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Wik Peoples v State of Queensland  FCA 1443 (Determination No. 1)
|Binomial Name:||Federal Court of Australia|
|Date:||3 October 2000|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Western Cape York Peninsula, Queensland, Australia|
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|The Determination area includes the land and waters inland of the high water mark at mean Spring tide of the main sea of the Gulf of Carpentaria; The land and waters inland of lines drawn at such high water mark across the mouth of the bays, creeks and rivers of that area including but not limited to Archer Bay, Ward River, Watson River, Archer River, Love River, Kirke River, Knox Creek, Kendall River, Holroyd River (known locally as South Kendall River), Hersey Creek (known locally as Thugu or Thuuk River) and Christmas Creek (known locally as Holroyd River); And also includes (a). Only such airspace over the land and waters and such subsoil under the land and waters as is necessary for the full exercise and enjoyment of the native title and the native title rights and interests; But does not include: (a) the land and waters in and around the town of Aurukun (b). The land and waters within the area covered by a corridor 15 metres either side of the centre line of the present alignment of the existing road which connects the town of Aurukun to the Peninsula Development Road.|
|Legal Status:||Registered on the National Native Title Register o|
|Legal Reference:||Federal Court No: QG6001/98; National Native Title|
|Subject Matter:||Native Title | Recognition of Traditional Rights and Interests | Fishing | Recognition of Native Title or Traditional Ownership|
|Wik Peoples v State of Queensland  FCA 1443|
Between: McNaught Ngallametta on his own behalf and for the Wik and Wik Way Peoples, (APPLICANTS) AND
State of Queensland, Council of the Shire of Aurukun, Napranum Aboriginal Council, Pormpuraaw Aboriginal Council, Cook Shire Council, Ports Corporation of Queensland, a number of commercial fishing authority holders and Cape York Land Council (RESPONDENTS)
Judge: Drummond J
Determination: Native title exists in relation to the determination area.
|In September 1994 the National Native Title Tribunal commenced mediation on this claim and it was not until late 1999 that a partial resolution was achieved by agreement. The Wik peoples claim is being heard in two parts. The subject of this particular claim was Part A. Part A involves the Wik peoples as claimants and eight respondent parties. The other claim, Part B, is yet to be determined and involves a total of 23 parties.|
Lands in Part A are confined to lands that have always been either unallocated Crown land or lands that have only ever been subject to forms of title granted for the benefit of Aboriginal peoples. The lands in Part A do not include any lands that are the subject of pastoral or mining titles. In contrast, part B of the Wik peoples claim involves lands held under seven pastoral and four mining titles. Part A deals only with the simplest part of the Wik claim, yet it has taken 6 years to achieve this limited result. Justice Drummond noted that the practicability of negotiation must be put into serious question when issues before the court like Part A that are relatively uncomplicated have taken so long to be brought to an agreed result.
The court determined that the Wik and Wik Way Peoples held communal, group and individual rights and interests in the determination area in accordance with traditional laws and customs, and the laws of the Commonwealth and the State of Queensland. These rights and interest operate to the exclusion of all others, except those with interests and rights outlined the consent determination. Native title confers possession, occupation, use and enjoyment of the claim area, along with certain rights, duties and responsibilities. These were listed in detail by Justice Drummond in the consent determination. Native title will not be held in trust, rather it will be managed by prescribed body corporate which is yet to be nominated and will operate in accordance with the Native Title Act 1993 (Cth).
There are a number of other rights and interests in the claim area that are recognised by the consent determination. They include the rights and interests of the lessees and others to lands and waters under the Lease (Aboriginal Lands) made in 1979 and those of the grantee and others under a Deed in Grant of Trust dated from July 1987. Holders of an authority issued under the Fisheries Act 1994 also have their rights and interests in commercial fishing protected. The Crown and the State of Queensland also hold interests pursuant to any statute or valid executive or legislative act. The rights and interests of other parties prevail over the rights and interests of the native title holders when they cannot exist concurrently.
|Order 1. Native title exists in relation to the determination area.|
Order 2. The native title is held by the Wik and Wik Way peoples for their respective communal, group and individual rights and interests in the determination area in accordance with the traditional laws acknowledged and traditional customs observed by them as common law holders.
