FEDERAL COURT OF AUSTRALIA
Gibuma on behalf of the Boigu People v State of Queensland [2004] FCA 1575
NATIVE TITLE – determination of – by consent – whether order under s 87 of the Native Title Act 1993 (Cth) appropriate
DENNIS GIBUMA ON BEHALF OF THE BOIGU PEOPLE v STATE OF QUEENSLAND AND OTHERS
QG6199/98
COOPER J
BOIGU ISLAND, TORRES STRAIT
10 DECEMBER 2004
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QG6199 OF 1998 |
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BETWEEN: |
DENNIS GIBUMA ON BEHALF OF THE BOIGU PEOPLE APPLICANT
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AND: |
STATE OF QUEENSLAND FIRST RESPONDENT
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TORRES STRAIGHT REGIONAL AUTHORITY SECOND RESPONDENT
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ERGON ENERGY CORPORATION LIMITED THIRD RESPONDENT
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TELSTRA CORPORATION LIMITED FOURTH RESPONDENT
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QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION IC FIFTH RESPONDENT
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JUDGE: |
COOPER J |
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DATE: |
10 DECEMBER 2004 |
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PLACE: |
BOIGU ISLAND, TORRES STRAIT |
Background
1 This proceeding arises out of an application for determination of native title filed on 5 June 1998 in accordance with the procedures set out in the Native Title Act 1993 (Cth) (‘the Act’). Mr Sipau Gibuma, a traditional Boigu elder, was the original named applicant in this claim made on behalf of the people of Boigu Island in the Torres Strait. Following the death of Mr Sipau Gibuma, his son, Mr Dennis Gibuma proceeded as the named applicant on behalf of the Boigu People. The main respondent to this determination application is the State of Queensland.
2 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 TS159 being part of the island referred to as Boigu Island excluding the areas described as:
(i) Lease T on Deposited Plan 175710 in Lot 4 on Plan TS159;
(ii) Lease A on Deposited Plan 146131 in Lot 4 on Plan TS159;
(b) Lot 39 on Plan TS213 referred to as Aubussi Island;
(c) Lot 40 on Plan TS213 referred to as Moimi Island;
(d) Lots 1-10 on Plan AP8348; and
(e) Lots 11 and 12 on Plan AP8349.’
3 The determination application also lists certain areas as not covered by the claim. Those areas are:
‘Lot 6 on Crown Plan 894534, Lot 5 on Plan TS159, Lease T on Deposited Plan 175710 in Lot 4 on Plan TS159, Lease A on Deposited Plan 146131 in Lot 4 on Plan TS159 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. 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 two affidavits of the late Mr Sipau Gibuma filed on 4 November 1999 and 27 May 2002. I have also had the benefit of an anthropological report prepared on behalf of the applicants in November 2001 by Mr Kevin Murphy, consultant anthropologist, and filed on 19 November 2004. Mr Murphy’s account reveals that the ancestors of the Boigu People were at Boigu Island long before the assertion of sovereignty by the British Crown in 1879. The clans at Boigu are defined by reference to the totems of the cassowary, crocodile, snake, vine leaf, shark and heron. The available evidence indicates these totemic clans were the basic building blocks of social organisation in the pre-colonial era and they continue to exist today.
9 The first European contact with the people of the Torres Strait came in 1606 when Captain Luis Baez de Torres sailed through the strait that now bears his name. According to Murphy’s report, the first written record of European awareness of Boigu Island was made in 1793. The voyage of the Chesterfield under the command of M W Bampton and the Hormuzeer under the command of M B Alt through the Torres Strait en route from Sydney to Bengal resulted in the Hormuzeer running aground on an island bank from which Boigu was sighted and named ‘Talbot Island’. From the available evidence, it appears that there was very little in the way of European traffic until the establishment of a British colony at Port Jackson in the colony of New South Wales, and the charting of a safe passage through the dangerous waterway by Captain Bligh in 1792, made the Torres Strait a regular route for ships travelling between Asia and the Pacific, and the new colonies in Australia. After Bampton and Alt’s sighting of Boigu in 1793, it was many years before the Europeans returned to Boigu, and many more years before there was sustained contact between the Boigu People and the Europeans. The British Crown eventually declared sovereignty in 1879 over all of the islands of the Torres Strait, incorporating the region into the colony of Queensland.
