 For resources taken by Comalco under the authority of the Comalco Interests from the ILUA Area (other than the Designated Minerals), the Communities' native title rights and interests do not include a right to a portion of those resources. However to allay doubt, if any native title rights and interests comprise those rights, the Communities waive any entitlement to enforce those native title rights which may have arisen on or before the Commencement Date as against Comalco or Queensland and agree not to exercise such rights after the Commencement Date against Comalco or Queensland. 2.2.6 The Communities consent to all acts conferring upon Comalco any of the Comalco Interests listed in subparagraphs (c), (d) and (g) to (l) inclusive of the definition of "Comalco Interests" in clause 1.1 after the Registration Date and the performance of the Comalco Activities, regardless of whether those acts affect, or would but for this Agreement, affect native title. 2.2.7 If, but for this Agreement, Procedural Requirements would have applied to the conferral of a Comalco Interest, Comalco must perform those Procedural Requirements as if they still applied. 2.2.8 In relation to the Ports Corporation, the Communities consent to, after the Registration Date: 2.2.8.1 the vesting or grant of any land within the ILUA Area to the Ports Corporation; and 2.2.8.2 the conferral on the Ports Corporation or Comalco of all rights necessary to enable: 2.2.8.2.1 the grant of the Comalco Interests, including the grant of any such interest by the Ports Corporation; and 2.2.8.2.2 Comalco to perform the Comalco Activities, and nothing in this clause is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection. 2.2.9 After the Registration Date, the Communities consent to the shipping of goods in and out of Weipa, and to any other points in the Comalco Interests near or adjacent to the sea or any waterway, but only pursuant to the Comalco Interests or for the performance of the Comalco Activities and nothing in this clause is intended to preclude the application of any law concerned with the protection of Aboriginal cultural heritage or environmental protection. 2.2.10 Public Services for Weipa Township 2.2.10.1 The Communities consent to: 2.2.10.1.1 the construction, operation, use, maintenance or repair of; and 2.2.10.1.2 the conferral of rights or interests on any person with respect to facilities (including but not limited to the facilities listed in Schedule 2) for public purposes in Weipa Township. 2.2.10.2 For the purposes of Queensland, the Director-General, Department of Natural Resources and Mines will be responsible for the administration of this clause.

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2.3 Acknowledgments - Present and Future Matters The Parties also make the following acknowledgments and agree to the stated effects of the acknowledgments. 2.3.1 Subject to this Agreement, Comalco is entitled to exercise all rights and interests conferred by the Comalco Interests and to perform the Comalco Activities lawfully in the manner Comalco, in its absolute discretion, deems fit and without incurring any liability to the Communities. 2.3.2 The Comalco Activities constitute activities for the purposes of s44H of the NTA. 2.3.3 Comalco is entitled to exercise a right to exclude any persons from those parts of the ILUA Area required by Comalco in exercise of the rights conferred by the Comalco Interests, the performance of the Comalco Activities, or this Agreement from time to time for operational, safety or security reasons or as required by any law. 2.3.4 For the areas where Comalco exercises a right to exclude persons: 2.3.4.1 any native title rights and interests are wholly inconsistent with the performance of the Comalco Activities and the exercise of rights under the Comalco Interests and may not be exercised by the Communities for the duration of the inconsistency; 2.3.4.2 despite any invitations or licences given by Comalco to others to enter those areas, Comalco's right to exclusive possession includes an entitlement to exclude all others from those areas; and 2.3.4.3 the native title rights and interests will continue to exist in their entirety but will have no effect in relation to the exercise of rights under the Comalco Interests or the performance of the Comalco Activities. 