FEDERAL COURT OF AUSTRALIA

Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland (No 5) [2024] FCA 645

ORDERS

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 agreement referred to in paragraph 1(a) of Schedule 2 being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the agreement referred to in order 2 is not registered on the Register of Indigenous Land Use Agreements within seven (7) 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 4 and depicted in the map attached to Schedule 6 to the extent those areas are within the External Boundary and not otherwise excluded by the terms of Schedule 5 (the Determination Area). To the extent of any inconsistency between the written description and the map, the written description prevails.

6.    Native title exists in the Determination Area.

7.    The native title is held by the Kabi Kabi People described in Schedule 1 (the Native Title Holders).

8.    Subject to orders 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 4 are the non-exclusive rights to:

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

(b)    camp on the area, and for that purpose, erect temporary shelters on the area;

(c)    take resources of the area for any purpose;

(d)    take and use the Water of the area for personal, domestic and non-commercial communal purposes (including cultural and spiritual purposes);

(e)    participate in cultural activities on the area;

(f)    be buried and bury Native Title Holders within the area;

(g)    maintain places of importance and areas of significance to the Native Title Holders under their laws and customs and protect those places and areas from physical harm;

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

(i)    hold meetings on the area; and

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

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 order 8 do not confer on the Native Title Holders:

(a)    possession, occupation, use or enjoyment to the exclusion of all others;

(b)    any right to access or take:

(i)    minerals as defined in the Mineral Resources Act 1989 (Qld); or

(ii)    petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

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 2 (the Other Interests).

13.    The relationship between the native title rights and interests described in order 8 and the Other Interests described in Schedule 2 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:

THE COURT DETERMINES THAT:

15.    The native title is held in trust.

16.    The Kabi Kabi Peoples Aboriginal Corporation (ICN: 8996), incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), 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 s 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

LIST OF SCHEDULES

Schedule 1 – Native Title Holders    vi

Schedule 2 – Other Interests in the Determination Area    vii

Schedule 3 – External Boundary    xiii

Schedule 4 – Description of Determination Area    xxv

Schedule 5 – Areas Not Forming Part of the Determination Area    xcvii

Schedule 6 – Map of Determination Area    cxxv

Schedule 7 – Map of Areas Partly Affected by Public Works    cccxliv

Schedule 1 – Native Title Holders

1.    The native title holders are the Kabi Kabi People. The Kabi Kabi People are those people who are descendants of the following apical ancestors:

(a)    Maggie Cadenti/Cadente/Cantidi: “Maggie”;

(b)    George Parson;

(c)    Albert Williams;

(d)    Ngimburum;

(e)    Kaloma-kuta/Galmaguda/Haloma-kuta/Kal-ma-kuta;

(f)    Willie Kina;

(g)    Susan Andy;

(h)    Jacky Ball (or Baul);

(i)    Maggie Cain/Caine;

(j)    James Crow/Crowe;

(k)    Maggie Palmer;

(l)    Emma Dunne;

(m)    William/Billy Glenbar;

(n)    Annie Laurie;

(o)    May Burnett;

(p)    Tuppernywoe/"King" Tommy of Noosa;

(q)    Dundalli;

(r)    Sarah Di:naba Moreton;

(s)    Marian/Mary Ann Thompson; or

(t)    Towcha

and who identify as and are recognised as members of the Kabi Kabi People in accordance with the system of traditional laws and customs.

