Wuthathi People #2 v State of Queensland  FCA 380
|Date: ||29 April 2015|
|Sub Category:||Consent Determination (Native Title Act)|
|Place:||Northern Cape York Peninsula|
|The determination area is outlined in Schedule 1 of the judgment. It consists of approximately 1,181 square kilometres of land described as an ecologically sensitive and beautiful area around Shelburne Bay on the northern tip of Cape York Peninsula. The area lies wholly within the wider area of Wuthathi country, which extends along the coast to Captain Billy Landing in the north, extending southwards to south of the Olive River, and east to the Great Barrier Reef.|
|Legal Status: ||Registered on the National Native Title Register.|
|Legal Reference: ||Tribunal file no.: QCD2015/005; Federal court file no.: QUD6022/2002.|
|Alternative Names:||Wuthathi People #2|
|Subject Matter:||Native Title|
|Summary Information: |
|Wuthathi People #2 v State of Queensland  FCA 380
JOHNSON CHIPPENDALE, MOIRA MACUMBOY, RICHARD MCLEAN, JEAN MOSBY, PHILLIP WALLIS, DOUGLAS WILSON ON BEHALF OF THE WUTHATHI PEOPLE #2 (applicants);
STATE OF QUEENSLAND and COOK SHIRE COUNCIL (respondents).
Judge: Greenwood J
Where made: Cairns
Native title exists in the entire determination area. It consists of exclusive native title rights in relation to lands and non-exclusive native title rights in relation to waters.
Native title is held by the Wuthathi People.
Exclusive native title rights and interests that exist over the determination area, other than water, consist of the rights to:
- possession, occupation, use and enjoyment of the area to the exclusion of all others.
Non-exclusive native title rights and interests that exist over the determination area, in relation to water, consist of the rights to:
- hunt, fish and gather from the water of the area;
- take and use the water of the area; and
- access and be present on and in the Water of the area,
for cultural, personal, domestic and communal purposes;
- the native title rights in relation to water do not confer possession, occupation, use or enjoyment to the exclusion of all others.
The native title rights and interests are subject to and exercisable in accordance with:
- the Laws of the State and the Commonwealth;
- the traditional laws acknowledged and traditional customs observed by the native title holders; and
- the terms and conditions of the agreement of the Wuthathi People and Cook Shire Council (Area Agreement) indigenous land use agreement (QI2007/020) registered on 26 June 2009.
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 Wuthathi People and Cook Shire Council (Area Agreement) indigenous land use agreement (QI2007/020) registered on 26 June 2009.
2. The rights and interests of the Cook Shire Council including any rights the Council, its employees, agents and contractors have:
(a) under its local government jurisdiction and functions contained in the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and 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 dedicated roads controlled by Council;
(c) to enter land described in paras 2(a) and 2(b) in compliance with any legislative requirements regarding notice or otherwise to:
(i) exercise any of the rights and interests referred to in paras 2(a) and 2(b);
(ii) inspect, maintain and repair the infrastructure facilities and other improvements referred to in para 2(b); 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.
3. The rights and interests of the State of Queensland and the Cook Shire Council to access, use, operate and maintain the area delineated as road on Plan SP137279 for its dedicated purpose and the rights and interests of the general public to access and use that road.
4. 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.
Rights of the applicant, the State of Queensland and any respondents:
- liberty to apply to the Court on 14 daysí 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 Wuthathi Aboriginal Corporation (ICN: 7157), 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 Wuthathi People.|
|Detailed Information: |
The native title application was first made on 10 October 1997. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Wuthathi People as the holders of native title rights and interests over their country.
On 23 May 2002, six people on behalf of the Wuthathi People filed a new application over what is now the determination area and, on 19 December 2014, an agreement signed by the parties, under s 87 of the Native Title Act 1993 (Cth) (NTA), was filed with the Court.
There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Wuthanthi claim.
The successful native title claim has provided the Budjiti People with formal recognition of approximately 1181 square kilometres 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 Wuthanthi People in relation to part of the land and waters covered by the Wuthanthi 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.
(Reference: http://aiatsis.gov.au/publications/products/whats-new-native-title-april-2015) |