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[2001] FCA 657
Federal Court of Australia
2001-05-23
Drummond J, Michael J
Original judgment source is linked above.
A. The Applicants have brought Native Title Determination Application No. QC96/06 ("the Application") which relates to an area which includes the Determination Area.
B. The Applicants and the Respondents have reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
C. The parties have agreed to make application to the Federal Court of Australia for a Consent Order for a determination that native title exists in relation to the Determination Area.
D. The parties have requested pursuant to O 10 r 3(1) of the Federal Court Rules that the Court hear and determine that part of the proceeding that relates to the Determination Area at this hearing today.
E. No nomination pursuant to s 56(2) of the Native Title Act 1993 (Cth) ("the Native Title Act") in relation to the holding of native title in trust has been made.
F. The parties have requested that the Court pursuant to s 56(2)(c) of the Native Title Act make a determination that the Native Title Rights and Interests are held by the Native Title Holders.
G. Mr Billy Wasaga as the registered Native Title Claimant is seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth) an Aboriginal Association to be the prescribed body corporate and perform the functions mentioned in s 57(3) of the Native Title Act.
Being satisfied that a determination in the terms sought by those parties would be within the power of the Court and, it appearing to the Court appropriate to do so and by the consent of the parties:
THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:
Native title exists in relation to the Determination Area, except those parts described in Orders 2 and 2A.
Native Title Rights and Interests have been wholly extinguished in the following parts of the Determination Area:
(a) the land and waters on which any public work, which is valid for native title purposes, is constructed, established or situated including any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the public work.
2A. The Native Title Rights and Interests may have been affected by a lawful physical activity carried out prior to the date of this determination pursuant to the Mining Leases and Interests.
The native title is held by the Kaurareg People who are the descendants of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders.
The Nature and Extent of the Native Title Rights and Interests
The nature and extent of the Native Title Rights and Interests in relation to the Determination Area, excluding areas in Order 2, is set out in Orders 5 to 8A.
The Native Title Rights and Interests confer, subject to Orders 7, 8 and 8A, possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders, but not to the exclusion of all others.
The Native Title Rights and Interests, which are derived from and exercisable by reason of the existence of native title, include the following rights, duties and obligations to:
(a) live on and build structures on the Determination Area;
(b) maintain and manage the Determination Area for the benefit of the Native Title Holders, including to:
(i) conserve and safeguard the Natural Resources of the Determination Area;
(ii) make decisions and impose conditions about the use and enjoyment of the Determination Area and its Natural Resources by the Native Title Holders;
(iii) make decisions and impose conditions about access rights to the Determination Area by Native Title Holders;
(c) use and enjoy the Determination Area and the Natural Resources of the Determination Area for social, cultural, economic, religious, spiritual, traditional and customary purposes, including to:
(ii) exercise and carry out economic activities on the Determination Area including to grow, produce and harvest; and
(iii) engage in trade in relation to the Natural Resources of the Determination Area;
(d) exercise cultural, spiritual, religious, traditional and customary rights and discharge such responsibilities on the Determination Area including to:
(i) preserve sites on the Determination Area of significance to the Native Title Holders;
(ii) decide on, carry out and pass on the culture, traditions and customs of the Native Title Holders which apply to the Determination Area;
(iii) conduct and maintain cultural, spiritual and religious practices and institutions through ceremonies and proper and appropriate maintenance and use of the Determination Area;
(iv) inherit, dispose of, or give Native Title Rights and Interests in the Determination Area to other Native Title Holders;
(v) resolve disputes between the Native Title Holders in relation to the Determination Area; and
The Native Title Rights and Interests and the native title are always subject to and exercisable only in accordance with the:
(a) laws of the State of Queensland and the Commonwealth;
(b) traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) planning scheme and local laws of the Torres Shire Council.
The recognition of Native Title Rights and Interests does not affect:
(a) the State's interests in forest products and quarry materials in the determination area; or
(b) the State's ability to regulate the use and enjoyment of forest products and quarry materials in the determination area under the Forestry Act 1959 (Qld).
The Nature and Extent of any other Interests in relation to the Determination Area
The nature and extent of any other interests in relation to the Determination Area are:
(a) the interests of the Torres Shire Council under its Local Government jurisdiction and functions and as an entity exercising statutory powers, including:
(i) its legal and equitable interests under any reserves, permits and other estates or interests; and
(ii) its interests under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the State of Queensland;
(b) the interests of the Torres Shire Council as Trustee under the Land Act 1994 (Qld) of reserve R 314 and described as lot 186 on CP900533;
(c) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner of telecommunications facilities in the Determination Area including:
(i) the right to enter upon the Determination Area in accordance with the law; and
(ii) its interests under an Indigenous Land Use Agreement between it and representatives of the Native Title Holders;
(d) the interests of Ergon Energy Corporation Limited as an entity exercising statutory powers and as owner and operator of electricity generation, transmission and distribution facilities on Horn Island including:
(i) the right to enter upon the Determination Area in accordance with the law; and
(ii) its interests under an Indigenous Land Use Agreement between it and representatives of the Native Title Holders;
(e) the interests of the State of Queensland under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the Torres Shire Council;
(f) other interests that may be held by reason of the effect and operation of the Laws of the State of Queensland and the Commonwealth.