Schedule 2 – 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 lodged, or to be lodged, for registration on the Register of Indigenous Land Use Agreements:

2.    The rights and interests of the parties under the following agreements registered on the Register of Indigenous Land Use Agreements:

3.    The rights and interests of the holders of water allocations granted pursuant to the Water Act 2000 (Qld).

4.    The rights and interests of the holders of pipeline licence PPL60 granted pursuant to the Petroleum Act 1923 (Qld) and administered under the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

5.    The rights and interests of Telstra Corporation Limited ACN 051 775 556, Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their successors in title:

6.    The rights and interests of Energex Limited ABN 40 078 849 055:

7.    The rights and interests of Ergon Energy Corporation Limited ACN 087 646 062:

8.    The rights and interests of Moreton Bay Regional Council, Noosa Shire Council, Sunshine Coast Regional Council, Somerset Regional Council, Bundaberg Regional Council, Fraser Coast Regional Council and Gympie Regional Council (Councils):

9.    The rights and interests of the State of Queensland and the Bundaberg Regional Council, Fraser Coast Regional Council, Gympie Regional Council, Moreton Bay Regional Council, Noosa Shire Council, Somerset Regional Council and Sunshine Coast Regional 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.

10.    The rights and interests of the Australian Maritime Safety Authority as the owner, manager, or operator of aids to navigation pursuant to s 190 of the Navigation Act 2012 (Cth), and in performing the functions of the Authority under s 6(1) of the Australian Maritime Safety Authority Act 1990 (Cth) including to be a national safety regulator, to combat pollution in the marine environment and to provide a search and rescue service.

11.    The rights and interests of Australian Gas Networks (Qld) Pty Ltd under Permit to Occupy 0/215701 over Lot 1 on AP4993, Title Reference 40028824.

12.    The rights and interests of Northern SEQ Distributor-Retailer Authority trading as Unitywater:

13.    The rights and interests of Queensland Bulk Water Supply Authority trading as Seqwater:

14.    The rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and the rights and interests of the persons entitled to access and use those Reserves for the respective purpose for which they are reserved.

15.    The rights and interests of the State of Queensland or any other person existing by reason of the force and operation of the laws of the State of Queensland, including those existing by reason of the following legislation or any regulation, statutory instrument, declaration, plan, authority, permit, lease or licence made, granted, issued or entered into under that legislation:

16.    The rights and interests of members of the public arising under the common law, including but not limited to the following:

17.    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 rights of the public to access and enjoy the following places in the Determination Area:

18.    Any other rights and interests:

Schedule 3 – External Boundary

The area of land and waters:

commencing at the intersection of the northern boundary of Berries Road and southern bank of Oaky Creek (Edward Creek) and extending generally northerly and generally north-easterly along southern banks of that creek, and southern banks of Isis River to the western bank of the Burrum River; then easterly to the eastern bank of that river at Latitude 25.212232° South; then generally southerly along banks of that river to Latitude 25.221740° South; then south-westerly to the centreline of Cherwell River at its mouth; then generally south-westerly along the centreline of that river (passing to the north of Lot 20 on CK3227) to Latitude 25.235245° South; then generally south-westerly and generally south-easterly passing through the following co-ordinate points:

Then southerly to the southern bank of the Mary River, west of Maryborough, at Longitude 152.648966° East; then generally southerly along banks of that river to the centreline of Gutchy Creek; then northerly to the centreline of the Mary River at Longitude 152.520670° East, Latitude 25.768908° South; then generally westerly and generally southerly along the centreline of that river (passing to the east of Lot 62 on USL43380) to Latitude 26.069738° South, then generally easterly, generally south-easterly, generally north-westerly and generally easterly to a point on the Lowest Astronomical Tide at Latitude 26.016775° South passing through the following coordinate points:

Then generally southerly along the Lowest Astronomical Tide to Pumicestone Channel; then south westerly across that Channel to the lowest astronomical tide of the northern coastline of Bribie Island; then generally southerly and generally westerly again along that lowest astronomical tide to the southern end of Pumicestone Channel; then north-westerly across that channel to its intersection with the Lowest Astronomical Tide and onwards to the High Water Mark of the mainland at Sandstone Point at Latitude 27.085939° South; then generally north easterly and generally north westerly along the High Water Mark of Pumicestone Channel, across Ningi Creek, to the southern bank of Elimbah Creek; then southerly to a boundary of Elimbah Creek Catchment Area at Longitude 153.084552° East, Latitude 27.030730° South; then generally southerly and generally westerly along boundaries of that catchment to Longitude 152.961443° East; then generally south westerly passing through the following coordinate points:

