ATNS - Agreements, Treaties and Negotiated Settlements project

Print this page
Lardil Peoples v State of Queensland [2004] FCA 298
Category:	Case Law
Date:	23 March 2004
Sub Category:	Litigated Determination
Place:	Sea surrounding the Wellesley Islands group
	Click this link to search this location with google maps
State/Country:	Queensland, Australia
	Click this link to search this location with google maps
	Areas of sea surrounding the Wellesley Islands group, 400 kilometres north of Mount Isa, Queensland, in the Gulf of Carpentaria; and parts of the Albert River (mainland Queensland).
Legal Reference:	Determination of National Native Title Tribunal cl
Alternative Names:	Wellesley Islands Sea Claim
Subject Matter:	Native Title \| Recognition of Native Title or Traditional Ownership
URL:	http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/298.html
Summary Information:
The Lardil Peoples v State of Queensland decision was made by the Federal Court of Australia in its determination of the Wellesley Islands (native title) Sea Claim. The Court found that native title is held by the Lardil, Yangkaal, Kaiadilt and Gangalidda peoples over some areas of sea surrounding the Wellesley Islands and over part of the Albert River. The Court also found that native title does not exist over other areas of sea included in the original area of the native title claim. The Court determined that the native title holders hold non-exclusive rights in line with their traditional laws and customs, meaning that the native title rights recognised exist alongside other rights under State and Commonwealth laws such as recreational and commercial fishing and shipping rights. 'The [native title] rights recognised include: the right to fish, hunt and gather living and plant resources and the right to hunt and take turtle and dugong in the inter-tidal zone and surrounding waters for personal, domestic or non-commercial communal consumption; the right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone; the right to access the land and waters seaward of the high water line for religious or spiritual purposes; and to access sites of spiritual or religious significance.'
Detailed Information:
The full text of the determination is available at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/298.html The National Native Title Register extract for this determination records the following information of the determination: 1. Native title exists in so much of the 'determination area' as is described in the first to fourth schedules inclusive, but otherwise, does not exist in the determination area. 2. The determination area is the area of land and waters between the visual horizon and the high water mark ('the high water line') marked on Australian Charts AUS303 and AUS304, forming part of Ex164 in the proceedings, together with the land and waters of the Albert River from the coast inland to a notional line across the river where it meets the eastern boundary of Lot 122 on CP12, County of Porchester, Parish of Burke. 3. Native title is held by the Lardil peoples in the land and waters described in the first schedule. 4. Native title is held by the Yangkaal peoples in the land and waters described in the second schedule. 5. Native title is held by the Kaiadilt peoples in the land and waters described in the third schedule. 6. Native title is held by the Gangalidda peoples in the land and waters described in the fourth schedule. 7. The nature and extent of the native title rights and interests held by each of the Lardil, Yangkaal, Kaiadilt and Gangalidda peoples in respect of their separate land and waters described respectively in the first to fourth schedules inclusive is: (1) The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed by and under their traditional laws and customs. (2) The right to fish, hunt and gather living and plant resources, including the right to hunt and take turtle and dugong, in the inter-tidal zone and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under their traditional laws and customs. (3) The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under their traditional laws and customs. (4) The right to access the land and waters seaward of the high water line in accordance with and for the purposes allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within their respective traditional territory for the purposes of ritual or ceremony. (5) In respect of the waters of the Albert River specified in the Fourth Schedule, the Gangalidda peoples have the right to: (a) access the waters of the Albert River for the purposes of hunting, fishing and gathering for living and plant resources for personal, domestic and non-commercial consumption in accordance with and for the purposes allowed by and under their traditional laws and customs; (b) fish, hunt and gather living and plant resources in the river for personal, domestic and non-commercial consumption in accordance with and for the purposes allowed by and under their traditional laws and customs; (c) access the river in accordance with and for the purposes allowed under their traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the river for purposes of ritual or ceremony. 8. The native title rights held by each of the native title holder groups do not confer possession, occupation, use and enjoyment of the land and waters to which they relate to the exclusion of all others. 9. There is no native title right or interest in minerals or petroleum within the meaning of those terms as defined in the Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) held by any of the native title holders in the determination area. 10. The nature and extent of other interests in relation to the determination area are the interests created by the Crown and the rights and interests of members of the public arising under the common law or international law recognised as applicable in Australia, set out in the fifth schedule. 11. The native title rights and interests described in par 7 are subject to regulation, control, curtailment or restriction by valid laws of the Commonwealth of Australia and/or the valid laws of the State of Queensland. 12. To the extent that any inconsistency exists between the native title rights and interests referred to in par 7 above and the rights conferred on other interests referred to in par 10 above, the native title rights and interests must yield to such other rights and interests. 