Relationship Between the Native Title and Other Interests in the Determination Area
The relationship between the Native Title Rights and Interests described in Order 6 and the other rights and interests described in Order 9 ("the other rights and interests") is that:
(a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the Native Title Rights and Interests; and
(b) the other rights and interests, and an activity done in exercise of the rights conferred by or held under the other rights and interests, prevail over the Native Title Rights and Interests and any exercise of those Native Title Rights and Interests.
The words and expressions used in this Determination have the same meanings as they have in the Native Title Act except the following defined words and expressions:
(a) "Descendants" includes Torres Strait Islanders and Aboriginal Peoples who are recognised as Kaurareg People under traditional law and custom;
(b) "Determination Area" means the area on the landward side of the High-Water Mark that is described as follows:
(i) lot 1 on AP3465 but excluding that part of lot 1 on AP3465 bounded by a line drawn as follows:
(A) starting at the High-Water Mark immediately northwest of the southwestern corner of lot 152 on RP748819;
(B) proceeding southeast to the southwestern corner of lot 152 on RP748819;
(C) to the southeast corner of lot 152 on RP748819 following the boundary of that lot;
(D) by a straight line to the southeast corner of lot 511 on TS238;
(E) to the northeast corner of lot 511 on TS238 following the boundary of that lot;
(F) by a straight line, coterminous with the eastern boundary of lot 511 on TS238, to the intersection of that line with the northern boundary of Wees Street;
(G) west along the northern boundary of Wees Street to the point that is part of the eastern boundary of Savage Street;
(H) north by a line coterminous with the eastern boundary of Savage to the point where that line first meets the boundary of lot 10 on CP860954;
(I) southeast, then northeast, then northwest following the boundary of lot 10 on CP860954 to the northern corner of that lot;
(J) by a straight line east to the southwestern corner of lot 113 on TS77;
(K) to the southeast corner of lot 113 on TS77 following the boundary of that lot;
(L) by a straight line to the southeastern corner of lot 135 on TS153;
(M) to the northeastern corner of lot 135 of TS153 following the boundary of that lot;
(N) by a straight line to the southern corner of lot 169 on TS224;
(O) by the High-Water Mark to the point of commencement;
(ii) stations 7-9-18a-19a-21a-25a-25-24-23-22-20-19-18-7 shown on plan CP899595;
(iii) the area shown as road to be opened on plan RA5495;
(v) lot 186 on CP900533 exclusive of the dam and any public works;
(c) "High-Water Mark" has the meaning given to it in schedule 6 of the Land Act 1994 (Qld);
(d) "Horn Island Mining Field" means that area of land notified in the Queensland Government Gazette, 31 May 1981, page 1076 as the Horn Island Mining Field;
(e) "Law" includes statutory law, common law and equity;
(f) "Minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(h) "Native Title Holders" means the Kaurareg People;
(i) "Native Title Rights and Interests" means those rights and interests described in Orders 5 to 8;
(j) "Natural Resources" means animal, plant, fish and bird life found on or in the Determination Area from time to time and all water, clays and soils found on or below the surface of the Determination Area but does not include Minerals or Petroleum;
(k) "Petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld).
(a) be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act; and
(b) perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
A. The Applicants have brought Native Title Determination Application No. QC96/07 ("the Application") which relates to an area which includes the Determination Area.
B. The Applicants and the Respondents have reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
C. The parties have agreed to make application to the Federal Court of Australia for a Consent Order for a determination that native title exists in relation to the Determination Area.
D. The parties have requested pursuant to O 10 r 3(1) of the Federal Court Rules that the Court hear and determine that part of the proceeding that relates to the Determination Area at this hearing today.
E. No nomination pursuant to s 56(2) of the Native Title Act 1993 (Cth) ("the Native Title Act") in relation to the holding of native title in trust has been made.
F. The parties have requested that the Court pursuant to s 56(2)(c) of the Native Title Act make a determination that the Native Title Rights and Interests are held by the Native Title Holders.
G. Mr Billy Wasaga as the registered Native Title Claimant is seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth) an Aboriginal Association to be the prescribed body corporate and perform the functions mentioned in s 57(3) of the Native Title Act.
Being satisfied that a determination in the terms sought by those parties would be within the power of the Court and, it appearing to the Court appropriate to do so and by the consent of the parties:
THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:
Native title exists in relation to the Determination Area, except those parts described in Order 2.
Native Title Rights and Interests have been wholly extinguished in the following parts of the Determination Area:
(e) the area between the landward side of the High-Water Mark and adjoining boundary of lot 15 on TS32;
(f) the area between the landward side of the High-Water Mark and adjoining boundary of lot 21 on TS40;
(g) the area between the landward side of the High-Water Mark and adjoining boundary of lots 18, 33, 34, 35 and 57 on TS46;
(h) the area between the landward side of the High-Water Mark and adjoining boundary of lots 5, 11, 12, 47, 48 and 49 on TS105;
(i) the area between the landward side of the High-Water Mark and adjoining boundary of lots 13, 32 and 61 on TS122;
(j) the area shown on plan TS239 as stations 10-16-17-18-19;
(k) the area between the landward side of the High-Water Mark and adjoining boundary of lot 60 on CP854114; and
(l) the land and waters on which any public work, which is valid for native title purposes, is constructed, established or situated including any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the public work.
The native title is held by the Kaurareg People who are the descendants of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders.
