Muir on behalf of the Woppaburra People v State of Queensland [2021] FCA 1505

Part of the Capricorn Coast of Central Queensland

The determination area comprises the land and waters in the Keppel Islands and adjacent sea country, in the Capricorn Coast area of Central Queensland. This area comprises 570 sq. kilometres, and includes Woppa (Great Keppel) and Konomie (North Keppel). Schedules 2 - 6, attached, provide written descriptions and maps of the area covered.

The area is within the jurisdiction of the Shire of Livingstone. 

Registered on the National Native Title Register

Between:  Muir on behalf of the Woppaburra People (Applicant) and State of Queensland (Respondents)

Judge: Rangiah J

Where made: Konomie (North Keppel)

Determination

The Federal Court of Australia made this native title determination by consent of the parties under s 87 of the Native Title Act 1993 (Cth) (the NTA).

Native title exists in parts of the determination area

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

These rights and interests are exercisable in accordance with the traditional laws and customs of the native title holders and are subject to the laws of the State and Commonwealth.

Native title holders

Native title is held by the Woppaburra People.

Exclusive native title exists over all of the land and waters described in Part 1 of Schedule 4, which is attached. This is depicted in dark blue on the determination map contained in Schedule 6, which is attached. 

This is the right to possession, occupation, use, and enjoyment of the area to the exclusion of all others.

Non-exclusive native title exists over all of the land and waters described in Part 2 of Schedule 4, which is attached. This is depicted in light blue on the determination map contained Schedule 6, which is attached. 

These native title rights and interests include the right to:

• hunt, fish and gather from the Water of the area; 
• take the Natural Resources of the Water in the area; and 
• take the Water of the area for personal, domestic and non-commercial communal purposes; 
• 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; 
• take, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; 
• take the Water of the area for personal, domestic and non-commercial communal purposes; 
• conduct ceremonies on the area; 
• 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; 
• hold meetings on the area; and 
• light fires on the area for domestic purposes including cooking, but not for the purposes of hunting or clearing vegetation; 

Other (non-native title) rights and interests in the determination area include:

• the rights and interests of the Livingstone Shire Council for that part of the Determination Area within its Local Government Area; 
• the rights and interests of Sojourn Properties Pty Ltd as the holder of permits issued pursuant to the Great Barrier Reef Marine Park Regulations 1983 (Cth) and the Marine Parke Regulation 2017 (Qld); 
• the rights and interests of the Australian Institute of marine Science, pursuant to its powers and functions under the Australian Institute of Marine Science Act 1972 (Cth) as the owner, manager or operation of the automatic weather station located at Square Rocks, the Kepplels; 
• the rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Eastern Tuna and Billfish Fishery, the Eastern Skipjack Fishery and the Southern Bluefin Tuna Fishery; 
• the rights and interests of the Great Barrier Reef Marine Park Authority and any other person existing by reason of the force of operation of the Great Barrier Reef Marine Park Act 1975 (Cth); the Great Barrier Reef Marine Park Regulations 2019 (Cth); the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth); and the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth);
• the rights and interests of the parties under the Woppaburra Traditional Use of Marine Resources Agreement (TUMRA); 
• the rights and interests of the Australian Maritime Safety Authority as the owner, manager or operator of aids to navigate pursuant to s 190 of the Navigation Act 2012 (Cth), and in performing the functions of the Authority under s6(1) of the Australian Maritime Safety Authority Act 1990 (Cth) including to be a national marine safety regulator, to combat pollution in the marine environment and to provide a search and rescue service;
• the rights and interests of the State of Queensland and the Livingstone Shire Council
  to access, use, operate, maintain and control the dedicated roads in the Determination
  Area and the rights and interests of the public to use and access the roads;
• the rights and interests of the State of Queensland in Reserves, the rights and interests
  of the trustees of those Reserves and the rights and interests of the persons entitled to
  access and use those Reserves for the respective purpose for which they are reserved,
  including the rights and interests of the holders of permits issued by the trustees of the
  Reserves;
• the rights and interests of the State of Queensland or any other person existing by
  reason of the force and operation of the laws of the State of Queensland, including those
  existing by reason of the following legislation or any regulation, statutory instrument,
  declaration, plan, authority, permit, lease or licence made, granted, issued or entered
  into under that legislation: the Fisheries Act 1994 (Qld); the Land Act 1994 (Qld); the Nature Conservation Act 1992 (Qld); the Forestry Act 1959 (Qld); the Water Act 2000 (Qld); the Petroleum Act 1923 (Qld) or Petroleum and Gas (Production and Safety)
  Act 2004 (Qld); the Mineral Resources Act 1989 (Qld); the Planning Act 2016 (Qld); the Transport Infrastructure Act 1994 (Qld); the Fire and Emergency Services Act 1990 (Qld) or Ambulance Service Act
  1991 (Qld); the Marine Parks Act 2004 (Qld); the Coastal Protection and Management Act 1995 (Qld); the Transport Operations (Marine Safety) Act 1994 (Qld); and the Transport Operations (Marine Pollution) Act 1995 (Qld).
• the rights and interests of members of the public arising under the common law,
  including but not limited to the following: any subsisting public right to fish; and the public right to navigate.
• any existing rights of
  the public to access, and enjoy, the following places in the Determination Area: waterways; beds and banks or foreshores of waterways; coastal waters; beaches; and areas that were public places at the end of 31 December 1993.
• any other rights and interest held by the State of Queensland or Commonwealth of Australia; or existing by reason of the force and operation of the Laws of the State and Commonwealth. 

See Schedule 2 for further information about the non-native title rights and interests.

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

Prescribed body corporate

The Woppaburra Saltwater Aboriginal Corporation performs the functions required under the NTA on behalf of the Woppaburra People.

The native title is held in trust.

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

Background

The initial application was filed on 6 November 2013, seeking a determination of native title on behalf of the Woppaburra People over land and waters within the external boundaries of the claim area. An amended application was filed on 25 November 2014. 

Woppaburra Traditional Owner Lesley Barney stated that "[d]espite being removed we have survived as a group and maintained family connection...[the consent determination is a] step towards healing the trauma of the past and provid[ing] a new sense of pride to young people" (Jenkins).

Details of Judgment

In accordance with s 87 of the Native Title Act 1993 (Cth), the Court found it appropriate to make consent orders without holding a hearing. This is because the Court was satisfied that parties had received independent legal advice, had entered into the agreement freely, that the State of Queensland had made genuine considerations to the requests made by the Woppaburra people during negotiation, and the that the agreed determination was clear in describing the rights and interests of all parties [25].

Rangiah J outlined that the Woppaburra people provided considerable evidence relating to their "...continuous presence on their country to the extent possible within the context of the decimation of the population and removal from traditional lands and waters. The evidence supports the claim that the traditional laws acknowledged and the customs observed by the Woppaburra People give them the right to possess, occupy, use and enjoy the land and waters in the claim area" [18].

Native title exists in the entire determination area. 

Related Entries

References

Documents

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