Then westerly to a point on the western boundary of Easement A on RP105208 at Latitude 27.048578° South, a point on the eastern external boundary of Native Title Determination QUD6128/98 Jinibara People (QC98/45); then generally northerly, generally south westerly, generally southerly and generally westerly along eastern and northern external boundaries of that native title determination to a point in Lot 7 on AP23765, a point on the northern boundary of former Lot 2 on AP19208 at Longitude 152.476410° East, further described as:

Generally northerly along western boundaries of A on RP105208, B RP105540, A RP105540, B RP169368, A RP104615, A RP104616, A RP104618, A RP104360 A RP104355 and A RP104359 to a southern boundary of Alcock Road; then northerly to the southernmost south-west corner of Lot 15 RP843783, being a northern boundary of Alcock Road; then generally easterly, generally north-easterly, generally northerly and generally north-westerly along boundaries of that road, western boundaries Old Gympie Road, Beerburrum Woodford Road, again Old Gympie Road and Paper Road to the eastern boundary of Mount Mellum Road; then north-easterly to the southern bank of the Mooloolah River at Longitude 152.956365° East; then generally westerly along the southern banks of that river to Longitude 152.918070° East; then generally northerly passing through the following co-ordinate points:

Then northerly to the western boundary of Bunya Road at Latitude 26.517695° South; then generally north-westerly and generally southerly along southern boundaries of that road, Gold Creek Road, Browns Creek Road and eastern boundaries of Anderson Road to its southernmost eastern corner; then generally southerly to a point on the northern boundary of Lot 1239 on NPW1105 at Longitude 152.887569° East passing through the following co-ordinate point:

Then westerly, generally southerly, again westerly and again generally southerly along northern and western boundaries of Lot 1239 on NPW1105, western boundary of Lot 2 on AP19232, western boundary of Lot 1239 on NPW1106, again northern boundaries of Lot 1239 on NPW1105, northern boundaries of Lot 2 on AP19232 and again Lot 1239 on NPW1105, northern and western boundaries of again Lot 2 on AP19232 to the northern boundary of Buckby Road; then generally south-easterly, generally southerly and generally westerly along southern, western and northern boundaries of again Lot 1239 on NPW1105 and western and northern boundaries of Lot 4 on AP19232 to a corner on the eastern boundary of Naranga Road at Longitude 152.836465° East, Latitude 26.522126° South; then south-westerly to again a corner of Lot 1239 on NPW1105 at Longitude 152.816277° East; then westerly, generally south-westerly, southerly and generally easterly along northern and western boundaries that lot, northern boundaries Lot 1 on AP19232 and western and southern boundaries of again Lot 1239 on NPW1105 to Longitude 152.797163° East; then southerly to a corner of the western boundary of Kidaman Creek Road at Latitude 26.654626° South passing through coordinate point:

Then generally southerly along western boundaries of Kidaman Creek Road, Suicide Road, again Kidaman Creek Road and Curramore Road to an intersection with Maleny Kenilworth Road; then generally westerly along northern boundaries of that road to intersect the eastern bank of the Mary River; then generally westerly passing through the following coordinate points:

Then westerly to a point in Lot 7 on AP23765, a corner on an eastern boundary of former Lot 102 on NPW746 at Longitude 152.598821° East, Latitude 26.740418° South; then generally south westerly along southern boundaries of that former lot to its intersection with the northern boundary of Mt Kilcoy Road; then westerly along the northern boundary of that road to Longitude 152.566192° East; then generally westerly passing through Lot 7 on AP23765 along the northern boundaries of an unnamed track (Jimna Bellthorpe Road), and northern boundaries of former Lot 2 on AP19208 to Longitude 152.476410° East, being a point on the external boundary of Native Title Determination QUD6128/1998 Jinibara People.