Collier J
In this matter the Court recognised the Butchulla People’s native title rights and interests in relation to the land and waters of Fraser Island above the high water mark, off the coast of Central Queensland.
The respondents were the State of Queensland (State), Fraser Coast Regional Authority, Telstra Corporation Ltd and Kingfisher Bay Resort Village Pty Ltd.
Possible Exclusions from the Determination Area
During WWII, a Military Hiring Area was created within the external boundary of the application that was subject to an order under regulation 54 of the National Security (General) Regulations 1939 (Cth).
The State argued that such an order wholly extinguishes any native title rights and interests in the area. However, the Full Federal Court found that an order under regulation 54 does not wholly extinguish native title (see Congoo and Others on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9).
The State had been granted special leave to appeal the Bar-Barrum decision in the High Court. The parties in this matter agreed that the Military Hiring Area would be included and the State could seek to vary the determination area by removing the Military Hiring Area if the High Court decides that such orders extinguish any native title interests under s13 of the Native Title Act 1993 (Cth) (NTA).
Collier J was satisfied that the elements of sections 87 and 223 NTA were satisfied and the orders should be made. As part her decision making, Collier J considered an historical report by Dr Skyring, three anthropological reports by Ms O’Brien and Dr Sackett and affidavits filed in support of the application by members of the claim group.
Rights and interests
The non-exclusive native title rights and interests recognised include 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 and 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
Nominated Prescribed Body Corporate
The native title is not to be held on trust.
The Butchulla Aboriginal Corporation is the prescribed body corporate for the purpose of s 57(2) NTA and perform the function set out in s 57(3) NTA.
Of note
The Butchulla People have also brought another application to a broader area including the inter-tidal zone surrounding Fraser Island, the Hervey Bay Marine Park, and contiguous mainland areas (Butchulla People Land & Sea Claim #2 QUD 288 of 2009).