Warria on behalf of the Kulkalgal v State of Queensland

Federal Court of Australia|2004-12-07|Before: Cooper J

REASONS FOR JUDGMENT Background 1 This proceeding arises out of an application for determination of native title filed on 26 February 2001 in accordance with the procedures set out in the Native Title Act 1993 (Cth) ('the Act'). Father Napoleon Warria was the original named applicant in this claim. Following the death of Father Warria, Mr Lota Warria proceeded as the named applicant on behalf of the Kulkalgal. The main respondent to this determination application is the State of Queensland. 2 The determination area has been described by the parties as the land and waters on the landward side of the high water mark of Lot 45 on Plan SP104564 referred to as Aureed Island. 3 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 4 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. 5 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. 6 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 7 In considering whether it is appropriate to make the orders that the parties seek, I have had the benefit of an affidavit of the late Father Warria filed on 6 March 2001. I have also had the benefit of an anthropological report prepared on behalf of the applicants in July 2000 by Dr Julie Lahn, anthropologist, and filed on 19 November 2004. Dr Lahn is presently working as a postdoctoral fellow at the Australian National University. In the past she has worked as a consultant anthropologist while living among the people of the Torres Strait. 8 Dr Lahn explains in her report that the people of Aureed Island were a mobile group that moved between neighbouring islands while maintaining a connection with the determination area. The term Kulkalgal is often used to express relatedness, which strengthens existing geographical, cultural and social ties. Within this wider Kulkalgal group, there are smaller sub-groups of which the present claimant group is one. 9 There are pre-annexation recordings of the presence of Islanders at Aureed. The three main sources are those relating to the Charles Eaton affair in 1836, MacFarlane's missionary travels in the Ellengowan during 1874 and Haddon's brief but important passage and genealogical information relating to Aureed in 1935. Dr Lahn notes that the first two events are important in that they record the presence of Islanders on Aureed before and shortly after annexation, and the third makes clear reference to some individuals who are connected to the place. 10 The Kulkalgal sub-group have maintained a physical connection to Aureed. People hunt, fish and forage when visiting the place. Rights to Aureed have been exercised since annexation. Ongoing physical connection arising from such rights have been uninterrupted and claimants have continued to visit and utilise Aureed for fishing, hunting, picnicking and trawling. 11 Like other central islands, Aureed has a number of named places, some of which are sites of social activity and mythological activity (story places), and others which are ecological features. 12 Indeed, the continuing connection between the Kulkalgal and the determination area is well recognised. Father Warria had deposed in support of the Kulkalgal's native title rights over the determination area: '4. The traditional land owners have an 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 Kulkulgal people. 5. In support of some of the rights included as part of the continuing traditional inheritance of Kulkulgal people and therefore as part of their native title rights, I confirm that: (a) Kulkulgal people have always enjoyed, and continue to enjoy, their rights to use, occupy and live on their land and to exclude others from it and to use and enjoy the natural resources of the land such as animal and plant life. For example, my family and I frequently visit the Aureed to hunt for turtle, collect turtle eggs, (b) Kulkulgal 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 Aureed when I die. (c) Kulkulgal 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 Aureed. (d) Kulkulgal people trade and share in their natural resources amongst themselves and trade with others including Papuans, other Torres Strait Islanders and non-indigenous persons. (e) Kulkulgal 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 at Aureed, and I visit the graves of my ancestors at Aureed.' 13 I accept the evidence contained in Father Warria's affidavit and the opinions contained in Dr Lahn's report. 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 Kulkalgal 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 Kulkalgal; 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 3 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 Kulkalgal, 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 Order contains 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

