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[2004] FCA 1576
General information, not legal advice.
Federal Court of Australia
2004-12-13
Cooper J
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REASONS FOR JUDGMENT Background 1 This proceeding arises out of an application for determination of native title filed on 18 June 1996 in accordance with the procedures set out in the Native Title Act 1993 (Cth) ('the Act'). Mr Lui David, Mr Charles David, Miss Silen David, Mr Cyril Stephen, Miss Philomena David and Mr Patrick Thaiday make this application on behalf of the Iama People and Tudulaig of Yam Island in the Torres Strait. 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 13 on Plan TS177 being part of the island referred to as Yam Island excluding the areas described as: (i) Lots 4-6 on Plan AP9680; and (ii) Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177; (b) Lot 40 on Plan TS216 referred to as Zagai Island or Jeaka Island; (c) Lot 42 on Plan TS216 referred to as Tudu Island; and (d) Lot 44 on Plan TS216 referred to as Cap Islet or Mukar Islet or Mugquar Islet.' 3 The determination application also lists certain areas as not covered by the claim. Those areas are: 'Lot 14 on Plan TS178, Lot 1 on Plan TS362, Lot 50 on Plan TS283, Lot 2 on Plan TS117, Lots 4-6 on Plan AP9680, Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177 and all Roads'. 4 The original application has been amended to combine four claimant applications by Iama People into one application. The application was further amended 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 an affidavit of Mr Patrick Thaiday sworn 30 April 2002. I have also had the benefit of an anthropological report prepared on behalf of the applicant in July 2000 by Dr Maureen Fuary, senior lecturer in Anthropology at James Cook University, Queensland and Mr Kevin Murphy, consultant anthropologist, and filed on 19 November 2004. 9 The report by Dr Fuary and Mr Murphy notes that the one claimant group is alternately named the Tudulaig and Iama Islanders. This is in keeping with the cultural identity of Yam Island people who have always been Yam-Tudu people. Members of this group are descended from ancestors who were alive and in occupation of these lands prior to annexation in 1872. The centrality of kinship as an organising principle is ongoing in its influence over daily life on Yam Island, including everyday practices and the observation of social obligations. Yam and Tudu people were semi-sedentary people, systematically moving and settling on a number of islands. As part of their continuing system of land tenure, Iama Islanders and Tudulaig continue to exercise and enjoy the rights to gather, hunt, fish, camp, garden, live, manage, maintain and visit the lands under claim. Through these cultural practices they invoke the rights they inherited from their ancestors prior to 1872, and can be seen to have maintained a continuous physical, cultural, and spiritual connection with lands referred to in the report. 10 By the time of annexation by the Queensland Government, the reputation of Iama Islanders and Tudulaig was reportedly that of powerful defenders of their territory and resources, and as aggressors against other Islanders and European invaders. In 1792 when Captain Bligh was on his second trip to the Torres Strait, Tudu men earned a reputation of fierceness in European folklore, based on their resistance to his visit and attacks on his ships. They were subsequently described as skilful sailors and noted warriors and their island was dubbed 'Warrior Island'. Generally, Europeans tended to avoid the territory of Iama Islanders until the late 1860s, when the lure of pearlshell and trepang proved to be a great attraction. 11 Dr Fuary notes that, up until the point of annexation, Iama Islanders and Tudulaig lived by a system of law and order regulating their relationships and governing the use and ownership of land. They excluded others from their territory and like many other Torres Strait Island communities exerted power in their region. 12 There is no doubt that the Iama Islanders and Tudulaig have continued their connection with the land and waters of the determination area since annexation. The present day Iama Islanders and Tudulaig are descended from the autonomous social group who were primarily resident on the islands of Tudu and Yam before 1872. Mr Thaiday has deposed: '4. The traditional land owners have 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 Yam Island/Tudulaig people. 5. In support of some of the rights included as part of the continuing traditional inheritance of Yam people/Tudulaig and therefore as part of their native title rights, I confirm that: (a) Yam people have always enjoyed, and continue to enjoy, their rights to use, occupy and live on their lands and to exclude others from it and to use and enjoy the natural resources of the lands such as animal and plant life. For example, my family and I frequently visit Tudu to hunt for turtle, collect turtle eggs, fish from the beach and collect plant materials for food and other purposes. Some Yam families have houses there. (b) Yam people 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 on Yam when I die. (c) Yam 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, members of my family often collect turtle eggs from Tudu and mud crab from Zegey, and have gardened and collected plant material from Yam and Mukar. (d) Yam people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous person. For example, I trade with Papuans on occasion. (e) Yam people conduct social, religious and economic activities 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. For example, I sometimes visit sites of cultural significance on Yam Island and the other claim islands, and I visit the graves of my ancestors in the cemetery at Yam Island.' 13 I accept the evidence contained in Mr Thaiday's affidavit and the opinions contained in the report of Dr Fuary and Mr Murphy. 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 Iama People and Tudulaig 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 Iama People and Tudulaig; 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. 14 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 Determinations 15 The proposed Orders, which are consistent with the terms agreed by the parties, recognise that the Iama People and Tudulaig, 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. 16 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. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.
