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[2000] FCA 1067
Federal Court of Australia
2000-07-07
Lease P, Drummond J
Original judgment source is linked above.
Native title exists in relation to the determination area as shown on the map annexed to this order and marked "Annexure A", ie, the land and inland waters of Masig (Yorke) Island being Lot 10 on Plan TS 179, Kadal (Kodall) Islet being Lot 40 on Plan TS 202, Umaga (Keats) Island being Lot 54 on Plan TS 210, Igaba (Marsden) Island being Lot 39 on Plan TS 202, Kabbikane Islet being Lot 41 on Plan TS 202, Mimay (Mimi) Islet being Lot 52 on Plan TS 210, Aukane Islet being Lot 42 on Plan TS 202, Yau (Layoak) Islet being Lot 51 on Plan TS 210, Mauar (Rennel) Island being Lot 46 on Plan TS 205, Roag (Smith) Cay being Lot 26 on Plan USL 36850, Damuth (Dalrymple) Islet being Lot 47 on Plan TS 206 and Bak (Bourke) Island being Lot 43 on Plan TS 202 the landward side of the high water mark but not including the following areas as shown on the map annexed to this Order and marked "Annexure B":
(a) Lot 28 on Plan TS 253 described as SL 43/38565 to the Corporation of the Synod of the Diocese of Carpentaria for church purposes;
(b) The Roads as more particularly shown on the map annexed to this Order;
(c) The land within Lot 10 on Plan TS 179 which comprised Special Lease 43/42976 being land on which the Telstra mast and equipment shelters are situated;
(d) The land on which Ergon Energy Corporation power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation being Lease P in SP127311; and
The persons holding the communal and group rights comprising the native title ("the common law holders") are the Masigalgal (the Masig people).
The nature and extent of the native title rights and interests in relation to the determination area are the rights and interests of the common law holders to possess, occupy, use and enjoy the determination area in accordance with Order 6 but always subject to and in accordance with their traditional laws and customs and in particular to:
(b) conserve, manage, use and enjoy the natural resources of the determination area for the benefit of the common law holders including for social, cultural, economic, religious, spiritual, customary and traditional purposes;
(c) maintain, use and manage the determination area for the benefit of the common law holders, that is to:
(i) maintain and protect sites of significance to the common law holders and other Aboriginal people, Papuans and Torres Strait Islanders on the determination area;
(ii) inherit, dispose of or give native title rights and interests in the determination area to others, being members of the common law holders pursuant to their traditional laws and customs;
(iii) decide who are the native title holders provided that such persons must be Torres Strait Islanders within the meaning of that term in the Native Title Act 1993 (Cth);
(iv) regulate among, and resolve disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the determination area;
(v) conduct social, religious, cultural and economic activities on the determination area; and
(d) make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources being 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 and all other matter comprising the determination area excluding minerals and petroleum and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland.
The nature and extent of any other interests in relation to the determination area are:
(a) the powers of the Yorke Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of local government of the area of the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Yorke Island Council and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area;
(b) the interests of the Yorke Island Council and persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to Yorke Island Council;
(c) 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 Mabuiag Island, including:
(i) the right to enter upon the determination area in accordance with the law; and
(ii) its interests under a Deed of Agreement dated [] day of [] 2000 between it and representatives of the common law holders.
(d) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner and operator of telecommunication facilities on Mabuiag Island, including:
(i) the right to enter upon the determination area in accordance with the law; and
(ii) its interests under a Deed of Agreement dated 4 July 2000 between it and representatives of the common law holders.
(e) the interests of indigenous Papua New Guinea persons in having access to the determination area for traditional purposes;
(f) the rights of the Mauar (Rennel) Island Torres Strait Islander Land Trust pursuant to a Deed of Grant in Trust taking effect on 5 September 1996 under the Torres Strait Islander Land Act 1991 (Qld);
(g) 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 as in force at the date of this determination; and
(h) other interests that may be held by reason of the force and operation of laws of the Commonwealth and of the State of Queensland.
(i) The relationship between the native title rights and interests in Order 3 and the other interests in relation to the determination area in Order 4 is as follows:
The native title rights and interests described in Order 3 are exercisable concurrently with the other interests described in Order 4, but in those circumstances where they cannot be so exercised, the entitlements of the holders of the other interests may regulate control, curtail, restrict, suspend or postpone the exercise of those native title rights and interests.
