FEDERAL COURT OF AUSTRALIA

Lota Warria on behalf of the Poruma and Masig Peoples and

The State of Queensland and Ors  [2005] FCA 1117

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

Lota Warria on behalf of the Poruma and Masig Peoples and THE STATE OF QUEENSLAND and OTHERS

QUD 6042 OF 2001

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 6042 of 2001 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 5 on USL 36850 being part of the island known as Garboi 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 Garboi (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 Poruma and Masig Peoples, being:

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

Wawa, Mapoo, Baki, Ulud, Laieh, Gauid, Kalai, Aclan, Alau Messiah, Apelu, Asiah Messiah, Auara, Gewe Jack, Kudin, Ikasa, Maudar, Sidmu, Seregay, Tabu, Wabu, Ahgai, Gaibiri and Susui; 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, powers and functions of the Torres Shire Council as Local Government for Lot 5 on USL 36850;

(b)          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

(c)           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 on behalf of the Masig and Poruma peoples for a determination of native title in respect of Garboi, an island in the Torres Strait also known as Arden 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 5 on USL 36850.  The claim area covers the whole island except a small area at the western end which is the subject of a lease to the Australian Maritime Safety Authority.

2                     The parties to the proceeding, which was commenced in this Court in 2001, have agreed upon the terms of an order determining that native title exists.  They now ask the Court to make anorder on the terms 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 the parties seek. 

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 make an order in those terms without holding a hearing “if it appears to it to be appropriate to do so”.  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 the order in those terms would be within the power of the Court.

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 has been filed with the Court.  There can be no doubt as to the jurisdiction of the Court to make the orders 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 by making those orders. As the proposed order sets out details of each of the matters mentioned in s 225, the requirements of s 94A of the Act are satisfied.

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

7                     As I have noted elsewhere, 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, may very well 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 the late Father Napoleon Warria sworn on 19 November 2001, and also by an anthropological report prepared on behalf of the applicant in June 2005 by Dr Maureen Fuary, a consultant anthropologist with extensive experience in the Torres Strait region.

10                  Father Warria’s affidavit includes the following:

1.                   In support of some of the rights included as part of the continuing traditional inheritance of the claimant group and therefore as part of their native title rights, I confirm that:

(a)   Members of the claimant group 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, my family and I visit Garboi Island to hunt for turtle, collect turtle eggs, fish from the beach and collect plant materials for food and other purposes.

(b)   Members of the claimant group 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 family will inherit my land interest in Garboi when I die.

(c)    Members of the claimant group hunt over the land, forage the land, garden the land and generally use the resources of the land. For example, members of my family collect turtle eggs from Garboi.

(d)   Members of the claimant group trade and share in the natural resources of Garboi Island amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons.

(e)    Members of the claimant group conduct social, religious and economic activities upon the claim area including visiting 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. For example, I sometimes visit sites of cultural significance at Garboi.

11                  The continuous physical, spiritual and cultural connection of the Masig and Poruma peoples with Garboi is common ground.  The island occupies an important role in the belief system of the claimants and is noted as a staging point in the story of Dugama, which encodes and imparts significant ecological and cultural knowledge.

12                  The Poruma and Masig peoples are settled on nearby islands and visit Garboi frequently to cultivate and harvest its land, to hunt and to fish, to camp and to picnic, and for other purposes.

13                  It is also common ground that the Masig and Poruma peoples acknowledge and observe a body of traditional laws and customs which connect them Garboi, and have done so since well before the assertion of sovereignty by the Crown. In particular, it is accepted that there is a normative system of laws which regulate their access to and use of the islands.

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

15                  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. 

16                  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 Poruma and Masig peoples, and that the title is held by those peoples. The order does not grant native title to the Poruma and Masig peoples; it recognises what they have long held.

Associate:

Dated:              15 August 2005