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Greenwool & Ors on behalf of the Kowanyama People v State of Queensland [2012] FCA1377 (Kowanyama People Part C)
Date:	5 December 2012
Sub Category:	Consent Determination (Native Title Act)
Place:	Located on Cape York Peninsula
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State/Country:	Queensland, Australia
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	Located on the Cape York Peninsula in the town of Kowanyama in the State of Queensland.
Legal Status:	Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference:	Tribunal file no.: QCD2012/017 Federal Court no.: QUD6119/1998
Alternative Names:	Kowanyama People Part C
Subject Matter:	Access \| Native Title \| Recognition of Native Title or Traditional Ownership
URL:	http://www.nntt.gov.au/searchRegApps/NativeTitleRegisters/Pages/NNTR_details.aspx?NNTT_Fileno=QCD2012/017
Summary Information:
Between: GLENETTE GREENWOOL, GARY HUDSON, EVANS JOSIAH, GRIFFITH PATRICK, DENNIS MICHAEL, RAVIN GREENWOOL, JENNY PAUL, DONNA BRUMBY, PRISCILLA MAJOR, ROSLYN GILBERT, UNA CLAUDE, CORRINE DANIEL, KELVIN GREENWOOL, DOUGLAS ERIC, TEDDY BERNARD, ROSEMARY HENRY, CHRISTOPHER HENRY, ROGER INKERMAN, LYNDELL MICHELLE ANNE JIMMY, ROY DENNIS MAGGABLE, HAZEL PAUL, ANGELA FIONA EDWARDS, SHAUN KALK EDWARDS, MAY EDWARDS, LINDSAY EDWARDS, GLENNIS ROSE MUDD, SHENANE JAGO, COLIN LAWRENCE, ARTHUR LUKE, CHRISTINE LAWRENCE, IVAN JIMMY, SHIRLEY YAM, MARIA DICK AND ROBERT HOLNESS ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE; (APPLICANTS) and STATE OF QUEENSLAND; COMMONWEALTH OF AUSTRALIA; KOWANYAMA ABORIGINAL SHIRE COUNCIL; CARPENTARIA SHIRE COUNCIL; COOK SHIRE COUNCIL; TABLELANDS REGIONAL COUNCIL; ERGON ENERGY CORPORATION LIMITED; TELSTRA CORPORATION LIMITED; GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREWS WARD AND YAN WARD;HARVEST HOME HOLDINGS PTY LTD; MDH PTY LTD; DOUGLAS PRICE; and AIRSERVICES AUSTRALIA (RESPONDENTS) Judge: Dowsett J Where made:Kowanyama Determination: Native title exists in the entire determination area. The nature and extent of the native title rights and interests in the Determination Area are exclusive rights to land to possess, occupy, use and enjoy the land. The nature and extent of the native title rights and interests in relation to water in the Determination Area are non-exclusive rights to: (a) hung and fish in or on, and gather from, the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes; and (b) take and use the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes. Native title rights and interests do not exist in relation to 'minerals' as defined by the Minerals 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) and other resources legislation. All 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. Other rights and interests The relationship between the native title rights and interests described above and the other rights and interests is that: (a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests; (b) where the non-extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests: (i) 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 and interests to the extent of the inconsistency; and (ii) if the other rights and interests are later removed or otherwise permanently cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests; and (c) the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests. Definitions If a word or expression is not specifically defined in this Determination but is defined in the Native Title Act 1993 (Cth), it has the meaning given to it under that Act. In addition to the other words defined in this Determination, the words and expressions used have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions: - �Determination Area� means the land and waters described in Schedule 2 and shown on the plan in Schedule 3, and to the extent of any inconsistency between them, Schedule 2 prevails; - �Laws of the State and the Commonwealth� means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; - �Local Government� has the meaning given in the Local Government Act 2009 (Qld); and - �Water� has the meaning given to it in the Water Act 2000 (Qld) or any subsequent legislative instrument. Native title is held by The native title holders are the Kowanyama People who comprise those people known as the Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin Peoples. The Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples are those Aboriginal people who are: the cognatic descendants of: (i) Solomon Minyalk; (ii) Thin Mitin Mart; (iii) Min Yal Panaurin; (iv) Art Kadlaurin (v) any of the siblings Kal Koral, Kor Mart, Min Koko Taren or Mad Len; (vi) Pow Mon Alithanem; (vii) Kauan Kor Mar�pen; (viii) any of the siblings Paul, Rioor