Agreements, Treaties and Negotiated Settlements Project

Woosup on behalf of the Northern Cape York Group #1 v State of Queensland (No 3) [2014] FCA 1148
Date:	30 October 2014
Sub Category:	Consent Determination (Native Title Act)
Place:	Cape York Peninsula
State/Country:	Queensland, Australia
	The determination area is outlined in Schedule 1 of the judgment. The determination area covers a large area of the land and waters in northern, northwestern and northeastern Cape York Peninsula generally located north of the Scardon and Dulhunty Rivers and west of the western boundary and north of the northern boundary of Heathland Resources Reserve and extends on the seaward side, to the high water mark.

Legal Status:	Registered on the National Native Title Register.
Legal Reference:	Tribunal file no.: QCD2014/017; Federal Court file no.: QUD157/2011.
Subject Matter:	Native Title
URL:	http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/1148.html?stem=0&synonyms=0&query=woosup
Summary Information:
Woosup on behalf of the Northern Cape York Group #1 v State of Queensland (No 3) [2014] FCA 1148 Between: LARRY WOOSUP, ASAI PABLO, CHARLES WOOSUP, WALTER MOSES, ANZAC MCDONNELL, FRANCIS BRISBANE, MEUN LIFU, GEORGE PAUSA AND BERNARD CHARLIE ON THEIR OWN BEHALF AND ON BEHALF OF THE NORTHERN CAPE YORK GROUP #1 (applicant); and STATE OF QUEENSLAND, COOK SHIRE COUNCIL, NORTHERN PENINSULA AREA REGIONAL COUNCIL, APUDTHAMA LAND TRUST, HARRISON ATU, RON ATU, BATICOY BAMAGA, GIBSON GOWA, DICK JOEL JACOB, RON JAWAI, JACQUELINE ELIZABETH MULHOLLAND, JOHN MICHAEL MULHOLLAND, TIMACOY OBER, OLD MAPOON ABORIGINAL CORPORATION, JOHN TABUAI, GERALD TAMWOY, CLIFFORD WASIU, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED (ACN 051 775 556), ALCAN SOUTH PACIFIC PTY LTD, RTA WEIPA PTY LTD and THE ISLAND INDUSTRIES BOARD (respondents). Judge: Greenwood J Where made: Injinoo Determination: 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 Northern Cape York #1 Native Title Clam Group. 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 cultural, personal, domestic and communal purposes. - the exclusive determination areas include all of the land and waters which are depicted in dark blue on the determination map. The 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 area; - take, use, share and exchange Natural Resources on the area; - take and use the 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; - conduct ceremonies on the area; - be buried and to 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 on the area and to protect those places and areas from harm; - teach on the area the physical and spiritual attributes of the area; - hold meetings 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; 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; or (iii) 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 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 the parties under the following agreements: (a) the Jardine River National Park, Jardine River Regional Park and Heathlands Regional Park Protected Areas ILUA between Larry Woosup , Asai Pablo, Charles Woosup , Walter Moses, Anzac McDonnell, Francis Brisbane, Meun Lifu, George Pausa and Bernard Charlie on their own behalf and on behalf of the Northern Cape York #1 Peoples (QUD 157/2011), and State of Queensland dated 17 October 2014; (b) Larry Woosup , Asai Pablo, Charles Woosup , Walter Moses, Anzac McDonnell, Francis Brisbane, Meun Lifu, George Pausa and Bernard Charlie on their own behalf and on behalf of the Northern Cape York Group #1 (QUD 157/2011) and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the indigenous land use agreement dated 20 October 2014; and (c) Larry Woosup , Asai Pablo, Charles Woosup , Walter Moses, Anzac McDonnell, Francis Brisbane, Meun Lifu, George Pausa and Bernard Charlie on their own behalf and on behalf of the Northern Cape York Group #1 and Northern Peninsula Area Regional Council as parties to the Northern Cape York Group People #1 ILUA dated 15 October 2014; (d) the Northern Peninsula Area Infrastructure ILUA (QI2004/001) registered 12 December 2005. 2. The rights and interests of the State of Queensland and the Northern Peninsula Area Regional Council in the lease dated 9 September 2009 in relation to Lease A and Lease B on SP224686 in Lot 7 on Survey Plan 120089. 3. The rights and interests of the holder of Water Licence No. 103767 granted under the Water Act 2000 (Qld). 4. The rights and interests of the holder of the special lease for grazing cattle and associated activities dated 21 December 1989 being title reference 17717191. 5. The rights and interests of the holder of the special lease for grazing cattle and associated activities dated 21 December 1989 being title reference 17717190. 6. The holder of exploration permit EPM 25147 granted under the Mineral Resources Act 1989 (Qld). 7. The rights and interests of the grantee and others (including beneficiaries) under the Bamaga Deed of Grant in Trust registered 31 May 2013 being Title Reference 50914971 and/or any Deed of Grant granted or re-granted in substitution for, replacement of or in succession to the said Deed of Grant. 8. The rights and interests of the grantee and others (including beneficiaries) under the Seisia Deed of Grant in Trust registered 14 December 2012 being Title Reference 50900950 and/or any Deed of Grant granted or re-granted in substitution for, replacement of or in succession to the said Deed of Grant. 9. The rights and interests of the grantee and others (including beneficiaries) under the Umagico Deed of Grant in Trust registered 22 February 2013 being Title Reference 50906793 and/or any Deed of Grant granted or re-granted in substitution for, replacement of or in succession to the said Deed of Grant. 10. The rights and interests of the grantee and others (including beneficiaries) under the New Mapoon Deed of Grant in Trust registered 23 November 2012 being Title Reference 50898464 and/or any Deed of Grant granted or re-granted in substitution for, replacement of or in succession to the said Deed of Grant. 11. The rights and interests of the grantee and others (including beneficiaries) under the Injinoo Deed of Grant in Trust registered 22 February 2013 being Title Reference 50906792 and/or any Deed of Grant granted or re-granted in substitution for, replacement of or in succession to the said Deed of Grant. 