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Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600

Category: Agreement
Date: 25 June 2015
Sub Category:Consent Determination (Native Title Act)
Location:Located in the vicinity of Eromanga, Queensland, Australia
The determination area is outlined in Schedule 1 of the judgment. The determination covers an area surrounding the town of Eromanga in the south western region of Queensland. The determination area extends from Eromanga eastwards to 25 kilometres short of Quilpie and, to the north-west, 15 kilometres short of Windorah. The claim area is bordered on the west by Cooper Creek, on the north by the Cheviot Ranges, on the east by the Grey Range, and to the south, the headwaters of the Wilson River. The area covers 23,405 square kilometers of land.
Legal Status: Not yet registered on the National Native Title Register.
Legal Reference: Tribunal file no.: QCD2015/008; Federal Court file no.:QUD435/2006.
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2015/600.html?stem=0&synonyms=0&query=boonthamurra
Summary Information:
Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600

Between:

MARK WALLACE, BARBARA OLSEN AND BARBARA BOND (applicants);

and

STATE OF QUEENSLAND, BARCOO SHIRE COUNCIL, QUILPIE SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, AUSTRALIAN GASFIELDS LIMITED, BEACH PETROLEUM LIMITED, DELHI PETROLEUM LIMITED, DRILLSEARCH ENERGY LIMITED, GIDGEALPA OIL PTY LTD, ICON ENERGY LIMITED, INLAND OIL (PRODUCTION) PTY LTD, IOR ENERGY PTY LTD, MAWSON PETROLEUM LIMITED, ORIGIN ENERGY RESOURCES LIMITED, SANTOS AUSTRALIAN HYDROCARBONS PTY LTD, SANTOS LIMITED, SANTOS PETROLEUM PTY LTD, SANTOS QNT PTY LTD, VAMGAS PTY LTD, AA COMPANY PTY LTD, CONGIE PASTORAL CO PTY LTD, CONSOLIDATED PASTORAL COMPANY PTY LTD, DOCE PTY LTD, GAMBAMORA INDUSTRIES PTY LTD, GEORGINA PASTORAL COMPANY LIMITED, ALISON EMILY GROVES, JOHN WILLIAM GROVES, ROSS WILLIAM GROVES, WILLIAM BERTRAM GROVES, PETER ROBERT JUKES, NANETTE CAUSEY MACKENZIE, STUART ALEXANDER MACKENZIE, WILLIAM ALEXANDER JOHN MACKENZIE, DAVID MIDDLETON MCWATERS, SUSAN LYNNE MCWATERS, JILL A PEGLER, RAY MARGARET PEGLER, ROSS M PEGLER, GRAHAM LINDSAY PHILLOTT, BRUCE LESLIE SCOTT, MAUREEN FRANCES SCOTT, PETER DONALD SHEEHAN, WENDY ALISON SHEEHAN, DAVID JOHN SMITH, RAYMOND BRUCE STEELE, BRIAN MARK TULLY, ELIZABETH ANN TULLY, MARINA GAY TULLY, MARK DURACK TULLY, GORDAN ALEXANDER WALKER, HAZEL JANE WALKER and KENNETH ALLAN WALKER (respondents).

Judge: Mansfield J

Where made: Eromanga

Determination:

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

Native title is held by the Boonthamurra 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 smoking ceremonies and dance on the area;
- hold meetings on the area;
- teach on the area the physical and spiritual attributes of 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;
- 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:
(i) immediate family of the native title holders, pursuant to the exercise of traditional laws acknowledged and customs observed by the native title holders; and
(ii) people required under the traditional laws acknowledged and customs observed by the native title holders for the performance of, or participation in, ceremonies and dance.

