Agreements, Treaties and Negotiated Settlements Project

Ah Chee v State of South Australia [2014] FCA 1048 (Wangkangurru/Yarluyandi)
Date:	3 October 2014
Sub Category:	Consent Determination (Native Title Act)
Place:	Located in the north east of South Australia and the south west of Queensland.
State/Country:	South Australia and Queensland, Australia
	The determination area is outlined in Schedule 1 of the judgment. The area covers approximately 60,600 square kilometres in the far north/north east of South Australia (the South Australian Determination Area) and approximately 19,000 square km in south western Queensland (the Queensland Determination Area). The South Australian Determination Area includes the Simpson Desert Conservation Park and the Simpson Desert Regional Reserve. Together, these reserves comprise approximately 36,000 square km with the remaining area predominantly comprising land held under pastoral lease. The Queensland Determination Area, in the south western corner of that State, includes some 10,000 square kilometres of the Munga-Thirri National Park.

Legal Status:	Registered on the National Native Title Register
Legal Reference:	Tribunal file no.: SCD2014/005; Federal court file no.: SAD6016/1998
Subject Matter:	Native Title
URL:	http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/1048.html?stem=0&synonyms=0&query=Wangkangurru
Summary Information:
Ah Chee v State of South Australia [2014] FCA 1048 Between: ARTHUR AH CHEE, HAYDYN BROMLEY, LC (DECEASED), SHARON LUCAS, BRENDA SHIELDS AND RH (DECEASED) (applicants); and STATE OF SOUTH AUSTRALIA, STATE OF QUEENSLAND, SOUTH AUSTRALIAN NATIVE TITLE SERVICES LTD, DIAMANTINA SHIRE COUNCIL, AUSTRALIAN WILDLIFE CONSERVANCY, ANTHONY WILLIAM BROOK, DAVID BROOK, GARY FRANCIS BROOK, JENNA LOUISE BROOK, KAREN LIANA BROOK, BROOKLANDS PASTORAL COMPANY PTY LTD, BROSCHUL PTY LTD, JOHN GWYNNE HUGHES, GEOFFREY LYLE MORTON, ANN SHARON OLDFIELD, S KIDMAN & CO LTD, CHARLES SIMPSON, ERGON ENERGY CORPORATION LIMITED, PERMIAN OIL PTY LTD, VICTORIA OIL AND EXPLORATION (1977) PTY LTD AND SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC (respondents). Judge: Mansfield J Where made: Pelican Point Determination: Native title exists in the part of determination area. It consists of non-exclusive native title rights. Native title is held by the Wangkangurru and Yarluyandi People. The determination area: - the Determination Area is the land and waters described in Area A and Area B as set out in Schedule 1 and depicted in the maps contained in Schedule 2 - native title exists in the Native Title Land, being that part of the Determination Area described in Schedule 3, subject to the qualifications set out in that Schedule - native title has been extinguished in relation to that part of the Determination Area described in Schedule 4 Non-exclusive native title rights and interests that exist over the determination area consist of the following rights: - the right to access and move about the Native Title Land; - the right to live and camp on the Native Title Land for the purpose of exercising their native title rights and interests, and for those purposes erect temporary shelters and other structures on the Native Title Land; - the right to hunt and fish on the land and waters of the Native Title Land; - the right to gather and use the Natural Resources of the Native Title Land; - the right to share and exchange the Natural Resources and Natural Water Resources of the Native Title Land; - the right to take and use the Natural Water Resources of the Native Title Land; - the right to cook on the Native Title Land and to light fires for domestic purposes but not for the purposes of hunting or clearing vegetation; - the right to engage and participate in cultural activities on the Native Title Land including those relating to births and deaths; - the right to conduct ceremonies and hold meetings on the Native Title Land; - the right to teach on the Native Title Land the physical and spiritual attributes of locations; - the right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders, under their traditional laws and customs, on the Native Title Land; and - the right to be accompanied on to the Native Title Land by those people who, though not Native Title Holders, are: (i) spouses of Native Title Holders; or (ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Native Title Land; or (iii) people who have rights in relation to the Native Title Land according to the traditional laws and customs acknowledged by the Native Title Holders. General limitations: - the native title rights and interests are for personal, domestic and communal use but do not include commercial use of the Native Title Land or the Natural Resources and Natural Water Resources from it; - the native title rights and interests do not confer possession, occupation, use and enjoyment of those lands and waters on the Native Title Holders to the exclusion of others. The native title rights and interests are subject to and exercisable in accordance with: - the traditional laws and customs of the Native Title Holders; - the laws of the State of South Australia, the State of Queensland and the Commonwealth, including the common law. There are no native title rights in or in relation to: In the South Australian Determination Area: - the minerals as defined in s 6 of the Mining Act 1971 (SA); - the Petroleum, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA); - a naturally occurring underground accumulation of a regulated substance as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; - a natural reservoir, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or - geothermal energy, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth. In the Queensland Determination Area: - the minerals as defined in the Mineral Resources Act 1989 (Qld); - the petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); and - the geothermal energy and geothermal resources as defined in the Geothermal Energy Act 2010 (Qld). Non-native title rights and interests that exist within the determination area: The nature and extent of the Other Interests in relation to the Native Title Land are the following as they exist as at the date of determination: PART A � GENERAL 1. The rights and interests of all parties to the Indigenous Land Use Agreements listed in Schedule 6 and Schedule 7 arising by reason of those agreements. 