Buru and Warul Kawa People v State of Queensland

REASONS FOR JUDGMENT 1 On 11 July 2001, a claimant application was filed in this Court under the Native Title Act 1993 (Cth) ('the NTA'). The claimants are known as the Buru and Warul Kawa People. The areas covered by the application are Turnagain Island, Deliverance Island, Ker Islet and Turu Cay, islands location and waters of the Torres Strait. The claim is in relation to the lands within the boundaries of the islands up to the high water mark. Turnagain Island (Buru) contains an area of about 1200 hectares and is Lot 7 on Registered Plan TS222. Deliverance Island (Warul Kawa) is Lot 6 on Registered Plan TS221 and contains an area of about 38.6 hectares. Ker Islet is Lot 38 on Registered Plan TS221 and contains an area of about 1.84 hectares, and Turu Cay is Lot 2 on USL Plan 36848, the area of which is calculated to be about 6.11 hectares. Each of the claimed islands is within the County of Torres, within the State of Queensland. 2 The islands, other than Turu Cay, were by Order in Council of 3 August 1978 under the Land Act 1962 (Qld), 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. Turu Cay is unallocated State land. 3 By notice of motion filed 2 September 2003, Dennis Fritz sought to be joined as an interested party to the claimant application. Mr Fritz filed an affidavit in support of his application which states that he was a party to an earlier claim in respect of Boigu and Badu Islands which has now been discontinued. He stated that he had not been advised of the lodging of the Buru and Warul Kawa claimant application, despite an assurance from the Torres Strait Regional Authority that he would be advised of any fresh claim. His affidavit also contained the following paragraphs: '5. My greater interest lies in the area of sacred ground where my ancestor remains today, and those interests are acknowledged by the traditional elders of the region, including that of my ancestor who shared a Coconut & Pearlshell lease with Mr R Hockings on Deliverance Island. [n]ow produced and shown to me and marked DMFA are two documents demonstrating that connection. 6. There are also a huge amount of documents filed in the Federal Court on 6 October 1998 to support this interest, and will be available at the hearing on 28 September 2003 here on Thursday Island.' (Original emphasis) 4 The application of Mr Fritz is brought pursuant to s 84(5) of the NTA, which provides: '84(5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.' 5 An 'interest', for the purposes of s 84(5), does not have to be proprietary or legal or equitable in nature. However, the interest must have some cogent and rational connection with the subject land which is capable of clear definition and which is genuine and not indirect or lacking substance. The interest must be of such a character that it may be affected in a demonstrable way by a determination of native title in relation to the land the subject of the application: Byron Environment Centre Incorporated v The Arakwal People (1997) 78 FCR 1 (FC) at 7 - 8, 19, 37, 42. Interests which are merely intellectual considerations or emotional interests in relation to a claimed area are not interests within s 84(5) of the NTA: Byron at 8 - 9, 37, 42. The question of a sufficient interest for the purposes of s 84(5) is to be determined with by reference to, and will turn on, the facts of each case having regard to the interests claimed and the effect of any determination of native title on that interest: Byron at 8, 19, 42. 6 For present purposes the following observation of Merkel J in Byron is apposite (at 42): 'The legislature did not intend that those who have mere, albeit genuine, intellectual, ideological, conscientious or emotional concerns or interests in relation to a claim or the area covered by it, should be regarded as persons "whose interests may be affected" for the purposes of s 68 or 84. Accordingly, a determination which may curtail or interfere with the activities of persons who habitually or regularly use or enjoy public land or waters would give rise to a sufficient interest for those persons to have standing as parties under the Act. Obviously questions of degree can be involved in determining issues relating to standing and in particular, whether the interest in question is not indirect or is remote. Such questions will have to be worked out on a case by case basis. In that regard an occasional, rather than a habitual or regular, user of an area covered by a claim is unlikely to have the standing, as a party.' 