Rockland on behalf of the Waanyi People v State of Queensland [2021] FCA 1139

Gulf of Carpentaria Region

The determination area is approx. 19 km northwest of Doomadgee in the vicinities of Nicholson River and Cliffdale Creek. It is comprised of two areas with the westernmost boundary adjoining the Queensland-Northern Territory border. For a detailed description of the area and map see Schedules 2 and 4, attached below under documents. The area is within the jurisdiction of the Burke Shire, Doomadgee Aboriginal Shire Councils.

Registered on the National Native Title Register. 

Between: Gary Rockland, Terence George, Lloyd O'Keefe and Ada Walden on behalf of the Waanyi People #2 (Applicant) and State of Queensland, Burke Shire Council, Doomadgee Aboriginal Shire Council (Respondents)

Judge: Burley J

Determination

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

Native title holders

Native title is held by the Waanyi People.

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

The exclusive native title area covers an area of approx. 2.128 ha in size, and is described in Part 1 of Schedule 2 as being part of Lot 600 on SP270333.

Exclusive native title is the right to possession, occupation, use, and enjoyment of the area (excluding water) to the exclusion of all others.

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

The non-exclusive native title area covers an area of approx. 41.463 ha, and is described in Part 2 of Schedule 2 as part of Lot 1 on CP887941.

The non-exclusive native title rights and interests include the right to:

• access, be present, and move about;
• hunt, fish and gather;
• take natural resources;
• live on, camp, and erect shelters and other structures to do so;
• lighter fires for domestic purposes, but not for hunting or clearing vegetation;
• conduct spiritual activities and ceremonies;
• be buried and bury other native title holders;
• maintain and protect places of significance under traditional laws and customers; and
• share or exchange natural resources.

Other (non-native title) rights and interests in the determination area include those held by:

• the Burke Shire Council under the Local Government Act 2009 (Qld), the Stock Route Management Act 2002 (Qld), the Biosecurity Act 1014 (Qld);
• the Doomadgee Aboriginal Shire Council under the Doomadgee Deed of Grant in Trust (DOGIT) as the local government under the Local Government Act 2009 (Qld);
• Turn Off Lagoons Pastoral Holding Company Pty Ltd as lessee of the Turn Off Lagoons Pastoral Holding;
• any authority, agreement, or contract made under the Forestry Act 1950 (Qld), including the Burke Shire Council to take quarry materials under an existing sales permit; and
• the public per s 212(2) of the Native Title Act 1993 Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld);

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 5 (attached below) for further information about the non-native title rights and interests.

The Waanyi Native Title Aboriginal Corporation is the prescribed body corporate. It holds the Waanyi People's native title in trust and performs the functions required under the Native Title Act 1993 (Cth).

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

Background

The application for this determination was made on 17 October 2018 and was accepted for registration on 9 November 2018. The parties agree that is appropriate for the Court to make a native title determination without a hearing and have freely entered into a s 87 agreement that annexes the proposed orders they seek.

The first Waanyi determination concerned an adjacent claim area that covered approx. 17,900 sq km in the Southern Gulf of Carpentaria.

Details of Judgment

Justice Burley noted that the parties provided extensive materials to the Court that included those filed in support of the first Waanyi determination, with additional connection material relating to the present application [8].

The Applicant and the State engaged in negotiations concerning the nature and extent of the rights under Waanyi traditional laws and customs and agreed to recognise some of the non-exclusive native title rights in a different form to those that were recognised in the first Waanyi determination.

Burley J was satisfied that it was appropriate to give effect to the parties' agreement by making the proposed order by consent [50].

His Honour noted that this determination is a further step for the Waanyi People along a very long path since the application for their first determination was made in 1999 and congratulated them on their persistence and determination in the face of the many obstacles that face Aboriginal people and their communities [51].

Native title exists in the entire determination area.

Related Entries

Documents