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:

1. The rights and interests of the parties under the following agreements:
(a) The agreement between Barbara Olsen and Mark Wallace on their own behalf and on behalf of the Boonthamurra People (QUD435/2006), the Barcoo Shire Council and the Quilpie Shire Council as parties to the Local Government ILUA authorised on 14 April 2015;
(b) The agreement between Barbara Olsen and Mark Wallace on their own behalf and on behalf of the Boonthamurra People (QUD435/2006), and Ergon Energy Corporation Limited as parties to the Indigenous Land Use Agreement authorised on 14 April 2015;
(c) The Boonthamurra People (QUD435/2006) and Araluen and Budgerygar pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(d) The Boonthamurra People (QUD435/2006) and Buckaroola and Monler pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(e) The Boonthamurra People (QUD435/2006) and Clifton pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(f) The Boonthamurra People (QUD435/2006) and Congie pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(g) The Boonthamurra People (QUD435/2006) and Coomo pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(h) The Boonthamurra People (QUD435/2006) and Hammond Downs pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(i) The Boonthamurra People (QUD435/2006) and Harkaway pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(j) The Boonthamurra People (QUD435/2006) and Kalabra pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(k) The Boonthamurra People (QUD435/2006) and Keeroongooloo pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(l) The Boonthamurra People (QUD435/2006) and Malagarga and Mt Howitt pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(m) The Boonthamurra People (QUD435/2006) and Maroo and Regleigh pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(n) The Boonthamurra People (QUD435/2006) and Moothandella pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(o) The Boonthamurra People (QUD435/2006) and Nerrigundah pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(p) The Boonthamurra People (QUD435/2006) and Nockatunga pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(q) The Boonthamurra People (QUD435/2006) and Panjee and Talgeberry pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(r) The Boonthamurra People (QUD435/2006) and Plevna Downs pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(s) The Boonthamurra People (QUD435/2006) and Quartpot pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(t) The Boonthamurra People (QUD435/2006) and Raymore and Wheeo pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(u) The Boonthamurra People (QUD435/2006) and South Galway pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(v) The Boonthamurra People (QUD435/2006) and Tenham pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(w) The Boonthamurra People (QUD435/2006) and Thylungra pastoral Indigenous Land Use Agreement authorised on 14 April 2015;
(x) The Boonthamurra People (QUD435/2006) and Trinidad pastoral Indigenous Land Use Agreement authorised on 14 April 2015; and
(y) The Boonthamurra People (QUD435/2006) and Whynot pastoral Indigenous Land Use Agreement authorised on 14 April 2015.

2. The rights and interests of Santos Limited and Delhi Petroleum Pty Ltd:
(a) as holders of Authority to Prospect No. 1189 granted under the Petroleum and Gas (Production and Safety Act) 2004 (Qld);

3. The rights and interests of Santos Limited, Vamgas Pty Ltd, Santos Australian Hydrocarbons Pty Ltd, Origin Energy Resources Limited, Delhi Petroleum Pty Ltd:
(a) as holders of Petroleum Lease No. 141 granted under the Petroleum Act 1923 (Qld); and
(b) as holders of Petroleum Lease No. 148 granted under the Petroleum Act 1923 (Qld).

4. The rights and interests of Vamgas Pty Ltd, Santos QNT Pty Ltd and Drillsearch Energy Limited;
(a) as holders of Authority to Prospect No. 299 granted under the Petroleum Act 1923 (Qld);
(b) as holders of Petroleum Lease No. 29 granted under the Petroleum Act 1923 (Qld);
(c) as holders of Petroleum Lease No. 38 granted under the Petroleum Act 1923 (Qld);
(d) as holders of Petroleum Lease No. 39 granted under the Petroleum Act 1923 (Qld);
(e) as holders of Petroleum Lease No. 52 granted under the Petroleum Act 1923 (Qld);
(f) as holders of Petroleum Lease No. 57 granted under the Petroleum Act 1923 (Qld);
(g) as holders of Petroleum Lease No. 95 granted under the Petroleum Act 1923 (Qld);
(h) as holders of Petroleum Lease No. 169 granted under the Petroleum Act 1923 (Qld);
(i) as holders of Petroleum Lease No. 170 granted under the Petroleum Act 1923 (Qld);
(j) as holders of Petroleum Lease No. 295 granted under the Petroleum Act 1923 (Qld);
(k) as holders of Petroleum Pipeline Licence No. 109 granted under the Petroleum and Gas (Production and Safety Act) 2004 (Qld);
(l) as holders of Petroleum Pipeline Licence No. 110 granted under the Petroleum and Gas (Production and Safety Act) 2004 (Qld);
(m) as holders of Petroleum Pipeline Licence No. 111 granted under the Petroleum and Gas (Production and Safety Act) 2004 (Qld); and
(n) as holders of Petroleum Pipeline Licence No. 112 granted under the Petroleum and Gas (Production and Safety Act) 2004 (Qld).

