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Hart on behalf of the Djiru People #2 v State of Queensland  FCA 1056 (1 September 2011)
|Binomial Name:||Federal Court of Australia|
|Date:||1 September 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Mission Beach , Queensland , Australia|
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|The Determination Area is in the locality of Mission Beach, which is south of Cairns in far north Queensland.|
|Legal Status:||Registered in the National Native Title Register|
|Legal Reference:||National Native Title Tribunal No: QC03/3 Federal Court No: QUD6003/2003|
|Subject Matter:||Access | Fishing | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Between: Dawn Hart, John Andy, Beryl Buller, John Clumpoint, Rae Kelly, Margaret Murray and Charity Ryan on behalf of the Djiru People #2 (APPLICANT) and|
State of Queensland (FIRST RESPONDENT)
Commonwealth of Australia (SECOND RESPONDENT)
Cassowary Coast Regional Council (THIRD RESPONDENT)
Ergon Energy Corporation Ltd (FOURTH RESPONDENT)
Gary Bainbridge, David Caracciolo, John Cook, Andrew Gibson, Ted B Koy, Noel Lollback, Russel William Marriage, Trevor Lawrence Purkis, Leslie John Stephens and Barry Wilson (FIFTH RESPONDENTS)
El Arish Sports and Recreational Association Inc(SIXTH RESPONDENT)
North Queensland Clump Mountain Project Cooperative Society Ltd (SEVENTH RESPONDENT)
Judge: Dowsett J
Where made: Mission Beach
Determination: Native title exists in all of the determination area. It consists of exclusive and non-exclusive native title rights over two different areas of the determination area.
Native title is held by the Djiru People. The Djiru people are those people descended from various ancestors and includes persons adopted by any of those descendants according to the traditional laws and customs of the Djiru group.
In relation to part one of the determination area, other than in relation to water, the rights consists of the possession, occupation, use and enjoyment of the area to the exclusion of all others.
In relation to water, the non-exclusive rights to hunt, fish and gather from the water and take and use the water of the area for personal, domestic and non-commercial communal purposes.
In relation to Part Two of the determination area non-exclusive native title rights and interests that exist over land and water of the determination area include:
- the right of access;
- the right to camp and erect shelters on the area but not to reside permanently;
- the right to hunt and to fish;
- the right to gather, use and share the natural resources from the area;
- the right to take water for domestic purposes;
- the right to conduct ceremonies;
- 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;
- the right to light fires for domestic purposes;
The non-exclusive rights and interests below the high water mark of part two include:
- right of access;
- the right to hunt and fish for domestic purposes;
- to take, use, share and exchange the natural resources from the area;
- conduct ceremonies on the area;
- maintain and protect significant and important places under traditional law and custom; and
- teach on the area the physical and spiritual attributes of the area.
Non-native title rights and interests that exist within the determination area
These rights can be summarised as:
- The rights and interests of Cassowary Coast Regional Council under their local government jurisdiction and functions under the Local Government Act 2009 (Qld) and an ILUA signed with the native title holders in 2010.
- The rights and interests of the holder of a permit or licence under the Fisheries Act 1994 (Qld), the Water Act 2000 (Qld) and the Nature Conservation Act 1992.
- The rights and interests of Ergon Energy Corporation Limited under various sources of legislation, as the owner and operator of electricity generation, transmission and distribution facilities within the Determination Area and under the ILUA signed with the native title holders in March 2011.
- The rights and interests of the North Queensland Clump Mountain Project Cooperative Society Ltd pursuant to an ageement made with the Cooperative for Aboriginies Ltd.
- The rights and interests of Powerlink Queensland as an owner and operator of electricity transmission facilities.
- The rights of the Djiru people, the Djiru Warrangburra Aboriginal Corporation, the Wet Tropics Management Authority and the State of Queensland under the Djiru People Protected Areas ILUA.
- The rights and interests of the Wet Tropic Managament Authority in the use and management of part of the determination area.
- The rights and interests of the State of Queensland under the Nature Conservation Act 1992 (Qld) relating to the use and management of part of the Determination Area.
- The rights and interests of the El Arish Community Sports and recreational Association Inc in relation to the reserve held in trust for the purpose of the Soldier's Memorial Hall School of Arts.
- The rights and interests of the Commonwealth of Australia under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
- The rights and interests of the Great Barrier Reef Marine Park Authority.
- Any existing rights of the public to access and enjoy waterways, foreshores, coastal waters, beaches and areas that were public prior to 31 December 1993.
- The rights and interests of the public to fish and to navigate.
- The rights under the interational right of innocent passage.
- Any rights of the State of Queensland and the Commonwealth of Australia arising under the laws of the Commonwealth and the State.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals and petroleum.
Djiru Warrangburra Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming registered as the native title body corporate. The native title is not held in trust.
The determination concerns a native title application that was lodged in March 2003 by the Djiru people for recognition of native title rights and interests over the land and waters in the area of Mission Beach. In July 2003, the Djiru people lodged another application (Djiru people #3). Both applications were accepted for registration in 2003 pursuant to s66 of the Native Title Act 1993 (Cth).
The native title determination of Djiru #2 and #3 includes 9,440 hectares of land and waters in Mission Beach and surrounding areas including areas of national parks, reserves, unallocated state land and other leases (National Native Title Tribunal, 2011). Exclusive native title rights were found in relation to approximately 540 hectares of land and non-exclusive native title rights were found over approximately 8900 hectares of land and waters (National Native Title Tribunal, 2011).
The Djiru people and the State of Queensland entered into two Indigenous Land Use Agreements (ILUAs) which provide for some of the determination area to be granted as freehold to the Djiru people and other areas to become protected as national park and nature refuge(Pitt, 2011). The ILUAs set out how Native Title rights and interests will be exercised in protected areas including the Djiru National Park, Tully Gorge National Park, Hull River National Park and Walter Hill Range Conservation Park (Pitt, 2011).
The Djiru People also negotiated ILUAs with the Cassowary Coast Regional Council and Ergon Energy providing for the ongoing management of cultural heritage and future activities (Pitt, 2011).
The Djiru determination was the 62nd native title determination in Queensland and the 56th determination by consent (National Native Title Tribunal, 2011).
Details of Judgement
The parties to the determination reached an agremment 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 considering the parties, and their access to independant legal advice.
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