Ryan (Snr) on behalf of the Warrgamay People v State of Queensland [2021] FCA 977

Far north-east

The determination area includes parts of Abergowrie State Forest, Girringun National Park (including the Herbert River) and Lannercost State Forest. It includes other streams, rivers, creeks and lakes. For a detailed description of the area and maps, see Schedule 4 - description of determination area QCD2021/002, attached below under documents. The area is within the jurisdiction of the Cassowary Coast Regional Council, Charters Towers Regional Council, Hinchinbrook Shire Council, Tablelands Regional Council.

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

Between: Michael Ryan (Snr) and others on behalf of the Warrgamay People; Sam Backo; Janie Eaton; and others (Applicants) and the State of Queensland; Cassowary Coast Regional Council; Charters Towers Regional Council; and others (Respondents)

Judge: Murphy J

Determination

Native title exists in the entire determination area 

Exclusive native title rights and interests exist in the land of the entire determination area. Non-exclusive native title rights and interests exist in the waters of the determination area. 

Native title holders

Native title is held by the Warrgamay people described in Schedule 1.

Exclusive native title rights and interests exist over the entire determination area in land to the exclusion of all others:

These are the rights to possess, occupy, use, and enjoy the area to the exclusion of all others, excluding the waters which are to be shared with others who have rights and interests.

See Part 1 of Schedule 4.

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

Part 2 of Schedule 4 describes the area subject to the Warrgamay peoples' non-exclusive native title. These include the rights to:

• access, be present on, move about on and travel over the area;
• live on the land and camp, and for that purpose build temporary shelters on the area;
• 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 purpose of hunting or clearing vegetation.

Other rights and interests in the determination area include:

• the rights of holders of a lease or permit to occupy the determination area pursuant to the Land Act 1962 (Qld) or Land Act 1994 (Qld).
• the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination area pursuant to 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).
• the rights and interests of Ergon Energy Corporation Limited pursuant to the Electricity Act 1994 (Qld).
• the rights and interests of Charters Towers Regional Council, Hinchinbrook Shire Council, Cassowary Coast Regional Council and Tablelands Regional Council pursuant to the Local Government Act 2009 (Qld), under the Stock Route Management Act 2002 (Qld).
• the rights and interests of the State of Queensland (an exhaustive list of relevant legislation can be found in Schedule 2 QCD2021/002).
• the rights and interests of members of the public arising under the common law.

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

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

The Warrgamay Traditional Owners 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 Warrgamay People.

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

Background

The Applicant filed the Warrgamay Application on 25 September 2015 [6]. The application entered the Register of Native Title Claims on 12 February 2016 [6]. On 21 July 2016, the matter went to a Native Title Judicial Registrar to be managed [8]. This process involved the Applicant providing statements and expert anthropologist reports demonstrating native title rights and interests in the determination area [8].

Details of Judgment

An agreement to the determination was signed by the parties and filed with the court pursuant to the requirements of s 87 of the Native Title Act 1993 (Cth) [14]. Justice Murphy was satisfied that an order under s 87 of the Native Title Act 1993 (Cth) for a determination of native title was within its powers [20].

Native title exists in the entire determination area.

Related Entries

Documents

Glossary