FEDERAL COURT OF AUSTRALIA

Mye on behalf of the Erubam Le v State of Queensland

[2004] FCA 1573

NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate

GEORGE MYE ON BEHALF OF THE ERUBAM LE v STATE OF QUEENSLAND AND OTHERS

QG6036/98

COOPER J

ERUB ISLAND, TORRES STRAIT

8 DECEMBER 2004

REASONS FOR JUDGMENT

Background

1                     This proceeding arises out of an application for determination of native title filed on 18 June 1996 in accordance with the procedures set out in the Native Title Act 1993 (Cth) (‘the Act’).  Mr George Mye, a traditional Erub elder, was named as the applicant on this original application and Mr Mye has continued to act as the named applicant in this proceeding up until today, which sees the final resolution of this matter.  Mr Mye makes this claim made on behalf of his people of Erub Island in the Torres Strait.  The main respondent to this determination application is the State of Queensland. 

2                     Erub island is situated in the deeper waters of eastern Torres Strait, where the Great Barrier Reef ends.  Erub is a high island with numerous volcanic rock outcroppings, thickly vegetated areas and rich deep soils.  The determination application shows the claim area as comprising the land and waters on the landward side of the high water mark of:

‘(a)      Lot 4 on Plan TS156 being part of the island referred to as Darnley Island excluding the areas described as:

(i)         Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156; and

(ii)        Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156;

(b)       Lot 63 on Plan TS66 referred to as Nepean Island;

(c)        Lot 58 on Plan TS226 referred to as Tobin Cay;

(d)       Lot 2 on Plan AP8356 referred to as Rebes or Black Rocks;

(e)        Lot 57 on Plan TS225 referred to as Underdown Islet; and

(f)        Lot 59 on Plan TS227 being part of the cay referred to as Bramble Cay.’

3                     The determination application also lists certain areas as not covered by the claim.  Those areas are: 

‘Lot 5 on Plan TS 160, Lot 6 on Plan TS181, Lot 64 on Plan TS285, Lot 1 on Plan TS80, Lot 7 on Crown Plan 899009, Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156, Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156 and all Roads.’

4                     The original application was amended, and was further amended by a native title determination application filed on 18 November 2004 to reduce the area of the claim by excluding certain areas previously included in the claim.  The parties to the claim have mediated the issues which arose under the application to the point where they have agreed to a consent determination.  The agreement concerns exclusive and non-exclusive rights of possession, occupation, use and enjoyment of the lands and waters in the claim area.  This agreement is subject to the Court being satisfied that it has the power to make the determination sought and that it is proper to do so.

Power of the Court

5                     This Court has jurisdiction to hear and determine applications for a determination of native title in relation to an area for which there is no approved determination of native title:  ss 13, 61 and 81 of the Act.  Division 1C of Part 4 of the Act provides for agreements, to be made by some or all of the parties to an application, to settle the application or part of it.

6                     Section 87 of the Act provides that the Court may, if it is satisfied that such an order is within the power of the Court, make an order in, or consistent with, the terms of the parties’ written agreement without holding a hearing.

7                     Section 94A of the Actrequires that an order of this Court which makes a determination of native title must set out details of the matters mentioned in s 225 of the Act.  Section 225 provides:

‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)         who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)         the nature and extent of the native title rights and interests in relation to the determination area; and

(c)          the nature and extent of any other interests in relation to the determination area; and

(d)         the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)          to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:       The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.’

