Anderson on behalf of the Wulli Wulli People v State of Queensland (No 4) [2017] FCA 800

Theodore and Cracow

Registered on National Native Title Register

Anderson on behalf of Wulli Wulli People v State of Queensland (No 4) [2017] FCA 800

Between:

Elliot Anderson, Elizabeth Blucher, Robert Bond, Brian Clancy, Robert Clancy, Desmond Dodd, Elizabeth Law, Ivan Saltner, Neil Saltner and Jeffrey Williams on behalf of Wulli Wulli People (Applicants) and State of Queensland, Banana Shire Council and Ergon Energy Corporation Ltd (Respondents).

Judge: Collier J

Where made: Queensland

Determination:

Native title exists in the Determination area It includes exclusive and non-exclusive rights.

Native Title is held by the Wulli Wulli People

Exclusive native title rights and interests

The Wulli Wulli people have the exclusive rights and interests in relation to the land and waters described in Part 1 of Schedule 1 as follows:

• other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of others; and
• in relation to water, non-exclusive rights to - hunt, fish and gather from the water of the area, take and use the natural resources of the water of the area, and take and use the Water of the area, for personal, domestic and non-commercial communal purposes.

Non-exclusive native title rights and interests

The Wulli Wulli people have the following non-exclusive rights and interests in relation to the land and waters described in Part 2 of Schedule 1:

• access, be present on, move about on and travel over the area;
• camp, and live temporarily on the area as a 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;
• take and use water of the area for personal, domestic and non-commercial communal purposes;
• conduct ceremonies on the area;
• be buried and bury the native title holders in the area;
• maintain places of importance and area of significance to 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.

These non-exclusive native title rights are subject to the Laws of the Commonwealth, the Laws of the State of Queensland, and traditional laws acknowledged and traditional customs observed by Native Title holders.

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

Also, there are no native title rights in or in relation to minerals, as defined by 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 of the Banana Shire Council and the applicants on behalf of the Wulli Wulli people as parties to the agreement (Wulli Wulli People and Banana Shire Council Indigenous Land Use Agreement) registered on 29 January 2016;
  
• rights of the Ergon Energy Co. Ltd and the applicants on behalf of Wulli Wulli people as parties to the agreement (Ergon Energy and Wulli Wulli People Indigenous Land Use Agreement) registered on 29 January 2016;
  
• rights of Ergon Energy Co. Ltd as owner and operator of any "works" under Electricity Act 1994 (Qld);
• rights of Ergon Energy Co. Ltd as distribution entity and holder of distribution authority under the Electricity Act 1994 (Qld);
• rights of Ergon Energy Co. Ltd created under Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), as well as rights under any agreement in the determination area;
  
• rights of Banana Shire Council as a local government under the Local Government Act 2009 (Qld), as having interest in land and waters, rights as owners and operators of infrastructure, structures, earthworks, access works, facilities and other improvements, rights under agreements between local governments and third parties, including rights of employees, agents band contractors to enter for the purpose of performing their powers in determination area;
  
• rights and interests of the members of the public under the common law, including but not limited to the public right to fish;
• rights and interests of the public to access to and enjoyment of waterways, beds and banks or foreshores of waterways, stock routes and areas that were public places at the end if 31 December 1993
• any other rights held by Commonwealth of Australia, State of Queensland, or existing under the laws of the Commonwealth of Australia and the state of Queensland.
  

In case of conflict

Where there is a conflict, the native title rights cannot be enjoyed or exercised for so long as the conflicting non-native title rights exist, but the native title rights continue to exist in their entirety. The non-native title rights and interests, and their exercise prevail over any exercise of native title interests.

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

Background:

In Anderson on behalf of Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821, the parties did not reach agreement in relation to the 27 parcels of land, known as the Balance area, and the subject matter of this determination. After Wulli Wulli (No.3) was determined, the parties continued discussions in relation to the Balance Area.The parties reached agreement on 10 July 2017, and then lodged the application for this determination. [Anderson on behalf of Wulli Wulli People v State of Queensland (No. 4) [2017] FCA 800 [2]]. This Balance Area is described in Schedule 1 of the determination.

Judgment Details:

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

Alongside the negotiation of this determination, the Wulli Wulli people have entered into agreements with the State of Queensland, Banana Shire Council and Ergon Energy Corporation Ltd.

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