The Nature and Extent of the Native Title Rights and Interests
The nature and extent of the Native Title Rights and Interests in relation to the Determination Area, excluding areas in Order 2, is set out in Orders 5 to 8.
The Native Title Rights and Interests confer, subject to Orders 7 and 8, possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others, except those having rights and interests identified in Order 9.
The Native Title Rights and Interests, which are derived from and exercisable by reason of the existence of native title, include the following rights, duties and obligations to:
(a) live on and build structures on the Determination Area;
(b) maintain and manage the Determination Area for the benefit of the Native Title Holders, including to:
(i) conserve and safeguard the Natural Resources of the Determination Area;
(ii) make decisions and impose conditions about the use and enjoyment of the Determination Area and its Natural Resources by the Native Title Holders;
(iii) make decisions and impose conditions about access rights to the Determination Area by Native Title Holders;
(c) use and enjoy the Determination Area and the Natural Resources of the Determination Area for social, cultural, economic, religious, spiritual, traditional and customary purposes, including to:
(ii) exercise and carry out economic activities on the Determination Area including to grow, produce and harvest; and
(iii) engage in trade in relation to the Natural Resources of the Determination Area;
(d) exercise cultural, spiritual, religious, traditional and customary rights and discharge such responsibilities on the Determination Area including to:
(i) preserve sites on the Determination Area of significance to the Native Title Holders;
(ii) decide on, carry out and pass on the culture, traditions and customs of the Native Title Holders which apply to the Determination Area;
(iii) conduct and maintain cultural, spiritual and religious practices and institutions through ceremonies and proper and appropriate maintenance and use of the Determination Area;
(iv) inherit, dispose of, or give Native Title Rights and Interests in the Determination Area to other Native Title Holders;
(v) resolve disputes between the Native Title Holders in relation to the Determination Area; and
The Native Title Rights and Interests and the native title are always subject to and exercisable only in accordance with the:
(a) laws of the State of Queensland and the Commonwealth;
(b) traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) planning scheme and local laws of the Torres Shire Council.
Notwithstanding anything in this determination, the Native Title Rights and Interests do not confer on the Native Title Holders rights of ownership in respect of flowing water.
The Nature and Extent of any other Interests in relation to the Determination Area
The nature and extent of any other interests in relation to the Determination Area are:
(a) the interests of the Torres Shire Council under its Local Government jurisdiction and functions and as an entity exercising statutory powers, including:
(i) its legal and equitable interests under any reserves, permits and other estates or interests; and
(ii) its interests under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the State of Queensland;
(b) the interests of the State of Queensland, the Torres Shire Council and members of the public in respect of Designated Roads;
(c) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner of telecommunications facilities in the Determination Area including:
(i) the right to enter upon the Determination Area in accordance with the law; and
(ii) its interests under an Indigenous Land Use Agreement between it and representatives of the Native Title Holders;
(d) the interests of the State of Queensland under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the Torres Shire Council;
(e) other interests that may be held by reason of the effect and operation of the Laws of the State of Queensland and the Commonwealth.
Relationship Between the Native Title and Other Interests in the Determination Area
The relationship between the Native Title Rights and Interests described in Order 6 and the other rights and interests described in Order 9 ("the other rights and interests") is that:
(a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the Native Title Rights and Interests; and
(b) the other rights and interests, and an activity done in exercise of the rights conferred by or held under the other rights and interests, prevail over the Native Title Rights and Interests and any exercise of those Native Title Rights and Interests.
The words and expressions used in this Determination have the same meanings as they have in the Native Title Act except the following defined words and expressions:
(a) "Descendants" includes Torres Strait Islanders and Aboriginal Peoples who are recognised as Kaurareg People under traditional law and custom;
(i) the area shown on plan RA3655 as "road to be opened" but excluding that part of the area:
(B) east of a line, passing along the same vertical plane as the line forming the eastern boundary of lot 73 on TS263, drawn between the southeastern corner of lot 73 on TS263 the northern boundary of lot 74 on TS263; and
(ii) the area shown on plan TS 188 as stations 2-A-B-4-2; and
(iii) the area shown on plan TS239 as stations 10-16-17-18-19;
(c) "Determination Area" means the area on the landward side of the High-Water Mark that is described as follows:
(i) lot 1 on PER5145 but excluding the area bounded by a line drawn as follows:
(A) starting at the easternmost corner of lot 73 on TS263;
(B) to the northeastern corner of lot 73 on TS263 following the eastern boundary of that lot;
(C) by a straight line to the corner of the esplanade shown on plan TS263 closest to the northeastern corner of lot 73 on TS263;
(D) southerly from the point described in subsubparagraph (C) along the western boundary of the esplanade shown on plan TS263 to the point intersecting with the northern boundary of the road between lots 73 and 74 on TS263; and
(E) by a straight line to the point described in subsubparagraph (A);
(d) "High-Water Mark" has the meaning given to it in schedule 6 of the Land Act 1994 (Qld);
(e) "Law" includes statutory law, common law and equity;
(f) "Minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(g) "Native Title Holders" means the Kaurareg People;
(h) "Native Title Rights and Interests" means those rights and interests described in Orders 5 to 8;
(i) "Natural Resources" means animal, plant, fish and bird life found on or in the Determination Area from time to time and all water, clays and soils found on or below the surface of the Determination Area but does not include Minerals or Petroleum;
(j) "Petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld).