(original emphasis)

Consideration of Agreement and Draft Determination

8                     In considering whether it is appropriate to make the orders that the parties seek, I have had the benefit of an affidavit of Mr Mye filed on 30 April 2001.  I have also had the benefit of an anthropological report prepared on behalf of the applicant in April 2001 by anthropologist Dr Colin Scott and filed on 19 November 2004.  Dr Scott is an Associate Professor of Anthropology at McGill University in Montreal, Canada and has performed significant research into the Torres Strait region in recent years.  Dr Scott’s report on the Erub Le reveals that, the first European recording of Erub Island occurred in the late eighteenth century.  Captain E Edwards of HMS Pandora, on his return from Tahiti with the mutineers of the Bounty, entered the Torres Strait on 25 August 1791 and recorded a sighting of Erub.  The following year, the expedition of the Providence and the Assistant, led by Captain Bligh came close to Erub (which Bligh named Darnley Island), giving the first account of the Erub Le.  On 28 March 1845, Mr Beete Jukes, a naturalist with the surveying voyage of HMS Fly visited Erub and initiated the most extensive written account up to that time of the physical, biological and ethnographic aspects of the island.  Jukes observed signs of property divisions extending from the beach of Erub Island onto the intertidal reef and his recordings confirm continuity in placename usage since before the assertion of sovereignty by the British Crown in 1872.

9                     The Erubam Le were, and continue to be, a maritime people living off the land and waters and engaging in trade with neighbouring island communities.  As the documentary evidence shows, the Erubam Le still maintain a system of traditional land ownership which is continuous with the system as it operated before sovereignty.  The attachment of identity to traditional clan groups and lands is reinforced by the institution of totems, some of which are reserved to clan members.  Lineages or extended family lineage segments are primary landowning groups on Erub itself.  The continuing connection between the Erubam Le and the determination area is well recognised.  Mr George Mye has deposed in support of the Erubam Le’s native title rights over the determination area:

‘5.        The traditional land owners have an acknowledged system of traditional laws and customs which they have observed and continue to observe relating to, among other things, land ownership.  These laws and customs determine who are the rightful owners of particular parcels of land, how such ownership may rightfully pass from one person to another and collectively recognise the continuing traditional associations with the claim area of the Erubam people.

6.         In support of some of the rights included as part of the continuing traditional inheritance of Erubam people and therefore as part of their native title rights, I confirm that:

(a)       Erubam people have always enjoyed, and continue to enjoy, their rights to use, occupy and live on their land and to exclude others from it and to use and enjoy the natural resources of the land such as animal and plant life.  These rights drive from traditional laws and customs which have been exercised and observed by Erubam people from time immemorial, up to the present day.

(b)       Erubam people leave their land to the children and others in accordance with their tradition and custom and grant and withhold permission for others to us their land.  As part of their traditional system of land tenure, Erubam elders explain the extent and boundaries of their lands to their successors and teach them to respect the lands belonging to other families on the claim area.

(c)        Erubam people hunt over the land, forage the land, garden the land and generally use the resources of the land albeit in somewhat changing ways over the years.  For example, Erubam people utilise a variety of domesticated and wild plants including mango, coconut, banana, red bush apple, pawpaw and bamboo.  The knowledge pertaining to the management and use of these and other resources in the claim area is passed on to the children by their parents and elders.

(d)       Erubam people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons.  For example, the customary trade between Erubam people and Papuans has taken place since time immemorial and this trading relationship has continued unbroken up to the present day.

 (e)       Erubam people conduct social, religious and economic life upon the claim area including the visiting of cultural sites of significant, conducting burials and tomb stone openings, participating in feasts and associated traditional dancing and being responsible on a daily basis for the care of the land.  Erubam elders play an active role in teaching children the knowledge, rights and responsibilities associated with these traditional activities to ensure their continue observance.’

10                  I accept the evidence contained in Mr Mye’s affidavit and the opinions contained in Dr Scott’s report.  I am satisfied that:

(a)          native title exists in relation to the lands and waters identified in the draft determination agreed to by the parties;

(b)          the members of the claimant group referred to as the Erubam Le are members of a society of peoples descended from the Torres Strait Islander peoples who as a society at the time of sovereignty occupied the lands and waters identified in the draft determination in accordance with traditional laws and customs acknowledged and observed by them;

(c)          the laws and customs acknowledged and observed by the society at sovereignty are continued to be acknowledged and observed by the members of the claim group and have been acknowledged and observed by their predecessors from the time of sovereignty to the present time;

(d)          the members of the claim group and their predecessors through their continued acknowledgement and observance of the traditional laws and customs which existed at the time of sovereignty, have maintained since that time a connection to the determination area;

(e)          the native title rights and interests in the determination area are held by the persons who are or are entitled to be or become members of the claim group called the Erubam Le; and

(f)            the nature and extent of the exclusive and non-exclusive native title rights and interests in relation to the determination area are as set out in the agreed draft determination.

