| Taylor on behalf of the Gangalidda and Garawa Peoples #1 v State of Queensland [2015] FCA 730
Between:
TERRANCE TAYLOR AND JACKY GREEN ON BEHALF OF THE GANGALIDDA AND GARAWA PEOPLES #1 (applicant);
and
STATE OF QUEENSLAND, BURKE SHIRE COUNCIL, CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION, TELSTRA CORPORATION LIMITED and PANOY PTY LTD AND WESTMORELAND PASTORAL COMPANY PTY LTD (respondents).
Judge: Dowsett J
Where made: Burketown
Determination:
Native title exists in parts of the determination area. It consists of areas of exclusive native title rights and areas of non-exclusive native title rights.
Native title is held by the Gangalidda People in the part of the determination area described in Schedule 6. Native title is held by the Garawa People in the part of the determination area described in Schedule 7.
Commencement
The determination will take effect upon the following Indigenous Land Use Agreements (ILUAs) being registered on the Register of Indigenous Land Use Agreements:
- Gangalidda and Garawa People Westmoreland Pastoral ILUA dated 5 March 2015;
- Garawa People Wentworth Pastoral ILUA dated 26 March 2015.
Exclusive native title rights and interests
- exclusive native title rights and interests exist in relation to the part of the determination area described in Schedule 2;
- these rights do not cover the use and enjoyment of water;
- the nature and extent of the native title rights in the exclusive native title area is the right to possession, occupation, use and enjoyment of the determination area described in Schedule 2, to the exclusion of all others.
Non-exclusive native title rights and interests
- non-exclusive native title rights and interests exist in relation to the part of the determination area described in Schedule 3;
- these rights do not cover the use and enjoyment of water;
- the nature and extent of the non-exclusive native title rights and interests in relation to the use and enjoyment of determination area described in Schedule 3 (other than in relation to water), are non-exclusive rights:
(a) to access, to be present on and to traverse the area;
(b) to hunt, fish and gather Natural Resources on the area for personal, domestic, and non-commercial communal purposes;
(c) to take, use, share and exchange Natural Resources from the area for personal, domestic, and non-commercial communal purposes;
(d) to camp on the area but not to reside permanently or to erect permanent structures or fixtures;
(e) to light fires on the area for domestic purposes including cooking but not for the purposes of hunting or clearing vegetation;
(f) to conduct religious and spiritual activities and ceremonies on the area;
(g) to be buried on, and bury Native Title Holders on the area; and
(h) to maintain places and areas of importance or significance to the Native Title Holders under their traditional laws and customs and protect those places and areas from physical harm.
Non-exclusive native title rights and interests in relation to the use and enjoyment of water
- the nature and extent of the native title rights and interests in relation to the use and enjoyment of water in the determination area, are non-exclusive rights:
(a) to hunt and fish in and on and gather natural resources from the water;
(b) to take, use, share and exchange natural resources from the water; and
(c) to take, use and enjoy the water,
for personal, domestic, and non-commercial communal purposes.
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).
The native title rights and interests in relation to that part of the determination area described in Schedule 3 do not confer possession, occupation, use and enjoyment of the area on the Native Title Holders to the exclusion of all others.
Non-native title rights and interests that exist within the determination area:
1. The rights and interests of the parties under the following indigenous land use agreements (“ILUAs”):
(a) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Westmoreland Pastoral Company Pty Ltd, entitled the Gangalidda and Garawa People Westmoreland Pastoral ILUA dated 5 March 2015;
(b) between Terrance Taylor and Jacky Green on behalf of the Gangalidda People and the Garawa People, Gangalidda and Garawa Native Title Aboriginal Corporation RNTBC and Panoy Pty Ltd, entitled the Garawa People Wentworth Pastoral ILUA dated 26 March 2015;
2. The rights and interests of Westmoreland Pastoral Company Pty Ltd ACN 009 711 602 under PH08/1406, over Lot 1 on Plan SP217472 (“Westmoreland Pastoral Holding”);
3. The rights and interests of Panoy Pty Ltd ACN 010 023 346 as lessee under PH08/2353, over Lot 2353 on PH1515 (“Wentworth Pastoral Holding”);
4. The rights and interests of Carpentaria Land Council Aboriginal Corporation as lessee of part of Lot 4601 on PH1676 (“Part Troutbeck Pastoral Holding”);
5. 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 telecommunications 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 the performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the determination area;
6. The rights and interests of the State of Queensland and Burke Shire 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 those roads;
7. The rights and interests of Burke Shire Council as the local government to exercise its powers and responsibilities of a local government under the Local Government Act 2009 (Qld) and any other legislation within the Burke local government area under the Local Government Regulations 2012 (Qld);
8. The rights and interests of the holders of any leases, licences, permits or authorities granted under the Forestry Act 1959 (Qld) as may be current at the date of this determination;
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 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;
10. 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 non-native title rights and interests is that:
(a) the other interests continue to have effect;
(b) in the area where s 47A of the Native Title Act 1993 (Cth) applies, and prior extinguishment is disregarded in accordance with s 47A(2) of the Native Title Act 1993 (Cth), the non-extinguishment principle in s 238 of the Native Title Act 1993 (Cth) applies to any prior interest in relation to the area in accordance with s 47A(3)(b) of the Native Title Act 1993 (Cth); and
(c) the other interests, and any activity that is required or permitted by or under and done in accordance with the other interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them except in accordance with law.
Provisions relevant to the native title rights:
- the Gangalidda and Garawa Native Title Aboriginal Corporation (RNTBC ICN 7365), 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. |
Taylor on behalf of the Gangalidda and Garawa Peoples #1 v State of Queensland [2015] FCA 731 - Map of Determination Area - ( 
Taylor on behalf of the Gangalidda and Garawa Peoples #1 v State of Queensland [2015] FCA 731 - Consent Determination Extract - (