|De Satge on behalf of the Butchulla People #2 v State of Queensland  FCA 1132
BRONWYN DE SATGE, RODERICK TOBANE, BELINDA BARROWCLIFFE, SHIRLEY BLAKE, GEMMA CRONIN, SANDRA PAGE, LURLINE LILLIAN BURKE, CEPHA ROMA AND BRETT NUTLEY ON BEHALF OF THE BUTCHULLA PEOPLE #2 (applicant);
STATE OF QUEENSLAND, FRASER COAST REGIONAL COUNCIL, TELSTRA CORPORATION LIMITED and KINGFISHER BAY RESORT VILLAGE PTY LTD (respondents).
Judge: Collier J
Where made: Fraser Island
Native title exists in the entire determination area. It consists of non-exclusive native title rights.
Native title is held by the Butchulla People.
Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:
- 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, and participate in, rituals and ceremonies on the area, including those relating to initiation, birth and death;
- be buried on 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, cultural, and spiritual attributes of the area;
- hold meetings on the area; and
- light fires on the area for personal and domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
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.
The native title rights and interests do not confer possession, occupation, use or enjoyment of the determination area 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 agreement:
(a) Bronwyn De Satge, Roderick Tobane, Belinda Barrowcliffe, Shirley Blake, Gemma Cronin, Sandra Page, Lurline Lillian Burke, Cepha Roma and Brett Nutley on their own behalf and on behalf of the Butchulla People, the Butchulla Aboriginal Corporation, ICN 8107 (in its capacity as the prescribed body corporate), the State of Queensland, and the Butchulla Aboriginal Corporation, ICN 8107 (in its capacity as the registered native title body corporate for the ILUA Area) as parties to the Fraser Island, Great Sandy National Park / K’Gari indigenous land use agreement (body corporate agreement), which was authorised by the native title claim group on 10 August 2014 and executed by Shirley Blake on 25 September 2014, Bronwyn De Satge, Roderick Tobane, Belinda Barrowcliffe, Gemma Cronin, Sandra Page, and Lurline Lillian Burke on 26 September 2014 and Cepha Roma and Brett Nutley on 30 September 2014, each a member of the Applicant, the Butchulla Aboriginal Corporation, ICN 8107 (in its capacity as the prescribed body corporate) on 26 September 2014, and the State of Queensland on 29 September 2014 and 8 October 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 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;
(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 lease, licence, access agreement or easements relating to its telecommunications facilities in the determination area.
3. The rights and interests of Fraser Coast 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), 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 access, use, operate, maintain and control the dedicated roads in the determination area and any public rights and interests to use and access roads;
(c) as the 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;
(d) 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) undedicated but constructed roads except for those not operated by Council;
(iii) water pipelines and other water supply infrastructure;
(iv) drainage facilities;
(v) waste facilities; and
(e) to enter the land described in paragraph (a) to:
(i) exercise any of the rights and interests referred to in paragraph (c);
(ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph
(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 Kingfisher Bay Resort Village Pty Ltd including but not limited to:
(a) the right to access, traverse, use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owner, operator or occupier of infrastructure, structures, earthworks, access works, facilities and other improvements located within the Determination Area as at the date of the Determination;
(b) its employees, agents and contractors entering upon the Determination Area for the purpose of performing their powers and responsibilities under sub-paragraph (a);
(c) rights arising under any agreements, including the right to apply for extension or renewal of the agreement, between Kingfisher Bay Resort Village Pty Ltd, and any third parties which relate to land or waters in the determination area existing or entered into before the date on which this Determination is made;
(d) the rights and interests of Kingfisher Bay Resort Village Pty Ltd under any permit which relates to land or waters in the Determination Area including:
(i) the commercial tour operator permit No. TVCA05517113; and
(ii) the Occupation Permit No. GS/11/002;
existing as at the date on which this Determination is made.
(e) to avoid doubt, the rights and interests referred to in sub-paragraph (d) include the right to allow third parties to use the land in accordance with these rights and interests.
5. The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including 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 Land Act 1994 (Qld);
(b) the Nature Conservation Act 1992 (Qld);
(c) the Forestry Act 1959 (Qld);
(d) the Water Act 2000 (Qld);
(e) the Petroleum Act 1923 (Qld) or Petroleum and Gas Act 2004 (Qld);
(f) the Mineral Resources Act 1989 (Qld);
(g) the Fire and Rescue Service Act 1990 (Qld) or Ambulance Service Act 199(Qld);
(h) the Marine Parks Act 2004 (Qld);
(i) the Fisheries Act 1994 (Qld);
(j) the Coastal Protection and Management Act 1995 (Qld);
(k) the Transport Infrastructure Act 1994 (Qld);
(l) the Transport Operations (Marine Safety) Act 1994 (Qld);
(m) the Transport Operations (Marine Pollution) Act 1995(Qld); and
(n) the Recreation Areas Management Act 2006(Qld).
6. 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.
7. So far as confirmed pursuant to section 212(2) of the Native Title Act 1993 (Cth) and section 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:
(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.
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 any part of the determination area, the native title rights continue 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, but will not extinguish them.
Rights in respect of the Military Hiring Area:
- the parties have agreed that the Military Hiring Area be included within the determination area;
- the parties have agreed that the State Minister (under the title the “State of Queensland”) may seek to vary the determination area in accordance with ss 13(1)(b) and (5) of the Native Title Act 1993 (Cth) by removing the Military Hiring Area, in the event that the High Court decides that an order made under Regulation 54 in relation to an area wholly extinguishes any native title rights and interests;
- if the State Minister makes a revised native title determination application, seeking to vary the determination in accordance with paragraph I above, the parties agree to orders being made:
(a) that provide for the revised native title determination to be served on the parties to this proceeding and the Butchulla Aboriginal Corporation RNTBC; and
(b) that any party wishing to respond to the revised native title determination application will, within 28 days of the service of the application, file a notice of address for service; and
(c) that any party that does not file a notice of address for service within the stated 28 days will not be a party to the revised native title determination application; and
(d) that any party that files a notice of address for service will consent to the revised native title determination application being argued on its merits.
Provisions relevant to the Native Title rights:
- the Butchulla Aboriginal Corporation, 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 in trust for the Butchulla People.