(a) be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act; and
(b) perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
A. The Applicants have brought Native Title Determination Application No. QC96/08 ("the Application") which relates to an area which includes the Determination Area.
B. The Applicants and the Respondents have reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
C. The parties have agreed to make application to the Federal Court of Australia for a Consent Order for a determination that native title exists in relation to the Determination Area.
D. The parties have requested pursuant to O 10 r 3(1) of the Federal Court Rules that the Court hear and determine that part of the proceeding that relates to the Determination Area at this hearing today.
E. No nomination pursuant to s 56(2) of the Native Title Act 1993 (Cth) ("the Native Title Act") in relation to the holding of native title in trust has been made.
F. The parties have requested that the Court pursuant to s 56(2)(c) of the Native Title Act make a determination that the Native Title Rights and Interests are held by the Native Title Holders.
G. Mr Billy Wasaga as the registered Native Title Claimant is seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth) an Aboriginal Association to be the prescribed body corporate and perform the functions mentioned in s 57(3) of the Native Title Act.
Being satisfied that a determination in the terms sought by those parties would be within the power of the Court and, it appearing to the Court appropriate to do so and by the consent of the parties:
THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:
Native title exists in relation to the Determination Area, except those parts described in Order 2.
Native Title Rights and Interests have been wholly extinguished in the following parts of the Determination Area:
(a) the land and waters on which any public work, which is valid for native title purposes, is constructed, established or situated including any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the public work.
The native title is held by the Kaurareg People who are the descendants of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders.
The Nature and Extent of the Native Title Rights and Interests
The nature and extent of the Native Title Rights and Interests in relation to the Determination Area, excluding areas in Order 2, is set out in Orders 5 to 8.
The Native Title Rights and Interests confer, subject to Orders 7 and 8, possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others, except those having rights and interests identified in Order 9.
The Native Title Rights and Interests, which are derived from and exercisable by reason of the existence of native title, include the following rights, duties and obligations to:
(a) live on and build structures on the Determination Area;
(b) maintain and manage the Determination Area for the benefit of the Native Title Holders, including to:
(i) conserve and safeguard the Natural Resources of the Determination Area;
(ii) make decisions and impose conditions about the use and enjoyment of the Determination Area and its Natural Resources by the Native Title Holders;
(iii) make decisions and impose conditions about access rights to the Determination Area by Native Title Holders;
(c) use and enjoy the Determination Area and the Natural Resources of the Determination Area for social, cultural, economic, religious, spiritual, traditional and customary purposes, including to:
(ii) exercise and carry out economic activities on the Determination Area including to grow, produce and harvest; and
(iii) engage in trade in relation to the Natural Resources of the Determination Area;
(d) exercise cultural, spiritual, religious, traditional and customary rights and discharge such responsibilities on the Determination Area including to:
(i) preserve sites on the Determination Area of significance to the Native Title Holders;
(ii) decide on, carry out and pass on the culture, traditions and customs of the Native Title Holders which apply to the Determination Area;
(iii) conduct and maintain cultural, spiritual and religious practices and institutions through ceremonies and proper and appropriate maintenance and use of the Determination Area;
(iv) inherit, dispose of, or give Native Title Rights and Interests in the Determination Area to other Native Title Holders;
(v) resolve disputes between the Native Title Holders in relation to the Determination Area; and
The Native Title Rights and Interests and the native title are always subject to and exercisable only in accordance with the:
(a) laws of the State of Queensland and the Commonwealth;
(b) traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) planning scheme and local laws of the Torres Shire Council.
Notwithstanding anything in this determination, the Native Title Rights and Interests do not confer on the Native Title Holders rights of ownership in respect of flowing water.
The Nature and Extent of any other Interests in relation to the Determination Area
The nature and extent of any other interests in relation to the Determination Area are:
(a) the interests of the Torres Shire Council under its Local Government jurisdiction and functions and as an entity exercising statutory powers, including:
(i) its legal and equitable interests under any reserves, permits and other estates or interests; and
(ii) its interests under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the State of Queensland;
(b) the interests of the State of Queensland, the Torres Shire Council and members of the public in respect of Designated Roads;
(c) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner of telecommunications facilities in the Determination Area including:
(i) the right to enter upon the Determination Area in accordance with the law; and
(ii) its interests under an Indigenous Land Use Agreement between it and representatives of the Native Title Holders;
(d) the interests of the State of Queensland under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the Torres Shire Council;
(e) other interests that may be held by reason of the effect and operation of the Laws of the State of Queensland and the Commonwealth.
Relationship Between the Native Title and Other Interests in the Determination Area
The relationship between the Native Title Rights and Interests described in Order 6 and the other rights and interests described in Order 9 ("the other rights and interests") is that:
(a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the Native Title Rights and Interests; and
(b) the other rights and interests, and an activity done in exercise of the rights conferred by or held under the other rights and interests, prevail over the Native Title Rights and Interests and any exercise of those Native Title Rights and Interests.
