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Miller on behalf of the Birriah People v State of Queensland (No 2) [2016] FCA 1434

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 29 November 2016
Sub Category:Consent Determination (Native Title Act)
Place:

Northern Queensland Region, near Burdekin Falls Dam.

State/Country:Queensland, Australia
The extract from the National Native Title Register identifies the area as the land and waters depicted in schedule 1 of the determination. For more information see the documents attached below. The determination area falls within the jurisdiction of the Charters Towers Regional Council.
Legal Status:

Registered on the National Native Title Register.

Legal Reference: Federal Court No.: QUD6244/1998;National Native Title Tribunal file no.: QCD2016/011.
Alternative Names:
  • Birriah People Part B
  • Birriah People (No 2)
  • Subject Matter:Native Title
    URL: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/1434.html
    Summary Information:

    Miller on behalf of the Birriah People v State of Queensland (No 2) [2016] FCA 1434

    Between: David Miller, Frank Fisher, Colin McLennan, Gracelyn Smallwood and Algon Walsh Jnr on behalf of the Birriah People (APPLICANTS) and State of Queensland, Castle Hill Exotics Pty Ltd and Ergon Energy Corporation Limited] (RESPONDENTS)

    Judge: Reeves J

    Where made: Federal Court of Australia

    Determination:

    Native title exists in part of the determination area. The native title consists of exclusive and non-exclusive native title rights and interests.

    Native title is held by the Birriah People.

    Exclusive native title rights:

    The Birriah People hold the right to exclusive possession, occupation, use, and enjoyment over the area of Lot 3 on SP289533.

    Non-exclusive native title rights and interests:

    In relation to water, the native title holders have non-exclusive rights for personal, domestic and non-commercial purposes, to:

    • hunt, fish and gather from the water;
    • take and use the natural resources of the water
    • take and use the water.

    No native title rights and interests exist in relation to:

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

    The native title is subject to the laws of the State of Queensland and the commonwealth.

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

    Non-native title rights and interests that exist within the determination area:

    1. the rights and interests of the parties under the Birriah People and Castle Hill Exotics Pty Ltd Indigenous Land Use Agreement (area agreement)(QI2016/046)
    2. the rights and interests of Ergon Energy Ltd as the owner and operator of any works and as a distribution entity under the Electricity Act 1994 (Qld). These rights include any already in existence before this agreement was made, including the right to enter, inspect, maintain and manage any work in the determination area.
    3. any other rights and interests held by the State of Queensland or Commonwealth of Australia (including those that exist by the force and operation of the laws of the State and Commonwealth)

    For more information, see Schedule 4 of the determination.

    Areas within the determination area where native title does not exist:

    • all of the land and waters within Lot 1 on SP289533;
    • all of the land and waters within Lot 2 on SP28953; and
    • land or waters where any public work is or was located.

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

    Access to the full text of the determination, its annexure and schedules are available via the URL link.

    Detailed Information:

    Background

    On 2 April 1998, the Birriah People lodged an application for a determination of native title (the Birriah application) with the National Native Title Tribunal [1]. Following amendments to the Native Title Act 1993 (Cth), the application proceeded in the Federal Court of Australia. The Birriah application was amended a number of times over the years and the determination area was eventually divided into two parts: Birriah Part A and Birriah Part B [2]. The division occurred because a dispute in relation to the Part B area arose. The determination over the Birriah Part A area was not affected and was able to proceed[3]. This determination (over the Part B area) follows the successful outcome over Part A (Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271). Reeves J described the two determinations as 'essentially the same' in regard to the procedural and substantive conditions required for the making of a consent determination [6]. In his reasons for the decision over Birriah Part A, Logan J set out a detailed summary of the Birriah people's evidence of native title [18]. Since the same evidence is relied upon with respect to Birriah Part B, it was unnecessary for Reeves J to do more than refer to Logan J's analysis [12].

    Details of the Judgment

    The parties' consent to this determination was dependent upon the Birriah People and Castle Hill Exotics Pty Ltd Indigenous Land Use Agreement (ILUA) (QI2016/046) being entered into the Register of Indigenous Land Use Agreements. This was done on 10 March 2017.

    The terms of an agreement for recognition of native title over Part B were reached by the consent of the parties. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) and the court was satisfied that a determination of native title was within the power of the court.


    Related Entries

    Agreement
  • Birriah People and Castle Hill Exotics Pty Ltd Indigenous Land Use Agreement (ILUA)
  • Miller on behalf of the Birriah People v State of Queensland [2016] FCA 271
  • Organisation
  • National Native Title Tribunal
  • Charters Towers Regional Council
  • Commonwealth of Australia
  • Birriah Aboriginal Corporation RNTBC
  • Castle Hill Exotics Pty Ltd - Respondent
  • Ergon Energy Corporation Limited - Respondent
  • State of Queensland - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Electricity Act 1994 (Qld)
  • Mineral Resources Act 1989 (Qld)
  • Petroleum Act 1923 (Qld)
  • Petroleum and Gas (Production and Safety) Act 2004 (Qld)
  • People
  • David Miller & others on the behalf of the Birriah People - Native Title Applicants
  • Birriah People

  • Documents

    Document
    National Native Title Tribunal Extract from the Native Title Applications, Registration Decisions and Determinations Register for QCD2016/011 as at 13/08/2020 (Birriah People Part B) - ( PDF | PDF)

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Applicants | Area Agreement (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Prescribed Body Corporate (PBC) (Native Title Act) (Australia)

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