Anderson on behalf of the Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821

Central Queensland

Registered on National Native Title Register.

Anderson on the behalf of the Wulli Wulli people v State of Queensland (No 3) [2015] FCA 821

Between:
Elliot Anderson, Elizabeth Blucher, Robert Bond, Robert Clancy, Brian Clancy, Desmond Dodd, Annette Fuller, Elizabeth Law, Drew Millar, Marjorie Reid, Ivan Salter, Neil Salter, Celeste Williams, Jeffrey Williams, Jill Wilson (Applicants) and the State of Queensland, Banana Shire Council, North Burnett Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited (ACN 33 051 775), Anglo Coal (Dawson South) Pty Ltd (formerly   Theodore Coal (Assets) Pty Ltd, QCoal Pty Ltd, Saantos Qnt Pty Ltd (ABN 33 083 077), Anglo Coal (Theodore South) Pty Ltd (formerly Anglo Coal  (Dawson) Pty Ltd), Camboon Race & Recreational Club Inc, Cecily Helen Bradshaw, Dale Robert Bradshaw, Sandra Lee Clarke, Thomas John Clarke, Janelle Elizabeth Connolly, John Stephen Cruickshank, Penelope Jane Floods, Lurine Anne Graving, Gyranda Nominees Pty Ltd, Judith Ann Hamilton, Philip Victor Hamilton, Cheryl Mary Lamb, Stephen John Lamb, Arthur Andrew McIntyre, Cameron Andrew Reid McIntyre, Malcolm Thomas McIntyre, Gordon Ross Muirhead, Marjorie Mason, David Allan White, Lois Ann White, Errol Joseph Conachan, Thomas Charles McMahon, Gary Thomas Palmer, Keith Douglas Palmer (Respondents).

Judge: Collier J

Where Made: Queensland

Determination:

Native title exists in the determination area: It consists of non-exclusive rights.

Native Title is held by the Wulli Wulli People.

Non-exclusive native title rights and interests:

The Wulli Wulli People have the following non-exclusive rights and interests in Part 1 of the determination area:

• access, be present on, move on and travel over the area;
• camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
• hunt, fish, and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
• take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
• conduct ceremonies on the area;
• be buried and bury native title holders within the area;
• maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
• teach on the area the physical and spiritual attributes of the area;
• hold meetings on the area; and
• light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

The Wulli Wulli People have the following non-exclusive rights and interests in Part 2 of the determination area:

• access, be present on, move about on and travel over the area;
• gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
• teach on the area the physical and spiritual attributes of the area.
  

The Wulli Wulli People have the following non-exclusive rights and interests in Part 3 of the determination area:

• access, be present on, move about on and travel over the area;
• hunt, fish, gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; and
• teach on the area the physical and spiritual attributes of the area.
  

These non-exclusive native title rights are subject to the laws of the Commonwealth, laws of the State of Queensland, traditional laws acknowledged and traditional customs observed by native title holders, and terms and conditions of the agreements referred to in Paragraph 1 of the Schedule 4.

Additionally, these non-exclusive rights do not create any rights in relation to possession, occupation, use or enjoyment to the exclusion of all others.

Also, there are no native title rights in or in relation to minerals, as defined by the Minerals Resources Act 1989 (Qld) and petroleum, as defined by Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The non-native title rights and interests in the determination area are as follows:

Rights and interests created as parties to the following Agreements and under the legislation-

• the Wulli Wulli People Protected Areas ILUA authorised on 27 June 2015;
• the Nathan Dam, Glebe Weir Raising and Pipelines Project ILUA dated 14 January 2013;
• the Cracow Project ILUA, NNTT #Q12002/053, registered 23 June 2003;
• the agreement between applicants and Banana Shire Council authorised on 27 June 2015;
• the agreement between applicants and Ergon Energy Co. authorised on 27 June 2015;
• the Dawson Vale East ILUA authorised on 27 June 2015;
• the Gyranda ILUA authoirised on 27 June 2015;
• the Onkaparinga agreement authorised on 27 June 2015;
• the Wondekai ILUA authoirised on 27 June 2015;
• the Woodline South ILUA authorised on 27 Jiune 2015;
  
• the Woolton ILUA authoirised on 27 June 2015;
  
• the rights of Sunshine 685 Pty Ltd and Santos QNT Pty Ltd as the holders of an interest in ATP685, under Petroleum Act 1923 (Qld);
  
• the rights of Anglo Coal (Theodore South) Pty Ltd as the holder of an interest in MDL and as the holder of an interest in EPC793, EPC884, MDL365, ML5657, and EPC1229, under Mineral Resources Act 1989 (Qld);
• the rights of Cattle Creek Coal Pty Ltd as the holder of an interest in EPC631, EPC 1024 and EPC1133, under Minerals Resources Act 1989 (Qld);
• the rights of Lion Mining Pty Ltd as the holder of an interest in EPM15981, ML3219,ML3221, ML3227, ML 3229, ML3230, ML3231, ML3232, ML3234, ML80024, ML80088, ML80089, ML80144, under the Minerals Resources Act 1989 (Qld);
• the rights of Australia Pacific LNG Pty Limited as the lessee of Lot 4031 on Survey Plan 212959;
• the rights of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the area;
• the rights of Ergon Energy Corporation as the owner and operator of works in the area;
• the rights of SunWater Limited as holders of Lot 15 on LE312 and Lot 14 on LE300, and various easements in SP104408, and as the owner and occupier of weirs and other infrastructure facilities;
• the rights of the State of Queensland, the Banana Shire Council and the North Burnett Regional Council;
• the rights of the State of Queensland, trustees and the public in relation to Reserves;
• the rights of the Banana Shire and the North Burnett Regional Councils;
• the rights of the state and the commonwealth under various legislations; and
• the rights of the public, including the public right to fish and to navigate the waters.

In case of conflict the non-native title rights and interests prevail.

Where there is conflict, the native title rights can not be enjoyed or exercised for so long as the conflicting non-native title rights exist, but native title continues to exist in its entirety.

Prior to exercising native title rights on state forest land over which a term lease for grazing purposes has been granted, the native title holders must contact the leaseholder and discuss any safety issues associated with the proposed exercise of native title rights and interests and make reasonable efforts to agree on the route of access.

The Wulli Wulli Nation Aboriginal Corporation Registered Native Title Body Corporate holds the native title rights and interests in the trust for the Wulli Wulli People.

Background:

The application for a determination native title was initially lodged in 2000. 

It was amended in December 2009 and then further amended before being filed finally on 27 July 2015.

The amendment of these applications and the determination area as the subject matter were not in dispute.

Judgment details:

The Court took into consideration all the evidence presented and was satisfied that the applicants have native title rights and interests in the determination area. The Court was also satisfied that the agreements entered between the parties had been freely entered on a well-informed basis.

As part of the determination, the Wulli Wulli people have entered into Indigenous Land use Agreements (ILUAs) with various parties including Queensland Government, Ergon Energy, Pastoral Holders, and Shire Councils.

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