7 Mr Fritz has previously sought to claim proprietary rights in Deliverance Island and Ker Islet. Those claims were based on a personal and customary attachment to the islands as a non-indigenous person, or, by succession of an estate or interest claimed to be held by Harald August Fritz, a German national who lived and died on Deliverance Island. Mr Fritz claims to be a great grand nephew of Harald Fritz. Those claims were dismissed in a summary way by me in 1999: Fritz v Torres Strait Regional Authority [1999] FCA 183, affirmed on appeal [2000] FCA 1461. 8 Mr Fritz's application to be joined as a party was heard on Thursday Island in the Torres Strait. Mr Fritz appeared in person to argue the application. During the hearing, it was difficult to obtain a clear answer from Mr Fritz as to the interest which he claimed as being sufficient to ground his application to be made a party. At the commencement of the application, the following exchanges were made: 'MR FRITZ: If the Court wishes, the application that was before your Honour in another matter, was in relation to a breach of certain Commonwealth Acts that have nothing to do with this matter before the Court. As a matter of fact, your Honour, some of the names of the islands weren't even in that matter. I'm only seeking to be joined as an interested party because I live there. Evidence before the Court has established that I have lived there from time to time. My ancestor's buried there. From 1959 to present day, there's plenty of brothers in the Court here would know that I've been in that area, your Honour. During that period of time, I collected nuts from my ancestor's trees, planted new coconut trees, paw paws, and I tend to my ancestor's grave site, and some of the elders here, with respect, know that site there. I'm not claiming Deliverance Island as mine. I'm only asking to be - I use Deliverance and Kerr Island for my fishing base from time to time. This includes Turnagain Island. The local island and Badu, I was even going with the name of Buruman and Bessaman. This can be established before this honourable Court. I wish to visit the islands as regular as weather permits, and wish to return there from time to time. However, I understand, your Honour, that should this proceed to native title, then I understand that I would need the claimant's consent to go there. I understand that, but at this point in time I seek to be joined. HIS HONOUR: What section of the Native Title Act do you rely upon? MR FRITZ: I'm not familiar with the Native Title Act or its meanings, your Honour, but ‑ ‑ ‑ HIS HONOUR: I mean, having an emotional interest in the islands is not sufficient to enable you to be joined as a respondent. Now, I've looked at your material in the past and formed the view that you have no prospect of establishing any equitable or legal interest or estate in any of the land in these islands, and that view was upheld by a Full Court. That is a different question from holding an emotional interest, which is what you seem to be putting forward today, but an emotional interest doesn't get you the right to be made a respondent in the proceedings. MR FRITZ: It's not only an emotional interest, your Honour. It's a fishing interest and a legal interest that the elders gave me rights to be there under section 12 of the Aboriginal and Torres Strait Islanders Act. That's one section, your Honour, but I've used that island as a base for my fishing base. I'm a - I'm an interested party in the former application before this Court, where your Honour read the sea claim thing. So I use Torres - that whole area as a fishing base. It's not only an emotional plea to be joined because my ancestor's buried there, your Honour. It's a base that - I've always been there and that's - I haven't had a chance to look at section 84, your Honour, but if your Honour would adjourn this until I could study this, and unless your Honour feels that I've said enough.' 9 Later that day, after an adjournment, Mr Fritz made the following submissions: 'HIS HONOUR: The Form 1, so far as is relevant today, relates to Deliverance and Kerr Islands. MR FRITZ: And Turnagain, Buru Island. HIS HONOUR: You've never made a claim in relation to the other two. MR FRITZ: It's in part of the Buru and Warul Kawa claim. I thought it was part of one claim, your Honour. It's all part of ‑ ‑ ‑ HIS HONOUR: The material that you put in makes no reference to either of those two islands. It relates to Deliverance and to the coconuts on Kerr Island that I've heard about before. MR FRITZ: Your Honour, if I may refer you back to claim number Q6040/01, which I'm a member - a party - an interested party. I've already been joined as a party under that in the Federal Court here, and all my licences and that are all filed in that application, your