Wik and Wik Way Native Title Claim Group v State of Queensland [2012] FCA 1096 (Determination No. 4)

Between:
Anthony Kerindun, Victor Lawrence, Hogan Shortjoe, and Silas Wolmby on their own behalf and on behalf of the Wik and Wik Way Native Title Claim Group

(APPLICANTS) and

State of Queensland, Cook Shire Council, Telstra Corporation Ltd, Australian Wildlife Conservancy, The Tony and Lisette Lewis Settlement Pty Ltd, John Ernest Lynch, Cameron Stuart Maclean and Michelle Margaret Maclean, Cameron Clive Quartermaine and Doreen Ruth Quartermaine

(RESPONDENTS)

Judge: Greenwood J

Where made: Aurukun

Determination:

Native title is held by the Wik and Wik Way People

Native title exists over the determination area. It consists of non-exclusive native title rights.

The native title rights and interests that exist over land in the determination area include:

• the right to access and camp on the determination area;
• the right to take and use the natural resources of the determination area for non-commercial purposes;
• the right to maintain and protect from harm by lawful means sites and places of significance in the determination area;
• the right to maintain springs and wells in the determination area for the purpose of ensuring the free flow of water;
• the right to conduct ceremonies and engage in cultural activities on the determination area;
• the right to hunt and gather in the determination area for non-commercial purposes; and
• the right to teach the physical and spiritual attributes of sites and places of significance and areas of importance in the determination area, and the right to inherit and succeed to the native title rights and interests.

Native title rights and interests in relation to water within the determination area are the non-exclusive rights to:

• hunt and fish and gather from, the water for non-commercial purposes; and
  - take and use the water for non-commercial purposes.

Non-native title rights and interests that exist within the determination area can be summarised as:

• the rights and interests of the lessee and others under a term lease being title reference No. 17669036 comprising Lot 1 on YK4;
• the rights and interests of the lessee and others under a term lease being title reference No. 40037990 comprising Lot 2 on SP140870;
• the rights and interests of the lessee and others under a term lease, being title reference No. 40037991 comprising Lot 3 on SP140870;
• the rights and interests of the lessee and others under a term lease being title reference No. 17668105 comprising Lot 653 on SP178000;
• the rights and interests of the lessee and others under a term lease being title reference No. 40033877 comprising Lot 1 on SP177772;
• the rights, interests, powers and responsibilities of the Cook Shire Council as a local government established under the Local Government Act 2009 (Qld) and as an entity exercising statutory powers in respect of the land and waters in its local government area.
• The rights and interests granted by the State including the rights and interests of persons holding licences, permits, authorities, allocations, leases, claims, agreements or other instruments granted or issued pursuant to the Mineral Resources Act 1989 (Qld), the Geothermal Exploration Act 2004 (Qld), the Forestry Act 1959 (Qld), the Water Act 2000 (Qld) and the Integrated Planning Act 1997 (Qld) or Sustainable Planning Act 2009 (Qld);
• the rights and interests of the State pursuant to any licence, permit or authority granted or issued pursuant to the Radio Communicators Act 1992 (Cth) as may be current at the date of the determination;
• Any other rights and interests held by the State, or by reason of the laws of the State and the Commonwealth, including the rights and interests of the State under section 35 of the Transport Infrastructure Act 1994 (Qld) in relation to an area within Lot 1 on YK4;
• the rights and interests of the parties under the indigenous land use agreement (ILUA) between Anthony Kerindun, Victor Lawrence, Hogan Shortjoe and Silas Wolmby and Cook Shire Council entitled the Wik & Wik Way - Cook Shire Council - Local Government ILUA (#3), the Wik & Wik Way - Watson River Pastoral Lease ILUA, the Wik & Wik Way - Merluna Pastoral Lease ILUA executed on 12 September 2012, the Wik & Wik Way - Kendall River Pastoral Lease ILUA and the Wik & Wik Way - Piccaninny Plains Pastoral Lease ILUA; and
• the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area, created pursuant to Commonwealth statute and under any licences relating to its telecommunications facilities in the Determination Area.

Provisions Relevant to the Native Title Rights

There are no native title rights or interests in or in relation to Minerals and Petroleum.

The native title rights are not to be held in trust and the Ngan Aak-Kunch Aboriginal Corporation RNTBC is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).

Background

The Wik and Wik Way native title claim application was first filed on March 1994 and was Queensland's longest running claim.

In 2000 there was a determination that native title exists over the land and waters of Part A of the area covered by the application. Then in 2004, two determinations were made over part of Part B of the area covered by the application.

The current Wik and Wik Way Native Title Determination No. 4 covers 4,500 square kilometres of land and waters over which the Wik and Wik Way Peoples have maintained their traditional and customary connection. The determination area comprises several separate pastoral leases known as the Watson River Lease, the Kendall River Lease, the Piccaninny Plains Lease, the Merluna Lease and the Leconsfield Lease (also known as the Crystalvale Lease).

The waters covered by this determination are those parts of the Holroyd and Archer Rivers which adjoin parts of the boundary of particular leases and other waters associated with the leases.

Natural Resources and Mines Minister Andrew Cripps said the Queensland Government welcomed the decision. The determination is the 76th native title determination in Queensland and the 70th by consent.

The Wik & Wik Way People now possess native title rights over more than 28,000 around Aurukun and Weipa.

The chairman of the Cape York Land Council, Richie Ah Mat, says the negotiated agreement proves native title and pastoral leases can co-exist.

Details of Judgment

The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The court was satisfied that a determination of native title was within the power of the court.

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