| Between:
Neville Aplin, Carmel Belford, Noel Doyle, Jean Jacks, Florence Melville and Alfred Nathan on behalf of the Pitta Pitta People (APPLICANTS)
and
State of Queensland, Boulia Shire Council, Cloncurry Shire Council, Diamantina Shire Council, Winton Shire Council, Ergon Energy Corporation Ltd, Ivanhoe (Osbourne) Pty Ltd, Roverton Pty Ltd and Australian Agricultural Company Ltd, Vida Felicia Beauchamp, Reginald Hasted Beauchamp, Roslyn Ann Blacket, Robert Stirling Blacket, William Henry Cameron, Kalinda Louise Cluff, William Patrick Cluff, Gladys May Elliot, John Maxmillian Fegan, Philip Gregory Prince, Scholefields Boulia Pty Ltd as Trustee for the JBS Trust and James Brittain Scholefield, Adrian Joseph Wells and Vicki Ann Wells
(RESPONDENTS)
Judge: Dowsett J
Where made: Boulia
Determination:
Native title is held communally by the Pitta Pitta People:
Native title exists over parts of the determination area. It consists of non-exclusive native title rights.
The non-exclusive native title rights and interests that exist over land in the determination area include:
- the right to access and camp on the area;
- the right to hunt and gather on the area for non-commercial, personal, domestic, social, cultural and communal purposes;
- the right to take and use natural resources from the area for non-commercial purposes;
- the right to 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;
- the right to conduct ceremonies on the area;
- the right to teach the physical and spiritual attributes of the area; and
- the right to light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
In relation to water in parts of the Determination Area the following non-exclusive rights apply:
- to hunt, fish and gather from the water for personal, domestic, social, cultural and non-commercial communal purposes; and
- to 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 can be summarised as
- The rights and interests of the parties under the following Indigenous Land Use Agreements (ILUAs) including the Pitta Pitta People/Alderley ILUA, the Pitta Pitta People/Bengeacca and Stockport ILUA, the Pitta Pitta People/Blair Athol (aka Hylass) ILUA, the Pitta Pitta People/Braeside ILUA, the Pitta Pitta People/Canary ILUA, the Pitta Pitta People/Cazna Downs, Elrose, Granton and Warenda ILUA, the Pitta Pitta People/Coorabulka and Marion Downs ILUA, the Pitta Pitta People/Datchet South and Strathelbiss ILUA, the Pitta Pitta People/Hartnell Downs ILUA, the Pitta Pitta People/Kheri ILUA, the Pitta Pitta People/Lorna Downs (aka Milkamungra) ILUA, the Pitta Pitta People/Momedah ILUA, the Pitta Pitta People/Pollygammon and Tour-ur-rong ILUA, Pitta Pitta People/Toolebuc and Wilgunya ILUA, the Pitta Pitta People/Warra ILUA, the Pitta Pitta People/Waterford ILUA, the Pitta Pitta People/Westward Ho ILUA, the Indigenous Land Use Agreement between Alfred Nathan, Jean Jacks, Neville Aplin, Carmel Belford, Noel Doyle, Florence Melville and Ergon Energy Corporation Limited executed on/registered on 8 August 2012, the Pitta Pitta People Exploration Permit Backlog Project Indigenous Land Use Agreement (Area Agreement), the Boulia Tenure Resolution Indigenous Land Use Agreement (Area Agreement) and the Pitta Pitta People and Local Government Indigenous Land Use Agreement between Alfred Nathan, Jean Jacks, Neville Aplin, Carmel Belford, Noel Doyle, Florence Melville and Boulia Shire Council, Cloncurry Shire Council and Diamantina Shire Council;
- The rights and interests of the State of Queensland in the Police Paddock Reserve and the Building Reserve, the rights and interests of the persons in whom they are vested and the rights and interests of the persons entitled to access and use those reserves for the respective purpose for which they are reserved;
-The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld), the Transport Infrastructure Act 1994 (Qld), the Integrated Planning Act 1997 (Qld), the Sustainable Planning Act 2009 (Qld), the Fire and Rescue Services Act 1990 (Qld), the Ambulance Service Act 1991 (Qld) and