Honour, in relation to all that sea area, and the sea claim. Now, I didn't think it necessary to apply my licences again for this area, your Honour. But see, my interests - my interests, under the Act, may be affected by a determination in proceedings. HIS HONOUR: What interest under the Act have you got? You show me your proprietary interest that enables you to be served with notice and to become a party. MR FRITZ: The same as the 10 other fishermen, your Honour, that are joined in this application. HIS HONOUR: So you're putting it on the basis that you're a fisherman. MR FRITZ: I have been all this time, your Honour. Putting on - I had to show this Court that I - as the Burrum case said, there's a broad interest not only in relation to - to the land. It's everything. It's all around there. HIS HONOUR: There's no material in that deals with you as a fisherman. The affidavit that you've filed in support of your notice of motion, when I find it. MR FRITZ: If I may refer you - if I can pass this one up, your Honour. I've ..... fished the areas in question in conjunction with some of the native title claimants since the early 1960s. This is part of that first application in relation to the seas around those islands, your Honour. HIS HONOUR: I'm talking about the affidavit that you've relied upon in support of your notice of motion today. MR FRITZ: Your Honour, if I may submit ‑ ‑ ‑ HIS HONOUR: You say that you're a registered interest person, a party in the Boigu and Badu Island claim. MR FRITZ: No, I'm a registered interest party in the Torres Strait Regional Sea Claim, your Honour, which is Q6040/01. HIS HONOUR: Yes. It was discontinued in its original form. MR FRITZ: No, no. HIS HONOUR: You say that claim, according to the Federal Court, was discontinued in its original form. MR FRITZ: Oh, that's that other one, yes, your Honour. That was entirely different claim all together, your Honour. That was - Turnagain was never entered in that one, your Honour. This is all new. This is Buru and Warul Kawa and ‑ ‑ ‑ HIS HONOUR: Paragraph 4 of your affidavit says, "I was never advised, as such, and only recently learnt from the letter dated 12 August 2003 that the area of interest containing Deliverance Island, was refiled in the names of Buru and Warul Kawa." MR FRITZ: That's right, your Honour. HIS HONOUR: Now, this material relates to Deliverance Island. MR FRITZ: And the islands surrounding them, your Honour. That's what I'm submitting this morning. It is to do with fishing. I have to show this Court - your Honour already ruled at some other time in Brisbane - what your Honour ruled as got nothing to do with this matter. This is a fishing matter, but I had to show the Court what interests I've had. How many times I've visited the islands and what I did there. I have to show all this. So to do that, I had to file all this stuff. All I'm seeking, your Honour, is my interests would be affected if I couldn't be joined as a party, same as the other fishermen in Q6040/1. HIS HONOUR: You say, "My greater interest lies in the area of sacred ground, where my ancestor remains today, and those interests are acknowledged by the traditional elders of the region, including that of my ancestor who shared a coconut and pearl shell lease with Mr R. Hockings of Deliverance Island. Now produced and shown to me and marked DMFA are two documents demonstrating connection." One is a letter from the Hocking family, dated 2.11.95 concerning who owns coconuts on Kerr Island. I've seen that document before. MR FRITZ: Yes, your Honour, but this is all to show that I have that connection. I have more than a broader interest. That's all I'm saying, your Honour. But my interest here, in this application, is purely fishing. I wish - I seek to be joined as a party with the other 10 fisherman and if your Honour so rules, then I would be handing the matter over to Mr Gore to take my case on from there.' 10 On a number of occasions, Mr Fritz reiterated that 'This is a fishing matter', that he was a licensed fisherman based in the area. He acknowledged that his fishing licences did not permit him to establish himself ashore on the islands. He stated that the reason he wished to be joined as a party was in order to negotiate, through mediation, in the interests of his licensed fishing activities and for no other purpose. 