10 As the documentary evidence shows, the Boigu People still maintain a system of traditional land ownership which is continuous with the system as it operated before sovereignty. Mr Murphy records that rights in Boigu land may be deliberately bestowed on descendants, or in the absence of such bestowal they may simply pass as of right to succeeding generations. The continuing connection between the Boigu People and the determination area is well recognised. The late Mr Sipau Gibuma had deposed in support of the Boigu People’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 Boigu Island people.
6. In support of some of the rights included as part of the continuing traditional inheritance of Boigu Island people and therefore as part of their native title rights, I confirm that:
(a) Boigu Island 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. For example, I live on land inherited from my adoptive father. I have coconuts at another place owned by my family. I regularly go hunting for ducks and for deer on the land.
(b) Boigu Island people leave their land to the children and others in accordance with their tradition and custom and grant and withhold permission for others to use their land. For example, my adopted children will inherit my interest in the land which my family inherited from my father.
(c) Boigu Island 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, some Boigu people maintain their gardens for their own use and many Boigu people hunt for game and forage for wild vegetable products on the land.
(d) Boigu Island people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons. I regularly trade with Papuan people.
(e) Boigu Island people conduct social, religious and economic life upon the claim area including the visiting of cultural sites of significance, conducting burials and tomb stone openings, participating in festivals and associated traditional dancing and being responsible on a daily basis for the care of the land. I sometimes visit sacred sites on Boigu; I attend church services, tombstone openings and other occasions of traditional dancing and feasting.’
11 I accept the evidence contained in the late Mr Gibuma’s affidavit and the opinions contained in Mr Murphy’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 Boigu People 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 Boigu People; 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.
12 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 Determination
13 The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Boigu People, 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 Orders contain the elements required by s 94A and s 225 of the Act.
14 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.
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I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. |
Associate:
Dated: 10 December 2004
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Solicitor for the Applicant: |
Torres Strait Regional Authority |
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Solicitor for the State of Queensland, First Respondent: |
Crown Solicitor |
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Solicitor for Telstra Corporation Limited, Fourth Respondent |
Blake Dawson Waldron |
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No. QG 6199 of 1998
DENNIS GIBUMA ON BEHALF OF THE BOIGU PEOPLE
Applicant
STATE OF QUEENSLAND
First Respondent
TORRES STRAIT REGIONAL AUTHORITY
Second Respondent
ERGON ENERGY CORPORATION LIMITED
Third Respondent
TELSTRA CORPORATION LIMITED
Fourth Respondent
QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION INC
Fifth 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 (d) 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 Malu Ki’ai (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders.
12. Each party to the proceeding is bear its own costs.
Date that entry is stamped:
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. . . . . . . . . . . . . . . . . . . . . . . Deputy District Registrar |
SCHEDULE 1
DETERMINATION AREA
The land and waters on the landward side of the High Water Mark of:
(a) Lot 4 on Plan TS159 being part of the island referred to as Boigu Island excluding the areas described as:
(i) Lease T on Deposited Plan 175710 in Lot 4 on Plan TS159; and
(ii) Lease A on Deposited Plan 146131 in Lot 4 on Plan TS159;
(b) Lot 39 on Plan TS213 referred to as Aubussi Island;
(c) Lot 40 on Plan TS213 referred to as Moimi Island;
(d) Lots 1-10 on Plan AP8348; and
(e) Lots 11 and 12 on Plan AP8349.
