FEDERAL COURT OF AUSTRALIA

Patrick Thaiday, Jack Billy and Jenson Pearson on behalf of the Warraber, Poruma and Iama Peoples and

The State of Queensland and Ors [2005] FCA 1116

NATIVE TITLE – consent determination – Court’s discretion making order under s 87 – relevant factors Court to take into account when determining whether Court is satisfied it is appropriate to make orders sought

Native Title Act 1993 (Cth), s 87

Patrick Thaiday, Jack Billy and Jenson Pearson on behalf of the Warraber, Poruma and Iama Peoples and THE STATE OF QUEENSLAND and OTHERS

QUD 6015 OF 2003

BLACK CJ

15 AUGUST 2005

MELBOURNE

BEING SATISFIED that a determination of native title in the terms set out in the attached Minute of Consent Determination of Native Title in respect of application QUD 6015 of 2003 would be within the power of the Court and, it appearing to the Court appropriate to do so, pursuant to section 87 of the Native Title Act 1993 and by the consent of the parties:

THE COURT ORDERS BY CONSENT THAT:

1.               Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 39 on Crown Plan TS 215 known as Sassie (also referred to as Long Island) and Lots 19-27, 29, 30, 32, 36-39 and 42-45 on USL 36706 and shown on the plan in Schedule 1 (“the Determination Area”).

2.               Native title is held by the people described in Schedule 2 (“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; 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 3.

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 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)        “Laws of the Commonwealth and the State of Queensland” means the common law and the laws of the State of Queensland and Commonwealth of Australia and includes legislation, regulations, statutory instruments, local planning instruments and local laws;

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

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

9.             The native title is to be held in trust by the Wakeyama (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders.

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

Date that entry is stamped:

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                                      Deputy District Registrar

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

SCHEDULE 1

NATIVE TITLE DETERMINATION PLAN

SCHEDULE 2

NATIVE TITLE HOLDERS

The Warraber, Poruma and Iama peoples, being:

(a)                the descendants of one or more of the following apical ancestors:

Kebisu, Rusia, Ausa, Auda, Porrie Daniel, Gawadi, Kelam, Laieh, Gauid, Kalai, Gagabe, Wawa, Mapoo, Baki and Ulud; 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 3

OTHER INTERESTS

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

(a)                the interests of the State of Queensland in Reserve 19 over Lot 39 on Crown Plan TS215, the interests of the persons in whom that reserve is vested and the interests of the persons entitled to access and use that reserve for the purpose for which it is reserved;

(b)                the interests, powers and functions of the Torres Shire Council as Local Government for Lot 39 on Crown Plan TS215, Lots 19-27, 29, 30, 32, 36-39 and 42-45 on USL 36706;

(c)                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

(d)                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.

REASONS FOR JUDGMENT

BLACK CJ

1                      This is an application for the determination of native title in respect of Sassie, an island in the Torres Strait, and several adjacent islets. Sassie is also known as Long Island.  The area for which the determination is sought is the land and waters on the landward side of the high water mark of Lot 39 on Crown Plan TS 215 and of Lots 19-27, 29, 30, 32, 36-39 and 42-45 on USL 36706.

2                     The Application, which was commenced in December 2003, is made on behalf of the Warraber, Poruma and Iama peoples. The parties to the application have now reached an agreement about the terms of an order of the Federal Court of Australia determining native title, and they ask the Court to make an order in the terms that they have agreed, and to do so without holding a further hearing. 

3                     For the reasons that follow, I am satisfied that the Court can and should make an order in the terms sought by the parties. 

4                     Section 87 of the Native Title Act 1993 (Cth) (the Act) provides that if the parties reach agreement on the terms of an order of the Federal Court, the Court may “if it appears to it to be appropriate to do so” make an order in those terms without holding a hearing.  There are, however, preconditions: the terms of the agreement, in writing, signed by or on behalf of the parties, must first be filed with the Court, and the Court must be satisfied that an order in those terms would be within its power.

