| Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (20 June 2014)
Between:
MARYANNE COCONUT, GRACE JOHN, MALCOLM CALLOPE, CHARLES BUDBY, GABRIEL MAIRU, FLORENCE HECTOR, IVY GORDON, ANDREA TOBY, MAURICE WOODLEY, VICTORIA KENNEDY, CELIA FLETCHER, AGNES MARK, ALMA DAY, HARRIET FLINDERS, FLORENCE LUFF, NEVILLE MOTTON, RHONDA PARRY, ALLISON SAILOR, RAYMOND AHMAT, LINDA MCLACHLAN and MICHELLE KOSTECKI (NEE AHMAT) ON BEHALF OF THE NORTHERN CAPE YORK #2 NATIVE TITLE CLAIM GROUP (applicant);
and
STATE OF QUEENSLAND, COOK SHIRE COUNCIL, MAPOON ABORIGINAL SHIRE COUNCIL, OLD MAPOON ABORIGINAL CORPORATION, AUSTRALIAN MARITIME SAFETY AUTHORITY, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, ALCAN SOUTH PACIFIC PTY LTD, RTA WEIPA PTY LTD and SUNRISE MINERALS PTY LTD (respondents).
Judge: Greenwood J
Where made: Weipa
Determination:
Native title exists in the entire determination area. It consists of exclusive native title rights in relation to land (subject to paragraphs 9, 10, 11 and 12 of the consent determination) and non-exclusive native title rights in relation to water.
Native title is held by the Northern Cape York #2 Native Title Claim Group, being the persons descended from the apical ancestors described in Schedule 3 of the consent determination.
The native title rights and interests that exist over the determination area in relation to land and waters consist of the non-exclusive rights to:
- access, be present on, move about on and travel over the area;
- hunt and fish in or on, and gather from, the area;
- take, use, share and exchange Natural Resources on the area;
- take and use Water from the area for cultural, personal, domestic and communal purposes;
- live and camp on the area and for those purposes to erect shelters and other structures thereon;
- light fires on the area for cultural, spiritual or domestic purposes, including cooking, but not for the purpose of hunting or clearing vegetation;
- be buried and to bury native title holders within the area;
- conduct ceremonies on the area;
- hold meetings on the area;
- teach on the area the physical and spiritual attributes of the area;
- maintain places of importance and areas of significance to the native title holders under their traditional laws and customs on the area and to protect those places and areas from harm;
- be accompanied on to the area by those persons who, though not native title holders, are:
(a) spouses or partners of native title holders;
(b) people who are members of the immediate family of a spouse or partner of a native title holder; or
(c) people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the area.
The native title rights and interests are subject to and exercisable in accordance with:
- the Laws of the State and the Commonwealth;
- the traditional laws acknowledged and traditional customs observed by the native title holders; and
- the terms and conditions of the agreements referred to in paragraph 4 of Schedule 4 of the consent determination.
The native title rights and interests in relation to land confer possession, occupation, use or enjoyment to the exclusion of all others, subject to paragraphs 9, 10, 11 and 12.
In relation to water to, native title rights and interests are, in relation to water, the non-exclusive rights to:
(a) hunt, fish and gather from the Water of the area;
(b) take and use the Natural Resources of the Water in the area; and
(c) take and use the Water of the area,
There are no native title rights in or in relation to:
Paragraph 12 of the consent determination states that there are no native title rights in relation to:
- minerals as defined by the Mineral Resources Act 1989 (Qld);
- petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).
Non-native title rights and interests that exist within the determination area:
- The nature and extent of other interests in relation to the Determination are outlined by Schedule 4 as they exist as at the date of the determination, which includes the following:
- The rights and interests of the beneficiaries under Deed of Grant Title Reference No. 50911383.
- The rights and interests of the beneficiaries under Deed of Grant Title Reference No. 50948514.
- The rights and interests of the grantee and beneficiaries of an estate in fee simple under Deed of Grant Title Reference No. 50914995.
- The rights and interests of the parties under the following agreements:
(a) the WCCCA;
(b) the rights and interests of the native title holders and Mapoon Aboriginal Shire Council as parties to the Northern Cape York Group People #2 ILUA dated 3 June 2014;
(c) the rights and interests of the parties under the Indigenous Land Use Agreement between Maryanne Coconut, Grace John, Malcolm Callope, Charles Budby, Gabriel Mairu, Florence Hector, Ivy Gordon, Andrea Toby, Maurice Woodley, Victoria Kennedy, Celia Fletcher, Agnes Mark, Alma Day, Harriet Flinders, Florence Luff, Neville Motton, Rhonda Parry, Allison Sailor, Raymond AhMat, Linda McLachlan, Michelle Kostecki (nee AhMat) as the applicant for Native Title Determination Application Northern Cape York Group No. 2 QUD 156/2011 and Napranum Aboriginal Shire Council dated 23 May 2014;
(d) the rights and interests of the native title holders and Ergon Energy Corporation Limited as parties to the Northern Cape York People #2 and Ergon Energy ILUA dated 28 May 2014.
