Kuuku Ya’u People v State of Queensland [2009] FCA 679

FEDERAL COURT OF AUSTRALIA

Kuuku Ya'u People v State of Queensland [2009] FCA 679

NATIVE TITLE – consent determination - request for orders to be made under s 87 of the Native Title Act 1993 (Cth) – consideration of whether the orders appear appropriate to the Court and whether orders ought to be made as sought determining native title rights and interests in the Kuuku Ya'u People Native Title Act 1993 (Cth), ss 13, 56, 57, 87, 94A, 223, 225 Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), Reg 4 Northern Territory v Alyawarr (2005) 145 FCR 442 - cited Mabo v Queensland (No. 2) (1992) 175 CLR 1 - cited Munn (for and on behalf of the Gungari People) v Queensland (2001) 115 FCR 109 - cited Smith & Ors v State of Western Australia (2000) 104 FCR 494 - cited DEBORAH HOBSON, IVY HOBSON, LORRAINE CLARMONT, LUCY HOBSON, DONALD HOBSON AND ALBERT DOCTOR ON BEHALF OF THE KUUKU YA'U PEOPLE v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, COOK SHIRE COUNCIL, LOCKHART RIVER ABORIGINAL SHIRE COUNCIL, AUSTRALIAN MARITIME SAFETY AUTHORITY, MICHAEL CLINCH AND ROBERT WILLIAM DUNN

QUD6016 of 1998

GREENWOOD J

25 JUNE 2009

PORTLAND ROADS, CAPE YORK PENINSULA

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD6016 of 1998

BETWEEN: DEBORAH HOBSON, IVY HOBSON, LORRAINE CLARMONT, LUCY HOBSON, DONALD HOBSON AND ALBERT DOCTOR ON BEHALF OF THE KUUKU YA'U PEOPLE

Applicant

AND: STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, COOK SHIRE COUNCIL, LOCKHART RIVER ABORIGINAL SHIRE COUNCIL, AUSTRALIAN MARITIME SAFETY AUTHORITY, MICHAEL CLINCH AND ROBERT WILLIAM DUNN

Respondents

JUDGE: GREENWOOD J

DATE OF ORDER: 25 JUNE 2009

WHERE MADE: portland roads, CAPE YORK PENINSULA

BEING SATISFIED that a determination in the terms sought by the parties is within the power of the Court, and it appearing appropriate to the Court to do so by consent of the parties and pursuant to section 87 of the Native Title Act 1993 (Cth), THE COURT ORDERS THAT: 1. Native title exists in relation to the Determination Area. 2. The native title is held by the persons described in Schedule 1 ("the native title holders"). 3. Subject to paragraphs 7 and 8, the nature and extent of the native title rights and interests in relation to that part of the Determination Area identified in Schedule 2 other than in relation to Water, are the rights to possession, occupation, use and enjoyment to the exclusion of all others. 4. Subject to paragraphs, 7, 8 and 9, the nature and extent of the native title rights and interests in relation to those parts of the Determination Area referred to in Schedule 3, other than in relation to Water, are the non-exclusive rights to: (a)be present on, including by accessing, traversing and Camping on, the Determination Area; (b) take, use, share and exchange Traditional Natural Resources from the Determination Area for non-commercial cultural, spiritual, personal, domestic or communal purposes; (c)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 harm; (d) light camp fires on the Determination Area for cultural, spiritual or domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 5. Subject to paragraphs 7, 8 and 9, the nature and extent of the native title rights and interests in relation to that part of the Determination Area described in Schedule 4, other than in relation to Water, are that they confer on the native title holders non-exclusive rights to: (a)be present on, including by accessing and traversing the area; and (b) take and use Traditional Natural Resources for non-commercial cultural, spiritual, personal, domestic or communal purposes. 6. Subject to paragraphs 7, 8 and 9 the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to: (a) hunt and fish in or on, and gather from, the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes; and (b) take and use the Water for non-commercial cultural, spiritual, personal, domestic or communal purposes. 7. 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). 8. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; and (b) the traditional laws acknowledged and traditional customs observed by the native title holders. 9. The native title rights and interests referred to in paragraphs 4, 5 and 6 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 10. The nature and extent of any other rights and interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 6. 11. The relationship between the native title rights and interests described in paragraphs 3, 4, 5 and 6 and the other rights and interests described in Schedule 6 (the "other rights and interests") is that: (a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests; (b) where the non-extinguishment principle applies to the other rights and interests, to the extent the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests: (i) the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and (ii) if the other rights and interests are later removed or otherwise cease to operate, either wholly or partly, the native title rights and interests will again have effect to the extent of the removal or cessation of the other rights and interests; and (c) the other rights and interests and any activity that is required or permitted by or under and done in accordance with the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests. 12. In this order the words and expressions used have the same meanings as they have in the Native Title Act 1993 (Cth), except for the words defined in this order including the following defined words and expressions: "Camping" does not include permanent residence or the construction of permanent structures or fixtures; "Determination Area" means the land and waters described in Schedules 2, 3 and 4 and shown on the plan in Schedule 5, and to the extent of any inconsistency between the description and the plan, the description in Schedules 2, 3 and 4 prevails; "High Water Mark" has the meaning given in the Land Act 1994 (Qld); "Laws of the State and the Commonwealth" means the common law and the laws of the State and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Traditional Natural Resources" means: (a) "animals" as defined in the Nature Conservation Act 1992 (Qld); (b) "plants" as defined in the Nature Conservation Act 1992 (Qld); (c) any wax, clay, soil, sand, gravel or rock on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders; "Tidal Water" has the meaning given in the Land Act 1994 (Qld); and "Water" has the meaning given in the Water Act 2000 (Qld) and Tidal Water. THE COURT FURTHER ORDERS THAT: 13. Upon paragraphs 1-11 taking effect: (a)The native title is held in trust; and (b) The Northern Kuuku Ya'u Kanthanampu Aboriginal Corporation, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) is to: (i) be the prescribed body corporate for the purpose of sections 56(1) and 56(2) of the Native Title Act 1993 (Cth); and (ii) perform the functions mentioned in section 57(1) of the Native Title Act 1993 (Cth). 14. Paragraphs 1-11 will take effect on the agreements referred to in item 1 of Schedule 6 being registered on the register of indigenous land use agreements. 15. In the event that the agreements referred to in paragraph 14 are not registered on the register of indigenous land use agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions. 16. Each party to the proceeding is to bear its own costs.