LOTA WARRIA ON BEHALF OF THE KULKALGAL PEOPLE Applicant

STATE OF QUEENSLAND First Respondent GARRY DAVID CHRISTOPHER Second Respondent PAUL GRUNSKE Third Respondent BARRY JOHN HOARE Fourth Respondent HERBERT HURST Fifth Respondent PETER JACKSON Sixth Respondent JOHN MCKENZIE Seventh Respondent SHANE STEPHEN MILLS Eighth Respondent RAYMOND MOORE Ninth Respondent PETER JORG PAHLKE Tenth Respondent GARRY MICHAEL SCHIFFKE Eleventh Respondent LUCIA EDITH SCHIFFKE Twelfth Respondent PHILLIP GEORGE TYRELL Thirteenth Respondent

RAYMOND WARING Fourteenth Respondent MARGARET JANACE WARING Fifteenth Respondent MARK WILLIS Sixteenth Respondent BARRY WILSON Seventeenth Respondent

ORDER JUDGE: DATE OF ORDER: WHERE MADE: THE COURT ORDERS BY CONSENT THAT: 1. Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 45 on Plan SP104564 referred to as Aureed Island and shown on the plan in Schedule 1 ("the Determination Area"). 2. Native title is held by the people described in Schedule 2 ("the Native Title Holders"). 3. Subject to paragraphs 4 and 5, the native title is a right to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. 4. Subject to paragraph 5, the native title in relation to Water is a non-exclusive right to: (a) hunt and fish in or on, and gather from, the Water for the purpose of satisfying personal, domestic or non-commercial communal needs; and (b) take, use and enjoy the Water for the purpose of satisfying personal, domestic or non-commercial communal needs. The native title in relation to Water does not confer possession, occupation, use and enjoyment of the Water on the Native Title Holders to the exclusion of all others. 5. The native title is subject to and exercisable in accordance with: (a) the laws of the Commonwealth of Australia and the State of Queensland including the common law; and (b) traditional laws acknowledged and traditional customs observed by the Native Title Holders. 6. The nature and extent of the other interests in relation to the Determination Area are set out in Schedule 3. 7. The relationship between the native title and the other interests referred to in paragraph 6 is that: (a) the other interests continue to have effect and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of native title; and (b) the other interests and any activity done in exercise of the rights conferred by or held under the other interests prevail over the native title and any exercise of the native title. 8. If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth) then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order: (a) "High Water Mark" has the meaning given to it in the Land Act 1994 (Qld); (b) "Local Government" has the meaning given to it in the Local Government Act 1993 (Qld); and (c) "Water" has the meaning given to it in the Water Act 2000 (Qld). 9. The native title is to be held in trust by the Kulkalgal (Torres Strait Islanders) Corporation for the benefit of the Native Title Holders. 10. Each party to the proceeding is to bear its own costs. Date that entry is stamped: . . . . . . . . . . . . . . . . . . . . . . . . . . . Deputy District Registrar

SCHEDULE 1 NATIVE TITLE DETERMINATION PLAN SCHEDULE 2 NATIVE TITLE HOLDERS The Kulkalgal People, being: (a) the members of the Warraberalgal, Porumalgal and Masigalgal groups who are the descendants of one or more of the following apical ancestors: Garibu, Panipani, Gaibiri, Largud, Gagabe, Wawa, Mapoo, Baki, Laieh, Gauid, Kalai, Sidmu, Aklan, Gewe Jack, Auara, Wabu, Asaia Messiah, Alau Messiah, Apelu, Tabu, Seregay, Maudar or Kudin; and (b) Torres Strait Islanders who have been adopted by the above people in accordance with the traditional laws acknowledged and traditional customs observed by those people.

SCHEDULE 3 OTHER INTERESTS The nature and extent of the other interests in relation to the Determination Area are: (a) the interests of the Gau Land Trust and the beneficiaries under deed of grant No. 40016531; (b) the interest of the Commonwealth of Australia under registered lease No. 704936784; (c) the interests, powers and functions of the Torres Shire Council as Local Government for Lot 45 on Plan SP104564; (d) 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 (e) 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.

Local Government Act 1993(Qld)

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (4)