printable versionPrint this page

Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 23 March 2016
Sub Category:Consent Determination (Native Title Act)
Place:Northern Queensland
State/Country:Queensland , Australia
North Eastern Queensland including Land and water west of Mackay and Townsville and east of Charters Towers and includes townships of Ravenswood, Collinsville, Scottville and Part of Glenden.
Legal Status: Registered on the National Native Title Register of native title determinations.
Legal Reference: Federal Court No: QUD6244/1998; National Native Title Tribunal Number QCD2016/001.
Alternative Names:
  • Birriah People
  • Subject Matter:Access | Cultural Heritage | Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/271.html?context=1;query=Miller%20on%20behalf%20of%20the%20Birriah%20People%20v%20State%20of%20Queensland;mask_path=
    Summary Information:

    Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271.

    Between:

    David Miller and Others on behalf of the Birriah People, Frank Fisher, Colin McLennan, Gracelyn Smallwood and Algon Walsh (Jnr) (APPLICANTS) and
    State of Queensland, Burdekin Shire Council, Charters Towers Regional Council, Isaac Regional Council, Mackay Regional Council, Whitsunday Regional Council, Ergon Energy Corporation Limited, Telstra Corporation Limited, Glencore Coal Queensland PTY Limited, Newlands Coal PTY LTD, Q Coal Pty Ltd, Helen Frances Alford, William Henry Alford (Jnr) Juileann Veronica Angus, Rodney Stewart Angus, Marian Jessie Cerqui, Vince Cerqui, Colinta Holdings PTD LTD, Daniel Edward Comerford, Noel James Griffin Comerford, Peter Michael Costello, Yvonne Lamont Cox, Lennette Ann Dobe, William Thomas Gordon Dobe, Grass Hut PTY LTD, Kelva Dylan Hughes, Richard Brian Hughes, Leslie John Payne, Andrew Rea, Denise Rose Scheider, Alexander Barndard Turner, Neil John Whitson (as personal representatives of Dina Vera Turner (deceased), Diane Rosemary Watts, Clive Ernest Watts), Airservices Australia, Castle Hill Exotics PTY LTD, Rapisarda Investments PTY LTD, Beverly Angus Spurdle, Glen David Spurdle. Graham Robert Spurdle, Gavin Craig Spurdle and John Herbert Spurdle (RESPONDENTS)


    Judge: Logan J

    Where made: Collinsville

    Determination:

    Native title exists in the entire determination area. It consists of exclusive and non-exclusive native title rights.

    Native title is held by the Birriah People.

    The exclusive native title rights over part of the determination area consist of:
    - 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 non-exclusive rights to: hunt, fish, gather, take and use natural resources of the water, take and use water in the area for personal, domestic and non-commercial communal purposes.
    Note these exclusive rights only apply to the determination area listed in Part 1 Schedule 1.

    Non-exclusive native title rights include:
    - the right to access, be present on, move about on and travel over the area;
    - the right to camp, and for that purpose build temporary shelters;
    - the right to hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
    - the right to take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
    - the right to take and use the water of the area for personal, domestic and non-commercial communal purposes;
    - the right to conduct ceremonies on the area;
    - the right to be buried and bury native title holders within the area;
    - 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 teach on the area the physical and spiritual attributes of the area;
    - the right to hold meetings on the area;
    - the right to light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and
    - the rights of the people connected with any Indigenous Land Use Agreement (ILUA) affecting the determination area including the Birriah People and local government ILUA QI2014/090 registered on 19 May 2015, ILUA between the Birriah People and the Adani Mining North Galilee Basin Rail Project ILUA QI2014/080 registered on 24 April 2015 the Birri People and Comerford ILUA QI2011/021 registered on 21 October 2011, the Hancock Alpha Coal Pty Ltd and Birri Native Title Claim Group ILUA QI2011/004 registered on 11 July 2011, the Burdekin Pipeline ILUA QI2005/013 registered on 17 March 2006, the Birri and Kudjala Peoples Joint ILUA exploration permit backlog project QI2003/039 registered on 23 February 2004, Hancock Alpha Coal Pty Ltd and Birri Native Title Claim Group ILUA QI2011/004 registered on 11 July 2011, Burdekin Pipeline ILUA QI2005/013 registered on 17 March 2006, Birri and Kudjala Peoples Joint ILUA exploration permit backlog project QI2003/039 registered on 23 February 2004, Birri ILUA for backlog exploration permits QI2003/032 registered on 11 December 2003.