(ii) The native title rights and interests of the Masigalgal are subject to extinguishment by either:
(a) the lawful powers of the Commonwealth and the State of Queensland; or
(b) lawful grants or creation of interests pursuant to the laws of the Commonwealth and the State of Queensland.
Subject to and in accordance with the traditional laws and customs of the common law holders and the effect and operation of the laws of the Commonwealth and of the State of Queensland and, to the extent that the interests referred to in Order 4 prevent or limit it, the native title rights and interests confer possession, occupation, use and enjoyment of the determination area to the exclusion of all others.
The words and expressions used in this Order have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:
(a) "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 and all other matter comprising the determination area excluding minerals and petroleum and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland;
(b) "minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(c) "petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld); and
(d) "high water mark" has the meaning given to it in the Land Act 1994 (Qld).
The native title is to be held in trust by the Masigalgal (Torres Strait Islanders) Corporation.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES
Native title exists in relation to the determination area as shown on the map annexed to this order and marked "Annexure A", ie, the land and inland waters of Masig (Yorke) Island being Lot 10 on Plan TS 179, Kadal (Kodall) Islet being Lot 40 on Plan TS 202, Umaga (Keats) Island being Lot 54 on Plan TS 210, Igaba (Marsden) Island being Lot 39 on Plan TS 202, Kabbikane Islet being Lot 41 on Plan TS 202, Mimay (Mimi) Islet being Lot 52 on Plan TS 210, Aukane Islet being Lot 42 on Plan TS 202, Yau (Layoak) Islet being Lot 51 on Plan TS 210, Mauar (Rennel) Island being Lot 46 on Plan TS 205, Roag (Smith) Cay being Lot 26 on Plan USL 36850, Damuth (Dalrymple) Islet being Lot 47 on Plan TS 206 and Bak (Bourke) Island being Lot 43 on Plan TS 202 the landward side of the high water mark but not including the following areas as shown on the map annexed to this Order and marked "Annexure B":
(a) Lot 28 on Plan TS 253 described as SL 43/38565 to the Corporation of the Synod of the Diocese of Carpentaria for church purposes;
(b) The Roads as more particularly shown on the map annexed to this Order;
(c) The land within Lot 10 on Plan TS 179 which comprised Special Lease 43/42976 being land on which the Telstra mast and equipment shelters are situated;
(d) The land on which Ergon Energy Corporation power station is situated including any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the installation being Lease P in SP127311; and
The persons holding the communal and group rights comprising the native title ("the common law holders") are the Masigalgal (the Masig people).
The nature and extent of the native title rights and interests in relation to the determination area are the rights and interests of the common law holders to possess, occupy, use and enjoy the determination area in accordance with Order 6 but always subject to and in accordance with their traditional laws and customs and in particular to:
(b) conserve, manage, use and enjoy the natural resources of the determination area for the benefit of the common law holders including for social, cultural, economic, religious, spiritual, customary and traditional purposes;
(c) maintain, use and manage the determination area for the benefit of the common law holders, that is to:
(i) maintain and protect sites of significance to the common law holders and other Aboriginal people, Papuans and Torres Strait Islanders on the determination area;
(ii) inherit, dispose of or give native title rights and interests in the determination area to others, being members of the common law holders pursuant to their traditional laws and customs;
(iii) decide who are the native title holders provided that such persons must be Torres Strait Islanders within the meaning of that term in the Native Title Act 1993 (Cth);
(iv) regulate among, and resolve disputes between, the common law holders in relation to the rights of possession, occupation, use and enjoyment of the determination area;
(v) conduct social, religious, cultural and economic activities on the determination area; and
(d) make decisions about and to control the access to, and the use and enjoyment of, the determination area and its natural resources being 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 and all other matter comprising the determination area excluding minerals and petroleum and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland.
The nature and extent of any other interests in relation to the determination area are:
(a) the powers of the Yorke Island Council under the Community Services (Torres Strait) Act 1984 (Qld) to discharge the functions of local government of the area of the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to the Yorke Island Council and exercise the powers of good rule and government thereof in accordance with the customs and practices of the inhabitants of that area;
(b) the interests of the Yorke Island Council and persons under the Deed of Grant in Trust granted on 17 October 1985 under the Land Act 1962 (Qld) to Yorke Island Council;
(c) 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 Mabuiag Island, including:
(i) the right to enter upon the determination area in accordance with the law; and
(ii) its interests under a Deed of Agreement dated 28 June 2000 between it and representatives of the common law holders.
