Wik and Wik Way Native Title Group v State of Queensland [2009] FCA 789 (29 July 2009)

Between: Anthony Kerindun, Janine Chevanthun and Alison Woolla as the applicants on behalf of the members of the Wik and Wik Way native title claim group (APPLICANTS) and State of Queensland, Rio Tinto Aluminium Limited (formerly Comalco Aluminium Limited), Ports Corporation of Queensland, Cook Shire Council, Albatross Hire Pty Ltd trading as Weipa Houseboats and a number of commercial fishing authority holders (RESPONDENTS)

Judge: Greenwood J

Where made: Aurukun, Cape York Peninsula

Determination:

Native title exists in the determination area.

The Wik and Wik Way people hold native title.

The native title rights and interests that exist include the right to live on, use, fish, hunt, protect sacred sites and conduct ceremonies on the land.

The non-native title interests include the interests of Rio Tinto, Cook Shire Council, Napranum Aboriginal Shire Council, North Queensland Bulk Ports Corporation, commercial fishing operations and the public.

This is the fourth stage of the Wik and Wik Way Peoples' native title recognition on the Cape York Peninsula in Queensland. There have been three previous consent determinations (see related entities) following the Wik and Wik Way Peoples' well-known 1996 High Court victory, which found that native title could exist on some types of pastoral leases.

The Wik and Wik Way people will now begin developing the fifth and final consent determination over the parts of their traditional lands not addressed by the previous determinations.

The determination area covers approximately 1,150 square kilometers of the land and waters on the west of the Cape York Peninsula reaching the Embley river to the north, the Edward river to the south and the watercourses that drain into the Gulf of Carpentaria to the east.

The native title rights and interests recognised in the determination include the non-exclusive right to live, camp and erect shelters on the land, access and use the land, use the natural resources of the land for non-commercial purposes, maintain and protect the places of significance, conduct ceremonies, hunt and gather for non-commercial purposes and the right to inherit and succeed to the native title rights and interests. The right to use water and the right to hunt and fish from the water also exist, provided this use is for non-commercial purposes.

There is no native title in minerals or petroleum.

The non-native title rights that exist include the rights of Rio Tinto under the Comalco Act, the Comalco agreement, the WCCCA (Western Cape Communities Co-existence Agreement) and mining leases, the rights of commercial fishing operations under the Fisheries Act 1994 (Qld), the rights of the Cook Shire Council, the rights of Napranum Aboriginal Shire Council, the rights of North Queensland Bulk Ports Corporation Limited, any right the public holds granted by Rio Tinto or arising under common law.

The Ngan Aak-Kunch Aboriginal Corporation RNTBC will be the prescribed body corporate in relation to native title.

Greenwood J was satisfied that the parties were represented by independent lawyers, that the Wik and Wik Way people are descended from Aboriginal heritage, lived on the land in question and have maintained a connection to the land and that the agreement was the result of negotiations. The court was, therefore, able to make the consent determination.

An ILUA developed between the Wik and Wik Way people and Cook Shire Council in October officially brought this consent determination into effect as the native title rights recognised were conditional on the ILUA's registration.

Full text of the agreement and annexure and schedules are available via the URL link provided.

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