Sailor on behalf of the Wangkamahdla People v The State of Queensland [2021] FCA 790

Mulligan River Region

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Allan Sailor, Avelina Tarrago, Christine Doyle, Isabel Tarrago, Kerry Quartpot, Mona Aplin, and Trevor Dempsey on behalf of the Wangkamahdla People (Applicant) and State of Queensland (First Respondent); Commonwealth of Australia (Second Respondent); Boulia Shire Council (and others named in the Schedule) (Third Respondent). 

Judge: Rangiah J. 

Determination:

Native title exists in the entire determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Wangkamahdla People

Exclusive native title rights and interests exist over part of the determination area 

With the exception of water, this is the right to possession, occupation, use, and enjoyment of the area, described in Part 1 of Schedule 4, to the exclusion of all others.

In relation to water, the Wangkamahddla People hold non-exclusive rights to:

1. hunt, fish, and gather from the water of the area;
2. take the natural resources of the water in the area; and
3. take the water of the area for personal, domestic and non-commercial communal purposes.

Non-exclusive native title rights and interests exist over part of the determination area 

These non-exclusive rights exist in the area described in Part 2 Schedule 4 and as depicted in Schedule 6. They include the rights to:

• access the area;
• camp, build shelter, and temporarily live on the area;
• hunt, fish, gather, and take natural resources from the land waters of the area; 
• take water for personal, domestic, and non-commercial purposes; 
• conduct ceremonies on the area; 
• bury Native Title Holders within the area; 
• maintain areas of significance to the native title holders under their traditional laws and customs;
• teach and 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.

Other rights and interests in the determination area include:

These other rights and interests exist over the area described in Schedule 2 and include those held by:

• holders of rolling term leases for grazing purposes under the Land Act 1962 (QLD) or Land Act 1994 (QLD) over Adria Downs; Cluny; Glengyle; Glenormiston; Marion Downs;
• holders of rolling term leases for nature conservation purposes under the Land Act 1962 (QLD) or Land Act 1994 (QLD) over Cravens Peak Station and Ethabuka Station; 
• Telstra Corporation Limited ACN 051 775 556: as the owner or operator of telecommunications facilities within the Determination area, to inspect the land, install, occupy and operate telecommunications facilities under the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth), and the Telecommunications Act 1997 (Cth);
• Ergon Energy Corporation ACN 087 646 062: as the owner and operator of any Works (as that term is defined in the Electricity Act 1994 (QLD) within the Determination Area. 
• Diamantina Shire Council and Boulia Shire Council (Council): as the lessor, grantor, and holder of land, licenses, estates, and or other interests before which the order relating to the Determination area was made. As the owner and operator of infrastructure, structures, earthworks, and any other facilities located in the Determination Area established before the orders were made. May enter the land to use, operate and maintain infrastructure, facilities, and other improvements;
• Bureau of Meteorology (Commonwealth of Australia): as the owner and operator of meteorological facilities in the Determination Area;
• State of Queensland, Boulia Shire Council, and Diamantina Shire Council: the right to access use, operate, maintain and control roads in the Determination Area.
• State of Queensland, Boulia Shire Council, and Diamantina Shire Council: as the trustees of Reserves, the right to access, use, operate, and maintain the Reserves for their respective purposes. 
• State of Queensland: the rights and interests protected by the operation of the State of Queensland's legislation, including any legislative instrument, plan, declaration, authority, permit, lease, or license issued under that legislation. 
• members of the public: the right to fish and access roads in the determination area. 

See Schedule 2 for further information. 

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

The Mulligan River Aboriginal Corporation is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title in trust for the Wangkamahdla People.

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

Background

On 20 January 2016, the Wangkhamahdla People filed an application for a determination of a native title by consent over the Mulligan River Region under s 87A of the Native Title Act 1993 (Cth). This is the Wangkamahdla People's first application for native title. 

Details of Judgment

The Court had previously made orders on 30 April 2021 for the administrative division of the area covered by the Wangkamahdla People's application into two parts, Part A and Part B [3]. 

In this case, Sailor on behalf of the Wangkamahdla People v The State of Queensland [2021] FCA 790, Rangieh J considered whether the applicant had satisfied the criteria outlined in s 87A of the Native Title Act 1993 (Cth) in relation to Part A [3]. 

The parties reached agreement, and on 4 June 2021 submitted minutes of the proposed agreement to the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) [16].

The Court was satisfied that a determination of native title was within its power [24-25]. Rangiah J made orders as such on 14 July 2021 [3].

Native title exists in the entire determination area.

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