2.3.5 For the areas where Comalco does not exercise a right to exclude persons as acknowledged in this Agreement: 2.3.5.1 where any Comalco Interest or the performance of any Comalco Activity is partly 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 on the exercise of rights pursuant to the Comalco Interests or the performance of the Comalco Activities to the extent of any inconsistency; and 2.3.5.2 to the extent that the native title rights and interests are not inconsistent with the Comalco Interests or the performance of the Comalco Activities, the native title rights and interests are exercisable to their full extent in respect of the ILUA Area. 2.3.6 After land ceased or ceases to be subject to the Comalco Interests, native title rights and interests again had effect or can again have effect to the extent possible having regard to the effect of the Comalco Interests and the performance of the Comalco Activities. This clause is not intended to limit the operation of ss 47, 47A or 47B of the NTA. 2.3.7 Despite the acknowledgments by the Communities in clause 2.2, to the extent that native title rights and interests continue to exist, the interaction between them and the Comalco Interests and the performance of the Comalco Activities is as described in this Agreement. 2.3.8 Subdivision P, division 3 of part 2 of the NTA2 is not intended to apply, and does not apply, to any of the acts consented to or supported in this Agreement including to the renewal, regrant, extension or replacement of the Mining Leases, the grant of any Comalco Interests, or any alterations to any "right to mine" (as the term is used in subdivision P) resulting from environmental requirements, after the Registration Date. 2.3.9 Subject to clause 2.3.10, Comalco has the right (subject to obtaining any necessary Government approvals) to permit (including by way of lease, sublease, licence, delegation, assignment, invitation, or any other dealing) third parties to do any or all of the following: 2.3.9.1 exercise any of the rights conferred by the Comalco Interests or this Agreement; 2.3.9.2 perform the Comalco Activities; or 2.3.9.3 enter and remain on any area of the Comalco Interests for any purpose related to the maintenance or promotion by Comalco of its business interests, and in exercising the rights described in this clause, Comalco will be mindful of the cultural sensitivities of the Communities. 2.3.10 In permitting third parties to carry out the activities referred to in clause 2.3.9, Comalco must require the third parties to abide by the provisions of this Agreement which would apply to Comalco if it was carrying out the activities, including the provisions dealing with cultural heritage. Comalco will remain liable to the Communities for the performance of Comalco's obligations under this Agreement by such third parties as though the acts or omissions of such third parties were the acts or omissions of Comalco. 2.3.11 Subject to this Agreement and the rights under the Comalco Interests, the native title rights and interests to the ILUA Area that might be possessed by the Possible Native Title Holders for the duration of the Comalco Interests are as specified in Order 3 in the Model Determination. 2.3.12 In relation to the ILUA Area, until the termination of the Comalco Interests the native title rights and interests of the Possible Native Title Holders do not confer possession, occupation, use and enjoyment of the land of any part of the ILUA Area to the exclusion of all others.

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2.4 Registering this Agreement as an ILUA 2.4.1 In addition to all other effects that this Agreement may have at law, it constitutes an ILUA, and by execution of this Agreement, the Parties agree to its registration and to take the following steps as applicable to each of them. 2.4.1.1 As soon as practicable after the Commencement Date, the Native Title Parties who are not applicants in relation to any part of the ILUA Area at the Commencement Date will either: 2.4.1.1.1 lodge Conforming Applications in which they are the applicants; or 2.4.1.1.2 procure applicants from their respective Traditional Owner Groups to lodge Conforming Applications, so that, subject to clause 2.4.1.2 and to the extent permitted by law, all parts of the ILUA Area are subject to Conforming Applications. 2.4.1.2 As soon as practicable, but in any event no later than 6 months after the Commencement Date, the Native Title Parties who are applicants in relation to any part of the ILUA Area at the Commencement Date or who have been Additional Native Title Parties will either amend their claimant applications, in respect of the ILUA Area, to render them Conforming Applications or withdraw that part of their claimant application, in respect of the ILUA Area, and lodge Conforming Applications in accordance with clause 2.4.1.1. 