11                  I am also satisfied on the materials that there are other interests in and in relation to the determination area.  Those interests and their relationship with the native title interests are set out in Schedule 4 of the agreed draft determination.

Orders and Determinations

12                  The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Erubam Le, as the common law holders of the native title, are entitled to possess, occupy, use and enjoy the land and waters of the determination area, in accordance with their traditional laws and customs.  The proposed Orders also recognise the other interests in the lands and waters in the determination area and the relationship of those interests with the native title interests.  The proposed Order contains the elements required by s 94A and s 225 of the Act.

13                  I am satisfied that it is within the power of the Court to make the Orders sought and that these Orders can appropriately be made to give effect to the parties’ agreement without a full hearing of the determination application.  I therefore make the Orders and determination attached as the Appendix to these reasons.

Associate:

Dated:              8 December 2004

                                                                                                                APPENDIX

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

No. QG 6036 of 1998

                 GEORGE MYE ON BEHALF OF THE ERUBAM LE PEOPLE

                 Applicant

                 STATE OF QUEENSLAND

                 First Respondent

                 AUSTRALIAN MARITIME SAFETY AUTHORITY

                 Second Respondent

                 TORRES STRAIT REGIONAL AUTHORITY

                 Third Respondent

                 ERGON ENERGY CORPORATION LIMITED

                 Fourth Respondent

                 TELSTRA CORPORATION LIMITED

                 Fifth Respondent

                 GEORGE JAMES CARRINGTON

                 Sixth Respondent

                 ROBERT GEORGE GIDDENS

                 Seventh Respondent

                 RONALD THOMAS JAMES

                 Eighth Respondent

                 RICHARD LAURENCE JONES

                 Ninth Respondent

                 KENNETH JOHN LEE

                 Tenth Respondent

                 ANTHONY DOUGLAS PAULSEN

                 Eleventh Respondent

                 BARRY WILSON

                 Twelfth Respondent

ORDER

JUDGE:

DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS BY CONSENT THAT:

1.             Native title exists in relation to the land and waters described in Schedule 1 and shown on the plan in Schedule 2 (“the Determination Area”).

2.             Native title is held by the people described in Schedule 3 (“the Native Title Holders”).

3.             Subject to paragraphs 4 and 5, the native title is a right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others.

4.             Subject to paragraph 5, the native title in relation to Water is a non-exclusive right to:

(a)                    hunt and fish in or on, and gather from, the Water for the purpose of satisfying personal, domestic or non-commercial communal needs; and

(b)          take, use and enjoy the Water for the purpose of satisfying personal, domestic or non-commercial communal needs.

The native title in relation to Water does not confer possession, occupation, use and enjoyment of the Water on the Native Title Holders to the exclusion of all others.

5.             The native title is subject to and exercisable in accordance with:

(a)                    the laws of the Commonwealth of Australia and the State of Queensland including the common law; and

(b)                                      traditional laws acknowledged and traditional customs observed by the Native Title Holders.

6.             The nature and extent of the other interests in relation to the Determination Area are set out in Schedule 4.

7.             The relationship between the native title and the other interests referred to in paragraph 6 is that:

(a)                    the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title; and

(b)                    the other interests and any activity done in exercise of the rights conferred by or held under the other interests prevail over the native title and any exercise of the native title.