The words and expressions used in this Determination have the same meanings as they have in the Native Title Act except the following defined words and expressions:
(a) "Descendants" includes Torres Strait Islanders and Aboriginal Peoples who are recognised as Kaurareg People under traditional law and custom;
(b) "Designated Roads" means the area of esplanade shown on plan TS280, between lot 19 on TS130 and lot 31 on TS280;
(c) "Determination Area" means the area on the landward side of the High-Water Mark that is described as follows:
(iv) all that land between the high-water mark and a line parallel to, and 20.117m distant from, the high-water mark other than the Designated Roads;
(d) "High-Water Mark" has the meaning given to it in schedule 6 of the Land Act 1994 (Qld);
(e) "Law" includes statutory law, common law and equity;
(f) "Minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(g) "Native Title Holders" means the Kaurareg People;
(h) "Native Title Rights and Interests" means those rights and interests described in Orders 5 to 8;
(i) "Natural Resources" means animal, plant, fish and bird life found on or in the Determination Area from time to time and all water, clays and soils found on or below the surface of the Determination Area but does not include Minerals or Petroleum;
(j) "Petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld).
(a) be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act; and
(b) perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
A. The Applicants have brought Native Title Determination Application No. QC96/09 ("the Application") which relates to an area which includes the Determination Area.
B. The Applicants and the Respondents have reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
C. The parties have agreed to make application to the Federal Court of Australia for a Consent Order for a determination that native title exists in relation to the Determination Area.
D. The parties have requested pursuant to O 10 r 3(1) of the Federal Court Rules that the Court hear and determine that part of the proceeding that relates to the Determination Area at this hearing today.
E. No nomination pursuant to s 56(2) of the Native Title Act 1993 (Cth) ("the Native Title Act") in relation to the holding of native title in trust has been made.
F. The parties have requested that the Court pursuant to s 56(2)(c) of the Native Title Act make a determination that the Native Title Rights and Interests are held by the Native Title Holders.
G. Mr Billy Wasaga as the registered Native Title Claimant is seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth) an Aboriginal Association to be the prescribed body corporate and perform the functions mentioned in s 57(3) of the Native Title Act.
Being satisfied that a determination in the terms sought by those parties would be within the power of the Court and, it appearing to the Court appropriate to do so and by the consent of the parties:
THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:
Native title exists in relation to the Determination Area, except those parts described in Order 2.
Native Title Rights and Interests have been wholly extinguished in the following parts of the Determination Area:
(i) the area of esplanade between lot 10 on TS29 and the High-Water Mark;
(iii) the area of esplanade between lot 20 on TS40 and the High-Water Mark;
(v) the area of road between lots 52 to 56 on TS55 and the High-Water Mark; and
(vi) the land and waters on which any public work, which is valid for native title purposes, is constructed, established or situated including any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the public work.
The native title is held by the Kaurareg People who are the descendants of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders.
The Nature and Extent of the Native Title Rights and Interests
The nature and extent of the Native Title Rights and Interests in relation to the Determination Area, excluding areas in Order 2, is set out in Orders 5 to 8.
The Native Title Rights and Interests confer, subject to Orders 7 and 8, possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others, except those having rights and interests identified in Order 9.
The Native Title Rights and Interests, which are derived from and exercisable by reason of the existence of native title, include the following rights, duties and obligations to:
(a) live on and build structures on the Determination Area;
(b) maintain and manage the Determination Area for the benefit of the Native Title Holders, including to:
(i) conserve and safeguard the Natural Resources of the Determination Area;
(ii) make decisions and impose conditions about the use and enjoyment of the Determination Area and its Natural Resources by the Native Title Holders;
(iii) make decisions and impose conditions about access rights to the Determination Area by Native Title Holders;
(c) use and enjoy the Determination Area and the Natural Resources of the Determination Area for social, cultural, economic, religious, spiritual, traditional and customary purposes, including to:
(ii) exercise and carry out economic activities on the Determination Area including to grow, produce and harvest; and
(iii) engage in trade in relation to the Natural Resources of the Determination Area;
(d) exercise cultural, spiritual, religious, traditional and customary rights and discharge such responsibilities on the Determination Area including to:
(i) preserve sites on the Determination Area of significance to the Native Title Holders;
(ii) decide on, carry out and pass on the culture, traditions and customs of the Native Title Holders which apply to the Determination Area;
(iii) conduct and maintain cultural, spiritual and religious practices and institutions through ceremonies and proper and appropriate maintenance and use of the Determination Area;
(iv) inherit, dispose of, or give Native Title Rights and Interests in the Determination Area to other Native Title Holders;
(v) resolve disputes between the Native Title Holders in relation to the Determination Area; and
The Native Title Rights and Interests and the native title are always subject to and exercisable only in accordance with the:
(a) laws of the State of Queensland and the Commonwealth;
(b) traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) planning scheme and local laws of the Torres Shire Council.
Notwithstanding anything in this determination, the Native Title Rights and Interests do not confer on the Native Title Holders rights of ownership in respect of flowing water.
The Nature and Extent of any other Interests in relation to the Determination Area
The nature and extent of any other interests in relation to the Determination Area are:
(a) the interests of the Torres Shire Council under its Local Government jurisdiction and functions and as an entity exercising statutory powers, including:
(i) its legal and equitable interests under any reserves, permits and other estates or interests; and
(ii) its interests under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the State of Queensland;
(b) the interests of the Torres Shire Council as trustee of that part of the reserve for camping water and recreation described as lot 72 on SP137301;
(c) the interests of the Peninsula Regional Health Authority as trustee of the reserve for health purposes and described as lot l0 on TS29;
(d) the interests of the State of Queensland, the Torres Shire Council and members of the public in respect of Designated Roads;
(e) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner of telecommunications facilities in the Determination Area including:
(i) the right to enter upon the Determination Area in accordance with the law; and
(ii) its interests under an Indigenous Land Use Agreement between it and representatives of the Native Title Holders;
(f) the interests of the State of Queensland under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the Torres Shire Council;
(g) other interests that may be held by reason of the effect and operation of the Laws of the State of Queensland and the Commonwealth.
