Clancy on behalf of the Auburn Hawkwood People and State of Queensland [2019] FCA 1908

The Determination Area is located within the jurisdiction of the Banana Shire Council, North Burnett Regional Council, South Burnett Regional Council and Western Downs Regional Council.

Registered on the National Native Title Register.

Clancy on behalf of the Auburn Hawkwood People and State of Queensland [2019] FCA 1908

Between: Robert Clancy & Ors on behalf of the Auburn Hawkwood People (APPLICANTS) and the State of Queensland & Ors (RESPONDENTS)

Judge: Robertson J

Where Made: Federal Court of Australia

Determination:

Native title exists in parts of the determination area.

Native title is held by the Auburn Hawkwood People.

The Auburn Hawkwood People are the biological descendants of the people described in Schedule 1 of the Agreement.

The exclusive native title rights over parts of the determination area, namely:

The Auburn Hawkwood People hold exclusive native title rights to the possession, occupation, use and enjoyment of parts of the land in the determination area. For more information on the exclusive native title areas see Schedule 4, Part 1 attached below in documents.

The non-exclusive native title rights over parts of the determination area, namely:

Where the Auburn Hawkwood People hold exclusive native title rights over land in the determination area, they hold non-exclusive native title rights over water, for personal, domestic and non-commercial purposes. The Auburn Hawkwood People hold the non-exclusive native title right to:

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

In all other parts of the determination area not described in Schedule 4, Part 1, the Auburn Hawkwood people hold non-exclusive native title rights over the land and waters to:

• access, be present on, move about on and travel
  
• camp and live temporarily, including building temporary shelters
• hunt, fish and gather on the land and waters for personal, domestic and non-commercial purposes
• take and use natural resources for personal, domestic and non-commercial purposes
• take and use the water for personal, domestic and non-commercial purposes
• conduct ceremonies
• be buried and bury native title holders
• maintain places of importance and areas of significance under the traditional laws and customs, including to protect those places from physical harm
• teach the physical and spiritual attributes of the area
• hold meetings
• light fires for domestic purposes including cooking

For more information on the non-exclusive native title areas see Schedule 4, Part 2 attached below in documents.

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

The rights and interests of the parties to:

• the Wakka Wakka 2 and Tarong ILUA (QI2008/027)
• Djaku-nde and Jangerie Jangerie and Wakka Wakka People and QGC Pty Ltd ILUA (QI2010/005); and
  
• Djaku-nde and Jangerie Jangerie and Wakka Wakka People and QGC Pty Ltd (Balance Area) ILUA (QI2010/014).
  

The rights and interests of Telstra Corporation Limited as owner and operator of telecommunication facilities, to:

• inspect the land
• install, occupy, maintain, remove, replace and operate facilities
• enable employees, agents and contractors to access facilities; and
• fulfill any lease, license, easement or access agreement relating to its facilities

The rights and interests of Ergon Energy Corporation Limited as owner and operator of electricity within the determination area to:

• inspect, maintain and manage any work in the area; and
  
• enable employees, agents and contractors to access facilities

The rights and interests of the Banana Shire Council, Western Downs Regional Council, North Burnett Regional Council and South Burnett Regional Council as the local Government within their respective part of the determination area, including:

• their powers, functions and responsibilities under local Government Acts
• their rights and interests under any license, lease, access agreement or easement
• their rights to use, operate, maintain and restore infrastructure, earthworks, facilities and improvements; and
  
• their rights under any agreements with local Governments and third parties

The rights and interests of the public arising under common law to fish and navigate in the determination area, and any other rights held by the State of Queensland and the Commonwealth.

There are no native title rights in relation to:

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

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

Auburn Hawkwood People Aboriginal Corporation, 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. The native title is held in trust for the native title holders.

Background

The consent determination concludes a long and complicated legal process with claims by the Wulli Wulli People lodged with the National Native Title Tribunal as far back as 1997. The application for this determination was filed back in September 2011 [2]. The determination recognises the Auburn Hawkwood People's exclusive native title rights and interests over 159 hectares and non-exclusive native title rights over more than 170 hectares of the land (Schedule 4).

Details of the Judgment

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Auburn Hawkwood People in relation to part of the land and waters covered by the Auburn Hawkwood People Application. 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.

Related Entries

Documents

Glossary