Daphney on behalf of the Kowanyama People v State of Queensland  FCA 1149 (Kowanyama People Part D)
|Date: ||31 October 2014|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||Located on the south western side of Cape York Peninsula|
|The determination area is outlined in Schedule 2 of the judgment. It covers approximately 55,734 hectares of land and waters on the south western side of Cape York Peninsula.
|Legal Status: ||Registered on the National Native Title Register.|
|Legal Reference: ||Tribunal file no.: QCD2014/016; Federal Court file no.: QUD6119/1998.|
|Subject Matter:||Native Title|
|Summary Information: |
|Daphney on behalf of the Kowanyama People v State of Queensland  FCA 1149
LAWRENCE DAPHNEY, CHRIS HENRY, CHARLOTTE YAM, MICHAEL MITCHELL, ARTHUR LUKE SNR, TEDDY BERNARD, COLIN LAWRENCE JNR, CHARMAINE LAWRENCE, LAVINIA INKERMAN, CELZA INKERMAN AND HILTON NOBLE ON THEIR OWN BEHALF AND ON BEHALF OF THE KOWANYAMA PEOPLE (applicant);
STATE OF QUEENSLAND, GREG HOOK, JUSTIN HOOK, PETER TONON, CLAUDINE ELIZABETH WARD, GARY DAVID WARD, SHANE ANDREW WARD, YAN WARD and CARPENTARIA SHIRE COUNCIL (respondents).
Judge: Greenwood J
Where made: Cairns
Native title exists in the entire determination area. It consists of areas of non-exclusive native title rights and areas of exclusive native title rights.
Native title is held by the Kowanyama People.
The exclusive native title rights and interests that exist in relation to that part of the exclusive determination areas consist of the rights to:
- other than in relation to water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
- in relation to water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the natural resources of the water in the area; and
(iii) take and use the water of the area for personal, domestic and noncommercial communal purposes.
- the exclusive determination areas include all of the land and waters which are depicted in dark blue on the determination map.
Non-exclusive native title rights and interests that exist over the non-exclusive determination areas consist of the rights to:
- access, be present on, move about on and travel over the area;
- hunt and fish in or on, and gather from, the land and Water for noncommercial, cultural, spiritual, personal, domestic or communal purposes;
- take, use, share and exchange Natural Resources for non-commercial, cultural, spiritual, personal, domestic or communal purposes;
- take and use the Water for cultural, personal, domestic and non-commercial communal purposes;
- live and camp on the area and for those purposes erect shelters and other structures on the area;
- 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 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 and protect those places and areas from harm; and
- be accompanied on to the area by those persons who, though not native title holders, are:
(i) spouses or partners of native title holders;
(ii) people who are members of the immediate family of a spouse or partner of a native title holder;
(iii) people reasonably required by the native title holders under traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or
(iv) people who have specialised knowledge based on their training, study or experience who are requested by native title holders to observe or record traditional activities or otherwise to investigate matters of cultural significance on the Determination Area.
- the non-exclusive determination areas include all of the land and waters which are depicted in light blue on the determination map.
The native title rights and interests are subject to and exercisable in accordance with:
- the Laws of the State and the Commonwealth; and
- the traditional laws acknowledged and traditional customs observed by the native title holders.
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:
(a) the lessee and others under a term lease being title reference No. 17668080 comprising Lot 2457 on PH2043; and
(b) the lessee and others under a term lease being title reference No. 17668055 comprising part of Lot 893 on FK2.
2. The rights and interests of the State of Queensland and the Carpentaria Shire Council to access, use, operate and maintain the area delineated as road on plan SP215744 for its dedicated purpose and the rights and interests of the public to access and use the road.
