Warria on behalf of the Kulkalgal v State of Queensland [2004] FCA 1572

FEDERAL COURT OF AUSTRALIA

Warria on behalf of the Kulkalgal v State of Queensland [2004] FCA 1572 NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate LOTA WARRIA ON BEHALF OF THE KULKALGAL v STATE OF QUEENSLAND QG6006/01 COOPER J THURSDAY ISLAND, TORRES STRAIT 7 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q6006 OF 2001

BETWEEN: LOTA WARRIA ON BEHALF OF THE KULKALGAL

APPLICANT

AND: STATE OF QUEENSLAND

FIRST RESPONDENT

QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC

SECOND RESPONDENT

JUDGE: COOPER J

DATE: 7 DECEMBER 2004

PLACE: THURSDAY ISLAND, TORRES STRAIT

REASONS FOR JUDGMENT Background 1 This proceeding arises out of an application for determination of native title filed on 26 February 2001 in accordance with the procedures set out in the Native Title Act 1993 (Cth) ('the Act'). Father Napoleon Warria was the original named applicant in this claim. Following the death of Father Warria, Mr Lota Warria proceeded as the named applicant on behalf of the Kulkalgal. The main respondent to this determination application is the State of Queensland. 2 The determination area has been described by the parties as the land and waters on the landward side of the high water mark of Lot 45 on Plan SP104564 referred to as Aureed Island. 3 The parties to the claim have mediated the issues which arose under the application to the point where they have agreed to a consent determination. The agreement concerns exclusive and non-exclusive rights of possession, occupation, use and enjoyment of the lands and waters in the claim area. This agreement is subject to the Court being satisfied that it has the power to make the determination sought and that it is proper to do so. Power of the Court 4 This Court has jurisdiction to hear and determine applications for a determination of native title in relation to an area for which there is no approved determination of native title: ss 13, 61 and 81 of the Act. Division 1C of Part 4 of the Act provides for agreements, to be made by some or all of the parties to an application, to settle the application or part of it. 5 Section 87 of the Act provides that the Court may, if it is satisfied that such an order is within the power of the Court, make an order in, or consistent with, the terms of the parties' written agreement without holding a hearing. 6 Section 94A of the Actrequires that an order of this Court which makes a determination of native title must set out details of the matters mentioned in s 225 of the Act. Section 225 provides: 'A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.