2.4.1.3 A failure by a Native Title Party to comply with clause 2.4.1.2 will be deemed to give rise to a Determination that there has been a Short Term Non-registration Event and Comalco may exercise its rights under clause 2.6.3.1 accordingly. 2.4.1.4 The Native Title Parties must use their best endeavours to procure: 2.4.1.4.1 the applicants in any Non-conforming Applications to amend their Non-conforming Application to render them Conforming Applications; and 2.4.1.4.2 any Additional Native Title Parties who become registered native title claimants to sign and agree to be bound by the terms of this Agreement. 2.4.1.5 The Native Title Parties will ensure that the applicants have, in accordance with s251B of the NTA, proper authorisation for the making of their Conforming Applications. 2.4.1.6 If a Conforming Application is not registered on the Register of Native Title Claims, then the Native Title Parties must use their best endeavours to ensure that the claimant applications made on behalf of their respective Traditional Owner Groups are registered on the Register of Native Title Claims, including by making such amendments, as agreed by Comalco, as may be necessary for registration; providing such material in support of the amended application as the Registrar or the Federal Court may require; and making such application to the Federal Court as may be necessary to achieve registration. ... 2.4.1.11 The Communities will not object to the registration of this Agreement, will use their best endeavours to have an objector withdraw any objection to registration of this Agreement and, once this Agreement is registered, will not apply to any Court, under the NTA or otherwise, to have this Agreement removed from the Register. 2.4.1.12 CYLC and the Communities will each use their best endeavours to ensure that this Agreement remains registered. 2.4.1.13 Notwithstanding clause 2.4.1.1 but subject to clause 2.4.1.14, the Native Title Parties will not be required to lodge a Conforming Application for ILUA Area B. 2.4.1.14 If a person other than a Native Title Party or an applicant authorised by a Traditional Owner Group lodges a claimant application that includes any part of the ILUA Area, then the Native Title Parties, who are the Possible Native Title Holders for that part of the ILUA Area, must, as soon as practicable after the claimant application is made, lodge or procure the lodgement of, on behalf of their Traditional Owner Group, a Conforming Application in relation to that area in accordance with this clause 2.4.1. … 2.4.5 The Parties acknowledge that some Additional Native Title Parties might agree to be bound by the terms of this Agreement after the Commencement Date. The Parties agree to the amendment of this Agreement: 2.4.5.1 by the addition of the names of those Additional Native Title Parties in Schedule 16; and 2.4.5.2 the signing of this Agreement by those Additional Native Title Parties, without the necessity for the Parties, other than the Additional Native Title Parties whose names are being added, to sign the amendment. On signing this Agreement as amended in accordance with this clause 2.4.5, an Additional Native Title Party is bound by, entitled to exercise rights under, and receives the benefits of this Agreement from the date of signing.

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2.5 Separate ILUAs for Separate Areas 2.5.1 For the purposes of s199C of the NTA and despite anything else contained in this Agreement or any rule of law to the contrary: 2.5.1.1 subject to clause 2.5.2, this Agreement may be registered as a separate ILUA for each Claim Area or such other area within the ILUA Area determined by Comalco after consultation with CYLC and Attachment 1 will be amended accordingly; and 2.5.1.2 for each such separate ILUA a reference to "ILUA Area" will be taken to be a reference to that Claim Area or such other area within the ILUA Area determined by Comalco after consultation with CYLC. 2.5.2 Although this Agreement embodies what may become a number of separate ILUAs (see clause 2.5.1), Comalco may, for convenience, exercise its rights or perform its obligations as if all such ILUAs were the one agreement. The performance by Comalco of its obligations or the exercise of its rights as described under this Agreement will be deemed to be the performance of obligations or the exercise of rights for all of the ILUAs referred to in clause 2.5.1. 