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Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 28 August 2012
Sub Category:Consent Determination (Native Title Act)
Location:Boulia, Queensland , Australia
The claim area includes about 30,000 square kilometres near the Queensland/Northern Territory border and about 200 kilometres south of Mt Isa. It is centred on the township of Boulia and includes land in the shire councils of Boulia, Cloncurry, Diamantina and Winton. It covers low lying plains in the Channel Country and the Burke, Hamilton and Georgina Rivers. The area enjoys a warm, semi-arid climate. Thus waterholes and watercourses were, and are an important part of the relationship between the people and the land.
Legal Status: Registered on the National Native Title Tribunal Register of Native Title Determinations
Legal Reference: Tribunal file no.: QC99/27 Federal Court no.: QUD6025/1999
Alternative Names:
  • Pitta Pitta People
  • Subject Matter:Access | Native Title | Pastoral Activities | Recognition of Native Title or Traditional Ownership
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2012/883.html
    Summary Information:
    Between:
    Neville Aplin, Carmel Belford, Noel Doyle, Jean Jacks, Florence Melville and Alfred Nathan on behalf of the Pitta Pitta People (APPLICANTS)

    and

    State of Queensland, Boulia Shire Council, Cloncurry Shire Council, Diamantina Shire Council, Winton Shire Council, Ergon Energy Corporation Ltd, Ivanhoe (Osbourne) Pty Ltd, Roverton Pty Ltd and Australian Agricultural Company Ltd, Vida Felicia Beauchamp, Reginald Hasted Beauchamp, Roslyn Ann Blacket, Robert Stirling Blacket, William Henry Cameron, Kalinda Louise Cluff, William Patrick Cluff, Gladys May Elliot, John Maxmillian Fegan, Philip Gregory Prince, Scholefields Boulia Pty Ltd as Trustee for the JBS Trust and James Brittain Scholefield, Adrian Joseph Wells and Vicki Ann Wells

    (RESPONDENTS)

    Judge: Dowsett J

    Where made: Boulia

    Determination:

    Native title is held communally by the Pitta Pitta People:

    Native title exists over parts of the determination area. It consists of non-exclusive native title rights.

    The non-exclusive native title rights and interests that exist over land in the determination area include:
    - the right to access and camp on the area;
    - the right to hunt and gather on the area for non-commercial, personal, domestic, social, cultural and communal purposes;
    - the right to take and use natural resources from the area for non-commercial purposes;
    - the right to 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;
    - the right to conduct ceremonies on the area;
    - the right to teach the physical and spiritual attributes of the area; and
    - the right to light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

    In relation to water in parts of the Determination Area the following non-exclusive rights apply:
    - to hunt, fish and gather from the water for personal, domestic, social, cultural and non-commercial communal purposes; and
    - to take and use the water for personal, domestic and non-commercial communal purposes.


    Non-native title rights and interests that exist within the determination area can be summarised as

    - The rights and interests of the parties under the following Indigenous Land Use Agreements (ILUAs) including the Pitta Pitta People/Alderley ILUA, the Pitta Pitta People/Bengeacca and Stockport ILUA, the Pitta Pitta People/Blair Athol (aka Hylass) ILUA, the Pitta Pitta People/Braeside ILUA, the Pitta Pitta People/Canary ILUA, the Pitta Pitta People/Cazna Downs, Elrose, Granton and Warenda ILUA, the Pitta Pitta People/Coorabulka and Marion Downs ILUA, the Pitta Pitta People/Datchet South and Strathelbiss ILUA, the Pitta Pitta People/Hartnell Downs ILUA, the Pitta Pitta People/Kheri ILUA, the Pitta Pitta People/Lorna Downs (aka Milkamungra) ILUA, the Pitta Pitta People/Momedah ILUA, the Pitta Pitta People/Pollygammon and Tour-ur-rong ILUA, Pitta Pitta People/Toolebuc and Wilgunya ILUA, the Pitta Pitta People/Warra ILUA, the Pitta Pitta People/Waterford ILUA, the Pitta Pitta People/Westward Ho ILUA, the Indigenous Land Use Agreement between Alfred Nathan, Jean Jacks, Neville Aplin, Carmel Belford, Noel Doyle, Florence Melville and Ergon Energy Corporation Limited executed on/registered on 8 August 2012, the Pitta Pitta People Exploration Permit Backlog Project Indigenous Land Use Agreement (Area Agreement), the Boulia Tenure Resolution Indigenous Land Use Agreement (Area Agreement) and the Pitta Pitta People and Local Government Indigenous Land Use Agreement between Alfred Nathan, Jean Jacks, Neville Aplin, Carmel Belford, Noel Doyle, Florence Melville and Boulia Shire Council, Cloncurry Shire Council and Diamantina Shire Council;

