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Kaurareg People v State of Queensland  FCA 657 (23 May 2001) QG 6023
|Binomial Name:||Federal Court of Australia|
|Date:||23 May 2001|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Ngurupai (Horn Island) Torres Strait, Queensland, Australia|
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|The determination area comprises land and inland waters of Ngurupai (Horn Island), Torres Strait, Queensland.|
|Legal Status:||Registered on the National Native Title Register o|
|Legal Reference:||Federal Court No: QG6023/98; National Native Title|
|Subject Matter:||Native Title | Recognition of Native Title or Traditional Ownership | Native Title - Extinguishment | Local Government | Housing, Construction and Infrastructure|
|Kaurareg People v State of Queensland  FCA 657 (23 May 2001) QG 6023|
Number 1 of 5 Kaurareg Native Title Consent Determinations
Between: Mr Billy Wasaga and Others on behalf of the Kaurareg People (APPLICANTS) AND
State of Queensland, Ergon Energy Corporation Limited, Geoffrey Donald McKenzie, Michael J Clinch, Norman A Clinch, Peter Graeme Ward, Telstra Corporation Limited, Torres Shire Council, Torres Strait Regional Authority (RESPONDENTS)
Judge: Drummond J
Native title exists in parts of the determination area.
The determination area comprises land and inland waters of Ngurupai (Horn Island), Torres Strait, Queensland.
|In May 1996 the Kaurareg People lodged five native title claims over parts of seven islands in the Torres Strait. Subsequently, five consent determinations were made by Justice Drummond and the reasons for each given together in one judgment. The parties to the consent determinations reached agreement via three Indigenous Land Use Agreements, the first was between the Kaurareg People, the Torres Shire Council and the State of Queensland, and the second and third between the Kaurareg People and the Telstra Corporation Limited and Ergon Energy Corporation Limited respectively. |
This is the first of the five consent determinations and involves the land and inland waters of Ngurupai (Horn Island), Torres Strait, Queensland. The native title rights and interests conferred on the native title holders are for the possession, occupation, use and enjoyment of the claim area to the exclusion of all others, except those whose interests are recognised in the consent determination. These rights are exercisable in accordance with traditional laws and customs, the laws of the State of Queensland and the Commonwealth, and the planning scheme and local laws of the Torres Shire Council. The details of these rights and interests were discussed by Justice Drummond in the consent determination. The native title holders have nominated a corporate body (the Kaiwalagal Aboriginal Corporation) to manage the land on their behalf in accordance with the Native Title Act 1993.
The consent determination found that native title had been wholly extinguished in areas of land and water on which any lawful public work was constructed or established, including lands and waters adjacent to the public work. Native title rights and interests had also been extinguished to the extent that they had been affected by the lawful physical activity created pursuant to lawful mining leases and interests.
Other interests and rights were recognised by the consent determination, and include those of the Torres Shire Council under its Local Government jurisdictions, functions and statutory power. The Shire's interests include those legal or equitable interests it might have in relation to the claim land and those which are protected by the Indigenous Land Use Agreement (ILUA) with the native title holders and the State of Queensland. The Shire also has interests as trustee of a reserve and a lot of land under the Land Act 1994.
The recognition of native title did not affect the State's interest in forest products or quarry materials, or the ability of the State to regulate these under the Forestry Act 1959.
The interests of the Telstra Corporation Limited and Ergon Energy Limited are protected in the exercise of their statutory functions, operation of their facilities and maintenance of their infrastructure. Both corporations have their rights additionally protected by separate ILUAs with the representatives of the native title holders. The Crown and the State of Queensland also hold interests pursuant to any statute or valid executive or legislative act that was current at the date of the determination. The State of Queensland has its interests additionally protected by the ILUA with the native title holders. The rights and interests of other parties prevail over the rights and interests of the native title holders when they cannot exist concurrently.
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