- The rights and interests of RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited (and any successors in title) under:
(a) the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld) (“Comalco Act”) and the Commonwealth Aluminium Corporation Pty Limited Agreement (which is given statutory force by the Comalco Act) (“Comalco Agreement”) to mine and/or perform other activities on the Determination Area, including the Comalco Interests and the rights to perform the Comalco Activities;
(b) the WCCCA; and
(c) Mining Lease No. 7024.
- The rights and interests of Alcan South Pacific Pty Ltd (and any successors in title) under:
(a) the Alcan Queensland Pty Limited Agreement Act 1965 (Qld) (“Alcan Act”) and the agreement made and varied pursuant to the Alcan Act (which is given statutory force by the Alcan Act) to mine and/or perform other activities on, and to obtain other rights and interests with respect to, the Determination Area; and
(b) Mining Lease No. 7031.
- The rights and interests of Telstra Corporation Limited ACN 051 775 556:
(a) as the owner or operator of telecommunications facilities installed within the Determination Area;
(b) 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:
(i) to inspect land;
(ii) to install and operate telecommunication facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunication facilities;
(d) under any licences, leases, access agreements or easements relating to its telecommunications facilities in the Determination Area.
- The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:
(a) as the owner and operator of and “works” as that term is defined the Electricity Act 1994 (Qld) within the Determination Area;
(b) created under the terms of the trustee lease described as Lease C on SP109761, commencing 1 July 2000, and granted pursuant to s 57 of the Land Act 1994 (Qld);
(c) as a Distribution Entity and the holder of a Distribution Authority under the Electricity Act 1994 (Qld);
(d) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld), including:
(i) rights in relation to any agreements relating to the Determination Area existing or entered into before the date on which these orders are made;
(ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and
(iii) to inspect, maintain and manage any works in the Determination Area.
- The rights and interests of Cook Shire Council (the “Council”) including any rights the Council, its employees, agents or contractors have:
(a) 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 its local government area, as defined in the Local Government Act 2009 (Qld);
(b) to enter the land described in para 9(a) to:
(i) exercise any of the rights and interests referred to in para 9(a);
(ii) inspect, maintain and repair infrastructure, facilities and other improvements; and
(iii) 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 Mapoon Aboriginal Shire Council (the “Council”) including any rights the Council, its employees, agents or contractors have:
(a) 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 its local government area, as defined in the Local Government Act 2009 (Qld);
(b) as the:
(i) lessor under any leases which were entered into as at the date of the Determination;
(ii) grantor of any licences or other rights and interests which were granted as at the date of the Determination;
(iii) holder of any estate or interest in land, and as trustee of any reserves, that exist in the Determination Area as at the date of the Determination;
(c) as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area as at the date of the Determination, including but not limited to:
(i) dedicated roads operated by Council;
(ii) gravel pits operated by Council;
(iii) undedicated but constructed roads except for those not operated by Council;
(iv) water pipelines and other water supply infrastructure;
(v) drainage facilities; and
(vi) cemetery and cemetery related facilities; and
(d) to enter the land described in paras 10(a) to 10(c) to:
(i) exercise any of the rights and interests referred to in paras 10(a) to 10(c);
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in para 10(c); and
(iii) 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 Napranum Aboriginal Shire Council as the Local Government for that part of the Determination Area within its local government area, including:
(a) its rights and interests in land and waters within the Determination Area including as the trustee of the Deed of Grant in Trust over land described as Lot 21 on SP266617, Lot 4 on Plan WP50, Lot 5 on Plan WP50, Lot 6 on Plan WP50, Lot 7 on Plan WP50, Lot 8 on Plan WP50 and Lot 9 on Plan WP50 being part of the land described in Title Reference 50948514;
(b) its powers, functions, responsibilities and jurisdiction under the Local Government Act 2009 (Qld);
(c) the rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owner and operator of valid infrastructure, roads, structures, earthworks, access works, facilities and other improvements within the Determination Area;
(d) the rights under any valid agreements between Council and any third party which relate to land or water in the Determination Area; and
(e) the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing its powers and responsibilities under paras 11(a) to 11(d).
- The rights and interests of the Australian Maritime Safety Authority as the holder of rights as a statutory authority exercising powers and functions under the Navigation Act 2012 (Cth).
- The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act.
- The rights and interests of members of the public arising under the common law, including but not limited to the following:
(a) any subsisting public right to fish; and
(b) the public right to navigate.
- So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 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 in the Determination Area:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) coastal waters;
(d) beaches;
(e) stock routes; and
(f) areas that were public places at the end of 31 December 1993.
Any other rights and interests:
(a) held by the State of Queensland or Commonwealth of Australia; or
(b) existing by reason of the force and operation of the Laws of the State or the Commonwealth.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
- to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and
- the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.
Rights of the applicant, the State of Queensland and any respondents:
- liberty to apply to the Court on 14 days’ notice to establish the precise location and boundaries of any public works and adjacent land and waters referred to under the non-native title rights and interests.
Provisions relevant to the Native Title rights:
- the native title is held in trust;
- the Mokwiri Aboriginal Corporation (ICN: 7972), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(i) be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and
(ii) perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
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Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (20 June 2014) - Schedule 1 Map of Determination Area - ( 
Coconut on behalf of the Northern Cape York #2 Native Title Claim Group v State of Queensland [2014] FCA 629 (20 June 2014) - Judgment Extract - (