(d) the interests of Telstra Corporation Limited as an entity exercising statutory powers and as owner and operator of telecommunication facilities on Mabuiag Island, including:
(i) the right to enter upon the determination area in accordance with the law; and
(ii) its interests under a Deed of Agreement dated 4 July 2000 between it and representatives of the common law holders.
(e) the interests of indigenous Papua New Guinea persons in having access to the determination area for traditional purposes;
(f) the rights of the Mauar (Rennel) Island Torres Strait Islander Land Trust pursuant to a Deed of Grant in Trust taking effect on 5 September 1996 under the Torres Strait Islander Land Act 1991 (Qld);
(g) 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 as in force at the date of this determination; and
(h) other interests that may be held by reason of the force and operation of laws of the Commonwealth and of the State of Queensland.
(i) The relationship between the native title rights and interests in Order 3 and the other interests in relation to the determination area in Order 4 is as follows:
The native title rights and interests described in Order 3 are exercisable concurrently with the other interests described in Order 4, but in those circumstances where they cannot be so exercised, the entitlements of the holders of the other interests may regulate control, curtail, restrict, suspend or postpone the exercise of those native title rights and interests.
(ii) The native title rights and interests of the Masigalgal are subject to extinguishment by either:
(a) the lawful powers of the Commonwealth and the State of Queensland; or
(b) lawful grants or creation of interests pursuant to the laws of the Commonwealth and the State of Queensland.
Subject to and in accordance with the traditional laws and customs of the common law holders and the effect and operation of the laws of the Commonwealth and of the State of Queensland and, to the extent that the interests referred to in Order 4 prevent or limit it, the native title rights and interests confer possession, occupation, use and enjoyment of the determination area to the exclusion of all others.
The words and expressions used in this Order have the same meanings as they have in the Native Title Act 1993 (Cth) except for the following defined words and expressions:
(a) "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 and all other matter comprising the determination area excluding minerals and petroleum and any other natural resources provided that these exclusions shall operate only to the extent to which native title has been extinguished or affected pursuant to laws of the Commonwealth and of the State of Queensland;
(b) "minerals" has the meaning given to it in the Mineral Resources Act 1989 (Qld);
(c) "petroleum" has the meaning given to it in the Petroleum Act 1923 (Qld); and
(d) "high water mark" has the meaning given to it in the Land Act 1994 (Qld).
The native title is to be held in trust by the Masigalgal (Torres Strait Islanders) Corporation.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES
AL MOLLER-NIELSEN, BARRY EHRKE, BARRY WILSON, BERNARD BRADLEY, BRUCE ROSE, CARL D'ARGUIAR, DARYL O'HANLON, FRANK SWINBURNE, MARK MILLWARD, MARK WILLIS, NEVILLE DAVIES, PAUL GREEN, PHILLIP HUGHES
1 Although the proposed determination of native title that I have before me today has the consent of all the parties, it is necessary for the Court to be satisfied by reason of provisions of the Native Title Act 1993 (Cth) that it is proper for the Court to make a determination along the lines proposed in Exhibit 1. 2 The Masig people of Masig, Damuth and the associated islands say they descend from the people who lived principally on Masig and Damuth Islands at the time of their annexation to the then Colony of Queensland in 1879. They claim the rights to use those islands and the associated uninhabited islands for customary subsistence and cultural purposes. 3 That there has long been identified in the historical records of Australia since white settlement the existence of a separate people known as Masig is well demonstrated by the evidence available to me. The Attorney-General for the State of Queensland has touched upon some of the history, according to written record, of the Masig people. But those records are full of references to them as a separate and distinct people living on Masig and the surrounding islands. 4 Captain Bligh sailed through these waters on HMS Providence in 1792. He named the islands Yorke and Dalrymple, as recorded in the journal of one of his midshipman, Matthew Flinders. 5 In the 1840s John Macgillivray, on a naval expedition to New Guinea and the Torres Strait, noted the difficulties that he had in identifying the tribal groupings in the Torres Strait. But he did observe that "at all events the natives of Masig belong to a distinct tribe, judging from their language, and they are known as the Massilegas …". 6 It was the Masig people's traditional trading activities that made them so well known and brought them into contact, not only with the other peoples of the Torres Strait and mainland, but also with the European seafarers, traders and settlers. Again, the historical records are full of references to the Masig people as seafaring traders. We find reference in John Sweatman's journal of an encounter with a large number of natives in York Bay in 1846 on the Australian mainland. He noted that the people of the Cape York were connected with some of these natives he identified as Masig people. 