    - The rights and interests of the State of Queensland in the Police Paddock Reserve and the Building Reserve, the rights and interests of the persons in whom they are vested and the rights and interests of the persons entitled to access and use those reserves for the respective purpose for which they are reserved;

    -The rights and interests of the State of Queensland pursuant to the Nature Conservation Act 1992 (Qld), the Transport Infrastructure Act 1994 (Qld), the Integrated Planning Act 1997 (Qld), the Sustainable Planning Act 2009 (Qld), the Fire and Rescue Services Act 1990 (Qld), the Ambulance Service Act 1991 (Qld) and
    any subordinate legislation or regulations made under those Acts;

    - The rights and interests of the holders of any leases, licences, permits, easements or authorities issued or made under the Forestry Act 1959 (Qld), the Water Act 2000 (Qld), the Land Act 1994 (Qld), Mineral Resources Act 1989 (Qld), the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) and any subordinate legislation or any other resources legislation or declarations;

    - The rights and interests of the Pitta Pitta Land Trust as the grantee and as an entity exercising statutory powers under the Deed of Grant of Land dated 23 October 2003 on behalf of Aboriginal people and their ancestors and descendants, pursuant to the Aboriginal Land Act 1991 (Qld) and the Aboriginal and Torres Strait Islander Communities (Justice, Land and other Matters) Act 1984 (Qld);

    - The rights and interests of Ergon Energy Corporation Limited as the owner and operator of works as defined in the Electricity Act 1994 (Qld), a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld), and the Government Owned Corporations Act 1993 (Qld);

    - The rights and interests of the State of Queensland, of Boulia Shire Council, Cloncurry Shire Council, Diamantina Shire Council and Winton 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 roads;

    - The rights and interests of each of Boulia Shire Council and Diamantina Shire Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be Council's local government area. The rights and interests also include those arising as lessor under any leases, grantor of any licences or other rights and interests, holder of any estate or interest in land, and as trustee of any reserves, as the owner and operator of infrastructure, facilities and other improvements located in the Determination Area, and the rights to enter the land to exercise any of the rights and interests referred to above, or inspect, maintain and repair the infrastructure, facilities and other improvements referred to above and undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management;

    - The rights and interests of each of Winton Shire Council and Cloncurry Shire Council under its local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pests and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the declared Local Government Area;

    - The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities, or 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 to inspect land, install and operate telecommunication facilities, alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunication facilities and to occupy its Hamilton Radio Telecommunications site;

    - The rights and interests of Roverton Pty Ltd as the owner and operator of gaseous petroleum and associated liquid petroleum distribution facilities, holder of Pipeline Licence No.41 and Corridor Licence dated 27 March 1997 between Roverton Pty Ltd and the Chief Executive created under the Transport Infrastructure Act 1994 (Qld) and rights under the Miscellaneous Transport Infrastructure Corridor easement created pursuant to the Transport Infrastructure Act 1994 (Qld);

    - The rights and interests of APT Pipelines (Qld) Pty Limited as the owner and operator of gaseous petroleum and associated liquid petroleum distribution facilities within the Determination Area and as the holder of Pipeline Licence No.42 dated 14 May 1998 granted under the Petroleum Act 1923 (Qld);