3. The rights and interests of Carpentaria Shire 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 (Pest 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) holder of any validly granted licences, permits or other rights and interests which were granted as at the date of the determination;
(ii) trustee of any validly gazetted 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 controlled by Council;
(ii) gravel pits operated by Council;
(d) as the manager of undedicated but constructed roads except for those not operated by Council;
(e) to enter the land described in paras 3(a) to 3(d) in compliance with any legislative requirements regarding notice or otherwise to:
(i) exercise any of the rights and interests referred to in paras 3(a) to 3(d);
(ii) inspect, maintain and repair the infrastructure facilities and other improvements referred to in paras 3(c) and 3(d); 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.
4. The rights and interests of the parties under the following agreements:
(a) the Indigenous Management Agreement between the Errk Oykangand National Park Land Trust and State of Queensland for Errk Oykangand National Park (Cape York Peninsula Aboriginal Land) dated 23 October 2009;
(b) the Indigenous Land Use Agreement for Errk Oykangand National Park (Cape York Peninsula Aboriginal Land) dated 23 October 2009; and
(c) the Indigenous Land Use Agreement between Lawrence Daphney and Ors on behalf of the Kowanyama People and Carpentaria Shire Council authorised by the Kowanyama People on 14 October 2014 and dated 21 October 2014.
5. The rights and interests of the State of Queensland in those parts of the Staaten-Gilbert and Nassau River declared fish habitat areas within the Determination Area, as shown on Plan FHA059 and Plan FHA061 held by the Department of National Parks, Recreation, Sport and Racing and the interests of persons entitled to access and use those habitats.
6. The rights and interests granted by the State of Queensland pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licenses, permits or authority pursuant to the Fisheries Act 1994 (Qld) and regulations, declarations or management plans made under that Act.
7. The rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power including, but not limited to, the rights and interests of persons holding licences, permits, statutory fishing rights, or other statutory rights pursuant to:
(a) the Fisheries Management Act 1991 (Cth), or regulations or management plans made under that Act; and
(b) any other legislative scheme for the control, management and exploitation of the living resources within the Determination Area.
8. The rights and interests of members of the public arising under the common law, including but not limited to:
(a) the public right to fish; and
(b) the public right to navigate.
9. 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 rights of the public to access and enjoy, the following places in the Determination Area:
(b) beds and banks or foreshores of waterways;
(c) coastal waters;
(e) stock routes; and
(f) areas that were public places at the end of 31 December 1993.
10. Any other rights and interests:
(a) held by the State or Commonwealth; 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 non-native title rights and interests is that:
- the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests;
- where the non- extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests:
(i) the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and
(ii) if the other rights and interests are later removed or otherwise permanently cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests; and
- the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, 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 Abm Elgoring Ambung Aboriginal Corporation RNTBC (ICN 7163), 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 not held on trust for the Kowanyama People.
|Detailed Information: |
The native title application was first made on 30 September 1998. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Kowanyama People, who comprise those people known as Yir Yoront (sometimes called Kokomenjen), Koko Bera, Kunjen and Koko Berrin, as the holders of native title rights and interests over their country.
On 22 October 2009 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Part A of the area covered by the Application (“the Part A determination”). On 5 December 2012 a determination that native title exists was made by consent by the Federal Court of Australia over the land and waters of Parts B and C of the area covered by the Application (“the Parts B and C determinations”). This consent determination is in respect of Part D of the area covered by the application.
There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Kowanyama claim.
The successful native title claim has provided the Kowanyama People with formal recognition of approximately 55,734 hectares of land and water. 38,219 hectares of the determination area consists of exclusive native title areas, whilst 17,515 hectares consists of non-exclusive native title areas.
Details of Judgement
Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Kowanyama People in relation to part of the land and waters covered by the Kowanyama claim. The 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.
ILUAs and this determination
Justice Greenwood held that this determination would take effect only upon the registration of an ILUA with Carpentaria Shire Council. This ILUA was authorised by the Kowanyama People on 14 October 2014 and dated 21 October 2014.
Other rights and interests in the determination area included in an ILUA for Errk Oykangand National Park (Cape York Peninsula Aboriginal Land) dated 23 October 2009.|