FEDERAL COURT OF AUSTRALIA

Mualgal People v State of Queensland [1999] FCA 157

MUALGAL PEOPLE v STATE OF QUEENSLAND & ORS

QG 6035 OF 1998

DRUMMOND J

12 FEBRUARY 1999

CAIRNS

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1.                  Native title exists in relation to the determination area, that is, the land and inland waters of Moa Island on the landward side of the high water mark, but not including the following:

(a)                Lot 8 on Plan TS161, being Crown Reserve R257 (State School, Kubin);

(b)               Lot 9 on Plan TS162, being Crown Reserve R263 (State School Residence, St Pauls);

(c)                Lot 10 on Plan TS162, being Crown Reserve R264 (State School, St Pauls);

(d)               Lot 9 on Plan CP894532, being Crown Reserve R341 (Landing Ground for Aircraft);

(e)                Special Lease No 24154 described as Lot 2 on TS36; and

(f)                 Any road on the landward side of the high water mark of Moa Island.

2.                  The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Mualgal people, namely:

(a)                the persons who are the descendants of the apical Mualgal ancestors at the date of sovereignty in 1872, including the Samukie and Tuku, Babun, Kupad, Goba, Maga, Kanai, Kulka, Anu Namai, Maiamaia, Geia, Nakau, Aiaga and Dadu, Waina and Jack Moa, and Koia family groups; and

(b)               such other persons whom the descendants of the Samukie and Tuku, Babun, Kupad, Goba, Maga, Kanai, Kulka, Anu Namai, Maiamaia, Geia, Nakau, Aiaga and Dadu, Waina and Jack Moa, and Koia family groups regard as being members of the Mualgal people provided each is a “Torres Strait Islander” or a member of the “Aboriginal peoples” within the meaning of those terms in the Native Title Act 1993 (Cth).

3.                  The nature and extent of the native title rights and interests in relation to the determination area are the rights and interests of the common law holders to possess, occupy, use and enjoy the determination area in accordance with Order 6, but always subject to and in accordance with their traditional laws and customs, and in particular to:

(a)                live on and build structures on the determination area;

(b)               maintain and manage the determination area for the benefit of the Mualgal people, including to:

(i)                  conserve and safeguard the natural resources of the determination area;

(ii)                make decisions and impose conditions about the use and enjoyment of the determination area and its natural resources by the Mualgal people and other persons; and

(iii)               make decisions and impose conditions about access rights to the determination area by other persons;

(c)                use and enjoy the determination area and its natural resources for social, cultural, economic, religious, spiritual, traditional and customary purposes, including to:

(i)                  hunt, fish and gather;

(ii)                exercise and carry out economic activities on the determination area including to grow, produce and harvest; and

(iii)               engage in trade;

(d)               exercise cultural, spiritual, religious, traditional and customary rights and discharge such responsibilities on the determination area, including to:

(i)                  preserve sites on the determination area of significance to the Mualgal people and other Torres Strait Islanders;

(ii)                decide on, carry out and pass on the culture, traditions and customs of the Mualgal people which apply to the determination area;

(iii)               conduct and maintain cultural, spiritual and religious practices and institutions through ceremonies and proper and appropriate maintenance and use of the determination area;

(iv)              inherit, dispose of or give native title rights and interests in the determination area to others;

(v)                resolve disputes between the common law holders and other parties in relation to the determination area; and

(vi)              conduct burials on the determination area.

4.                  The nature and extent of any other interests in relation to the determination area are:

(a)                the interests of the Kubin Island Council under the Community Services (Torres Strait) Act 1984 (Qld) and the Land Act 1994 (Qld) to exercise its statutory powers and discharge its statutory functions;

(b)               the interests of persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Kubin Island Council;

(c)                the interests of the St Pauls Island Council under the Community Services (Torres Strait) Act 1984 (Qld) and the Land Act 1994 (Qld) to exercise its statutory powers and discharge its statutory functions;

(d)               the interests of persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the St Pauls Island Council;

(e)                the interests of the Far North Queensland Electricity Corporation Limited as an electricity entity exercising statutory powers and as owner and operator of electricity generation, transmission and distribution facilities and associated infrastructure in existence at the date of this determination to access, use, maintain and repair the facilities and infrastructure at any reasonable time in accordance with law;

(f)                 the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner and operator of telecommunications facilities situated on the determination area, including:

(i)                  the right to enter upon the determination area in accordance with law; and

(ii)                its interests under a Deed of Agreement dated 3 February 1999 between it and a representative of the common law holders;

(g)                the interests of the holders of leases validly existing at the date of this determination and issued under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld);

(h)                the interests of indigenous Papua New Guinea persons in having access under Ailan Kastom to the determination area for traditional purposes;

(i)                  the interests recognised under the Treaty Between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Area Between the two Countries including the Area known as Torres Strait, and Related Matters as in force at the date of this determination; and

(j)                 other interests that may be held by reason of the effect and operation of laws of the Commonwealth and of the State of Queensland.

5.                  The relationship between the native title rights and interests in Order 3 and the other interests in Order 4 in relation to the determination area is as follows:

The native title rights and interests described in Order 3 are exercisable concurrently with the other interests described in Order 4, but in those circumstances where they cannot be so exercised, the rights of the holders of the other interests may regulate, control, curtail, restrict, suspend or postpone the exercise of those native title rights and interests.

6.                  Subject to and in accordance with the traditional laws and customs of the common law holders and the effect and operation of the laws of the Commonwealth and of the State of Queensland and, to the extent that the interests referred to in Order 4 prevent or limit it, the native title rights and interests confer possession, occupation, use and enjoyment of the determination area to the exclusion of all others.

