Wonga on behalf of the Wanyurr Majay People v State of Queensland [2011] FCA 1055

FEDERAL COURT OF AUSTRALIA

Wonga on behalf of the Wanyurr Majay People v State of Queensland [2011] FCA 1055 Citation: Wonga on behalf of the Wanyurr Majay People v State of Queensland [2011] FCA 1055

Parties: ANNIE WONGA, ANDREW VICTOR MILLER, ADRIAN CLIVE MURRAY, LILLIAN MAVIS WILLIS AND MARK RAYMOND WILSON ON BEHALF OF THE WANYURR MAJAY PEOPLE v STATE OF QUEENSLAND and CAIRNS REGIONAL COUNCIL

File number: QUD 296 of 2008

Judge: DOWSETT J

Date of Consent Determination: 31 August 2011

Place: Babinda

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 37

Solicitor for the Applicant: Ms L Brown of North Queensland Land Council

Solicitor for the First Respondent: Ms A Cope of Crown Law

Solicitor for the Second Respondent: Mr A Kerr of Preston Law

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 296 of 2008

BETWEEN: ANNIE WONGA, ANDREW VICTOR MILLER, ADRIAN CLIVE MURRAY, LILLIAN MAVIS WILLIS AND MARK RAYMOND WILSON ON BEHALF OF THE WANYURR MAJAY PEOPLE