8.             If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth) then it has the meaning given to it in the Native Title Act 1993 (Cth).  In addition to the other words defined in this order:

(a)                    “High Water Mark” has the meaning given to it in the Land Act 1994 (Qld);

(b)                    “Local Government” has the meaning given to it in the Local Government Act 1993 (Qld);

(c)                    “Roads” means the roads shown on the plan in Schedule 2 and all other roads whether declared, notified, constructed, surveyed or taken under the laws of the Commonwealth of Australia or the State of Queensland including the common law, to be a road; and

(d)                    “Water” has the meaning given to it in the Water Act 2000 (Qld).

9.             Paragraphs 1-7 will take effect on the agreement referred to in item (e) of Schedule 4 being registered on the Register of Indigenous Land Use Agreements.

10.         In the event that the agreement referred to in paragraph 9 is not registered on the Register of Indigenous Land Use Agreements within six (6) months of the date of this order or such later time as this Court may order, the matter is to be listed for further directions.

11.         Upon paragraphs 1-7 taking effect, the native title is to be held in trust by the Erubam Le Traditional Land and Sea Owners (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders.

12.         Each party to the proceeding is to bear its own costs.

Date that entry is stamped:

SCHEDULE 1

DETERMINATION AREA

The land and waters on the landward side of the High Water Mark of:

(a)           Lot 4 on Plan TS156 being part of the island referred to as Darnley Island excluding the areas described as:

(i)             Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156; and

(ii)           Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156;

(b)          Lot 63 on Plan TS66 referred to as Nepean Island;

(c)           Lot 58 on Plan TS226 referred to as Tobin Cay;

(d)          Lot 2 on Plan AP8356 referred to as Rebes or Black Rocks;

(e)           Lot 57 on Plan TS225 referred to as Underdown Islet; and

(f)            Lot 59 on Plan TS227 being part of the cay referred to as Bramble Cay.

Lot 5 on Plan TS160, Lot 6 on Plan TS181, Lot 64 on Plan TS285, Lot 1 on Plan TS80, Lot 7 on Crown Plan 899009, Lease T on Deposited Plan 175712 in Lot 4 on Plan TS156, Lease F on Deposited Plan 150247 in Lot 4 on Plan TS156 and all Roads are not subject to native title determination application Erubam Le (Darnley Islanders) #1 QG 6036 of 1998 and do not form part of the land and waters described above.

SCHEDULE 2

NATIVE TITLE DETERMINATION PLAN

SCHEDULE 3

NATIVE TITLE HOLDERS

The Erubam Le People, being:

(a)     the members of the Manai, Anson, George, Reuben, Thaiday, Gela, Nelson, Koko, Sailor, Pilot, Dorante, Gutchen, Sebasio, China, Murray, Lui, Pau, Sagiba, Idagi, Doolah, Benjamin, Athow, Cook, Ware, Salam, Cowley, Mye, Kiwat, Pitt, Sam, Ghee, Solomon, Kabay, Jacobs, Tamwoy, Wacando, Oroki, Ismael, Cedar, Santo, Whaleboat, John, Kabiare, Kanak, Sabatino, Ketchell, Bourne, Susan, Pensio, Anson, Baker, Steven, Alick, Nain, Oui, Sweeney (Morseau), Abednego, Savage, Guivarra, Charlie, Bedford, Kingey, Sipi families who are descended cognatically from one or more of the following people: Amani, Odi (I), Saimo, Narmalai, Nazir Mesepa, Meo, Deri, Ape, Odi (II), Demag, Rebes, Buli, Damui, Baigau, Dako, Malili, Nazir, Bambu, Dobam, Bobok, Nokep, Wadai, Arkerr Malili, Aukapim, Isaka, Kaigod, Kapen, Petelu, Ale, Epei, Bailat, Ema, Boggo Epei, Ikob, Annai, Eti, Aib, Wagai, Gedor, Dabad, Nazir, Kaupa, Nanai Pisupi, Sagiba, Nuku Idagi, Diwadi, Gewar, In, Aukapim, Timoto, Suere, Gemai, Pagai, Pai, Kapen, Kapen Kuk, Spia, Konai, Ani, Morabisi, Koreg, Kuri, Damu, Wasi, Gi, Mamai, Sesei (I), Kakai, Sesei (II), Sida, Maima, Wakaisu, Whaleboat, Supaiya, Tau, Ulud, Waisie, Wasada, Wimet, Mogi, Yart, Ziai, Assau, Oroki, Zib, Nazir or Gaiba; and