    Note the non-exclusive rights apply to land and waters in Part 2 of Schedule 1. These rights do not confer possession, occupation, use or enjoyment to the exclusion of all others.

    All native title rights, whether exclusive or non-exclusive are subject to and exercisable in accordance with the laws of the State, Commonwealth and the traditional laws acknowledged and traditional customs observed by the native title holders.

    Non-native title rights and interests that exist in the determination area include:
    - the rights and interests of Glencore Coal Queensland Pty Ltd as the holder of a mining lease under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Bowen River Coal Pty Ltd as the holder of a mining lease under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Byerwen Coal Pty Ltd as the holder of an exploration permit for minerals granted under the Mileral Resources Act 1989 (Qld);
    - the rights and interests of Drake Coal Pty Ltd as the holder of mining leases under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Jax Coal Pty Ltd as the holder of a mining lease under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Pelican Creek Coal Pty Ltd as the holder of exploration permit under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Rosella Creek Coal Pty Ltd as the holder of exploration permit under the Mineral Resources Act 1989 (Qld);
    - the rights and interests of Christopher Ian Wallin as the current lessee under Term Lease No. 230184 over Lot 10 on Plan DK7;
    - the rights and interests of Colinta Holdings Pty Ltd as the current lessee of multiple term leases;
    - the rights and interests of Daniel Edward Comerford, Noel James Griffin Comerford, and Errol Henry Comerford as a current holder of a term lease;
    - the rights and interests Captain Nominees Pty Ltd as a current holder of a term lease;
    - the rights and interests of Airservices Australia as the current lessee under Term Lease;
    - the rights and interests of Telstra Corporation under 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) for Telstra to inspect land, install and operate telecommunication facilities and for its agents and employees to enter the land.
    - the rights of Ergon Energy Corporation Limited under the Electricity Act 1994 (Qld) and Government Owned Corporations Act 1993 (Qld) as the owner and operator of a distribution authority to inspect land, repair or otherwise act in connection with the facilities on the determination area;
    - the rights and interests of the State of Queensland and Burdekin Shire Council, Charters Towers Regional Council, Isaac Regional Council, Mackay Regional Council, and Whitsunday 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;
    - the rights and interests of each of Burdekin Shire Council, Charters Towers Regional Council, Isaac Regional Council, Mackay Regional Council, and Whitsunday Regional Council under the heir local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Lands Protection (Pest 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 their respective local government area; and
    - the rights of the general public to the existing access to and enjoyment of waterways, beds and banks or foreshores of waterways, stock routes and areas that were public places at the end of 31 December 1993 under the Native Title Act (Queensland) 1993 (Qld); and
    - 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).


    In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

    The Birriah Aboriginal Corporation RNTBC, as the prescribed body corporate, is to perform functions required under the Native title Act 1993 (Cth) and to act as agent for the native title holders. The native title is held on trust for the native title holders.

    Detailed Information:
    Background:

    The application was first lodged in 1998. The proceedings were divided into two parts as there was a dispute about the operation of s 47B of the Native Title Act 1993 (Cth). The dispute was addressed in Part B whereas this application determined the remaining undisputed area (AIATISIS 2016).

    Birriah Elder, Algon Walsh welcomed the recognition of the rights of his people over about 9,845 square kilometres of land and water between Mackay and Townsville after such a long time since the initial claim (Johnson 2016).

    The judgment notes the "Birriah people maintained a connection to the land by working on pastoral leases within the claim area and identified themselves as Birra Gubba People" (Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271 at para 35).

