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Aplin on behalf of the Waanyi Peoples v State of Queensland (No 3)  FCA 1515
|Binomial Name:||Federal Court of Australia|
|Date:||9 December 2010|
|Location:||Century Zinc Mine, Queensland , Australia|
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|Legal Status:||Registered on the National Native Title Register.|
|Legal Reference:||National Native Title Tribunal No: QC99/23-1 Federal Court No:QUD6022/1999|
|Subject Matter:||Customary Law | Mining and Minerals | Native Title | Native Title - Extinguishment | Pastoral Activities | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Between: Dawn Aplin, Malcolm George, Eunice O'Keefe, Fred O'Keefe and Ada Walden on behalf of the Waanyi Peoples (APPLICANTS) AND|
State of Queensland(FIRST RESPONDENT)
Mount Isa City Council (SECOND RESPONDENT)
Burke Shire Council (THIRD RESPONDENT)
Ergon Energy Corporation Ltd (FOURTH RESPONDENT)
Carpentaria Land Council Aboriginal Corporation (FIFTH RESPONDENT)
Gregory Lloyd Phillips (SIXTH RESPONDENT)
Telstra Corporation Ltd (SEVENTH RESPONDENT)
MMG Century Ltd (EIGHTH RESPONDENT)
Mount Isa Mines Ltd (NINTH RESPONDENT)
Bezuma Pastoral Co Pty Ltd, Gambamora Industries Pty Ltd, Lindsay Wray Miller, Venlock Pty Ltd, Alan James Webber, Paraway Pastoral Company Ltd (TENTH RESPONDENT)
Judge: Dowsett J
Where made: Century Zinc Mine
Determination: Native title exists in parts of the determination area. It consists of exclusive and non-exclusive native title rights.
Native title is held by the Waanyi Peoples.
A person is a member of the Waanyi people as long as other Waanyi people recognise that he or she is descended (including by adoption) from a person who they recognise as having been Waanyi and the person identifies himself or herself as a Waanyi person.
Exclusive native title rights consist of the possession, occupation, use and enjoyment of the area to the exclusion of all others.
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right of access;
- the right to hunt to fish;
- the right to gather and use natural resources from the area;
- the right to camp and erect shelters on the area but not to reside permanently;
- the right to light fires for domestic purposes;
- the right to conduct religious, spiritual and ceremonial activities on the area;
- the right to be buried on, and bury other Native Title holders, on the area;
- the right to look after significant cultural sites and places;
- the right to share or exchange subsistence and other traditional resources from the native title area;
Non-exclusive water rights: In relation to the use and enjoyment of water within the determination area, the native title rights and interests are non-exclusive rights to hunt, fish and gather from the water for non-commercial, communal purposes and to take and use water for personal, domestic and non-commercial communal purposes.
Non-native title rights and interests that exist within the determination area
These rights can be summarised as
- The interests and rights of the State of Queensland under the Nature Conservation Act 1992 (Qld) and the 2010 ILUA entered into with the applicants in relation to the use and management of Boodjamulla (Lawn Hill) National Park and reserves.
- The rights and interests of the State of Queensland in relation to the infrastructure corridor and related land lots under the Century Zinc Project Act 1997 (Qld).
- The rights and interests of the State of Queensland and the Burke Shire Council, to access, use, operate, maintain and control of dedicated roads and the rights and interests of the public to use and access such roads.
- The rights and interests of the State of Queensland and the holders of exploration permits granted in accordance with the Waanyi Indigenous Land Use Agreement for Backlog Exploration Permits.
- The rights and interests of Mount Isa City Council and Burke Shire Council under their local government jurisdiction and functions under relevant state legislation.
- The rights and interests of the Bidunggu Aboriginal Land Trust;
- The rights and interests of Telstra Corporation as the owner or operator of telecommunications facilities within the Determination Area and under the relevant telecommunications legislation.
- The rights and interests of Ergon Energy Corporation Limited in relation to various easements, under various sources of legislation and as the owner and operator of electricity generation, transmission and distribution facilities within the Determination Area.
- The rights and interests of the State of Queensland and MMG Century Ltd under the Century Project Gulf Communities Agreement made with the the claimants in 1997.
- The rights and interests of any holder of a permit, licence or other interest under the following Queensland Acts: Forestry Act 1959; Fisheries Act 1994; Water Act 2000; Transport Infrastructure Act 1994; Mineral Resources Act 1989; Petroleum Act 1923; Petroleum and Gas (Production and Safety) Act 2004.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
The parties agreed that extinguishment had occurred over sixteen pastoral leases, all of which were therefore excluded from the determination area. Extinguishment also occurred over any permanent improvement such as a house, shed, constructed water storage or watering facility such as a dam or bore, stock yards and airstrips.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals, petroleum or prescribed substances as defined in the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or the Atomic Energy Act 1953 (Cth)).
Waanyi Native Title Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and as such has been registered as the native title body corporate.
The determination concerns a native title application that was lodged in 1999 by the Waanyi people for recognition of native title rights and interests. The application was accepted for registration pursuant to s109 of the Native Title Act 1993 (Cth).
Exclusive native title rights were granted over Bidungga, a former aboriginal reserve at Gregory Downs. Non-exclusive native title rights were granted over the balance of the determination area. In total, the claim area covers some 17,900 square kilometres.
The Waayni Native Title determination area is the largest determination of native title in Queensland and accounts for about one third of all native title determination lands the state (Chalk & Fitzgerald).
Recognition of native title rights and interests in the Boodjamulla (Lawn Hill) region is significant considering Waanyi people have lived in the gorge area for at least 17,000 years. The Waanyi people know the area as Rainbow Serpent country and the Gorge is sacred to the Waanyi people with middens, camp sites, grinding stones, and rock art being evidence the importance of this place (Queensland Department of Environment and Resource Management 2011).
MMG Century zinc mine site is also included in the determination. MMG Century general manager Karl Spaleck stated that the native title application and determination had the consent and support of the MMG Mines (Gribbins ABC).
Waanyi spokeswoman Kathy Willets described the determination as emotional and stated that "[t]he determination acknowledges and recognises Waanyi people as title holders of land claims... It's been a long time coming but we are all very happy with the outcome and quite relieved that it has come to this." (Cartwright 2010)
Details of Judgement
The parties to the determination, except for Gregory Lloyd Phillips, reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed on the 8 October 2010.
The court was satisfied that a determination of native title was within the power of the court and the submissions of the respondent Gregory Phillips were addressed, with orders, in a separate proceeding. The determination was supported by extensive supporting material and evidence from the claimants and anthropologists.
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