O’Bryan J
In this matter the Court made orders by consent recognising the exclusive and non-exclusive native title rights and interests of the Butchulla People over an area of land and sea in the vicinity of Hervey Bay, adjacent to the southern half of Fraser Island (K’Gari) in Queensland.
The applicant was Gemma Cronin and others on behalf of the Butchulla People. The respondents were the State of Queensland, the Commonwealth of Australia, two regional councils (Fraser Coast and Gympie), Telstra Corporation Ltd, Ergon Energy Limited and seven individual respondents.
Background
The application was filed on 27 November 2009 on the same day as an application in respect of the lands and waters of K'Gari. In 2014, the Court recognised the Butchulla People as the native title holders in respect of the land and waters of K’Gari: De Satge on behalf of the Butchulla People #2 v State of Queensland [2014] FCA 1132
The parties reached agreement and applied to the court for a proposed consent determination under s 87(2) of the Native Title Act 1993 (Cth) (NTA). In support of the consent determination the applicant filed lay and expert evidence including anthropological and history reports, genealogies, affidavit evidence and evidence prepared for the On-Country Evidence Process.
Lots 2 and 3 on AP6551
The Court was satisfied that the proposed determination should be made in relation to the whole determination area except 2 lots.
Lots 2 and 3 on AP6551 were excluded as the State learnt at a late stage that these lots provided a safety buffer to a permit to occupy granted to the Fraser Coast Shooting Complex Association Inc on adjacent land. The parties were satisfied that the permit is a low impact future act under s 24LA of the NTA and the non-extinguishment principle applies.
A further determination will be made in relation to these lots on 11 December 2020, subject to any further application which may be made by the applicants or the State on or prior to 13 November 2020. The orders are designed to give the Butchulla people certainty that a determination of native title recognising their rights and interests in relation to Lots 2 and 3 will be made within 12 months, while allowing the Association to continue to operate by utilising the existing permit until the determination in respect of Lots 2 and 3 is made. This will give the parties 12 months to discuss and negotiate a suitable arrangement in relation to that land.
Exclusive Native Title Rights and Interests
The native title rights and interests recognised in relation to the Determination Area described in Part 1 of Schedule 4 are:
Other than in relation to Water, the right to possession, occupation, use and enjoyment of the area to the exclusion of all others; and
In relation to Water the, the Court recognised the non-exclusive rights to:
Hunt, fish and gather from the Water of the area;
Take and use the Natural Resources of the Water in the area; and
Take and use the Water of the area
for personal, domestic and non-commercial communal purposes.
Non-Exclusive Native Title Rights and Interests
The native title rights and interests recognised in relation to the Determination Area described in Part 2 of Schedule 4 are the non-exclusive rights to:
Access, be present on, move about on and travel over the area;
Camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
Hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
Take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
Take and use the Water of the area for personal, domestic and non-commercial communal purposes;
Conduct, and participate in, rituals and ceremonies on the area,, including those relating to initiation, birth and death;
Be buried on and bury Native Title Holders within the area;
Maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places are areas from physical harm;
Teach on the area the physical, cultural, and spiritual attributes of the area;
Hold meetings on the area; and
Light fires on the area for personal and domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
The native title rights and interests recognised in relation to the Determination Area described in Part 3 of Schedule 4 are the non-exclusive rights to:
Access, be present on, move about on and travel over the area;
Hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
Take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
Take and use the Water of the area for personal, domestic and non-commercial communal purposes;
Conduct, and participate in, rituals and ceremonies on the area,, including those relating to initiation, birth and death;
Maintain places of importance and areas of significance to the Native Title Holders under their traditional laws and customs and protect those places are areas from physical harm; and
Teach on the area the physical, cultural, and spiritual attributes of the area.
The native title rights and interests recognised in relation to the Determination Area described in Part 4 of Schedule 4 are the non-exclusive right to protect the area from physical harm.
Prescribed Body Corporate
The native title is not held in trust.
The Butchulla Native Title Aboriginal Corporation ICN 9145 is to be the prescribed body corporate for the purpose of s 57(2) of the NTA and perform the functions mentioned in s 57(3) of the NTA after becoming a registered native title body corporate.