Solicitor for the Applicant: Torres Strait Regional Authority
Solicitor for the State of Queensland: Crown Solicitor
LUI DAVID, CHARLES DAVID, SILEN DAVID, CYRIL STEPHEN, PHILOMENA DAVID AND PATRICK THAIDAY ON BEHALF OF THE YAM ISLANDERS/TUDULAIG PEOPLE Applicant STATE OF QUEENSLAND First Respondent TORRES STRAIT REGIONAL AUTHORITY Second Respondent ERGON ENERGY CORPORATION LIMITED Third Respondent TELSTRA CORPORATION LIMITED Fourth Respondent BERNARD BRADLEY Fifth Respondent CARL D'AGUIAR Sixth Respondent NEVILLE DAVIES Seventh Respondent BARRY EHRKE Eighth Respondent PAUL GREEN Ninth Respondent PHILLIP JOHN HUGHES Tenth Respondent MARK MILLWARD Eleventh Respondent AL MOLLER-NIELSEN Twelfth Respondent DARYL O'HANLON Thirteenth Respondent BRUCE ROSE Fourteenth Respondent FRANK SWINBURNE Fifteenth Respondent MARK WILLIS Sixteenth Respondent BARRY WILSON Seventeenth Respondent
ORDER JUDGE: DATE OF ORDER: WHERE MADE: THE COURT ORDERS BY CONSENT THAT:
SCHEDULE 1 DETERMINATION AREA The land and waters on the landward side of the High Water Mark of: (a) Lot 13 on Plan TS177 being part of the island referred to as Yam Island excluding the areas described as: (i) Lots 4-6 on Plan AP9680; and (ii) Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177; (b) Lot 40 on Plan TS216 referred to as Zagai Island or Jeaka Island; (c) Lot 42 on Plan TS216 referred to as Tudu Island; and (d) Lot 44 on Plan TS216 referred to as Cap Islet or Mukar Islet or Muquar Islet. Lot 14 on Plan TS178, Lot 1 on Plan TS362, Lot 50 on Plan TS283, Lot 2 on Plan TS117, Lots 4-6 on Plan AP9680, Lease A on Deposited Plan 149845 in Lot 13 on Plan TS177 and Roads are not subject to native title determination application Yam Islanders/Tudulaig Combined QG 6052 of 1998 and do not form part of the land and waters described above.
SCHEDULE 3 NATIVE TITLE HOLDERS The Yam Islanders/Tudulaig People, being: (a) the descendants of one or more of the following apical ancestors: Kebisu, Rusia, Ausa, Auda, Porrie Daniel, Gawadi or Kelam; 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 Iama Island Council and the beneficiaries under deed of grant No. 21296138; (b) the interests of the Urapun Tubudal Gal Land Trust and the beneficiaries under deed of grant No. 40032519; (c) 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 21 over Lot 40 on Plan TS216; and (ii) Reserve 201 over Lot 44 on Plan TS216; (d) the interests of the State of Queensland under an indigenous land use agreement dated 22 November 2004 between it and Lui David, Charles David, Silen David, Cyril Stephen, Philomena David and Patrick Thaiday; (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 B on Crown Plan 825770 in Lot 13 on Plan TS177 and Lease S on Deposited Plan 151800 in Lot 13 on Plan TS177 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 150248 in Lot 13 on Plan TS177 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. 2/89; (iii) Application No. 3/89; (iv) Application No. 4/89; (v) Application No. 5/89; (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; and (xxxiv) Application No. 35/89; (j) the powers of the Iama 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. 21296138 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 40, 42 and 44 on Plan TS216; (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.
David on behalf of the Iama People and Tudulaig
State of Queensland