Relationship Between the Native Title and Other Interests in the Determination Area
The relationship between the Native Title Rights and Interests described in Order 6 and the other rights and interests described in Order 9 ("the other rights and interests") is that:
(a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the Native Title Rights and Interests; and
(b) the other rights and interests, and an activity done in exercise of the rights conferred by or held under the other rights and interests, prevail over the Native Title Rights and Interests and any exercise of those Native Title Rights and Interests.
The words and expressions used in this Determination have the same meanings as they have in the Native Title Act except the following defined words and expressions:
(a) "Descendants" includes Torres Strait Islanders and Aboriginal Peoples who are recognised as Kaurareg People under traditional law and custom;
(b) "Determination Area" means the area on the landward side of the High-Water Mark that is described as follows:
(ix) the area shown as road to be opened on plan CP847026;
(c) "High-Water Mark" has the meaning given to it in schedule 6 of the Land Act 1994 (Qld);
(d) "Law" includes statutory law, common law and equity;
(e) "Minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(f) "Native Title Holders" means the Kaurareg People;
(g) "Native Title Rights and Interests" means those rights and interests described in Orders 5 to 8;
(h) "Natural Resources" means animal, plant, fish and bird life found on or in the Determination Area from time to time and all water, clays and soils found on or below the surface of the Determination Area but does not include Minerals or Petroleum;
(i) "Petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld).
(a) be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act; and
(b) perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLES
A. The Applicants have brought Native Title Determination Application No. QC96/10 ("the Application") which relates to an area which includes the Determination Area.
B. The Applicants and the Respondents have reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area.
C. The parties have agreed to make application to the Federal Court of Australia for a Consent Order for a determination that native title exists in relation to the Determination Area.
D. The parties have requested pursuant to O 10 r 3(1) of the Federal Court Rules that the Court hear and determine that part of the proceeding that relates to the Determination Area at this hearing today.
E. No nomination pursuant to s 56(2) of the Native Title Act 1993 (Cth) ("the Native Title Act") in relation to the holding of native title in trust has been made.
F. The parties have requested that the Court pursuant to s 56(2)(c) of the Native Title Act make a determination that the Native Title Rights and Interests are held by the Native Title Holders.
G. Mr Billy Wasaga as the registered Native Title Claimant is seeking to incorporate pursuant to the Aboriginal Councils and Associations Act 1976 (Cth) an Aboriginal Association to be the prescribed body corporate and perform the functions mentioned in s 57(3) of the Native Title Act.
Being satisfied that a determination in the terms sought by those parties would be within the power of the Court and, it appearing to the Court appropriate to do so and by the consent of the parties:
THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:
Native title exists in relation to the Determination Area, except those parts described in Order 2.
Native Title Rights and Interests have been wholly extinguished in the following parts of the Determination Area:
(i) the area between the landward side of the High-Water Mark and adjoining boundary of lot 30 on TS46; and
(ii) the land and waters on which any public work, which is valid for native title purposes, is constructed, established or situated including any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the public work.
The native title is held by the Kaurareg People who are the descendants of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders.
The Nature and Extent of the Native Title Rights and Interests
The nature and extent of the Native Title Rights and Interests in relation to the Determination Area, excluding areas in Order 2, is set out in Orders 5 to 8.
The Native Title Rights and Interests confer, subject to Orders 7 and 8, possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of all others, except those having rights and interests identified in Order 9.
The Native Title Rights and Interests, which are derived from and exercisable by reason of the existence of native title, include the following rights, duties and obligations to:
(a) live on and build structures on the Determination Area;
(b) maintain and manage the Determination Area for the benefit of the Native Title Holders, including to:
(i) conserve and safeguard the Natural Resources of the Determination Area;
(ii) make decisions and impose conditions about the use and enjoyment of the Determination Area and its Natural Resources by the Native Title Holders;
(iii) make decisions and impose conditions about access rights to the Determination Area by Native Title Holders;
(c) use and enjoy the Determination Area and the Natural Resources of the Determination Area for social, cultural, economic, religious, spiritual, traditional and customary purposes, including to:
(ii) exercise and carry out economic activities on the Determination Area including to grow, produce and harvest; and
(iii) engage in trade in relation to the Natural Resources of the Determination Area;
(d) exercise cultural, spiritual, religious, traditional and customary rights and discharge such responsibilities on the Determination Area including to:
(i) preserve sites on the Determination Area of significance to the Native Title Holders;
(ii) decide on, carry out and pass on the culture, traditions and customs of the Native Title Holders which apply to the Determination Area;
(iii) conduct and maintain cultural, spiritual and religious practices and institutions through ceremonies and proper and appropriate maintenance and use of the Determination Area;
(iv) inherit, dispose of, or give Native Title Rights and Interests in the Determination Area to other Native Title Holders;
(v) resolve disputes between the Native Title Holders in relation to the Determination Area; and
The Native Title Rights and Interests and the native title are always subject to and exercisable only in accordance with the:
(a) laws of the State of Queensland and the Commonwealth;
(b) traditional laws acknowledged and traditional customs observed by the Native Title Holders; and
(c) planning scheme and local laws of the Torres Shire Council.