11 Mr Fritz claimed that the materials which supported his claim to an interest sufficient to be joined as a party were contained in the Court file numbered Q6040/01, and known as the Torres Strait Regional Sea Claim file. The Court adjourned to obtain access to those documents. After the adjournment, Mr Fritz referred to a Notice of Intention to Become a Party to an Application in relation to the Torres Strait Regional Sea Claim. The basis on which he gave the notice was: (a) Commercial fishing in the seas the subject of the claim. This he supported with a Master Fisherman's Licence which was valid for the period 22 November 2001 to 21 November 2002; (b) A claim that 'Deliverance and Ker Islands hold Significant Values to me in Relation to my Religious, Cultural Beliefs. Access to these 2 Islands must be maintained in order that I be permitted to continue with my Spiritual and Cultural Practices. Refer to "ATTACHMENT A" for Brief example'; and (c) An assertion that '[t]he area where my ancestor is Buried MUST be kept apart from any NATIVE Title claim'. (Original emphasis) 12 Attachment A to the notice in part stated that Mr Fritz obtained a Master Fisherman's Licence to fish the Torres Strait in 2000. Licence number TMJ02594A gives an address for Mr Fritz in Aspley, Brisbane. 13 Attached to the notice was a copy of an affidavit of Walter Tabuai dated 4 April 1997. That affidavit contained the following paragraphs: '2. I remember that between 1979 and 1984 Dan Fritz operated his crayfishing vessel the "SeaMaster" amongst the reefs between Deliverance Island where his ancestor "German Harry Fritz" lived for many years, across to Turnagain Island and down to Mabuiag Island. ... 5. Dan Fritz is as welcome to our islands as was his ancestor. I remember Dan being traditionally accepted into the Torres Strait culture at Mabuiag Island and was given a drum and the island name of "Buru Man", because he was always searching for mud crabs on Turnagain Island, which is called by its island name of Buru.' 14 Having obtained access to file Q6040/01, the following exchange then took place: 'HIS HONOUR: Well, is the interest that you are now claiming the permission of the traditional owners of Deliverance and Kerr Islands to have access and use of those islands forever, as set out in paragraph 3 of this affidavit? MR FRITZ: Yes, your Honour, and recreational use or whatever use. HIS HONOUR: Yes. MR FRITZ: Well, that's about all I can say, your Honour, except for ‑ ‑ ‑ HIS HONOUR: Well, what interest, separate and apart, other than this alleged permission do you have from any other fishermen who are parties to this claim? MR FRITZ: I've lived there, your Honour. No-one else has lived there. I've lived there and I've been there and I visit regularly, and - to - to stop - you know, to stop that would be on the same principle that applied - applied in the case before Dowsett J to the Federal Court case the combined Mandingalbay Yidinji-Gunggandji claim v State of Queensland in Federal Court. HIS HONOUR: Now, how do you get rights against the owner of the land, the trustees, in relation to the three islands that are held in trust for Aboriginal purposes? MR FRITZ: This is - one is, those elders gave me the rights under section 12 of the Aboriginal Torres Strait Islander Self Management Act, as that affidavit there shows clearly - they had a meeting with me at Garboot in 1982. That's one of many I've had over the years with these elders. I've lived with them. I've fished with them. HIS HONOUR: How do you say these lands come within the provisions of the Act that you claim to have permission under section 12? MR FRITZ: I'm ..... argue on this one. Your Honour, Deliverance Island was a reserve under the Land Act at one time there, and ‑ ‑ ‑ HIS HONOUR: Well, it still is. MR FRITZ: Yes, it still is and ‑ ‑ ‑ HIS HONOUR: And it's held by the Corporation of the Director of Aboriginal and Islander Advancement as trustee. MR FRITZ: Yes, and as - under the Self Management Act, the elders had the right to say who could use or enter on their land. They were given that right by the Federal Government when they passed that Act, your Honour, to self manage it to say who had access to their lands, and it's binding on any Court. It says so in the Act, your Honour. The interpretation of - I mean, that's only one thing, your Honour. It's indisputable fact that I've been on that island, visiting it and ‑ ‑ ‑ HIS HONOUR: If the land is held by a trustee, for trust purposes, the ‑ ‑ ‑ MR FRITZ: For public use, it was. HIS HONOUR: No, it - well ‑ ‑ ‑ MR FRITZ: Public purposes, it was, and there's a definition of that - if I may find the argument, there's a definition of public purposes, your Honour, in relation to that matter. HIS HONOUR: You can refer me to that section. MR FRITZ: Section 12, subsection 2 of the Act: A person in respect of whom there is in force an authority under subsection 1 to reside on or visit a reserve shall not be prevented from entering or residing on or visiting, as the