FEDERAL COURT OF AUSTRALIA

Mabuiag People v State of Queensland [2000] FCA 1065

MABUIAG PEOPLE v STATE OF QUEENSLAND, TORRES STRAIT REGIONAL AUTHORITY, TELSTRA CORPORATION LIMITED, ERGON ENERGY CORPORATION LIMITED  & OTHERS

QG 6062 OF 1998

DRUMMOND J

6 JULY 2000

MABUIAG ISLAND

THE COURT ORDERS BY CONSENT THAT:

1.                  Native title exists in relation to the determination area as shown on the map annexed to this Order and marked “Annexure A”, ie, the land and inland waters of Mabuiag Island being Lot 2 on Plan TS 168, Koiksugai (Red Fruit) Islet being Lot 23 on Plan TS 275, Aipus Island being Lot 24 on Plan TS 275, Marte Islet being Lot 22 on Plan TS 275, Yadi (Iadi) Islet being Lot 21 on Plan TS 275, Widul Island being Lot 25 on Plan TS 275, Pururai Islet being Lot 41 on Plan TS 275, Pulu Islet being Lot 27 on Plan 275, Kamutnab Islet being on Plan TS 275, Mipa Islet being Lot 28 on Plan TS 275, Kongan Rock being Lot 26 on Plan TS 275, Warukuikul Talab (Warakuikul Tabab) Island being Lot 29 on Plan TS 275, Talab (Florence) Island being Lot 30 on Plan TS 275, Kaub Islets (made up of Lots 31, 32, 33 & 34 on Plan TS 275), Poigilag (Puigulag) Islet being Lot 24 on Plan USL 36846, Pelican Islet being Lot 25 on Plan USL 36846, Subur Islet being Lot 26 on Plan USL 36846 and Bupu (Passage) Islet being Lot 35 on Plan TS 275 on the landward side of the high water mark but not including the following areas as shown on the map annexed to this Order and marked “Annexure B”:

(a)                Lot 3 on Plan TS 173;

(b)               Lot 42 on Plan TS 284 described as SL 43/38567 to The Corporation of the Synod of the Diocese of Carpentaria for church purposes;

(c)                The Roads as more particularly shown on the map annexed to this Order;

(d)               The land east of the Community Hall on which the Telstra mast and equipment shelter are situated, including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation;

(e)                The land on which Ergon Energy Corporation power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation being Lease P in SP127308; and

(f)                 The Airstrip as contained in Lot 56 on Plan TS 346.

2.                  The persons holding the communal and group rights comprising the native title (“the common law holders”) are the Gumulgal (the Mabuiag people).

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 the determination area;

(b)               conserve, manage, use and enjoy the natural resources of the determination area for the benefit of the common law holders including for social, cultural, economic, religious, spiritual, customary and traditional purposes;

(c)                maintain, use and manage the determination area for the benefit of the common law holders, that is to:

(i)                  maintain and protect sites of significance to the common law holders and other Aboriginal people, Papuans and Torres Strait Islanders on the determination area;

(ii)                inherit, dispose of or give native title rights and interests in the determination area to others, being members of the common law holders pursuant to their traditional laws and customs;

(iii)               decide who are the native title holders provided that such persons must be Torres Strait Islanders within the meaning of that term in the Native Title Act 1993 (Cth);

(iv)              regulate among, and resolve disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the determination area;

(v)                conduct social, religious, cultural and economic activities on the determination area; and

(d)        make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources being 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 minerals and petroleum and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland.

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

(a)                the powers of the Mabuiag Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of local government of the area of the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Mabuiag Island Council and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area;

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

(c)                the interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity generation, transmission and distribution facilities on Mabuiag Island, including:

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

(ii)                its interests under a Deed of Agreement dated 28 June 2000 between it and representatives of the common law holders.