any subordinate legislation or regulations made under those Acts;
- The rights and interests of the holders of any leases, licences, permits, easements or authorities issued or made under the Forestry Act 1959 (Qld), the Water Act 2000 (Qld), the Land Act 1994 (Qld), Mineral Resources Act 1989 (Qld), the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) and any subordinate legislation or any other resources legislation or declarations;
- The rights and interests of the Pitta Pitta Land Trust as the grantee and as an entity exercising statutory powers under the Deed of Grant of Land dated 23 October 2003 on behalf of Aboriginal people and their ancestors and descendants, pursuant to the Aboriginal Land Act 1991 (Qld) and the Aboriginal and Torres Strait Islander Communities (Justice, Land and other Matters) Act 1984 (Qld);
- The rights and interests of Ergon Energy Corporation Limited as the owner and operator of works as defined in the Electricity Act 1994 (Qld), a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld), and the Government Owned Corporations Act 1993 (Qld);
- The rights and interests of the State of Queensland, of Boulia Shire Council, Cloncurry Shire Council, Diamantina Shire Council and Winton 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 roads;
- The rights and interests of each of Boulia Shire Council and Diamantina Shire Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be Council’s local government area. The rights and interests also include those arising as lessor under any leases, grantor of any licences or other rights and interests, holder of any estate or interest in land, and as trustee of any reserves, as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area, and the rights to enter the land to exercise any of the rights and interests referred to above, or inspect, maintain and repair the infrastructure, facilities and other improvements referred to above and undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management;
- The rights and interests of each of Winton Shire Council and Cloncurry Shire Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the declared Local Government Area;
- The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities, or 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, alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication facilities and to occupy its Hamilton Radio Telecommunications site;
- The rights and interests of Roverton Pty Ltd as the owner and operator of gaseous petroleum and associated liquid petroleum distribution facilities, holder of Pipeline Licence No.41 and Corridor Licence dated 27 March 1997 between Roverton Pty Ltd and the Chief Executive created under the Transport Infrastructure Act 1994 (Qld) and rights under the Miscellaneous Transport Infrastructure Corridor easement created pursuant to the Transport Infrastructure Act 1994 (Qld);
- The rights and interests of APT Pipelines (Qld) Pty Limited as the owner and operator of gaseous petroleum and associated liquid petroleum distribution facilities within the Determination Area and as the holder of Pipeline Licence No.42 dated 14 May 1998 granted under the Petroleum Act 1923 (Qld);
- The rights and interests of the following pastoral lessees: Adrian Joseph Wells and Vicki Ann Wells with the Kalkadoon Pastoral Lease, Leonard, Veronica May and Shayne Percival Brooke McGlinchey with the Badalia Pastoral Lease, Athol Vincent Prince with the Montagu Downs Pastoral Lease, William Patrick and Kalinda Louise Cluff with the Hylass Pastoral Lease, John Maxmillian Fegan with the Milkamungra Pastoral Lease, Adrian Joseph Wells and Vicki Ann Wells with the Warenda Pastoral Lease, Montague Nominees Pty Ltdwith the Mudgeacca Pastoral Lease, M and M Campbell Pty Ltd with the Hartnell Downs Pastoral Lease, Ian Charles Campbell and Marianna Campbell with the Momedah Pastoral Lease, Leonard Gordon Robinson with the Canary Pastoral Lease, John Harvey, Partricia Marshall and Graham Harvey Treloar
