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Elizabeth Dempsey & Ors on behalf of the Bularnu Waluwarra & Wangkayujuru People v State of Queensland & Ors (unreported, FCA, 27 May 2014, Mortimer J)

Category: Agreement
Date: 27 May 2014
Sub Category:Consent Determination (Native Title Act)
Location:Land in the Boulia, Cloncurry and Mt Isa local government areas., Queensland, Australia
The decision recognises native title rights over the Georgina River, its tributaries and includes the town of Urandangi. The area consists of 24 000 kmē kilometres of country stretching from south west of Mount Isa across to the Northern Territory border
Legal Status: Registered on the National Native Title Register
Legal Reference: Tribunal file no.: QCD2014/009
Subject Matter:Native Title
URL: http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/Determination_details.aspx?NNTT_Fileno=QCD2014/009
Summary Information:
Elizabeth Dempsey & Ors on behalf of the Bularnu Waluwarra & Wangkayujuru People v State of Queensland & Ors (unreported, FCA, 27 May 2014, Mortimer J)

Between:

ELIZABETH DEMPSEY, MARLENE SPEECHLEY, CHARLES PAGE, DAVID RILEY, MAVIS SARMARDIN AND THELMA PARKER ON BEHALF OF THE BULARNU WALUWARRA & WANGKAYUJURU PEOPLE (claimants);

and

STATE OF QUEENSLAND AND OTHERS (respondents).

Judge: Mortimer J.

Determination:

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

Native title is held by the Bularnu, Waluwarra and Wangkayujuru 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 on the area 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 spiritual, cultural and religious activities and ceremonies 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 harm;
- teach on the area the physical and spiritual attributes of the area;
- hold meetings on 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 on to the Determination Area by the Indjalandji-Dhidhanu law men who, though not native title holders, are people required by traditional law and custom for the performance of ceremonies related to the bushfire dreaming story on the Determination Area.

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

- the Laws of the State and the Commonwealth;
- the traditional laws acknowledged and traditional customs observed by the native title holders; and
- the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4 of the consent determination.

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 agreements set out in Schedule 4 of the consent determination.

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

- the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests;
- to the extent the other 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 other interests to the extent of the inconsistency for so long as the other interests exist; and
- the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them except in accordance with law.

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 native title is held in trust by the Bularnu Waluwarra Wangkayujuru Aboriginal Corporation (ICN 7666), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

- The Bularnu Waluwarra Wangkayujuru Aboriginal Corporation (ICN 7666) is to:
(a) be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and
(b) perform the functions mentioned in s57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Detailed Information:
Background

The native title application was first made on 14 January 2013. 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 Bularnu Waluwarra & Wangkayujuru claim.

The successful native title claim has provided the Bularnu Waluwarra & Wangkayujuru People with formal recognition of approximately 24,000 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 Bularnu Waluwarra & Wangkayujuru People in relation to part of the land and waters covered by the claim. The 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
  • Bularnu Waluwarra and Wangkayujuru People and Local Government Indigneous Land Use Agreement (ILUA)
  • Bularnu, Waluwarra and Wangkayujuru Peoples Urandangi Tenure Resolution Indigenous Land Use Agreement (ILUA)
  • Organisation
  • State of Queensland - Respondent
  • Bularnu Waluwarra Wangkayujuru Aboriginal Corporation
  • People
  • Elizabeth Dempsey, Marlene Speechley, Charles Page, David Riley, Mavis Sarmardin and Thelma Parker on behalf of the Bularnu Waluwarra and Wangkayujuru People - Native Title Applicants

  • Documents

    Map
    Elizabeth Dempsey & Ors on behalf of the Bularnu Waluwarra & Wangkayujuru People v State of Queensland & Ors (unreported, FCA, 27 May 2014, Mortimer J) - Schedule 1B Maps of Determination Area - ( PDF)
    Elizabeth Dempsey & Ors on behalf of the Bularnu Waluwarra & Wangkayujuru People v State of Queensland & Ors (unreported, FCA, 27 May 2014, Mortimer J) - Decision Extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Applicants | Native Title (Australia) | Native Title Registers | State Government | Claimant Application (Native Title Act 1993 (Cth)) (Australia) | Native Title Determination (Australia)

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