Biddy; (ix) Yor Kantl Yamen; (x) any of the siblings Mark, Barnabas or Kate; (xi) Arthur, the father of Smiler Misson; (xii) Luke; (xiii) any of the siblings Native, Wilson, Akul Edngan, Uyan or Ginger; (xiv) any of the siblings Major, Sergeant, Bobella or Gregory; (xv) Mickey; (xvi) Boandonolly (aka Puntanolli); (xvii) George Black (aka Thamil Polp); (xviii) either of the brothers�Barramundi� Charlie or Lamp; (xix) Gilbert; (xx) Eagleman, the father of Barney Jubilee; (xxi) Joe Highbury; (xxii) Jackson; (xxiii) Tent (aka Thol Kol Kith); (xxiv) Bruno (aka Wurrpwin) (xxv) Min Kawlto Tower Moilin; (xxvi) Wo Pam Mal Yamin; (xxvii) Mokara Hudson; (xxviii) either of the siblings George or Purt Ngon; (xxix) Bob Patterson; (xxx) Moses (aka War�luran); (xxxi) Yowalyamen; (xxxii) Jolly; (xxxiii) either Mailman or his siblings; (xxxiv) any of the siblings Stephen, Louie, Reubin (aka Robin), Jimmy Braddsley, Mabel Rio or Poppy; (xxxv) Old Mokara; (xxxvi) Taw Wil Yir; (xxxvii) Colin Dinghy; (xxxviii) Fred Dunbar; (xxxix) Alick (aka Alec and Kauwunbengk); (xl) Goanna (aka Melder); (xli) Pluto; (xlii) either Mundie Shalfo or hissister; (xliii) Piper; (xliv) Willie Daphney; (xlv) any of the siblings Fanny, Lucy Tommy, Waterloo, Elsie or Tommy Burns; (xlvi) Nipper; (xlvii) Dick; (xlviii) Peppo; (xlix) Ben; (l) Smiler; (li) Bernard; (lii) Monday; (liii) Kangaroo; (liv) Mosquito; (lv) either of the brothers Billy Flower or Goggle-Eye or their siblings; (lvi) Jimmy; (lvii) either of the brothers Rainbow Christie or Bowyang Charlie; (lviii) Nellie; (lix) either of the brothers Bob Dunbar or Bendigo or their siblings; (lx) any of the siblings Jimmy Koolatah, Coglin Dick, Kunjen Dick or George Murray; (lxi) Frank Yam; (lxii) Brumby (aka Jack Brumby) (lxiii) Old Mud; (lxiv) Charlie Inkerman; (lxv) any of the siblings Mimosa, Alison or May; or (lxvi) Maggie; or 2. recruited by adoption, in accordance with the traditional laws and customs of the Yir Yoront, Koko Bera, Kunjen and Koko Berrin Peoples. Registration of ILUAs The native title determination will take effect upon the following agreements being registered on the Register of Indigenous Land Use Agreements: - QI2013/004 - Kowanyama People and Ergon Energy ILUA. This ILUA was registered on the Register of Indigenous Land Use Agreements on 5 June 2013. The conditions attached to the determination have therefore now been met and the determination came into effect on 5 June 2013. Further Interests The parties consent that 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) and other resources legislation. 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. Other rights and interests that exist in the determination area include: 1. The rights and interests of the grantee and others under the Deed of Grant in Trust dated 23 July 1987 being Title Reference Number 21345064 and /or any Deed of Grant granted or regranted to Kowanyama Aboriginal Shire Council as grantee in substitution for, replacement of or in succession to the said Deed of Grant. 2. The rights and interests of the holder of a perpetual lease set out in detail at Schedule 4. (See attached). Any valid interests under an application under the Aboriginal and Torres Strait Islanders (Land Holding) Act 1985 (Qld) set out below: (1) Application No. 91/1987 (2) Application No. 94/1987 (3) Application No. 106/1989 The rights and interests of the Kowanyama Aboriginal Shire Council as the trustee under deed of grant No. 21345064, including as the grantor of any rights and interests under that deed of grant, granted on or before the date on which these orders are made. 5. The rights and interests of the State of Queensland (represented by the Department of Communities) under an Indigenous Land Use Agreement between the Native Title Holders and the State of Queensland (represented by the Department of Communities) entered on the Register of Indigenous Land Use Agreements on 25 May 2010. 6. The rights and interests of the State of Queensland and Kowanyama Aboriginal Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access roads. 