Reeves J
In this matter the Court made orders by consent recognising the exclusive and non-exclusive native title rights and interests of the Birriah People over the land and waters contained within one parcel of land in North Queensland. The respondents to the application were the State of Queensland, Ergon Energy Corporation Limited and Castle Hill Exotics Pty Ltd.
Just over 18 and a half years ago the Birriah People lodged a native title determination application. The application was amended a number of times and in February 2015 the proceeding was divided into two parts (Birriah Part A and Birriah Part B) due to a dispute over the operation of s 47B of the Native Title Act 1993 (Cth) (NTA) in relation to one parcel of land.
Part B covered the disputed lot while Part A covered the remaining land and waters within the claim area. Part A was resolved by a consent determination: Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271.
The dispute over Part B was resolved in mediation in March 2016 and the consent determination gives effect to the mediated agreement.
Mediated resolution
Birriah Part B previously comprised a Special Lease No. 11/49362 granted to Laurence Bruce Coutts and Susan Jane Coutts as tenants in common in equal shares for a term of 10 years, expiring on 31 December 1997. That lease covered the site of the Burdekin Wilderness Lodge which was located on the banks of the Burdekin Dam, within the claim area of the Birriah application.
Before its expiry, a Permit to Occupy the same area was issued to DCJ Pty Ltd. In the meantime, the land had reverted to unallocated Crown land and this was its status when the Birriah application was lodged with the National Native Title Tribunal on 2 April 1998. Furthermore, the Birriah applicant claimed that, at that time, one or more members of the Birriah native title claim group occupied the area in accordance with s 47B(1)(c) of the Native Title Act 1993 (Cth) (NTA).
The mediated resolution was that s 47B NTA applied to the lot, the Birriah claim group would authorise an Indigenous Land Use Agreement (ILUA) providing for the surrender of its native title rights and interests over certain parts of Lot 13 (the surrender area) and the parties would seek court orders recognising their agreement.
Rights and interests
The native title rights and interests recognised in relation to the land and waters described in Part 1, Part A of Schedule 1 of the orders are:
the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
in relation to Water, the non-exclusive rights to:
(i) hunt, fish and gather from the Water of the area;
(ii) take and use the Natural Resources of the Water in the area; and
(iii) take and use the Water of the area,
for personal, domestic and non-commercial communal purposes.
The determination will take effect upon the ILUA being registered on the Register of Indigenous Land Use Agreements.
The native title is to be held in trust.
Prescribed Body Corporate
The Birriah Aboriginal Corporation RNTBC ICN 8261 is to be the prescribed body corporate for the purposes of s 56 and s 57 NTA.