2.5.3 If at any time: 2.5.3.1 it appears to Comalco that it is likely that a native title determination will be made; or 2.5.3.2 a native title determination is made, in relation to any part of the ILUA Area (referred to in clause 2.5 as the "Relevant Part") in favour of any Aboriginal person not a party to, or bound by, this Agreement (referred to in this clause 2.5 as the "New Native Title Holder") which will cause s199C(1)(b) of the NTA to apply: 2.5.3.3 then Comalco is entitled to notify the Native Title Registrar that the ILUA Area is reduced by the Relevant Part and does not include, and is taken not to relate to, the Relevant Part (and if the native title determination is made as contemplated in clause 2.5.3.2, the notification will be deemed to have been given); and 2.5.3.4 CYLC and the Communities will use their respective best endeavours to ensure that the New Native Title Holder: 2.5.3.4.1 adopts and enters into this Agreement as a Native Title Party; and 2.5.3.4.2 makes the appropriate applications to the Federal Court under s199C(1A) of the NTA seeking an order that the Federal Court not remove the details of this Agreement from the Register or, if removal is inevitable, only the minimum area possible. 2.5.4 During any period of time that this Agreement is not registered over a Relevant Part upon the Register under clause 2.5.3, then the provisions of this Agreement (other than clauses 1, 2, 3, 4, 16, 17, 18, 19, 20, 21, 22, 24, 27 and 31 through to 46 (inclusive) and the related Schedules and Attachments) will cease to apply to the Relevant Part during the relevant period. 2.5.5 If this Agreement is (or its details are) removed from the Register, and the New Native Title Holder declines to become a party to this Agreement, or it is reasonably clear, from the circumstances, that the holder does not wish to become a party to this Agreement, the Parties will use their best endeavours to ensure that this Agreement is again registered in respect of the ILUA Area except for the Relevant Part, and for the purposes of this Agreement: 2.5.5.1 "ILUA Area" is taken to exclude the Relevant Part; 2.5.5.2 (for the avoidance of doubt) clause 2 will, to the extent practicable, apply again. …

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3.3 Support for Gas or Energy Supply 3.3.1 Subject to the payment under clause 3.3.2, the Communities consent to the grant of any rights over the ILUA Area necessary to enable the supply of gas to the Weipa Operations and to lay any related gas pipelines or provide any storage installations and other facilities and these rights must: 3.3.1.1 be substantially similar to the rights granted over native title rights and interests for the provision of gas spur pipelines in Cape York but outside the ILUA Area (for example the gas spur lines from the proposed PNG/Queensland Gas pipeline); 3.3.1.2 have a substantially similar effect on native title rights and interests as those referred to in clause 3.3.1.1 and any compensation referred to in clause 3.3.2 will be substantially similar to that paid for the effect on native title rights and interests of the grant of the provision of gas spur pipelines in Cape York but outside the ILUA Area. 3.3.2 The nature of the rights, their effect on native title rights and interests and any compensation will be agreed by Comalco and the Co-ordinating Committee following consultation with the relevant Traditional Owner Groups. The amount of compensation must be paid to the Trustee and applied in accordance with this Agreement. 3.3.3 If the Co-ordinating Committee and Comalco cannot agree on the amount referred to in clause 3.3.2 within a reasonable time, then either may give the other notice that there is a Dispute. Clause 27 will apply to the Dispute subject to the dispute being determined by the person whom the Co-ordinating Committee and Comalco agree has, under other agreements, determined, or been appointed to determine, the amount payable as compensation for the effect on native title rights and interests of the grant of similar rights within Cape York but outside the ILUA Area. Where they cannot agree on the appointment or there is no such person, then the appointment will be made by the President of the Institute of Arbitrators.