Notwithstanding anything in this determination, the Native Title Rights and Interests do not confer on the Native Title Holders rights of ownership in respect of flowing water.
The Nature and Extent of any other Interests in relation to the Determination Area
The nature and extent of any other interests in relation to the Determination Area are:
(a) the interests of the Torres Shire Council under its Local Government jurisdiction and functions and as an entity exercising statutory powers, including:
(i) its legal and equitable interests under any reserves, permits and other estates or interests; and
(ii) its interests under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the State of Queensland;
(b) the interests of the State of Queensland, the Torres Shire Council and members of the public in respect of Designated Roads;
(c) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner of telecommunications facilities in the Determination Area including:
(i) the right to enter upon the Determination Area in accordance with the law; and
(ii) its interests under an Indigenous Land Use Agreement between it and representatives of the Native Title Holders;
(d) the interests of the State of Queensland under an Indigenous Land Use Agreement between it, representatives of the Native Title Holders and the Torres Shire Council;
(e) other interests that may be held by reason of the effect and operation of the Laws of the State of Queensland and the Commonwealth.
Relationship Between the Native Title and Other Interests in the Determination Area
The relationship between the Native Title Rights and Interests described in Order 6 and the other rights and interests described in Order 9 ("the other rights and interests") is that:
(a) the other rights and interests continue to have effect, and the rights conferred by or held under the other rights and interests may be exercised notwithstanding the existence of the Native Title Rights and Interests; and
(b) the other rights and interests, and an activity done in exercise of the rights conferred by or held under the other rights and interests, prevail over the Native Title Rights and Interests and any exercise of those Native Title Rights and Interests.
The words and expressions used in this Determination have the same meanings as they have in the Native Title Act except the following defined words and expressions:
(a) "Descendants" includes Torres Strait Islanders and Aboriginal Peoples who are recognised as Kaurareg People under traditional law and custom;
(b) "Designated Roads" means the areas on Port Lihou Island shown as road opened on plan RA4239;
(c) "Determination Area" means the area on the landward side of the High-Water Mark that is described as follows:
(d) "High-Water Mark" has the meaning given to it in schedule 6 of the Land Act 1994 (Qld);
(e) "Law" includes statutory law, common law and equity;
(f) "Minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(g) "Native Title Holders" means the Kaurareg People;
(h) "Native Title Rights and Interests" means those rights and interests described in Orders 5 to 8;
(i) "Natural Resources" means animal, plant, fish and bird life found on or in the Determination Area from time to time and all water, clays and soils found on or below the surface of the Determination Area but does not include Minerals or Petroleum;
(j) "Petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld).
(a) be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act; and
(b) perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
BETWEEN: MR BILLY WASAGA AND OTHERS ON BEHALF OF THE KAURAREG PEOPLE
1 I have before me five applications for consent determinations of native title over seven of the islands in the Torres Strait. The applicants in each case make these claims on behalf of the Kaurareg People. They claim the rights to use these islands as the traditional lands of the Kaurareg for customary subsistence, cultural, spiritual and economic purposes. Although the proposed determinations of native title that I have before me in exhibits 1 to 5 are each consented to by all the parties, it is necessary for the Court to be satisfied, by reason of the provisions of the Native Title Act 1993 (Cth), that it is proper for the Court to make determinations along the lines proposed. 2 On the material available to the Court, the claims of the Kaurareg to be recognised as the traditional owners of these seven islands is well established. That there has long been identified in the historical records of Australia the existence of a separate people known as Kaurareg is demonstrated by the evidence available to me. These records show that the Kaurareg were the original inhabitants of the islands of the Kaurareg Archipelago prior to and at the time of the claim of sovereignty made on behalf of the English Crown in 1770 by Captain Cook and thereafter. It is enough to refer to a few of these records. 3 Two hundred and thirty one years ago on 22 August 1770, Captain Cook with a party of his men landed on Bedanug, which he called Possession Island and:
"… hoisted English colours, and in the name of His Majesty King George III, took possession of the whole eastern coast from the above latitude of 38o south, down to this place by the name of New Wales."
4 As he sailed south and west from Possession Island past the islands of Zuna or Entrance, Mipa or Turtle, Yeta or Port Lihou and Dumaralag, he wrote in his log:
"We saw upon all the adjacent lands and islands a great number of smokes - a certain sign that they are inhabited."