5                     The terms of the agreement between the parties are in writing, the agreement is signed by or on behalf of the parties and the agreement is filed with the Court.  There can be no doubt about the jurisdiction of the Court to make the order sought (see s 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded. Specifically, the requirements of s 94A of the Act are satisfied because the proposed order sets out details of each of the matters mentioned in s 225.

6                     It therefore remains only to consider whether it would be “appropriate” to make the orders sought.

7                     As I have noted on other occasions, the discretion conferred by s 87(1) must be exercised judicially and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act.  The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, will vary according to the particular circumstances of each case.

8                     In the present case, it is clear that the parties have had independent and competent legal advice and there is no suggestion that the agreement was not freely entered into. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances.

9                     The material before the Court includes an affidavit of Patrick Thaiday sworn on 31 March 2004 and an anthropological report prepared on behalf of the applicant in April 2005 by Dr Maureen Fuary, a consultant anthropologist with extensive experience in the Torres Strait.

10                  In his affidavit Mr Thaiday said:

7.         Iamagal, Porumalgal and Warrabergal (“the traditional land owners”) peoples have shared rights and interests in Sassie in accordance with their traditional laws and custom. The Iamagal, Warrabergal and Porumalgal peoples are members of the wider group known as Kulkalgal, or Central Island people, who share a common history, language, and traditional laws and customs.

8.         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 the land, how such ownership may rightfully pass from one person to another and collectively recognise the continuing traditional associations of the traditional land owners with the area covered by the application.

9.                  In support of some of the rights included as part of the continuing traditional inheritance of the traditional land owners and therefore as part of their native title rights, I confirm that:

(a)   The traditional land owners have always enjoyed, and continue to enjoy, their rights to use and occupy the area covered by the application 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, my family and I visit Sassie to hunt for turtle, collect turtle eggs, fish, collect mud crabs as well as collect plant materials for food and other purposes.

(b)   The traditional land owners leave their land to their children and others in accordance with their tradition and custom and grant and withhold permission for others to use their land. For example, my children will inherit my interest in the land when I die.

(c)    The traditional land owners hunt over the land, forage the land and generally use the resources of the land. For example, members of my family and other traditional land owners often collect timber, turtle eggs and birds eggs, and hunt for turtle and for birds at Sassie.

(d)   The traditional land owners 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, I trade with Papuans on occasion.

(e)    The native title holders conduct social, cultural and economic activities upon the area covered by the application including visiting there while engaged in commercial fishing activities, visiting to collect timber and wild foods, or for picnicking.

11                  It is common ground that although the Warraber, Poruma and Iama peoples settled on nearby islands they also have a well-established spiritual, cultural and physical connection with Sassie.  They have regularly approached it from their three constituent islands, moving around and exploiting this part of their estate at different times in the past and the present.  In her report, Dr Fuary explains that Sassie is an important resource, its mangroves providing excellent breeding grounds for marine life such as dugong, hawksbill turtle, fish and shellfish. The Warraber, Poruma and Iama peoples cultivate and harvest the land, use and gather plants, birds’ feathers and eggs from it, and picnic, camp, fish and hunt upon the island.  Sassie is mythologically significant and is believed to be charged with supernatural forces and beings.  A shared normative system of custom has allowed the Warraber, Poruma and Iama peoples to observe and maintain laws determining the ownership of Sassie since the time prior to the assertion of sovereignty by the Crown.

12                  In these circumstances I am quite satisfied that it would be appropriate to make an order in the terms agreed between the parties.

13                  The settlement of native title claims by agreement is to be warmly welcomed and strongly encouraged.  There have been many such agreements in the Torres Strait and the parties to the present agreement are to be congratulated on their achievement.

14                  Finally, I should emphasise that the order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Warraber, Poruma and Iama peoples, and that the title is held by those peoples. The order does not grant native title to the Warraber, Poruma and Iama peoples; it recognises what they have long held.

Associate:

Dated:              15 August 2005