7. The rights and interests of the Kowanyama Aboriginal Shire Council: (a) under the Local Government Act 2009 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be Council�s local government area; (b) as the: (i) lessor under any leases whether separately particularised in these Orders or not, (ii) grantor of any licences or other rights and interests whether separately particularised in these Orders or not, (iii) holder of any estate or interest in land, and as trustee of any reserves, that exist in the in the Determination Area ; (c) as the owner, operator or holder of any interest (including an equitable interest) in infrastructure, facilities, or other site improvements, including but not limited to: (i) constructed roads that have not been dedicated, except for those determined by Council not to be operated by it; (ii) gravel pits operated by Council; (iii) water bores and other infrastructure for the supply of water; (iv) drainage facilities; (v) cemetery and cemetery related facilities; (vi) sand extraction areas; (vii) sewerage ponds and infrastructure; (viii) Council staff housing; (ix) Community housing, Senior�s housing and Women�s shelter; (x) the Kowanyama guesthouse and convenience store; (xi) the multi-purpose recreational centre and the old community hall; (xii) the Kowanyama shopping centre complex and canteen; (xiii) the Training centre; (xiv) Workshops, Depot, Batching plant, Dog pound and waste facilities; (xv) Recreational facilities; and (xvi) Council offices. (d) to enter the Determination Area by its employees, agents or contractors to: (i) exercise any of the rights and interests referred to in paragraphs 5 and 6 of this Schedule; undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management, fire management and management of land relating to the operation of the airstrip in the Kowanyama township; and (iii) operate, inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph 7 (c) of this Schedule. 8. The rights and interests of the parties under the ILUA between Ergon Energy Corporation Limited and the Kowanyama People entitled �Ergon Energy Indigenous Land Use Agreement� authorised by the Kowanyama People on 20 November 2012. 9. The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including the rights and interests existing by reason of the force and operation of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under the following legislation: (a) the Forestry Act 1959 (Qld); (b) the Water Act 2000 (Qld); (c) the Integrated Planning Act 1997 (Qld) or the Sustainable Planning Act 2009 (Qld); (d) the Fire and Rescue Service Act 1990 (Qld) and the Ambulance Service Act 1991 (Qld); and (e) the Land Act 1994 (Qld). 10. The rights and interests of Telstra Corporation Limited: (a) as the owner or operator of telecommunications facilities installed within the Determination Area; (b) 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) including rights: (i) to inspect land; (ii) to install and operate telecommunications facilities; and (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and (d) under any lease, licence, access agreement or easement relating to its telecommunication facilities in the Determination Area, including Telstra�s lease in respect of the area depicted as Lease X on survey plan 230796. 11. The interests of Airservices Australia under registered lease No. 601502078 comprising Lease A on Plan DB17 in Lot 19 on Plan DB16 and the Deed of Consent between Airservices Australia and the Kowanyama People authorised by the Kowanyama People on 20 November 2012. 12. The interests of the Commonwealth of Australia under registered lot No. 704086300 comprising Lease A in Lot 19 on DB16 on SP123483. 13. The interests of Ergon Energy Corporation Limited ACN 087 646 062: (1) as the owner and operator of any �Works� as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area; (2) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); (3) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act (Qld); including: rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made; (ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and (iii) to inspect, maintain and manage any Works in the Determination Area; and (4) under registered lease No 708684418 comprising Lease B in Lot 19 on DB16 on SP 143106. 14. The interests of the State of Queensland (represented by the Department of Emergency Services) under registered lease No. 708754759 comprising Lease A in Lot 19 on DB16 on SP154654. 15. The interests of Evelyn Mackie under registered lease No. 712403445 comprising Lease I in Lot 9 on DB16 on SP236898. 16. The interests of the State of Queensland (represented by the Department of Communities) under registered lease No. 713025249 comprising Lease C in Lot 19 on DB16 on SP218101. 17. The interests of the State of Queensland (represented by the Department of Communities) under registered lease No. 713727720 comprising Lease G in Lot 19 on DB16 on SP236894 and Leases FE, and EF in Lot 19 on DB16 on SP236895. 18. Any other rights and interests: (1) held by the State or Commonwealth; or (2) existing by reason of the force and operation of the Laws of the State and the Commonwealth. Further provisions The native title is not held in trust. The Abm Elgoring Ambung Aboriginal Corporation, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is to: (i) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and (ii) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth)