FEDERAL COURT OF AUSTRALIA

Victor Nona, John Whop, Pili Waigana, Nelson Gibuma and Phillip Bigie on behalf of the Saibai, Dauan, Mabuiag, Badu and Boigu Peoples v

The State of Queensland and Ors [2005] FCA 1118

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

VICTOR NONA, JOHN WHOP, PILI WAIGANA, NELSON GIBUMA AND PHILLIP BIGIE ON BEHALF OF THE SAIBAI, DAUAN, MABUIAG, BADU AND BOIGU PEOPLES v THE STATE OF QUEENSLAND and OTHERS

QUD 6021 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 6021 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 7 on Crown Plan TS 222 known as Buru (also referred to as Turnagain Island), Lot 6 on Crown Plan TS221 known as Warul Kawa (also referred to as Deliverance Island), Lot 38 on Crown Plan TS 221 referred to as Kerr Islet and Lot 2 on USL 36848 referred to as Turu Cay and shown on the plans 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 Maluilgal (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 Saibai, Dauan, Mabuiag, Badu and Boigu peoples, being:

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

          Au, Sapal, Ausi Waria, Maigi, Apaga, Panetha, Ganume, Aki, Nadai, Gumaroo, Anu, Tom Ober, Gebadi, Sigai, Migui, Piapi, Sam, Zaber, Dawaoo, Asse, Whap, Goa, Madua, Jawai and Garmai, Siwia and Seik, Saba, Naiama and Boingan, Peid, Maku, Bari and Pitu,  Getawan, Sagul, Uria, Baira, Inor, Zimoia, Newar, Sagigi, Jawa, Wairu, Paipe, Waria, Kamui, Mabua, Laza, Gainab, Zaua, Walit, Namagoin, Alageda, Mariget, Bazi, Ugarie, Karud, Duawadi, Gizu, Aupau, Zarzar, Mau, Umai, Gabai, Tabu, Nadai, Agirri, Abai, Daleku, Ganagi, Gibuma and Namai; 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 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 225 over Lot 7 on Crown Plan TS 222;

(ii)                     Reserve 224 over Lot 6 on Crown Plan TS 221; and

(iii)                    Reserve 226 over Lot 38 on Crown Plan TS 221.

(b)          the interests, powers and functions of the Torres Shire Council as Local Government for Lot 7 on Crown Plan TS222, Lot 6 on Crown Plan TS221, Lot 38 on Crown Plan TS221 and Lot 2 on USL 36848;

(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 determination of native title in respect of the Torres Strait islands of Buru (also known as Turnagain Island), Warul Kawa (also known as Deliverance Island) and two smaller islands, Kerr Islet and Turu Cay.  The application is made on behalf of the Boigu, Dauan, Badu and Mabuiag and Saibai people 

2                     The area for which the determination is sought is the land and waters on the landward side of the high water mark of Lot 7 on Crown Plan TS 222 (in respect of Buru), Lot 6 on Crown Plan TS221 (in respect of Warul Kawa), Lot 38 on Crown Plan TS 221 (in respect of Kerr Islet) and Lot 2 on USL 36848 (in respect of Turu Cay).  Turu Cay is unallocated State land.  The other islands were reserved and set apart for departmental and official purposes and were vested in and placed under the control of the Corporation of the Director of Aboriginal and Islanders Advancement as trustee by Order in Council of 3 August 1978 under the Land Act 1962 (Qld).

3                     The parties to the application, which was commenced in the Federal Court in July 2002, have now reached an agreement about the terms of an order of the Federal Court of Australia determining native title, and they now ask the Court to make an order in the terms that they have agreed, and to do so without holding a further hearing. 

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

5                     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”.  However, 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.

6                     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. The proposed order sets out details of each of the matters mentioned in s 225 thus satisfying the requirements of s 94A of the Act.

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

8                     As I have noted elsewhere, the discretion conferred by s 87(1) must be exercised judicially and within the boundaries set according 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.

9                     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.

10                  The material before the Court includes an affidavit of the late Sipau Gibuma sworn on 24 January 2002 and an anthropological report prepared on behalf of the applicants in April 2005 by Dr Garrick Hitchcock, a consultant anthropologist with extensive experience in the Torres Strait.

11                  In his affidavit, Mr Gibuma said:

4.      The traditional owners of the claim area observe an acknowledged system of laws and customs relating to land ownership. These traditional laws and customs determine who are the rightful owners, how such ownership may rightfully pass from one person to another and collectively recognise the continuing traditional associations with the claim area of the Saibai People, the Daunanalgaw, the Gumulgul, the Badualgal and the Boigualgaw.

5.      Our ancestors have passed on to us a rich lore of knowledge relating to the claim area, including myths and stories, songs and traditional environmental knowledge about the land and its resources, and traditional resource management activities. The claim group asserts ownership of all this knowledge and its associated traditions.

6.      In accordance with traditional law and custom I have, and continue to occupy, visit and use the claim area for the purpose of hunting and gathering. My family and I visit the claim area to hunt for turtle, collect turtle eggs, fish from the beach and collect plant and other materials for food and other purposes. My descendants now also carry out these activities.

7.      I have the right to transmit my rights and interests in the claim area to my children and others in accordance with our traditional laws and customs. I also have the right to grant and withhold permission for others to use the land. For example, I regulate access to particular places, and observe and enforce restrictions and cultural sanctions in relation to parts of the claim area such as places of cultural heritage significance.

8.      I share, trade and exchange resources from the claim area, both with others in my community and with outsiders. I have Papuan trading partners, as did my ancestors.

12                  The continuous physical, cultural and spiritual connection of the Saiban, Dauan, Mabuiag, Badu and Boigu peoples with the land the subject of the claims is common ground. In his report, Dr Hitchcock explains that the influx of Europeans and others into the Torres Strait and annexation of the Torres Strait Islands did not disposses the Islanders of their home islands or their other territories. On the contrary, he states that the continued participation of Islanders in fishing industries enabled them to visit the claim islands and fully maintain their connection with them.

13                  Dr Hitchcock also explains that Buru and Warul Kara are of significant spiritual significance to the Saiban, Dauan, Mabuiag, Badu and Boigu peoples, who consider the islands to be sacred to their belief system.  It is common ground that  the claimants acknowledge and observe a body of traditional laws and customs which are laws and customs that connect them to  the islands the subject of the claim and have done so well before the assertion of sovereignty by the Crown. In particular it is accepted that there is a normative system of laws which have force in the peoples’ lives and which regulate their access to and use of the islands. This is supported by evidence of the continued use of the area, including for hunting, fishing and foraging and, in the case of Warul Kawa, camping.  The islands provide rich resources of marine, plant and bird life.

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                  Finally, I should emphasise that the order that the Court will now make determines that native title exists according to the traditional laws and customs of the Saibai, Dauan, Mabuiag, Badu and Boigu peoples, and that the title is held by those peoples. The order does not grant native title to the Saibai, Dauan, Mabuiag, Badu and Boigu peoples; it recognises what they have long held.

Associate:

Dated:              15 August 2005