2. The rights and interests of Telstra Corporation Limited (or its corporate successor): (a) as the owner or operator of telecommunications facilities on the Native Title Lands; (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 existing and new telecommunications facilities; (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities; (iv) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and (c) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Native Title Land. PART B � SOUTH AUSTRALIA 3. The interests created by the following pastoral leases: (Lease Name - Pastoral Lease Number - Crown Lease Number) Macumba - 2528 - Volume 1607 Folio 55 Kallakoopah West - 2534- Volume 1628 Folio 21 Kalamurina- 2412 - Volume 1323 Folio 22 Cowarie - 2389 - Volume 1311 Folio 41 Koodnanie - 2414 - Volume 1342 Folio 26 Kanowana - 2386 - Volume 1323 Folio 48 Goyder Lagoon - 2385 - Volume 1323 Folio 47 Clifton Hills - 2387 - Volume 1597 Folio 90 Andrewilla- 2413 - Volume 1323 Folio 33 Alton Downs - 2390 - Volume 1327 Folio 10 Pandie Pandie - 2406 - Volume 1350 Folio 18 Beckwith - 2387A - Volume 1597 Folio 91 4. The interests of the Crown in right of the State of South Australia; 5. In relation to the NPWA Reserve set out in Part A of Schedule 3: (a) the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); (b) the rights and interests of the public to use and enjoy the NPWA Reserve consistent with the National Parks and Wildlife Act 1972 (SA); and (c) the interests of persons to whom valid or validated rights have been granted under the National Parks and Wildlife Act 1972 (SA). 6. The interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia, or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995 (SA), all as amended from time to time. 7. Rights or interests held by reason of the force and operation of the laws of the State of South Australia or of the Commonwealth. 8. The rights to access land by an employee or agent or instrumentality of the State of South Australia, the Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land. 9. The rights and interests of Permian Oil Pty Ltd (ACN 104 456 386) (Permian): (a) as one of the holders of Petroleum Exploration Licences PEL 87 and PEL 424 (�Permian Exploration Licences�) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (b) as the owner or operator of flow lines and other infrastructure reasonably necessary for and incidental to the Permian Exploration Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (c) created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); and (d) for the employees, agents or contractors of Permian to enter the Native Title Land to access the rights and interests of Permian and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Native Title Land in performance of their duties; (e) of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder. 10. The rights and interests of Stuart Petroleum Pty Ltd (ACN 059 146 226) (Stuart Petroleum): (a) as the holders of Petroleum Exploration Licences PEL 288, PEL 289, PEL 290 and PEL 331 (�Stuart Petroleum Exploration Licences�) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (b) as the owner or operator of other infrastructure reasonably necessary for and incidental to the Stuart Petroleum Exploration Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (c) created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (d) for the employees, agents or contractors of Stuart Petroleum to enter the Native Title Land to access the rights and interests of Stuart Petroleum and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Native Title Land in performance of their duties; and (e) of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder. 11. The rights and interests of Victoria Oil Exploration (1977) Pty Ltd (ACN 008 898 431) (Victoria Oil): (a) as one of the holders of Petroleum Exploration Licences PEL 87 and PEL 424 (�Victoria Oil Exploration Licences�) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (b) as the owner or operator of other infrastructure reasonably necessary for and incidental to the Victoria Oil Exploration Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (c) created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); (d) for the employees, agents or contractors of Victoria Oil to enter the Native Title Land to access the rights and interests of Victoria Oil and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Native Title Land in performance of their duties; and (e) of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder. PART C � QUEENSLAND 12. The rights and interests of the holders of the following: (a) Pastoral Holding Term Lease 236411 comprising Lot 20 on SP 255335 and known as Roseberth; (b) Pastoral Holding 4/5220 comprising Lot 5220 on PH1780 and known as Kamaran Downs; (c) Pastoral Development Holding 4/5308 comprising Lot 1 on CP910370 and known as Glengyle; and (d) Pastoral Development Holding 4/5331 comprising Lot 5331 on SP255336 and known as Adria Downs. 13. The rights and interests of the parties under the Memorandum of Understanding between the Wangkangurru /Yarluyandi Native Title Claim Group and the Wangkamahdla/Wangkamanha People dated 20 February 2013 (attached as Annexure A to this Schedule). 14. The rights and interests of the State of Queensland and the interests of any permittees, licensees or authorities pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the management of Lot 1 on NPW423 (Munga Thirri National Park). 15. The rights and interests of the State of Queensland and the Diamantina Shire Council to access, use, operate, maintain and control the dedicated roads in that part of the Native Title Land located in the State of Queensland, and the rights and interests of the public to use and access the roads. 