case may be, and shall not be ejected from the reserve by reasons that a permit authorising him to reside on or visit the reserve is non-enforceable in respect to him under the Aboriginals Act or the Torres Strait Islanders Act, and it shall not, for that reason, be unlawful for the person to be on the reserve. This was brought in, in 1978, it was for - commenced on 10 April 1978, and remains in force today, your Honour. HIS HONOUR: Give me the Act, name and number, if you can. MR FRITZ: Act name is the Aboriginal and Torres Strait Islander Queensland Reserves and Community Self Management Act, 1978. And Dean J and Gaudron J, at page 73, went into definition of Crown land which was reserved for public purposes on - as the definition of public purposes, includes as Aboriginal reserves - was held that in Mabo and Others v State of Queensland Number 2, in 1992, 175 CLR, at 73.' 15 The islands in question were not reserves under the Torres Strait Islanders Act 1971 (Qld) as amended ('the 1971 Act'). Nor are they 'trust areas' as defined by the Community Services (Torres Strait) Act 1984 (Qld) which repealed the 1971 Act. At all material times, the relevant islands were within the administrative jurisdiction of the Torres Shire Council. 16 Consequently, they are, and were, not an 'Islander Reserve' as defined in s 3 of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 (Cth) ('the 1978 Commonwealth Act'). The power of a Council as defined under s 12(1) of the 1978 Commonwealth Act to grant permission to enter an 'Islander Reserve' has no relevant operation in respect of the relevant islands, and nothing in the circumstances deposed to or relied upon by Mr Fritz gives him a right under s 12(2) of the 1978 Commonwealth Act to reside upon, visit or engage in any activities on, or in respect to, the islands in question. 17 I turn now to the documents of Mr Fritz filed in proceedings numbered QG121/98 on 6 October 1998, to which he refers in his affidavit in support of this motion as making out his claim to a relevant interest. 18 Those documents show that Mr Fritz spent time, on occasions, in the Torres Strait between 1959 and 1965 when he worked as a deckhand on prawning trawlers. During that time he deposes he made inquiries as to Harald Fritz and his time on Deliverance Island and Ker Islet, and, Mr Fritz spent six weeks camping on Deliverance Island in 1965. He returned to the Torres Strait in 1973 and between April and June of that year, built some bamboo pens on Deliverance island in which to breed crabs. In April 1975, he visited Deliverance Island and lived in a tent on the island for a short time, but established his permanent residence with his family on Prince of Wales Island. In 1976, he worked as an assistant crayfish diver and in that employment stored fuel and supplies and built a small dwelling for shelter on Deliverance Island. 19 In 1980, Mr Fritz built a vessel known as the 'Sea Master' and began to operate as a licensed commercial fisherman, operating the waters between Mabuiag, Turnagain, Deliverance and Ker Islands. 20 He claims that on 1 November 1982, Mr Crossfeld Ahmat, as chairman of the Boigu, Mabuiag and Badu Island Councils gave him permission, under s 12 of the 1978 Commonwealth Act, and also as a traditional elder, with the concurrence of other elders present on that occasion, to permanently reside on Deliverance Island for as long as he wished. In these proceedings this allegation is strongly denied by the applicant claimants. 21 In early 1985, Mr Fritz was convicted in the Supreme Court of Queensland of two serious crimes and sentenced to nine years imprisonment. 22 In April 1992, Mr Fritz and his then partner Ms Reynolds, commenced to attempt to obtain permission to establish and operate an aquaculture business on Deliverance and Ker Islands, centred around the breeding of crabs. In November 1992, they sought the grant to them of a lease under the Land Act 1962 (Qld) for aquaculture purposes. That application was refused in February 1996. On 6 February 1996, they applied to the Queensland Lands Department under the Land Act 1962 (Qld) for the grant of a freehold estate in respect of Deliverance and Ker Islands. That application was rejected on 13 June 1996. Mr Fritz asserts that in the period 1992 to 1995 inclusive, various elders continued to acknowledge his ongoing permission to reside on Deliverance Island. 23 On 23 June 1996, Raymond Sagigi and others on behalf of the people of Badu Island, made a claim under the NTA to the land areas of Deliverance Island, Ker Islet and Turu Cay. Thereafter, Mr Fritz continued to assert rights of ownership and possession which led to the institution of proceedings QG121/98 on 6 October 1998. Those proceedings were dismissed as disclosing no arguable cause of action entitling Mr Fritz to the relief claimed. In those proceedings Mr Fritz described himself as a disability pensioner and gave a residential address at Aspley, Brisbane. 