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Warria on behalf of the Kulkalgal v State of Queensland  FCA 1572 (7 December 2004)
|Binomial Name:||Federal Court of Australia|
|Date:||7 December 2004|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Aureed Island, Torres Strait, Queensland, Australia|
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|The determination area comprises the land and waters on the landward side of the High Water Mark of Lot 45 on Plan SOP104564 referred to as Aureed Island and shown on the plan in Schedule 1.|
|Legal Status:||Registered on the National Native Title Register o|
|Legal Reference:||Federal Court No: Q6006/01; Tribunal File No: QC01|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Warria on behalf of the Kulkalgal v State of Queensland  FCA 1572|
Between: Lota Warria on behalf of the Kulkalgal (APPLICANT) AND
State of Queensland, Gary David Christopher (Queensland Seafood Industry Association Inc), Paul Grunske, Barry John Hoare, Herbert Hurst, Peter Jackson, John McKenzie, Shane Stephen Mills, Raymond Moore, Peter Jorg Pahlke, Garry Michael Schiffke, Phillip George Tyrell, Raymond Waring, Margaret Janace Waring, Mark Willis, Barry Wilson (RESPONDENTS)
Judge: Cooper J
Where: Thursday Island, Torres Strait, Queensland
Native title exists in the determination area. The determination recognises that the Kulkalgul, as the common law holders of native title, are entitled to possess, occupy, use and enjoy the land and waters of the determination area, in accordance with their traditional laws and customs.
The area covered by the determination is shown on the plan in Schedule 1. Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 45 on Plan SP104564 referred to as Aureed Island.
Native title is held by the Kulkalgul People as described in Schedule 2.
The native title rights and interests identified in paragraph 3, held by the Kulkalgal People over the determination area, confer 'a right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others' subject to paragraphs 4 and 5.
The native title right in relation to water set out in paragraph 4 is a non-exclusive right to:
'(a) hunt and fish in or on, and gather from, the Water for the purpose of satisfying personal, domestic or non-commercial communal needs; and
(b) take, use and enjoy the Water for the purposes of satisfying personal, domestic or non-commercial communal needs.'
The native title rights identified are subject to and exercisable in accordance with Commonwealth and State laws and the common law, and with traditional laws and customs observed by the Native Title Holders.
Other (non-native title) interests recognised in the area are set out in Schedule 3. These include the interests of the Gau Land Trust and the beneficiaries under deed of grant No 40016531; Commonwealth registered lease interests; Shire statutory powers; interests recognised under the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, which includes the interests of indigenous Papua New Guinea persons in accessing the Determination Area for traditional purposes; and any other interests held by reason or force of operation of Commonwealth or State laws.
The interests set out in Schedule 3 may be exercised notwithstanding the existence of native title. To the extent of any inconsistency between the native title rights and other interests, the other interests prevail over native title.
The native title is to be held in trust by the Kulkalgal (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders.
|The consent determination arises from an application for determination of native title lodged on 26 February 2001. The original named applicant was Father Napoleon Warria. Following his death, Lota Warria proceeded with the application on behalf of the Kulkalgal. The main respondent is the State of Queensland. The parties mediated the issues which arose from the initial application and the Court granted the orders sought without a full hearing of the determination application.|
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