| Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 (11 July 2014)
Between:
RAYMOND LAMPTON, RAYMOND GASTON, COLLEEN POWER, RAYLENE OUI, TANYA CHATFIELD, IRIS GLENBAR, LENORA ALDRIDGE AND VINCENT MUNDRABY ON BEHALF OF THE JURU PEOPLE (applicants);
and
STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, WHITSUNDAY REGIONAL COUNCIL, BURDEKIN SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, PAUL CURTEIS, MELLASANNE GRAY, NOEL GRAY, KAREN QUADRELL, MATT QUADRELL, NATHAN RYNN, TRAVIS RYNN, GFB DEVELOPMENTS PTY LTD, ENERGY MINERALS PTY LTD, AURIZON NETWORK PTY LTD, AURIZON PROPERTY PTY LTD, HANCOCK COAL INFRASTRUCTURE PTY LTD, TELSTRA CORPORATION LIMITED, VARIOUS PASTORALISTS (LONDA CAMERON DAHL, PETER LEONARD DAHL, SCOTT JOSEPH JONES, SONIA ANNE JONES, STEVEN JOHN NORMAN, LESLIE JOHN PAYNE, LEONIE GALE PHILIPSON, NEVILLE JOHN PHILIPSON, ELDA RONCATO, PAUL RONCATO, DALE KELVIN SIBSON, KELVIN ROY SIBSON, LYNETTE ESTELLE SIBSON, CRAIG LYNTON WIGHT, MARK LYNTON WIGHT, RACHEL GAY WIGHT, ROBERT LYNTON WIGHT, JOHN ALEXANDER WILLIAMS, MERRILYN JEAN WILLIAMS), CHRISTINE ANNE BENVENUTI, PAUL RAYMOND BENVENUTI (respondents).
Judge: Rares J
Where made: Bowen
Determination:
Native title exists in the entire determination area. It consists of non-exclusive native title rights.
Native title is held by the Juru People.
Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:
In respect of non-exclusive areas above the high water mark (land):
- access, be present on, move about on and travel over the area;
- camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
- hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
- take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
- take and use the Water of the area for personal, domestic and non-commercial communal purposes;
- conduct ceremonies on the area;
- be buried and bury native title holders within the area;
- 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;
- teach on the area the physical and spiritual attributes of the area;
- hold meetings on the area; and
- light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
In respect of non-exclusive areas below the high water mark (waters):
- access, be present on, move about on and travel over the area;
- hunt, fish and gather on the area for personal, domestic and non-commercial communal purposes; and
- 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 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 1 of Schedule 4. These include ILUA's between the Juru People and other parties.
The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others.
There are no native title rights in or 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:
1. The rights and interests of the parties under the following agreements:
(a) Carol Prior, Raymond Lampton, Colleen Power, Raylene Oui, Tanya Chatfield, Iris Glenbar, Raymond Gaston, and Lenora Aldridge on their own behalf and on behalf of the Juru People, the Kyburra Munda Yalga Aboriginal Corporation RNTBC ICN 7581 (in its capacity as the prescribed body corporate), the State of Queensland , and the Kyburra Munda Yalga Aboriginal Corporation RNTBC ICN 7581 (in its capacity as the registered native title body corporate for the ILUA Area) as parties to the Juru protected area indigenous land use agreement (body corporate agreement), which was authorised by the native title claim group on 19 October 2013 and executed by Raylene Oui, a member of the Applicant, on 24 June 2014, the Kyburra Munda Yalga Aboriginal Corporation RNTBC ICN 7581 (in its capacity as the prescribed body corporate) on 24 June 2014, and the State of Queensland on 18 June 2014 and 24 June 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(b) the Juru People and Ergon Energy indigenous land use agreement QI2014/010 dated 10 February 2014;
(c) the Juru People and Local Government indigenous land use agreement QI2014/011 dated 10 February 2014;
(d) the Juru People and Kookaburra Terrace indigenous land use agreement QI2014/013 dated 13 February 2014;
(e) the Hancock Alpha Coal Project (Port Area Native Title Group) indigenous land use agreement QI2011/019 registered on the Register of Indigenous Land Use Agreements on 23 March 2012;
(f) the Port of Abbot Point and Abbot Point State Development Area indigenous land use agreement QI2011/063 registered on the Register of Indigenous Land Use Agreements on 10 May 2012;
(g) the Juru People and Adani Abbot Point Terminal indigenous land use agreement QI2013/036 registered on the Register of Indigenous Land Use Agreements on 20 January 2014;
(h) Juru People/Mt Aberdeen indigenous land use agreement executed by Raylene Oui, a member of the Applicant, on 24 June 2014, the Kyburra Munda Yalga Aboriginal Corporation ICN 7581 on 24 June 2014, and Stephen John Norman on 25 June 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(i) Juru People/Boundary Creek indigenous land use agreement executed by Raylene Oui, a member of the Applicant, on 24 June 2014, the Kyburra Munda Yalga Aboriginal Corporation ICN 7581 on 24 June 2014, and Scott Joseph Jones and Sonia Anne Jones on 1 July 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(j) Juru People/Greentop indigenous land use agreement executed by Raylene Oui, a member of the Applicant, on 24 June 2014, the Kyburra Munda Yalga Aboriginal Corporation ICN 7581 on 24 June 2014, and John Alexander Williams and Merrilyn Jean Williams on 4 July 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(k) Juru People/Pretty Bend indigenous land use agreement executed by Raylene Oui, a member of the Applicant, on 24 June 2014, the Kyburra Munda Yalga Aboriginal Corporation ICN 7581 on 24 June 2014, and Peter Leonard Dahl and Londa Cameron Dahl on 8 July 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate; and
(l) Juru People/Weston Vale indigenous land use agreement executed by Raylene Oui, a member of the Applicant, on 24 June 2014, the Kyburra Munda Yalga Aboriginal Corporation ICN 7581 on 24 June 2014, and Neville John Philipson, Leonie Gale Philipson, Dale Kelvin Sibson, Kelvin Roy Sibson, Lynette Estelle Sibson, Craig Lynton Wight, Mark Lynton Wight, Rachel Gay Wight and Robert Lynton Wight on 8 July 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate.