(d)               the interests of Telstra Corporation Limited as an entity exercising statutory powers  and as owner and operator of telecommunication facilities on Mabuiag Island, including:

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

(ii)                its interests under a Deed of Agreement dated 27 June 2000 between it and representatives of the common law holders.

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

(f)                 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;

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

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

5.                  (i)         The relationship between the native title rights and interests in Order 3 and the other interests in relation to the determination area in Order 4 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 entitlements of the holders of the other interests may regulate control, curtail, restrict, suspend or postpone the exercise of those native title rights and interests.

(ii)        The native title rights and interests of the Gumulgal are subject to extinguishment by either:

(a)                the lawful powers of the Commonwealth and the State of Queensland; or

(b)               lawful grants or creation of interests pursuant to the laws of the Commonwealth and the State of Queensland.

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)                “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 minerals and petroleum and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland;

(b)               “minerals” has the meaning given to it in the Mineral Resources Act 1989 (Qld);

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

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

BY CONSENT IT IS FURTHER AGREED THAT:

8.                  The native title is to be held in trust by the Gumulgal (Torres Strait Islanders) Corporation.

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

REASONS FOR JUDGMENT

1                     I have before me today an application for determination of native title on behalf of the people of Mabuiag.  The determination is sought with the consent of all parties to these proceedings.

2                     It is clear that for many years before Mabuiag Island was annexed to the State of Queensland in the 1870s, the people of Mabuiag were its traditional owners.  This fact and the nature of the links between the people of Mabuiag and their lands was observed by officials of the Queensland Government who came to the island soon after annexation.  The Acting Government Resident at Thursday Island, Hugh Milman, who visited this place in 1886, noted these things and reported to his superiors that there is no doubt that every acre has a reputed owner, that every grove or single tree of any value has its proper and legitimate hereditary owner.

3                     The people of Mabuiag in the past included distinguished marine hunters as well as fierce warriors.  They were not only experts in exploiting their surrounding seas, but they were highly skilled as seafarers who travelled far distances in order to obtain desired resources through trade or warfare.  These long-held traditions are reflected in the splendid welcoming ceremony performed today.

4                     People gathered here today on this island, like their ancestors before them, have occupied it and maintained the connection with it for hundreds of years.  Today they continue to speak their traditional language, they practise historic fishing, hunting and collecting and in doing that, they make use of the specialised knowledge accumulated over centuries.  They perform customary dances and songs, they manage sacred sites.  They utilise their traditional kinship system to organise social and economic life.  They are in all respects the owners of this land.

5                     Australian law today, as the Attorney-General for Queensland has pointed out, does not confer native title on the people of Mabuiag.  By this Court’s orders, that law recognises the fact that that native title has long existed.  There will therefore be a declaration that native title exists in respect of Mabuiag Island and the adjacent islands and a further declaration that the persons holding that title are the Gumulgal, the people of Mabuiag.

6                     The determination is made by consent.  The Court does not impose any decision upon any of the people with interests in this island.  Just as Australian law today recognises the traditional rights of the Mabuiag people to these lands, so do the Mabuiag people, by their consent to this determination, recognise that others have interests in their lands.  They recognise that the Diocese of Carpentaria is interested in the church lands, that the State of Queensland is interested in the roads and the airstrip and that Ergon Energy and Telstra, service providers on the island, have their own interests in the lands in question.

7                     The Court has had the opportunity to consider the draft determination and it has no difficulty accepting that orders should be made in terms of the draft.  In addition to the declarations as to the existence of native title and to ownership of that native title by the Gumulgal people, there will be declarations defining the nature and extent of the Gumulgal people’s native title rights as recorded in Order 3 of the determination.  There will be a declaration as to the nature and extent of the interests of others in the lands recorded at Order 4 of the determination.  There will also be declarations in terms of Orders 5, 6 and 7 of the determination.

8                     Since the native title will be held in trust for the people of Mabuiag, there will also be an order that it will be held in trust by the Gumulgal (Torres Strait Islanders) Corporation.

Associate:

Dated:              8 August 2000