5 And then, as he sailed closer to the point on Muralag Island itself, which he named Cape Cornwall, there were on a beach a number of people, men and women. "Some of the men," Cook noted, "had on pretty large breast plates, which we supposed were made of pearl oyster shells; this was a thing, as well as the bows and arrows, we had not seen before", ie, that Cook had not seen on the entire voyage up the eastern coast of the continent. This is the first recorded European observation of the Kaurareg. It was only in 1872 that Captain Cook's claim for British sovereignty of the east coast of Australia was extended to the islands in the Kaurareg Archipelago. 6 The most comprehensive information in the early records about the Kaurareg and their traditional laws and customs, material culture, occupancy of the Kaurareg Archipelago and their relations with peoples on the Australian mainland, the other Torres Strait Islands and the peoples of New Guinea dates from 1849, when an officer on HMS Rattlesnake, Oswald Brierly, wrote down the account of a Mrs Barbara Thompson, a Scottish woman who had been shipwrecked in the Torres Strait and had lived with the Kaurareg on Muralag for several years. 7 Brierly's account and the account of John MacGillivray, the member of another Royal Naval expedition to the area published in 1852, provide much evidence for the connection of the Kaurareg People to their traditional country. It is worthy of note that the Kaurareg, in addition to the close cultural and spiritual connection they have with the islands, have traditionally played an important part in the complex trade and customary exchange networks that have long linked Australia, the various Torres Strait Islands and New Guinea. 8 European commercial activity and expanding settlement in the Torres Strait that increased from the last third of the nineteenth century, placed great pressures on the Kaurareg. Much hardship has been endured by them in consequence. Those hardships that extended well into the twentieth century. Armed conflict took place in the late nineteenth century between the Kaurareg in defence of their islands against European and other commercial interests and against the Queensland authorities. Imported diseases took a heavy toll of the Kaurareg. The great measles epidemic of 1875 took many of them. Their numbers steadily declined. 9 In 1881, in response to the pressures imposed on the Kaurareg by increasing European activity in their area, a reserve was established on the northern end of Kirriri, where the Kaurareg continued what has been described as a precarious existence until 1922. Mr Wasaga has spoken today of what took place then. The Queensland Government forcibly removed the remaining Kaurareg from Muralag to exile on Moa. The Kaurareg strongly opposed this removal. They sought to have it reversed. An article relating to the Government's action appeared in the Queensland Newspaper on 11 March 1922 under the heading "Evicted native protests - We want to stop on our own place," the report read. The present Kaurareg claimants are descended, as I understand it, from three Kaurareg who actively took part in the protests and who were forcibly removed to Moa on 8 February 1922, some time before the remaining Kaurareg were similarly removed there. 10 There they remained as a group, although their traditional links with the homelands remained strong. The forced removal of 1922 was not able to prevent various Kaurareg from time to time going back to their islands. They were all taken back to Moa. The war brought great changes in the Torres Strait. One of the consequences of the upheavals that then occurred was that a number of Kaurareg left Moa and returned to Ngurupai (Horn Island) in 1946. They established what is now the Wasaga Township there and gradual recognition came to them. 11 By 1949 the settlement contained thirty-three Kaurareg and, with the encouragement of the Anglican Bishop, the Department of Native Affairs was urged to declare Ngurupai a reserve to give the Kaurareg some security of tenure where previously they had not been recognised as having any. There was a proposal soon afterwards by the Government to move the Kaurareg to Red Island Point on the mainland. That was rejected by them. Though ultimately the recommendation for a reserve on Ngurupai was not accepted by the Government, the Kaurareg who had come back to settle there from 1946 were not removed. The numbers steadily increased. Some recognition of the demands of the Kaurareg to live on their traditional lands came in February 1969 when the Government established the Horn Island Village Council. 12 That process of return to the islands, after the 1922 removal, has culminated today in the applications to this Court for the five consent determinations. 13 The law which came to this country in the wake of Captain Cook, the common law of England, now the law of Australia, today by order of the Court acknowledges that the Kaurareg claimants, as the descendants of the men and women who lived on these island when Captain Cook sailed these waters, are the traditional owners. 14 It is important to note that the Court does not seek today to impose a decision on the parties to the case. The hearing today is being held instead to give effect to an agreement between the Kaurareg People, the Government of Queensland and other organisations including the Torres Shire Council, Ergon Energy Corporation Limited, Telstra Corporation Limited and various commercial fishing interests, who each has an interest in these islands. 15 By this agreement, the parties to the case recognise the Kaurareg as the traditional owners of the islands. The Kaurareg in turn, by this same agreement, recognise that others of the parties have certain rights and interests in respect of the lands. 16 In these circumstances, it is entirely appropriate for the Court to declare in each of the five matters that native title exists in relation to each of the five determination areas set out in exhibits 1 to 5. 17 It is also appropriate for the Court to declare in terms of pars 1 - 15 of each draft determination that native title is held by the Kaurareg People who are the descendants of the Kaurareg, who were the traditional owners of each determination area prior to the assertion of British sovereignty, as common law holders. The Court will in each case make declarations as to the content of the native title rights which are now recognised by Australian law, as enjoyed by the Kaurareg in respect of each of the islands which are set out in each of exhibits 1 to 5. The other orders, proposed in each of the exhibits, identifying the interests of other parties in the various islands, including the interests of the Torres Shire Council and other parties already mentioned will also be made. 18 The Court will therefore make in each of the five matters declarations and orders in conformity with those proposed in the draft determinations in the five exhibits. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.
Solicitor for the Applicant: Ms M Stinton
Counsel for the State of Queensland: The Honourable Attorney-General for the State of Queensland Mr R Welford
Solicitor for the State of Queensland: Crown Law
Solicitor for the Torres Shire Council and Ergon Energy Corporation Limited MacDonnells
Solicitor for the Queensland Seafood Industry Association: Gore & Associates
Solicitor for the Torres Strait Regional Authority: Ms A Murphy
Solicitor for Telstra Corporation Limited: Blake Dawson Waldron
Date of Hearing: 23 May 2001
Date of Judgment: 23 May 2001
Kaurareg People
State of Queensland