Delaney on behalf of the Quandamooka People #2 v State of Queensland  FCA 741 (4 July 2011)
|Binomial Name: ||Federal Court of Australia|
|Date: ||4 July 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||North Stradbroke Island |
|State/Country:||Queensland , Australia|
|Legal Status: ||Registered on the National Native Title Register |
|Legal Reference: ||Tribunal file no.: QC99/25 Federal Court no.: QUD6024/1999
|Subject Matter:||Access | Economic Development | Fishing | Marine | Mining and Minerals | Native Title | Recognition of Native Title or Traditional Ownership | Tourism|
|Summary Information: |
Ian Delaney on behalf of the Quandamooka People (APPLICANT) and
State of Queensland (FIRST RESPONDENT)
Redland City Council (SECOND RESPONDENT)
Energex Ltd (THIRD RESPONDENT)
Telstra Corporation Ltd (FOURTH RESPONDENT)
ACI Operations Pty Ltd (FIFTH RESPONDENT)
Consolidated Rutile Ltd (SIXTH RESPONDENT)
Queensland Seafood Industry Association (SEVENTH RESPONDENT)
Michael Joseph Connolly (EIGHTH RESPONDENT)
Terence James Connolly (NINTH RESPONDENT)
Ellie Durbidge (TENTH RESPONDENT)
James Edward Sommer (ELEVENTH RESPONDENT)
Judge: Dowsett J
Where made: Stradbroke Island
Determination: Native title exists in part of the determination area. It consists of exclusive and non-exclusive native title rights over two different areas of the determination area.
Native title is held by the Quandamooka people. The Quandamooka people are those people descended from various ancestors and includes persons adopted by any of those descendants according to the traditional laws and customs of the Quandamooka people.
The exclusive native title rights over part of the determination area consist of the possession, occupation, use and enjoyment of the area to the exclusion of all others.
In relation to the non-exclusive native title rights over part of the on-shore determination area, the rights and interests that exist include:
- to live and be present on the area;
- take, use, share and exchange traditional natural resources for personal and domestic use;
- conduct burial rites;
- conduct ceremonies;
- teach on the area about the physical and spiritual attributes of the area;
- maintain and protect important and significant sites;
- light fires for domestic purposes but not for the purpose of hunting or clearing vegetation; and
- be accompanied into the area by non-Quandamooka people who are people required by traditional law and custom for the performance of ceremonies or cultural activities or people required by the Quandamooka people to assist in observing or recording traditional activities on the area.
In relation to off-shore areas the following non-exclusive rights apply:
- be present on the area, including by accessing and traversing the area;
- take, use, share and exchange traditional natural resources and seawater for any non-commercial purpose.
The nature and extent of the native title rights and interests in relation to water within the determination area are the non-exclusive rights to:
- take and use traditional natural resources from the water for personal, domestic and non-commercial communal purposes; and
- take and use the water for personal, domestic and non-commercial communal purposes.
Non-native title rights and interests that exist within the determination area
These rights can be summarised as
- The rights and interests of the parties under the Quandamooka People’s Land and Sea ILUA made between Ian Delaney on behalf of the Quandamooka People, the Quandamooka Yoolooburrabee Aboriginal Corporation and the State of Queensland on 15 June 2011 and under the Quandamooka Peoples and Local Government ILUA
between Ian Delaney on behalf of the Quandamooka People, the Quandamooka Yoolooburrabee Aboriginal Corporation and the Redland City Council on 4 July 2011.
- The interests under the Indigenous Land Use Agreement (“ILUA”) between Dale Ruska and Ian Delaney on behalf of the Quandamooka People, the State of Queensland and the Redland City Council entitled the “Dunwich Sewage Treatment Plant ILUA" registered on 22 June 2001.
- The interests held by Stradbroke Rutile Pty Ltd under various Mining Leases and permits to occupy.
- The interests held by ACI Operations Pty Ltd under Mining Leases.
- The rights and interests of the State of Queensland in the Naree Budjong Djara National Park pursuant to the Nature Conservation Act 1992 (Qld).
