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Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 2 July 2014
Sub Category:Consent Determination (Native Title Act)
Location:Thargominda, Queensland, Australia
The claim area is situated in south western Queensland centred around the township of Thargomindah and extending south to the New South Wales border. It takes in part of the catchment of the Bulloo River with the western boundary marked by the Grey Range in the south-west and the Wilson River in the north-west. It is covered almost entirely by pastoral leases. The Kullilli People now have recognised non-exclusive rights over more than 29,581 square kilometres of land and waters.
Legal Status: Registered on National Native Title Register.
Legal Reference: Federal Court file no: QUD80/2009. Tribunal file no: QCD2014/013
Subject Matter:Access | Cultural Heritage | Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/691.html?stem=0&synonyms=0&query=FCA%20691
Summary Information:
Between:

PAOLA SMITH, JUDITH CONLON, BRENDA FISHER, STEPHEN HAGAN, KAYLEEN HOPKINS, ELIZABETH MCAVOY, RONALD WATSON AND PETER WHITE ON BEHALF OF THE KULLILLI PEOPLE (applicant);

and

STATE OF QUEENSLAND, BULLOO SHIRE COUNCIL, PAROO SHIRE COUNCIL, QUILPIE SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, BRIDGEFIELD PTY LIMITED, CIRCUMPACIFIC ENERGY CORPORATION, DELHI PETROLEUM PTY LTD, DRILLSEARCH ENERGY LIMITED, MAGELLAN PETROLEUM (EASTERN) PTY LTD, MOONIE PIPELINE COMPANY PTY LTD, OILWELLS INC OF KENTUCKY, ORIGIN ENERGY RESOURCES LIMITED, SANTOS (299) PTY LTD, SANTOS LIMITED, SANTOS QNT PTY LTD, SANTOS RESOURCES PTY LTD, VAMGAS PTY LTD, EDWARD JOHN BRIGDEN, CONSOLIDATED PASTORAL COMPANY PTY LTD, DABBAT PTY LTD, MICHAEL GIBSON, IAN JOSEPH KEMP GLASSON, LYNETTE JOAN GLASSON, ALAN RAEBLE SCHOTTELIUS, ELMA BETH SCHOTTELIUS, GREGORY NOEL VICARY SHERWIN AND USHER PASTORAL COMPANY PTY LTD (respondents).

Judge: Logan J

Where made: Thargomindah

Determination:

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

Native title is held by the Kullilli People.

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

(a) access, be present on, move about on and travel over the area;

(b) camp and for that purpose build temporary shelters;

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

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

(e) take and use the water of the area for personal, domestic and non-commercial communal purposes;

(f) conduct ceremonies on the area;

(g) be buried and bury native title holders within the area;

(h) 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; and

(i) teach on the area the physical and spiritual attributes of the area.

(j) access, be present on, move about on and travel over the area.

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

(a) the Laws of the State and the Commonwealth;

(b) the traditional laws acknowledged and traditional customs observed by the native title holders; and

(c) the terms and conditions of the agreements (described in full in paragraph 1 of Schedule 4). These include existing ILUA's between the Kullilli People and other parties. Also included are the rights of statutory rights of Telstra, Ergon Energy, public access rights of the local councils, and those held by the State in relation to:

- Land Act 1994 (Qld)

- Petroleum Act 1923 (Qld)

- Petroleum and Gas (Production and Safety) Act 2004 (Qld)

- Mineral Resources Act 1989 (Qld)

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

Kullilli Bulloo River Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders.

The native title is held in trust for the native title holders.
Detailed Information:
Background

The Kullilli People have a long history of fighting for their Native Title rights. Their first claim was in 1996 at the National Native Title Tribunal and this was then moved to the Federal Court following the 1998 Amendments to the Native Title Act 1993 (Cth). Their claim was dismissed in 2000 by Drummond J. By 2006, the Kullilli people had filed a further three ineffective claims.

This successful claim was first registered in 2009 and included further apical ancestors and a broader claim area. Counsel for the Kullilli People was given by Mr Tony McAvoy, a Kullilli man himself.

The decision was handed down by a Court sat in a marquee at Thargomindah oval, and attended by over 500 Kullilli people who had travelled from across the Nation to be present.

The claim was supported by twenty-seven affidavits showing continuing connection to Country, and research from Dr Sally Babidge. Dr Babidge's research documented the Kullilli as a people who had faced a period of "reprisal and massacre" when settlers forced them off their land. However, in spite of this terror, many Kullilli people stayed on their Country and continued practicing and teaching culture, and caring for their land.

This consent determination exists in conjunction with a number of ILUAs that have been negotiated by Kullilli People and pastoralists to address land access issues.

Details of the Judgment

Through mediation, agreement was reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Kullilli People. 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
  • Kullilli People and Ergon Energy Indigenous Land Use Agreement (ILUA)
  • Kullilli People and Local Government Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Zenoni Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Tickalara Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Wiralla Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Thargo Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Autumnvale and The Pioneers Indigneous Land Use Agreement (ILUA)
  • Kullilli People/Congie Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Kulki Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Narylico Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Clyde (aka Picarilli Downs) and Wongetta Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Norley, Orient and Pinidary Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Kuging and Orinya Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Talgeberry Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Mirintu Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Bellera, Bulloo Downs and Molesworth Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Dynevor Downs Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Ardoch Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Mulianna Indigeneous Land Use Agreement (ILUA)
  • Kullilli People/Moombidary Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Kyeenee Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Nockatunga Indigenous Land Use Agreement (ILUA)
  • Kullilli People/Pyampah (aka Wompa) Indigenous Land Use Agreement (ILUA)
  • Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801
  • Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932
  • Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588
  • Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432
  • Hoolihan on behalf of the Gugu Badhun People 2 v State of Queensland [2012] FCA 800
  • Organisation
  • State of Queensland - Respondent
  • Bulloo Shire Council - Respondent
  • Paroo Shire Council - Respondent
  • Quilpie Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • Bridgefield Party Limited - Respondent
  • Circumpacific Energy Corporation - Respondent
  • Delhi Petroleum Pty Ltd - Respondent
  • Drillsearch Energy Limited - Respondent
  • Magellan Petroleum Australia Limited - Respondent
  • Moonie Oil Pty Ltd - Respondent
  • Oilwells Inc of Kentucky - Respondent
  • Origin Energy Limited - Respondent
  • Santos Ltd - Respondent
  • Consolidated Pastoral Company Pty Ltd - Respondent
  • Dabbat Pty Ltd - Respondent
  • Usher Pastoral Company Pty Ltd - Respondent
  • National Native Title Tribunal
  • Kullilli Bulloo River Aboriginal Corporation RNTBC
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
  • People
  • Paola Smith, Peter White, Ronny Watson (also known as Ronald Watson), Stephen Hagan, Judith Conlon, Brenda Fisher, Kayleen Hopkins and Elizabeth McAvoy on behalf of the Kullilli People (QUD80/2009) - Native Title Claimant
  • Michael Gibson and Marie Therese Gibson - Respondent
  • Ian Joseph Kemp Glasson and Lynette Joan Glasson - Respondent
  • Alan Raeble Schottelius and Elma Beth Schottelius - Respondent
  • Gregory Noel Vicary Sherwin - Respondent

  • Documents

    Document
    Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691 - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Legislation | Respondent | Native Title Applicants | Native Title (Australia) | Native Title Applications/Claims (Australia) | Native Title Determination (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Registers

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