|Wik Peoples v State of Queensland  FCA 1306|
This 'Non-exclusive Areas determination' (Determination No.3) is one of two consent determinations to arise out of this case; the other being the 'Exclusive Areas determinination' (Determination No.2) (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
Non-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 7 and 8 on Crown Plan AP9681 covering Lot 1 on ABL3, Lot 1 on LK4, Lot 4652 on PH988 and part of Lot 4149 on PH31, but does not include:
(a) the land and waters described in Schedule Two [ being "The land and waters within the area the subject of the road traversing the Strathburn Lease as described and shown on Lot 8 on Crown Plan AP9681 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 it is an area where previous exclusive possession acts have occurred, native title has been extinguished in relation to the whole of the area and no claimant application to the area can be made."]; and
(b) 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 Non-exclusive Area, confer non-exclusive rights to:
'(a) be present on, use and enjoy the Determination Area;
(b) make use of the Determination Area by:
(i) hunting and gathering on, in and from the Determination Area;
(ii) conducting ceremonies on the Determination Area;
(iii) being buried on, and burying Native Title Holders on, the Determination Area;
(iv) maintaining springs and wells in the Determination Area where underground water rises naturally, for the sole purpose of ensuring the free flow of water;
(c) take, use and enjoy the natural resources found on or within the Determination Area;
(d) 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
(e) 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,
and the right to inherit and succeed to the native title rights and interests.'
The nature and extent of native title rights and interests in relation to the flowing, tidal and underground waters that are within the Non-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' and for non-commercial purposes.
Other (non-native title) rights and interests recognised in the area are identified in paragraphs 5-7. These include: State and Commonwealth laws; pastoral lease interests; Shire statutory powers; fishing interests; statutory telecommunications interests and Telstra's 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.
Approval of this determination was subject to the registration of agreements made between the native title holders and: Cook Shire Council; Southwell (pastoral) Lessee; Strathburn (pastoral) Lessee; Holroyd (pastoral) Lessee; and the State of Queensland, being registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements (ILUAs). These agreements were registered in March 2005. An approved determination on the National Native Title Register (of determinations) was made following the making and registering of the ILUAs.
This consent determination was registered on the Native Title Register of Consent Determinations on 24 March 2005.