FEDERAL COURT OF AUSTRALIA

Wallace on behalf of the Boonthamurra People v State of Queensland

[2015] FCA 600

BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth)

BY CONSENT THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out below (the Determination).

2.    The Determination will take effect upon the agreements referred to in paragraph 1 of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the agreements referred to in paragraph 2 are not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

4.    Each party to the proceedings is to bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

5.    The Determination Area is the land and waters described in Schedule 1 and depicted in the map attached to Schedule 1.

6.    Native title exists in relation to the Determination Area described in Schedule 1.

7.    The native title is held by the Boonthamurra People described in Schedule 3 (the native title holders).

8.    Subject to paragraphs 9, 10 and 11 below the nature and extent of the native title rights and interests in relation to the land and waters described in Schedule 1 are the non-exclusive rights to:

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

(b)    camp, and live temporarily on the area as part of camping, 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 smoking ceremonies and dance on the area;

(g)    hold meetings on the area;

(h)    teach on the area the physical and spiritual attributes of the area;

(i)    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;

(j)    light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(k)    be accompanied onto the area by certain non-Boonthamurra people, 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.

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

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

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

10.    The native title rights and interests referred to in paragraph 8 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

11.    There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

12.    The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4.

13.    The relationship between the native title rights and interests described in paragraph 8 and the other interests described in Schedule 4 (the other interests) is that:

(a)    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;

(b)    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

(c)    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.

DEFINITIONS AND INTERPRETATION

14.    In this Determination, unless the contrary intention appears:

Other words and expressions used in this Determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth).

THE COURT DETERMINES THAT:

15.    Upon the Determination taking effect:

(a)    The native title is held in trust;

(b)    The Boonthamurra Native Title Aboriginal Corporation (ICN: 8237), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(i)    be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the Native Title Act 1993 (Cth); and

(ii)    perform the functions mentioned in s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Schedule 1 – DETERMINATION AREA

A.    Description of Determination Area

The Determination Area comprises all of the land and waters described in Part 1 of Schedule 1 A, to the extent that they are located within the External Boundary described in Part 2 of Schedule 1 A, and depicted in the map contained in Schedule 1 B, excluding the areas described in Schedule 2.

To the extent of any inconsistency, the written description set out in Part 1 and Part 2 of Schedule 1 A prevails over the map contained in Schedule 1 B.

Part 1 – Non-Exclusive Areas:

(a)    The land and waters comprised of the lots and part lots listed below:

(b)    The waters within the External Boundary including but not limited to:

    (i)    Bookaberri Waterhole;

    (ii)    Cornhill Creek;

    (iii)     Ginnapapa Creek; and

    (iv)    Kyabra Creek.

Part 2 – External Boundary of Determination Area:

The External Boundary of the Determination Area commences at a point south easterly of Quimmarroo Waterhole at Longitude 142.197707° East, Latitude 26.319248° South and extending generally north easterly and generally easterly, passing through the following coordinate points:

Then north-easterly to a point on the Cheviot Range at Longitude 143.578552 East, Latitude 25.332230 South, being the watershed between Cooper Creek and Barcoo River then generally easterly, and generally south easterly along that watershed, and ridgeline of that range to its intersection with the watershed of Cooper Creek and Bulloo River, then generally southerly along that watershed and the Ridgeline of the Grey Range to Longitude 143.871053° East, a point on the external boundary of the Kullilli People determination; then generally south-westerly again along that watershed, ridgeline of that range and external boundary of that determination to Latitude 27.120427° South; then generally south westerly again along the boundary of that determination passing through the following coordinate points:

Then north westerly to the centreline of Wilson River at Longitude 142.921272° East, then generally north westerly back to the commencement point through the following coordinate points:

Reference Datum

Geographical coordinates have been provided by the NNTT Geospatial Unit and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time.

Data Reference and Source

    External boundary based in part on data sourced from Commonwealth of Australia, NNTT (March 2015).

    Wilson River sourced from 1:250,000 scale topographic vector data, © Commonwealth of Australia (2008).

    Watershed boundaries and Ridgelines of the Grey and Cheviot Ranges based on Drainage Basin Sub-Area Data as at (January 2009) sourced from Department of Environment and Resource Management (Qld) September 2011.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

B.    Map of Determination Area

Schedule 2 – AREAS NOT FORMING PART OF THE DETERMINATION AREA

The following areas of land and waters are excluded from the Determination Area.

1.    Those land and waters within the External Boundary, which at the time the native title determination application was made;

(a)    were the subject of one or more Previous Exclusive Possession Acts, within the meaning of s 23B of the Native Title Act 1993 (Cth); and

(b)    to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied at the time of the native title determination application;

are excluded from the Determination Area as they could not be claimed in accordance with s 61A of the Native Title Act 1993 (Cth).

2.    Specifically, and to avoid any doubt, the land and waters described in (1) above includes:

(a)    the tenure based exclusions under ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies;

(b)    the land or waters on which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and to which s 21 of the Native Title (Queensland) Act 1993 (Qld), applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth); and

(c)    includes, but is not limited to, the whole of the land and waters described as:

(i)    Lot 7 on KB813309;

(ii)    Lot 411 on BG813212;;

(iii)    Lot 1 on KB813299;

(iv)    Lot 10 on WLA813313;

(v)    Lot 6 on GO813218;

(vi)    Lot 2 on BG813297;

(vii)    Lot 10 on GO813301; and

(viii)    that part of Lot 4 on BLO10 that falls within the External Boundary described in Schedule 1A Part 2.

Schedule 3 – NATIVE TITLE HOLDERS

1.    The native title holders are the Boonthamurra People. The Boonthamurra People are the descendants of one or more of the following people:

(a)    Kangaroo; or

(b)    Dick Ray

Who identify and are accepted as Boonthamurra People according to Boonthamurra traditional law and custom.

Schedule 4 – OTHER INTERESTS IN THE DETERMINATION AREA

The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination:

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.

14.    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.

15.    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.

16.    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);