Murphy on behalf of the Jinibara People v State of Queensland  FCA 1285
|Binomial Name: ||Federal Court of Australia|
|Date: ||20 November 2012|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||In the vicinity of Brisbane|
|State/Country:||Queensland , Australia|
|Parcels of land and waters east of the Brisbane River around Kilcoy from west of Brisbane in the south to around Nambour in the north. The site stretches from the Blackall, Conondale and D'Aguilar ranges to parts of the Sunshine Coast and the Brisbane river.|
|Legal Status: ||Registered on the National Native Tribunal Register of Consent Determinations |
|Legal Reference: ||Tribunal file no.:
Federal Court no.:
|Subject Matter:||Access | Native Title | Recognition of Native Title or Traditional Ownership|
|Summary Information: |
Kenneth Murphy and Noel Blair on behalf of the Jinibara People
State of Queensland, Brisbane City Council, Moreton Bay Regional Council, Somerset Regional Council, Sunshine Coast Regional Council and Queensland Bulk Water Supply Authority (trading as seqwater)
Judge: Reeves J
Where made: Woodford
Native title exists in the determination area. It consists of exclusive and non-exclusive native title rights.
The exclusive native title rights and interests that exist over land in the determination area include:
- the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
The non-exclusive native title rights and interests that exist over land in the determination area include:
- the right to access, move about on and travel over the area;
- the right to camp, and live temporarily on the area and for that purpose build temporary shelters;
- the right to light fires on the area for personal and domestic purposes;
- the right to fish, hunt, gather, take, keep, use, share and exchange natural resources from the area;
- the right to conduct, and participate in, rituals and ceremonies on the area, including those relating to initiation, birth and death;
- the right to be buried and bury native title holders within the area;
- the right to maintain sites, objects, places and areas of significance to the native title holders under their traditional laws and customs and protect by lawful means those sites, objects, places and areas from physical harm or desecration;
- the right to teach on the area the physical, cultural and spiritual attributes of the area;
- the right to hold meetings on the area; and
- the right to be accompanied on the area by certain non-native title holders, being spouses of native title holders, people required or permitted under the traditional laws and customs for the performance of, assistance with or participation in cultural activities or people who have rights in relation to the area according to the traditional laws and customs of the native title holders.
The native title rights and interests that exist over water in the determination area include:
- the right to hunt, fish, gather, take, keep, use, share and exchange natural resources from the water and to take, use, share and exchange the water for personal, domestic or non-commercial communal purposes.
Non native title rights and interests that exist in the determination area include:
- the rights and interests of the parties under the Deed of Agreement between the Jinibara People Aboriginal Corporation, the Jinibara People and the State of Queensland providing for the exercise of native title rights and interests in selected protected areas.
- The rights and interests of the State of Queensland, trustees and persons entitled to access certain reserves in the determination area.
- The rights and interests of the State of Queensland and the local councils of Somerset Regional Council and Moreton Bay Regional Council to access, use, operate and maintain certain roads in the determination area and the rights and interests of the general public to access and use those roads;
- The rights and interests of Moreton Bay Regional Council, Sunshine Coast Regional Council and Somerset Regional Council as local governments for those parts of the determination area within their respective local government;
- The rights and interests of Brisbane City Council as local government for that part of the determination area within its local government area;
- The rights and interests of Energex Limited as the owner and operator of electricity distribution, generation and transmission facilities within the Determination Area, as an Electricity Entity under the Electricity Act 1994 (Qld);
- The interests of Queensland Electricity Transmission Corporation (Powerlink Queensland) as an electricity entity exercising statutory functions, powers or rights and as owner and operator of electricity transmission facilities and associated infrastructure situated upon the Determination Area, including but not limited to the right to enter upon the Determination Area at any reasonable time in order to access, use, maintain, repair, replace, upgrade, or otherwise deal with those facilities and infrastructure in accordance with the law.
- The rights and interests of Queensland Bulk Water Supply Authority (Seqwater) as trustee of R1070 Stanley, Reserve for Camping and Water;
- The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area, under any lease or other agreement relating to its telecommunication facilities and rights created 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) including rights to inspect land, install and operate telecommunication facilities and alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication facilities;
- The rights and interests of Forestry Plantations Queensland Pty Limited in and under Plantation Licence No 713331865;
- Any existing public access to and enjoyment of waterways, beds and banks or foreshores of waterways, stock routes and areas that were public places at the end of 31 December 1993,
pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld);
- The rights and interests of the State of Queensland or any other person under law including the Land Act 1994 (Qld), the Nature Conservation Act 1992 (Qld), the Petroleum Act 1923 (Qld) and Petroleum and Gas (Production and Safety) Act 2004 (Qld), the Forestry Act 1959 (Qld), the Water Act 2000 (Qld), the Integrated Planning Act 1997 (Qld) or Sustainable Planning Act 2009 (Qld), the Transport Infrastructure Act 1994 (Qld) and the Fire and Rescue Services Act 1990 (Qld) and the Ambulance Service Act 1991 (Qld).
- Any other rights and interests of members of the public arising under the common law, including any subsisting public right to fish, the public right to navigate and the public’s right to access and use Storrs Road, Fortune Avenue and Jannaii Court; and
- Any other rights and interests held by the State or Commonwealth, or by reason of the force and operation of the Laws of the State or Commonwealth.
Provisions Relevant to the Native Title Rights
There are no native title rights in minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
The Jinibara People Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
|Detailed Information: |
The application was first lodged in 1998. It is the first determination of native title determination in southeast Queensland.
The determination covers an area of approximately 703 square kilometres of land from the southern end of the Blackall Ranges in the north to Lake Manchester in the south. The determination also includes exclusive native title rights to 1.38 square kilometres of land to possess, occupy, use and enjoy the area to the exclusion of all others.
The Queensland Minister for Natural Resources and Mines at the time of judgement MP Andrew Cripps stated that “[t]his decision means Australia’s legal system formally acknowledges the rights of the Jinibara People to camp, hunt, fish and gather in the area, maintain areas of significance and conduct ceremonies in accordance with their traditional laws and customs.”
The Jinibara People also negotiated an Indigenous Land Use agreement (ILUA) with the Queensland Government establishing how Native Title rights and interests will be exercised in the protected areas that exist within the determination area and providing a framework for managing cultural heritage issues, future activities, and use and access arrangements.
Uncle Noel Blair, one of the applicants, stated that he hoped the determination could be used to benefit the community at large, particularly in creating an appreciation for indigenous culture.
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 signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).
The court was satisfied that a determination of native title was within the power of the court.