2. 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 telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(d) under any licences, access agreements or easements relating to its telecommunications facilities in the Determination Area.
3. The rights and interests of Ergon Energy Corporation ACN 087 646 062:
(a) as the owner and operator of any “Works” as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:
(i) rights in relation to any agreement 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.
4. The rights and interests of Aurizon Network Pty Ltd ACN 132 181 116 in relation to rail transport infrastructure on Lot 58 on Plan SP243726 under the Transport Infrastructure Act 1994 (Qld) and under the Permit to Occupy entered into between Aurizon Network Pty Ltd and North Queensland Bulk Ports Corporation Limited ACN 136 880 218 dated 6 May 2014.
5. The rights and interests of Hancock Coal Infrastructure Pty Ltd ACN 132 394 122 as preferred developer of Terminal 3 at the Port of Abbot Point, under the T3 Project Framework Agreement dated 2012 between North Queensland Bulk Ports Corporation Limited ACN 136 880 218 and Hancock Coal Infrastructure Pty Ltd.
6. The rights and interests of Energy Minerals Pty Ltd ACN 010 031 464 as the holder of Exploration Permit for Minerals 15485 granted under the Minerals Resources Act 1989 (Qld).
7. The rights, interests, functions and powers of North Queensland Bulk Ports Corporation Limited ACN 136 880 218:
(a) as the holder of leases in perpetuity in relation to Lot 49 on Plan SP185904, Lot 50 on Plan SP243721, Lot 51 on Plan SP243721, Lot 52 on Plan SP243721, Lot 52 on Plan HR1732, Lot 58 on Plan SP243726, Lot 335 on Plan SP227560, and Lot 101 on Plan SP256311, and the rights and interests of any of its sub-lessees in relation to any of those areas; and
(b) as the holder of a permit to occupy in relation to Lot 102 on Plan SP256311; and
(c) as a port authority under the Transport Infrastructure Act 1994 (Qld).
8. The rights and interests of the State of Queensland , the Commonwealth of Australia, the Great Barrier Reef Marine Park Authority, or any other person, existing by reason of the force and operation of the Laws of the State and the Commonwealth, including but not limited to those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:
(a) the Fisheries Act 1994 (Qld)
(b) the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth);
(c) the Great Barrier Reef Marine Park Act 1975 (Cth);
(d) the Great Barrier Reef Marine Park Regulations 1983 (Cth);
(e) the Great Barrier Reef Marine Park Zoning Plan 2003 (Cth);
(f) the Land Act 1994 (Qld);
(g) the Mineral Resources Act 1989 (Qld); and
(h) the Transport Infrastructure Act 1994 (Qld).
9. The rights and interests of the State of Queensland, Burdekin Shire Council and Whitsunday Regional 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 the roads.
10. The rights and interests of Burdekin Shire Council and Whitsunday Regional Council:
(a) under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest 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 their respective local government area;
(b) as the:
(i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not;
(ii) grantor of any licences or other rights and interests which were validly granted before the date on which these Orders were made and whether separately particularised in these orders or not;
(iii) holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area;
(c) as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to:
(i) undedicated but constructed roads except for those not operated by Council;
(ii) water pipelines and water supply infrastructure;
(iii) drainage facilities;
(iv) watering point facilities;
(d) to enter the land for the purposes described in paragraphs (a), (b) and (c) above by their employees, agents or contractors to:
(i) exercise any of the rights and interests referred to in paragraph 10 above;
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above;
(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.
11. 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.
12. The rights under the international right of innocent passage.
13. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (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.
14. 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 and the Commonwealth.
The relationship between the native title rights and interests and the other 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.
Provisions relevant to the Native Title rights:
- the Kyburra Munda Yalga Aboriginal Corporation ICN 7581, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.
- native title is held in trust for the Juru People.
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Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 - ( 
Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 - Determination extract - (