Lightning on behalf of the Nywaigi People v State of Queensland [2018] FCA 493

Northern Queensland

Registered on the National Native Title Register of Applications and Determinations

Between: Lightning on behalf of the Nywiagi People [APPLICANTS] and State of Queensland [RESPONDENTS]

Judge: Robertson J

Determination:

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

Native title is held by the Nywaigi People.

The exclusive native title rights that exist within the determination area include:

• the right to possession, occupation, use and enjoyment of the area to the exclusion of all others (not including water).

The non-native title rights and interests that exist within the determination area include:

• access, move and travel over the area;
• camping and living temporarily in the area;
• build temporary shelters for the purposes of camping and living temporarily on the area;
• hunt, fish and gather on the land and waters for personal, domestic and non-commercial communal purposes;
• take, use and share natural resources from the land and waters for personal, domestic and non-commercial communal purposes;
• take and use the water for personal, domestic and non-commercial communal purposes;
• hold meetings, conduct ceremonies, be buried and bury native title holders within the area;
• maintain places of importance and areas of significance under traditional laws and customs and protect those places from physical harm; and
• light fires on the area for domestic purposes including cooking, but not for hunting or clearing vegetation.

The non-exclusive native title rights and interests that exist within the determination area include:

• the non-exclusive rights to; hunt, fish and gather from the water in the area;
• take and use the water, and the natural resources of the water; and
• for personal, domestic and non-commercial communal purposes.

Other interests in the determination area:

There are other interests within the determination area (outlined in Schedule 4) in regard to buildings and infrastructure. This includes the rights and interests of Hinchinbrook Shire and Townsville City Councils as lessors of any leases and grantor of licenses that were validly entered into prior to this order. They allow access in order to tend to infrastructure, roads, drainage, and facilities that are operated by the Councils.

There are also interests and rights possessed by Telstra Coproration Limited, Ergon Energy Corporation, and Powerlink Queensland, as the owners of telecommunications/ electricity facilities in the determination area, to inspect, enter and tend to facilities on the land.

To the extent that these other interests in the area are inconsistent with the continued enjoyment or exercise of native title rights and interests in the determination area, the native title continues to exist in its entirety but will not have any effect on the other interests for as long as they exist.

Warga Badda Nywaigi Aboriginal Corporation RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders.

Details of Judgement:

The Nywaigi people originally filed an application to seek determination of native title on 10 April 2015. All parties reached an agreement in regard to the extent of the native title rights and interests in the determination area. The agreement, made under section 87(2) of the Native Title Act 1993 (Cth), was filed on 6 April 2018.

The court made orders by consent which recognise that the Nywaigi people have, and always have had, native title rights and interests in land and waters within the determination area.

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