5. The rights and interests of Santos QNT Pty Ltd, Santos (299) Pty Ltd and Drillsearch Energy Limited:
(a) as holders of Petroleum Lease No. 293 granted under the Petroleum Act 1923 (Qld);
(b) as holders of Petroleum Lease No. 294 granted under the Petroleum Act 1923 (Qld); and
(c) as holders of Petroleum Lease No. 298 granted under the Petroleum Act 1923 (Qld).

6. The rights and interests of Santos QNT Pty Ltd:
(a) as holder of Authority to Prospect No. 636 granted under the Petroleum Act 1923 (Qld);
(b) as holder of Petroleum Lease No. 117 granted under the Petroleum Act 1923 (Qld); and
(c) as holder of Authority to Prospect No. 765 granted under the Petroleum and Gas Act 2004 (Qld)

7. The rights and interests of Doce Pty Ltd as holder of Rolling Term Lease TL 0/232564 over Lot 424 on PH1953.

8. The rights and interests of IOR Energy Pty Ltd as the holder of petroleum pipeline licence 9 granted under the Petroleum Act 1923 (Qld) and converted to a pipeline licence under the Petroleum and Gas (Production and Safety) Act 2004 (Qld), which includes the right of IOR Energy Pty Ltd, its employees, agents and contractors to enter the Determination Area and do all things necessary for or incidental to the exercise of those rights and interests in the Determination Area.

9. The rights and interests of Beach Energy Limited and Mawson Petroleum Pty Limited, as joint holders of:
(a) Petroleum Lease No. 31 granted under the Petroleum Act 1923 (Qld);
(b) Petroleum Lease No. 32 granted under the Petroleum Act 1923 (Qld);
(c) Petroleum Lease No. 47 granted under the Petroleum Act 1923 (Qld); and
(d) which includes the right of Beach Energy Limited and Mawson Petroleum Pty Limited's employees, agents or contractors to enter the Determination Area and do all things necessary to perform their duties in the Determination Area.

10. The rights and interests of Beach Energy Limited, Gidgealpa Oil Pty Ltd and Mawson Petroleum Pty Limited as joint holders of:
(a) Authority to Prospect No. 269 granted under the Petroleum Act 1923 (Qld);
(b) Petroleum Lease No. 482 granted under the Petroleum Act 1923 (Qld);
(c) Petroleum Lease No. 483 granted under the Petroleum Act 1923 (Qld); and
(d) Petroleum Lease No. 484 granted under the Petroleum Act 1923 (Qld);
(e) which includes the right of Beach Energy Limited, Gidgealpa Oil Pty Ltd and Mawson Petroleum Pty Limited's employees, agents or contractors to enter the Determination Area and do all things necessary to perform their duties in the Determination Area.

11. The rights and interests of Australian Gasfields Limited, Beach Energy Limited, and Mawson Petroleum Pty Limited, as joint holders of Petroleum Lease No. 184 granted under the Petroleum Act 1923 (Qld), which includes the right of Australian Gasfields Limited, Beach Energy Limited and Mawson Petroleum Pty Limited's employees, agents or contractors to enter the Determination Area and do all things necessary to perform their duties in the Determination Area.

12. The rights and interests of Beach Energy Limited, Inland Oil (Production) Pty Ltd, and Mawson Petroleum Pty Limited, as joint holders of Petroleum Lease No. 256 granted under the Petroleum Act 1923 (Qld), which includes the right of Beach Energy Limited, Inland Oil (Production) Pty Ltd and Mawson Petroleum Pty Limited's employees, agents or contractors to enter the Determination Area and do all things necessary to perform their duties in the Determination Area.

13. The rights and interests of Beach Energy Limited and Bengal Energy (Australia) Pty Ltd as joint holders of Authority to Prospect No.732 granted under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) which includes the right of Beach Energy Limited and Bengal Energy (Australia) Pty Ltd's employees, agents or contractors to enter the Determination Area and do all things necessary to perform their duties in the Determination Area.