    Details Judgment

    Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Birriah People in relation to the part of the land and waters covered by the Birriah People Application. 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
  • Birri People & Comerford Indigenous Land Use Agreement
  • Hancock Alpha Coal Pty Ltd & Birri Native Title Claim Group Indigenous Land Use Agreement (ILUA)
  • Burdekin Pipeline Indigenous Land Use Agreement (ILUA)
  • Birri and Kudjala Peoples Joint Indigenous Land Use Agreement (ILUA) - Exploration Permit Backlog Project
  • Birriah People and Local Government Indigenous Land Use Agreement (ILUA)
  • Birri Indigenous Land Use Agreement (ILUA) for Backlog Exploration Permits
  • Birriah People/Spurdle Family Indigenous Land Use Agreement (ILUA)
  • Birriah People and Betteridge Indigenous Land Use Agreement (ILUA)
  • The Birriah People Protected Areas Indigenous Land Use Agreements (ILUA)
  • Birriah People Tenure Resolution Indigenous Land Use Agreements (ILUA)
  • Birriah People and S Wilkie Indigenous Land Use Agreement (ILUA)
  • Birriah People and Collinsville, Scottsville and District Historical Society Inc Indigenous Land Use Agreement (ILUA)
  • Sarum Project Indigenous Land Use Agreement (ILUA)
  • Miller on behalf of the Birriah People v State of Queensland (No 2) [2016] FCA 1434
  • Birriah People Protected Areas Indigenous Land Use Agreement (ILUA)
  • Birriah People Tenure Resolution Indigenous Land Use Agreement (ILUA)
  • Organisation
  • Telstra Corporation Limited - Respondent
  • AirServices Australia - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • Mackay Regional Council - Respondent
  • Whitsunday Regional Council - Respondent
  • Burdekin Shire Council - Respondent
  • Isaac Regional Council - Respondent
  • State of Queensland - Respondent
  • Glencore Coal Queensland Pty Limited - Respondent
  • Newlands Coal Pty Ltd - Respondent
  • Q Coal Pty Ltd - Respondent
  • Colinta Holdings PTY LTD - Respondent
  • Grass Hut Pty Ltd - Respondent
  • Castle Hill Exotics Pty Ltd - Respondent
  • Rapisarda Investments 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)
  • Petroleum Act 1923 (Qld)
  • Petroleum and Gas (Production and Safety) Act 2004 (Qld)
  • Post and Telegraph Act 1901(Cth)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • People
  • Birriah People - Native Title Applicants
  • David Miller & others on the behalf of the Birriah People - Native Title Applicants
  • Helen Frances Alford - Respondent
  • William Henry Alford - Respondent
  • Juileann Veronica Angus - Respondent
  • Rodney Stewart Angus - Respondent
  • Marian Jessie Cerqui - Respondent
  • Vince Cerqui - Respondent
  • Daniel Edward Comerford - Respondent
  • Errol Henry Comerford - Respondent
  • Noel James Griffin Comerford - Respondent
  • Peter Michael Costello - Respondent
  • Yvonne Lamont Cox - Respondent
  • Lennette Ann Dobe - Respondent
  • William Thomas Gordan Dobe - Respondent
  • Kelva Dylan Hughes - Respondent
  • Richard Brian Hughes - Respondent
  • Leslie John Payne - Respondent
  • Andrew Rea - Respondent
  • Denise Rose Scheider - Respondent
  • Alexaner Barnard Turner and Neil John Whitson (As personal Representatives of Dina Vera Turner deceased) - Respondent
  • Diane Rosemary Watts - Respondent
  • Clive Ernest Watts - Respondent
  • Beverley Angus Spurdle - Respondent
  • Glen David Spurdle - Respondent
  • Graham Robert Spurdle - Respondent
  • Gavin Graig Spurdle - Respondent
  • John Herbert Spurdle - Respondent

  • References

    General Reference
    Stephen Johnson (23/3/2016) Birriah People have a 'new beginning'
    AIATSIS (2016) What's New in Native Title - November 2016

    Documents

    Document
    Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271 - National Native Title Extract - ( PDF | PDF | PDF | PDF)

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Applicants | Native Title Determination (Australia) | Native Title (Australia)

    Google
    Top of page

    Was this useful? Click here to fill in the ATNS survey