Cronin on behalf of the Butchulla People (land & sea claim #2) v State of Queensland [2019] FCA 2082

Great Sandy National Park, South of Bundaberg

The determination area includes lands and waters enclosing the whole of the Great Sandy National Park and the coast across the peninsula. For a detailed description of the area and maps see Schedule 6 of the determination, attached below under documents. The area is within the jurisdiction of the Bundaberg, Fraser Coast, and Gympie Regional Councils.

The determination area is split into four subareas. Part 1 of Schedule 4 consists of those areas in dark blue on Schedule 6, ending at the high water mark. Part 2 of Schedule 4 consists of the areas above the high tide mark, bar Wolf Island, where non-exclusive native title exists. Part 3 of Schedule 4 consists of areas below the high tide mark, bar Wolf Island, where non-exclusive native title exists. Part 4 consists of Wolf Island and a boarder 300 metres seaward. 

Registered with the National Native Title Tribunal on the Native Title Register 13 December 2019.

Cronin on behalf of the Butchulla People (land and sea claim #2) v State of Queensland [2019] 2082 FCA 

Between: Gemma Cronin, Roderick Tobane, Belinda Barrowcliffe, Bronwyn De Satge, Sandra Page, Lurline Lillian Burke, Shirley Blake, Brett Nutley and Cepha Maria Roma on behalf of the Butchulla People (Applicant) and State of Queensland, the Commonwealth of Australia, Fraser Coast Regional Council, Gympie Regional Council, Telstra Corporation Ltd and Ergon Energy Corporation Limited, Darryl Robert Doyle, Laurel Jan Baumgart, Raymond Earnest Baumgart, Trevor Charles Ree, Michael Gardener, Desmond Finlay and Michael Sims (Respondents)

Judge: O'Bryan J 

Determination

Native title exists in the entire determination area

It consists of exclusive and non-exclusive native title rights and interests. 

Native title holders

Native title is held by the Butchulla People.

Exclusive and native title rights and interests exist over part of the determination area 

The areas where exclusive native title exists are all those, other than in relation to water, in Part 1 of Schedule 4 (Exclusive areas above the High Water Mark). 

This is the right to possession, occupation, use, and enjoyment of the area, other than to water, as described in the determination, to the exclusion of all others.

Non-exclusive native title rights and interests exist over part of the determination area 

In relation to water, as described in Part 1 of Schedule 4 (Areas above the High Water Mark, save the Wolf Rock Area), these rights and interests include the right to:

• hunt, fish and gather from the water area;
• take and use natural resources of the water in the area; and
• take and use water of the area.

In relation to the determination area described in Part 2 of Schedule 4 (Non-exclusive areas above the High Water Mark, save the Wolf Rock Area) the non-exclusive rights and interests include the right to:

• access, be present and traverse over the area;
• camp and live temporarily, and for such a purpose to build temporary shelters;
• hunt, fish and gather for personal, domestic and non-commercial purposes;
• take, use, share and exchange natural resources for personal, domestic and non-commercial purposes;
• take and use water for personal, domestic and non-commercial purposes;
• conduct and participate in rituals, including those pertaining to initiation, birth and death;
• burial within the area;
• maintain places of importance and areas of significance under traditional laws and customs;
• teach on the area the physical, cultural and spiritual attributes of the area;
• hold meetings on the area; and
• light fires on the area for personal and domestic purposes, but not for hunting or clearing vegetation.

In relation to the determination area described in Part 3 of Schedule 4 (Non-exclusive areas below the High Water Mark, save the Wolf Rock Area), the non-exclusive rights and interests over the area include the right to:

• access, be present and traverse over the area;
• hunt, fish and gather for personal, domestic and non-commercial purposes;
• take, use, share and exchange natural resources for personal, domestic and non-commercial purposes;
• take and use water for personal, domestic and non-commercial purposes;
• conduct and participate in rituals, including those pertaining to initiation, birth and death;
• maintain place of importance and areas of significance under traditional laws and customs; and
• teach on the area the physical, cultural and spiritual attributes of the area.

In relation to the determination area described in Part 4 of Schedule 4 (Wolf Rock Area), the Butchulla People hold the non-exclusive right to protect the area from physical harm.

Other rights and interests in the determination area include:

• Telstra Corporation Ltd’s access, maintain and repair telecommunication facilities;
• Ergon Energy Corporation Ltd as owner and operator of 'Works' as defined by the Electricity Act 1994 (Qld);
• the State of Queensland, Fraser Coast Regional Council, and Gympie Regional Council to access, use, and maintain roads;
• Fraser Coast and Gympie Regional Councils, as the holder of any interest in land including as trustee of any reserve, as a lessor, or as grantor of any licences under their local government jurisdiction or legislation;
• Australian Maritime Safety Authority as owner, manager, or operator of aids to navigation or performing functions under s 6(1) of the Australian Maritime Safety Authority Act 1990;
• the State of Queensland pursuant to its exercise of executive power; and
• members of the public exercising common law rights, including the public right to fish or navigate.

In the case of conflict, the exercise of the non-native title rights and interests will prevail over the native title rights and interests.

See Schedule 2, attached below, for further information about the non-native title rights and interests.

The Butchulla Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as agent for the Butchulla People.

Full text of the determination is available via the URL link above.

Background

This application was filed under s 61 of the NTA on 27 November 2009. It was filed on the same date the Butchulla People filed an application for a determination over Fraser Island, K’Gari: De Satge on behalf of the Butchulla People #2 v State of Queensland [2]. Both claims share identical descriptions of the native title holders [6].

The application was amended three times before determination. The description and composition of the claim group was amended in 2014, and the lands and waters subject to the claim was reduced in 2019 [3].

Details of Judgment

The parties sought orders of consent pursuant to s 87(2) NTA [9] to approve the parties' signed agreement [9]. The notification requirements were met and the notification period ended on 5 January 2011 [28]. Justice O'Brien found that the procedural requirements of s 87(1) NTA were satisfied [28-30].

Furthermore, Justice O'Brien considered the requirements for a determination of native title under s 225 NTA [34]. Firstly, the determination area and native title holders were set out in the application. Secondly, the parties relied upon anthropological and historical evidence supplemented by affidavits and the on-country evidence process [15]. Dr Sackett's anthropological reports and lay affidavits, bar Dr Sackett's supplementary 2015 report, were considered in K'Gari and his Honour referenced K'Gari frequently. In K’Gari, Dr Sackett came to the conclusion that the Butchulla People acquired rights and interests in the determination area through a process of succession under traditional laws and customs [26]. Therefore the Court was satisfied the determination met the standards of s 225 NTA [36].

In the proposed determination two lots were excluded and set aside for a determination of exclusive native title to be made on 11 December 2020 subject to either party making a related application by 13 November 2020 [37]. These lots were subject to a permit to occupy held by Fraser Coast Shooting Complex Association Inc. Both parties considered the permit to be a low-impact future act but, in order to maintain public safety in accordance with the Weapons Act 1990 (Qld), they agreed to delay the determination over the lots so that a suitable arrangement could be negotiated for the Association to operate in the meantime [38]-[40]. 

The Court accepted the parties' proposed orders for a determination of the Butchulla People's native title, with the Butchulla Native Title Aboriginal Corporation as their representative, under s 57(2)(b) NTA [45].

Related Entries

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