14. The rights and interests of Telstra Corporation Limited (ACN 051 775 556):
(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 telecommunication facilities;
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in the performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

15. The rights and interests of Ergon Energy Corporation Limited:
(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.

16. The rights and interests of the State of Queensland, the Barcoo Shire Council and the Quilpie 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.

17. The rights and interests of the Barcoo Shire Council and Quilpie Shire Council as the local governments for that part of the Determination Area within their respective Local Government Areas, including:
(a) their powers, functions, responsibilities and jurisdiction under the Local Government Act 2009 (Qld);
(b) their rights and interests under any interest in land or waters within the Determination Area, including under any lease, licence, access agreement, easement or reserve in the Determination Area;
(c) the right to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as the owners and operators of infrastructure, structures, earth works, access works, facilities and other improvements within the Determination Area;
(d) the rights under any agreements between the Councils and any third party which relate to land or waters within the Determination Area; and
(e) the rights of their employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under sub-paragraphs (a) - (d).

18. 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.

19. 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).

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

21. 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.

22. 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 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, 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.

Provisions relevant to the Native Title rights:

- the Boonthamurra Native Title 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 Boonthamurra People.

Detailed Information:
Background

The native title application was first made on 2 November 2006, and has since been amended to reflect the final decision of the Boonthamurra People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Boonthamurra People as the holders of native title rights and interests over their country.

In making the determination, Mansfield J noted that there had initially been overlapping claims but that these had been resolved by the Queensland South Native Title Services convening the Western Region Land Summit in 2005.

The successful native title claim has provided the Boonthamurra People with formal recognition of approximately 23,405 square kilometers 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 Boonthamurra People in relation to part of the land and waters covered by the Boonthamurra 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
  • Boonthamurra Opal Indigenous Land Use Agreement (ILUA)
  • Ergon Energy and Boonthamurra People Indigenous Land Use Agreement (ILUA)
  • Boonthamurra People and Local Government Indigenous Land Use Agreement (ILUA)
  • Boonthamurra People/Burkobulla Indigenous Land Use Agreement (ILUA)
  • Boonthamurra People/Gummomo Indigenous Land Use Agreement (ILUA)
  • Boonthamurra People/Araluen and Budgerygar Indigenous Land Use Agreement (ILUA)
  • Organisation
  • State of Queensland - Respondent
  • Barcoo Shire Council - Respondent
  • Quilpie Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Telstra Corporation Limited - Respondent
  • Australian Gasfields Ltd - Respondent
  • Beach Petroleum Limited - Respondent
  • Delhi Petroleum Pty Ltd - Respondent
  • Drillsearch Energy Limited - Respondent
  • Gidgealpa Oil Pty Ltd - Respondent
  • Icon Energy Ltd - Respondent
  • Inland Oil (Production) Pty Ltd - Respondent
  • IOR Energy Pty Ltd - Respondent
  • Mawson Petroleum Pty Limited - Respondent
  • Origin Energy Limited - Respondent
  • Santos Ltd - Respondent
  • Vamgas Pty Ltd - Respondent
  • Australian Agricultural Company Pty Ltd (AA Company Pty Ltd) - Respondent
  • Congie Pastoral Company Pty Ltd - Respondent
  • Consolidated Pastoral Company Pty Ltd - Respondent
  • DOCE Pty Ltd - Respondent
  • Gambamora Industries Pty Ltd - Respondent
  • Georgina Pastoral Company Limited - Respondent
  • People
  • Mark Wallace and others on behalf of the Boonthamurra People - Respondent
  • Boonthamurra People - Native Title Applicants

  • Documents

    Document
    Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600 - Consent Determination Extract - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Applicants | Native Title Determination (Australia) | Native Title Registers | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Future Act (Native Title Act 1993 (Cth)) (Australia) | Native Title Applications/Claims (Australia) | Native Title Representative Body (NTRB) (Australia) | Native Title Claimants (registered) (Australia) | Native Title Claimants (unregistered) (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Right To Negotiate (Native Title Act 1993 (Cth)) (Australia)

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