Miller on behalf of the Birriah People v State of Queensland (No 2) [2016] FCA 1434

Northern Queensland Region, near Burdekin Falls Dam.

Registered on the National Native Title Register.

Miller on behalf of the Birriah People v State of Queensland (No 2) [2016] FCA 1434

Between: David Miller, Frank Fisher, Colin McLennan, Gracelyn Smallwood and Algon Walsh Jnr on behalf of the Birriah People (APPLICANTS) and State of Queensland, Castle Hill Exotics Pty Ltd and Ergon Energy Corporation Limited] (RESPONDENTS)

Judge: Reeves J

Where made: Federal Court of Australia

Determination:

Native title exists in part of the determination area. The native title consists of exclusive and non-exclusive native title rights and interests.

Native title is held by the Birriah People.

Exclusive native title rights:

The Birriah People hold the right to exclusive possession, occupation, use, and enjoyment over the area of Lot 3 on SP289533.

Non-exclusive native title rights and interests:

In relation to water, the native title holders have non-exclusive rights for personal, domestic and non-commercial purposes, to:

• hunt, fish and gather from the water;
• take and use the natural resources of the water
  
• take and use the water.

No native title rights and interests exist in relation to:

• minerals, as defined in the Mineral Resources Act 1989 (Qld); or
  
• petroleum, as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The native title is subject to the laws of the State of Queensland and the commonwealth.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the native title rights and interests.

Non-native title rights and interests that exist within the determination area:

1. the rights and interests of the parties under the Birriah People and Castle Hill Exotics Pty Ltd Indigenous Land Use Agreement (area agreement)(QI2016/046)
2. the rights and interests of Ergon Energy Ltd as the owner and operator of any works and as a distribution entity under the Electricity Act 1994 (Qld). These rights include any already in existence before this agreement was made, including the right to enter, inspect, maintain and manage any work in the determination area.
   
3. any other rights and interests held by the State of Queensland or Commonwealth of Australia (including those that exist by the force and operation of the laws of the State and Commonwealth)

For more information, see Schedule 4 of the determination.

Areas within the determination area where native title does not exist:

• all of the land and waters within Lot 1 on SP289533;
• all of the land and waters within Lot 2 on SP28953; and
• land or waters where any public work is or was located.
  

The Birriah Aboriginal Corporation (RNTBC), as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth). The native title is held in trust for the native title holders.

Access to the full text of the determination, its annexure and schedules are available via the URL link.

Background

On 2 April 1998, the Birriah People lodged an application for a determination of native title (the Birriah application) with the National Native Title Tribunal [1]. Following amendments to the Native Title Act 1993 (Cth), the application proceeded in the Federal Court of Australia. The Birriah application was amended a number of times over the years and the determination area was eventually divided into two parts: Birriah Part A and Birriah Part B [2]. The division occurred because a dispute in relation to the Part B area arose. The determination over the Birriah Part A area was not affected and was able to proceed[3]. This determination (over the Part B area) follows the successful outcome over Part A (Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271). Reeves J described the two determinations as 'essentially the same' in regard to the procedural and substantive conditions required for the making of a consent determination [6]. In his reasons for the decision over Birriah Part A, Logan J set out a detailed summary of the Birriah people's evidence of native title [18]. Since the same evidence is relied upon with respect to Birriah Part B, it was unnecessary for Reeves J to do more than refer to Logan J's analysis [12].

Details of the Judgment

The parties' consent to this determination was dependent upon the Birriah People and Castle Hill Exotics Pty Ltd Indigenous Land Use Agreement (ILUA) (QI2016/046) being entered into the Register of Indigenous Land Use Agreements. This was done on 10 March 2017.

The terms of an agreement for recognition of native title over Part B were reached by the consent of the parties. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) and the court was satisfied that a determination of native title was within the power of the court.

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