| Between:
PAOLA SMITH, JUDITH CONLON, BRENDA FISHER, STEPHEN HAGAN, KAYLEEN HOPKINS, ELIZABETH MCAVOY, RONALD WATSON AND PETER WHITE ON BEHALF OF THE KULLILLI PEOPLE (applicant);
and
STATE OF QUEENSLAND, BULLOO SHIRE COUNCIL, PAROO SHIRE COUNCIL, QUILPIE SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, BRIDGEFIELD PTY LIMITED, CIRCUMPACIFIC ENERGY CORPORATION, DELHI PETROLEUM PTY LTD, DRILLSEARCH ENERGY LIMITED, MAGELLAN PETROLEUM (EASTERN) PTY LTD, MOONIE PIPELINE COMPANY PTY LTD, OILWELLS INC OF KENTUCKY, ORIGIN ENERGY RESOURCES LIMITED, SANTOS (299) PTY LTD, SANTOS LIMITED, SANTOS QNT PTY LTD, SANTOS RESOURCES PTY LTD, VAMGAS PTY LTD, EDWARD JOHN BRIGDEN, CONSOLIDATED PASTORAL COMPANY PTY LTD, DABBAT PTY LTD, MICHAEL GIBSON, IAN JOSEPH KEMP GLASSON, LYNETTE JOAN GLASSON, ALAN RAEBLE SCHOTTELIUS, ELMA BETH SCHOTTELIUS, GREGORY NOEL VICARY SHERWIN AND USHER PASTORAL COMPANY PTY LTD (respondents).
Judge: Logan J
Where made: Thargomindah
Determination:
Native title exists in the entire determination area. It consists of non-exclusive native title rights.
Native title is held by the Kullilli People.
Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:
(a) access, be present on, move about on and travel over the area;
(b) camp and for that purpose build temporary shelters;
(c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
(d) take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
(e) take and use the water of the area for personal, domestic and non-commercial communal purposes;
(f) conduct ceremonies on the area;
(g) be buried and bury native title holders within the area;
(h) 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; and
(i) teach on the area the physical and spiritual attributes of the area.
(j) access, be present on, move about on and travel over the area.
These native title rights are subject to and exercisable in accordance with:
(a) the Laws of the State and the Commonwealth;
(b) the traditional laws acknowledged and traditional customs observed by the native title holders; and
(c) the terms and conditions of the agreements (described in full in paragraph 1 of Schedule 4). These include existing ILUA's between the Kullilli People and other parties. Also included are the rights of statutory rights of Telstra, Ergon Energy, public access rights of the local councils, and those held by the State in relation to:
- Land Act 1994 (Qld)
- Petroleum Act 1923 (Qld)
- Petroleum and Gas (Production and Safety) Act 2004 (Qld)
- Mineral Resources Act 1989 (Qld)
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
Provisions Relevant to the Native Title Rights
Kullilli Bulloo River 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 held in trust for the native title holders. |
| Background
The Kullilli People have a long history of fighting for their Native Title rights. Their first claim was in 1996 at the National Native Title Tribunal and this was then moved to the Federal Court following the 1998 Amendments to the Native Title Act 1993 (Cth). Their claim was dismissed in 2000 by Drummond J. By 2006, the Kullilli people had filed a further three ineffective claims.
This successful claim was first registered in 2009 and included further apical ancestors and a broader claim area. Counsel for the Kullilli People was given by Mr Tony McAvoy, a Kullilli man himself.
The decision was handed down by a Court sat in a marquee at Thargomindah oval, and attended by over 500 Kullilli people who had travelled from across the Nation to be present.
The claim was supported by twenty-seven affidavits showing continuing connection to Country, and research from Dr Sally Babidge. Dr Babidge's research documented the Kullilli as a people who had faced a period of "reprisal and massacre" when settlers forced them off their land. However, in spite of this terror, many Kullilli people stayed on their Country and continued practicing and teaching culture, and caring for their land.
This consent determination exists in conjunction with a number of ILUAs that have been negotiated by Kullilli People and pastoralists to address land access issues.
Details of the Judgment
Through mediation, agreement was reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Kullilli People. A signed document 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.
| |
Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691 - (