| Between:
Eileen Beryl Pegler, Paul Royce Butterworth, Marilyn Joyce Duncan, Athol Noel Goltz, Lorraine, Joyce McLennan, Kenneth Stewart Peters, Graham Ian Sauney, Linda Wailu, and Ronald Jock Watson on behalf of the Widi People of the Nebo Estate (APPLICANTS) and
State of Queensland, Isaac Regional Council, Ergon Energy Corporation Limited, Sunwater Limited, Telstra Corporation Limited, Marubeni Coal Pty Ltd, Nippon Steel & Sumitomo Metal Australia Pty Ltd, Queensland Coal Pty Ltd, Rio Tinto Exploration Pty Ltd, Sumisho Coal Development Queensland Pty Ltd, JFE Mineral (Australia) Pty Ltd, Mitsui Moranbah North Investment Pty Ltd, Moranbah North Coal Pty Ltd, NS Resources Australia Pty Ltd, Bowen Central Coal Pty Ltd, Nebo Central Coal Pty Ltd, Vale Australia (CQ) Pty Ltd, Vale Coal Exploration Pty Ltd, Oldfield Exploration Pty Ltd, North Queensland Pipeline No 1 Pty Ltd, North Queensland Pipeline No 2 Pty Ltd, Aurizon Network Pty Ltd, and Aurizon Operations Limited and Aurizon Property Pty Ltd (RESPONDENTS)
Judge: Dowsett J
Where made: Queensland
Determination:
Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
The non-exclusive native title rights over part of the determination area consist of:
- the right to access, be present on, move about on and travel over the area;
- the right to camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
- the right to hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
- the right to take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
- the right to take and use the Water of the area for personal, domestic and non-commercial communal purposes;
- the right to conduct ceremonies on the area;
- the right to be buried and bury native title holders within the area;
- the right to 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;
- the right to teach on the area the physical and spiritual attributes of the area;
- the right to hold meetings on the area; and
- the right to light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
The above native title rights and interests are subject to and exercisable in accordance with the laws of the State, Commonwealth, and the traditional laws and customs observed by the native title holders. Native title in this instance is also subject to the terms and conditions of the agreements referred to in paragraphs 1 of schedule 4.C insofar as those agreements apply to the Windo #2 determination area. The non-exclusive rights do not confer possession, occupation, use or enjoyment to the exclusion of all others.
Non-native title rights and interests that exist in the determination area include:
- there are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
- rights created Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:
- rights in relation to any agreement relating to the Shared Country Native Title Area existing or entered into before the date on which these orders are made;
- rights to enter the Shared Country Native Title Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph;
- to inspect, maintain and manage any works in the Shared Country Native Title Area;
- the rights and interests of Queensland Electricity Transmission Corporation Limited trading is Powerlink Queensland;
- the rights and interests of SunWater Limited and Eungella Water Pipeline Pty Ltd;
- the rights and interests of Aurizon Network Pty Ltd (ACN 132 181 116) in relation to rail transport infrastructure under the Transport Infrastructure Act 1994 (Qld);
- the rights and interests of Aurizon Network Pty Ltd (ACN 132 181 116), Aurizon Property Pty Ltd (ACN 145 991 724) or Aurizon Operations Limited (ACN 124 649 967) under any lease, licence, easement, permit or agreement within the Shared Country Native Title Area;
- the rights and interests of Vale Australia (CQ) Pty Ltd and Nebo Central Coal Pty Ltd as holders of the Exploration Permit for Coal numbered 951;
- the rights and interests of Peabody West Burton Pty Ltd (ACN 117 316 695) as the holder of an interest in EPC 682 and EPC 836 granted pursuant to the Mineral Resources Act 1989 (Qld);
- the rights and interests of Peabody West Walker Pty Ltd (ACN 117 316 739) as the holder of an interest in EPC 657 and EPC 712 granted pursuant to the Mineral Resources Act 1989 (Qld);
- the rights and interests of Peabody (Burton Coal) Pty Ltd (ACN 077 679 513) as the holder of an interest in EPC 857 and ML 70109 granted pursuant to the Mineral Resources Act 1989 (Qld);