- The rights and interests of the State of Queensland and any other person under the Nature Conservation Act 1992 (Qld), the Marine Parks Act 2004 (Qld), the Fisheries Act 1994 (Qld), the Coastal Protection and Management Act 1995 (Qld), the Transport Operations (Marine Safety) Act 1994 (Qld), the Transport Operations (Marine Pollution) Act 1995 (Qld), the Transport Infrastructure Act 1994 (Qld), the Integrated Planning Act 1997 (Qld), the Sustainable Planning Act 2009 (Qld), the Forestry Act 1959 (Qld), the Fire and Rescue Services Act 1990 (Qld) and the Ambulance Service Act 1991 (Qld) and any subordinate legislation, declarations or management plans made under any of these Acts.
- The rights and interests of the holders of any licences, permits or allocations under the Water Act 2000 (Qld).
- The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld).
- The rights and interests of holders of any permits, claims, licences or leases under the Mineral Resources Act 1989 (Qld).
- The rights and interests of Telstra Corporation Limited (or its corporate successor)as the owner or operator of telecommunications facilities installed within the Determination Area, holder of a lease in the determination area and rights created pursuant to relevant statute.
- The rights and interests of Energex Limited as the owner and operator of electricity distribution, generation and transmission facilities within the Determination Area and as an Electricity Entity under the Electricity Act 1994 (Qld).
- The rights and interests of Redland City Council under the Local Government Act 2009 (Qld) and as lessor of any leases or grantor of any licences or other rights and interests which were validly granted before the date on which these Orders were made, and as the owner and operator of infrastructure, located in the Determination Area validly constructed or established before the date on which these Orders are made.
- The rights and interests of members of the public, including any subsisting public right to fish, to navigate, rights under the international right of innocent passage. Also including any public access rights to, and enjoyment of waterways, beds and banks of waterways, coastal waters, beaches and areas that were public places at the end of 31 December 1993.
- Rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including statutory rights pursuant to the Fisheries Management Act 1991 (Cth)or any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area.
- Rights or interests existing pursuant to the Historic Shipwrecks Act 1976 (Cth).
- The rights and interests of the Commonwealth of Australia represented by the Bureau of Meteorology as the owner and operator of meteorological facilities within the Determination Area and for its employees, agents and contractors to access its facilities.
- The rights and interests of Australian Maritime Safety Authority as the holder of rights under a registered lease to access land and as a statutory authority exercising powers and functions under the Lighthouses Act 1911 (Cth).
- The rights and interests of the Commonwealth of Australia pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) relating to the use and management of that part of the Determination Area that is a declared RAMSAR wetland.
- Any other rights and interests held by the State or Commonwealth or existing by reason of the force and operation of the Laws of the State or the Commonwealth.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title however will not extinguish the native title.
Provisions Relevant to the Native Title Rights
Quandamooka Yoolooburrabee Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held in trust.
|Detailed Information: |
The determination concerns a native title application that was lodged in 1999 by the Quandamooka people for recognition of native title rights and interests over the land and waters in the area of Stradbroke Island. Previously, in 1995, the Quandamooka people lodged their first application (Quandamooka people #1). Both applications were accepted for registration in 2000 pursuant to the Native Title Act 1993 (Cth).
The native title determinations of Quandamooka #1 and #2 include 54,408 hectares of land and waters on and surrounding North Stradbroke Island, including areas of national parks, reserves, unallocated state land and other leases (National Native Title Tribunal, 2011).
Exclusive native title rights were found in relation to 2,264 hectares of land and non-exclusive native title rights were found over approximately 22,639 hectares of onshore areas, and over about 29,505 hectares of offshore areas (National Native Title Tribunal, 2011).
Premier of Queensland Anna Bligh stated that the native title determination 'is important for many reasons but it will certainly underpin joint management of the national park here at Stradbroke Island as that park is declared.' (Smail, 2011). The native title recognition will also hopefully lead to economic opportunity and prosperity for the Quandamooka people with Anna Bligh further stating that the Quandamooka people will gain a share of mining royalties until mining ceases on the island (Hurst, 2011).
The Quandamooka determination was the 56th native title determination in Queensland and the 51st determination by consent (National Native Title Tribunal, 2011).
Details of Judgement
The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the determination area. The Court was satisfied that a determination of native title was within the power of the Court considering the parties, and their access to independant legal advice.