Lot 6 on Crown Plan 894534, Lot 5 on Plan TS159, Lease T on Deposited Plan 175710 in Lot 4 on Plan TS159, Lease A on Deposited Plan 146131 in Lot 4 on Plan TS159 and all Roads are not subject to native title determination application People of Boigu Island # 2 QG 6199 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 Boigu People, being:
(a) the members of the Anau, Aruba, Auda, Awatie, Banu, Daniel, Dau, Ganaia, Gibuma, Ingui, Maitie, Marama, Mathew, Pabai, Peter, Pinu, Toby, Tom and Waireg families who are descended cognatically from one or more of the following apical ancestors: Mau, Umai, Gabai, Maite, Tabu, Nadai, Agirri, Abai, Daleku, Namai, Ganagi or Gibuma; 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 Boigu Island Council and the beneficiaries under deed of grant No. 21296127;
(b) the interests of the Islanders Board of Industry and Service under registered lease No. 706128780;
(c) the interests of the Commonwealth of Australia under registered lease No. 708072646;
(d) the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and Dennis Gibuma;
(e) 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;
(f) 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;
(g) the interests of the State of Queensland in the accommodation facilities located within the areas described as Lease E and Lease F on Deposited Plan 151783 in Lot 4 on Plan TS159 including the:
(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;
(h) the interests of the State of Queensland in the community health centre located within the area described as Lease H on Deposited Plan 151784 in Lot 4 on Plan TS159 including the:
(i) rights to use, operate and maintain the centre;
(ii) rights to control access to and use of the centre; and
(iii) rights of its employees, contractors, agents, representatives, licensees, permittees and invitees to enter the Determination Area for the purposes of accessing the centre;
(i) any interests under an application under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) set out below:
(i) Application No. 1/89;
(ii) Application No. 3/89;
(iii) Application No. 4/89;
(iv) Application No. 5/89;
(v) Application No. 6/89;
(vi) Application No. 7/89;
(vii) Application No. 8/89;
(viii) Application No. 9/89;
(ix) Application No. 10/89;
(x) Application No. 11/89;
(xi) Application No. 12/89;
(xii) Application No. 13/89;
(xiii) Application No. 14/89;
(xiv) Application No. 15/89;
(xv) Application No. 16/89;
(xvi) Application No. 17/89;
(xvii) Application No. 18/89;
(xviii) Application No. 19/89;
(xix) Application No. 20/89;
(xx) Application No. 21/89;
(xxi) Application No. 22/89;
(xxii) Application No. 23/89;
(xxiii) Application No. 24/89;
(xxiv) Application No. 25/89;
(xxv) Application No. 26/89;
(xxvi) Application No. 27/89;
(xxvii) Application No. 28/89;
(xxviii) Application No. 29/89;
(xxix) Application No. 30/89;
(xxx) Application No. 31/89;
(xxxi) Application No. 32/89;
(xxxii) Application No. 33/89;
(xxxiii) Application No. 34/89;
(xxxiv) Application No. 35/89;
(xxxv) Application No. 36/89;
(xxxvi) Application No. 37/89;
(xxxvii) Application No. 38/89;
(xxxviii) Application No. 39/89;
(xxxix) Application No. 40/89;
(xl) Application No. 41/89;
(xli) Application No. 42/89;
(xlii) Application No. 43/89;
(xliii) Application No. 46/89;
(xliv) Application No. 47/89;
(xlv) Application No. 48/89;
(xlvi) Application No. 49/89;
(xlvii) Application No. 51/89;
(xlviii) Application No. 52/89;
(xlix) Application No. 53/89;
(l) Application No. 54/89;
(li) Application No. 55/89;
(lii) Application No. 57/89;
(liii) Application No. 58/89;
(liv) Application No. 59/89;
(lv) Application No. 60/89;
(lvi) Application No. 61/89;
(lvii) Application No. 62/89;
(lviii) Application No. 63/89;
(lix) Application No. 64/89; and
(lx) Application No. 66/89;
(j) the powers of the Boigu 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. 21296127 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 Lots 39 and 40 on Plan TS213, Lots 1-10 on Plan AP8348 and Lots 11 and 12 on Plan AP8349;
(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.
