Mooney on behalf of the Yuwibara People and State of Queensland [2020] FCA 170

Central Coast Region

Registered on the National Native Title Register of Native Title Determinations

Mooney on behalf of the Yuwibara People and State of Queensland [2020] FCA 170

Between

Gary Theodore Mooney, Jenifer Olive Darr and Melanie Roseveen Kemp on behalf of the Yuwibara People (Applicants) and the State of Queensland, the Mackay Regional Council, Aurizon Property Proprietary Limited, North Queensland Bulk Ports Corporation, Ergon Energy Corporation Limited, Telstra Corporation Limited, SunWater Limited, Kim Frances Borg, Robert John Borg, Norman George Ladley, Sharon Lillian Ladley, Gary Andrew McDermott, Colin Edward Byrnes, Anthony John Collard, Noel Robert Gray, Russel William Marriage and Michael Wayne Wood (Respondents).

Judge: Robertson J

Where made: Queensland

Determination:

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

Native title is held by the Bar-Barrum People.

Non-exclusive native title rights and interests that exist in the determination area include:

• the right to hunt, fish and gather from the water of the area;
• the right to take natural resources from the water in the area;
• take the water for non-commercial communal purposes;
  
• the right to access, be present on and travel over the area;
• the right to camp, live temporarily and build shelters on the area;
• the right to conduct ceremony, be buried and bury native title holders within the area;
• the right to maintain places of cultural significance under traditional laws and customs, and protect those areas from physical harm;
• the right to hold meetings and teach the physical and spiritual attributes of the area;
• the right to light fires for domestic purposes, including cooking,but not for hunting or the clearance of land;
• take seawater of the area for non-commercial communal purposes;

These non-exclusive native title rights are subject to the laws of the Commonwealth and the State of Queensland, and the traditional law and customs of the Yuwibara People.

These non-exclusive rights do not create rights 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).

Non-exclusive rights do not confer possession, occupation, use, or enjoyment to the exclusion of all others.

Non-native title rights and interests that exist in the determination area, as outlined in schedule 4, include those:

• of Telstra Corporation Limited, as the owner or operator of telecommunications facilities under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), and the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
• of Ergon Energy Corporation, as defined in the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
• of North Queensland Bulk Ports Corporation;
• of Aurizon Network Proprietary Limited in relation to the Transport Infrastructure Act 1994 (Qld);
• of holders of easements over the determination area;
• of Mackay Regional Council;
• of the Great Barrier Reef Marine Park Authority and of any other person under the Great Barrier Reef Marine Park Act 1975 (Cth), Great Barrier Reef Marine Park Regulations 2019 (Cth), the Great Barrier Reef Marine Park (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth), and the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth);
• of the Australian Maritime Safety Authority under the Australian Maritime Safety Authority Act 1990 (Cth);
• of the State of Queensland and the Mackay Regional Council to access, use, operate dedicated roads in the Determination Area;
• of the State of Queensland in relation to Reserves; and
• of public access under the laws of the state and commonwealth.

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

The Yuwi Aboriginal Corporation as the prescribed body corporate is to perform functions required under the Native Title Act 1993 (Cth) and to act as trustee of the native title interests for the native title holders.

Background:

This claim was filed on the 29 October 2013.

The parties' agreement to the terms of the determination were underpinned by Dr Alison Pembroke's expert anthropological evidence [12]. Her report detailed the traditional laws and customs maintained by the Yuwibara People [14]. This report was accepted as sound and credible and "rooted in reality" by Robertson J who stated that the evidence shows that the Yuwibara People today are an organised society that possesses native title rights and interests in accordance with observed and acknowledged traditional laws and customs [25, 31].

Judgment Details:

The parties agreed to the recognition of the Yuwibara People's native title. 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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