    - The rights and interests of the following pastoral lessees: Adrian Joseph Wells and Vicki Ann Wells with the Kalkadoon Pastoral Lease, Leonard, Veronica May and Shayne Percival Brooke McGlinchey with the Badalia Pastoral Lease, Athol Vincent Prince with the Montagu Downs Pastoral Lease, William Patrick and Kalinda Louise Cluff with the Hylass Pastoral Lease, John Maxmillian Fegan with the Milkamungra Pastoral Lease, Adrian Joseph Wells and Vicki Ann Wells with the Warenda Pastoral Lease, Montague Nominees Pty Ltdwith the Mudgeacca Pastoral Lease, M and M Campbell Pty Ltd with the Hartnell Downs Pastoral Lease, Ian Charles Campbell and Marianna Campbell with the Momedah Pastoral Lease, Leonard Gordon Robinson with the Canary Pastoral Lease, John Harvey, Partricia Marshall and Graham Harvey Treloar
    with the Pathungra Pastoral Lease, Dale Reginald Nielson with the Waterford Pastoral Lease, Sanela Pty Ltd with the Wirrilyerna Pastoral Lease, Scholefields Boulia Pty Ltd with the Tour-ur-ong Pastoral Lease, Louis Charles and Lynnette Eileen Britton as trustee for the Britton Family Superannuation Fund with the Neena Pastoral Lease, Bric Charles Britton and Ann Mary Britton with the Kewpie Pastoral Lease, Reginald Hasted Beauchamp and Vida Felicia Beauchamp with the Bengeacca Pastoral Lease, Jersey Plains Pastoral Company Pty Ltd with the Strathelbiss Pastoral Lease, Phillip Gregory Prince with the Westward Ho Pastoral Lease, Andrew William Jesse Daniels, Samuel Donald James Daniels, Gabrielle Kennedy, Jeffrey Robert James Daniels and Luke William Jesse Daniels with the Wilgunya Pastoral Lease, Adrian Joseph and Vicki Ann Wells with the Granton Pastoral Lease, Eric Charles Britton with the Scarsdale Pastoral Lease, Tewinga Pastoral Holdings Pty Ltd with the Slashes Creek Pastoral Lease Gladys May Elliott, Rodney Harold Elliott and Charles Samuel Werner Elliott with the Warra Pastoral Lease, Eric Charles and Ann Mary Britton with the Old Goodwood Pastoral Lease, Reginald Hasted Beauchamp and Vida Felecia Beauchamp with the Stockport Pastoral Lease, Victor Russell Jones with the Berrimilla Pastoral Lease, Elrose Channel Country Beef Pty Ltd with the Macsland Pastoral Lease, Eric Charles and Ann Mary Britton with the Black Mountain Pastoral Lease,
    Brendon Robert and Theresa Louise Curr with the Dover Pastoral Lease, Scholefields Boulia Pty Ltd with the Pollygammon Pastoral Lease, Adrian Joseph and Vicki Ann Wells with the Cazna Downs Pastoral Lease, Australian Agricultural Company Limited with the Braeside Pastoral Lease, Jersey Plains Pastoral Company Pty Ltd with the Datchet South Pastoral Lease, William Henry Cameron with the Kheri Pastoral Lease, Andrew William Jesse Daniels, Samuel Donald James Daniels, Gabrielle Kennedy, Jeffrey Robert James Daniels and Luke William Jesse Daniels with the Toolebuc Pastoral Lease, Fran Sterling Blacket and Rahda Blacket with the Alderley Pastoral Lease, North Australian Pastoral Company Pty Ltd with the Marion Downs Pastoral Lease, North Australian Pastoral Company Pty Ltd with the Coorabulka Pastoral Lease, Boulia Shire Council under the term lease for grazing purposes being Title Reference No. 40017198 comprising Lot 4 on WI62, Brett William and Mari Louise Gundersen under the term lease for grazing purposes being Title Reference No. 40017531 comprising Lot 5 on WI49, Trustee under the term lease for grazing purposes being Title Reference No. 40012668 comprising Lot 5 on WI60, Brett William and Mari Louise Gundersen under the term lease for grazing purposes being Title Reference No. 40017187 comprising Lot 6 on WI49;

    - The rights and interest of AGL Pipelines (Qld) Pty Ltd with respect to Easement C on SP125345 in Lot 2 on WNR12;

    - The rights and interests of Ivanhoe (Osborne) Pty Ltd as the holder of mining lease ML 90057 and as the holder of exploration permit EPM 9624 granted under the Mineral Resources Act 1989 (Qld);

    - The rights and interests of members of the public arising under the common law, including any subsisting public right to fish and the public right to navigate;

    - So far as confirmed pursuant to section 212(2) of the Native Title Act 1993 (Cth) and section 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this Determination, any existing public access to, and enjoyment of, the following places: waterways, beds and banks of waterways, stock routes and areas that were public places at the end of 31 December 1993; and

    - Any other rights and interests held by the State or Commonwealth or existing by reason of the force and operation of the Laws of the State or the Commonwealth.