- Peabody Energy Australia PCI Rush Pty Ltd (ACN 128 817 461) as the holder of an interest in EPC 1607 granted pursuant to the Mineral Resources Act 1989 (Qld);
- the rights and interests of Nippon Steel & Sumitomo Metal Australia Pty Ltd (ACN 001 445 049), Marubeni Coal Pty Ltd (ACN 009 932 236) and Sumisho Coal Development Queensland Pty Ltd (ACN 082 435 149) under the Mining Act 1975 (Qld);
- the rights and interests of Rio Tinto Exploration Pty Ltd under the Mineral Resources Act 1989 (Cth);
- the rights and interests of the State of Queensland and Isaac Regional Council to access, use, operate, maintain and control the dedicated roads in the Shared Country Native Title Area and the rights and interests of the public to use and access the roads;
- the rights and interests Isaac Regional Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Shared Country Native Title Area within the area declared to be its respective local government area. See extract schedule 4.14 for the detailed rights of the Isaac Regional Council;
- the rights and interests of Telstra Corporation Limited as the owner and operator of telecommunications facilities within the native title area;
- the rights of Ergon Energy Corporation, as the owner and operator of all works and energy distribution created under the Electricity Act 1994 (Cth); and
- the rights and interests of the general public to access waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes and areas that were public on the 31st of December 1993 under the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld).
The rights and interests under Indigenous Land Use Agreements (ILUA's) including:
- Barada Barna People, Widi People and Local Government Indigenous Land Use Agreement;
- the Barada Barna People, Widi People of the Nebo Estate #2 and Ergon Energy ILUA dated 16 February 2016 (the Shared Country ILUA) ;
- the parties to the Connors River Dam and Pipelines Project ILUA registered on 5 September 2011 (QI2011/009);
- the North Queensland Gas Pipeline Southern Indigenous Land Use Agreement (QI2002/049);
- the Barada Barna Native Title Area involving the Dipperu National Park Indigenous Land Use Agreement;
- the Barada Barna People and Local Government Indigenous Land Use Agreement;
- the Barada Barna People and Ergon Energy ILUA;
- the Barada Barna People/Logan Creek and Cherwell ILUA;
- the Barada Barna People/Oben Park (aka Harrybrandt West) ILUA;
- Barada Barna People/Killarney ILUA;
- the Moranbah ILUA between the Barada Barna People, Barada Barna Limited, the Minister for Economic Development and the State of Queensland; and
- the Burdekin Pipeline ILUA;
Native title is held by the Widi People.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
The Gangali Narra Widi Aboriginal Corporation RNTBC as the agent prescribed body corporate, is to perform functions required under the Native title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held on trust for the native title holders.
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Background:
This proceeding arises out of two applications over a total of 17,212 square kilometres brought on behalf of the Widi People and the Barada Barna People. The judgment notes there is no dispute the Barada Barna People are the traditional owners of most of the determination area. The boundary between the Barada Barna country and the Widi People country is the Barada Barna People's lands. On this day, the Court made three determinations of native title. This determination in favour of the Widi People, another in favour of the Barada Barna People (Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271), and another in favour of the Barada Barna and the Widi Peoples over the Shared Country Area (see also Budby on behalf of the Barada Barna People v State of Queensland (No 6) [2016] FCA 1267).
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 Widi People in relation to the part of the land and waters covered by the Widi People of the Nebo Estate #2 Application. The signed agreement 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. | |
Pegler on behalf of the Widi People of the Nebo Estate #2 v State of Queensland (No 3) [2016] FCA 1272 - map of determination area part 2 of 2 - ( 
Pegler on behalf of the Widi People of the Nebo Estate #2 v State of Queensland (No 3) [2016] FCA 1272 - National Native Title Extract - (