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Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2)  FCA 819 (26 July 2011)
|Binomial Name:||Federal Court of Australia|
|Date:||26 July 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Cape Upstart National Park , State of Queensland, Australia|
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|Cape Upstart National Park, near Bowen in Queensland, 200km south of Townsville.|
|Legal Status:||Not registered until there is registration of Juru (Cape Upstart) People Protected Area ILUA on the Register of Indigenous Land Use Agreements.|
|Legal Reference:||Tribunal File No: QC97/19 Federal Court No: QUD6249/1998|
|Subject Matter:||Access | Fishing | Marine | Native Title | Recognition Agreement / Acknowledgement | Recognition of Native Title or Traditional Ownership | Water|
|Between: Renarta Prior, Carol Prior-Patterson, Margaret Smallwood, Jeffrey Lenoy on behalf of the Juru (Cape Upstart) People (APPLICANT) and|
State of Queensland(FIRST RESPONDENT)
Whitsunday Regional Council (SECOND RESPONDENT)
Ergon Energy Corporation Ltd (THIRD RESPONDENT)
Alan Griggs (FOURTH RESPONDENT) and
William George Porter (FIFTH RESPONDENT)
Judge: Rares J
Where made: Bowen, Queensland
Determination: Native title exists in the entire determination area. It consists of non-exclusive native title rights.
Native title is held by the Juru People.
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right of access, right to camp and be present;
- the right to hunt, to fish and gather the natural resources of the Determination Area;
- the right to conduct ceremonies and cultural 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 teach the physical and spiritual attributes of the area while present in the determination area;
- the right to hold meetings in the determination area.
Non-exclusive water rights: In relation to the native title rights and interests in water within the determination area, the native title holders have the right to hunt and fish and gather from the water for personal, domestic and non-commercial communal purposes and to take and use the 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 rights and interests of Renarta Prior, Carol Prior-Patterson, Margaret Smallwood and Jeffrey Lenoy on their own behalf and on behalf of the Juru (Cape Upstart) People, Kyburra Munda Yalga Aboriginal Corporation and the State of Queensland under an Indigenous Land Use Agreement ('ILUA') entitled the 'Juru (Cape Upstart) People Protected Area ILUA' dated 7 July 2011.
- 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 Whitsunday Regional Council under its local government jurisdiction pursuant to the Local Government Act 2009(Qld).
- The rights and interests of the holder of an authority, licence or permit granted under the Fisheries Act 1994 (Qld).
- The rights and interests of the State of Queensland in those parts of the Burdekin fish habitat area.
- The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld), and any holder of a permit or licence under that act or any rights of access for recreation that a member of the public has under the Act.
- The public right to fish and to navigate in any Tidal Water within the Determination Area.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
The Native Title Determination Area
excluding any area of land and waters on which a public work is, or was, 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.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals or petroleum.
The Kyburra Munda Yalga 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 Kyburra Munda Yalga Aboriginal Corporation is to hold the native title on trust. The native title rights and interests will take effect as soon as Juru (Cape Upstart) People Protected Area ILUA is registered which must be within six months before the matter is referred to the Court for further directions.
The determination concerns a native title application that was lodged in 1997 by the Juru people for recognition of native title rights and interests over the land and waters in the area of Cape Upstart. The application was accepted for registration in 1999 pursuant to s66 of the Native Title Act 1993 (Cth).
The original applicant group included members of the Birri Gubba people. However, due to anthropological research undertaken in 2003, the claimants changed the name to Juru (Cape Upstart) People recognising the Juru people as the traditional owners of the land in the determination area. The Juru people are a tribe or clan forming a distinct part of a larger cultural block known as 'Birri Gubba'.
In total, the claim area covers some 8,500 hectares in Cape Upstart National Park, near Bowen. The determination area over the national park consisted of the northern and southern mainland parcels and the majority of Camp Island located within Abbott Bay (Nolan, 2011).
The Juru People and the Kyburra Munda Yalga Aboriginal Corporation have entered into an Indigenous Land Use Agreement with the Queensland Government regarding the managment of the National Park (Nolan, 2011).
Ms Nolan stated that the agreement "demonstrates the Juru People's ongoing commitment to maintaining the conservation values of their land as they have done from time immemorial" (Nolan, 2011).
The agreement was the 59th native title determination in Queensland (Herald Sun, 2011). Whitsunday Regional Council Mayor Mike Brunker stated that the ruling will not affect the general community yet give the Juru people access to the land and special places (Townsville Bulletin, 2011).
Details of Judgement
The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The Court was satisfied that a determination of native title was within the power of the Court.
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