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10.3 Permit System 10.3.1 The Parties acknowledge the existence of the permit system for access by tourists and residents of ML7024 Towns for sporting, recreational, community or similar purposes to parts of the ILUA Area, compiled by Comalco with the assistance of the Aurukun Shire Council, Napranum Aboriginal Council, Marpuna Corporation (now Mapoon Aboriginal Council), Alspac and the Weipa Citizens Advisory Committee. The Co-ordinating Committee will review the Permit System as soon as practicable but in any event within 6 months of the Commencement Date. 10.3.2 Comalco will, to the extent it is reasonably able to do so, assist the Communities to implement the Permit System. 10.3.3 Comalco will not authorise the establishment or use of any camp site for sporting, recreational, community or similar purposes on the Mining Leases other than those camp sites governed by the Permit System, without the consent of the Co-ordinating Committee. The consent of the Co-ordinating Committee may only be given after it has consulted with the Traditional Owner Groups who are traditional owners of the land on which the camp site is to be established or used. 10.3.4 The Permit System may be amended by the Co-ordinating Committee from time to time, provided the amendment has been consented to by the relevant Traditional Owner Groups and each of the relevant Councils and, to the extent it applies to the ILUA Area, Comalco. Such consent by Comalco will not be unreasonably withheld having regard to the Comalco Interests and Comalco Activities. 10.3.5 Comalco will not (other than for safety or in an emergency) authorise, under the Permit System, the discharge of firearms or the lighting of campfires. 10.3.6 The Permit System, its operation and any obligations of Comalco in relation to the Permit System, are subject to any rights of access or use or any right to carry out activities authorised by the operation of clauses 2.3.9, 10.1, 10.2 and 10.4 or the principles referred to in them. 10.3.7 The Co-ordinating Committee and Comalco may agree on the roads within the Mining Leases that are not to be used by the public as contemplated under clause 10.2.1 but which are to be subject to the Permit System eg tracks or roads to Outstations or Significant Aboriginal Sites or areas that have been surrendered from the Mining Leases in accordance with clauses 5.1 or 5.2. …

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19.3 Benefits to Possible Native Title Holders In addition to the benefits which Comalco has agreed to make available under other provisions of this Agreement, CYLC acknowledges the receipt of the sum of $1.00 paid by Comalco and $1.00 paid by Queensland on the Commencement Date which is to be held in trust by CYLC on behalf of all Possible Native Title Holders. … ATTACHMENT 1 ILUA AREA (clause 1.1 of Agreement) The map showing the ILUA Area follows the ILUA Area description below. To the extent of any inconsistency, the written description prevails over the area indicated on the map. ILUA AREA DESCRIPTION The ILUA Area is comprised of the following areas:

all land and waters within the ML 6024 Area and the ML 7024 Area but subject to the removal of particular areas from the ILUA Area from time to time as specifically provided in this Agreement;
the land and waters of Albatross Bay and the rivers and creeks running into it (below the high water mark) from the Territorial Sea Baseline of Albatross Bay eastward to the most easterly of: (a) the coastline; (b) the western boundary of ML 7024; (c) the north-western boundary of ML 6024; (d) in the Mission River, longitude 141° 59' 30.5", but excluding any areas within the Shire of Aurukun as shown on Plan SC 211;
the land and waters of Port Musgrave and the rivers and creeks running into it (below the high water mark) from the Territorial Sea Baseline of Port Musgrave easterly along the Ducie River to the boundary of ML 7024 and southerly along the Wenlock River to the boundary of ML 7024;
the land and waters within the Weipa Township boundary irrespective of whether the land and waters are also within ML 7024;
the following lots outside of the Weipa Township boundary which have been surrendered from ML 7024 but which are generally located within the area defined by the outer boundaries of the ML 7024 Area: (a) Lot 342 on MP 36486; (b) Lot 22 on MP 32268; (c) Lot 15 on SP 116851 (WP 7); (d) Lot 29 on SP 116854 (WP 18); (e) Lot 17 on SP 116853 (WP 12); (f) Lot 2 on MP 26144 (WP 6); (g) Lot 25 on MP 26155 (WP 15); (h) Lot 37 on MP 30227 (WP 23); (i) Lot 39 on MP 30554 (WP 26); and (j) Lot 30 on MP 30144 (WP 21); and
ILUA Area B which is the land and waters extending 3 nautical miles from the coastline or the Territorial Sea Baseline as applicable between: (a) latitudes 12° 54' 23.0" South and 11° 57' 24.2" South (between Port Musgrave and Cullen Point); (b) latitudes 12° 34' 26.2" South and 13° 11' 28.3" South (between Duyfken Point and Ina Creek); and (c) latitudes 11° 13' 35.3" South and 11° 18' 24.8" South (off the Vrilya Point Area), irrespective of whether the land and waters are also within ML 7024. ILUA AREA MAP Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Woosup on behalf of the Ankamuthi People #2 v State of Queensland

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (44 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (6)