(b)    Torres Strait Islanders who have been adopted by the above people in accordance with the traditional laws acknowledged and traditional customs observed by those people.

SCHEDULE 4

OTHER INTERESTS

The nature and extent of the other interests in relation to the Determination Area are:

(a)           the interests of the Erub Island Council and the beneficiaries under deed of grant No. 21296129;

(b)          the interests of the Commonwealth of Australia under registered leases Nos. 705779898 and 705779928;

(c)           the interests of the Islanders Board of Industry and Service under registered lease No. 706712106;

(d)          the interests of the State of Queensland in the following reserves, the interests of the persons in whom they are vested and the interests of the persons entitled to access and use those reserves for the respective purposes for which they are reserved:

(i)      Reserve 113 over Lot 63 on Plan TS66; and

(ii)      Reserve 198 over Lot 59 on Plan TS227;

(e)           the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and George Mye;

(f)            the interests of Ergon Energy Corporation Limited, being:

(i)             rights and interests as the owner and operator of electricity generation, transmission and distribution facilities within the Determination Area;

(ii)           rights and interests in exercising its statutory powers and responsibilities;

(iii)          rights to enter the Determination Area by employees, agents or contractors of Ergon Energy Corporation Limited to enable access to its facilities in, and in the vicinity of, the Determination Area or otherwise as required in the exercise of their powers or the performance of their responsibilities; and

(iv)         the rights and interests under an indigenous land use agreement between the Native Title Holders and Ergon Energy Corporation Limited dated 25 November 2004;

(g)           the rights and interests of Telstra Corporation Limited, being:

(i)            rights and interests as the owner or operator of telecommunications facilities installed within the Determination Area and as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(ii)          rights and interests created pursuant to the 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);

(iii)         rights to enter the Determination Area by employees, agents or contractors of Telstra Corporation Limited in the performance of their duties, to enable access to its telecommunications facilities in, and in the vicinity of, the Determination Area;  and

(iv)        rights and interests under an indigenous land use agreement between the Native Title Holders and Telstra Corporation Limited dated 29 November 2004;

(h)           the interests of the Australian Maritime Safety Authority, including:

(i)                 rights and interests as a statutory authority exercising powers and functions under the Lighthouses Act 1911 (Cth); and

(ii)                rights and interests under a Deed of Agreement dated 20 September 2002 between it and the representatives of the Native Title Holders;

(i)             the interests of the State of Queensland in the education facilities referred to as the Darnley Island State School located within the area described as Lease S on Deposited Plan 151792 in Lot 4 on Plan TS156 including

(i)                  rights to use, operate and maintain the facilities;

(ii)                rights to control access to and use of the facilities; and

(iii)        rights of its employees, contractors, agents, representatives, licensees, permittees and invitees to enter the Determination Area for the purposes of accessing the facilities;

(j)      the powers of the Erub Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of Local Government over the area under deed of grant No. 21296129 and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area;

(k)     the interests, powers and functions of the Torres Shire Council as Local Government for Lot 63 on Plan TS66, Lot 58 on Plan TS226, Lot 2 on Plan AP8356, Lot 57 on Plan TS225 and Lot 59 on Plan TS227;

(l)             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 signed at Sydney on 18 December 1978 as in force at the date of this order including the interests of indigenous Papua New Guinea persons in having access to the Determination Area for traditional purposes; and

(m)    any other interests that may be held by reason of the force or operation of the laws of the Commonwealth of Australia or the State of Queensland including the common law.