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McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601

Category: Agreement
Date: 23 June 2015
Sub Category:Consent Determination (Native Title Act)
Location:Located in the Southern and Western Queensland Region, Queensland, Australia
The determination area is outlined in Schedule 1 of the judgment. It is situated in Southwest Queensland centred in the Paroo River extending roughly between the Queensland/New South Wales border in the south to Dynevor Lakes in the north, from Mt Bindegolly in the west to Moonjaree Waterhole in the east and includes the towns of Eulo and Hungerford.
Legal Status: Not registered on the National Native Title Register.
Legal Reference: Tribunal file no. QC2007/002.
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/601.html?stem=0&synonyms=0&query=McKellar%20on%20behalf%20of%20the%20Budjiti%20People
Summary Information:
McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601

Between:

DINNY MCKELLAR, MELISSA BRYAN, PHILLIP EULO, MARGARET HEARN, CAROLYN HOOPER and ELIZABETH MCNIVEN (applicants);

and

STATE OF QUEENSLAND, BULLOO SHIRE COUNCIL, PAROO SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, BRIDGEFIELD PTY LIMITED, DELHI PETROLEUM PTY LTD, MOONIE PIPELINE COMPANY PTY LTD, ORIGIN ENERGY CSG LIMITED, SANTOS LIMITED, VAMGAS PTY LTD, GEOFF BARTON, BUNDOONA NOMINEES PTY LTD, FAY MARY COONEY, GRANT PATRICK COONEY, EILEEN JEAN EASTON, GORDON CHARLES EASTON, RANDALL KENNETH NEWSHAM and GREGORY NOEL VICARY SHERWIN (respondents).

Judge: Mansflied J

Where made: Currawinya Woolshed

Determination:

Native title exists in the entire determination area. It consists of non-exclusive native title rights.

Native title is held by the Budjiti People.

Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:

- access, be present on, move about on and travel over the area;

- camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

- hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

- take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

- take and use the Water of the area for personal, domestic and non-commercial communal purposes;
- conduct ceremonies and hold meetings on the area;

- be buried and bury native title holders within the area;

- maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;

- teach on the area the physical and spiritual attributes of the area;

- light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

- be accompanied onto the area by certain non-native title holders, being:
(a) spouses and other immediate family members of native title holders, pursuant to the exercise of traditional laws and customs; and
(b) people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in ceremonies.

The native title rights and interests are subject to and exercisable in accordance with:

- the Laws of the State and the Commonwealth; and

- the traditional laws acknowledged and traditional customs observed by the native title holders.

The native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others.

There are no native title rights in or in relation to:

- minerals as defined by the Mineral Resources Act 1989 (Qld);

- petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

Non-native title rights and interests that exist within the determination area:

- the rights and interests of the parties under the following agreements:
(a) the agreement between Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) and the State of Queensland, which was authorised by the native title claim group on 19 April 2015 and executed by Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) (the Currawinya National Park, Lake Bindegolly National Park Protected Areas Indigenous Land Use Agreement), and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the Registered Native Title Body Corporate;
(b) Indigenous Land Use Agreement between Bulloo Shire Council and Dinny McKellar, Phillip Eulo, Margaret Hearn, Carolyn Hooper and Melissa Bryan on behalf of the Budjiti People QUD53/200 which was authorised by the native title claim group on 19 April 2015;
(c) Indigenous Land Use Agreement between Ergon Energy Corporation Limited and Dinny McKellar, Phillip Eulo, Margaret Hearn, Carolyn Hooper and Melissa Bryan on behalf of the Budjiti People QUD53/200 which was authorised by the native title claim group on 19 April 2015;
(d) the Budjiti People/Yakara ILUA authorised on 19 April 2015;
(e) the Budjiti People/Boodgherree ILUA authorised on 19 April 2015;
(f) the Budjiti People/Bulloo Downs ILUA authorised on 19 April 2015;
(g) the Budjiti People/Bundoona ILUA authorised on 19 April 2015;
(h) the Budjiti People/Dynevor Downs ILUA authorised on 19 April 2015;
(i) the Budjiti People/Humeburn ILUA authorised on 19 April 2015;
(j) the Budjiti People/Jandell and Kyeenee ILUA authorised on 19 April 2015;
(k) the Budjiti People/Kilcowera and Zenoni ILUA authorised on 19 April 2015;
(l) the Budjiti People/Merimo ILUA authorised on 19 April 2015;
(m) the Budjiti People/Moombidary ILUA authorised on 19 April 2015;
(n) the Budjiti People/Thargo (aka Besm) ILUA authorised on 19 April 2015;
(o) the Budjiti People/Wathopa ILUA authorised on 19 April 2015;
(p) the Budjiti People/Wiralla ILUA authorised on 19 April 2015;
(q) the Budjiti People/Wombula and Yenloora ILUA authorised on 19 April 2015;
(r) the deed of agreement between Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) and Michael Connolly, Stephen Hagan, Judy Conlon, Brenda Fisher, Elizabeth McAvoy and Kayleen Hopkins for themselves and as the Kullilli Bulloo River Aboriginal Corporation Directors dated 4 March 2015; and
(s) the deed of agreement between Dinny McKellar on his own behalf and on behalf of the Budjiti People (QUD532007) and Ronald Herbert McKellar and Maureen Alison McKellar on behalf of the Kunja People dated 5 March 2015.