24 It is not correct to say, as Mr Fritz asserts, that in seeking to be joined to the present proceedings he is doing no more than asking to protect something he claims to have been doing for the last forty years. 25 Over and above whatever interest he may have by virtue of being a commercial fisherman, Mr Fritz claims an interest to go onto the islands for beachcombing, swimming, walking on the beaches, camping and having a barbecue. This, he claims, has always been his use of these islands. Even assuming in his favour that he can make out such a recreational use in the 1960's and 1970's, there is nothing to suggest that he has, since that time, made such a recreational use of the islands that he has an identifiable interest in respect of that use. 26 The materials do not reveal any physical connection between Mr Fritz and Deliverance and Ker Islands since the mid 1980's. Even his contact up to that time was limited to three stays for a period of weeks between 1965 and 1975. Nor does it reveal his engaging in activities having a connection with the islands. Contrary to his assertions from the bar table, there is no evidence that he has, in the past or now, used Deliverance Island or Ker Islet as a base from which he carries on a business as a licensed commercial fisherman, or that he has visited the islands on a regular basis, or at all, since the mid-1980's, or that he did, prior to that time when he operated the 'Sea Master'. The available evidence suggests that from 1985 to at least 1998, he was not in the area of the Torres Strait, but was then in Brisbane seeking to obtain from the Government a grant to himself and his partner of a leasehold, or freehold, interest in Deliverance and Ker Islands, and when that failed, bringing a claim to ownership of the lands in question. Nor does he appear to have re-engaged in commercial fishing again until 2000, although it is to be noted that he still describes himself in the affidavit in support of his joinder as a 'pensioner' whose address is stated as M.V. Idleour with a Thursday Island Post Office box. 27 I am satisfied that Mr Fritz has no interest which is capable of clear definition which involves a rational and cogent connection with these islands which will be affected by any determination of native title. The issue relating to the presence of the grave of Harald Fritz is, at best, an emotional one, and not one shown as being affected by any determination of native title. Mr Fritz is not an habitual or regular user of these islands for any purpose and having regard to his past use, any past or present use is now remote and so insubstantial as to be speculative. 28 Finally, I am not satisfied that the claim to the interest is a genuine one. Rather, his stated desire is to engage in mediation and negotiation as a party 'further down the track'. In my view, by seeking to be joined as a party, he is attempting, by exercising a party's right to negotiate a consent determination, to seek to obtain rights for himself in relation to the islands which he does not have, and which since 1992 he has, through various avenues, sought and failed to obtain. 29 I am satisfied that Mr Fritz has no interest, personal to himself as a licensed commercial fisherman or otherwise, which may be affected by a determination of native title in these proceedings. 30 The other respondents to the claim who are fisherman were not joined as parties by order of the Court. They became parties by filing a notice in accordance with s 84(3) of the NTA. If the interest they claim which will be affected is as a public right of access over, or use of, any of the area covered by the application, then any like interests of Mr Fritz will be sufficiently represented by the Queensland Seafood Industry Association Inc which is acting for, and in the interests of, the existing fishermen parties. On that basis, his joinder, in my view, would be unnecessary: s 84(5A) of the NTA. 31 The application will be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Counsel for the Applicant on the motion: The applicant on the motion appeared in person

Solicitor for the Applicant: Torres Strait Regional Authority

Counsel for the First Respondent: C Fewings Solicitor for the First Respondent: Crown Law

Solicitor for Queensland Seafood Industry Association Inc: Gore & Associates

Date of Hearing: 18 September 2003 Date of Judgment: 10 December 2003