16. The rights and interests of the Diamantina Shire Council for that part of the Native Title Land located in the State of Queensland and within its Local Government Area, including: (a) its powers, functions, responsibilities and jurisdiction under a Local Government Act; (b) its rights and 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 owners and operators of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area; (d) the rights under any agreements between Council and third parties which relate to land or water in the Determination Area; (e) the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d); and (f) 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 reserve. 17. The rights and interests of Ergon Energy Corporation Limited (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 Native Title Land; (b) as a distribution entity and 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 Native Title Land existing or entered into before the date on which these Orders are made; (ii) rights to enter the Native Title Land 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 Native Title Land. 18. So far as confirmed pursuant to s 212(2) of the NT Act and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of the Determination, any existing public access to, and enjoyment of, the following places in that part of the Native Title Land located in the State of Queensland: (a) Waterways; (b) Beds and banks of waterways; (c) Stock routes; and (d) Areas that were public places at the end of 31 December 1993. 19. The rights and interests of members of the public arising under the common law, including but not limited to the following: (a) the public right to fish. 20. 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 of Queensland or the Commonwealth of Australia. The native title is subject to extinguishment in accordance with the NT Act. 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 that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and - the Other Interests and any activity that is required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but, subject to any application of s 24IB or s 24JA of the NT Act, will not extinguish them. Details of Indigenous Land Use Agreements in the Determination Area SOUTH AUSTRALIA Proposed ILUAs - Wangkangurru Yarluyandi Native Title Claim Settlement Indigenous Land Use Agreement (Body Corporate Agreement) - Wangkangurru Yarluyandi Parks (Simpson Desert Regional Reserve and Simpson Desert Conservation Park) Indigenous Land Use Agreement (Body Corporate Agreement) - Wangkangurru Yarluyandi Alton Downs Pastoral Indigenous Land Use Agreement - Wangkangurru Yarluyandi Clifton Hills Pastoral Indigenous Land Use Agreement - Wangkangurru Yarluyandi Cowarie Pastoral Indigenous Land Use Agreement - Wangkangurru Yarluyandi Kalamurina Pastoral Indigenous Land Use Agreement - Wangkangurru Yarluyandi Macumba Pastoral Indigenous Land Use Agreement - Wangkangurru Yarluyandi Pandie Pandie Pastoral Indigenous Land Use Agreement Previously Executed ILUA - Wangkangurru Yarluyandi Petroleum Conjunctive ILUA (Area Agreement) S12011/023 executed on 24/06/2011 Registered on 02/03/2012 QUEENSLAND Proposed ILUAs - Arthur Ah Chee, Haydyn Bromley, Brenda Shields, Sharon Lucas, Raelene Hudson (Deceased) and Linda Crombie (deceased) on their own behalf and on behalf of the Wangkangurru/Yarluyandi People, Wangkangurru/Yarluyandi Aboriginal Corporation the State of Queensland, and Wangkangurru/Yarluyandi Aboriginal Corporation RNTBC as parties to the Munga Thirri National Park Protected Areas Indigenous Land Use Agreement (body corporate agreement), which was authorised on 16 August 2014 and executed by Arthur Ah Chee, Haydyn Bromley, Belinda Shields, Sharon Lucas and Raelene Hudson (Deceased) on their own behalf and on behalf of the Wangkangurru/Yarluyandi People, Wangkangurru/Yarluyandi Aboriginal Corporation and the State of Queensland and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the Registered Native Title Body Corporate Previously Executed ILUAS - Arthur Ah Chee, Brenda Shields, Haydyn Bromley, Raelene Hudson (deceased), Sharon Lucas and Linda Crombie (deceased) on behalf of the Wangkangurru/Yarluyandi People and Ergon Energy Corporation (ACN 087 646 062) as parties to the Indigenous Land Use Agreement registered on 30 January 2013 - Arthur Ah Chee, Brenda Shields, Haydyn Bromley, Sharon Lucas, Linda Crombie (deceased) and Raelene Hudson (deceased) on behalf of the Wangkangurru/Yarluyandi People and Diamantina Shire Council as parties to the indigenous land use agreement registered on 10 January 2013 Rights of the applicant, the State of South Australia and any respondents: - in relation to Area A of the Determination area, the Applicant (through the Prescribed Body Corporate), the State of South Australia, or any other respondent party have the liberty to apply to the Court on 14 days� notice to establish the precise location and boundaries of any public works and adjacent land and waters referred to under the non-native title rights and interests. Provisions relevant to the Native Title rights: - the Wangkangurru/Yarluyandi 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 held in trust for the Wangkangurru/Yarluyandi People.
Detailed Information:
Background The native title application was first made on 21 August 1997 and has since been amended to reflect the final decision of the Wangkangurru and Yarluyandi People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Wangkangurru and Yarluyandi People as the holders of native title rights and interests over their country. There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Wangkangurru/Yarluyandi claim. The successful native title claim has provided the Wangkangurru and Yarluyandi People with formal recognition of approximately 79,600 square kilometres of land. 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 Wangkangurru and Yarluyandi People in relation to part of the land and waters covered by the Wangkangurru/Yarluyandi 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.