- the rights and interests of Santos Limited, Vamgas Pty Ltd, Bridgefield Pty Ltd, Moonie Pipeline Company Pty Ltd, Delhi Petroleum Pty Ltd, and Origin Energy Resources Limited as joint holders of Petroleum Pipeline Licence 6 granted under the Petroleum Act 1923 (Qld).

- the rights and interests of the holders of any authority, permit, lease or licence made, granted, issued or entered into under the Land Act 1994 (Qld).

- the rights and interests of Telstra Corporation Limited:
(a) as the owner or operator of telecommunications facilities installed within the Determination Area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land;
(ii) to install and operate existing and new telecommunication facilities, including cabling, customer terminal sites, customer radio sites and ancillary facilities;
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities including cabling, customer terminal sites, customer radio sites, and ancillary facilities;
(c) for its employees, agents or contractors to access the Determination Area for the purposes of exercising the rights in (i), (ii)and (iii) above in respect of telecommunication facilities in and in the vicinity of the Determination Area;
(d) under any licences, leases, access agreements or easements relating to its telecommunications facilities in the Determination Area.
(e) The rights and interests in Term Lease 0/238257 over Lot 3 on WY802468.

- the rights and interests of Ergon Energy Corporation ACN 087 646 062:
(a) as the owner and operator of any 'Works' as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area;
(b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld);
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including:
(i) rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made;
(ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and
(iii) to inspect, maintain and manage any Works in the Determination Area.

- the rights and interests of the State of Queensland, the Bulloo Shire Council and the Paroo Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads.

- the rights and interests respectively of the Bulloo Shire Council and Paroo Shire Council as the local government for that part of the determination area within their respective Local Government Area, including:
(a) its powers, functions, responsibilities and jurisdiction under a Local Government Act;
(b) its rights and interests under any interest in land or waters within the Determination Area including under any lease, license, access agreement, easement or reserve in the Determination Area;
(c) its rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owner and operator of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;
(d) its rights under any agreements between the local government and third parties which relate to land or water in the Determination Area; and
(e) the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d).

- the rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

- the rights and interests of members of the public arising under the common law, including but not limited to the following:
(a) any subsisting public right to fish; and
(b) the public right to navigate.

- so far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places in the Determination Area:
(a) waterways;
(b) beds and banks or foreshores of waterways;
(c) stock routes; and
(d) areas that were public places at the end of 31 December 1993.

- any other rights and interests:
(a) held by the State of Queensland or Commonwealth of Australia; or
(b) existing by reason of the force and operation of the Laws of the State and the Commonwealth.

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- the non-native title interests continue to have effect, and the rights conferred by or held under the non-native title interests may be exercised notwithstanding the existence of the native title rights and interests;

- to the extent the non-native title interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the non-native title interests to the extent of the inconsistency for so long as the non-native title interests exist; and

- the non-native title interests and any activity that is required or permitted by or under, and done in accordance with, the non-native title interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.

Rights of the applicant, the State of Queensland and any respondents:

- liberty to apply to the Court on 14 days' notice to establish the precise location and boundaries of any public works and adjacent land and waters referred to under the non-native title rights and interests.

Provisions relevant to the native title rights:

- the Budjiti Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

- native title is held in trust for the Budjiti People.


Detailed Information:
Background

The native title application was first made on 20 February 2007, and has since been amended to reflect the final decision of the Budjiti People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Budjiti People as the holders of native title rights and interests over their country.

There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Budjiti claim.

The successful native title claim has provided the Budjiti People with formal recognition of approximately 16,730 square kilometres of land.

Details of Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Budjiti People in relation to part of the land and waters covered by the Budjiti claim. A signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The court was satisfied that a determination of native title was within the power of the court.

Related Entries

Agreement
  • Budjiti People and Local Government Indigenous Land Use Agreement (ILUA)
  • Ergon Energy and Budjiti People Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Yakara Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Merimo Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Thargo Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Wombula and Yenloora Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Moombidary Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Wiralla Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Kilcowera and Zenoni Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Wathopa Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Jandell and Kyeenee Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Humeburn Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Dynevor Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Bundoona Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Bulloo Downs Indigenous Land Use Agreement (ILUA)
  • Budjiti People/Boodgherree Downs Indigenous Land Use Agreement (ILUA)
  • Currawinya & Lake Bindegolly National Parks Agreement Indigenous Land Use Agreement (ILUA)
  • Organisation
  • State of Queensland - Respondent
  • Bulloo Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Paroo Shire Council - Respondent
  • Telstra Corporation Limited - Respondent
  • Origin Energy Limited - Respondent
  • Santos Ltd - Respondent
  • People
  • Budjiti People - Native Title Applicants
  • Gregory Noel Vicary Sherwin - Respondent

  • Documents

    Document
    McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601 austlii judgment extract - ( PDF)
    McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601 map of determination area - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Local Government | Native Title (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | State Government | Native Title Applicants | Native Title Claimants (registered) (Australia) | Legislation | Native Title Registers

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