with the Pathungra Pastoral Lease, Dale Reginald Nielson with the Waterford Pastoral Lease, Sanela Pty Ltd with the Wirrilyerna Pastoral Lease, Scholefields Boulia Pty Ltd with the Tour-ur-ong Pastoral Lease, Louis Charles and Lynnette Eileen Britton as trustee for the Britton Family Superannuation Fund with the Neena Pastoral Lease, Bric Charles Britton and Ann Mary Britton with the Kewpie Pastoral Lease, Reginald Hasted Beauchamp and Vida Felicia Beauchamp with the Bengeacca Pastoral Lease, Jersey Plains Pastoral Company Pty Ltd with the Strathelbiss Pastoral Lease, Phillip Gregory Prince with the Westward Ho Pastoral Lease, Andrew William Jesse Daniels, Samuel Donald James Daniels, Gabrielle Kennedy, Jeffrey Robert James Daniels and Luke William Jesse Daniels with the Wilgunya Pastoral Lease, Adrian Joseph and Vicki Ann Wells with the Granton Pastoral Lease, Eric Charles Britton with the Scarsdale Pastoral Lease, Tewinga Pastoral Holdings Pty Ltd with the Slashes Creek Pastoral Lease Gladys May Elliott, Rodney Harold Elliott and Charles Samuel Werner Elliott with the Warra Pastoral Lease, Eric Charles and Ann Mary Britton with the Old Goodwood Pastoral Lease, Reginald Hasted Beauchamp and Vida Felecia Beauchamp with the Stockport Pastoral Lease, Victor Russell Jones with the Berrimilla Pastoral Lease, Elrose Channel Country Beef Pty Ltd with the Macsland Pastoral Lease, Eric Charles and Ann Mary Britton with the Black Mountain Pastoral Lease,
Brendon Robert and Theresa Louise Curr with the Dover Pastoral Lease, Scholefields Boulia Pty Ltd with the Pollygammon Pastoral Lease, Adrian Joseph and Vicki Ann Wells with the Cazna Downs Pastoral Lease, Australian Agricultural Company Limited with the Braeside Pastoral Lease, Jersey Plains Pastoral Company Pty Ltd with the Datchet South Pastoral Lease, William Henry Cameron with the Kheri Pastoral Lease, Andrew William Jesse Daniels, Samuel Donald James Daniels, Gabrielle Kennedy, Jeffrey Robert James Daniels and Luke William Jesse Daniels with the Toolebuc Pastoral Lease, Fran Sterling Blacket and Rahda Blacket with the Alderley Pastoral Lease, North Australian Pastoral Company Pty Ltd with the Marion Downs Pastoral Lease, North Australian Pastoral Company Pty Ltd with the Coorabulka Pastoral Lease, Boulia Shire Council under the term lease for grazing purposes being Title Reference No. 40017198 comprising Lot 4 on WI62, Brett William and Mari Louise Gundersen under the term lease for grazing purposes being Title Reference No. 40017531 comprising Lot 5 on WI49, Trustee under the term lease for grazing purposes being Title Reference No. 40012668 comprising Lot 5 on WI60, Brett William and Mari Louise Gundersen under the term lease for grazing purposes being Title Reference No. 40017187 comprising Lot 6 on WI49;
- The rights and interest of AGL Pipelines (Qld) Pty Ltd with respect to Easement C on SP125345 in Lot 2 on WNR12;
- The rights and interests of Ivanhoe (Osborne) Pty Ltd as the holder of mining lease ML 90057 and as the holder of exploration permit EPM 9624 granted under the Mineral Resources Act 1989 (Qld);
- The rights and interests of members of the public arising under the common law, including any subsisting public right to fish and the public right to navigate;
- So far as confirmed pursuant to section 212(2) of the Native Title Act 1993 (Cth) and section 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places: waterways, beds and banks of waterways, stock routes and areas that were public places at the end of 31 December 1993; and
- 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.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals or petroleum as defined in the Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
The native title is to be held in trust. The Pitta Pitta Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth) and perform the functions required under s 57 of the Native Title Act 1993 (Cth).
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