Order 3. The nature and extent of the native title rights and interests in relation to the determination area are that they confer possession, occupation, use and enjoyment of the determination area on the native titleholders and include rights, duties and responsibilities to do the following:
(a). Speak for, on behalf of and authoritatively about the determination area and assert proprietary and possessory claims over the determination area;
(b). Inherit and transmit the native title rights and interests;
(c). Give or refuse, and determine the terms of any, permission to enter, remain on, use or occupy the determination area by others;
(d). As between Aboriginal people:
i. Resolve disputes about who is or who is not a Wik person or a Wik Way person;
ii. Determine as between native title holders what are the particular native title rights and interests that are held by particular native title holders in relation to particular parts of the determination area;
iii. Exclude particular native title holders from the exercise of particular native title rights and interests;
iv. Resolve disputes between Aboriginal people concerning native title rights and interests;
v. Uphold, regulate, monitor and enforce the customary laws of the native title holders in relation to the native title rights and interests in the determination area.
(e) Make use of the determination area by:
i. Engaging in a way of life consistent with the traditional connection of the native titleholder to the determination area;
ii. Physically occupying, using and enjoying the determination area;
iii. Living on and erecting residences and other infrastructure on the determination area;
iv. Protecting, managing and using the determination area;
v. Being buried on, and burying native title holders on the determination area.
(f) Take, use and enjoy the natural resources from the determination area for the purposes of:
i. Manufacturing artefacts, objects and other products;
ii. Disposing of those natural resources and manufactured items by trade, exchange or gift save that the right of disposal of natural resources taken from the waterways of the determination area is only a right to do so for non-commercial purposes.
(g). Maintain and protect places of importance under traditional laws, customs and practices in the determination area;
(h). Be acknowledged as the traditional Aboriginal owners of the land and waters within the determination area;
(i). Use and enjoy the determination area and its natural resources for the purposes of teaching, determining, maintaining, communicating and expanding cultural, social, natural, environmental, spiritual, cosmological and other knowledge, traditions, beliefs, customs, relationships, practices and institutions in relation to the determination area so as to ensure the continuing vitality of the culture and well being of the native title holders.
Order 4. The native title rights and interests are and the native title is subject to and exercisable in accordance with:
(a). The laws of the State of Qld and the Commonwealth;
(b). Traditional laws acknowledged and traditional customs observed by the native titleholders.
Order 6. The nature and extent of any other interests in relation to the determination area are:
(a). The rights and interests of the lessee and others under the Lease (Aboriginal Lands) dates 18 January 1979;
(b). The rights and interests of the grantee and others under the Deed of Grant in Trust dated 23 July 1987;
(c). Any rights and interests of a holder of an authority issued under the Fisheries Act 1994 (Qld) that authorises a commercial fishing operation in the waters of the determination area as may be current at the time of this determination;
(d). Any other rights and interests held by or under the Crown by the force and operation of the laws of the State or the Commonwealth as may be current at the date of this determination.
Order 7. The relationship between the native title rights and interests and the other rights and interests is that:
(a). 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.
Order 8. The native title rights confer, possession, occupation, use and enjoyment of the det area on the native titleholders to the exclusion of all others, except those having rights and interests in Order 6.
Order 9. In the event at any time that part of the det area comprising the area covered by the waters of the Archer River, then the native title shall be subject to a right of ingress and egress by the Council of the Shire of Aurukun or any successor in title or function, for itself and for its servants or agents, by barge over the said waters for the purpose of transporting materials, provisions and supplies for the residents of Aurukun, the native title holders and as may be required by the Council of the Shire of Aurukun for the performance of its powers and functions.
By consent it is further agreed that:
Order 11. The native title is not to be held in trust.
Order 12. Within six months the registered native title claimant is to nominate in writing given to the Federal Court of Aust a prescribed body corporate for the purposes of Section 57(2) and 57(3) of the Native Title Act 1993.
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