7 John Macgillivray, to whom I have already made reference, noted that the Masig Islanders in 1848 were in the habit of coming down to Cape York on a visit to the Australians there, often extending their voyage far to the south and visiting many islands in search of turtle and remaining away for a month or more. 8 Beetes Jukes, who was a member of the surveying exhibition conducted by HMS Fly in the middle of the 1840s, also made observations about the Masig people. He visited Masig and described the island as having many coconuts and as always being inhabited. "They cultivate coco-nuts and the banana, and there was spring of water in the centre of the island." The islanders told him the principal food was coconuts and yams. Jukes made a similar observation of the settlements that he saw on nearby Damuth. 9 The historical records contain numerous references to the extent of the trading activities of the Masig people. Papuan canoes frequently visited Masig, as well as a small number of other islands in the Strait, and the Masig people are recorded as having been traditional intermediaries in trade exchanges between coastal Papuans. The Masig people themselves took turtle and dugong meat to exchange for items with the Papuans, including bows and arrows, yams, taro, sago, drums, and skins for drums. 10 It is important to note that that traditional trade exchange continues to this day, with items such as sago and woven mats continuing to be exchanged between the Masig and Papuan people, together with more modern goods such as flour, sugar and petrol. 11 The material before the Court demonstrates that the Masig people continue to identify with their traditional lands and to maintain customary exchange relations. The Masig system of land tenure has responded to change and it has adapted over time. External influences as well as the internal dynamics of Masig society have shaped that society which has been modified to suit the needs of the Masig people, both prior to annexation and since contact with Europeans and others. This adaptability of the Masig is not recent: the material demonstrates that it must be understood as a traditional ongoing aspect of Masig culture. 12 Since sustained contact with Europeans and others, the Masig have altered the aspects of their way of life and the way they live and the way they use their land, without undermining the traditional system of land tenure. While the location of homes on their islands has shifted from traditional village sites and different building materials are now used, the fundamental tradition of living on Masig Island and building dwellings has not altered. People inherit land according to the principles and laws which derive from those which existed and applied prior to annexation. They continue to observe the traditional authority of the elders in relation to land matters and the integrity and fundamental principles, laws and customs determining and regulating land ownership, management and use have remained constant. 13 The identity of the claimants, Masig people, as traditional owners of the lands the subject of the claim is evident from the material available to the Court. It is evident from the ongoing adherence by the Masig people to customary principles, laws and regulations of social organisation and kinship. 14 The Masig people have never been dispossessed of their lands by British or Australian Governments. External influences have been incorporated into Masig society well prior to sustained contact with Europeans, but this has not undermined the Masig people's adherence to their traditional systems. 15 The material before the Court well establishes the right of the claimants to a declaration in terms of Order 1 of Exhibit 1 that native title exists in relation to Masig Island, Damuth Island and the surrounding islands. The material also demonstrates the claimants' entitlement to a declaration that the people holding the communal and group rights comprising this native title are the Masig Islander people. 16 There will be orders and declarations in terms of Orders 1 and 2 of Exhibit 1. There will also be declarations and orders in terms of Order 3 of the draft determination which describes the extent of the Masig people's native title rights. 17 As has been mentioned from the bar table, this Court today does not impose any orders on anyone. The Masig people and everyone else with interests in these islands have reached agreement on the arrangements that should be incorporated in the Court's orders. Just as by the determinations that I have already made, the Masig people are recognised as the traditional holders of the islands, so do the Masig people give recognition to the interests of those other persons or organisations who have been mentioned in what has been already said from the Bar Table. 18 There will be declarations and orders in terms of Orders 4, 5, 6 and 7 of Exhibit 1. Since it is intended that the native title which has been recognised today is to be held in trust, there will be an order that it be held in trust by the Masigalgal (Torres Strait Islanders) Corporation. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.
Associate: Dated: 8 August 2000 Solicitor for the Applicants: Mr P Hayes
Counsel for the First Respondent: The Honourable Attorney-General for the State of Queensland Matt Foley
Solicitor for the First Respondent: Crown Solicitor
Solicitor for the Third Respondent: Blake Dawson Waldron
Solicitor for the Fifth Respondents: Gore & Associates
Masig People
State of Queensland