Key Takeaways

• The Federal Court has determined that native title rights and interests exist within the approximately 10,280 square kilometre Determination Area of south-east Queensland. This decision relates to Part A of a three-part native title claim brought by the Kabi Kabi People.
• The Determination Area incorporates land within seven local government areas (LGA) including the Sunshine Coast Regional Council LGA and other urbanised areas in south-east Queensland.
• With previous native title determination limiting rights in relation to taking and utilising resources for personal, communal, and non-commercial purposes, the Kabi Kabi Determination is the first of its kind in south-east Queensland as it confirms that the Kabi Kabi People are permitted to take resources from the Determination Area for any purpose.
• The Kabi Kabi Determination relates to non-exclusive rights such that the Native Title Holders (i.e. the Kabi Kabi Peoples) cannot control or restrict access to land the subject of the Determination.
• The native title rights and interests of the Kabi Kabi People are to coexist with other interests (as set out in Schedule 2 to the Kabi Kabi Determination). To the extent of any inconsistency between native title rights and interests and other interests, native title rights continue to exist in their entirety but have no effect in relation to those other interests.
• The Kabi Kabi Determination does not apply to certain types of land tenure within the Determination Area, including valid grants of freehold.

Background

These proceedings were originally commenced in the Federal Court on 31 May 2013, and were accepted by the Native Title Registrar for registration pursuant to s 190A of the Native Title Act 1993 (Cth) on 7 August 2013.

In mid-2016, having the benefit of reviewing and considering the Kabi Kabi Peoples’ materials relating to the issue of connection, the State of Queensland advised that it was prepared to enter into negotiations with the Kabi Kabi People in an effort to reach a consent determination, subject to conditions.

On 30 November 2016, the Kabi Kabi People filed a separate native title claim application known as the Undambi Application. The Undambi Application was later combined with this proceeding such that the Undambi Application forms Part B to the larger, three-part, native title claim.

In March 2020, the Commonwealth confirmed its agreement to connection in relation to Part A of the combined application.

As part of the mediation process in 2022, the applicant and State of Queensland reached agreement on the native title rights and interests proposed to be recognised in relation to Part A. The other relevant parties subsequently provided their agreement to the recognition of those native title rights and interests.

On 17 June 2024, ACJ Collier of the Federal Court made orders confirming the existence of native title rights and interests in Part A of the Determination Area. Determination of Part B and Part C to the combined claim remains outstanding.

The terms of the Court’s orders stipulate that the determination will take effect upon the agreement being registered on the Register of Indigenous Land Use Agreements. Should no agreement be registered within seven months of the Court's orders, the matter is to be listed for further directions before the Court.

Impact of the Determination

Whilst native title has been determined to exist in the Determination Area, such rights are not unlimited and are subject to, and exercisable in accordance with, State and Commonwealth laws, as well as the traditional laws and customs observed by the Kabi Kabi People.

The Kabi Kabi Determination confirms that the Kabi Kabi People have non-exclusive rights to the Determination Area for the purpose of, inter alia, access to and about the land, camping, taking of resources for any purpose, taking and using water for personal, domestic, and non-commercial communal purposes, cultural activities, burial purposes, maintenance and protection of places of important and areas of significance, teaching, and meeting.

The Kabi Kabi Determination does not convey native title rights in relation to minerals and petroleum. Further, the Determination does not impact on land the subject of certain types of tenure, including freehold land.

The native title rights and interests confirmed by the Kabi Kabi Determination are to coexist with other interests (as set out in Schedule 2 to the Kabi Kabi Determination). To the extent of any inconsistency between native title rights and interests and other interests, native title rights continue to exist in their entirety but have no effect in relation to those other interests.