|Wik Peoples v State of Queensland  FCA 1306|
This 'Exclusive Areas determinination' (Determination No.2) is one of two consent determinations to arise out of this case, the other being the 'Non-exclusive Areas determination' (Determination No.3) (see the link under 'Related Agreements' below).
Between: Anthony Kerindun, Silas Wolmby, Victor Kuukumu Lawrence, Gladys Tybingoompa, Hogan Shortjoe and Robert Benon Yeium Holroyd on their own behalf and for and on behalf of the Wik and Wik Way Peoples (APPLICANTS) AND
State of Queensland, Commonwealth of Australia, Council of the Shire of Aurukun, Napranum Aboriginal Council, Pormpuraaw Aboriginal Council, Cook Shire Council, Ports Corporation of Queensland, Queensland Seafood Industry Association, Cape York Land Council, Telstra Corporation Limited, Darcy Thomas Byrnes, Raylee Frances Byrnes, Victor Patrick Byrnes and Carole Lyn Byrnes, Robert John Fraser, Eddie Holroyd, Merluna Cattle Station, Richard Mathew Price, Cameron Clive Quartermaine and Doreen Ruth Quartermaine (RESPONDENTS)
Judge: Cooper J
Where: Aurukun, Queensland
Exclusive Areas determinination
Native title exists in the determination area.
The area covered by the determination is described in Schedule One of the Determination, being 'Lots 1 to 6 (inclusive) on Crown Plan AP9682 covering Lot 3819 on PH2262, part of Lot 1 on SC211, part of Lot 5 on LK2, part of Lot 2 on WP50, Lot 10 on WP50, Lot 11 on WP50, Lot 12 on SP135863 and Lot 2 on SP161882, and includes the land and waters inland of the high water mark at mean Spring tide of the main sea of the Gulf of Carpentaria but does not include:
(a) the land and waters described in Schedule Two [ "The land and waters within the area the subject of the road traversing the Merapah Lease as described and shown on Lot 5 on Crown Plan AP9682, the two roads traversing part of the Napranum DOGIT as described and shown on the northerly section of Lot 4 on Crown Plan AP9682 and Sub-lease A on the Aurukun Shire Lease as described and shown on Lot 4 on Crown Plan AP9682 are excluded from the Determination Area in accordance with section 61A of the Native Title Act 1993 (Cth) (and section 23B(7) of the Native Title Act 1993 (Cth) and sections 20 and 21 of the Native Title (Queensland) Act 1993 (Qld)) because they are areas where previous exclusive possession acts have occurred, native title has been extinguished in relation to the whole of these areas and no claimant application to these areas can be made."];
(b) that part of the land and waters comprising the Aurukun Shire Lease within the area covered by a corridor 15 metres either side of the centre line of the present alignment of the existing road which connects the town of Aurukun to the Peninsula Development Road as described and shown on Lot 4 on Crown Plan AP9682; and
(c) minerals as defined in the Minerals Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld)'.
Native title is held by the Wik and Wik-Way Peoples. The Ngan Aak Kunch Aboriginal Corporation is nominated to be the prescribed body corporate, but is not to hold native title in trust.
The native title rights and interests, identified in paragraph 3, held by the Wik and Wik-Way Peoples over the Exclusive Area, 'confer possession, occupation, use and enjoyment' of the area, 'including rights to do the following:
(a) speak for, on behalf of and authoritatively about the Determination Area;
(b) inherit and succeed to the native title rights and interests;
(c) give or refuse, and determine the terms of any permission to enter, remain on, use or occupy the Determination Area by others;
(d) make use of the Determination Area by:
(i) engaging in a way of life consistent with the traditional connection of the Native Title Holders to the Determination Area;
(ii) hunting and gathering on, in and from the Determination Area;
(iii) living on and erecting residences and other infrastructure on the Determination Area;
(iv) conducting ceremonies on the Determination Area;
(v) being buried on, and burying Native Title Holders on, the Determination Area;
(vi) maintaining and caring for springs, wells and other places in the Determination Area where underground water rises naturally, for the purpose of ensuring the free flow of water;
(e) take, use and enjoy the natural resources from the Determination Area;
(f) maintain and protect by lawful means those places of importance and areas of significance to the Native Title Holders under their traditional laws and customs in the Determination Area; and
(g) use and enjoy the Determination Area and its natural resources for the purposes of teaching, communicating and maintaining cultural, social, environmental, spiritual and other knowledge, traditions, customs and practices of the Native Title Holders in relation to the Determination Area.'
The nature and extent of native title rights and interests in relation to the flowing, tidal and underground waters that are within the Exclusive Area, identified in paragraph 4, confer non-exclusive rights to:
'(a) hunt, gather and fish on, in and from the flowing, tidal and underground waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs;
(b) take, use and enjoy the flowing, tidal and underground waters and natural resources and fish in such waters for personal, domestic, social, cultural, religious, spiritual, ceremonial or communal needs' or for non-commercial purposes.
Other (non-native title) rights and interests recognised in the area are identified in paragraphs 5-6. These include: State and Commonwealth laws; pastoral lease interests; Aboriginal Lands lease rights; Shire and Aboriginal Council statutory powers; Deed of Grant in Trust interests; statutory powers of the Queensland Ports Corporation over the Port of Weipa; fishing interests; and statutory telecommunications interests.
Where there is an inconsistency between any native title and non-native title rights, the non-native title rights prevail to the extent of the inconsistency, but the native title rights are not extinguished.
This consent determination was registered on the Native Title Register of Consent Determinations on 24 March 2005.