12. The rights and interests of the grantee and beneficiaries of an estate in fee simple under deed of grant title reference No. 50307040. 13. The rights and interests of the grantee and beneficiaries of an estate in fee simple under deed of grant title reference No. 50467812. 14. The rights and interests of the grantee and beneficiaries of an estate in fee simple under deed of grant title reference No. 50914995. 15. The rights and interests of the grantee and beneficiaries of an estate in fee simple under deed of grant title reference No. 50828992. 16. 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; and (d) under any licences, leases, access agreements or easements relating to its telecommunications facilities in the Determination Area, including under: (i) an authority issued under s 35 of the National Parks and Wildlife Act 1975 (Qld) on 21 August 1985 to construct and maintain a radio telephone tower and ancillary equipment on a site described as Lease A in Lot 26 on Plan NPW49 in the Parish of Sanamere and County of Somerset. 17. 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. 18. The rights and interests of Cook 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 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 water supply infrastructure; (v) drainage facilities; (c) to enter the land described in paras 18(a) to 18(b): (i) exercise any of the rights and interests referred to in paras 18(a) to 18(b); (ii) inspect, maintain or 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. 19. The rights and interests of Northern Peninsula Area Regional 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) lessor under any leases which were entered into as at the date of the Determination; (ii) grantor of any licenses 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 water supply infrastructure; (v) drainage facilities; and (vi) cemetery and cemetery related facilities; and (d) to enter the land described in paras 19(a) to 19(c) to: (i) exercise any of the rights and interests referred to in paras 19(a) to 19(c); (ii) inspect, maintain or repair infrastructure, facilities and other improvements referred to in para 19(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. 20. The rights and interests of the Torres Shire Council as the local government for that part of the Determination Area within its Local Government Area, including: (a) its powers, functions, responsibilities and jurisdiction under a Local Government Act; (b) its rights and valid interests under any interest in land or waters within the Determination Area including under any lease, licence, access agreement, easement or Reserve in the Determination Area; (c) the rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of valid infrastructure, 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 relates to land or water in the Determination Area; and (e) the rights of their employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paras 20(a) to 20(d). 21. The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved. 22. The rights and interests granted or available to Alcan South Pacific Pty Ltd (and any successors in title) under the Alcan Agreement, including, but not limited to, rights and interests in relation to the �bauxite field� (as defined in cl 1 of such Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where: (a) �Alcan Act� means the Alcan Queensland Pty Limited Agreement Act 1965 (Qld); and (b) �Alcan Agreement� means the agreement in Sch 1 to the Alcan Act, including as amended in accordance with such Act. 23. The rights and interests granted or available to RTA Weipa Pty Ltd and Rio Tinto Aluminium Limited (and any successors in title) under the Comalco Agreement, including, but not limited to, rights and interests in relation to the �bauxite field� (as defined in cl 1 of such Agreement) and areas adjacent to or in the vicinity or outside of such bauxite field, where: (a) �Comalco Act� means the Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld); (b) �Comalco Agreement� means the agreement in Sch 1 to the Comalco Act, including as amended in accordance with such Act. 24. 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. 25. 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. 26. 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. Provisions relevant to the Native Title rights: - the Northern Cape #1 Aboriginal Corporation (ICN: 8114), 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 Northern Cape York #1 Native Title Clam Group.
Detailed Information:
Background The native title application was first made on 1 July 2011, and has since been amended to reflect the final decision of Northern Cape York #1 Native Title Claim Group about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of Northern Cape York #1 Native Title Clam Group as the holders of native title rights and interests over their country. The claim group was comprised of the Angkamuthi Seven Rivers people, the McDonnell Atampaya people and the Gudang/Yadhaigana people. There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing Northern Cape York Group #1 claim. The successful native title claim has provided Northern Cape York #1 Native Title Clam Group with formal recognition of approximately 685,642 hectares of land. This consists of approximately 368,602 hectares of exclusive native title and approximately 317,040 hectares of non-exclusive native title. 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 Northern Cape York #1 Native Title Clam Group in relation to part of the land and waters covered by the native title 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 Greenwood J referred to other rights and interests in the determination area under the following four ILUAs: 1. the Jardine River National Park, Jardine River Regional Park and Heathlands Regional Park Protected Areas ILUA; 2. an ILUA entered into with Ergon Energy Corporation Ltd on 20 October 2014; 3. an ILUA entered into with Northern Peninsula Area Regional Council on 15 October 2014; 4. the Northern Peninsula Area Infrastructure ILUA (QI2004/001) registered 12 December 2005.