Pegler on behalf of the Widi People of the Nebo Estate #1 v State of Queensland (No 2) [2019] FCA 1159

Region west of Mackay. 

Registered with the National Native Title Tribunal on the Native Title Register 31 July 2019. 

Between: Pegler on behalf of the Widi People of the Nebo Estate #1 (Applicant) and State of Queensland (First Respondent) Isaac Regional Council (Second Respondent) Mackay Regional Council (Third Respondent)

Judge: Rangiah J

Determination:

Native title exists in part of the determination area

Native title holders

Native Title is held by the Widi People.

Exclusive native title rights over part of the determination area:

Other than in relation to water, the Widi people have the right to possession, occupation, use and enjoyment of the area (described in Part 1 of Schedule 1) to the exclusion of all others.

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

In relation to water in the area (described in Part 1 of Schedule 1), the Widi people have non- exclusive rights to:

• hunt, fish and gather from the Water of the area;
• take and use the Natural Resources of the Water in the area; and
• take and use the Water of the area,

for personal, domestic and non-commercial communal purposes.

In relation to the land and waters (described in Part 2 of Schedule 1) the Widi people have non- exclusive rights to:  

• access, be present on, move about on and travel over the area;
• camp, and live temporarily on the area as 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 the Water of the area for personal, domestic and non-commercial communal purposes;
• conduct ceremonies on the area;
• be buried and bury native title holders within the area;
• maintain places of importance and areas of significance to the 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; (j) 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.

Non- native title rights and other interests in the determination area including the rights and interests of:

1. the parties to the Widi People and Exe Creek (Turrawulla) Pastoral Holding ILUA, and The Widi People/Cloverly ILUA
2. the parties to the agreement between James Butterworth, Ronald Watson, Marilyn Duncan, Gregory Dunrobin, Kenneth Dodd, Graham Sauney, Oswald Skeen, Frank Tiers, Maurice Dallachy, Linda Wailu and Eileen Pegler on their own behalf and on behalf of the Wiri People and Arrow Energy Pty Ltd;
3. the Wiri RNTC (the Registered Native Title Claimant for the Wiri People Core Country Native Title Claim and QGC Pty Ltd;
4. Telstra Corporation Limited created under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);
5. Ergon Energy Corporation created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld);
6. Aurizon Network Pty Ltd (ACN 132 181 116) including under the Transport Infrastructure Act 1994 (Qld);
7. The holder of the easements: Lot A on Crown Plan 866130; Lots P, Q, R on Crown Plan 866134; Lot S on Crown Plan 866135; Lots T and U on Crown Plan 866136;
8. Peabody West Burton Pty Ltd and Peabody Energy Australia PCI Rush Pty Ltd, granted under theMineral Resources Act 1989 (Qld).
9. of Queensland Coal Pty Limited, Hail Creek Coal Holdings Pty Limited, Nippon Steel Australia Pty Limited, Marubeni Coal Pty Ltd and Sumisho Coal Development Queensland Pty Ltd granted under the Mining Act 1968-1975 (Qld) and administered under the Mineral Resources Act 1989 (Qld) for access, including for water supply and as registered lessees under the Land Title Act 1994 (Qld) and the Land Act 1994 (Qld) and as registered permittees;
10. Isaac Regional Council and Mackay Regional Council within their local government area, including under the Local Government Act, the Stock Route Management Act 2002 (Qld) and under any other legislation;
11. Airservices Australia, granted under the Land Act 1962 (Qld); and under a licence from the registered lessee;
12. Sally Borg granted under the Land Act 1994;
13. Andrew Thomas Deguara under a permit to occupy over Lot 8 CI66;
14. Queensland Electricity Transmission Corporation Limited trading as Powerlink Queensland, under the Electricity Act 1994 (Qld) and under any lease, licence, easement, permit or agreement;
15. the rights and interests of SunWater Limited;
16. Eungella Water Pipeline Pty Ltd under their easements over various Lots
17. members of the public under law including any existing public access to waterways, beaches and stock routes under s 212(2) of the Native Title Act 1993 (Cth) and s18 of the Native Title Act (Queensland) Act 1993 (Qld); and
18. any other rights and interests held by the State of Queensland or Commonwealth of Australia, or existing under the operation of the laws of the State and the Commonwealth.

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

Widi Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as an agent for the native title holders. The native title is not held in trust for the native title holders. 

Full text of the determination is available via the URL link above.

Background

The first application made by Pegler on behalf of the Widi People of the Nebo Estate #1 for a determination of native title over the area was filed on 29 September 2006. A second amended application was filed on 17 July 2019 [11]. 

All parties to the application reached an agreement, made under s 87(2) of the Native Title Act 1993 (Cth), that native title exists in the claimed area, and including as to what the nature and extent of the those rights are associated with the area. This agreement was filed with the Court on 25 July 2019 [13]. 

Evidence which was filed in the Court, in the form of a report and affidavits, provided sufficient evidence to support the claim that the Widi people had maintained a set of traditional laws and customs allowed recognition of their 'right to possess, occupy and use and enjoy the land and waters in the claim area' [20]. 

Details of Judgment

In accordance with section 87 Native Title Act 1993 (Cth), the Court was able to make an order without a hearing. This is because the Court was satisfied that; the parties had freely entered the agreement, they had agreed on the nature and extent of the rights, the rights were unambiguous, there were no current native title application proceedings that covered the claim area and that the State of Queensland were interested and active in negotiations and in the consideration of material [27].    

The Court agreed with the applicant's submission that the native title should be held by the Widi Aboriginal Corporation as the body corporate under section 57(2) of the Native Title Act 1993 (Cth) and not be held on trust.

Widi and Birri Gubba elder Graham 'Cookie' Sauney said that the claim would provide opportunity for economic development, sustainability and equity into the future for the Widi people. He stated that 'we must also continue to care for country, protect our rights and interests, look after the needs of the local community and find ways how we can all live together' (Queensland Government 2019). 

Native title exists in the entire determination area.

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