Applicant

AND: STATE OF QUEENSLAND

First Respondent

CAIRNS REGIONAL COUNCIL

Second Respondent

JUDGE: DOWSETT J DATE OF ORDER: 31 AUGUST 2011 WHERE MADE: BABINDA

Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87 of the Native Title Act 1993 (Cth), BY CONSENT THE COURT ORDERS THAT: 1. There be a determination of native title in the terms set out below. 2. The determination will take effect on the registration on the Register of Indigenous Land Use Agreements, of the agreement referred to in paragraph 1(b) of Schedule 4. 3. In the event that the agreement referred to in paragraph 1(b) of Schedule 4 is not registered on the Register of Indigenous Land Use Agreements within six months of the date of this Order, the matter is to be listed for further directions. THE COURT DETERMINES THAT: 1. The Determination Area is the land and waters described in Schedule 1 (Part A), and depicted in the map attached to Schedule 1 (Part B). 2. Native title exists in relation to the Determination Area described in Schedule 1. 3. The native title is held by the Wanyurr Majay People described in Schedule 3 (the "native title holders"). 4. Subject to orders 6, 7 and 8 the nature and extent of the native title rights and interests in the Determination Area, other than in relation to Water, are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp on the area and, for that purpose, erect temporary shelters on the area; (c) hunt, fish and gather on the area for personal, domestic and non-commercial communal purposes; (d) take, use, share and exchange Natural Resources from the area for personal, domestic and non-commercial communal purposes; (e) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; (f) conduct ceremonies on the area; (g) teach on the area the physical and spiritual attributes of the area; and (h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and to protect those places and areas from physical harm. 5. Subject to orders 6, 7 and 8 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 personal, domestic and non-commercial communal purposes; and (b) take and use the Water for personal, domestic and non-commercial communal purposes. 6. 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. 7. The native title rights and interests referred to in orders 4 and 5 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 8. 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). 9. 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 4. 10. The relationship between the native title rights and interests described in paragraphs 4 and 5 and the other interests described in Schedule 4 (the "other interests") is that: (a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and (c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. 11. The native title is not held in trust. 12. The Wanyurr Majay Aboriginal Corporation ICN 4429 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of s 57 of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. 13. In this determination, words and expressions used have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth), and unless the contrary intention appears: "land" and "waters", respectively, have the same meaning as in the Native Title Act 1993 (Cth); "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Natural Resources" means: (a) any animal, plant and bird life found on or in the Determination Area, but not including fish; and (b) any clays, soil, sand, gravel or rock found on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders, but does not include: (c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); and "Water" means water as defined in the Water Act 2000 (Qld). SCHEDULE 1 – DETERMINATION AREA PART A – written description The Determination Area comprises all of the land and waters described in the following table and shown on the determination plan appearing in Part B of this Schedule, excluding: (a) the areas described in Schedule 2; and (b) any area of land and waters on which a public work (as that expression is defined in the Native Title Act 1993 (Cth)) is or has been established on or before 23 December 1996, and any adjacent land and waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work: Real Property description Determination Plan description Lot 209 on NR5584 and that Part of Lot 19 on NPW696 claimed in the Form 1 amended application filed 5 May 2011, now both described as Part of Lot 19 on Plan NPW970 commencing at Longitude 145.785564° East, Latitude 17.165995° South in Lot 19 in NPW921, and extending easterly to a corner of Lot 19 on NPW970 (also being the southwest corner of Lot 63 on RP825786), then generally easterly, generally northerly and generally south easterly along the northern and eastern boundaries Lot 19 on NPW970 to Latitude 17.396037° South being a northern boundary per the Form 1 filed 29 June 2006 of the Ngadjon-Jii People Native Title Claim; then westerly, northerly and again westerly along northern and eastern boundaries, per the Form 1 filed 29 June 2006 of the Ngadjon-Jii People Native Title Claim, to Longitude 145.821299° East; then generally northerly, generally easterly, again generally northerly, generally westerly and generally north westerly along the peaks of the range passing through the following coordinate points, back to the commencement point. Lot 20 on Plan AP20075 Longitude Latitude 145.821447 17.343739 145.821955 17.340791 145.823824 17.337650 145.827043 17.336382 145.829351 17.335741 145.830067 17.334270 145.829669 17.332958 145.829630 17.330850 145.828039 17.328544 145.827809 17.324166 145.826723 17.322183 145.826645 17.320803 145.828271 17.318970 145.830735 17.313439 145.836129 17.308183 145.838245 17.308196 145.842181 17.309331 145.844834 17.311266 145.847713 17.312203 145.848565 17.312539 145.849730 17.313144 145.850447 17.313122 145.852697 17.311951 145.855059 17.310093 145.857399 17.308578 145.858965 17.307837 145.863381 17.308165 145.869242 17.307087 145.871746 17.304996 145.871192 17.302230 145.871277 17.297307 145.872102 17.294166 145.872046 17.292328 145.872758 17.288221 145.872842 17.283570 145.872599 17.281863 145.873161 17.280588 145.873058 17.278985 145.872055 17.276303 145.872411 17.273162 145.871895 17.271220 145.870742 17.268595 145.870614 17.267869 145.870198 17.265699 145.868087 17.263273 145.864699 17.260571 145.864090 17.260505 145.858612 17.259166 145.852720 17.261800 145.848579 17.260937 145.846077 17.257571 145.845369 17.257250 145.843719 17.256830 145.843077 17.256841 145.840564 17.258324 145.834485 17.258546 145.832848 17.259146 145.832853 17.262178 145.830185 17.263040 145.828639 17.262848 145.828196 17.262841 145.822669 17.260967 145.820453 17.258344 145.818596 17.254346 145.816019 17.248678 145.813444 17.244845 145.811350 17.241569 145.809184 17.240392 145.808409 17.239967 145.807540 17.238553 145.807008 17.236954 145.806982 17.235413 145.806083 17.234824 145.805787 17.233897 145.805332 17.232184 145.806874 17.230836 145.807713 17.230578 145.808359 17.229309 145.807971 17.228276 145.807842 17.224490 145.805420 17.221933 145.802464 17.220747 145.802249 17.219112 145.800619 17.219139 145.797192 17.210306 145.794127 17.205436 145.791403 17.200158 145.790547 17.194270 145.795134 17.187459 145.797212 17.184404 145.794603 17.182046 145.793616 17.181084 145.793010 17.178130 145.791155 17.175579 145.789502 17.173891 145.787317 17.170974