13. Within 28 days the common law holders of native title are to file a minute of proposed determination under s 56 or s 57 of the Native Title Act 1993 (Cth) and if no such minute is filed, it is determined that native title is held by the common law holders in accordance with the terms of this determination. 14. Liberty to apply on five clear days notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. First Schedule The land and waters in which the Lardil peoples hold native title are: (i) subject to par (iii) below, the land and waters between the high water line on each of Mornington, Sydney and Wallaby Islands and a line five nautical miles seaward running parallel with it; (ii) subject to par (iii) below, land and waters not within the area defined in par (i) above, being the lands and waters between the high water line on each of Rocky, Manowar, Moondalbee, Pisonia (or Turtle), Bountiful and Turrermurrer Islands and a line one-half of a nautical mile seaward and running parallel with it; (iii) to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Yangkaal, Kaiadilt or Gangalidda peoples determined in accordance with this determination, the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay and in particular, the boundary between the land and waters of the Lardil and Yangkaal peoples is the mid-line of the Appel Channel. Second Schedule The land and waters in which the Yangkaal peoples hold native title are: (i) subject to par (v) below, the land and waters between the high water line on each of Denham, Forsyth and Andrew Islands and a line five nautical miles seaward running parallel with it; (ii) subject to pars (iii), (iv) and (v) below, land and waters not within the area defined in par (i) above, being the land and waters between the high water line on each of Roberts (or Pains), Allen, Little Allen, Francis (or Bayley) Islands and a line one-half of a nautical mile seaward and running parallel with it; (iii) the land and waters of Allen, Little Allen and Horseshoe Islands as defined under par (ii) above, are shared equally with the Kaiadilt peoples and the Gangalidda peoples; (iv) so much of the land and waters of Francis (or Bayley) and Robert Islands as defined under par (ii) above as are between the islands and the mainland at Bayley Point are shared equally with the Gangalidda peoples; (v) to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Lardil, Gangalidda or Kaiadilt peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay, and in particular, the boundary between the land and waters of the Lardil and Yangkaal peoples is the mid-line of the Appel Channel. Third Schedule The land and waters in which the Kaiadilt peoples hold native title are: (i) subject to pars (iii) and (iv) below, the land and waters between the high water line on each of Bentinck and Sweers Islands and a line five nautical miles seaward running parallel with it; (ii) subject to pars (iii) and (iv) below, land and waters not within the area defined in par (i) above, being the land and waters between the high water line on each of Fowler, Albinia, Douglas, Bessie, Margaret, Allen, Little Allen, Horseshoe, Jawari and Dararrbayi Islands and a line one-half of a nautical mile seaward and running parallel with it; (iii) the land and waters of Allen, Little Allen, and Horseshoe Islands as defined under par (ii) above, are shared equally with the Yangkaal and Gangalidda peoples; (iv) to the extent that the land and waters defined in pars (i) and (ii) above overlay any waters of the Lardil, Yangkaal and Gangalidda peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay. Fourth Schedule The land and waters in which the Gangalidda peoples hold native title are: (i) subject to par (vi) below, the land and waters between the high water line on the mainland coast between Massacre Inlet and the eastern bank of the Leichhardt River where it enters the Gulf of Carpentaria and a line five nautical miles seaward running parallel with it; (ii) subject to pars (iv) and (vi) below, the land and waters not within the area defined in par (i) above, being the land and waters between Bayley Point and Francis (or Bayley) Island and Robert Islands within one-half of a nautical mile from the high water line on the southern shores of these islands; (iii) subject to pars (v) and (vi) below, the land and waters not within the area defined in par (i) above, being the land and waters between Parker Point and Allen, Little Allen and Horseshoe Islands within one-half of a nautical mile from the high water line on the southern shores of these islands; (iv) the land and waters in par (ii) above are shared equally with the Yangkaal peoples. (v) the land and waters in par (iii) above are shared equally with the Yangkaal and Kaiadilt peoples; (vi) to the extent that the waters defined in pars (i), (ii) and (iii) above overlay any waters of the Lardil, Yangkaal and Kaiadilt peoples determined in accordance with this determination (other than waters shared equally), the overlapping land and waters area of each peoples shall be adjusted to meet up along the centre line of the area of the overlay. (vii) the land and waters of the Albert River from the coast where it enters the Gulf of Carpentaria inland to a notional line across the river where it meets the eastern boundary of Lot 122 on CP12, County of Porchester, Parish of Burke. Fifth Schedule The nature and extent of other interests in relation to the determination area are: (a) other interests held by members of the public under the common law, including: (i) the international law right of innocent passage; (ii) the common law public right of navigation; (iii) the common law public right to fish; (b) the rights and interests of holders of a licence or an authority issued under the Fisheries Act 1994 (Qld), the Fisheries Regulation 1995 (Qld) and the Fisheries Management Act 1991 (Cth) or any other legislative scheme for the control, management and exploitation of the living resources within the determination area. (c) the rights and interests of the holders of licences, certificates, permits and authorities issued under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld). (d) the rights of Pasminco Century Mine Ltd ACN 006 670 300 under and subject to the conditions of a permit granted to it under the Transport Operations (Marine Safety) Act 1994 (Qld) and the Transport Operations (Marine Safety) Regulation 1995 (Qld) to place and maintain in position a buoy mooring in Investigator Road in the determination area. (e) Albert River Reserve, being Lot 1 on Crown Plan 884324.