| Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116
Between:
COTT GORRINGE, RICHARD “DARBY” MCCARTHY, JOCELYN HAYLOCK, LORRAINE MCKELLAR and ROSE TURNBULL ON BEHALF OF THE MITHAKA PEOPLE (applicants);
and
STATE OF QUEENSLAND, BARCOO SHIRE COUNCIL, DIAMANTINA SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED (ACN 33 051 775 556), DELHI PETROLEUM PTY LTD, OIL COMPANY OF AUSTRALIA LIMITED, ORIGIN ENERGY RESOURCES LIMITED, SANTOS AUSTRALIAN HYDROCARBONS PTY LTD, SANTOS LIMITED, SANTOS PETROLEUM PTY LTD, VAMGAS PTY LTD, AA COMPANY PTY LTD, ARRABURY PASTORAL COMPANY PTY LTD, DAVID BROOK, BROOKLANDS PASTORAL CO PTY LTD, ESTATE OF THE LATE FRANCIS WILLIAM BROOK, JAMES W KIDD, NORTH AUSTRALIAN PASTORAL COMPANY PTY LTD, RD OLDFIELD PTY LTD, S KIDMAN & CO LTD (respondents).
Judge: Rangiah J
Where made: Windorah
Determination:
Native title exists in the entire determination area. It consists of non-exclusive native title rights.
Native title is held by the Mithaka 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 and 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 ceremonies;
- hold meetings on the area;
- teach on the area the physical and spiritual attributes of 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;
- light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation;
- to be buried and to bury native title holders on the area; and
- be accompanied onto the area by certain non- Mithaka People, being:
(i) immediate family of the native title holders, pursuant to the exercise of traditional laws acknowledged and customs observed by the native title holders; and
(ii) people required under the traditional laws acknowledged and customs observed by the native title holders for the performance of, or participation in, ceremonies.
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 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 agreements:
(a) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and Dalene Marie Wray, Anthony William Brook, Gary Francis Brook, Karen Liana Brook, and Jenna Louise Brook, which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/Adria Downs ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(b) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and Arrabury Pastoral Company Pty Ltd (ACN 009 658 851)which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/Arrabury, Cluny and Mt Leonard ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(c) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and S Kidman & Co Ltd (ACN 007 872 317), which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/Cuddapan, Durri, Glengyle, Mooraberree and Morney Plains ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(d) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and R D Oldfield Pty Ltd (ACN 388 631 231), which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/Currawilla ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(e) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and Paraway Pastoral Company Limited (ACN 122 572 641), which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/Davenport Downs and Palparara ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(f) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and North Australian Pastoral Company Pty Limited (ACN 009 591 511), which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/ Monkira ILUA), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate;
(g) the agreement between Scott Gorringe, Jocelyn Haylock, Richard McCarthy, Lorraine McKellar and Rose Turnbull, the Mithaka Aboriginal Corporation and A A Company Pty Ltd (ACN 010 317 067)which was authorised by the native title claim group on 6 September 2015 (the Mithaka People/Waverney ILUA), 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 Santos QNT Pty Ltd as holder of Authority to Prospect No. 661 granted under the Petroleum and Gas (Production and Safety Act) 2004 (Qld).
3. 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; 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.
4. The rights and interests of Ergon Energy Corporation Limited (ABN 50 087 646 062):
(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.
5. The rights and interests of the State of Queensland, the Barcoo Shire Council and the Diamantina 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 the roads.
6. The rights and interests of the Barcoo Shire Council and the Diamantina Shire Council as the local governments for that part of the Determination Area within their respective Local Government Areas, including:
(a) their powers, functions, responsibilities and jurisdiction under the Local Government Act 2009 (Qld);
(b) their 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 right to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of infrastructure, structures, earth works, access works, facilities and other improvements within the Determination Area;
(d) the rights under any agreements between the Barcoo Shire Council, Diamantina Shire Council or Quilpie Shire Council and any third party which relate to land or waters within 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 sub-paragraphs (a)–(d).
7. 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.
8. The rights and interests of the holders of any authority, permit, lease or licence made, granted, issued or entered into under the Land Act 1994 (Qld).
9. The rights and interests of members of the public arising under the common law, including but not limited to
(a) any subsisting public right to fish; and
(b) the public right to navigate.
10. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 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:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) stock routes; and
(d) areas that were public places at the end of 31 December 1993.
11. 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:
- 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 Mithaka 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 Mithaka People.
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Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116 - Schedule 1 Map of Determination Area - ( 
Gorringe on behalf of the Mithaka People v State of Queensland [2015] FCA 1116 - Consent Determination Extract - (