    Provisions Relevant to the Native Title Rights

    Native title does not exist over

    - minerals or petroleum as defined in the Mineral Resources Act 1989 (Qld) and the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld).

    The native title is to be held in trust. The Pitta Pitta Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth) and perform the functions required under s 57 of the Native Title Act 1993 (Cth).


    Detailed Information:
    Background
    In 1999 the Pitta Pitta people filed an application for a determination of native title which was accepted for registration in 2001.

    Native title was awarded over 30,000 square kilometres of land in western Queensland around the town of Boulia.

    Mayor of Boulia Shire, Rick Britton welcomes the decision despite 80 per cent of his pastoral lease included within the native title area.

    "The whole shire now is giving recognition that Pitta Pitta people are the traditional people of this land, it's given them an ownership of responsibility," he said.

    Justice Dowsett stated at the ceremonial sitting of the Federal Court in Boulia that he had "not come here today to give anything to the Pitta Pitta people, rather I have come to recognise, on behalf of all Australians that the Pitta Pitta people are the traditional owners of this land pursuant to the traditional laws and customs which have been there since ancient times. I now recognise that traditional ownership" (Fisher, 2012).

    Consent on the determination was reached with the Queensland government, the four local governments, Ergon Energy, two mining companies and 15 pastoralists.

    Pitta Pitta Elder and representative of the claim group, Uncle Neville Aplin said "I feel real good because my Mum was born up the river from here, and it's just something that I didn't think we were going to get but all my kids, we're bush people and we want to go back fishing and we want to go back camping. We still have the way of hunting out in the bush so native title means a lot" (Fisher, 2012).

    Details of Judgement

    The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

    The court was satisfied that a determination of native title was within the power of the court.

    Related Entries

    Agreement
  • Pitta Pitta People Exploration Permit Backlog Project Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People and Local Government Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Westward-Ho Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Waterford Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Bengeacca and Stockport Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Blair Athol Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Braeside Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Canary Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Cazna Downs, Elrose, Granton and Warenda Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Coorabulka and Marion Downs Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Datchet South and Strathelbiss Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Hartnell Downs Indigenous Land Use Agreements (ILUA)
  • Pitta Pitta People/Kheri Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Momedah Indigenous Land Use Agreements (ILUA)
  • Pitta Pitta People/Pollygammon and Tour-ur-rong Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Toolebuc and Wilgunya Indigenous Land Use Agreement (ILUA)
  • Pitta Pitta People/Warra Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Boulia Shire Council - Respondent
  • State of Queensland - Respondent
  • Cloncurry Shire Council - Respondent
  • Winton Shire Council - Respondent
  • Diamantina Shire Council - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Ivanhoe Cloncurry Mines Pty Ltd - Respondent
  • Roverton Pty Ltd - Respondent
  • Australian Agricultural Company Pty Ltd (AA Company Pty Ltd) - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Queensland) Act 1993 (Qld)
  • Mineral Resources Act 1989 (Qld)
  • Nature Conservation Act 1992 (Qld) - Respondent
  • Integrated Planning Act 1997 (Qld)
  • Water Act 2000 (Qld)
  • Forestry Act 1959 (Qld)
  • Land Act 1994 (Qld)
  • Petroleum Act 1923 (Qld)
  • Petroleum and Gas (Production and Safety) Act 2004 (Qld)
  • Aboriginal Land Act 1991 (Qld)
  • People
  • Pitta Pitta People - Native Title Claimant

  • References

    General Reference
    Virginia Tapp (29.08.2012) Pitta Pitta people awarded native title for Boulia land
    The Queensland Cabinet and Ministerial Directory (28.08.2012) Pitta Pitta People’s native title rights recognised
    Patrick Caruana (28.08.2012) Pitta Pitta win 13-year native title fight
    Roz Fisher (29.08.2012) Native title win for Pitta Pitta
    National Native Title Tribunal (13 December 2012) Extract from Register of Indigenous Land Use Agreements - Pitta Pitta People and Local Government ILUA

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Applicant | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | Native Title Claimants (registered) (Australia) | Native Title (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Determination (Australia) | Native Title Registers | Native Title Representative Body (NTRB) (Australia) | Respondent | Registration Test (Native Title Act 1993 (Cth)) (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia)

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