7.                  The words and expressions used in this order have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:

(a)                “Ailan Kastom” has the meaning given to it in the Acts Interpretation Act 1954 (Qld);

(b)               “fauna” has the meaning given to it in the Fauna Conservation Act 1974 (Qld);

(c)                “gas” has the meaning given to it in the Petroleum Act 1923 (Qld);

(d)               “high water mark” has the meaning given to it in the Land Act 1994 (Qld);

(e)                “laws” include the common law;

(f)                 “minerals” has the same meaning as “mineral” in the Mineral Resources Act 1989 (Qld);

(g)                “natural resources” means animal, plant, fish and bird life found on or in the determination area from time to time and all water, clays and soils found on or below the surface of the determination area and all other matter comprising the determination area excluding each of minerals, petroleum, gases, fauna and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected by or under the laws of the Commonwealth and of the State of Queensland;

(h)                “petroleum” has the meaning given to it in the Petroleum Act 1923 (Qld); and

(i)                  “road” means any land open for immediate use as a public road, and any land being used as a public road at the date of this order.

AND THE COURT FURTHER ORDERS THAT:

8.                  The native title is not to be held in trust.

9.                  The rights and interests from time to time comprising the native title area to be held by the common law holders.

10.              A representative of the common law holders is to nominate in writing given to the Federal Court, within three months of the commencement of regulations prescribing body corporates for the purposes of s 57(2) the Native Title Act 1993 (Cth), the Mualgal Torres Strait Islanders Corporation:

(a)                to be the prescribed body corporate for the purposes of s 57(2) the Native Title Act 1993 (Cth); and

(b)               to perform the functions mentioned in s 57(3) of that Act after becoming a registered native title body corporate.

11.              There be liberty to apply in respect of Order 10.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 87 the Native Title Act 1993 (Cth) for orders determining that native title exists in relation to Moa Island itself, an island located in the Torres Strait.  The island is the subject of two Deeds of Grant in Trust by the Queensland Government under the Land Act 1962 (Qld):  one to the Kubin Island Council, the other to the St Pauls Island Council.  Mediation by the National Native Title Tribunal has resulted in agreement being reached by all parties to the application for native title made on behalf of the Mualgal people.

2                     The Court was thus not asked to impose any decision on any of the parties to the case.  The hearing was held, instead, to give effect to an agreement between the Mualgal people, the Government of Queensland and other persons, including the St Pauls community, who each have an interest in the island.  By this agreement, all the parties to the case recognise the Mualgal people as the traditional owners.  They, in their turn, recognise that others of the parties have certain rights and interests in respect of the island.

3                     I have considered the material before me and have, on a number of directions hearings in Brisbane at which all the parties were represented, considered the form of draft agreement as it has evolved in these hearings before the Court.  I therefore am fully familiar with the final form of agreement that has been signed and filed with the Court.  I have also had regard to the anthropological evidence and am satisfied, on all this material, that it is appropriate to make orders consistent with those proposed by the parties in their agreement, that is, in the draft determination they have put before the Court.

4                     This is, as I understand the case, the first determination in respect of the Torres Strait since the common law decision of the High Court in the Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 case itself.  It will be the first such determination in respect of the Torres Strait under the Native Title Act 1993 (Cth).  The Court therefore orders, declares and determines, in accordance with par 1 of the draft determination, which is to the effect that native title exists in relation to Moa Island, save that native title is acknowledged as not existing in respect of certain limited areas on the island, which include the state schools and the landing ground for aircraft.

5                     The Court also makes a declaration in terms of par 2 of the draft determination to the effect that the persons holding the communal and group rights comprising this native title are the Mualgal people.  The Court makes orders in terms of pars 2(a) and 2(b) of the draft, with the proviso to the order in 2(b) that such other persons whom the Mualgal people regard as being members of that people are to be, in each case, a Torres Strait Islander or a member of the Aboriginal peoples within the meaning of those terms in the Native Title Act 1993 (Cth).

6                     The Court also makes a declaration in terms of par 3 of the draft determination to the effect that, subject to certain qualifications which I will refer to in subsequent orders to be made, the nature and extent of the native title rights and interests in relation to Moa Island are declared to be the rights and interests of the common law holders to possess, occupy, use and enjoy the determination area, but subject always to and in accordance with their traditional laws and customs.

7                     The Court also makes an order in terms of par 4 of the draft, which recognises the existence of other interests in relation to Moa Island.  The Court further makes a declaration in terms of par 5 of the draft determination, which is a declaration to the effect that the native title rights of the Mualgal people are exercisable concurrently with, but subject to, the other interests that are the subject of the fourth order which I have just made.  The Court also makes a declaration in terms of par 6 of the draft determination, which is to the effect that, subject to and in accordance with the traditional laws and customs of the common law holders, the Mualgal people, and subject to the qualifications recorded in orders 4 and 5, the native title rights and interests confer possession, occupation, use and enjoyment of the determination area on the Mualgal people to the exclusion of all others.  The Court also makes an order in terms of par 7 of the draft determination.

8                     The Court further orders in terms of par 8 of the draft determination that the native title is not to be held in trust; and will further order in terms of par 9 that the rights and interests from time to time comprising the native title are to be held by the common law holders.  An order will be made in terms of par 10 which will lead to the ultimate appointment of the Mualgal Torres Strait Islanders Corporation to be the prescribed body corporate for the purposes of s 57 the Native Title Act 1993 (Cth) and the final order by the Court will be in terms of par 11 of the draft that there be liberty to apply in respect of the preceding order.

Associate:                                                         Dated:              12 February 1999